§ 160A-37.3. Contract with private solid waste collection firm(s).
§ 160A‑37.3. Contractwith private solid waste collection firm(s).
(a) If the area to beannexed described in a resolution of intent passed under G.S. 160A‑37(a)includes an area where a firm (i) meets the requirements of subsection (a1) ofthis section, (ii) on the ninetieth day preceding the date of adoption of theresolution of intent or resolution of consideration was providing solid wastecollection services in the area to be annexed, (iii) on the date of adoption ofthe resolution of intent is still providing such services, and (iv) by reasonof the annexation the firm's franchise with a county or arrangements with thirdparties for solid waste collection will be terminated, the city shall do one ofthe 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 to the firm 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 done oneof the following:
(1) Subsequent toreceiving notice of the annexation in accordance with subsection (b) of thissection, filed with the city clerk at least 10 days prior to the public hearinga written request to contract with the city to provide solid waste collectionservices containing a certification, signed by an officer or owner of the firm,that the firm serves at least 50 customers within the county at that time.
(2) Contacted the cityclerk pursuant to public notice published by the city, pursuant to G.S. 160A‑37(b),at least 10 days before the hearing and provided to the city clerk a writtenrequest to contract with the city to provide solid waste collection services.The request must contain a certification signed by an officer or owner of thefirm that the firm serves at least 50 customers within 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) At least four weeksprior to the date of the informational meeting, the city shall provide writtennotice of the resolution of intent to all firms serving the area to be annexed.The notice shall be sent to all firms that filed notice in accordance withsubsection (a2) of this section by certified mail, return receipt requested, tothe address provided by the firm under 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, but nocontract 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 noticepublished pursuant to G.S. 160A‑37(b), 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 aresolution of intent is adopted on or after January 1, 2007.
(g) The firm may, if itcontends that no contract has been offered, appeal to the Local GovernmentCommission within 30 days following passage of an annexation ordinance. Thefirm may appeal to the Local Government Commission for an order staying theoperation of the annexation ordinance pending the outcome of the review. TheCommission may grant or deny the stay upon such terms as it deems proper. Ifthe Local Government Commission finds that the city has not made an offer whichcomplies with this section, it shall remand the ordinance to the municipalgoverning board for further proceedings, and the ordinance shall not becomeeffective until the Local Government Commission finds that such an offer hasbeen made. Either the firm or the city may obtain judicial review in accordancewith Chapter 150B of the General Statutes.
(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, sent by certified mail return receipt requested, all information in itspossession or control, including but not limited to operational, financial andbudgetary information, necessary for the city to determine if the firmqualifies for the benefits of this section and to determine the nature andscope of the potential contract and/or economic loss. The firm forfeits itsrights under this section if it fails to make a good faith response within 30days following receipt of the written request for information from the city,provided that the city's written request states that statutory rights will beforfeited in the absence of a timely response and includes a specific referenceto 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 passage of the resolution of intent or resolution ofconsideration, as applicable under subsection (a) of this section, collected ordue the firm for residential, commercial, and industrial collection service inthe area annexed or to be annexed; provided that revenue shall be included incalculations under this subdivision only if policies of the city will providesolid waste collection to those customers such that arrangements between thefirm and the customers will be terminated.
(2) Firm. A privatesolid waste collection firm. (1985, c. 610, s. 3; 1987, c. 827, s. 1; 1989, c. 598,s. 6; 1998‑150, s. 9; 2006‑193, s. 1.)