2011/11/22 City Council Resolution 2011-113RESOLUTION NO. 2011-113
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ROHNERT PARK
AWARDING EXCLUSIVE MULTIPLE PROVIDER FRANCHISE AGREEMENTS
FOR TEMPORARY DEBRIS BOX AND ROLL -OFF COLLECTION SERVICES
TO ROHNERT PARK DISPOSAL, INC. AND INDUSTRIAL CARTING
WHEREAS, Article XI, § 7 of the California Constitution authorizes cities to protect public
health and safety by taking measures in furtherance of their authority over police and sanitary
matters; and
WHEREAS, the Legislature of the State of California, by enactment of the California Integrated
Waste Management Act of 1989, ( "AB 939 ") (codified at Public Resources Code §§ 4000 et
seq.) established a solid waste management process which requires cities and other local
jurisdictions to implement plans for source reduction, reuse and recycling as integrated waste
management practices for solid waste attributed to sources within their respective jurisdictions;
and
WHEREAS, AB 939 provides that aspects of solid waste handling of local concern include but
are not limited to frequency of collection, means of collection and transportation, level of
services, charges and fees, and nature, location and extent of providing solid waste services; and
WHEREAS, AB 939 confers discretion on cities to provide for the delivery of refuse services to
its residents by the city itself providing the services or by the city conferring the authority to do
so on private profit- making entities; and
WHEREAS, when cities confer the authority to provide refuse services on private profit- making
entities; cities are authorized to do so by means which include the award of a nonexclusive,
partially exclusive or wholly exclusive franchise, contract, license or otherwise; and
WHEREAS, when a city exercises its legislative discretion to provide refuse services to its
residents itself, it assesses and collects a fee from residents to recover its costs for providing
those services; and
WHEREAS, when a city exercises its legislative discretion to award a franchise to private
profit- making entities to provide refuse services to residents, the private profit- making entities
charges residents for those services from which it derives a profit,. and
WHEREAS, the Rohnert Park Municipal Code implements Article XI, § 7 of the California
Constitution and AB 939 in the City of Rohnert Park and protects public health and safety by
authorizing the City Council to provide refuse service itself or to award one or more franchises to
private solid waste. enterprises to provide that service; and
WHEREAS the City Council has concluded, in the exercise of its legislative discretion, that it is
in the best interests of the City and its residents for the City to franchise temporary debris box
and roll -off collection service to private enterprises with the special skills, knowledge, facilities
and other capabilities to ensure a high level of service and compliance with the existing statutory
and regulatory requirements; and
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WHEREAS; Rohnert Park Municipal Code sections 8.12.200 and 8.12.210 require that waste
collection services be provided by contract and exclude any other enterprises from providing
waste hauling services within the city limits during the contract period, thereby requiring all
waste collection to be provided pursuant to an exclusive right;
WHEREAS, on June 28, 2011 the City Council directed the City Manager to solicit requests for
proposal for single - provider and multiple- provider temporary debris box services. On September
13, 2011 the City Council found certain proposals responsive and others to be non - responsive
pursuant to Resolution 2011 -88. Ultimately, on October 25, 2011, the City Council rejected all
proposals pursuant to Resolution No. 2011 -104, awarded new, short-term (60 day) multiple -
provider exclusive franchise agreements with the current providers, and directed the City
Manager to negotiate agreements for temporary debris box and roll off collection services on the
open market;
WHEREAS, the short-term multiple- provider exclusive franchise agreements will expire on
December 31, 2011. Under Section 49520 of AB 939, Rohnert Park Disposal, Inc. and Industrial
Carting's continuation rights are limited to the unexpired term of those agreement because each
entity has an expressly exclusive franchise agreement with the City (as is required by RPMC
sections 8.12.200 and 8.12. 210) allowing them to operate at the exclusion of all other haulers;
WHEREAS; the City Council has determined through an open market negotiation process for
Multiple Provider Exclusive Temporary Debris Box and Roll -off Collection Services that
Rohnert Park Disposal, Inc. and Industrial Carting, by demonstrated experience, reputation and
capacity, are qualified to provide for the Temporary Debris. Box and Roll -off Collection Services
within the corporate limits of the City, the transportation of such material to appropriate places
for processing, recycling, composting and /or disposal; and City Council desires that Rohnert
Park Disposal, Inc. and Industrial Carting be engaged to perform such services on the terms and
conditions to be set forth in a franchise agreement ( "Franchise Agreement "); and
WHEREAS; the Rohnert Park Disposal, Inc. and Industrial Carting, through its negotiations
with the City, have proposed and represented that their company has the ability and capacity to
provide for the Multiple Provider Exclusive Temporary Debris Box and Roll -off Collection
Services within the corporate limits of the City; the transportation of such material to appropriate
places for processing, recycling, composting and /or disposal; and the processing of materials;
and
WHEREAS, when a private profit- making entity is awarded a city franchise authorizing it to
derive profit in providing refuse services to city residents for a fee, the award of this valuable
franchise right provides for compensation to the city and its taxpayers through the imposition of
a franchising fee on the private profit - making entity payable to the city and the amount of such
fees is not limited by AB 939 or any other provisions of law; and
WHEREAS, the amount of the franchise fees contemplated in the Franchise Agreements was
freely negotiated between Rohnert Park Disposal, Inc. and the City and between Industrial
Carting and the City; and
WHEREAS, the California Constitution Articles XIIIC and XIIID, regulates a public agency's
imposition of certain property related fees when the agency assess the resident for a fee for the
provisions of services provided by the public agency; and
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WHEREAS, the California Constitution does not restrict or regulate what a private profit -
making entity may charge residents when those same services are provided by a private entity;
and
WHEREAS, upon thorough analysis, the City, Rohnert Park Disposal, Inc. and Industrial
Carting have determined that the rates and fees established by the Franchise Agreement are not
subject to California Constitution Articles XIIIC and XIIID because, among other reasons, the
temporary debris box and roll -off services will be provided by private corporations and not by
City; Rohnert Park Disposal, Inc. and Industrial Carting will independently establish, charge and
collect the customer rates for said services; the receipt of said services is voluntary and not
required of any property within City; and any owner or occupant of property within City has the
opportunity to avoid the services provided under the Agreement either through self - hauling or
use of property in such a manner that refuse is not generated; and
WHEREAS, the Franchise Agreement has been developed by and is satisfactory to the City,
Rohnert Park Disposal, Inc., and Industrial Carting; and
WHEREAS, the .City Council hereby determines and finds pursuant to California Public
Resources Code § 40059 that the public interest, health, safety and well -being would be served if
Rohnert Park Disposal, Inc. and Industrial Carting were to be awarded an exclusive multiple -
provider franchise agreement for collection, recycling, diversion and disposal of temporary
debris box and roll -off services in the City of Rohnert Park.
NOW, THEREFORE, BE IT RESOLVED that the above - referenced recitals are true
and correct and material to this Resolution.
BE IT FURTHER RESOLVED, that in making its findings the City Council relied
upon and hereby incorporates by reference all of the staff reports, consultants reports,
Application materials, and other documentation presented to the City Council in their meeting.
BE IT FURTHER RESOLVED, that the City Council hereby finds that Rohnert Park
Disposal, Inc. is qualified to provide the service and their proposal to be a provider of temporary
debris box and roll -off collection services meets all of the City's requirements, with the
exception of the insurance requirements, for the reasons set forth in the staff report and its
exhibits which are incorporated by this reference.
BE IT FURTHER RESOLVED, that the City Council hereby finds that Industrial
Carting is qualified to provide the service and their proposal to be a provider of temporary debris
box and roll -off collection services meets all of the City's requirements, with the exception of the
insurance requirements, for the reasons set forth in the staff report and its exhibits which are
incorporated by this reference.
BE IT FURTHER RESOLVED, that pursuant to its police powers and the authority
granted in Public Resources Code sections 40059 and 49300, a Franchise Agreement for multiple
provider exclusive temporary debris box and roll -off collection services is hereby awarded to
Rohnert Park Disposal, Inc. and Industrial Carting upon the terms and conditions set forth in the
Application and Agreement, attached to the staff report.
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BE IT FURTHER RESOLVED that the. City Manager is hereby authorized and
directed to execute an agreement with Rohnert Park Disposal, Inc. and Industrial Carting in
substantially similar form to the Agreement attached to the staff report for and on behalf of the
City of Rohnert Park, provided however, that. Rohnert Park Disposal, Inc. and Industrial Carting
shall agree to and submit evidence of compliance with the insurance requirements established in
said Agreement.
BE IT FURTHER RESOLVED that the City Council hereby finds that the activity
taken by the City Council is exempt from the California Environmental Quality Act (CEQA)
under CEQA Guidelines section 15301 (existing facilities), 15308 (actions by regulatory
agencies for protection of the environment) and under 15061(b)(3) (the common sense
exemption) for the reasons set forth in the staff report, and directs City staff to file a Notice of
Exemption in substantially similar form to that attached to the staff report.
DULY AND REGULARLY ADOPTED. by the City Council of the City of Rohnert
Park this 22nd day of November, 2011.
Vii_ �. ►��i�
� i . • ' � \ate.
City Clerk
AHANOTU: AYE CALLINAN: ABSENT MACKENZIE: AYE STAFFORD: AYE BELFORTE: AYE
AYES: (4) NOES: (0) ABSENT: (1) ABSTAIN: (0)
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