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HomeMy WebLinkAboutO-95-09 ..; f!' ~.. - , f '. ' \., ' ORDINANCE NO. 0-95-09 AN ORDINANCE OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, GRANTING AN EXCLUSIVE RESIDENTIAL SOLID WASTE COLLECTION FRANCHISE TO R & R Corporate systems Inc.. d/b/a Capital sanitation PROVIDING FOR DEFINITIONS; PROVIDING FOR A FIXED TERM; PROVIDING FOR MANDATORY SERVICE BY CONTRACTOR; PROVIDING FOR A DESCRIPTION OF SERVICES TO BE PERFORMED; PROVIDING FOR RESIDENTIAL COLLECTION; PROVIDING SCHEDULES AND ROUTE REQUIREMENTS; PROVIDING OTHER PROVISIONS; PROVIDING FOR PAYMENT OF FRANCHISE FEE TO CITY; SETTING RATES; PROVIDING FOR FORFEITURE; PROVIDING FOR CONFLICTS; PROVIDING FOR CODIFICATION; PROVIDING FOR SEVERABILITY; PROVIDING FOR ATTORNEYS' FEES AND PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, the City Council of the City of Sebastian, Florida, has determined that it is in the best interests of the City to grant a solid waste collection franchise to an independent solid waste collection service; and WHEREAS, the City has, through acceptance of public bid proposals, determined that R & R Corporate Systems. Inc. d/b/a/ Capital Sanitation will provide the required service in the City of Sebastian for the most cost effective price; and WHEREAS, the City Council has determined that the best interests of the citizens of City of Sebastian will be served by granting an exclusive franchise to R & R Corporate Systems. Inc. d/b/a/ Capital Sanitation for the purpose of solid waste collection services. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SEBASTIAN, INDIAN RIVER COUNTY, FLORIDA, as follows: ,i . .". f ~ <_~ 1, 2 ... F. Disposal: means the discharge, deposit, injection, dumping, burying, spilling, scattering, leaking, storing or placing of any solid waste into or upon any land or water so that such solid waste or any constituent thereof may enter other lands or be emitted into the air, discharged into any waters, including groundwaters, or otherwise enter the environment, except as specifically authorized by the City. G. Dump: means to throw, discard, place, deposit, dispose or bury any solid waste into or upon any land or water, except as specifically authorized by the city. H. Garbage: the word "garbage" shall mean every refuse accumulation of animal, fruit or vegetable matter that attends the preparation, use, cooking and dealing in or storage of edibles, which is subj ect to decay, putrefaction and the generation of noxious or offensive gases or odors, or which, during or after decay, may serve as breeding or feeding material for flies or other germ-carrying insects. I. Garbage Can or Receptacle: the words "garbage can" or "receptacle" shall mean a container of not greater than thirty- five (35) gallon capacity which shall be free of jagged or sharp edges and shall be watertight and of impervious material, provided with tight-fitting cover suitable to protect the contents from flies, insects, rats and other animals, fitted with two handles by which it may be lifted, and which shall not have any inside structure, such as inside bands or reinforcing angles, or anything wi thin that would prevent the free discharge of the contents. 3 " . " , . Such "receptacle" may also be a waterproof bag liner, which can be safely and securely closed, and which is a type approved by the collector and the city. J. Hazardous Waste: the words "hazardous waste" shall be defined as hazardous under the Resource Conservation and Recovery Act, 42 u.s.c. 91002, as amended, or regulated as toxic under the Toxic Substances control Act, 15 U.S.C. 92601, as amended, or under regulations promulgated thereunder or defined as hazardous under the Florida Administrative Code Chapter 17-730 or any other applicable state or local law or regulation. K. Litter: means any solid waste identified as garbage, can, bottle, box, container, paper, tobacco product, tire, appliance; mechanical equipment or part, construction or demolition material, tool, machinery, wood, motor vehicle or motor vehicle part, vessel, aircraft, farm machinery or equipment, sludge from a waste treatment facility, water supply treatment plant, or air pollution control facility, or substance in any form resulting from domestic, industrial, commercial, mining agricultural or governmental operations. L. Residential: the word "residential" shall mean and include all "residential customers," consisting of single family homes, mUlti-family units, individual mobile homes and other living units. MUlti-family units and mobile home parks with centralized collection facilities, i.e., dumpsters, etc., and collection containers in excess of three (3) cubic yards are considered commercial service and not covered under this 4 '" , .0" 1 . Agreement. M. Residential Improved Real property: means all improved real property used for either a multifamily residence, or a single family residence, including trailer parks. N. single-Family Residence: means any building or structure designed or constructed for and capable of use as a residence for one family regardless of the type of structure. Such term includes a mobile home or trailer erected on a parcel of property owned and offered for sale under the condominium concept of ownership or on a separate parcel of property not included within the definition of trailer park. o. Solid waste: the words "solid waste" shall be a general term which includes the specific terms garbage, trash, and household junk, but which does not include hazardous waste, industrial or special waste. P. Trash: accumulation of lawn, grass, or shrubbery cuttings, or clippings and dry leaf rakings, palm fronds, small tree branches, (shall not exceed four (4) feet in length and four (4) inches diameter), bushes, or shrubs, green leaf cuttings, coconuts, fruits, or other matter usually created as refuse in the care of lawns and yards. Q. white Goods: means any inoperative and discarded refrigerators, ranges, washers, water heaters, and other similar domestic and commercial appliances. 5 .' ., '. , ' Section 3. TERM. The term of this franchise shall be for a period of three (3) years from the effective date. Section 4. MANDATORY SERVICE. Each residential customer within the city shall be provided with solid waste pick-up and removal services. The residential customer may avail themselves of the available service if desired. Industrial waste and special waste accounts shall be serviced only upon the execution of individual agreements between collector and the customer. The collector shall obtain title to conforming solid waste at the time it is collected. Section 5. DESCRIPTION OF SERVICES. 5.1 Contractor shall provide exclusive residential solid waste collection services within the City limits of the city of Sebastian. The contract must include all specified services; no partial or split service will be permitted. The contractor will be responsible for both the billing and collection of solid waste fees and has the right to discontinue services to customers for non-payment. 5.2 It is the responsibility of the contractor to become familiar with and to determine the nature and conditions affecting the collection and disposal of residential solid waste in the city of Sebastian. The contractor is responsible for determining the impact and complying with the Florida Solid Waste Management Act. 5.3 The contractor shall provide at his/her own expense, all labor, insurance, supervision, machinery and equipment, plant 6 building, trucks and any other tools, equipment, accessories and things necessary to maintain the standard of collections and disposal set forth herein. 5.4 The contractor shall conduct his/her work in such a manner as to avoid damage to adjacent private or public property and shall operate with due care in the vicinity of such utilities, and shall immediately repair or have repaired, at no additional cost to the owner, any breakage or damage caused by its operation. The contractor shall immediately notify the Public Works Director of such damage and shall advise of corrective action taken or to be taken. 5.5 The contractor shall not litter or cause any spoilage to occur upon the premises or the rights-of-way wherein the collection shall occur. The contractor may refuse to collect any solid waste that has not been placed in a garbage can or receptacle as provided herein, and shall provide the proper notification to the property owner specifying corrective action. During hauling, all solid waste shall be contained, tied, or enclosed so that leaking, spilling, and blowing is prevented. In the event of any spillage caused by the contractor, the contractor shall promptly clean up all spillage. 5.6 All solid waste shall be hauled to those sites or facilities maintained by the county, or other approved facilities within Indian River County. 5.7 The additional quantity of refuse generated by the influx of seasonal visitors and residents will not be a 7 , .' justification for the contractor to fail to maintain the required collection schedules, routes and levels of services. 5.8 This Franchise Agreement does not create a mandatory trash collection service for all city residents. section 6. RESIDENTIAL COLLECTION SERVICE. 6.1 The contractor shall have the exclusive right to collect and dispose of all solid waste, except infectious waste, hazardous waste, biohazardous waste, biological waste and sludge, from all Residential Customers. Residential Customers consist of single family homes, mUlti-family units, individual mobile homes and other living units. MUlti-family units and Mobile Home Parks with centralized collection facilities, i.e., dumpsters, etc., and collection containers in excess of three (3) cubic yards are considered commercial service and not covered under this Agreement. 6.2 The contractor shall collect solid waste from places of residence within the contract collection area at least two (2) times per week, with collections at least three (3) days apart. In addition to the solid waste collection, yard trash pickups will be made on one specified and published day per week. All yard trash must be bundled or in reusable containers. Grass clippings and small branches, etc., must be in biodegradable paper bags or other reusable containers. Yard trash contained in plastic bags will not be picked up. Yard trash must be separated from all other refuse. Household furniture need not be containerized and will be picked up with regular trash collection service. 8 " . . ' , .' Household appliances will be picked up at no additional charge on a one week on call basis and must be recycled at the appropriate locations. 6.3 Collection shall begin no earlier than 7:00 a.m., and shall cease no later than 6:00 p.m., Monday through Friday. In the case of an emergency, collection may be permitted at times not allowed by this paragraph, provided the contractor has received prior approval from the city Manager or his/her designee, to be later evidenced by a written memorandum confirming the approval. No collection shall occur on Sundays or holidays except in a time of emergency. Special pickups may be requested by customers at additional cost which shall be billed by the contractor. 6.4 Collections of residential waste shall be at curbside or right-of-way. In the event an appropriate location cannot be agreed upon, the City Manager shall designate the location. Any costs associated with identification of contractor's customers is to be borne solely by the contractor. Such identification may be in a form of stickers or other medium affixed to the trash receptacles, etc., or other form of identification but not to exceed 5" X 7" in size. 6.5 The contractor shall be required to pick up all residential refuse which has been properly prepared and stored for collection. All garbage, ashes, and rubbish shall be placed in a garbage can not larger than 35 gallons, or in such other approved receptacle and shall be placed at curbside or at such other single collection points as may be agreed upon by the 9 .I. f contractor and the customer. 6.6 The contractor shall make collections with a minimum of noise and disturbance to the householder. Any garbage or trash spilled by the contractor shall be picked up immediately. Garbage cans or receptacles shall be handled carefully by the contractor, shall not be bent or otherwise abused, and shall be thoroughly emptied and then left at the proper point of collection. 6.7 The contractor shall collect trash from normal maintenance of vacant lots that are within the City in the same manner as the collection from residences. It will not be the responsibility of the Contractor to remove trash resulting from clearing property for building purposes. If it is the practice of the area residents to place their yard trash or solid waste in the right-of-way of a vacant lot, that waste shall also be collected in the same manner as the collection from residences. Section 7. SCHEDULES, ROUTES, STORMS AND HOLIDAYS. 7.1 The contractor shall provide the City with schedules for all collection routes and keep such information current at all times. The city Manager shall approve all collection routes. If any change in the collection routes occurs, then the city shall be immediately notified in writing. The City Manager shall approve all permanent changes in routes or schedules. Upon approval of the routes by the city Manager, the contractor shall publish in a newspaper of general circulation in Indian River County at least seven (7) days prior to the effective date of such route or schedule changes. The cost of publication shall be borne solely 10 , .' . . by the contractor. In addition the contractor shall be responsible for advertising all route and collection information in a newspaper of general circulation in Indian River county at least twice per year, on or about the 1st of April and the 1st of October of each year, the cost of which is to be borne solely by the contractor. 7.2 In case of a storm or hurricane, the city Manager or his/her designee may grant the contractor reasonable variance from regular schedules and routes. As soon as practicable after such storm, the contractor shall advise the city Manager and the customer of the estimated time required before regular schedules and routes can be resumed. In the case of a storm where it is necessary for the contractor and the city to acquire additional equipment and to hire extra crews to clean the City of debris and refuse resulting from the storm, the contractor shall be required to work with the city in all possible ways for the efficient and rapid cleanup of the City. The contractor shall receive extra compensation above the Contract Agreement for additional labor, overtime, and cost of rental equipment, provided he has first secured prior written authorization from the city Manager or his/her designee. The total cost for such service shall be based on rates jointly agreed to in advance by the city Manager or his/her designee and the contractor. in the event of such storm or hurricane emergency, the City reserves the right to assign route or pick-up priorities as deemed necessary by the city Manager. 11 , " 7.3 The city agrees to exempt residential collection from the normal collection schedule on the following holidays: New Year's Day, Memorial Day, Independence Day, Labor Day, Veteran's Day, Thanksgiving Day and Christmas Day. These holidays will be indicated in the initial pUblic notice to customers in a local newspaper of general circulation. The contractor will be excused from trash pickup these days and will not be required to make up the lost pickup day. The Contractor will reduce the customer's monthly bill for any lost pick up days which a customer may suffer. 7.4 The contractor shall have on hand at all times and in good working order such equipment as shall permit the contractor to adequately and efficiently perform its contractual duties. The equipment shall be of the enclosed loader packer type and all equipment shall be kept in good repair, appearance, and in a sanitary and clean condition at all times. section 8. OTHER PROVISIONS. 8.1 The contractor shall comply with all applicable City, state and Federal laws as to wages, hours, and all other applicable laws relating to the employment or protection of employees, now and hereafter in effect. 8.2 The contractor is required and hereby agrees by execution of this Franchise Agreement to pay all employees not less than the federal minimum wage and to abide by other requirements as established by the Congress of the United states in the Fair Labor Standard Act as amended and changed from time to 12 . , time. 8.3 No person shall be denied employment by the contractor for reasons of race, sex, national origin, creed, age, physical handicap, or religion. 8.4 There will be no changes in rates for the three year term of this contract period, unless city council consents in writing to such change. Adjustments to rates after the first year will be considered only if there is clear evidence of an increase in the costs of property taxes, disposal charges or fuel charges. All changes in rates supported by fuel charges will be limited to charges in a nationally recognized fuel index with 1994 used as a base period. Reductions in costs must be reflected in any rate changes. All petitions for rate changes must be approved in advance by the city council and evidenced by documents reviewed and approved by the City Manager. All required financial information submitted to the city must conform to generally accepted accounting principals (GAAP) and prepared by an independent certified public accountant. The contractor at its expense must furnish rate information when seeking an increase which has been audited by an independent certified pUblic account. 8.5 The contractor shall pay the city of Sebastian a gross receipts franchise fee, according to the schedule set forth in section 9 of this Ordinance, and agrees all contractor's records will be available for inspection with reasonable notice and during regular business hours, to support the franchise fee. This franchise fee will be six percent (6%) of the contractor's gross 13 receipts. The approved rate as set forth in section lO of the Ordinance shall reflect the total rate to the customer without adjustment for the franchise fee. 8.6 The contractor shall perform a service of high quality and keep the number of legitimate complaints to a minimum. In order that the city may be informed of the quality of service, the contractor agrees to maintain a record of all complaints for inspection by the City. The contractor agrees to furnish a monthly report listing the name and address of each person complaining, the nature of the complaint, and the disposition of each complaint. All complaints whether received in person, by mail or telephone, shall be recorded in triplicate, one (1) copy to go to the city and two (2) copies to be retained by the contractor. Complaints received before 12:00 noon each day shall be serviced by 5:00 P.M. that day. Complaints received after 12: 00 noon shall be serviced before 12: 00 noon the following calendar day. For each month in which the number of legitimate complaints reaches ten (10) or more for any cause the city shall be entitled to claim liquidated damages of Ten Dollars ($10.00) per complaint. Each complaint shall be considered legitimate unless satisfactory disposition of the complaint is furnished. The decision of the city Manager as to the legitimacy of any complaint shall be considered final. The failure of the contractor to resolve customer complaints without valid cause is considered a material breach of this Franchise Agreement and may subject the contractor to the cancellation of the Agreement. 14 8.7 Prior to the effective date of this agreement, the contractor shall obtain, at his/her own expense, all permits and licenses required by law or Ordinance and maintain the same in full force and effect. 8.8 Upon the City's acceptance of this Franchise Agreement, the contractor shall notify the general public and all residential service customers that the contractor will be providing exclusive trash pickup services within the city of Sebastian. Contractor shall supply necessary information to begin service to prospective customers, and shall publish the days of pickup, holidays when no service will be provided, general rate structure, and general information to provide a smooth transition from the current service to the new exclusive service. Such notice shall be in a local newspaper of general circulation in Indian River County, twice prior to beginning services, and in two consecutive months after service begins. 8.9 A. The contractor shall furnish to the City evidence of insurance coverage for all insurance required under the provisions of this section of this Agreement immediately upon the execution of this Agreement by the parties. Failure of the contractor to maintain said insurance at any time during the term of this Agreement by the contractor, shall be construed to be a material breach of the Agreement by the contractor. B. The contractor shall provide and maintain during the term of this Agreement such worker's compensation insurance as 15 , . required by law for all of its employees employed in connection with the performance of the work provided for under this Agreement. C. The contractor agrees to indemnify and save harmless the city from any and all liability, claims, damages, losses, expenses, proceedings and causes of action of every kind and nature arising out of or connected with the performance of his duties provided for under this Agreement. The contractor further agrees to, at its own expense, defend any and all actions, suits or proceedings which may be brought against the City in connection with the performance of its duties under this Agreement and to satisfy, pay and discharge any and all judgments that may be entered against the City in any such action or proceedings. The contractor agrees to provide and maintain at all times during the term of this Agreement, without cost or expense to the City, policies of insurance generally known as "public liability policies," insuring the contractor against any and all claims, demands or causes of action whatsoever for injuries received or damage to property relating to the performance of the duties of the contractor under the terms and provisions of this Agreement. Such policies of insurance shall insure the contractor in an amount not less than Three Hundred Thousand Dollars ($300,000.00) to cover any and all claims connected with any accident or occurrence that may arise or be claimed to have arisen against the contractor. The contractor shall also obtain property damage insurance insuring the contractor in an amount not less than Three 16 . , Hundred Thousand Dollars ($300,000.00) to cover the claims of any person or persons from a single or specific act that results in alleged damage to property. The contractor agrees to provide and maintain at all times under this Agreement motor vehicle pUblic liability insurance in an amount of not less than Three Hundred Thousand Dollars ($300,000.00) to cover the claims of one person, and Three Hundred Thousand Dollars ($300,000.00) per incident. said insurance policies shall provide that the city shall be entitled to thirty (30) days written notice of any changes or cancellations in said policies. A certificate of insurance indicating that the contractor has coverage in accordance with the requirements of this Agreement shall be furnished by the contractor to the City Manager within ten (10) days from the date of execution of this Agreement. 8.10 The company will maintain and operate its residential trash collection service in accordance with the laws of the state of Florida and the rules, regulations, and Franchise Ordinances as are or may be set forth by the Council from time to time. Failure of the contractor to promptly and faithfully keep, perform, and abide by each and all of the terms and conditions of the franchise and rules and regulations as set forth by Council shall constitute a violation of the Franchise Agreement and may be terminated by the City as specified in the Franchise Agreement. 8.11 Access to Company Records. The City shall have access at all reasonable hours to all of the Company's contracts, accounting, financial, statistical, consumer, and service records 17 , . , , , relating to the operation of the Company and to all other records required to be kept by the Company, and the Company shall file such accounting reports and data with the City when required. 8.12 The contractor may be held in default of the Agreement in the event the contractor: (1) Fails to perform the collections required by this Agreement and appears, to the City Manager, to have abandoned the work, or to be unable to resume performance within forty-eight (48) hours; or (2) Has failed on three (3) or more occasions of three (3) working days duration in any year, to perform the collections required by the Agreement; or (3) Repeatedly neglects, fails, or refuses to comply with any of the material terms of the Agreement, after having received notice of its obligation to so comply. Proceedings under this section are in addition to the remedies described in section 8.4 for the breach of their respective requirements. To initiate proceedings under this section, the city Manager shall first request the City Council to declare the contractor in default. within three (3) working days after its receipt of such a request, the city shall give notice to the contractor, its surety, and the City Manager of the location, time, and date within the following seven calendar days of a public hearing at which the contractor may show cause why it should not be declared in 18 , , defaul t. In the event the contractor fails to show, to the satisfaction of the City, cause why the contractor should not be declared to be in default, the city Council shall make such declaration. In declaring the contractor to have defaulted on the Agreement, the City may also order the contractor to discontinue further performance of work under the contract and transfer the obligation to perform such work from the contractor to the Surety on the contractor's performance bond and take any other action it deems advisable. 8.13 PERFORMANCE BOND. The contractor shall provide a contractor's performance and payment bond in the amount of Two Hundred Fifty Thousand Dollars ($250,000.00) with a surety company acceptable to the City as surety, which bond shall be conditioned that such contractor shall faithfully perform all of the provisions of this Agreement and pay all laborers, mechanics, subcontractors, materialmen, and all persons who shall supply such contractor or subcontractors with provisions and supplies for the performance of this Agreement; and shall perform work or services, or furnish material to any subcontractor, shall have the same right under the provisions of such bond as if such works, services or material was furnished to the original contractor, and shall contain appropriate recitations; (1) that is issued pursuant to this section of this Agreement; and (2) that any condition or limitation in such bond which is in conflict with the conditions and requirements of this 19 , ' , , . section is void. In lieu of the Performance Bond required herein the contractor may enter into an Agreement with the city, drafted to the satisfaction and approval of the city Attorney and the city Manager, that the contractor shall make a deposit to an escrow account in a bank approved by the city, in cash or in negotiable government securities equal at all times in market value to the face amount of the bonds. Such Agreement shall provide that the cash or negotiable securities may be claimed by the city Manager, under the same circumstances as provided for use of the Performance Bond. The bond or the cash or security deposit shall remain in effect for the initial term of the Agreement, and for the renewal period. 8.14 Upon receipt of a notice that the work has been transferred to the surety with termination of the Agreement, the surety shall take possession of all materials and equipment described in the most recent inventory submitted to the city Manager pursuant to Section 8.16 of the Agreement, for the purpose of completing the work under the Agreement; employ, by contract or otherwise, any person and all persons needed to perform the work; and provide materials and equipment required therefore. Such employment shall not relieve the surety of its obligations under the Agreement and the bond. If there is a transfer to the surety, payments shall be made to the surety or its agent for all work performed under the Agreement subsequent to such transfer, in amounts equal to those that would have been made to the contractor 20 , . ~ " '. , . , had it performed in the manner and to the extent of the surety's performance and the contractor shall have no claim upon the same. In the event the surety on the contractor's performance bond fails to assume or continue performances within forty-eight (48) hours after its receipt of notice that the work has been transferred to such surety, the contractor shall lease, sublease or otherwise license the City to use all, or whatever portion is desired by the city, of the materials and equipment described on the most recent inventory submitted to the city Manager pursuant to Section 8.16 of the Agreement, for collection purposes for a period of up to six (6) months following the date of the declaration of default by the city Council without requiring the City to execute any other document whatsoever to accomplish such lease, sublease or license and without requiring the city to post any bond, pledge, deposit or other security for such equipment and materials, but upon the condition that the City pay for the equipment and materials actually used for such collection a market rental that is not greater than the monthly lease, in the event such property is leased by the contractor; the periodic installment in the event such property is being acquired under a purchase contract; or the periodic interest and principal, in the event such property is being acquired under a financing arrangement; provided that under no circumstances shall the city be liable during its use of such property for any arrearages, balloon payment, accrued interest, accelerated charges in the event of a default or other extraordinary payment; nor shall the 21 satisfaction thereof be a condition of the city's interim use of such property; provided further that such lease I sublease or license shall be suspended on the date the surety on the contractor's bond or its agent accepts the transfer of work under the Agreement. In the event the city secures the performance of work under the Agreement at a lesser cost than would have been payable to the contractor had the contractor performed the same, the city shall retain such difference; but in the event such cost to the city is greater, the contractor and its surety shall be liable for and pay the amount of such excess to the city. All payments due the contractor at the time of default, less amounts due the City from the contractor; shall be applied by the city against damages suffered and expense incurred by the City by reason of such default; any excess shall be paid to the contractor except as provided in the Agreement. Notwithstanding the provisions of this section, a delay or interruption in the performance of all or any part of the Agreement resulting from changes ordered in the work, from labor disputes, or from other causes beyond the contractor's control, shall not be deemed to be a default and the rights and remedies of the City provided for herein shall be applicable. 8.15 If the contractor fails to be at work at the time specified, persistently disregards laws, ordinances or instructions of the city Manager, or repeatedly fails to provide sufficient reserve workmen and equipment to insure the proper 22 completion of the residential work by 6:00 P.M. each day, or performs the work unsatisfactorily or fails to collect refuse on a regular schedule, or discontinues the prosecution of the work without authorization by the city, or becomes insolvent or declares bankruptcy or commits any act of bankruptcy or insolvency, or allows final jUdgment rising out of performance of the Agreement to stand against it unsatisfied for a period of ten (10) days, the City will consider such action a breach of Agreement and give notice, in writing by registered mail, to the contractor and its surety of such breach. If the contractor or its surety, within ten (10) days after such notices, does not proceed to take over and complete the work under the orders of the city Manager, then the City Manager, because of the breach of Agreement, shall have full power and authority, without violating the Agreement or bond to take over the completion of said Agreement according to the terms and provisions thereof, or to use such other methods as in his opinion may be required for the completion of said Agreement in an acceptable manner. Furthermore, after the issuance by the City of its notice of intention to terminate the Agreement, the contractor shall not remove from its normal, daily workplace in the city any of the equipment listed on the inventory approved by the city Manager in accordance with Section 8.16 of this Agreement until arrangements to continue the work, by Agreement, by surety, or otherwise, have been completed by the city. For all costs, charges and damages incurred by the city, ?.... ~J . ' , . . together with the costs of completing the work, the contractor and its surety shall be liable, and such costs may be deducted form any monies due or which may become due the contractor. Should the city incur any attorney's fees to seek enforcement of any of the provisions in this Agreement and prevails, the contractor and its surety shall be liable for those fees, and such expense may be deducted from any monies due or which may become due to the contractor. In case the expense incurred by the City is less than the sum which would have been payable under the Agreement if it had been completed by the contractor, then the contractor and its surety shall be liable and shall pay the City the amount of said excess. 8.16 A. The contractor shall provide sufficient equipment to maintain regular schedules of collection and to promptly and efficiently perform its duties under this Agreement. The contractor shall provide to the City Manager, prior to the start of work under this Agreement, an inventory showing each type of vehicle (type, capacity, approximate age) used for performing work under this Agreement. The City Manager shall have the authority to inspect the vehicles on such inventory list and reject an unsuitable replacement. The contractor shall attach to such inventory a copy of each contract, lease, or other document that encumbers or limits the contractor's interests in such property. The contractor may change equipment from time to time and shall revise the inventory and the attachments thereto, accordingly; 24 however, in no event shall the number of vehicles be less than the number of vehicles shown on the inventory provided prior to start of work under this Agreement. The contractor shall maintain a vehicular fleet during the performance of work under this Agreement at least equal to that described in the inventory. The contractor shall describe on an attachment to the required inventory the service yards or contracts to be used in maintaining vehicles and equipment. The contractor shall give notice to the City Manager as to any material changes that might affect the performance of work under this Agreement immediately after becoming aware of the same and shall make suitable remedial arrangements when needed. B. Equipment is to be maintained in a reasonably clean and safe working condition and be painted uniformly according to standards maintained from time to time by the City Manager. Equipment shall contain the name of the contractor and the truck number or code established by the city Manager printed in letters not less than three (3) inches high on each side of the vehicles. A record shall be kept of the vehicle to which each number is assigned. No advertising shall be permitted on the vehicles. Each vehicle used for the collection of solid waste shall have a fully enclosed, metal top and shall be watertight to a depth of not less than (12) inches and shall contain metal sides, and use pneumatic tires. However, the city Manager shall have the authority to waive the requirement of a fully enclosed, metal top in the event of an emergency. As an alternative to a fully 25 enclosed metal top for use in garden trash collection, said vehicle may be equipped with a cover which may be a net with mesh not greater than one and one-half (1 1/2) inches, .or tarpaulin, and such cover shall be kept in good mechanical order and used to cover the load in traveling to, from and during the loading operation or when parked if the contents are likely to be scattered if not covered. Vehicles shall not be overloaded so as to scatter solid waste, but when solid waste is scattered from a contractor's vehicle for any reason, it shall be the responsibility of the contractor to immediately pick up such scattered solid waste. Each truck shall be equipped at all times with a shovel and a broom for the collection of spilled refuse. Vehicles are to be washed thoroughly on the inside and sanitized with a suitable disinfectant and deodorant at such times as established by the City Manager from time to time in order to be maintained in a clean and sanitary condition and all vehicles are to be washed on the outside at least weekly. The contractor's vehicles are not to interfere unduly with vehicular or pedestrian traffic and vehicles are not to be left standing on streets and alleys unattended. 8.17 The following acts or omissions shall be considered a breach of the Agreement and for the purpose of computing damages under the provisions of this Section, it is agreed that the City Manager may obtain from the contractor the following amounts as liquidated damages. 26 , , .. '.' 1. Collection of residential solid waste prior to 7:00 A.M. or after 6:00 P.M. $5.00 each case. 2. Legitimate Complaints - Section 8.6 (Over ten (10) per month) . $10.00 each additional legitimate complaint. [See Section 8.6] 3. Failure to clean vehicles and maintain in good working condition. $24.00 each vehicle [See section 8.16] 4. Failure to keep vehicles closed or covered. $25.00 each vehicle. [See Section 8.16] 5. Loaded vehicles left standing on the street unnecessarily. $25.00 each vehicle. [See Section 8.16] 6. Failure to maintain schedule established and given as a requirement of this Agreement, in writing to the public and the City. $25.00 per violation of route schedule. [See Section 7.1] 7. Failure to respond to complaints as required by this agreement. [See Section 8.6] 8.18 No assignment or subletting of all or any portion of the work under this Agreement shall be permitted except with the written approval of the City. The contractor alone, subject to 27 , ' . - the provisions of its performance bond, shall be held responsible for the full and faithful performance of this Agreement. 8.19 The contractor shall provide, at its own expense, a suitable office located within the city of Sebastian and shall maintain office hours from 8:00 A.M. to 5:00 P.M., Monday through Friday. In addition, the contractor shall designate a representative for emergency and complaint calls during the entire week, excluding the hours 5:00 P.M. Saturday through 8:00 A.M. Monday. section 9. PAYMENTS TO CITY. Beginning with the effective date of this Agreement, pursuant to Section 8.5 of this Ordinance, the contractor shall pay to the city, within thirty (30) days of each preceding billing period, an amount equal to six percent (6%) of the contractor's gross receipts for the preceding billing period. Failure to remit the required payment to the city shall be cause for termination of this franchise. Section 10. RATE. The rates charged by the contractor for the services hereunder shall be fair and reasonable and designed to meet all necessary costs of the service, including a fair, greater return on the net valuation of its properties devoted under efficient and economical management. The company agrees that it shall be subject to all authority now or hereafter possessed by the city or any other regulatory body having competent jurisdiction to affix, adjust, reasonable and compensatory rates. When this franchise 28 . ' . , " .," takes effect, the company shall have authority to charge and collect, not to exceed the following schedule of rates which shall remain effective until changed or modified as herein provided, to wit: Monthly Garbage Rates: Monthly garbage rates shall be $~ per month, per residential customer. section 11. FORFEITURE. The failure on the part of the grantee to comply in any substantial respect with any of the provisions of this Ordinance, shall be grounds for forfeiture of this grant. Section 12. CONFLICT. All Ordinances or parts of Ordinances in conflict herewith are hereby repealed. Section 13. CODIFICATION. It is the intention of the City Council of the city of Sebastian, Indian River County, Florida, and it is hereby provided that the provisions of this Ordinance shall become and be made a part of the Code of Ordinances of the city of Sebastian, Florida; that the sections of this Ordinance may be renumbered or relettered to accomplish such intention; and the word "ordinance" may be changed to "Section," "Article" or other appropriate designations. section 14. SEVERABILITY. In the event a court of competent jurisdiction shall hold or determine that any part of this Ordinance shall not be affected and it shall be presumed that the City Council of the 29 ~ .,. city of Sebastian did not intend to enact such invalid or unconstitutional provision. It shall further be assumed that the city Council would have enacted the remainder of this Ordinance without said invalid and unconstitutional provision, thereby causing said remainder to remain in full force and effect. section 15. ATTORNEYS' FEES. Should it become necessary for the city to initiate legal or other proceedings to enforce the terms of this ordinance, the prevailing party shall be entitled to recovery of reasonable costs and attorneys' fees. section 16. EFFECTIVE DATE. This Ordinance shall become effective on July 1, 1995. The contractor, by and through its authorized agent, hereby acknowledges that it has read all terms, provisions, and conditions as set forth herein. The undersigned further acknowledges that it is sophisticated in the matters set forth in this contract and has had full opportunity to review, and seek independent legal advice with regard to all matters set forth herein. Accordingly, the contractor hereby accepts and agrees to all terms set forth in this Agreement. By: AnU ~ iJ R & R corpor~ Systems Capital Sanitation D/B/A The .foregoi~ ~rd..i~.ce Counc1lmanI ~ by Councilman .. A J vote, the vote was as follows: was moved for adoption by The motion was seconded and, upon being put to a 30 tf' I ... ... . 't' . Mayor Arthur L. Firtion Vice-Mayor Carolyn Corum Councilmember Norma Damp councilmember Louise cartwright Councilmember Raymond Halloran The Mayor thereupon declared this adopted this /~ day of ~7tP./ t/ Ordinance duly passed and , 1995. CITY OF SEBASTIAN, FLORIDA ATTEST: I HEREBY CERTIFY that notice of public hearing on this ordinance was publ ished in the Vero Beach Press Journal as required by state statute, that one pUblic hear' g was held on this Ordinance at 7:00 p.m. on the .J:1t;L day of ' , 1995, and that following said public hearing t s Ordinance was asse by the City Council. I'F] . O'Halloran, CMC/AAE Approved as to Form and Content: ~.' .~~~~1t:~---