HomeMy WebLinkAboutAddendum #1, 22-07 - Exclusive Solid Waste Collection Servicesa1YoF
HAS IBANJ
HOME OF PELICAN ISLAND
October 27, 2022
Administrative Services Department
Procurement Division
1225 Main Street
Sebastian, FL 32958
(772) 388-8232
ADDENDUM #1
TO THE CONTRACT DOCUMENTS FOR THE CITY OF SEBASTIAN
PROJECT NAME AND NUMBER:
ITB 22-07 — Exclusive Solid Waste Collection Services
FROM: Don Wixon
City of Sebastian
1225 Main Street
Sebastian, Florida 32958
772-388-8231
dwixon@cityofsebastian.org
TO: All Parties Holding Specifications:
The City, at its sole discretion, shall reserve all rights to award this proposal in whole or in part to whomever
the City believes is the most responsible and responsive bidder, and is in the best interest of the City.
1. Q: Agreement Term/Renewal and Franchise Fee — Would the City agree that the 5-year renewal period
be based upon mutual consent of the parties (versus at the sole discretion of the City)?
A: Yes. Term/Renewal shall now read as follows:
AGREEMENT TERM/RENEWAL AND FRANCHISE FEE: The City intends to award an initial seven
(7) year contract to the successful Proposer commencing on July 1, 2023, terminating on August 31, 2030
with an option to renew for one (1) additional five (5)-year term based upon mutual consent of both
parties. The Proposer shall provide a Franchise Fee based on gross revenues collected pursuant to the
Franchise granted herein. The Franchise Fee shall be paid to the City, by wire or check, on or before the
fifteenth (15t) day of each month for all services collected (for all residential, multi -dwelling and
commercial customers) by the Franchisee during the preceding month.
2. Q: With respect to insurance, the Contractor's corporate policies contain confidential and proprietary
information, including the amount of applicable SIR/deductibles. The Contractor seeks confirmation that
it is not necessary to include the S1R/deductible amounts in the Certificate of Insurance?
A: It is not necessary to include the SIR/deductible amounts in the Certificate of Insurance. The
City requires the amounts and to be named additionally insured. The City does not need to be
named as Additionally Insured in the case of Workers Compensation.
3. Q: With respect to insurance, the Contractor's corporate insurance policies contain confidential and
proprietary information. The Contractor seeks confirmation that it may omit or redact any confidential
information before providing a copy of the actual insurance policy?
A: The Contractor may omit or redact any confidential information before providing a copy of the
actual insurance policy.
Page 1 of 3
ADDENDUM #1
TO THE CONTRACT DOCUMENTS FOR THE CITY OF SEBASTIAN
ITB 22-07 — Exclusive Solid Waste Collection Services
4. Q: Unusual cost — There is no provision that allows a proposer to seek an adjustment in its prices for
unanticipated and unusual cost increases. Will the City agree to add such language to the solid waste
contract?
A: The contract contains segments concerning CPI Changes and Rates and a section relating to
"Rate Adjustment Procedures".
5. Q: Change in law -- There is no provision regarding change in law. Will the City agree to add a
provision in the solid waste contract so that changes in law that affect performance or the cost of same
can be appropriately addressed by the parties?
A: This is addressed in the contract and will more than likely stay the same.
6. Q: Termination With or Without Cause — Can the City's right to termination for convenience upon 30
days' notice be removed, or alternatively, made a mutual right for both parties?
A: Termination With or Without Cause shall now read as follows:
TERMINATION WITH OR WITHOUT CAUSE: The agreement resulting from this RFP can be
terminated within thirty (30) days written notice from the City with cause if Proposer is found to have
failed to perform services in a manner satisfactory to the City. The City shall be sole judge of non-
performance. Further, the agreement can be terminated by either party without cause upon one -hundred
twenty (120) days written notice by either Party. In the event of termination without cause, the Proposer
shall be compensated for all services performed to the City's satisfaction.
7. Q: Will the City agree to add a force majeure provision to the solid waste agreement?
A: This will be addressed in the contract
8. Q: Indemnification — Would the City agree to remove "gross" so that the Contractor's
indemnification obligations do not include any claims resulting from any negligent acts of the City?
A: No, this will stand as stated.
9. Q: Emergency Response — Please confirm that the collection of storm debris is not part of this RFP and
that the Contractor shall not be responsible for collecting same (unless the City agrees to pay for such
additional services at a mutually agreed upon rate)?
A: Uncontrollable Force is presently addressed in two (2) different sections of the existing
contract.
The City will add to the contract the following: City does agree to pay for additional cleanup
services in the situation of an Uncontrollable Force at a mutually agreed upon rate. As an optional
level of service, the City and/or residents shall maintain the right to contract directly with additional
Haulers/Vendors/Contractors for disposal of large volume/size yard waste.
10. Q: Proposer's Disclosure Form — Please confirm that the litigation listed in #3 can be limited to claims
directly related to contracts for waste collection services and should not include employment actions,
motor vehicle accidents, etc.?
A: This requested change is accepted by the City.
Page 2 of 3
ADDENDUM #1
TO THE CONTRACT DOCUMENTS FOR THE CITY OF SEBASTIAN
ITB 22-07 — Exclusive Solid Waste Collection Services
11. Q: Will the City be providing a draft contract to the RFP?
A: Yes, the attached contract WM presently operates under pretty much matches the contract we
are presently constructing; however, there will be changes to the attached (existing) contract.
12. Q: I am inquiring if the due date on the submittal can be extended to 60 — 75 days from today (the date
the RFP was posted)? The additional days will allow the City of Sebastian to have respondents prepare
good, qualified proposals for the 4 different levels of services in the RFP.
A: Please see the attached revised proposal schedule.
Date:
Company Name:
Written Signature:
Printed Signature:
Page 3 of 3
HOME OF PELICAN ISLAND
REQUEST FOR PROPOSALS
Request For Proposal # 22-07
EXCLUSIVE CURBSIDE SOLID WASTE
COLLECTION SERVICES
EVENT
DATE
TIME
RELEASE DATE:
October 21, 2022
-
PRE -PROPOSAL MEETING (Attendance
Mandatory) (2nd Floor Conference Room):
Tuesday, November 15, 2022
10:00 AM
LOCAL TIME
QUESTIONS DUE DATE/TIME:
Thursday, November 17, 2022
2:00 PM
LOCAL TIME
DUE DATE/TIME:
Friday, December 2, 2022
2:00 PM
LOCAL TIME
PROPOSED
SCIIEDULE*
1ST EVALUATION MEETING:
Friday, December 16, 2022
10:00 AM
LOCAL TIME
2s" PRESENTATION/EVALUATION
MEETING, if applicable:
To Be Determined
TO BE DETERMINED
RECOMMENDATION OF AWARD:
City Council Meeting at City Mall
1225 Main Street
Sebastian, Florida 32958
Wednesday, January 11, 2022
6:00 PM
LOCAL TIME
*The City reserves the right to delay or modify scheduled dates and will notify Proposers of all changes.
Dates in this schedule may be amended by the City; it is the Proposer's responsibility to check for any
changes.
In accordance with the Americans with Disabilities Act, any person who believes he or she has a disability requiring
the use of a special accommodation at the pre -bid conference or bid opening should contact the City of Sebastian at
772-388-8231, at least five (5) days prior to the event to advise of his/her special requirements.
Contact Person
Don Wixon
Procurement/Contracts Manager
Email: dwixon(q cityofsebastian.org
This Franchise Agreement ("Agreement") is hereby made and entered
WASTE
into this
12'h day of June, 2013, between CITY OF SEBASTIAN, FLORIDA, ("City
MANAGEMENT, INC. OF FLORIDA, a Florida corporation, whose address is 2700 NW
48th Street, Pompano Beach, FL 33073 ("Franchisee'.
vvrrNESSETH
WHEREAS, the City desires to engage Franchisee to perform certain solid waste
and recycling services within the boundaries of the City and
WHEREAS, Franchisee desires to perform such services pursuant to the terms and
conditions set forth herein;
NOW, THEREFORE, In consideration of the mutual promises and agreements
contawhich are hereby acknowledged,
herein and othckner good and valuable consideration, the owled ed, the City and the Franchisee agreerpt and assufficiency
follows:
of
of which
Article 1. Background Recitals
1.0. The recitals set forth above are true and correct and form a material part of this
Agreement
Article 2. Term of the Agreement
2.0. The term of this Agreement shall be for a period of five (5) years, which shall begin
July 1, 2013. This Agreement shall automatically renew for an additional term ending
June 30, Ma, unless either party shall notify the other to the contrary in writing
pursuant to Sec. 16.11 not later than July 1, 2017.
Article 3. Definitions and Interpretations
3.0. General. To the extent that any definition contained herein conflicts with any similar
definition contained in any federal, state, or local law, the definition herein shall prevail.
However, nothing contained herein shall be interpreted to require the Franchisee to
undertake any conduct that is prohibited by Applicable Law. Whenever the context may
require, any pronoun which is used in this Agreement shall include the corresponding
masculine, feminine and neuter forms and the singular shall include the plural and vice
versa.
3.1. Agreement shall mean this Franchise Agreement between the City and the
Franchisee, together with all exhibits and other documents that are expressly incorporated
by reference.
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3.2. Applicable Law means any local, state or federal statute, law, constitution, charter,
ordinance, judgment, order, decree, permit, rule, regulation, directive, policy, standard or
similar binding authority, or a judicial or administrative interpretation of any of the same,
which are in effect or are enacted, adopted, promulgated, issued or enforced by a
governmental body during the term of this Agreement, and relate in any manner to the
performance of the City or Franchisee under this Agreement
3.3. Biological Waste shall mean solid waste that causes or has the capability of
causing disease or infection and includes, but is not limited to, biomedical waste,
diseased or dead animals, and other wastes capable of transmitting pathogens to
humans or animals. The term does not include human remains that are disposed of by
persons licensed under chapter 470, Florida Statutes.
3.4. Biomedical Waste shall mean any Solid Waste or liquid waste which may present
a threat of infection to humans. The term includes, but is not limited to, nonliquid
human tissue and body parts; laboratory and veterinary waste which contain human -
disease -causing agents; discarded disposable sharps; human blood, and human blood
products and body fluids; and other materials which in the opinion of the Florida
Department of Health represent a significant risk of infection to persons outside the
generating facility. The term does not include human remains that are disposed of by
persons licensed under Chapter 470, Florida Statutes.
3.5. Council shall mean the City's goveming body, which currently is comprised of the
City Council of the City of Sebastian, Florida.
3.6. Bulk Trash shall mean any non vegetative item that cannot be containerized,
bagged or bundled, or whose large size or weight precludes its handling by normal,
Collection, processing or disposal methods. Bulk Trash includes but is not limited to
discarded White Goods that are not Freon -Containing Devices, toilets, pool heaters,
water softeners, pianos, bath tubs, sinks, bicycles, and similar household goods,
appliances, fixtures and furniture.
3.7. Collect and Collection shall mean the process whereby Solid Waste is picked -up
and removed from the location where it is generated, and then transported to the County
Landfill.
3.8. Commercial Collection Franchise Area shall mean the City limits of Sebastian.
3.9. Commercial Collection Service shall mean the Collection of (a) Commercial
Solid Waste; and (b) Recyclable Materials generated on Commercial Property and
from Mobile Home Parks.
3.10. Commercial Container shall mean any container which: (a) consists of four
permanently attached sides and a bottom; (b) is made of metal, durable plastic or other
non -absorbent material; (c) is free-standing; (d) is emptied or transported by
mechanical means; and (e) is used to Collect or store Solid Waste. Commercial
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Containers include, but are not limited to roll-on/roll-off boxes, dumpsters, Compactors,
and similar receptacles used to Collect Solid Waste
3.11. Commercial Property shall mean all of the improved property in the City that is
used for. (a) Multiple Dwelling Units; or (b) commercial, institutional, church, not -for -
profit, governmental, nonresidential or industrial purposes.
3.12. Commercial Solid Waste shall mean Garbage, Bulk Trash, Trash, and Yard
Trash that is not Residential Solid Waste. Commercial Solid Waste includes the
Garbage, Bulk Trash, Trash, Yana Trash, and industrial Solid Waste generated by or at
(a) commercial business, including, without limitation, retail stores, offices, restaurants,
and warehouses; (b) governmental and institutional offices and buildings, including,
without limitation, schools and hospitals; (c) churches and not -for -profit organizations;
(d) hotels and motels; (e) Multiple Dwelling Units that use Commercial Containers; (f)
Mobile Home Parks that use Commercial Containers; (g) agricultural and industrial
facilities; and (h) Construction and Demolition Debris collection in volumes greater than
fifteen (15) cubic yards.
3.13. Compactor shall mean any Solid Waste container that has a stationary or mobile
compaction mechanism.
3.14. Construction and Demolition Debris shall mean discarded materials generally
considered to be not water-soluble and nonhazardous in nature, including, but not
limited to, steel, glass, brick, concrete, asphalt roofing material, pipe, gypsum wallboard,
and lumber, from the construction or destruction of a structure as part of a construction
or demolition project or from the renovation of a structure, and including rocks, soils,
tree remains, trees, and other vegetative matter that normally results from land clearing
or land development operations for a construction project, including such debris from
construction of structures at a site remote from the construction or demolition project
site. Mixing of construction and demolition debris with other types of solid waste will
cause it to be classified as other than construction and demolition debris. The term also
includes:
(a) Clean cardboard, paper, plastic, wood, and metal scraps from a construction
project
(b) Unpainted, nontreated wood scraps from facilities manufacturing materials
used for construction of structures or their components and unpainted,
nontreated wood pallets provided the wood scraps and pallets are separated
from other solid waste where generated and the generator of such wood
scraps or pallets implements reasonable practices of the generating industry
to minimize the commingling of wood scraps or pallets with other solid waste;
and
(c) De Minimis Amounts of other nonhazardous wastes that are generated at
construction or destruction projects, provided such amounts are consistent
with best management practices of the industry.
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For purposes of this Agreement, the term does not include °Roil -on, roll-ofr service at
volumes less than fifteen (15) cubic yards.
3.15. Construction and Demolition Debris Commercial Container shall mean a
Commercial Containerthat is used to hold Construction and Demolition Debris.
3.16. Construction and Demolition Debris Service shall mean the Collection and
transport of Construction and Demolition Debris in a Commercial Container or a
Construction and Demolition Debris Commercial Container in the City by Franchisee.
3.17. Contract Manager shall mean the person designated by the City to act as the City's
representative during the term of this Agreement
3.18. County shall mean Indian River County, Florida. ft shall also include the Indian
River County Solid Waste Disposal District, a dependent special district of Indian River
County, Florida.
3.19. Curbside Collection Point shall mean the location where the Franchisee shall
pick up the Residential Solid Waste and Recyclable Materials discarded by a Customer.
3.20. Customer shall mean a Person having a contractual relationship with the
Franchisee for Residential Solid Waste Collection Service or Commercial Collection
Service pursuant to the terms of this Agreement and the City Code.
3.21. De Minimis Amount shall mean the amount of Solid Waste that lawfully may be
included in a container of Recovered Materials or Construction and Demolition Debris.
A De Minimis Amount of Solid Waste is three (3) percent, by volume or weight,
whichever is more restrictive, as determined by a measurement or visual inspection by
the Contract Manager.
3.22. County Landfill shall mean the Solid Waste Disposal Facility or Facilities owned or
operated by the County.
3.23. Freon -Containing Devices shall mean White Goods, appliances or other
devices that contain or may release Freon, such as refrigerators, freezers, air
conditioners, and dehumidifiers.
3.24. Garbage shall mean all kitchen and table food waste, and any animal, vegetative,
food or other organic waste that is attendant with or results from the storage, preparation,
cooking or handling of food materials.
3.25. Garbage Receptacle shall mean any commonly available light gauge steel, plastic,
or galvanized receptacle of a non -absorbent material, closed at one end and open at the
other, fumished with a closely fitted top or lid and handle(s), and includes a heavy duty,
securely tied, plastic bag designed for use as a garbage receptade.
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3.28. Hazardous Waste shall mean any Solid Waste regulated as a hazardous waste by
the Florida Department of Environmental Protection or the U.S. Environmental Protection
Agency pursuant to Applicable Law.
3.27. Industrial Solid Waste shall mean Solid Waste generated by manufacturing or
industrial processes that is not a Hazardous Waste. Such waste many include, but is
not limited to, waste resulting from the following manufacturing processes: electric
power generation; fertilizer/agricultural chemicals; food and related products or by-
products; inorganic chemicals; iron and steel manufacturing; leather or leather products;
nonferrous metals manufacturing or foundries; organic chemicals; plastic products and
resins manufacturing; pulp and paper industry; rubber and miscellaneous plastic
products; stone, glass, clay, and concrete products; textile manufacturing; transportation
equipment and water treatment. This term does not include mining waste or oil and
gas waste.
3.28. Materials Recycling Facility (MRF) shall mean any facility operated or managed
by, for, or on behalf of the County for the purpose of receiving, sorting, processing,
storing, or preparing Recyclable Materials for sale.
329. Mobile Home Park shall mean any improved real property divided into spaces for
the placement of mobile or modular homes or trailers.
3.30. Multiple Dwelling Unita shall mean any building containing five (5) or more
permanent living units. Multiple Dwelling Units include condominiums, but do not
include hotels or motels.
3.31. [Left intentionally blank]
3.32. [Left intentionally blank]
3.33. Person shall mean any and all persons, natural or artificial, including, without
limitation, any individual, firm, partnership, corporation, company, association, social
dub, fraternal organization, church, religious sect, religious denomination, society,
organization or league, estate, trust, receiver, executor, administrator, trustee, or
syndicate, municipal corporation, municipality, district or county of Florida and any other
state; any governmental agency or political subdivision of any state or the federal
government; or any other legal entity, and any group or combination of the above acting
as a unit.
3.34. [Left Intentionally Blank]
3.35. Recovered Materials shall mean metal, paper, glass, plastic, textile, or rubber
materials that have known recycling potential, can be feasibly recycled, and have been
diverted and source separated or have been removed from the solid waste stream for
sale, use, or reuse as raw materials, whether or not the materials require subsequent
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processing or separation from each other, but does not include materials destined for
any use that constitutes disposal. Recovered materials are not Solid Waste.
3.36. [Left Intentionally Blank]
3.37. [Left Intentionally Blank]
3.38. [Left Intentionally Blank].
3.39. [Left Intentionally Blank]
3.40. [Left Intentionally Blank]
3.41. Residential Solid Waste shall mean Garbage, Trash, Yard Trash, and Bulk Trash
resulting from the normal housekeeping activities of a Residential Unit or Mobile Home
Park that has elected to receive Residential Solid Waste Collection Service.
3.42. Residential Solid Waste Collection Service shall mean the Collection and
disposal of Residential Solid Waste generated within the Residential Franchise Area.
3.43. Residential Solid Waste Franchise Area shall mean the geographical area
comprising the City.
3.44. Residential Unit shall mean each and every lot or parcel of land that is improved
for occupancy as a single-family residence, duplex, triplex, or quadraplex, and any other
residence, except a Multiple Dwelling Unit. The term also indudes individually -owned
mobile or modular homes or trailers that have residential permanent license tags; are
erected on a separate parcel of property; are within the Residential Franchise Area or
the Residential Recyclables Franchise Area; and do not receive Commercial Collection
Service.
3.45. Sludge shall mean the accumulated solids, residues, and precipitates generated
as a result of waste treatment or processing, including wastewater treatment, water
supply treatment, or operation of an air pollution control facility, and mixed liquids and
solids pumped from septic tanks, grease traps, privies, or similar waste disposal
appurtenances.
3.46. Solid Waste shall mean Sludge unregulated under the federal Clean Water Act
or Clean Air Act, sludge from a waste treatment works, water supply treatment plant, or
air pollution control facility, or garbage, rubbish, refuse, Special Waste, or other
discarded material, including solid, liquid, semisolid, or contained gaseous material
resulting from domestic, industrial, commercial, mining, agricultural, or governmental
operations. Recovered Materials are not Solid Waste.
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3.47. Solid Waste Disposal Facility means any solid waste management facility
which is the final resting place for solid waste, including landfills and incineration
facilities that produce ash from the process of incinerating municipal solid waste.
3.48. Special Waste shall mean Solid Wastes that can require special handling and
management, including, but not limited to, White Goods, waste tires, used oil, lead -acid
batteries, Construction and Demolition Debris, ash residue, Yard Trash, and Biological
Wastes.
3.49 Standard Issue Container shall mean the collection bin issued by the Franchisee
to every subscribing Residential Customer. Such Container shall be a mobile sixty-four
(64) gallon collection bin. Franchisee shall deliver the Container to new Customers at the
time of their subscription. For the purpose of the initial term of this Agreement, the
Franchisee will deliver Containers to existing Residential Customers by October 1, 2013.
If the Standard Issue Container is too large for disabled Customers, the Franchisee shall
make a reasonable accommodation and issue a smaller sized container to Customer.
3.50. Trash shall mean all accumulations of refuse, rags, paper, paper boxes and
containers, sweepings, other accumulations of a similar nature, and broken toys, tools,
equipment and utensils. Trash does not include Garbage or Yard Trash.
3.51. Uncontrollable Force shall mean any event that results in the prevention or delay
of performance by a party of its obligations under this Agreement and which is beyond the
reasonable control of the non -performing party. It includes, but is not limited to fire, flood,
hurricanes, earthquakes, storms, lightning, epidemic, war, riot, civil disturbance, terrorism,
sabotage, and governmental actions. Labor disputes, including, without limitation, strikes
and slowdowns, are not an Uncontrollable Force.
3.52. White Goods includes inoperative and discarded refrigerators, ranges, water
heaters, freezers, and other similar domestic and commercial large appliances. White
Goods do not include Freon -Containing Devices.
3.53. Yard Trash shall mean vegetative matter resulting from yard and landscaping
maintenance, including grass clippings, palm fronds, tree branches and other similar
matter.
Section 4. Grant of Franchise
4.0. Exclusive Franchise. Subject to the conditions and limitations contained in this
Agreement, the Franchisee is hereby granted an exclusive franchise and sole authority to
provide (a) Residential Solid Waste Collection Service in the Residential Solid Waste
Franchise Area and (b) Commercial Collection Service.
4.1. Recvdabies. The collection of residential recyclables is not a part of this Agreement
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4.2. Limited Grant of Rights. This Agreement does not grant any rights or remedies to
the Franchisee except those that are expressly identified and conveyed by the specific
terms of this Agreement.
4.3. Minimum Revuirements for Franchisee's Services. This Agreement establishes
minimum requirements and performance standards for the Franchisee. Any services
provided by the Franchisee pursuant to Section 4.0 shall fully and strictly comply with
the requirements in this Agreement and any Applicable Law.
4.4. Recovered Materials. This Agreement does not prohibit any Person from
gathering, conveying, or processing Recovered Materials, provided such Person
otherwise complies with applicable Florida law. No franchise or permit shall be required
with respect to Recovered Materials. Containers of Recovered Materials may include a
De Minimis Amount of Solid Waste. Containers holding more than a De Minimis
Amount of Solid Waste shall be handled and regulated as Solid Waste.
Article 5. Title to Solid Waste and Recyclable Materials
5.0. ]. After Residential Solid Waste, Commercial Solid Waste, Recovered Materials,
and Recyclable Materials are placed at a Curbside Collection Point or any other approved
location for Collection by the Franchisee within the City, the City shall hold title and
ownership to ail such materials. The Franchisee shall have no right to take, keep,
process, after, remove or otherwise dispose of any such materials, except as set forth
herein. However, the Franchisee shall have the sole responsibility and liability for the
lawful disposal of any Biological Waste, Biomedical Waste, or Hazardous Waste that the
Franchisee Collects.
Article 6. Processing and Disposal
6.0. Prooessino. Recovered Materials collection, processing and marketing are outside
the scope of this Agreement.
6.1. Solid Waste Disposal. The Franchisee shall dispose of Residential Solid Waste
and Commercial Solid Waste Collected from within the City at the County Landfill.
Article 7. Franchise Fee
7.0. Franchise Fe@. A Franchise Fee in the amount of 6% of gross revenues collected
pursuant to the Franchise granted herein shall be paid to the City, by check, by the
Franchisee on or before the fifteenth (15th) day of each month for all services collected by
the Franchisee during the immediately preceding month.
Article 8. Residential Services
8.0. Hours of Residential Service- General. Residential Solid Waste Collection Service,
shall be provided Monday through Friday, beginning no earlier than 7:00 a.m. and ending
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no later than 5:00 p.m, unless previously authorized in writing by the Contract Manager in
response to an Uncontrollable Force.
8.1. Days of Residential Service. Residential Solid Waste shall not be Collected by the
Franchisee on Sundays or the holidays of Memorial Day, July 4th, Labor Day,
Thanksgiving, Christmas, or New Year's Day, unless necessary to respond to an
Uncontrollable Force. Residential Solid Waste does not need to be Collected by the
Franchisee on any holiday when the County Landfill is closed. If Residential Solid
Waste Collection Service is scheduled to be provided on a holiday, the Franchisee shall
collect the Residential Solid Waste on the Wednesday following such holiday if it occurs
on a Monday or Tuesday, or preceding such holiday if it occurs on a Thursday or Friday.
8.2 Frequency of Residential Solid Waste Collection Service --Garbage and Trash. At
least two (2) times each week, the Franchisee shall Collect Garbage and Trash from those
Customers that requested Residential Solid Waste Collection Service. The Collections of
Garbage and Trash shall be at least three (3) days apart.
8.3. Freauency of Service —Yard Trash. Yard Trash shall be collected from Residential
Units receiving Residential Solid Waste Collection Service at least one (1) time per week.
Yard Trash shall not be commingled with Garbage.
8.4. Frequency of Service —Bulk Trash. The Franchisee shall collect all Bulk Trash and
Freon -Containing Devices placed at the Curbside Collection Point within four (4)
calendar days after receiving a Customer's request to Collect such materials. There
shall be no additional charge to the Customer or the City for Collecting Bulk Trash.
Notwithstanding the provisions of Section 6.1, the City may direct delivery of bulk trash
to an alternative location within the County for processing.
8.5. Obligations Of Franchisee To Residential Customers - General. For Residential
Units, the Curbside Collection Point shall be located within five (5) feet of the curb, the
paved surface of a public roadway, the closest accessible public right-of-way, or other
location agreed to by the Franchisee and Customer that provides safe and efficient access
for the Collection crew and vehicle. If a Customer is physically unable to deliver their
Residential Solid Waste or Recyclable Materials to the Curbside Collection Point, or the
Residential Unit is not readily accessible to the Collection crew or vehicle, an alternative
location shall be designated by the Customer and Franchisee, at no extra cost to the
Customer.
8.5.1. Yard Trash Obligations. All Yard Trash, except palm fronds, must be bundled,
bagged in a biodegradable bag, or containerized by Customer. All Yard Trash must be:
separated from Garbage, Trash, and Bulk Trash; no more than four (4) feet in length and
no more than three (3) inches in diameter; less than fifty (50) pounds; shall not exceed four
(4) cubic yards per collection and shall be placed neatly at the Curbside Collection Point
by Customer. Natural Christmas trees will be collected as Yard Trash, provided that the
sections of the tree are not more than eight (8) feet in length or more than fifty (50)
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pounds. The Franchisee shall not co -mingle Yard Trash and other types of Solid Waste in
the Franchisee's Collection vehicles.
8.5.2. Bulk Trash Obligations. Bulk trash shall not be commingled with Yard Trash. A
Customer's Bulk Trash may not be collected if determined by the Contract Manager and
the Franchisee, in writing, to be incompatible either with the Franchisee's collection
equipment or the County's Solid Waste management system, or of such weight or
quantity as would significantly hinder the effectiveness of the Collection or Solid Waste
disposal system.
8.6. Manner of Collection . The Franchisee shall Collect Garbage, Trash, Yard Trash,
and Bulk Trash with a minimum of noise and disturbance to the Customer and the public.
The Franchisee shall empty all the garbage placed in the Standard Issued Container and
then the Franchisee shall return the container to the same location where it was placed by
the Customer or the Curbside Collection Point The Franchisee shall also collect any
garbage that may be placed next to the container from time to time. The Franchisee shall
reserve the right to refuse collection service, if in the Franchisee's determination that a
collection point is being used by more than one subscriber or non-subscriber(s) of the
collection service. Throwing or damaging Garbage containers is prohibited. If the
Standard Issue Container is deemed defective by the City, the Franchisee shall replace
the Container at no additional cost to the customer.
8.7. Routes and Schedules. On or before March 31 of each year, the Franchisee shall,
in a format acceptable to the Contract Manager, provide the Contract Manager with a
map of each route and the scheduled days for Collection of Garbage, Trash, Bulk
Trash, and Yard Trash in the Residential Solid Waste Franchise Area. The Franchisee
shall keep route maps, schedules, and Customer counts current at all times and shall
strictly follow the schedules and routes filed with the Contract Manger. The Franchisee
shall provide updated maps and schedules to the Contract Manager no later than three
(3) calendar days after any change.
8.7.1. Changes to Schedules. The Franchisee shall not change the scheduled days
for its Collection services until the Franchisee receives the Contract Manager's prior
written authorization. The Contract Manager's approval of such changes shall not be
unreasonably withheld. In the event that the Contract Manager authorizes a change in
schedules that alters the Collection day for any Customer, the Franchisee shall, at its
expense, notify each affected Customer by mail or other manner approved by the
Contract Manager not less than one (1) week prior to the change.
Article 9. Residential Rates and Billing
9.0. Residential Solid Waste Collection Service Rates. The total rate per Residential
Unit for Residential Solid Waste Collection Service charged by Franchisee shall be
$11.18 per month as depicted in the rate schedule attached here to and marked Exhibit
"A°. The foregoing is the total rate that may be charged by the Franchisee for
Residential Solid Waste Collection Service and it includes all franchise fees, collection
11
costs, disposal costs and other fees and expenses. Notwithstanding the foregoing, the
Franchisee and the City acknowledge and agree that the total rate for Residential Solid
Waste Collection Service is subject to adjustment as set forth in this Agreement. The
Franchisee shall not separately state the amount of the franchise fee on any bill to any
residential Customer.
9.1. Residential Solid Waste Collection Service Billing. Billing for Residential Solid
Waste Collection Service shall be the sole responsibility of the Franchisee.
Article 10. Commercial Collection Service
10.0. General. The Franchisee shall provide all Commercial Collection Service within
the City.
10.1. Freauencv of Collection. Commercial Collection Service shall be provided at
least once per week, except that the Collection of Recyclable Materials may be
provided as agreed by the Customer and Franchisee. In any event, Commercial
Collection Service shall be provided frequently enough to prevent the creation of a
public nuisance or a threat to the public health, safety, or welfare. The Contract
Manager shall assist the Franchisee and Customer in confirming that the size of the
Commercial Container and the frequency of the Collection service are sufficient to
ensure that Commercial Solid Waste is not routinely placed or stored outside the
Commercial Container.
10.2. Location of Collection of Commercial Containers. Commercial Containers for
Commercial Solid Waste or Recyclable Materials shall be placed at locations that are
mutually acceptable to the Franchisee and the Customer, and in compliance with the
City's land use ordinances. If a dispute should arise between a Customer and the
Franchisee regarding the location of the Commercial Container, the Contract Manager
shall designate the location.
10.3. Commercial Containers Required. Construction and Demolition Debris generated
or accumulated at the site of a construction, demolition or renovation project shall be
stored in a Commercial Container until removed from the site. All other Solid Waste
generated or accumulated at the site of a construction, demolition or renovation project
shall be stored in a separate Commercial Container or Garbage Receptacle.
10.4. Non -Conforming Containers Prohibited. The use of any container or receptacle
other than a Commercial Container or a Construction and Demolition Debris
Commercial Container to store Construction and Demolition Debris at a construction,
demolition or renovation site is prohibited. The City may prohibit the use of any
Commercial Container or Construction and Demolition Debris Commercial Container
that is found to be unsuitable or undersized.
10.5. Adjacent Areas. Construction and Demolition Debris or other Solid Waste which
is cast, blown, or scattered upon any adjacent property as a result of construction,
12
demolition, or renovation activities shall be removed by the Person responsible for the
construction, demolition or renovation activities no later than the end of the day on
which the activities occur or earlier if the waste material causes littering.
Article 11. Commercial Collection Service and Construction
and Demolition Debris Service Rates and Billing
11.0. Rates — General. The Commercial Collection Service rates set forth in this
Agreement are maximums, and volume discounts may be negotiated between the
Franchisee and the Customer. Notwithstanding the foregoing, the Franchisee and the
City acknowledge and agree that the Commercial Collection Service rates are subject to
adjustment as set forth in this Agreement.
11.1. Rates. All Customers receiving any type of Commercial Collection Service,
including Construction and Demolition Debris Service, will be charged on a per cubic
yard basis. Charges will be billed monthly in advance by the Franchisee according to
the rate schedule attached hereto marked Exhibit °A".
11.2. Other Charges. The rates for Commercial Collection Service and Construction
and Demolition Debris Collection Service do not include disposal fees, maintenance
fees, franchise fees, and other extra charges. Such fees shall not be added to a
Customer's invoice unless they are individually listed and itemized.
11.3. Billing. Billing for Commercial Collection Service, and for Construction and
Demolition Debris Service shall be the sole responsibility of the Franchisee.
Article 12. Adjustments to Rates
12.0. CPI Changes in Rates. Compensation payable to the Franchisee for services
provided hereunder shall be adjusted upward or downward annually to reflect changes
in the consumer price index for all urban consumers for the Southeastem US, all items,
1982-84 equals 100, as published by the U.S. Department of Labor, Bureau of Labor
Statistics ("CPI"). Should the CPI be discontinued or substantially modified, then an
alternate index shall be chosen by mutual agreement of the City and the Franchisee.
Beginning on October 1, 2014, and on each Octoberl thereafter, the foregoing rates
shall be adjusted to reflect the increase or decrease in the CPI for the immediately
preceding twelve (12) month period of June to June, but no increase or decrease shall
exceed percent (3%) per annum. The Franchisee shall notify the City in writing of
increases that are based on the CPI, as provided in this section, no less than thirty (30)
days prior to their implementation.
12.1. Change of Law. The parties understand and agree that the Florida Legislature from
time to time has made comprehensive changes in Solid Waste management legislation
and that these and other changes in law in the future, whether federal, state or local, which
mandate certain actions or programs that may require changes or modificalions in some of
the terms, conditions or obligations under this Agreement. Nothing contained in this
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Agreement shall require any party to perform any act or function contrary to law. To the
extent that any law effective after the effective date of this Agreement is in conflict with, or
requires changes in, the provisions of services to be provided under this Agreement, the
parties agree to enter into good -faith negotiations to determine whether the Franchisee's
rates should be adjusted as a result of a change n law.
12.2. Limitation on Rate Changes. The Franchisee shall not be allowed a rate increase
for any reason other than those expressly specified in this Agreement. Notwithstanding
the foregoing, in the event that a federal, state or local entity imposes a fee, charge or
tax after the date of this Agreement that applies to Franchisee's operations per se,
such fee, charge or tax shall be treated as a change in law and shall be passed through
as a separate billed item after notice and confirmation by the City.
12.3. Rate Adjustment Procedure. Should the Franchisee seek an adjustment of any
charges established and approved by the Council, other than the CPI Changes in Rates
set forth in section 12.0 of this Agreement, then Franchisee shall notify the City in
writing, setting forth the schedule of rates and charges which it proposes and a written
justification for the request. A public hearing shall be held on the request. The request
for a public hearing shall be submitted to the City with supporting data for review and
presentation to the Council. The hearing may thereafter be continued from time to time
as determined by the Council. The Council shall make a determination whether the
adjustment in charges is necessary and justified under the circumstances provided
herein and set forth in Franchisee's justification for rate adjustment
Article 13. General Obligations Of Franchisee
13.0. Prohibitions on Bioloaical. Biomedical. and Hazardous Waste. The Franchisee
shall not Collect Biological Waste, Biomedical Waste, or Hazardous Waste and the
Franchisee shall not deliver or dispose of any of the foregoing wastes at the County
Landfill. Franchisee shall not Collect any Solid Waste that the Franchisee reasonably
believes is Biological Waste, Biomedical Waste, or Hazardous Waste. The Franchisee
shall immediately notify the Contract Manager if any Customer attempts to deliver such
material to the Franchisee or the City. The City shall have the right to inspect the Solid
Waste and Recyclable Materials Collected by the Franchisee at any time to determine
whether the Solid Waste or Recyclable Materials contain Biological Waste, Biomedical
Waste, or Hazardous Waste, and to require the Franchisee take appropriate action to
ensure that the Franchisee's Customers do not deliver such materials to the
Franchisee. The Franchisee shall promptly arrange and pay for the lawful removal and
disposal of any Biological Waste, Biomedical Waste or Hazardous Waste that the
Franchisee delivers to the County Landfill.
13.1. Spillage. The Franchisee shall not litter, and shall not spill Solid Waste or
Recyclable Materials, anywhere in the City. Whenever the Franchisee is hauling Solid
Waste or Recovered Materials, in the City, the Franchisee shall take all necessary steps to
ensure that the material is contained, tied, or endosed so that leaking, spilling and blowing
of such material is prevented. In the event that any material or liquid spills, blows or leaks
14
from the Franchisee's vehicle, the Franchisee shall immediately clean up the spillage,
leakage and fitter at no cost to the City or the Customer. if a Customer or the Contrail
Manager notifies the Franchisee that its actions have caused litter, spillage, or leakage
within the City, the Franchisee shall remedy such problem within 24 hours after being
notified. In all such cases, the cost of any cleanup, remediation or damages shall be the
sole responsibility of the Franchisee.
13.2. Financial Reports. Franchisee shall provide to the City annually a financial
statement and report that includes an income statement showing the gross revenue
received by the Franchisee from the Collection of Solid Waste and other services
provided by the Franchisee under this Agreement. The report must include the opinion
of a Certified Public Accountant, who has conducted an audit of the Franchisee's books
and records in accordance with generally accepted accounting standards which include
tests and other necessary procedures, that the financial statements are fairly presented in
all material aspects and in conformity with generally accepted accounting procedures.
The report also must include the Certified Public Accountant's opinion that the Franchisee
has properly calculated and fully paid the franchise fees that are due and owing to the City
pursuant to the provisions of this Agreement The annual audit shall be delivered to the
City within one hundred and twenty days after the end of the Franchisee's fiscal year. The
City may waive the requirement of an audited financial statement upon good cause.
13.3. Customer Complaints. If the City receives a complaint regarding the Franchisee's
service under this Agreement the complaint shall be immediately forwarded to the
Franchisee by telephone, e-mail or facsimile. The Franchisee shall respond to the
complaint within twenty-four hours after the Franchisee receives the complaint. When
the complaint is received after twelve o'clock noon on a Saturday or on a day preceding
an approved holiday the Franchisee shall respond to the complaint no later than the
next day that is not a holiday or a Sunday. Upon resolution of the complaint, the
Franchisee shall notify the City within twenty-four hours, by telephone or facsimile, of
the action taken to resolve the complaint
13.3.1 Record. The Franchisee shall keep a written record of all complaints it receives
regarding the Franchisee's service under this Agreement. The Franchisee shall use a
standard form to record the pertinent facts regarding each complaint and how it was
resolved. The form shall identify the time and date when a complaint was received,
when the Franchisee responded to the complaint, and when the complaint was
resolved. The Franchisee's records and forms shall be kept up to date and shall be
maintained throughout the term of this Agreement. Copies of the complaints and forms
shall be kept at the Franchisee's office and shall be available for inspection by the
Contract Manager during normal business hours.
13.3.2. Notice of Certain Types of Complaints. The Franchisee shall immediately notify
the Contract Manager if the Franchisee receives a complaint involving a claim of
personal injury, death, or property damage resulting from the Franchisee's actions in the
City. The Franchisee shall provide the Contract Manager with a written report about
16
any such matters within three calendar (3) days after the Franchisee receives the
complaint.
13A. Customer Noncompliance. If the Franchisee refuses to Collect Solid Waste from
a Customer because the Customer failed properly to prepare or place the Solid Waste
for Collection, the Franchisee shall provide written notification to the Customer
explaining why the Solid Waste was not Collected and what the Customer must do to
properly prepare or place the Solid Waste for Collection. The Franchisee's initial notice
may consist of the Franchisee's Collection crew leaving a written notice or tag on the
Garbage Receptacle or Solid Waste in question.
13.5. Community Cleanups. The Franchisee shall perform at least two community
cleanups within the Residential Solid Waste Franchise Area each calendar year. The
times and locations of the community cleanup shall be selected by the Contract
Manager after coordinating with the Franchisee. The Franchisee shall provide
appropriate containers during each community cleanup at no cost to the City or to the
sponsor. During the community cleanup, the Franchisee shall Collect only Garbage,
Trash, Yard Trash, and Bulk Trash. The Franchisee shall transport these materials to
the County Landfill for disposal at no cost to the Franchisee.
13.5.1. Special Event Cleanups. In addition to the Community Cleanups, the
Franchisee shall perform one annual collection event each for electronics, paper
shredding and white goods. The time and location of the Special Event Cleanups shall
be selected by the Contract Manager and coordinated with the Franchisee.
13.5.2 Waste Watch. Franchisee shall develop a "Waste Management Waste -Watch"
Program in the City of Sebastian.
13.6. Collection for Citv Facilities. Franchisee shall provide collection services at City
facilities at no charge, including special service for the four major City -sponsored
festivals held annually at Riverview Park.
13.6.1. The Franchisee shall provide the City with five (5) solar recycling compactors
and provide regular collection service and maintenance for each bin. The City shall
select the location of each recycling compactor. The location of the compactors may
change from time to time.
13.7. Uncontrollable Forces. Neither the County nor Franchisee shall be in default of this
Agreement, nor shall the Franchisee be subject to the administrative charges set forth in
Section 14 of this Agreement, if delays in or failure of performance are due to
Uncontrollable Forces, the effect of which the non -performing party could not avoid by the
exercise of reasonable diligence. Neither party shall, however, be excused from
performance if nonperformance is due to forces or events that are preventable, removable,
or remediable and which the non -performing party could have, with the exercise of
reasonable diligence, prevented, removed, or remedied with reasonable dispatch. The
non -performing party shall, within a reasonable time of being prevented or delayed from
16
performance by an Uncontrollable Force, give written notice to the other party describing
the circumstances and Uncontrollable Forces preventing continued performance of the
obligations of this Agreement, and the expected time when performance in compliance
with this Agreement will resume.
13.8. Contract Chances for Public Welfare. The City shall have the authority to make
changes in this Agreement when such changes are deemed necessary and desirable for
the public welfare. The City shall give the Franchisee reasonable notice of any proposed
change and an opportunity to be heard concerning the proposed change. The Franchisee
shall be reasonably and appropriately compensated for any additional services required of
the Franchisee due to any modification in this Agreement under this paragraph.
13.9. Office. The Franchisee shall maintain an office in Indian River County. The
Franchisee shall maintain two or more toll free telephone number(s) where service
inquiries and complaints can be received by the Franchisee. The Franchisee's office
shall be staffed with trained, responsible persons on duty during the hours of 8:00 a.m.
to 5:00 p.m., Monday through Friday, except holidays. The Franchisee shall use either a
telephone answering service or answering machine to receive service inquiries and
complaints during those times when the office is closed. The Franchisee also shall
develop a system, subject to the Contract Manager's approval, for receiving emergency
calls from the public at anytime, and for communicating with the City regarding
emergency matters.
13.10. Vehicles and Equipment. At all times the Franchisee shall have a sufficient
number of trucks, Commercial Containers, and other equipment available and in good
working condition so that the Franchisee can efficiently perform its contractual duties
under this Agreement. The Franchisee shall also have available reserve vehicles and
equipment that can be put into service within twelve (12) hours of any breakdown or
malfunction that can provide similar service to the Franchise Area. Vehicles used by
the Franchisee in the performance of this Agreement shall be clearly identified with the
Franchisee's name, local phone number, truck number, and tare weight. Letters and
number shall be at least four (4) inches high.
13.10.1 J. On or before March 31 of each year, the Franchisee shall provide the
Contract Manager with a list of the trucks and other Collection equipment that will be
used by the Franchisee to provide services under this Agreement. The list shall include
the license tag number for each truck and the identification number (if any) for each
Commercial Container. The Franchisee shall revise and resubmit the list to the
Contract Manager during the term of this Agreement if there are any changes to the list
of the trucks, other Collection equipment, or Commercial Containers. The requirements
of this paragraph do not apply to: (a) trucks and other Collection equipment used in the
City for 30 days or less; or (b) bona fide demonstration trucks and other Collection
equipment.
Si13.10.2. Condition of Equipment. At initiation of the Franchise Agreement, all collection
equipment shall be in good working order. The City reserves the right to inspect all
17
equipment listed by the Franchisee. All of the Franchisee's vehicles shall be kept in a
clean, sanitary condition and in good repair. Any vehicle emitting excessive odor shall
be taken out of service and washed prior to being placed back in service. All vehicles
and auxiliary equipment shall be regularly maintained in a manner necessary to prevent
the release or discharge of Solid Waste, Recyclable Materials, oil, hydraulic fluids, or
other fluids into the environment. The Franchisee's vehicles shall not emit visible air
emissions during normal operation. The Franchisee's vehicles,. shall be in compliance
with all Applicable Laws, including, without limitation, laws concerning noise, air
pollution, and traffic safety. Should the City determine that the Franchisee's equipment
does not meet the City's operational and safety standards, the Franchisee shall
immediately replace such equipment. At no time during the course of the Agreement
shall the Franchisee's equipment become older than twelve (12) years.
13.10.3 Compressed Natural Gas (CNG). By January 1, 2015, the Franchisee shall
service the City with an all compressed natural gas equipment fleet.
13.10.4. Equipment Reauired on Vehicles. All collection vehicles shall carry a broom, a
shovel, a fire extinguisher, absorbent materials and other equipment necessary to clean
up any spilled materials.
4,, 13.10.5. Inspection of Vehides and Eauipmenl. The Contract Manager may inspect
the operations, vehicles, and equipment of Franchisee at any reasonable time upon
giving of reasonable notice and the Franchisee shall allow the Contract Manager to
make such inspections.
13.11. Franchisee's Operations Manager. The Franchisee shall assign a qualified person
or persons to be in charge of the Franchisee's operations within the City. Within three (3)
days after the City signs this Agreement, the Franchisee shall provide the Contract
Manager with a written list containing the names and telephone numbers of the
Franchisee's operations manager and other key personnel, and the telephone numbers
that are to be used to contact the Franchisee in the event of an emergency.
13.12. Personnel. All of the Franchisee's employees shall be properly trained and
qualified to perform the tasks assigned to them. The Franchisee shall provide routine
training in operating and safety procedures for all of the Franchisee's'employees that are
directly involved in the Collection or processing of Solid Waste or Recyclable Materials in
the County. Each driver of the Franchisee's vehicles shall at all times carry a valid Florida
driver's license for the type of vehicle that is being driven. The Franchisee's employees
shall wear a uniform, shirt, or vest bearing the Contractor's name whenever they are
Collecting or transporting Solid Waste or Recyclable Materials in the City. The
Franchisee's personnel shall not scavenge for Solid Waste or Recyclable Materials.
13.12.1. Polite and Courteous Behavior. The Franchisee's employees shall treat all
Customers in a polite and courteous manner. All personnel of Franchisee shall refrain
from belligerent behavior and profanity. Franchisee's personnel shall not request tips or
18
payment of any kind from Customers. The Franchisee shall promptly take appropriate
action to correct any such behavior or language.
13.13. Employee Wages and Benefits. The Franchisee shall comply with all Applicable
Laws relating to wages, hours, overtime, disability, and all other matters relating to the
employment and protection of employees, now or hereafter in effect
13.14. Permits and Licenses. The Franchisee shall obtain, at its sole expense, any and
all permits and licenses required by Applicable Law in connection with this Agreement and
Franchisee shall maintain the same in full force and effect throughout the term of this
Agreement. Any revocation of the Franchisee's licenses or permits shall be reported to
the City within three (3) calendar days.
13.15. Public Entity Crimes. No Franchisee may be a person or affiliate identified on the
Florida Department of General Services "convicted vendor" list. This list is defined as
consisting of persons and affiliates who are disqualified from the public contracting and
purchasing process because they have been found guilty of a public entity crime. The
Franchisee is required to comply with Florida Statutes Section 287.133, as amended, or its
successor. The Franchisee shall notify the Contract Manager within three (3) days if the
Franchisee is found guilty of public entity crime or placed on the convicted vendor list.
,orce j4ta ' evre g
13.16. Non-Discrimiinaion. The Franchisee, in performing under this Agreement, shall
not discriminate against any worker, employee, or applicant or any member of the public
because of race, creed, religion, color, sex, age, marital status, disability, or national origin,
or otherwise commit an unfair unemployment practice on such basis.
13.17. Natural Disasters and Other Emeroencv Conditions - Variances from Normal
Services. In the event of a natural disaster or other emergency, the Contract Manager
may grant a variance from the normal requirements of this Agreement. Among other
things, the Contract Manager may allow the Franchisee to use other routes, schedules,
and disposal sites during the time period in which an Uncontrollable Force prevents the
Franchisee from complying with the normal requirements in this Agreement. in such
circumstances, the City shall ask the local media to inform the public about the changes
in the Franchisee's services As soon as practicable after such natural disaster or
Uncontrollable Force, the Franchisee shall resume normal operations. In such cases, the
Franchisee shall make the City a priority.
13.17.1. Franchisee Unable to Provide Contracted Services. In the event that the
Franchisee is unable to provide adequate services during an emergency or other event
involving an Uncontrollable Force, the City may hire other Contractors to provide those
services. In such case, the City reserves the right to charge the Franchisee for all costs
and expenses that the City incurs while providing the services that the Franchisee is
obligated to provide pursuant to the requirements of this Agreement, subject to setoff for
the amounts that would have been paid to Franchisee for the services.
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13.17.2. Rapid Recovery from Disaster. The clean-up from some natural disasters may
require that the Franchisee hire additional equipment, employ additional personnel, or
work existing personnel on overtime hours to clean debris resulting from the natural
disaster. The Franchisee shall not receive any extra compensation (Le., above the normal
compensation provided in this Agreement) to recover the costs of rental equipment,
additional personnel, overtime hours, or other expenses unless the Franchisee has
received written authorization and approval from the Contract Manager prior to the work
being performed. All such costs may be audited by the City prior to payment.
13.18. Disaster Response Plan. The Franchisee shall develop and provide to the City
a disaster preparedness and response plan by March 31 of each year. This plan shall
include provisions for additional personnel and equipment and shall establish a
reasonable, verifiable basis for any charges. In the event that excess work resulting from
a natural disaster is compensable by the Federal Emergency Management Agency, or any
other local, state, or federal agency, any compensation to the Franchisee shall be subject
to such agency's prior approval. The Franchisee shall be familiar with Federal
Emergency Management Agency documentation requirements and shall provide the
necessary documentation for submission of cost reimbursement requests. The
Franchisee shall be required to submit its Federal Emergency Management Agency
documentation of costs as a condition of payment for additional personnel and
equipment pursuant to this section.
13.19. Insurance.
13.19.1. Workers' Compensation Insurance. Workers' Compensation coverage must be
maintained in accordance with statutory requirements as well as Employer's Liability
Coverage in an amount not less than $100,000.00 per each accident, $100,000.00 by
disease and $500,000.00 aggregate by disease.
13.19.2. Liability Insurance. The Franchisee shall, during the term of this Agreement,
maintain in full force and effect commercial general liability insurance and automobile
liability insurance, which specifically covers all exposures incident to the Franchisee's
operations under this Agreement. Such insurance shall be with a company authorized to
do business in the State of Florida and which possesses a minimum, current rating of
B+ Class VIII in "Best's Key Rating Guide" Each policy shall be in an amount of not less
than $1,000,000.00 Combined Single Limit for personal bodily injury, induding, without
limitation, death, and property damage liability and the general liability shall include but not
be limited to coverage for Premises/Operations, Products/Completed Operations,
Contractual, to support the Franchisee's Agreement or indemnity and Fire Legal Liability.
In addition to the above liability limits, the Franchisee shall maintain a $5,000,000.00
umbrella and/or excess liability coverage. Liability policy(ies) shall be endorsed to show
the City as an additional named insured as its interests may appear, and shall also provide
that insurance shall not be canceled, limited, or non -renewed until after thirty (30) days
written notice has been given to the City. Franchisee shall provide the City with copies of
current certificates of all required insurance concurrently with execution of this Agreement
by Franchisee. Franchisee expressly understands and agrees that any insurance
20
protection furnished by Franchisee shall in no way limit its liability to the City or its
responsibility to indemnify and save harmless City and the officials, officers, and
employees of the City under the provisions of this Agreement.
13.20. Indemnification. The Franchisee agrees to hold the City and the officials,
officers, and. employees of the City harmless from any and all liabilities, losses,
penalties, costs or damages the City, its officials, officers, and employees may suffer as
a result of any claims, demands, suits, or judgments against the City, its officials,
officers, and employees arising out of or in any way related to the negligent acts or
omissions of the Franchisee or its employees under this Agreement. The Franchisee
shall not be required to indemnify or hold the City harmless for any act or omission
caused by the sole negligence or willful misconduct of the City or its officials, officers, or
employees. This indemnification and hold harmless agreement shall survive the
termination or expiration of this Agreement.
13.21. Damage. The Franchisee including, without limitation, its agents, employees and
subcontractors, shall perform all services under this Agreement in such a manner so as
to avoid damage to public and private property and shall promptly repair or pay for any
such damage in conjunction with its insurance adjustment procedures.
13.22. Compressed Natural Gas Fueling Station. Franchise shall construct, operate
and maintain a full service compressed natural gas fueling station in the City limits of
the City of Sebastian, Florida if the following conditions are met:
A. Franchisee shall be awarded a continuing exclusive franchise for solid
waste collection in Indian River County during the term of this Agreement
or any extension hereof and such franchise has a term of at least three
years;
B. Franchisee and City shall negotiate in good faith to locate or provide City
property for station location and such property, zoning and all restrictions
related to the property and the costs associated with its procurement are
acceptable to Franchisee in its reasonable discretion;
C. Natural gas infrastructure is reasonably extended to the potential fueling
station site; and,
D. Franchisee agrees to design fueling station according to City land
development regulations; and
E. The parties enter into a definitive agreement regarding the property that
addresses all issues raised by either party after the specific property is
identified.
Article 14. Administrative Charges to Franchisee for Failure to Perform
21
1
14.0. Failure to Pay Franchise Fee. Franchise fee payments received after the fifteenth
(15th) day of the month shall bear interest at 18% per year. Except for an Uncontrollable
Force, franchise fee payments received more than twenty (20) days after the due date
shall be subject to an administrative fee of $500 for the first nonpayment; $1,500 for the
second nonpayment and $5,000 for the third nonpayment Three late payments in any
one calendar year, or failure to make payment within thirty (30) days after the due date,
unless due to an Uncontrollable Force shall result in termination of this Agreement
14.1. Customer Service Complaints. All Customer service complaints received by the
Franchisee or Contract Manager and reported to the Franchisee shall be promptly
resolved pursuant to applicable terms of this Agreement. Customer service Complaints
shall not include Customer informational requests or Recycling Container requests.
Customer service complaints may include, but are not limited to, the following:
.1 Commingling Solid Waste with Yard Trash
.2 Throwing of Garbage Receptades
.3. Failure to collect Solid Waste on schedule
.4 Failure to replace Garbage Receptacles or Commercial Containers to the point
of collection.
14.1.1. In the event Customer service complaints received from Residential Solid Waste
Collection Service customers exceed any of the following percentage(s):
Complaint Type Annual %
Garbage, Trash and Damage 4%
Yard Trash 2.5%
Monthly %
0.5%
0.35%
of the Customers in the Franchise Area served by the Franchisee as determined on the
first day of each calendar year, the Contract Manager may levy $100.00 administrative
charges for each incident exceeding these percentages, on a calendar year or monthly
basis as is appropriate.
14.2. [Left Intentionally Blankl
14.3. 'Left Intentionally Blankl
14.4. Changing Scheduled Collection Days without Approval. Changing scheduled
Collection days without approval will result in a $2000.00 administrative charge per
incident
14.5. Failure to Clean Up Spillaae. Failure to clean up spillage of any substance required
to be cleaned up by and in accordance with the City of Sebastian requirements will result
in a $200.00 administrative charge per day, per incident.
14.6. Failure to Complete Route. Failure to complete, either partially or totally, a route on
the regular scheduled collection day shall result in an administrative charge of $1,000 for
22
each route per day not completed, provided that no such fine will be charged due to an
Uncontrollable Force or if the route is more than ninety percent (90%) complete and is
thereafter completed within five (5) hours.
14.7. Other Performanc Standards and Administrative Charges. The Contract Manager
may also levy administrative charges for all other infractions of this Agreement at $100.00
per day per incident, beginning with the third reported incident, without regard to the
percentage of customer complaints induding, without limitation:
.1. Failure to provide dean, safe, sanitary Collection equipment
.2. Failure to maintain office hours as required
.3. Operator not licensed
.4. Collection Vehicle not licensed
.5. Failure to provide documents and reports in a timely and accurate manner
It Failure to cover materials on Collection vehicle
.7 Collection vehicles left standing on street unnecessarily
.8. Collection employees out of uniform
.9. Not providing schedule and route maps
.10. Speeding, upon conviction
.11. Failure to Collect Solid Waste or Commercial Solid Waste for any Customer
who has been missed more than three times per calendar year
.12. Failure to respond to Customer calls in a timely and appropriate manner
14.9. City Repair of Damaae. In the event the Franchisee fails to repair damages caused
by Franchisee pursuant to this Agreement, the Contract Manager may arrange for the
repairs and impose an administrative charge to the Franchisee for the cost of the repairs
and any applicable administrative expenses.
14.10. Payment of Administrative Charoes by Franchisee. The Contract Manager shall
notify the Franchisee in writing of the City's intent to assess any administrative charges
provided under this Agreement. The Contract Manager shall provide to Contractor an
itemized written list of each instance in which Franchisee failed to meet the performance
standards specified in this Agreement, including the nature of the failure, date, time,
location, and any other available and applicable information, with a reasonable degree
of specificity as allowable under the circumstances. Such itemized List will be provided
to the Franchisee monthly, on or before the tenth (10th) calendar day of each month.
The Franchisee shall have two (2) weeks following receipt of such list to pay the entire
amount of the Administrative Charges or to contest same as set forth herein. In the
event the Franchisee wishes to contest such assessment it shall, within ten (10) calendar
days after receiving such notice, request in writing an opportunity to be heard by the
Contract Manager and present its explanation and any basis on which the Franchisee
believes any recorded failure to perform within the standards of this Agreement is
inaccurate. The Contract Manager shall notify the Franchisee in writing of any action
taken with respect to the Franchisee's claim. Franchisee may further appeal, in writing,
the decision of the Contract Manager to the City Manager, who shall conduct a review of
23
all of the facts and circumstances, and make a determination in writing. The decision of
the City Manager will be final.
Article 15. Default
15.0. Causes of Default . The City may terminate this Agreement, except as otherwise
provided below in this section, by giving Franchisee thirty (30) days advance written
notice, to be served as hereafter provided, upon the happening of any one of the following
events:
.1. Filing of Insolvency or Bankruptcy. Franchisee shall take the benefit of any present or
future insolvency statute, or shall make a general assignment for the benefit of creditors,
or file a voluntary petition in bankruptcy or a petition or answer seeking an arrangement for
its reorganization or the re -adjustment of its indebtedness under the federal bankruptcy
laws or under any other law or state 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;
.2. Declaration of Bank otcv. By order or decree of a Court, Franchisee shall be
adjudged bankrupt or an order shall be made approving a petition filed by any of its
creditors or by any of the stockholders of the Franchisee, seeking its reorganization or the
readjustment of its indebtedness under the Federal bankruptcy laws or under any law or
statute of the United States or of any state thereof, provided that if any such judgment or
order is stayed or vacated within sixty (60) days after the entry thereof, any notice of
cancellation shall be and become null, void, and of no effect unless such stayed judgment
or order is reinstated in which case, said default shall be deemed immediate;
.3. Control by Receiver. Trustee. or Liquidator. By or pursuant to or under authority of any
legislative act, resolution or rule or any order or decree of any Court or governmental
board, agency or officer having jurisdiction, a receiver, trustee or liquidator shall take
possession or control of all or substantially all of the property of the Franchisee, and such
possession or control shall continue in effect for a period of sixty days; or
A. Failure to Perform Services under Agreement. The Franchisee has defaulted, by
failing or refusing to perform or observe the terms, conditions or covenants in this
Agreement or has wrongfully failed or refused to comply with the instructions of the
Contract Manager relative thereto, whether such default is considered minor or major, and
such default Is not cured within thirty (30) days of receipt of written notice by City to do so,
or if by reason of the nature of such default, the same cannot be remedied within thirty (30)
days following receipt by Franchisee of written demand from City to do so, Franchisee fails
to commence the remedy of such default within said thirty (30) days fotiowing such written
notice or having so commenced shall fail thereafter to continue with diligence the curing
thereof (with Franchisee having the burden of proof to demonstrate that the default cannot
be cured within thirty (30) days, and that it is proceeding with diligence to cure such
default, and such default will be cured within a reasonable period of time). Failure to make
timely payment of the Franchise Fee shall not be considered a curable default.
24
.5. Repeated Unauttiortzed Corec Lion. Franchisee has on four (4) occasions during the
term of this Agreement been found to have Collected Residential Solid Waste generated
from outside the Residential Solid Waste Franchise Area from non -Customers without
the prior written approval of the Contract Manager.
15.1. Interim Collection Services. Notwithstanding anything contained herein to the
contrary, if Franchisee fails to provide Residential Solid Waste Collection Service for a
period of three (3) consecutive scheduled Collection days, the City may obtain the
Franchisee's Collection records on the fourth Collection day to provide applicable interim
Collection services until such time as the Franchisee is again able to perform pursuant to
this Agreement; provided, however, if the Franchisee is unable for any reason or cause to
resume performance at the end of ten (10) working days, all liability of the City under this
Agreement to the Franchisee shall cease and this Agreement may be deemed
immediately terminated by the City_
15.2. Habitual Violator. Notwithstanding the foregoing and as supplemental and
additional means of termination of this Agreement under this section, in the event that
Franchisee's record of performance shows that Franchisee has frequently, regularly or
repetitively defaulted in the performance of any of the covenants and conditions required
herein to be kept and performed by Franchisee, in the reasonable opinion of the City and
regardless of whether Franchisee has corrected each individual default, Franchisee shall
be deemed a "habitual violator," shall forfeit the right to any further notice or grace period
to correct or cure future defaults, and all of such defaults shall be considered cumulative
and, collectively, shall constitute a condition of irredeemable default. The City shall
thereupon issue a final waming letter to Franchisee, setting forth in detail all of the facts
and circumstances constituting the determination of "habitual violator." Thereafter, any
single default by Franchisee of whatever nature shall be grounds for immediate
termination of this Agreement In the event of any such subsequent default, the City may
terminate this Agreement upon the giving of written final notice to Franchisee, such
termination to be effective on the date set forth in the final notice, and all contractual fees
due under this Agreement plus any and all charges and interest shall be payable to such
date, and Franchisee shall have no further rights under this Agreement. Immediately upon
receipt of such final notice, Franchisee shall proceed to cease any further performance
under this Agreement
15.3. Date of Agreement Termination fo, J fault. Except as otherwise provided in this
section, termination shall be effective upon the date specified in City's written notice to
Franchisee and upon such date this Agreement shall be deemed immediately terminated
and upon such termination all liability of the City under this Agreement to the Franchisee
shall cease, and the City shall be free to negotiate with any Person for Collection services.
The Franchisee shall reimburse the City for all direct and indirect costs of providing interim
Collection service.
Article 16. General Provisions
25
16.0. Survival. Except as otherwise expressly provided herein, each obligation in this
Agreement to be performed by Franchisee shall survive the termination or expiration of
this Agreement.
16.1. Waiver. The failure of the City at any time to require performance by the Franchisee
of any provision hereof shall in no way affect the right of the City thereafter to enforce the
same. No waiver by the City of any breach of any provision hereof shall be taken or held
to be a waiver of any succeeding breach of such provision or as a waiver of any provision
itself.
16.2. Remedies. No remedy herein conferred upon any party is intended to be
exclusive of any other remedy and each and every such remedy shall be cumulative
and shall be in addition to every such remedy given under this Agreement or now or
hereafter existing at law or in equity or by statute or otherwise. No single or partial
exercise by any party or any right, power, or remedy under this Agreement shall
preclude any other or further exercise thereof. If any legal action or other
proceeding is brought for the enforcement of this Agreement or because of an
alleged dispute, breach, default, or misrepresentation in connection with any
provisions of this Agreement, each party shall bear its own costs.
16.3. Govemina Law and Venue. This Agreement shall be govemed by the laws of the
State of Florida. Any and all legal action necessary to interpret or enforce the Agreement
will be held in Indian River County and the Agreement will be interpreted according to the
laws of Florida. The parties hereto expressly waive all right to trial by jury of any dispute
relating to this Agreement.
16.4. Severabilitv. The invalidity, illegality, or unenforceability of any provision of this
Agreement, or the occurrence of any event rendering any portion or provision of this
Agreement void, shall in no way affect the validity or enforceability of any other portion or
provision of the Agreement Any void provision shall be deemed severed from the
Agreement and the balance of the Agreement shall be construed and enforced as if the
Agreement did not contain the particular portion or provision held to be void. The parties
further agree to reform the Agreement to replace any stricken provision with a valid
provision that comes as close as possible to the intent of the stricken provision. The
provisions of this Section shall not prevent the entire Agreement from being void should a
provision which is of the essence of the Agreement, at the option of the City, be
determined to be void.
16.5. Assignment and Subcontracting.
16.5.1 Assignment of Entire Agreement. No assignment of this Agreement or any right
occurring under this Agreement shall be made in whole by the Franchisee without the
express prior written consent of the City. The City shall have full discretion to approve or
deny, with or without cause, any proposed assignment by the Franchisee. Any
assignment of this Agreement made by the Franchisee without the express prior written
consent of the City shall be null and void and shall be grounds for the City to declare a
26
default of this Agreement and immediately terminate this Agreement by giving written
notice to the Franchisee. Upon the date of such notice, this Agreement shall be deemed
immediately terminated, and upon such termination all liability of the City under this
Agreement to the Franchisee shall cease, and the City shall be free to negotiate with any
Person for the services that are the subject of this Agreement In the event of any
permitted assignment, assignee shall fully assume all the liabilities of the Franchisee under
this Agreement.
16.5.2. JLeft Intentionally Blank]
16.6. Modification of the Agreement This Agreement constitutes the entire agreement
and understanding between the parties hereto and supersedes all prior and
contemporaneous agreements and understandings, representations and warranties,
matters, whether oral or written, relating to such matters and this Agreement shall not be
considered modified, altered, changed, or amended in any respect unless in writing and
signed by the parties hereto. Such modification shall be in the form of an Amendment
executed by both parties.
18.7. Independence of Parties. It is understood and agreed that nothing herein
contained is intended or should be construed as in any way establishing the relationship of
co-partners or joint venturers between the parties hereto, or as constituting the Franchisee
as the agent representative, or employee of the City for any purpose whatsoever. The
Franchisee is to be and shall remain an independent contractor with respect to all services
performed under this Agreement.
16.8. Resolution of Disputes. Except as specifically provided herein, any and all
disputes or disagreements arising out of this Agreement shall be subject to the decision
of the Contract Manager, with right of the Franchisee to appeal to first the City Manager,
and thereafter to the Council, whose decision shall be final and binding. During any
dispute, the Franchisee shall continue to render full compliance with this Agreement
regardless of the nature of the dispute, unless the City specifically notifies the
Franchisee otherwise.
16.9. Representations of the Franchisee. The Franchisee represents that: (a) it is a
corporation duly organized under the laws of the State of Florida; (b) this Agreement
has been duly authorized, executed, and delivered in the State of Florida; and (c) it has
the required power and authority to perform this Agreement.
16.10. Informed Consent. The Franchisee agrees that the terms of this Agreement
have been completely read, are fully understood, and are voluntarily accepted; that
Franchisee affirmatively states that it has had the benefit of advice from counsel of its
own choosing before executing this Agreement; that Franchisee has voluntarily and with
full understanding executed this Agreement and accepted its terms and conditions. The
terms of the Agreement shall not be construed against either party as the "drafter" of the
document
27
16.11. Notices. All dealings, contacts, notices, and payments between the Franchisee
and the City shall be directed by the Franchisee to the Contract Manager and by the
City to the Franchisee's Project Manager, each of whom shall be designated and
identified to the other party, in writing, upon execution of this Agreement. Any notice,
demand, communication, or request required or permitted under this Agreement shall
be in writing and delivered in person or sent by certified mail, postage prepaid as
follows:
As to the City:
City of Sebastian
1225 Main Street
Sebastian, FL 32958
Attention: City Manager
Copy to: City Attorney
As to the Franchisee:
Waste Management Inc. of Florida
clo Harris Sanitation
7382 Talona Drive
West Melbourne, Florida 32904
Attention: District Manager
Copy To:
Waste Management Inc. of Florida
2700 NW 48 Street
Pompano Beach, Florida 33073
Notices shall be effective when received at the address as specified above. Changes in
the respective address to which such notice is to be directed may be made from time to
time by written notice. Facsimile transmission is acceptable notice effective when
received, provided, however, that facsimile transmissions received (i.e.; printed) after 4:30
p.m. or on weekends or holidays, will be deemed received on the next day that is not a
weekend day or a holiday. The original of the notice must additionally be mailed.
16.12. Counterparts. This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original copy and all of which shall constitute
but one and the same instrument.
16.13. Headings. Captions and headings in this Agreement are for ease of reference
only and shall not constitute a part of this Agreement nor affect its meaning,
construction, or effect.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date and year above written.
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ORDINANCE NO. 0-13-03
AN ORDINANCE OF THE CITY OF SEBASTIAN, FLORIDA,
GRANTING AN EXCLUSIVE FRANCHISE FOR RESIDENTIAL AND
COMMERCIAL SOLID WASTE COLLECTION TO WASTE
MANAGEMENT, INC. OF FLORIDA; PROVIDING PENALTIES FOR
VIOLATION; PROVIDING FOR SUNSET OF EXISTING
COMMERCIAL PROVIDERS; PROVIDING FOR CONFLICTS AND
EFFECTIVE DATE.
WHEREAS, the existing residential solid waste collection as approved under Ordinance
0-3-12 expires on June 30, 2013; and
WHEREAS, the Council has determined that it is in the best interest of the public that a
single provider have an exclusive franchise for both residential and commercial solid waste
collection; and
WHEREAS, pursuant to a competitive proposal process it has been determined that the
public will best be served by granting said franchise to Waste Management, Inc. of Florida;
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE
CITY OF SEBASTIAN, FLORIDA, as follows:
Section 1. Waste Management, Inc. of Florida, is hereby granted an exclusive
franchise to provide residential and commercial solid waste within the City of Sebastian pursuant
to the provisions of the FRANCHISE AGREEMENT BETWEEN CITY OF SEBASTIAN AND
Waste Management, Inc. of Florida attached hereto and incorporated herein by this reference as
if fully set forth herein.
Section 2. It shall be a violation of the City Code, punishable as provided in City
Code section 1-10, for any person or entity to provide solid waste collection within the City
except in accordance with the terms and conditions of the Franchise granted hereunder.
Section 3. CONFLICT. All ordinances or parts of ordinances in conflict herewith
are hereby repealed.
Section 4. EFFECTIVE DATE. This ordinance shall take effect upon adoption.
The foregoing Ordinance was moved)or adoption by Councilmember
motion was seconded by Councilmember
was as follows:
Mayor Bob McPartlan
Vice -Mayor Don Wright
Councilmember Jerome Adams
Councilmember Andrea B. Coy
Councilmember Tim Hill
and, upon being put to a
. The
te, the vote
The Mayor thereupon declared this Ordinance duly passed and adopted this /2 day o
2013.
CITY OF EBAST A LO JDA
By:
Mayor Bob McPartlan
ATTES
Sally A. Maio MC
City Clerk
/14
Approved as to Form and Legality for
Reliance by the City of Sebastian only.
Robot A. Ginsburg. City A"Fwmey