GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2005
SESSION LAW 2006-193
SENATE BILL 951
AN ACT to require a unit of local government that displaces a private company that is providing collection services for solid waste or recovered materials to give notice of its intent to do so or to provide compensation to the displaced private company.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 160A-37.3 reads as rewritten:
"§ 160A-37.3. Contract with private solid waste collection firm(s).
(a) If the area
to be annexed described in a resolution of intent passed under G.S. 160A-37(a)
includes an area where a private solid waste collection firm or firms:
(1) On the
ninetieth day preceding the date of adoption of the resolution of intent in
accordance with G.S. 160A-37(j) or
(2) On the
ninetieth day preceding the date of adoption of the resolution of consideration
in accordance with G.S. 160A-37(i) was providing solid waste collection
services in the area to be annexed, and is still providing such services on the
date of adoption of the resolution of intent, and:
(3) By reason of
such annexation any franchise with a county or arrangements with third parties
for solid waste collection will be terminated, and
(4) During the
90-day period preceding the date of adoption of the resolution of intent or
resolution of consideration provided by subdivisions (1) or (2) of this
subsection, the firm had in such area an average of 50 or more residential
customers or a monthly average revenue from nonresidential customers in such
area of five hundred dollars ($500.00) or more; provided that customers shall
be included in such calculation only if policies of the city will provide solid
waste collection to those customers such that arrangements between the solid
waste firm and the customers will be terminated, and
(5) If such firm
makes a written request that it wishes to contract, signed by an officer or
owner of the firm, and delivered to the city clerk at least 10 days before the
public hearing, unless other arrangements satisfactory to the private solid
waste collection firm or firms have been made, the city shall either:
(6) Contract
with such solid waste collection firm(s) for a period of two years after the
effective date of the annexation ordinance to allow the solid waste collection
firm(s) to provide collection services to the city in the area to be annexed
for sums determined under subsection (d) of this section, or
(7) Pay to the
solid waste collection firm(s) in lieu of a contract a sum equal to the
economic loss determined under subsection (f) of this section.
(a) If the area to be annexed 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) of this section, (ii) on the ninetieth day preceding the date of adoption of the resolution of intent or resolution of consideration was providing solid waste collection services in the area to be annexed, (iii) on the date of adoption of the resolution of intent is still providing such services, and (iv) by reason of the annexation the firm's franchise with a county or arrangements with third parties for solid waste collection will be terminated, the city shall do one of the following:
(1) Contract with the firm for a period of two years after the effective date of the annexation ordinance to allow the firm to provide collection services to the city in the area to be annexed for sums determined under subsection (d) of this section.
(2) Pay to the firm the firm's economic loss, with one-third of the economic loss to be paid within 30 days of the termination and the balance paid in 12 equal monthly installments during the next succeeding 12 months. Any remaining economic loss payment is forfeited if the firm terminates service to customers in the annexation area prior to the effective date of the annexation.
(3) Make other arrangements satisfactory to the parties.
(a1) To qualify for the options set forth in subsection (a) of this section, a firm must have done one of the following:
(1) 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 the public hearing a written request to contract with the city to provide solid waste collection services 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 city clerk 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 written request to contract with the city to provide solid waste collection services. The request must contain 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.
(a2) Firms shall file notice of provision of solid waste collection service with the city clerk of all cities located in the firm's collection area or within five miles thereof.
(b) The city shall
make a good faith effort to provide at least 20 days before the public hearing
a copy of the resolution of intent to each private firm providing solid waste collection
services in the area to be annexed. At least four weeks prior to the
date of the informational meeting, the city shall provide written notice 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 with subsection (a2)
of this section by certified mail, return receipt requested, to the address
provided by the firm under subsection (a2) of this section.
(c) The city may require that the contract contain:
(1) A requirement that the
private firm post a performance bond and maintain public liability
insurance coverage;
(2) A requirement that the
private firm agree to service customers in the annexed area that were
not served by that firm on the effective date of annexation;
(3) A provision that
divides the annexed area into service areas if there were more than one firm
being contracted within the area, such that the entire area is served by the private
firms, or by the city as to customers not served by the private firms;
(4) A provision that the city may serve customers not served by the firm on the effective date of annexation;
(5) A provision that the
contract can be cancelled in writing, delivered by certified mail to the
firm in question with 30 days to cure for substantial violations of
the contract, but no contract may be cancelled on these grounds unless the
Local Government Commission finds that substantial violations have occurred,
except that the city may suspend the contract for up to 30 days if it finds
substantial violation of health laws;
(6) Performance standards,
not exceeding city standards,standards existing at the time of notice
published pursuant to G.S. 160A-37(b), with provision that the
contract may be cancelled for substantial violations of those standards, but no
contract may be cancelled on those grounds unless the Local Government
Commission finds that substantial violations have occurred;
(7) A provision for monetary damages if there are violations of the contract or of performance standards.
(d) If the services to be
provided to the city by reason of the annexation are substantially the same as
rendered under the franchise with the county or arrangements with the parties,
the amount paid by the city shall be at least ninety percent (90%) of the
amount paid or required under the existing franchise or arrangements. If such
services are required to be adjusted to conform to city standards or as a
result of changes in the number of customers, and as a result there are changes
in disposal costs (including mileage and landfill charges), requirements for
storage capacity (dumpsters and/or residential carts), and/or frequency of
collection, the amount paid by the city for the service shall be increased or
decreased to reflect the value of such adjusted services as if computed under
the existing franchise or arrangements. In the event agreement cannot be
reached between the city and the private firm under this subsection, such
the matters shall be determined by the Local Government Commission.
(e) The city
may, at any time after one year's operation thereunder, terminate a contract
made with the solid waste collection firm under subsection (a) of this section
upon payment to said firm of an amount equal to the economic loss determined in
subsection (f) of this section, but discounted by the percentage of the
contract which has elapsed prior to the effective date of the termination.
(f) As used
in this section, "economic loss" is 12 times the average monthly
revenue for the three months prior to the passage of the resolution of intent
or resolution of consideration, as applicable under subsection (a) of this
section, collected or due the private firm for residential, commercial, and
industrial collection service in the area annexed or to be annexed.
(g) The private firm
may, if it contends that no contract has been offered, appeal to the Local
Government Commission within 30 days following passage of an annexation
ordinance. The private firm may appeal to the Local Government
Commission for an order staying the operation of the annexation ordinance
pending the outcome of the review. The Commission may grant or deny the stay
upon such terms as it deems proper. If the Local Government Commission finds
that the city has not made an offer which complies with this section, it shall
remand the ordinance to the municipal governing board for further proceedings,
and the ordinance shall not become effective until the Local Government
Commission finds that such an offer has been made. Either the private firm
or the city may obtain judicial review in accordance with Chapter 150B of the
General Statutes.
(h) A firm which has
given 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 make
available to the city not later than 10 business 30 days
following a written request of the city, sent by certified mail return receipt
requested, all information in its possession or control, including but not
limited to operational, financial and budgetary information, necessary for the
city to determine if the firm qualifies for the benefits of this section and to
determine 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 good
faith response within 10 business 30 days following receipt of
the written request for information from the city, provided that the city's
written request states that statutory rights will be forfeited in the absence
of a timely response and includes a specific reference to this section.
(i) As used in this section, the following terms mean:
(1) Economic loss. - A sum equal to 15 times the average gross monthly revenue for the three months prior to the passage of the resolution of intent or resolution of consideration, as applicable under subsection (a) of this section, collected or due the firm for residential, commercial, and industrial collection service in the area annexed or to be annexed; provided that revenue shall be included in calculations under this subdivision only if policies of the city will provide solid waste collection to those customers such that arrangements between the firm and the customers will be terminated.
(2) Firm. - A private solid waste collection firm."
SECTION 2. G.S. 160A-49.3 reads as rewritten:
"§
160A-49.3. Contract with private solid waste collection firm(s).firms.
(a) If the area
to be annexed described in a resolution of intent passed under G.S. 160A-49(a)
includes an area where a private solid waste collection firm or firms:
(1) On the
ninetieth day preceding the date of adoption of the resolution of intent in
accordance with G.S. 160A-49(j) or
(2) On the
ninetieth day preceding the date of adoption of the resolution of consideration
in accordance with G.S. 160A-49(i)
was providing solid waste collection services in the area to
be annexed, and is still providing such services on the date of adoption of the
resolution of intent, and:
(3) By reason of
such annexation any franchise with a county or arrangements with third parties
for solid waste collection will be terminated, and
(4) During the
90 day period preceding the date of adoption of the resolution of intent or
resolution of consideration provided by subdivisions (1) or (2) of this
subsection, the firm had in such area an average of 50 or more residential
customers or a monthly average revenue from nonresidential customers in such
area of five hundred dollars ($500.00) or more; provided that customers shall
be included in such calculation only if policies of the city will provide solid
waste collection to those customers such that arrangements between the solid
waste firm and the customers will be terminated, and
(5) If such firm
makes a written request that it wishes to contract, signed by an officer or
owner of the firm, and delivered to the city clerk at least 10 days before the
public hearing,
unless other arrangements satisfactory to the private solid
waste collection firm or firms have been made, the city shall either:
(6) Contract
with such solid waste collection firm(s) for a period of two years after the
effective date of the annexation ordinance to allow the solid waste collection
firm(s) to provide collection services to the city in the area to be annexed
for sums determined under subsection (d) of this section, or
(7) Pay to the
solid waste collection firm(s) in lieu of a contract a sum equal to the
economic loss determined under subsection (f) of this section.
(a) If the area to be annexed described in a resolution of intent passed under G.S. 160A-49(a) includes an area where a firm (i) meets the requirements of subsection (a1) of this section, (ii) on the ninetieth day preceding the date of adoption of the resolution of intent or resolution of consideration was providing solid waste collection services in the area to be annexed, (iii) on the date of adoption of the resolution of intent is still providing such services, and (iv) by reason of the annexation the firm's franchise with a county or arrangements with third parties for solid waste collection will be terminated, the city shall do one of the following:
(1) Contract with the firm for a period of two years after the effective date of the annexation ordinance to allow the firm to provide collection services to the city in the area to be annexed for sums determined under subsection (d) of this section.
(2) Pay the firm for the firm's economic loss, with one-third of the economic loss to be paid within 30 days of the termination and the balance paid in 12 equal monthly installments during the next succeeding 12 months. Any remaining economic loss payment is forfeited if the firm terminates service to customers in the annexation area prior to the effective date of the annexation.
(3) Make other arrangements satisfactory to the parties.
(a1) To qualify for the options set forth in subsection (a) of this section, a firm must have done one of the following:
(1) 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 the public hearing a written request to contract with the city to provide solid waste collection services 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 city clerk pursuant to public notice published by the city, pursuant to G.S. 160A-49(b), at least 10 days before the hearing and provided to the city clerk a written request to contract with the city to provide solid waste collection services. The request must contain 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.
(a2) Firms shall fill notice of provision of solid waste collection service with the city clerk of all cities located in the firm's collection area or within five miles thereof.
(b) The city shall
make a good faith effort to provide at least 20 days before the public hearing
a copy of the resolution of intent to each private firm providing solid waste
collection services in the area to be annexed. At least four weeks prior
to the date of the informational meeting, the city shall provide written notice
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 with
subsection (a2) of this section by certified mail, return receipt requested, to
the address provided by the firm under subsection (a2) of this section.
(c) The city may require that the contract contain:
(1) A requirement that the
private firm post a performance bond and maintain public liability
insurance coverage;
(2) A requirement that the
private firm agree to service customers in the annexed area that were
not served by that firm on the effective date of annexation;
(3) A provision that
divides the annexed area into service areas if there were more than one firm
being contracted within the area, such that the entire area is served by the private
firms, or by the city as to customers not served by the private firms;
(4) A provision that the city may serve customers not served by the firm on the effective date of annexation;
(5) A provision that the
contract can be cancelled in writing, delivered by certified mail to the
firm in question with 30 days to cure for substantial violations of
the contract, but no contract may be cancelled on these grounds unless the
Local Government Commission finds that substantial violations have occurred, except
that the city may suspend the contract for up to 30 days if it finds
substantial violation of health laws;
(6) Performance standards,
not exceeding city standards,standards existing at the time of notice
published pursuant to G.S. 160A-49(b) with provision that the contract
may be cancelled for substantial violations of those standards, but no contract
may be cancelled on those grounds unless the Local Government Commission finds
that substantial violations have occurred;
(7) A provision for monetary damages if there are violations of the contract or of performance standards.
(d) If the services to be
provided to the city by reason of the annexation are substantially the same as
rendered under the franchise with the county or arrangements with the parties,
the amount paid by the city shall be at least ninety percent (90%) of the
amount paid or required under the existing franchise or arrangements. If such
services are required to be adjusted to conform to city standards or as a result
of changes in the number of customers and as a result there are changes in
disposal costs (including mileage and landfill charges), requirements for
storage capacity (dumpsters and/or residential carts), and/or frequency of
collection, the amount paid by the city for the service shall be increased or
decreased to reflect the value of such adjusted services as if computed under
the existing franchise or arrangements. In the event agreement cannot be
reached between the city and the private firm under this subsection, such
the matters shall be determined by the Local Government Commission.
(e) The city
may, at any time after one year's operation thereunder, terminate a contract
made with the solid waste collection firm under subsection (a) of this section
upon payment to said firm of an amount equal to the economic loss determined in
subsection (f) of this section, but discounted by the percentage of the
contract which has elapsed prior to the effective date of the termination.
(f) As
used in this section, "economic loss" is 12 times the average monthly
revenue for the three months prior to the passage of the resolution of intent
or resolution of consideration, as applicable under subsection (a) of this
section, collected or due the private firm for residential, commercial, and
industrial collection service in the area annexed or to be annexed.
(g) The private firm
may, if it contends that no contract has been offered, appeal to the Local
Government Commission within 30 days following passage of an annexation
ordinance. The private firm may appeal to the Local Government
Commission for an order staying the operation of the annexation ordinance
pending the outcome of the review. The Commission may grant or deny the stay
upon such terms as it deems proper. If the Local Government Commission finds
that the city has not made an offer which complies with this section, it shall
remand the ordinance to the municipal governing board for further proceedings,
and the ordinance shall not become effective until the Local Government
Commission finds that such an offer has been made. Either the private firm
or the city may obtain judicial review in accordance with Chapter 150B of the
General Statutes.
(h) A firm which has
given 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 make
available to the city not later than 10 business 30 days
following a written request of the city, sent by certified mail return receipt
requested, all information in its possession or control, including but not
limited to operational, financial and budgetary information, necessary for the
city to determine if the firm qualifies for the benefits of this section and to
determine 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 good
faith response within 10 business 30 days following receipt of
the written request for information from the city, provided that the city's
written request so states by specific reference to this section.
(i) As used in this section, the following terms mean:
(1) Economic loss. - A sum equal to 15 times the average gross monthly revenue for the three months prior to the passage of the resolution of intent or resolution of consideration, as applicable under subsection (a) of this section, collected or due the firm for residential, commercial, and industrial collection service in the area annexed or to be annexed; provided that revenues shall be included in calculations under this subdivision only if policies of the city will provide solid waste collection to those customers such that arrangements between the firm and the customers will be terminated.
(2) Firm. - A private solid waste collection firm."
SECTION 3. G.S. 160A-324 reads as rewritten:
"§ 160A-324. Contract with private solid waste collection firm(s).
(a) This
section applies to any area to be annexed by an act of the General Assembly
which includes an area where a private solid waste collection firm or firms on
the 90th day preceding the date of introduction in the House of Representatives
or the Senate of the bill which became the act making the annexation was:
(1) Providing
solid waste collection services in the area to be annexed;
(2) Is still
providing such services on the date of enactment of the act;
(3) By reason of
such annexation any franchise with a county or arrangements with third parties
for solid waste collection will be terminated; and
(4) During the
90-day period preceding the date of introduction, the firm had in such area an
average of 50 or more residential customers or a monthly average revenue from
nonresidential customers in such area of five hundred dollars ($500.00) or
more; provided that customers shall be included in such calculation only if
policies of the city will provide solid waste collection to those customers
such that arrangements between the solid waste firm and the customers will be
terminated,
and if such firm makes a written request that it wishes to
contract, signed by an officer or owner of the firm, and delivered to the city clerk
at least 20 days before the effective date of the annexation provided in the
act, unless other arrangements satisfactory to the private solid waste
collection firm or firms have been made, the city shall either:
(1) Contract
with such solid waste collection firm(s) for a period of two years after the
effective date of the annexation act to allow the solid waste collection
firm(s) to provide collection services to the city in the area to be annexed
for sums determined under subsection (d) of this section, or
(2) Pay to the
solid waste collection firm(s) in lieu of a contract a sum equal to the
economic loss determined under subsection (f) of this section.
(a) If the area to be annexed described in an act of the General Assembly includes an area where a firm (i) meets the requirements of subsection (a1) of this section, (ii) on the ninetieth day preceding the date of introduction in the House of Representatives or the Senate of the bill which became the act making the annexation, was providing solid waste collection services in the area to be annexed, (iii) is still providing such services on the date the act becomes law, and (iv) by reason of the annexation the firm's franchise with a county or arrangements with third parties for solid waste collection will be terminated, the city shall do one of the following:
(1) Contract with the firm for a period of two years after the effective date of the annexation ordinance to allow the firm to provide collection services to the city in the area to be annexed for sums determined under subsection (d) of this section.
(2) Pay the firm for the firm's economic loss, with one-third of the economic loss to be paid within 30 days of the termination and the balance paid in 12 equal monthly installments during the next succeeding 12 months. Any remaining economic loss payment is forfeited if the firm terminates service to customers in the annexation area prior to the effective date of the annexation.
(3) Make other arrangements satisfactory to the parties.
(a1) To qualify for the options 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 the effective date of the annexation a written request to contract with the city to provide solid waste collection services 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.
(a2) Firms shall file notice of provision of solid waste collection service with the city clerk of all cities located in the firm's collection area or within five miles thereof.
(b) The city shall make a good faith effort to provide at least 30 days before the effective date of the annexation a copy of the act to each private firm providing solid waste collection services in the area to be annexed. The notice shall be sent to all firms that filed notice in accordance with subsection (a2) of this section by certified mail, return receipt requested, to the address provided by the firm under subsection (a2) of this section.
(c) The city may require that the contract contain:
(1) A requirement that the
private firm post a performance bond and maintain public liability
insurance coverage;
(2) A requirement that the
private firm agree to service customers in the annexed area that were
not served by that firm on the effective date of annexation;
(3) A provision that
divides the annexed area into service areas if there were more than one firm
being contracted within the area, such that the entire area is served by the private
firms, or by the city as to customers not served by the private firms;
(4) A provision that the city may serve customers not served by the firm on the effective date of annexation;
(5) A provision that the
contract can be cancelled in writing, delivered by certified mail to the
firm in question with 30 days to cure, for substantial violations of
the contract, but no contract may be cancelled on these grounds unless the
Local Government Commission finds that substantial violations have occurred,
except that the city may suspend the contract for up to 30 days if it finds
substantial violation of health laws;
(6) Performance standards,
not exceeding city standards,standards existing at the time of notice
provided pursuant to subsection (b) of this section, with provision that
the contract may be cancelled for substantial violations of those standards,
but no contract may be cancelled on those grounds unless the Local Government
Commission finds that substantial violations have occurred;
(7) A provision for monetary damages if there are violations of the contract or of performance standards.
(d) If the services to be
provided to the city by reason of the annexation are substantially the same as
rendered under the franchise with the county or arrangements with the parties,
the amount paid by the city shall be at least ninety percent (90%) of the
amount paid or required under the existing franchise or arrangements. If such
services are required to be adjusted to conform to city standards or as a
result of changes in the number of customers and as a result there are changes
in disposal costs (including mileage and landfill charges), requirements for
storage capacity (dumpsters and/or residential carts), and/or frequency of
collection, the amount paid by the city for the service shall be increased or
decreased to reflect the value of such adjusted services as if computed under
the existing franchise or arrangements. In the event agreement cannot be
reached between the city and the private firm under this subsection, such
the matters shall be determined by the Local Government Commission.
(e) The city
may, at any time after one year's operation thereunder, terminate a contract
made with the solid waste collection firm under subsection (a) of this section
upon payment to said firm of an amount equal to the economic loss determined in
subsection (f) of this section, but discounted by the percentage of the
contract which has elapsed prior to the effective date of the termination.
(f) As
used in this section, "economic loss" is 12 times the average monthly
revenue for the three months prior to the introduction of the bill, collected
or due the private firm for residential, commercial, and industrial collection
service in the area annexed or to be annexed.
(g) If the city fails to
offer a contract to the private firm within 30 days following the
effective date of the annexation act, the private firm may appeal within
60 days following the effective date of the annexation act to the Local
Government Commission for an order directing the city to offer a contract. If
the Local Government Commission finds that the city has not made an offer which
complies with this section, it shall order the city to pay to the private firm
a civil penalty of the amount of payments it finds that the city would have had
to make under the contract, during the noncompliance period until the contract
offer is made. Either the private firm or the city may obtain judicial
review in accordance with Chapter 150B of the General Statutes.
(h) A firm which has
given 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 make
available to the city not later than five 30 days following a
written request of the city all information in its possession or control,
including but not limited to operational, financial and budgetary information,
necessary for the city to determine if the firm qualifies for the benefits of
this section and to determine 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 good faith response within 30 days following receipt of the
written request for information from the city, provided that the city's written
request so states by specific reference to this section.
(i) As used in this section, the following terms mean:
(1) Economic loss. - A sum equal to 15 times the average gross monthly revenue for the three months prior to the introduction of the bill under subsection (a) of this section, collected or due the firm for residential, commercial, and industrial collection service in the area annexed or to be annexed; provided that revenues shall be included in calculations under this subdivision only if policies of the city will provide solid waste collection to those customers such that arrangements between the firm and the customers will be terminated.
(2) Firm. - A private solid waste collection firm."
SECTION 4. Part 1 of Article 16 of Chapter 160A of the General Statutes is amended by adding a new section to read:
"§ 160A-327. Displacement of private solid waste collection services.
(a) A unit of local government shall not displace a private company that is providing collection services for municipal solid waste or recovered materials, or both, except as provided for in this section.
(b) Before a local government may displace a private company that is providing collection services for municipal solid waste or recovered materials, or both, the unit of local government shall publish notice of the first meeting where the proposed change in solid waste collection service will be discussed. Notice shall be published once a week for at least four consecutive weeks in at least one newspaper of general circulation in the area in which the unit of local government and the proposed displacement area are located. The first public notice shall be given no less than 30 days but no more than 60 days prior to the displacement issue being placed on the agenda for discussion or action at an official meeting of the governing body of the unit of local government. The notice shall specify the date and place of the meeting, the geographic location in which solid waste collection services are proposed to be changed, and the types of solid waste collection services that may be affected. In addition, the unit of local government shall send written notice by certified mail, return receipt requested, to all companies that have filed notice with the unit of local government clerk pursuant to the provisions of subsection (f) of this section. The unit of local government shall deposit notice in the U.S. mail at least 30 days prior to the displacement issues being placed on the agenda for discussion or action at an official meeting of the governing body of the unit of local government.
(c) Following the public notice required by subsection (b) of this section, but in no event later than six months after the date of the first meeting pursuant to subsection (b) of this section, the unit of local government may proceed to take formal action to displace a private company. The unit of local government or other public or private entity selected by the unit of local government may not commence the actual provision of these services for a period of 15 months from the date of the first publication of notice, unless the unit of local government provides compensation to the displaced private company as follows:
(1) Subject to subdivision (3) of this subsection, if the private company has provided collection services in the displacement area prior to announcement of the displacement action, the unit of local government shall provide compensation to the displaced private company in an amount equal to the total gross revenues for collection services provided in the displacement area for the six months prior to the first publication of notice required under subsection (b) of this section.
(2) Subject to subdivision (3) of this subsection, if the displaced private company has provided collection services in the displacement area for less than six months prior to the first publication of notice required under subsection (b) of this section, the unit of local government shall provide compensation to the displaced private company in an amount equal to the total gross revenues for the period of time that the private company provided such services in the displacement area.
(3) If the displaced private company purchased an existing operation of another private company providing such services, compensation shall be for six months based on the monthly average total gross revenues for three months the immediate preceding the first publication of notice required under subsection (b) of this section.
(d) If the local government elects to provide compensation pursuant to subsection (c) of this section, the amount due from the unit of local government to the displaced company shall be paid as follows: one-third of the compensation to be paid within 30 days of the displacement and the balance paid in six equal monthly installments during the next succeeding six months.
(e) If the unit of local government fails to change the provision of solid waste services as described in the notices required under subsection (b) of this section within six months of the date of the first meeting pursuant to subsection (b) of this section, the unit of local government shall not take action to displace without complying again with the provisions of subsection (b) of this section.
(f) Notice of the provision of solid waste collection service shall be filed with the unit of local government clerk of all cities and counties located in the private company's collection area or within five miles thereof.
(g) This section shall not apply when a private company is displaced as the result of an annexation under Article 4A of Chapter 160A of the General Statutes or an annexation by an act of the General Assembly. The provisions of G.S. 160A-37.3, 160-49.3, or 160A-324 shall apply.
(h) If a unit of local government intends to provide compensation under subsection (c) of this section to a private company that has given notice under subsection (f) of this section, the private company shall make available to the unit of local government not later than 30 days following a written request of the unit of local government, sent by certified mail, return receipt requested, all information in its possession or control, including operational, financial, and budgetary information necessary for the unit of local government to determine if the private company qualifies for compensation. The private company forfeits its rights under this section if it fails to make a good faith response within 30 days following receipt of the written request for information from the unit of local government provided that the unit of local government's written request so states by specific reference to this section.
(i) Nothing in this section shall affect the authority of a city or county to establish recycling service where recycling service is not currently being offered.
(j) As used in this section, the following terms mean:
(1) Collection. - The gathering of municipal solid waste, recovered materials, or recyclables from residential, commercial, industrial, governmental, or institutional customers and transporting it to a sanitary landfill or other disposal facility. Collection does not include transport from a transfer station or processing point to a disposal facility.
(2) Displacement. - Any formal action by a unit of local government that prohibits a private company from providing all or a portion of the collection services for municipal solid waste, recovered materials, or recyclables that the company is providing in the affected area at least 90 days prior to the date of the first publication of notice required by subsection (b) of this section. Displacement also means an action by a unit of local government to use an availability fee, nonoptional fee, or taxes to fund competing collection services for municipal solid waste, recovered materials, or recyclables that the private company is providing in the affected areas at least 90 days prior to the date of the first publication of notice required under subsection (b) of this section is given. Displacement does not include any of the following actions:
a. Failure to renew a franchise agreement or contract with a private company.
b. Taking action that results in a change in solid waste collection services because the private company's operations present an imminent and substantial threat to human health or safety or are causing a substantial public nuisance.
c. Taking action that results in a change in solid waste collection services because the private company has materially breached its franchise agreement or the terms of a contract with the local government, or the company has notified the local government that it no longer intends to honor the terms of the franchise agreement or contract. Notice of breach must be delivered in writing, delivered by certified mail to the firm in question with 30 days to cure the violation of the contract.
d. Terminating an existing contract or franchise in accordance with the provisions of the contract or franchise agreement.
e. Providing temporary collection services under a declared state of emergency.
f. Taking action that results in a change in solid waste collection services due to the existing providers' felony conviction of a violation in the State of federal or State law governing the solid waste collection or disposal.
g. Contracting with a private company to continue its existing services or provide a different level of service at a negotiated price on terms agreeable to the parties.
(3) Municipal solid waste. - As defined in G.S. 130A-290(18a).
(4) Unit of local government. - A county, municipality, authority, or political subdivision that is authorized by law to provide for collection of solid waste or recovered materials, or both."
SECTION 5. Sections 1 and 2 of this act apply to annexations for which a resolution of intent is adopted on or after January 1, 2007, and Section 3 of this act applies to annexations for which the bill making the annexation is enacted on or after January 1, 2007. Section 4 of this act applies to actions taken on or after that date. This section is effective when it becomes law.
In the General Assembly read three times and ratified this the 20th day of July, 2006.
s/ Beverly E. Perdue
President of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 1:57 p.m. this 3rd day of August, 2006