[HISTORY: Adopted by the Mayor and Council
of the Borough of Wanaque 11-22-1967, Amendments noted where applicable.]
GENERAL REFERENCES
Garbage and rubbish — See Ch. 120.
This ordinance shall be known and cited as the
"Incinerator Franchise Ordinance."
For the purpose of this ordinance, the following
terms, phrases, words and their derivations shall have the meaning
given herein. When not inconsistent with the context, words used in
the present tense include the future, words in the plural number include
the singular number and words in the singular number include the plural
number. The word "shall" is always mandatory and not merely directory.
The Borough of Wanaque.
The grantee of rights under the franchise.
Any person, firm, partnership, association, corporation,
company or organization of any kind.
There is hereby granted by the borough to Dinosaur
Reduction Chamber, Inc., hereinafter called the grantee, the right
and privilege to construct, erect, establish, buy, maintain and operate
an incinerator for the combustion and destruction of refuse in the
Borough of Wanaque, subject to the conditions hereinafter set forth,
with the right to accept industrial and household refuse from other
individuals and municipalities for incineration. Said franchise will
be only exercised in connection with the premises known as Lot 11
in Block 400, shown on the official Tax Map of the Borough of Wanaque,
and the actual incinerator shall be installed on that portion of the
premises shown on the grantee's plot plan.
The grantee shall accept in writing the franchise
granted under this ordinance in accordance with the terms thereof
within 10 days from the date of the award, except that, in the event
a variance is required, the grantee shall accept said franchise within
60 days from the date of the award.
The grantee shall, at all times during the life
of this franchise, be subject to all exercise of the police power
of the borough, and to such reasonable regulation as the borough shall
hereafter by resolution or ordinance provide, and shall be subject
to all present and future applicable provisions of all federal laws
and all present and future applicable rules and regulations of the
State of New Jersey and its agencies.
[Amended 10-28-1970 by Ord. No. 17-67-1970]
The franchise granted hereunder shall be a single-term
franchise, which said franchise shall commence 180 days from the date
of the introduction of this ordinance, and remain in force and effect
for a period of 20 years thereafter, provided that the franchisee
shall have commenced operation of the incinerator, constructed pursuant
to the terms of this franchise agreement, during the said one-hundred-eighty-day
period, and continues said operation from the date of the commencement
of operation until the effective date of the commencement of the franchise.
It is further provided that, in the event that the franchisee shall
fail to commence and continue thereafter the operation of its incinerator
as contemplated by this ordinance, then, upon the occurrence of such
failure and the expiration of six months from the date of the adoption
of this ordinance, the franchise granted shall be null and void and
of no force and effect. It is not intended that the provisions of
this section shall in any way alter any other provisions of this ordinance
or of the ordinance heretofore adopted to which this section is an
amendment, with regard to the rights of the Borough of Wanaque or
the franchisee, in the event of a default subsequent to the effective
commencement date of the franchise.
The borough shall have the right, from time
to time, to inspect the books and records of the grantee insofar as
such books and records appertain to the gross receipts of the grantee
arising from the construction, operation and maintenance of said system
with the borough, or allocable thereto. The grantee shall furnish
to the borough, upon request by the borough, such reports, documents
and information reasonably necessary to enable the borough to verify
the payments made to it by the grantee. An annual report shall be
delivered on or before April 1 of each calendar year.
The grantee shall save the borough harmless
from all losses sustained by the borough on account of any suit, judgment,
execution, claim or demand whatsoever resulting from the operations
of the grantee in the construction, operation or maintenance of its
incineration system, and from the use of its appliances, machinery,
works and vehicles.
The grantee shall furnish the borough with written
evidence of a contract or contracts of insurance with a reliable company
or companies authorized to do business in the State of New Jersey,
by which contracts both the grantee and the borough are insured against
any claim, demand or loss for injury to persons or damage to property
resulting from, growing out of or connected with the construction,
operation or maintenance of said system within the borough, which
said contracts of insurance shall have limits in amounts not less
than $250,000 for injury to one person in one occurrence, not less
than $1,000,000 to cover injury to any group of persons, and $1,000,000
for injury to any property, except that this obligation shall not
require the grantee to furnish insurance against injury to persons
or damage to property caused by the negligence of the borough or its
employees.
The grantee shall at all times keep insured
in reliable companies, licensed, authorized and qualified to do business
in the State of New Jersey, all buildings, plants and equipment and
such other insurable property as is customarily and normally insured,
at 100% of its reasonable value thereof, against loss by fire or otherwise.
The said grantee shall, without unnecessary
delay and within nine months from the date of acceptance of the within
franchise, construct, equip and put in operation in the Borough of
Wanaque, County of Passaic, an incinerator plant of not less than
300 tons' daily capacity, said plant to be constructed in a good and
workmanlike manner of permanent character, and said plant shall be
constructed in accordance with the plans and specifications approved
by the borough, and shall maintain the same in first class condition.
The grantee shall be entitled to enlarge his plant to 900 tons' daily
capacity in two stages of 300 tons, provided that the plans for each
increase are shown on the detailed plans to be submitted with the
original plans and specifications for the first three-hundred-ton
plan. The grantee shall at all times operate such plant so as to avoid
pollution of air and pollution of water tables, and so that all obnoxious
odors shall be limited and all danger to public health resulting from
rats and other vermin is eliminated.
A.
The grantee, before the commencement of the work but
no later than three months from the date of acceptance of the franchise,
shall convey to the Borough of Wanaque by warranty deed, free and
clear of all encumbrances, all but three acres of the entire premises
owned by the grantee, which shall be reserved by the Borough of Wanaque
as a guaranty for the performance of all of the terms of the within
franchise, and upon which no permanent improvements shall be placed
by the grantee. In the event said premises to be conveyed do not front
on a public road, the grantee shall grant an easement to the Borough
of Wanaque for passage over a strip of land 25 feet in width, leading
from a public road to the premises to be conveyed to the Borough of
Wanaque. The within deed is made as a guaranty of performance of terms
of the within franchise, and shall be only reconveyed to the grantee
at the termination of the within franchise, provided the grantee has
not breached the same.
B.
The grantee shall deliver a title policy showing that
the title to the entire premises is owned by the grantee and that
the premises to be conveyed to the Borough of Wanaque are free and
clear of all encumbrances, which title policy shall be delivered with
the deed of conveyance to the Borough of Wanaque.
The grantee shall not be permitted to accept
for incineration any loads in any vehicles which are not properly
covered while traveling upon the streets of the Borough of Wanaque,
and shall be responsible for any spillage by any of its customers,
and shall properly clean up such spillage or have the same cleaned
at the grantee's expense.
The grantee shall provide a suitable scale space
and such other needs in order that the borough may conduct, check
and audit the weights of all incoming refuse.
The grantee shall at all times permit the Building
Inspector, the Sanitarian, the Borough Engineer and any member of
the Mayor and Council or its representative to inspect the grantee's
plant, work and grounds.
[Amended 10-28-1970 by Ord. No. 17-67-1970]
The franchisee shall be permitted to operate
the incineration facility during each and every hour of each and every
day of each week without exception. The franchisee shall not be permitted
to accept refuse or any other material to be incinerated other than
from Monday through Saturday, and on those days during the hours between
7:00 a.m. and 7:00 p.m. Except in case of emergency, no refuse or
other material shall be accepted on Sundays and when the following
holidays are observed: New Year's Day, Decoration Day, Independence
Day, Labor day, Thanksgiving Day and Christmas Day. In the event of
an emergency or under special circumstances of a similar nature as
are to be determined by the Mayor of the borough, the above restrictions
upon the acceptance of refuse may be temporarily lifted for a period
not to exceed 48 hours. If a suspension of the above restrictions
beyond a period of 48 hours is sought, the same shall only be with
the approval of an application made therefor by the franchisee to
the Mayor and Council and approved by the Mayor and Council.
[Amended 10-28-1970 by Ord. No. 17-67-1970]
The exterior of all facilities carrying refuse
shall be washed at a suitable place, upon the franchisee's grounds,
before leaving the franchisee's premises.
The grantee shall not permit any of its customers,
other than the borough, to use any street in the borough for purposes
of traveling to and from the grantee's grounds, except along streets
designated by the borough. All vehicles carrying refuse shall be so
equipped that no materials shall spill upon the streets of the Borough
of Wanaque, and all vehicles shall be so equipped so as to create
the least disturbance while traveling to and from the grantee's premises.
All vehicles of the grantee's customers shall be in good operating
condition, and, in the event of breakdown, shall be immediately towed
away from the place of breakdown. No vehicles carrying refuse shall
be permitted to be parked or stand on any of the streets of the borough.
The grantee shall not accept customers or vehicles
unless said vehicles are insured and certificates of insurance are
delivered to the grantee, and a copy of the same shall be filed with
the Borough of Wanaque. The limits of insurance shall be as follows:
property damage, $25,000; personal injury or death, $50,000/$100,000.
In the event that any vehicles are uninsured, and as a result of the
operation thereof there is damage to property or to persons, or there
is injury or death to such person, the grantee shall be responsible
for all property and personal injury or death claims.
The incinerator of the grantee shall be attended
to at all times, and the grantee shall maintain an office and telephone
service with an agent or employee for the purpose of protection, supervision
and the taking of complaints. Such person shall be clothed with the
authority to make immediate decisions.
The within franchise shall not be assigned without
the written permission of the Mayor and Council of the Borough of
Wanaque.
[Amended 10-28-1970 by Ord. No. 11-67-1970]
In consideration of the above grant, the franchisee hereby agrees to accept and incinerate the refuse collected from the residents of the Borough of Wanaque and/or delivered to the incineration site by them, at all times during the term of said franchise, when refuse is accepted as provided for by § A144-16, without cost to the residents of the Borough of Wanaque or the Borough of Wanaque. The Franchisee shall accept all of the refuse of the Borough of Wanaque, no matter in what form, except refuse which ordinarily would be disposed of through a sanitary disposal system. The franchisee's obligation to accept refuse from all residents of the Borough of Wanaque shall include all commercial enterprises located in the Borough of Wanaque other than industrial plants. the grantee shall incinerate as much as is collected or delivered through its incinerator or otherwise. the grantee shall separate such items which cannot be incinerated and shall dispose of such items as it sees fit, including the right of selling the same. The provisions herein to serve the Borough of Wanaque without charge shall not be subject to any limitation whatsoever, and such service shall be given regardless of to what extent the population of the Borough of Wanaque shall increase.
In the course of its operations, if the grantee's
incinerator lacks capacity to incinerate the refuse from the residents
of the Borough of Wanaque and refuse from other sources, the refuse
from from the Borough of Wanaque shall receive preference and shall
be first incinerated and disposed of before refuse from any other
source is accepted and incinerated.
The incinerator works, machinery and plant and
grounds, shall be operated and maintained that there are no odors
emanating therefrom.
The grantee shall pay the annual license fee
of $1,200 per year, which sum shall be paid upon acceptance of the
within franchise, and shall be payable annually thereafter on the
anniversary date of said franchise. In addition thereto, the grantee
shall pay semiannually to the Borough of Wanaque, as and for and as
part of the license fee, the sum of $0.10 per ton for each ton of
refuse delivered for incineration at the grantee's premises. Such
weights shall be determined prior to incineration, and shall be the
gross weight of the refuse as it enters the grantee's premises. No
tonnage charge shall be paid on the refuse delivered by the Borough
of Wanaque. The payment of the unfixed portion of said license fee
based upon the tonnage of such refuse delivered to the grantee shall
be paid the first day of February and the first day of July of each
calendar year, the amount to be paid for the first period to be adjusted.
Such moneys shall be paid to the Treasurer of the borough, and such
payments shall be accompanied by a certificate of the Treasurer of
the grantee certifying the tonnage delivered for incineration to the
grantee for the period from July 1 to December 31 and January 1 to
June 30 next preceding the date when such payment becomes due. In
the event such payment is not made when due, the same shall bear interest
at the rate of 6% per annum. Any amounts due hereunder shall constitute
a lien upon the grantee's premises, collectible and enforceable in
the manner that taxes assessed on real estate are collectible and
enforceable.
The grantee shall pay all charges for the repair
and repaving of any streets in the Borough of Wanaque which are damaged
as a result of the operation of any vehicles delivering refuse to
the grantee's premises.
The grantee will erect and at all times maintain
a fence surrounding all of its property to a height too be determined
by the Mayor and Council, but in any event not less than six feet.
The incineration plant shall be so landscaped so that the same shall
not be visible from the street. The parcel of land upon which the
incinerator will be constructed will be cleared of all dead, decayed
or diseased foliage, and the area surrounding the incinerator plant
will be planted with a suitable ground cover and shall be so screened
as not to be visible from the adjoining street. All access roads within
the premises shall be paved and maintained and shall be so designed
as to give an appearance of neatness and beauty.
The borough reserves to itself whatever right
to condemn all of the real estate and incineration plant owned by
the grantee in connection with the exercises of the within franchise
it now has or shall hereafter have, under any present or future legislation
giving the borough the right to condemn.
The grantee shall not convey, transfer or sell
the premises upon which the incinerator is located without the written
permission of the borough, which shall not be unreasonably withheld,
nor shall the grantee mortgage the same except for construction purposes.
This provision shall not apply to the premises to be conveyed to the
Borough of Wanaque, which shall be free and clear of all encumbrances
when conveyed to the Borough of Wanaque.
The grantee shall deliver an agreement to the
Borough of Wanaque, in the form required by the Borough Attorney,
which shall provide that the restrictions against mortgaging and sale
are set forth for the purpose of recording said agreement.
[Amended 10-28-1970 by Ord. No. 17-67-1970]
The grantee shall, unless otherwise specified,
deliver and spread, upon the premises of the borough known as Lot
10 in Block 400, the residue after its incineration, and shall grade
the same in a suitable manner. If the municipality does not require,
then such residue may be placed upon the premises where the incinerator
is located or elsewhere as determined by the franchisee, and not in
the manner required by the Mayor and Council.
The grantee shall landscape its premises and
the premises of the borough known as Lot 10 in Block 400, in a manner
set forth in the accepted plans and specifications therefor at the
expense of the grantee, and shall keep and maintain the same as required
by the Mayor and Council.
Said incinerator plant and the landscaping of
the premises on which it is erected, and the landscaping upon the
premises known as Lot 10 in Block 400, shall be in accordance with
the final plans and specifications therefor as approved by the Mayor
and Council, which shall be submitted on or before December 15, 1967.
The grantee shall indemnify and hold harmless
the borough and its agents, servants, employees and elected officials
from and against any and all claims, demands, actions, damages, losses,
costs, fines, penalties, expenses and liabilities of any kind or nature
whatsoever paid, suffered or incurred by the borough, its agents,
servants, employees and elected officials, which claims, demands,
actions, damages, losses, costs, fines, penalties, expenses and liabilities
of any kind or nature whatsoever result or arise, directly or indirectly,
from or by reason of the performance of or as a result of the performance
of the obligations of the grantee hereunder or as a result of any
act, omission or negligence on the part of the grantee. The grantee's
liability under this section includes and extends to the acts, omissions
and negligence of any agent, servant, employee or subcontractor of
the grantee, it being understood, however, that this provision shall
not be constituted as permitting such subcontractors. The obligation
of the grantee hereunder shall include, but not be limited to, payment
of any and all legal fees or legal expenses incurred by the borough,
its agents, servants, employees and elected officials in the defense
of such claims, demands, actions, damages, losses, costs, fines, penalties,
expenses and liabilities of any kind whatsoever.
In addition to those instances specifically
referred to in the within franchise, and in addition to such facts
as may, at law or in equity, constitute a breach of the grantee's
obligations hereunder or constitute a default by the grantee in performance
of its obligations hereunder, the grantee shall be deemed to have
breached its obligations hereunder, and shall be deemed to have defaulted
in the performance of its obligations hereunder, upon the happening
of any one or more of the following:
A.
If the grantee becomes insolvent.
B.
In the event of nonpayment of license fees when due.
C.
If the grantee makes an assignment for the benefit
of creditors, pursuant to the statutes in such case made and provided,
or becomes the subject of any other insolvency proceedings,
D.
In the event a voluntary or involuntary petition in
bankruptcy shall be filed by or against the grantee.
E.
In the event the grantee fails to commence work in
accordance with the specifications.
F.
In the event the grantee shall abandon any portion
of the work to be performed under the specifications.
G.
If the grantee shall fail fully, properly and in a
good and workmanlike manner to perform any or all of the conditions,
covenants and agreements contained within the specifications.
H.
If the grantee shall sublet, assign, transfer, mortgage
or convey its franchise, lands and premises, except as permitted.,
I.
If a receiver or receivers or any person shall be
appointed by court order to take charge or custody of the grantee's
property, financial affairs or business.
J.
If the grantee is not or has not been performing the
terms of the within franchise in good faith.
In the event of the abovementioned defaults,
or for any other just cause, the borough shall have the right to declare
the franchise herein given as being forfeited and of no further force
and effect, with the right of the borough to enter upon said premises
for the purpose of either dismantling said plant or operating the
same at the cost and expense of the grantee.
In addition to the right to declare a default
and forfeit said franchise, the borough shall have the following cumulative
rights:
A.
To deliver and dispose of its refuse by other means
and to charge the cost thereof to the grantee.
B.
To operate said plant and to charge the cost of operation
thereof to the grantee. Said right to operate includes the right of
the borough to enter upon the premises of the grantee.
C.
In the event the grantee does not commence or complete
the work provided herein and in the plans and specifications, the
borough, at its option, may complete said work at the expense of the
grantee, who shall pay the cost of the work upon demand.
D.
In the event said incineration plant does not operate
efficiently in conformity with the rules and regulations of the Borough
of Wanaque and its ordinances and the rules and regulations of any
state agency, the grantee shall dismantle said plant when ordered
to do so by the Borough of Wanaque.
E.
In the event that said plant is not completed within
the time fixed herein, the grantee shall bear the cost of transporting
the borough's refuse and the cost of disposing of the same. Such transportation
and disposal shall be made in accordance with the direction of the
borough, and the cost thereof shall be paid to the borough upon demand.
F.
The grantee shall be required at its expense to make
any repairs or replacements necessary, or to install any equipment
during the period of the franchise in order to make said plant operate
in an efficient manner and in compliance with all of the rules and
regulations of the Borough of Wanaque and the rules and regulations
of any state agency, and in the event of failure to do so, said work
shall, at the option of the Borough of Wanaque, be performed at the
grantee's expense and shall be repaid to the Borough of Wanaque upon
demand.
Upon expiration of the franchise or upon any
breach of the terms hereof, the borough, at its option, shall have
the right to requite the grantee to dismantle said plant and remove
the same at its own expense.
All moneys expended by the Borough of Wanaque,
whether for operation of the plant, completion of the plant, alteration
and repairs to be made to such plant, and the cost of transportation
of the borough's refuse and cost of disposal of the same, shall be
a lien upon the grantee's land, premises and improvements, and shall
be collectible in the manner arrearages of real estate taxes and assessments
are collectible.
The cost of publication of this ordinance or
republication thereof caused by any breach of the grantee shall be
borne by the grantee.
The rights and remedies set forth in this ordinance
are cumulative, and the use of one remedy shall not be taken to exclude
or waive the right to the use of another.
[Amended 10-28-1970 by Ord. No. 17-67-1970]
The said grantee shall not dissolve its corporation
without the written consent of the Borough of Wanaque. In the event
the grantee shall merge or consolidate with another corporation, which
said merger or consolidation shall have received the approval of the
Mayor and Council, the obligations imposed herein shall remain in
full force and effect and shall be considered obligations of the company
into which the grantee shall merge or with which the grantee shall
consolidate, and there need be no further consent obtained from the
Borough of Wanaque for the dissolution of the grantee's corporation
other than the approval received for the merger or consolidation.
The grantee shall comply with all of the terms
of this ordinance, the notice to bidders, plans and specifications,
and all the terms and conditions set forth in the grantee's bid and
the resolution awarding the franchise to the grantee.
All ordinances or parts of ordinances inconsistent
herewith are hereby repealed.
All of the terms of the within franchise shall
inure to the benefit and be binding upon the successors and assigns
of the parties hereto.
