§ 160A-324. Contract with private solid waste collection firm(s). - North Carolina Statutes

§ 160A‑324.  Contractwith private solid waste collection firm(s).

(a)        If the area to beannexed described in an act of the General Assembly includes an area where afirm (i) meets the requirements of subsection (a1) of this section, (ii) on theninetieth day preceding the date of introduction in the House ofRepresentatives or the Senate of the bill which became the act making theannexation, was providing solid waste collection services in the area to beannexed, (iii) is still providing such services on the date the act becomeslaw, and (iv) by reason of the annexation the firm's franchise with a county orarrangements with third parties for solid waste collection will be terminated,the city shall do one of the following:

(1)        Contract with thefirm for a period of two years after the effective date of the annexationordinance to allow the firm to provide collection services to the city in thearea to be annexed for sums determined under subsection (d) of this section.

(2)        Pay the firm for thefirm's economic loss, with one‑third of the economic loss to be paidwithin 30 days of the termination and the balance paid in 12 equal monthlyinstallments during the next succeeding 12 months. Any remaining economic losspayment is forfeited if the firm terminates service to customers in theannexation area prior to the effective date of the annexation.

(3)        Make otherarrangements satisfactory to the parties.

(a1)      To qualify for theoptions set forth in subsection (a) of this section, a firm must have,subsequent to receiving notice of the annexation in accordance with subsection(b) of this section, filed with the city clerk at least 10 days prior to theeffective date of the annexation a written request to contract with the city toprovide solid waste collection services containing a certification, signed byan officer or owner of the firm, that the firm serves at least 50 customerswithin the county at that time.

(a2)      Firms shall filenotice of provision of solid waste collection service with the city clerk ofall cities located in the firm's collection area or within five miles thereof.

(b)        The city shall makea good faith effort to provide at least 30 days before the effective date ofthe annexation a copy of the act to each private firm providing solid wastecollection services in the area to be annexed. The notice shall be sent to allfirms that filed notice in accordance with subsection (a2) of this section bycertified mail, return receipt requested, to the address provided by the firmunder subsection (a2) of this section.

(c)        The city mayrequire that the contract contain:

(1)        A requirement thatthe firm post a performance bond and maintain public liability insurancecoverage;

(2)        A requirement thatthe firm agree to service customers in the annexed area that were not served bythat firm on the effective date of annexation;

(3)        A provision thatdivides the annexed area into service areas if there were more than one firmbeing contracted within the area, such that the entire area is served by thefirms, or by the city as to customers not served by the firms;

(4)        A provision that thecity may serve customers not served by the firm on the effective date ofannexation;

(5)        A provision that thecontract can be cancelled in writing, delivered by certified mail to the firmin question with 30 days to cure, substantial violations of the contract, butno contract may be cancelled on these grounds unless the Local GovernmentCommission finds that substantial violations have occurred, except that thecity may suspend the contract for up to 30 days if it finds substantialviolation of health laws;

(6)        Performancestandards, not exceeding city standards existing at the time of notice providedpursuant to subsection (b) of this section, with provision that the contractmay be cancelled for substantial violations of those standards, but no contractmay be cancelled on those grounds unless the Local Government Commission findsthat substantial violations have occurred;

(7)        A provision formonetary damages if there are violations of the contract or of performancestandards.

(d)        If the services tobe provided to the city by reason of the annexation are substantially the sameas rendered under the franchise with the county or arrangements with theparties, the amount paid by the city shall be at least ninety percent (90%) ofthe amount paid or required under the existing franchise or arrangements. Ifsuch services are required to be adjusted to conform to city standards or as aresult of changes in the number of customers and as a result there are changesin disposal costs (including mileage and landfill charges), requirements forstorage capacity (dumpsters and/or residential carts), and/or frequency ofcollection, the amount paid by the city for the service shall be increased ordecreased to reflect the value of such adjusted services as if computed underthe existing franchise or arrangements. In the event agreement cannot bereached between the city and the firm under this subsection, the matters shallbe determined by the Local Government Commission.

(e),       (f) Repealed bySession Laws 2006‑193, s. 1, applicable to annexations for which the billmaking the annexation is enacted  on or after January 1, 2007.

(g)        If the city failsto offer a contract to the firm within 30 days following the effective date ofthe annexation act, the firm may appeal within 60 days following the effectivedate of the annexation act to the Local Government Commission for an orderdirecting the city to offer a contract. If the Local Government Commission findsthat the city has not made an offer which complies with this section, it shallorder the city to pay to the firm a civil penalty of the amount of payments itfinds that the city would have had to make under the contract, during thenoncompliance period until the contract offer is made. Either the firm or thecity may obtain judicial review in accordance with Chapter 150B of the GeneralStatutes.

(h)        A firm which hasgiven notice under subsection (a) of this section that it desires to contract,and any firm that the city believes is eligible to give such notice, shall makeavailable to the city not later than 30 days following a written request of thecity all information in its possession or control, including but not limited tooperational, financial and budgetary information, necessary for the city todetermine if the firm qualifies for the benefits of this section and todetermine the nature and scope of the potential contract and/or economic loss.The firm forfeits its rights under this section if it fails to make a goodfaith response within 30 days following receipt of the written request forinformation from the city, provided that the city's written request so statesby specific reference to this section.

(i)         As used in thissection, the following terms mean:

(1)        Economic loss. – Asum equal to 15 times the average gross monthly revenue for the three monthsprior to the introduction of the bill under subsection (a) of this section,collected or due the firm for residential, commercial, and industrial collectionservice in the area annexed or to be annexed; provided that revenues shall beincluded in calculations under this subdivision only if policies of the citywill provide solid waste collection to those customers such that arrangementsbetween the firm and the customers will be terminated.

(2)        Firm. – A privatesolid waste collection firm. (1989, c. 598, s. 1; 2006‑193, s. 3.)