Sec. 380.608. - Franchise obligations.
(a) Considerations for franchise. In consideration of the grant of a franchise by the City, including, the right of the franchisee to collect and receive rates and charges from customers and to use the public streets, roads, alleyways and places of the County to conduct a private business providing an essential public service, each franchisee shall comply with the obligations, duties and responsibilities set forth in this Section.
(b) Franchise fee.
(1) Amount. A franchisee shall pay the City a franchise fee on its nonresidential solid waste collection, transportation and container services in the City. The fee is imposed on the revenue earned from the day the applicant signs a franchise agreement with the City. Each franchisee shall pay to the City a franchise fee of 12 percent of the franchisee's monthly gross receipts. Effective January 1, 2005, the franchise fee shall be 17 percent of the franchisee's monthly gross receipts. The City shall have the option of raising the franchise fee once yearly; such raises shall not exceed one percent of the franchisee's totally monthly gross receipts and shall be imposed by the Council after a public hearing. Payments of the fee shall be made by delivering to the City Division a check payable to the City each month on or before the last day of each month, on gross receipt of the previous month. The franchise fee shall be listed separately on each customer's invoice as 17 percent of the subtotal of all monthly gross receipts so that no more than one franchise fee is listed per invoice. A franchisee is responsible for payment of any franchise fee when working with a broker company or associated with an agreement made by subcontract with a third party.
(2) Franchise audits. To ensure assessment of the proper franchise fee, the franchisee shall submit the following:
(i) Monthly and annual reports. The franchisee shall deliver to the City Department a true and correct monthly report of gross receipts generated during the previous month from accounts within the City on or before the last day of each month. The franchisee shall, on or before 90 days following the close of its fiscal year, deliver to the City Department a statement of its annual gross receipts generated from accounts within the City reflecting gross receipts within the City for the preceding fiscal year. The statement shall present the amounts due to the City based on the provisions of Section 380.608(b)(1) of the Code for the preceding fiscal year, with a comparison as to the actual amounts paid and a computation as to any overpayments or underpayments made during the preceding fiscal year. The statement shall be audited by an independent certified public accountant licensed to do business in the State, and shall be accompanied by the certified public accountant's opinion of its accuracy without qualifications or reservations. Any franchisee who fails to submit its certified financial statements within the time prescribed in this Section or fails to obtain an extension for good cause shown 15 days prior to the report due date shall pay an additional late charge of ten (10) percent of the average monthly franchise fee incurred by the franchisee for the preceding annual reporting period.
(ii) Audit or inspection of franchisee's books and records. The franchisee shall allow the City Auditors, at any reasonable time after reasonable notice, to audit, inspect and examine the franchisee's fiscal books and records and State and federal tax returns, insofar as they relate to City accounts, to confirm the franchisee's compliance with this Section. This information shall include, but not be limited to, the following: billing rates, billing amounts, accounts receivable and list of accounts. Additionally, the City's Auditors may communicate directly with customers of the franchisee for the purpose of confirming compliance with this Section. To the extent authorized by F.S. § 119.165 or other applicable law, this information shall remain confidential.
(3) Failure to pay franchise fee. In the event the franchisee fails to timely pay the full franchise fee as set forth in subsection (b)(1) of this Section, the City Department may suspend the franchise until payment is made, and the City Department may revoke the franchise administratively. Additionally, the franchisee shall pay any and all of the City's expenses for collection of same, including, but not limited to, court costs and reasonable attorney fees. In the event the franchisee fails to pay the full franchise fee on or before the last day of each month, the franchisee shall pay a late fee equivalent to ten percent of the said month's franchise fee due.
(4) Evidence of payment. Any person, which includes, without limitation, a firm or corporation seeking to renew its annual County and municipal occupational license pursuant to the provisions of Chapters 770 and 772 of this Code and, in addition to the requirements contained therein, shall provide to the City Department and the Tax Collector evidence of payment of all outstanding nonresidential solid waste collection franchise fees before the Tax Collector may reissue or renew the franchisee's solid waste-related licenses.
(5) Payment procedures. The City Department is hereby authorized and empowered to establish by rule a system of advance payments of the franchise fee or of other forms of financial security to ensure payment of the franchise fee if, in its determination, such a system is necessary to ensure the timely payment of the franchise fee by a particular franchisee or by franchisees in general. The obligation of a franchisee to pay the City Department the franchise fee shall arise immediately at the time the franchisee receives payment from a customer, notwithstanding the provisions hereof for payment in arrears of accrued amount due. A franchisee's failure to timely pay the established fee is grounds for suspension of its franchise by the City Department, and revocation of the franchise by the Council.
(c) Vehicles and equipment. Vehicles and equipment used by a franchisee shall be maintained in the condition to prevent a sanitary nuisance or safety hazard. Vehicles and equipment shall be frequently washed thoroughly with suitable disinfectant and deodorant, and all vehicles shall be washed on the outside weekly. Waste collection vehicles used by a franchisee shall not be allowed to stand unattended on a public or private street. The franchisee's equipment shall be operated so as to minimize interference with vehicular or pedestrian traffic. Collection shall be made and the equipment operated and maintained by a franchisee in a manner as to prevent the dropping or scattering of solid or liquid wastes anywhere except in a lawful solid waste management or disposal site. All waste spilled or scattered from vehicles shall be immediately picked up by the franchisee. Collection vehicles shall consist of trucks with leak-resistant packer or enclosed bodies and dumpsters shall be covered and leak-resistant, all in good repair. All vehicles used for nonresidential solid waste collection shall be prominently marked with the name of the franchisee and vehicle number on driver and passenger sides. The vehicle number shall also be marked on the front and rear of the vehicle. Except as otherwise provided in this Part, each vehicle shall contain a current, unrevoked tag or decal issued by the City Department, as evidence of the hauler's franchise rights. The City Department is hereby authorized and empowered to issue such tag or decal and is further authorized and empowered to deny or revoke the tag or decal of any vehicle that fails to meet requirements of this Section or City Department rules. Such vehicle shall not be used for the collection or transportation of nonresidential solid waste until its tag or decal has been reinstated by the City Department.
(d) Collection times. Collection of nonresidential solid waste shall be scheduled by agreement between the franchisee and the customer, subject to any rules of the City Department, any terms of the franchise, Chapter 368, Ordinance Code, and rules of the Jacksonville Environmental Protection Board.
(e) Provision of service. Every franchisee may provide collection services to any customer who requests the franchisee's services and agrees to the terms and conditions of the service agreement between the franchisee and the customer. Any franchisee may refuse service to any customer for failure to pay a just bill or for any substantial refusal to comply with any rules of the City Department applicable to the customer.
(f) Payment bond. The franchisee shall furnish the City Department, on an annual basis, a payment bond in an amount equal to the greater of either $25,000 or the estimated franchise fee for one month's operations under the franchise, as determined by the City Department to insure continuity of collection and transportation services and payment of the franchise fee. The bond may be issued by surety licensed by the State and acceptable to the City Department, or may be in the form of a letter of credit or a deposit account irrevocably assigned to the Council, or in any other form which the City Department may approve. The bond shall be conditioned upon performance of the franchise obligations, and it shall be considered a violation of the franchise and the bond conditions if the franchisee shall:
(1) Fail to cure a violation under Section 380.606(b) thereof after having been given 30 days' notice of failure to comply.
(2) Take the benefit of any present or future insolvency statutes, or make a general assignment for the benefit of creditors, or file a voluntary petition in bankruptcy or a petition or answer seeking an arrangement, reorganization or readjustment of its indebtedness under the federal bankruptcy laws or under any other law or statute of the United States or any state thereof, or consent to the appointment of a receiver, trustee, or liquidator of all, or substantially all, of its property.
(3) By an order or judgment by a court of competent jurisdiction be adjudged bankrupt; provided, however, that if such judgment or order is vacated within 60 days after the entry thereof, any notice of forfeiture of franchise resulting there from shall be null, void, and of no effect.
(4) Fail to comply with any other term or condition which may be specified in the franchise.
(g) Insurance.
(1) Each franchisee must maintain throughout the entire period during which its franchise is in effect, in full force and effect, the following insurance coverages, which for subsection (ii) hereof shall be classified by user group based on the number of vehicles utilized in connection with a franchise as determined by the number of franchise decals issued to each franchisee. The user groups are:
User Group One - 1 to 10 vehicles;
User Group Two - 11 to 20 vehicles;
User Group Three - more than 20 vehicles.
(i) Commercial general liability coverage no more restrictive than that provided by the most recent version of the standard Commercial General Liability Form (ISO Form CG 00 01) as filed for use in the State of Florida without any restrictive endorsements other than those reasonably required by the City's Office of Insurance and Risk Management in the amount of $1,000,000 per occurrence/$2,000,000 aggregate.
(ii) Automobile liability coverage no more restrictive than that provided by the most recent version of the standard Business Auto Coverage Form (ISO Form CA0001) as filed for use in the State of Florida without any restrictive endorsements other than those which are required by the State of Florida in the amount of $1,000,000 combined single limit for User Group One; $3,000,000 combined single limit for User Group Two; and $5,000,000 combined single limit for User Group Three. Automobile liability coverage shall be for bodily injury and property damage, covering all vehicles owned, leased or used by the franchisee in connection with the performance of the franchise agreement. Umbrella or Excess Automobile Liability can be utilized to satisfy the above listed limits.
(iii) Workers' compensation with Florida statutory limits and employer's liability with limits of $1,000,000 Each Accident, $1,000,000 Disease Each Employee, and $1,000,000 Disease Policy Limit.
(iv) Pollution Liability that includes bodily injury, sickness, and disease, mental anguish or shock sustained by any person, including death; property damage including physical injury to destruction of tangible property including resulting loss of use thereof, cleanup costs, and the loss of use of tangible property that has not been physically injured or destroyed; defense including costs charges and expenses incurred in the investigation, adjustment or defense of claims for such compensatory damages; coverage for losses caused by pollution conditions that arises from the operations of the contractor including transportation with limits not less than $1,000,000 per Loss with a $2,000,000 Annual Aggregate.
(2) All policies, with the exception of Workers Compensation and Employers Liability will name the City of Jacksonville, its members, officials, officers, employees and agents as additional insured.
(3) All required insurance policies shall be endorsed to provide for a waiver of underwriter's rights of subrogation in favor of the City of Jacksonville and its members, officials, officers, employees and agents.
(4) The insurance provided shall apply on a primary basis to, and shall not require contribution from, any other insurance or self-insurance maintained by the City or any City members, officials, officers, employees and agents.
(5) All deductibles and self-insured retentions associated with coverages required for compliance with this Section shall remain the sole and exclusive responsibility of the named Franchisee. Under no circumstances will the City of Jacksonville and its members, officials, officers, directors, employees, representatives, and agents be responsible for paying any deductible or self-insured retentions related to this agreement.
(6) Compliance with the insurance requirements shall not limit the liability of the Franchisee or its Subcontractors, employees, or agents to the City or others. Any remedy provided to City or City's members, officials, officers, employees or agents shall be in addition to and not in lieu of any other remedy available under the franchise agreement or otherwise.
(7) Neither approval by City nor failure to disapprove the insurance furnished by the Franchisee shall relieve Franchisee of Franchisee's full responsibility to provide insurance as required under the franchise agreement.
(8) Franchisee shall provide the City Certificates of Insurance that shows the corresponding City Contract Number in the description, if known, Additional Insureds as provided above, and waivers of subrogation. The Certificates of Insurance shall be mailed to the City of Jacksonville (Attention: Chief of Risk Management), 117 W. Duval Street, Suite 335, Jacksonville, Florida 32202.
(9) The required insurance shall be written by an insurer holding a current certificate of authority pursuant to F.S. Ch. 624, or a company that is declared as an approved Surplus Lines carrier under F.S. Ch. 626. Such Insurance shall be written by an insurer with an A.M. Best Rating of A- VII or better.
(10) The franchisee shall provide an endorsement issued by the insurer to provide the City 30 days' prior written notice of any change in the above insurance coverage limits or cancellation, including expiration or non-renewal. If such endorsement is not provided, the franchisee, shall provide said 30 days' written notice of any change in the above coverages or limits, coverage being suspended, voided, or cancelled, including expiration or non-renewal.
(11) Anything to the contrary notwithstanding, the liabilities of the franchisee under this agreement shall survive and not be terminated, reduced, or otherwise limited by any expiration or termination of insurance coverage.
(12) Any deviation from these requirements must be approved by the City's Risk Manager. The City reserves the right to increase the kinds and amounts of insurance coverage required, if the Risk Manager, in its sole discretion, deems such increase necessary to protect the City.
(13) As evidence of the above coverage, the franchisee must provide original certificates of insurance to the City's Risk Manager and these must be approved by the Risk Manager prior to the issuance of a franchise. The franchisee must submit a new certificate evidencing the continuing or replacement coverage prior to the expiration date of such insurance coverage.
(14) Operation of activities by the franchise without the required insurance shall be grounds for franchise revocation as specified herein.
(h) Indemnification. Each franchisee shall execute an indemnification agreement whereby the franchisee promises to indemnify, hold harmless and defend the City, its officers, agents and employees against, and assume all liability for, any and all claims, suits, actions, damages, liabilities, expenditures, or causes of actions of any kind arising from waste collection transportation and disposal activities and/or the use of the public streets for the purposes authorized in this ordinance and resulting or accruing from any negligent act, omission or error of the franchisee, its agents or employees and/or arising from the failure of such franchisee, its agents or employees, to comply with each and every covenant of any applicable franchise agreement with the City or with any other local ordinance or State or federal law applicable to its activities resulting in, or relating to, bodily injury, loss of life or limb, damage to property or environmental liability sustained by any person, firm, corporation or other business entity. The franchisee shall save the City, its officers, agents, and its employees harmless from and against all judgments, orders, decrees, attorney's fees, costs, expenses and liabilities incurred in and about any such claim, investigation or defense thereof, which may be entered, incurred or assessed as a result of the foregoing. The franchisee shall defend, at its sole cost and expense, any legal action, claim or proceeding instituted by any person against the City, its officers, agents and employees as a result of any claim, suit or cause of action accruing from activities authorized by this Part, for personal injuries, property damage or environmental claims, as set forth above.
(Ord. 93-1774-1411, § 1; Ord. 2004-897-E, § 1; Ord. 2017-565-E, § 1)
