HomeMy WebLinkAboutResolution 2004-38 Appendix AAPPENDIX "A"
SOLID WASTE AGREEMENT
TABLE OF CONTENTS
Section Numbers & Heading_s Page Number
1 10 Recitals ................................. ..............................1
2.0 Definitions .............................. ..............................1
2.1 Authorized Representative ............ ............................... 1
2.2 Biohazardous Waste .......... ............................... 8 0 0 0 ... 1
2.3 Biological Waste .. ............................... 0 . 0 0 .......... 0 . . 2
2.4 Bulk Trash ......................... ..............................2
2.5 City ............................... ..............................2
2.6 City Council ........................ ..............................2
2.7 City Code or Code . . ................ ............................... 2
2.8 Collection and Disposal Service ...................................... 2
2.9 Collection Equipment ............... ............................... 2
2.10 Collection Vehicle .................. ............................... 2
2.11 Collection Regulations ............... ............................... 2
2.12 Commercial Service ................. ............................... 2
2.13 Commercial Trash .................. ............................... 3
2.14 Complaint .......................... ..............................3
2.15 Construction and Demolition Debris .... ............................... 3
2.16 Contract or Agreement ............... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
2.17 Contractor or Franchisee .................... . ....................... 4
2.18 CPI ............................... ..............................4
2.19 Customer .......................... ..............................4
2.24 Designated Facility .................. ............................... 4
2.21 Disposal Costs ....... . ................... . ........................ 4
2.22 Dispute ............................ ..............................4
2.23 Franchise .......................... ..............................4
2.24 Garbage ........................... ..............................4
2.25 Hazardous Waste ................... ............................... 4
2.26 Household Trash .................... ..............................5
2.27 Mechanical Container ............... ............................... 5
2.28 Multiple Dwelling Units ............. ............................... 5
2.29 Performance and Payment Bond or Letter of Credit ....................... 5
2.30 Recyclable Materials ................ ............................... 5
2.31 Recycling .......................... ..............................5
2.32 Recycling Container ................. ............................... 5
2.33 Refuse ............................ ..............................5
2.34 Refuse Container ...... . ............ ............................... 6
2.35 Rolloff Container ................... ............................... 6
2.36
Residential ......................... ..............................6
2.37
Residential Service .................. ...............................
6
2.38
Service Area ........................ ..............................6
2.39
Sludge ............................ ..............................6
2.40
Solid Waste ....................... ...............................
6
2.41
Special Waste ...................... ...............................
6
2.42
Transfer ........................... ..............................6
2.43
Vegetative Waste ................... ...............................
7
10 Grant
of Franchise ..................... ...............................
7
4.0 Scope
of Work .......................... ..............................7
4.1
General Requirements ......... 0 .. 0 0 0 . . . . . . . . . . . . . . . . . . . ......
0000..
7
A. Laws and Regulations ......... ...............................
7
B. Labor, Insurance, Equipment, etc. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. 7
C. Protection of Public /Private Property and Utilities ..................
8
D. Spillage ..................... ..............................8
E. Designated Facility ............ ...............................
8
F. Holidays ..................... ..............................8
G. Contractor's office ........... ...............................
8
H. Litter and Dangerous Animals ... ...............................
9
I. Hour and Days ............... ...............................
9
J. Tagging Solid Waste Improperly Containerized ....................
9
K. Customer Report; City Billing Database ..........................
9
L. Site Plan/Development Review . ...............................
10
4.2
Residential Service ................. ...............................
10
A. Frequency of Collection ....... ...............................
10
B. Point of Collection ........... ...............................
10
C. Containers and Preparation .... ...............................
10
1. Household Trash and Garbage ...........................
10
2. Recyclable Materials ... ...............................
10
3. Vegetative Waste ...... ...............................
11
4. Bulk Trash ........... ...............................
11
4.3
Commercial Service ................ ...............................
11
A. Frequency of Collection ....... ...............................
11
B. Point of Collection ........... ...............................
11
C. Containers and Preparation .... ...............................
12
1. Commercial Trash and Garbage .........................
12
2. Recyclable Materials ... ...............................
12
3. Vegetative Waste ...... ...............................
12
4.4
Multiple Dwelling Units ............ ...............................
12
A. Frequency of Collection ....... ...............................
13
B. Point of Collection ........... ...............................
13
C. Containers and Preparation .... ...............................
13
1. Household Trash and Garbage ...........................
13
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-iii-
2. Recyclable Materials ... ...............................
13
3. Vegetative Waste ...... ...............................
14
4. Bulk Trash ........... ...............................
14
4.5
City Controlled Property ...........................................
14
A. Frequency of Collection ............................... 0 ... 0 0 0
14
B. Point of Collection ........... ...............................
14
C. Containers and Preparation .... ...............................
14
1. Refuse ................ .............................14
2. Recyclable Materials ... ...............................
15
3. Vegetative Waste ...... ...............................
15
4. Bulk Trash ............. .............................15
4.5
Biohazardous, Biological, Hazardous, Sludge, and Special Waste ...........
15
4.7
Construction and Demolition Debris Service ...........................
15
A. Exclusive Right Limited ...... ...............................
15
B. Frequency of Collection .......................... 9 9 0 . 0 . . . . . . .
16
C. Point of Collection ........... ...............................
16
D. Containers and Preparation .... ...............................
16
4.8
Code Enforcement ................. ...............................
16
4.9
Automated Cart Program ............ ...............................
16
4.10
Tire Collection .................... ...............................
16
5.0 Rates
and Charges; Compensation to Contractor; Franchise Fee Billing ..
16
5.1
Rates; Compensation to Contractor ................... 0 0 0 . 0 ...........
16
A. Residential Service ........... ...............................
15
B. Commercial and Multiple Dwelling Service ......................
17
C. Commercial and Multiple Dwelling Vegetative Waste Service .......
17
D. optional Special Refuse Collection Service ......................
17
E. Commercial Rolloff Container Service ..........................
17
F. Code Enforcement ........... ...............................
17
Go '
Compactor Service ..........................................
17
H. optional Special Vegetative Waste Service .......................
17
I. Commercial Can and Multiple Dwelling Refuse Container ..........
18
5.2
Consumer Price Index Adjustment .... ...............................
18
5.3
Billing Customers by City ........... ...............................
19
5.4
Billing and Payment Procedure ....... ...............................
19
5.5
Franchise Fee ..................... ...............................
20
5.6
Contractor's Petition for a Rate Adjustment ............................
20
5.0 Schedules and Routes .................. ...............................
21
7.0 Collection Equipment and Vehicles ..... ...............................
21
7.1
Type and Amount .................. ...............................
21
7.2
Condition .......................... .............................21
7.3
overloading ........................ .............................22
7.4
Back -up Equipment ................ ...............................
22
8.0 Contractor's Personnel ................ ...............................
22
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-iv-
8.1
Contractor's Representative .......... ...............................
22
8.2
other Personnel ..................... .............................22
8.3
Conduct of Personnel ............... ...............................
22
8.4
Uniform Regulations ............... ...............................
23
8.5
Labor and Employment Laws ........ ...............................
23
8.6
Informing Personnel of Responsibilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
23
8.7
Driver's License ................... ...............................
23
8.8
Drug Free workplace ............... ...............................
23
9.0
Level of Service; Customer Complaints; Annual Evaluation by City ......
23
9.1
Level of Service ................... ...............................
23
9.2
Customer Complaints .............. ...............................
24
9.3
Annual Evaluation Procedure ........ ...............................
24
10.0
Authorized Representative's Interpretation and Decision ...... 0 . 0 0 0 . . . .
25
11.0
other
City Permits .................... ...............................
26
12.0
Performance Bond; Alternatives .0009 ... . . . . . . . . . 99 . . . . . 00 . . . . . . . . . . . . .
26
12.1
Performance Bond ................. ...............................
26
12.2
Conditions ......................... .............................26
12.3
Reduction of Bond/Letter of Credit .... ...............................
27
12.4
Use of Performance Bond and Letter of Credit ..........................
27
12.5
Replenishment of Letter of Credit and Performance Bond .................
27
12.6
Non -- renewal, Alteration, or Cancellation of Ltr. of Credit or Perf. Bond ......
28
12.7
Inflation ........................... .............................28
12.8
Default . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . • . . . . . . . . . . .
28
12.9
Right to Require Replacement of Bonds or Letter of Credit ................
28
13.0
Transfer
of ownership or Control 00.0.0 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
28
13.1
Transfer of Franchise ............... ...............................
28
13.2
Transfer Threshold ................. ...............................
29
13.3
City Approval ....................... .............................29
13.4
Signatory Requirement ............. ...............................
29
14.0
Forfeiture or Termination ..... ............................... 0 .. 0 . 0 0 . .
29
14.1
Grounds for Revocation .............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
14.2
Effect of Circumstances Beyond Control of Franchisee ...................
30
14.3
Effect of Pending Litigation ......... 6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
30
14.4
Procedure Prior to Revocation ........ ...............................
30
15.0
Regulatory Authority .................. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
31
15.1
Authority .......................... .............................31
15.2
Right of Inspection ................. ...............................
31
15.3
City Regulation ................... ...............................
31
15.4
City Health and Sanitation Regulations . ...............................
32
16.0
Liability and Insurance .......... ............................... V .....
32
16.1
Certificate of Insurance ............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
32
16.2
No Liability Limit ................. ...............................
32
16.3
Endorsement ....................... .............................32
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_V_
16.4 State Institution ..................................................
33
16.5 Named Insured .................... ...............................
33
16.6 Changes in Policy Limits ............ ...............................
33
1.6.7 Commercial General Liability Insurance ...............................
33
16.8 Automobile Liability Insurance ....... ...............................
33
16.9 Worker's Compensation ............ ...............................
34
17.0
Indemnification and Hold Harmless 6000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
34
18.0
Interference with Persons, Public and Private Property, and Utilities .....
34
19.0
Books and Records Available to City .... . . . . . . . . . . . . . . . . . . . . a* . . . . . . . . .
35
19.1 Records ........................... .............................35
19.2 Review ............................ .............................35
19.3 Reports to be Filed ................. ...............................
35
19.4 Mandatory Records ................ ...............................
36
19.5 Quarterly Report to City Council ...... ...............................
36
19.6 Other Records ...................... .............................36
20.0
Preferential or Discriminatory Practices Prohibited . . . . . . . . . . . . . . . . . . . . .
36
21.0
Storms; Hurricanes; Natural Disasters; Calamities .... 0 0 . 4 . . 0 . . . . . . . . . . .
36
22.0
Miscellaneous Provisions ............... ...............................
37
22.1 Independent Contractor ............. ...............................
37
22.2 No Joint Venture .................. ...............................
38
22.3 Entire Agreement ..............0000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
38
22.4 Notices ............................ .............................38
22.5 Captions ........................... .............................38
22.6 Severability ........................ .............................39
22.7 City's Rights of inspection ........... ...............................
39
22.8 Attorney's Fees ................... ...............................
39
22.9 Counterparts ...................... ...............................
39
22.10 Waiver ............................ .............................39
22.11 Jurisdiction; Venue ................ ...............................
39
23.0
Effective Date; Term .................. ...............................
39
23.1 Effective Date .................... ...............................
39
23.2 Term .............................. .............................40
23.3 Renewal ........................... .............................40
24.0
Disruption in Collection and Disposal Services . . . . . . . . . . . . . . . . . . . . . . . . . .
40
25.0
Liquidated Damages .0000 .............. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
40
25.1 Legitimate Complaints .............. ...............................
41
25.2 Spillage ........................... .............................41
25.3 Collection Vehicles and Containers .... ...............................
41
25.4 Unattended Collection Vehicles ...... ...............................
41
25.5 Collection Schedules ............... ...............................
41
25.6 Failure to Keep Collection Vehicles Closed or Covered ...................
41
25.7 Failure to Have Back -Up Collection Equipment When Needed .............
41
26.0
Contractor's Representative ...00.09 .... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
42
27.0
Time of the Essence .................... ...............................
42
28.0
Sovereign Immunity .............. ..... . . . . . . . . . . . . . . 90 go . to . . . . . . . . . .42
_V_
29.0 Franchise Costs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
30.0 Title to Refuse .......................... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
31.0 Public Awareness Campaign ............. ............................... 42
31.1 General.......... .................. .............................42
31.2 Automated Cart Program ............ ............................... 43
32.0 Additional Recycling Compensation to City . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
SOLID WASTE AGREEMENT
THIS AGREEMENT made and entered into this 1 st day of October, 2004, by and between
the CITY OF CAPE CANAVERAL, FLORIDA, a Florida Municipal Corporation, located at 105
Polk Avenue, Cape Canaveral, Florida 32920 (hereinafter "City ") and WASTE MANAGEMENT,
INC., OF FLORIDA, a Florida Corporation, located at 7382 Talona Drive, W. Melbourne, Florida
32904 (hereinafter "Contractor ").
_i_
WrTNES S ETH:
WHEREAS, there is an immediate and continuing need for the collection and disposal of
bulk trash, refuse, vegetative waste, and recyclable materials from residents, businesses, and other
entities within the municipal boundaries of the City of Cape Canaveral; and
WHEREAS, Contractor has the necessary equipment, personnel, and experience to properly
perform the collection and disposal services described herein; and
WHEREAS, it appears to be in the best interests of the public health, safety, and welfare of
the citizens of the City of Cape Canaveral and its resident businesses and entities to award a
franchise to Contractor to provide for the collection and disposal of bulk trash, refuse, vegetative
waste, and recyclable materials upon the terms and conditions more particularly described herein.
NOW THEREFORE, in consideration of the mutual covenants, agreements, and
consideration contained herein, the City and Contractor agree as hereinafter set forth:
1.0 Recitals The foregoing recitals are true and accurate and are incorporated herein by
reference.
2.0 Definitions The following words and phrases contained in this Agreement shall have the
meaning ascribed in this section unless the context clearly indicates otherwise:
2.1 Authorized Representative: Shall mean the City Manager or his designee who shall
represent the City in the administration and supervision of the Agreement. The City
Manager's designee, if any, shall be appointed in writing, and said appointment may
be for the administration and supervision of this Agreement, in whole or in part.
2.2 Biohazardous Waste: Shall mean any solid waste or liquid waste which may
present a threat of infection or disease to humans or may reasonably be suspected of
harboring pathogenic organisms. The term includes, but is not limited to, non - liquid
human tissue and body parts; laboratory and veterinary waste which contain human -
disease-- causing agents; used or contaminated disposable sharps (e.g. hypodermic
needles, syringes, broken glass, and scalpel blades), human blood, and human blood
products and body fluids; and other materials which in the opinion of the Department
of Health and Rehabilitative Services represent a significant risk of infection to
persons outside the generating facility.
2.3 Biological Waste: Shall mean solid waste that cause or has the capability of causing
disease or infection and includes, but is not limited to, Biohazardous waste, diseased
or dead animals, and other waste capable of transmitting pathogens to humans or
Solid Waste Agreement
City of Cape Canaveral 1 Waste Management, Inc.
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animals.
2.4 Bulk Trash: Shall mean any non - vegetative item which cannot be containerized,
bagged or bundled; including, but not limited to, inoperative and discarded
refrigerators, ranges, toilets, washers, dryers, bath tubs, water heaters, sinks, bicycles,
and other similar appliances, household goods, and furniture and shall not be
commingled with vegetative waste.
2.5 City: Shall mean the City of Cape Canaveral, a Florida Municipal Corporation
located in Brevard County, Florida, acting through its City Council or Authorized
Representative.
2.6 City Council: Shall mean the City Council of the City of Cape Canaveral, Florida.
2.7 City Code or Code: Shall mean the Code of Ordinances of the City of Cape
Canaveral, Florida.
2.8 Collection and Disposal Service: Shall mean the process whereby refuse, bulk
trash, vegetative waste, or recyclable material is collected and transported for
disposal by Contractor under this Agreement to a designated facility or some other
approved disposal facility.
2.9 Collection Equipment: Shall mean any vehicle or equipment that is used by
Contractor to perform the collection and disposal service required by this Agreement.
2.10 Collection Vehicle: Shall mean any vehicle that is used by Contractor to perform
the collection and disposal service required by this Agreement.
2.11 Collection Regulations: Shall mean any local, state, and federal laws and
administrative rules that regulate any and all aspects of collection and disposal
services, as may be in existence during the term of this Agreement.
2.12 Commercial Service: Shall herein refer to the collection and disposal service
provided to business establishments, churches, schools, multiple dwelling units,
office buildings and other commercial establishments.
2.13 Commercial Trash: Shall mean any and all accumulations of paper, rags, excelsior
or other packing materials, furniture, appliances, wood, paper or cardboard boxes or
containers, sweepings, and any other similar accumulation not included under the
definition of garbage, generated by the operation of stores, offices, and other
commercial establishments. Commercial trash shall not include special waste.
2.14 Complaint: Shall mean verbal or written indication from a customer or the
Authorized Representative of a problem with any aspect of the collection and
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City of Cape Canaveral 1 Waste Management, Inc.
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disposal services provided by Contractor pursuant to this Agreement, whether or not
the problem results in a service call by Contractor.
2.15 Construction and Demolition Debris: Shall have the same meaning proscribed in
62 -70 1.200(27), Florida Administrative Code, which at the effective date of this
Agreement means:
Discarded materials generally considered to be not water soluble and non - hazardous
in nature, including but not limited to steel, glass, brick, concrete, asphalt 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, including such debris from construction of structures at a site remote from
the construction or demolition project site. The term includes rocks, soils, tree
remains, trees, and other vegetative matter which normally results from land clearing
or land development operations for a construction project; clean cardboard, paper,
plastic, wood, and metal scraps from a construction project. Further, except as
provided in Section 403.707 (12) 0 ), Florida Statutes, this term shall also include
unpainted, non- treated wood scraps from facilities manufacturing materials used for
construction of structures or their components and unpainted, non - treated wood
pallets provided the wood scraps or 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 de minimis amounts of other
nonhazardous wastes that are generated at construction or demolition projects,
provided such amounts are consistent with best management practices of the
construction and demolition industries. 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.
2.16 Contract or Agreement: Shall mean this Contract, and any amendments and
renewals from time to time, executed by the City and the Contractor for the
performance of the collection and disposal services described herein.
2.17 Contractor or Franchisee: Shall mean Waste Management, Inc., of Florida and its
directors, officers, employees, agents, contractors, and assigns.
2.18 CPI: Shall mean the Consumer Price Index (1982 -84 =100) for the U.S. City average
- all items - all urban customers - south, population less than 50,000, published by
the United States Department of Labor, Department of Labor Statistics.
2.19 Customer: Shall mean City and any person, establishment or entity who receives, is
required to receive, or requests collection and disposal services within the service
area.
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2.24 Designated Facility: Shall mean a disposal processing, recovery, recycling or
transfer facility designated by the Authorized Representative.
2.21 Disposal Costs: Shall mean the "tipping fees" or landfill costs charged to the
Contractor by others for the disposal of solid waste collected by the Contractor in
performing collection and disposal services provided hereunder.
2.22 Dispute: Shall mean a disagreement between Contractor and City concerning a
question of fact, interpretation of this Agreement, Contractor's compliance and
performance with the terms and conditions of this Agreement, and Contractor's level
of service provided while performing collection and disposal services. A dispute
does not include a disagreement concerning an annual evaluation as provided in
paragraph 9.3.
2.23 Franchise: Shall mean an initial authorization or renewal thereof, voluntarily
entered into by the Contractor and issued by the City, whether such authorization is
referred to as a franchise permit, license, ordinance, resolution, agreement, contract
or otherwise, which authorizes collection and disposal services within the service
area. All Franchises shall be presumed to be non - exclusive unless otherwise
specifically authorized by City in writing. Any such authorization, in whatever form
granted, shall not mean or include any franchise or permit required for the privilege
of transacting and carrying on a business within the service area as required by other
Code provisions and ordinances of the City.
2.24 Garbage: Shall mean all putrescible waste which generally includes, but is not
limited to, kitchen and table food waste, animal, vegetative, food or any organic
waste that is attendant with or results from the storage, preparation, cooking or
handling of food materials whether attributed to residential or commercial activities.
Garbage shall not include special waste.
2.25 Hazardous Waste: Shall mean waste defined as hazardous waste pursuant to local,
state, and federal law.
2.26 Household Trash: Shall mean the accumulation of paper, excelsior, rags, wooden
or paper boxes and containers, sweepings, broken toys, tools, utensils, whole
automobile tires (not to exceed an amount permitted by the designated facility),
construction and demolition debris from "do-it-yourself' projects not to exceed two
cubic yards per customer per collection, and all other accumulations of a similar
nature other than garbage and vegetative waste, which are usual to housekeeping, do-
it- yourself home improvements, and home occupations (as defined by City Code).
2.27 Mechanical Container: Shall mean and include plastic or metal containers 2 cubic
yards and greater dumped mechanically by a collection vehicle and able to be
serviced by Contractor.
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2.28 Multiple Dwelling Units: Shall mean any building containing three (3) or more
permanent living units, not including motels and hotels, and any mobile home park.
2.29 Performance and Payment Bond or Letter of Credit: Shall mean the form of
security approved by the City and furnished by the Contractor as required by this
Contract as a guarantee that the Contractor will perform the collection and disposal
services in accordance with the terms of the Contract.
2.30 Recyclable Materials: Shall mean newspapers (including inserts), aluminum cans,
plastic containers (HDPE and PET), brown, clear and green glass bottles and jars,
and other solid waste materials added upon written Agreement between the City and
the Contractor, when such materials have been either diverted from the remaining
solid waste stream or removed prior to their entry into the remaining solid waste
stream.
2.31 Recycling: Shall mean any process by which recyclable materials are collected,
separated, and processed for purposes of extracting or reusing the raw materials
contained in the recyclable materials.
2.32 Recycling Container: Shall mean a fourteen (14) gallon recycling bin used by
residential customers and one or more ninety (90) gallon recycling center bins for
commercial and multiple dwelling unit customers, or other types of recycling bins
approved by the Authorized Representative, to store recyclable materials for
collection and disposal service.
2.33 Refuse: Shall mean commercial trash, household trash and garbage, or a
combination or mixture thereof.
2.34 Refuse Container: Shall mean a plastic or galvanized metal can, of a type which is
commonly sold as a garbage can, which does not exceed thirty -two (32) gallon
capacity or fifty (50) pounds in weight when full. Each such can shall have two (2)
handles upon the sides of the can or a bail by which it maybe lifted by a person and
shall have a tight fitting top and shall also mean disposal plastic or paper bags (with
or without sack holders and not less than 1 mm thick) of a type which is acceptable
to be used for refuse storage and disposal.
2.35 Rolloff Container: Shall mean a dumpster which is used for the collection and
disposal of construction and demolition debris or solid waste. The rolloff container
may be of the open or enclosed variety and is typically hoisted onto a specifically
equipped truck for transporting the construction and demolition debris or solid waste
to a designated facility.
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2.35 Residential: Shall mean single family detached homes, duplexes and triplexes.
2.37 Residential Service: Shall mean collection and disposal services provided to
persons occupying residential dwelling units who are not receiving commercial
service under this Agreement.
2.38 Service Area: Shall mean the area within the municipal boundaries of the City of
Cape Canaveral, Florida, as may be modified from time to time pursuant to Chapter
171, Florida Statutes.
2.39 Sludge: Shall mean the accumulated solids, mixed liquids, residues, and precipitates
generated from wastewater treatment, water supply treatment, air pollution control
facilities, septic tanks, grease traps, privies, or similar waste disposal appurtenances.
2.40 Solid Waste: Shall mean bulk trash, refuse, vegetative waste, and recyclable
materials or any combination thereof.
2.41 Special Waste: Shall mean solid wastes that require special handling and
management by Contractor, and which are not accepted at the designated facility or
other disposal facility or which are accepted at the designated facility or other
disposal facility at higher rates than is charged for refuse, including, but not limited
to, asbestos, whole tires which do not constitute household trash, used oil, lead -acid
batteries, and biohazardous wastes.
2.42 Transfer means the disposal by this Agreement, directly or indirectly, by gift,
assignment, voluntary sale, merger, consolidation or otherwise, of twenty percent
(20 %) or more at one time of the ownership or controlling interest of Contractor, or
thirty -five percent (35%) cumulatively over the term of the Agreement of such
interests to a corporation, partnership, limited partnership, trust or association, or
person or group of persons acting in concert or a change in control. Transfer shall
not include any transfer or assignment to a person controlling, controlled by, or under
the same common control as the Contractor at the effective date of this Agreement.
2.43 Vegetative Waste: Shall mean any vegetative matter resulting from routine and
normal yard and landscaping maintenance generated on site and shall include
materials such as tree and shrub materials, grass clippings, palm fronds, Christmas
trees, tree branches and similar vegetative matter usually produced in the care of
lawns, landscaping and yards.
3.0 Grant of Franchise There is hereby granted to Contractor an exclusive right, privilege or
franchise to collect and transport for disposal solid waste within the service area, during the
term of this Agreement and subject to the limitations and conditions as set forth in this
Agreement. All rights granted to Contractor hereunder shall be subject to the continuing
right of the City to regulate the City's rights -of -way and to protect the public health, safety,
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and welfare as shall, at the sole discretion of the City, be in the public's interest. The grant
of this franchise shall not affect the City's right to provide collection and disposal services
not expressly and unambiguously provided hereunder to Contractor on an exclusive basis or
during an emergency. In the event of any conflict or ambiguity hereunder as to whether a
collection and disposal service is exclusively granted to Contractor, the conflict or ambiguity
shall be construed as granting Contractor a non - exclusive franchise with respect to the
collection and disposal service at issue. Nothing under this Agreement shall be construed as
providing any franchise for collection and disposal services not expressly provided for
hereunder.
4.0 Scope of Work It is the intent of this franchise to provide for the exclusive collection and
disposal service of solid waste within the service area, with the exception of the exclusions
specifically set forth in this Agreement. Contractor shall perform the collection and disposal
service under the following terms and conditions, all of which shall be a material part of this
Agreement:
4.1 General Requirements: Contractor shall fully comply with the following:
A. Laws and Regulations. Contractor shall be familiar and comply with all
collection regulations and shall be solely responsible for determining,
absorbing, and adjusting to the financial and practical impact such regulations
have on its operation, subject to Contractor's ability to petition the City
Council for a rate adjustment pursuant to paragraph 5.6 of this Agreement.
B . Labor, Insurance, Equipment, etc. Contractor shall provide, at its sole cost
and expense, all labor, insurance, supervision, machinery, equipment, plant
and office buildings, tracks, and other tools, equipment, and accessories
necessary to perform the collection and disposal services in accordance with
the level of service required by this Agreement.
C. Protection of Public/Private Property and Utilities. Contractor shall
conduct his work in such a manner as to avoid damage to private or public
property and shall repair or pay for any damage caused by its operations,
except reasonable wear and tear to roadways. Contractor shall have
knowledge of all existing utilities and it shall operate with due care in the
vicinity of such utilities and shall repair or have repaired, at no additional cost
to the customer or utility owner, any breakage or damage caused by its
operations.
D. Spillage. Contractor shall not cause any spillage of solid waste to occur upon
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private or public property or the rights -of -way wherein the collection and
disposal service occurs. Collection and disposal service shall be performed
by Contractor to avoid leaking, spilling, and blowing of solid waste. In the
event of any spillage caused by Contractor, Contractor shall promptly clean
up all spillage at its expense. Contractor shall maintain sufficient equipment
on each collection vehicle (e.g. fork, broom, shovel) to pick up spillage. In
addition, Contractor shall promptly clean up all fluid spillage from collection
equipment to the maximum extent feasible and promptly notify the
Authorized Representative of all such fluid spillage.
E. Designated Facility. All solid waste shall be hauled to a designated facility
as directed in writing by the Authorized Representative and disposed of at
those facilities. At present such designated facility includes the Brevard
County disposal facility.
F. Holidays. Contractor shall not provide collection and disposal service on
holidays observed by the City. The City shall provide a list of such holidays
to the Contractor annually. Any disposal and collection service that would
have been regularly provided, but for the holiday, shall be provided the day
after the holiday. Further, unless otherwise directed by the Authorized
Representative in writing, Contractor shall maintain the frequency of
collection required by paragraphs 4.2(A), 4.3(A), and 4.4(A) during holiday
weeks. Contractor shall inform the customers of any variance in the
collection schedules resulting from a holiday at least five (5) days prior to
each holiday.
G. Contractor's office. Contractor shall provide, at its sole cost and expense,
a suitable office located within reasonable proximity to the service area.
Within said office, Contractor shall maintain, during Contractor's normal
working hours, a staff and a local telephone number where complaints and
requests for collection and disposal service shall be received, recorded in a
log, and handled during Contractor's normal working hours. The office shall
also provide for a means to promptly handle emergency complaints and
requests for service.
H. Litter and Dangerous Animals. Contractor shall not be responsible for
scattered solid waste which can be categorized as litter unless the same has
been caused by Contractor's acts or omissions, in which case, all such
scattered solid waste shall be picked up immediately by Contractor.
Contractor shall maintain sufficient equipment on each collection vehicle
(e.g. fork, broom, shovel) to pick up such scattered solid waste. Contractor
shall not be required to expose themselves to the danger of being bitten by
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vicious dogs and animals, roaming at large, in order to accomplish collection
and disposal services. However, in the event Contractor is unable to provide
collection and disposal services to a customer under such conditions,
Contractor shall immediately notify the customer, in writing, of such
conditions and its inability to provide such collection and disposal services.
I. Hours and Days. Except for unusual circumstances approved by the
Authorized Representative in writing or as otherwise provided elsewhere in
this Agreement, Contractor shall not perform collection and disposal services
prior to 7: oo A.M. or after 7: oo P.M., E. S .T., Monday through S aturday. No
collection and disposal services shall normally occur on Sundays and
holidays designated in paragraph 4.1 (F) unless authorized in writing by the
Authorized Representative.
J. Tagging Solid Waste Improperly Containerized. In the event solid waste
is not containerized, bundled, or piled pursuant to this Agreement and
Contractor does not perform collection and disposal services regarding such
solid waste, Contractor shall tag the container, bundle, or pile or subject
property with a written notice containing a brief explanation why the
container, bundle, or pile was not collected and disposed of and promptly
notify the Authorized Representative. The solid waste shall be collected and
disposed of at the next regularly scheduled collection day, provided the solid
waste is properly containerized, bundled, or piled.
K. Customer Report; City Billing Database. Contractor and City agree that
the monthly customer report required to be maintained and filed by
Contractor pursuant to paragraph 19.3(A) is vital to keeping an accurate
account of all customers receiving collection and disposal services under this
Agreement and for ensuring accurate billing of customers by City. To this
end, Contractor and City agree that each party must diligently maintain an
accurate, up -to -date list of customers and the collection and disposal services
received by those customers. The Contractor shall promptly notify the City
of any new and existing Customers requesting collection and disposal
services and any current Customers terminating such services.
L. Site Plan/Development Review. City shall notify Contractor of pending
site plan and development review applications in order to give Contractor an
opportunity to comment during the review process on the placement of refuse
or mechanical containers and the point of collection of solid waste.
4.2 Residential Service. Contractor shall provide residential collection and disposal
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service to residential customers as follows:
A. Frequency of Collection. Contractor shall provide collection and disposal
services for household trash and garbage at least two (2) times per week, with
collections at least three (3) days apart, and for bulk trash, vegetative waste,
and recyclable materials not less than once per week.
B . Point of Collection. Collection of household trash, garbage, bulk trash,
vegetative waste, and recyclable materials shall be within five (5) feet of
curbside. In the event an appropriate location cannot be agreed upon by the
customer and Contractor, the Authorized Representative shall designate the
location. The Contractor and Authorized Representative shall mutually agree
upon point of collection locations for non - conforming service areas. For
customers that are certified by a doctor as disabled and are unable to place
household trash, garbage, or recyclable materials at the curb, collection shall
be from the disabled customer's garage door or some other location
acceptable to the customer, and the refuse container and recycling container
shall be returned by Contractor to the garage door or other location
reasonably convenient to customer.
C. Containers and Preparation.
1. Household Trash and Garbage. Contractor shall be required to
provide collection and disposal services for all household trash and
garbage generated from residential customers which has been properly
prepared and stored in a refuse container provided under the
Automated Cart Program.
2. Recyclable Materials. Contractor shall be required to provide
collection and disposal services for all recyclable materials generated
from residential customers which have been properly prepared and
stored in a recycling container.
3. Vegetative Waste. Contractor shall be required to provide collection
and disposal services for all vegetative waste generated from
residential customers provided tree limbs, tree trunks, palm fronds,
etc., shall be cut in lengths of no greater than four (4) feet and shall not
exceed a weight of fifty (50) pounds each. Additionally, vegetative
waste shall be properly prepared and stored in refuse containers
(except plastic bags), specialized vegetative trash bags approved by the
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designated facility, or small pieces of vegetative waste shall be in
bundles secured by rope, string, twine, cord or tape and large pieces of
vegetative waste shall be placed in orderly piles. Each container, bag,
or bundle shall not exceed a weight of fifty (50) pounds.
4. Bulk Trash. Contractor shall be required to provide collection and
disposal services for all bulk trash generated from residential
customers regardless of whether it is containerized.
4.3 Commercial Service. Contractor shall provide commercial collection and disposal
service to commercial customers as follows:
A. Frequency of Collection. Contractor shall provide collection and disposal
services for commercial trash and garbage at least two (2) times per week,
and more frequently as mutually agreed to by Contractor and the commercial
customer, and for vegetative waste and recyclable materials (if vegetative
waste and/or recyclable material service is requested by customer) not less
than once per week.
B. Point of Collection. Collection of commercial trash, garbage, vegetative
waste, and recyclable material shall be at a location mutually agreed upon by
the customer and Contractor, and approved by the Authorized Representative.
If mutual agreement cannot be reached between customer and Contractor, the
Authorized Representative shall designate the location. However, in the
event the location was approved as part of a City or County site plan or
development review process, the location shall be as shown on the final
approved site or development plan. To the maximum extent feasible, the
designated location shall be located in a place that provides for safe,
convenient, and expedient access by Contractor.
C. Containers and Preparation.
1. Commercial Trash and Garbage. Contractor shall be required to
provide collection and disposal services for all commercial trash and
garbage generated by commercial customers which has been properly
prepared and stored in a refuse container, mechanical container, rolloff
container, or compactor under the following conditions:
a. Customers shall be permitted to use refuse containers
provided the amount of commercial trash and garbage per
collection can be stored in a maximum of four (4) refuse
containers; otherwise, customers shall be required to use one
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or more of the following: mechanical containers, compactor
service, or rolloff containers.
b. Contractor shall be required to provide an adequate number
of mechanical containers, compactors, or rolloff containers to
customers who request or exceed the maximum number of
refuse containers. Mechanical containers and rolloff
containers shall be provided at Contractor's sole expense and
shall remain the property of Contractor, unless the mechanical
container or rolloff container is owned by the customer.
Compactors shall be provided as mutually agreed to by
Contractor and customer.
2. Recyclable Materials. Contractor may provide collection and
disposal services for recyclable materials generated from commercial
customers who specifically request such service or as required by City.
If requested, recyclable materials shall be properly prepared and stored
.
in a recycling container.
3. Vegetative Waste. Contractor shall be required to provide collection
and disposal services for all vegetative materials generated from
commercial customers who specifically request such service or as
required by City. If requested, vegetative waste shall be containerized,
prepared, and collected pursuant to paragraph 4.2(C )(3) of this
Agreement. If required by City, vegetative waste shall be collected
and disposed of regardless of how it is containerized and prepared.
4.4 Multiple Dwelling Units. Contractor shall provide collection and disposal service
to multiple dwelling unit customers as follows:
A. Frequency of Collection. Contractor shall provide collection and disposal
services for household trash and garbage at least two (2) times per week, with
collections at least three (3) days apart, and for bulk trash and recyclable
materials not less than once per week.
B . Point of Collection. Collection of household trash, garbage, bulk trash,
vegetative waste, and recyclable materials shall be at a location mutually
agreed upon by the customer and Contractor, and approved by the Authorized
Representative. If mutual agreement cannot be reached between customer
and Contractor, the Authorized Representative shall designate the location.
However, in the event the location was approved as part of a City or County
site plan or development review process, the location shall be as shown on
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the final approved site or development plan. To the maximum extent
feasible, the designated location shall be located in a place that provides for
safe, convenient, and expedient access by Contractor.
C. Containers and Preparation.
1. Household Trash and Garbage. Contractor shall be required to
provide collection and disposal services for all household trash and
garbage generated by multiple dwelling units which has been prepared
and stored in a refuse container, mechanical container, or compactor
under the following conditions:
a. The multiple dwelling unit customer shall be permitted to use
refuse containers provided the amount of household trash and
garbage per collection can be stored in a maximum of four (4)
refuse containers; otherwise, customers shall be required to
use mechanical containers or compactor service.
b. Contractor shall be required to provide an adequate number
of mechanical containers or compactors to customers who
request or exceed the maximum number of refuse containers.
Mechanical containers shall be provided at Contractor's sole
expense and shall remain the property of Contractor, unless
the mechanical container is owned by the customer.
Compactors shall be provided as mutually agreed to by
Contractor and customer.
2. Recyclable Materials. Contractor shall be required to provide
collection and disposal services for all recyclable materials generated
from multiple dwelling unit customers which have been properly
prepared and stored in a recycling container.
3. Vegetative Waste. Contractor shall be required to provide collection
and disposal services for all vegetative materials generated from
multiple dwelling unit customers who specifically request such service
or as required by City. If requested, vegetative waste shall be
containerized, prepared, and collected pursuant to paragraph 42(C)(3)
of this Agreement. If required by City, vegetative waste shall be
collected and disposed of regardless of how it is containerized and
prepared.
4. Bulk Trash. Contractor shall be required to provide collection and
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disposal services for bulk trash generated from multiple dwelling unit
customers regardless of whether it is containerized.
4.5 City Controlled Property. As requested by the Authorized Representative,
Contractor shall be required to provide collection and disposal services for all refuse,
bulk trash, vegetative waste, and recyclable materials generated by City at properties
owned, leased, or otherwise controlled by City. In addition, Contractor shall provide
such collection and disposal services for any and all City sponsored special events
as agreed to by City and Contractor, and for all City public receptacles located along
or in public rights -of -way, sidewalks, beaches, and public recreational facilities.
Such collection and disposal services shall be at no charge or expense to City.
A. Frequency of Collection. Unless otherwise directed by the Authorized
Representative in writing, Contractor shall provide collection and disposal
services for refuse at least two (2) times per week, with collections at least
three (3) days apart, and for bulk trash, vegetative waste, and recyclable
materials not less than once per week.
B. Point of Collection. Collection of refuse, bulk trash, vegetative waste, and
recyclable materials shall be at locations designated by the Authorized
Representative, with consideration given for the safe, convenient, and
expedient access by Contractor.
C. Containers and Preparation.
1. Refuse. Contractor shall be required to provide collection and
disposal services for refuse generated by City which has been properly
prepared and stored in a refuse container or mechanical container as
determined by the Authorized Representative. Contractor shall be
required to provide the mechanical container at Contractor's expense.
2. Recyclable Materials. Contractor shall be required to provide
collection and disposal services for all recyclable materials generated
by City which have been properly prepared and stored in a recycling
container or other container mutually agreed to by the Authorized
Representative and Contractor.
3. Vegetative Waste. Contractor shall be required to provide collection
and disposal services for all vegetative waste generated by City
provided the vegetative waste is containerized, prepared, and collected
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pursuant to paragraph 4.2(C)(3) of this Agreement. Notwithstanding,
Contractor and City may mutually agree to some other method of
preparation and storage for significant City projects which generate
significant amounts of vegetative waste.
4. Bulk Trash. Contractor shall be required to provide collection and
disposal services for all bulk trash generated by City regardless of
whether it is containerized.
4.6 Biohazardous, Biological, Hazardous, Sludge, and Special Waste. Contractor
shall not be responsible for collection and disposal services for biohazardous waste,
biological waste, hazardous waste, sludge, and special waste under this Agreement.
However, to the extent qualified and licensed, Contractor may contract with persons
and entities within the service area, along with other qualified and licensed
contractors, to provide for such collection and disposal services. Contractor shall
directly bill such persons and entities for such services at a rate mutually agreed on
between Contractor and such persons and entities.
4.7 Construction and Demolition Debris Service. Contractor may provide
collection and disposal service of construction and demolition debris to residential,
multiple dwelling unit, and commercial customers as follows:
A. Non - exclusive Right. Contractor shall have the non - exclusive right
to provide collection and disposal services for construction and demolition
debris utilizing rolloff containers, as that term is defined in paragraph 2.35 of
this Agreement, or other appropriate containers. It is the intent and purpose
of this Agreement to permit small haulers of construction and demolition
debris to competitively operate within the service area. Contractor may
compete with said small haulers by providing collection and disposal services
for construction and demolition debris. Contractor shall directly bill such
services at a rate mutually agreed on between Contractor and such person and
entities receiving the services.
B . Frequency of Collection. Contractor shall provide collection and disposal
services for construction and demolition debris utilizing rolloff containers or
other appropriate containers to customers that specifically request such
service or as required by City. Said collection and disposal services shall be
provided as frequently as mutually agreed to by Contractor and the customer
or as required by the Authorized Representative or City Code to protect the
public health, safety, and welfare.
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C. Point of Collection. Collection of construction and demolition debris shall
be at a location mutually agreed upon by the customer and Contractor;
provided, collection shall be located within the boundary of the property
served, unless otherwise approved by the Authorized Representative.
D. Containers and Preparation. Contractor shall be required to provide
one or more rolloff containers or other appropriate containers of a size and
number mutually agreed to by Contractor and customer.
4.8 Code Enforcement Upon request of the Authorized Representative, Contractor
shall assist the City in its code enforcement efforts by providing collection and
disposal service of solid waste and construction and demolition debris located on real
property in violation of the City Code.
4.9 Automated Cart Program Contractor has the capability of providing certain
automated equipment which may be utilized in conjunction with a toter cart program
for garbage and vegetative waste collection ( "Automated Cart Program "). By April
1, 2005, Contractor shall implement the Automated Cart Program pursuant to
operational terms and conditions negotiated with the City, provided that same shall
not result in an increase in total cost to the City. At each ,customer's option,
Contractor shall utilize either a ninety -six (95) or sixty -four (64) gallon size
container.
4.10 Tire Collection Contractor shall provide weekly tire collection and disposal
services to residential customers at no additional charge.
5.0 Rates and Charges; Compensation to Contractor; Franchise Fee Billing
5.1 Rates; Compensation to Contractor. For collection and disposal services
provided under this Agreement, City shall pay Contractor as follows:
A. Residential Service. For residential service provided pursuant to paragraph
4.2 of this Agreement, a monthly amount, per customer, equal to $9.18
inclusive of refuse and vegetative waste and recycling.
B. Commercial and Multiple Dwelling Mechanical Container Service. For
any container service, including commercial and Multiple Dwelling Units)
provided pursuant to paragraphs 4.3 and 4.4 of this Agreement, a monthly
amount equal to:
$27.96 per containerized yard, per pickup
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$4.00 per containerized yard, per pickup for special services in addition to
normal services provided under this Agreement.
C. Multiple Dwelling Recycling Service. For multiple dwelling recycling
service provided pursuant to paragraphs 4.4(C)(2), a monthly amount equal
to $1.66 per unit.
D. Commercial Rolloff Container Service. For commercial rolloff container
service provided pursuant to paragraph 4.3(C)(1), an amount equal to:
Minimum of 1 pull per month as follows:
Container delivery, per container $50.00
20 cubic yard box
30 cubic yard box
40 cubic yard box
$135.00 per pull
$160.00 per pull
$185.00 per pull
E. Code Enforcement. Upon request of the Authorized Representative,
Contractor shall provide solid waste and construction and demolition debris
collection and disposal service to City for code enforcement related matters
at no charge to the City.
F. Compactor Service. For compactor service provided pursuant to paragraphs
4.3(C)(1) and 4.4(C)(1) of this Agreement, an amount mutually agreed to by
Contractor and the Customer.
G. Multiple Dwelling and Special Vegetative Waste Service. For Multiple
Dwelling Units and special vegetative waste collection and disposal service
for residential and commercial Customers not provided for hereunder
(vegetative waste by virtue of its size or weight exceeds routine and normal
yard and landscaping maintenance generated on site), in addition to any
applicable monthly customer service provided hereunder, an amount equal
to:
Quarter Clam Load $ 30.00
Half Clam Load $ 60.00
Three Quarter Clam Load $ 90.00
Full Clam Load $120.00
H. Commercial Can and Multiple Dwelling Refuse Container Service.
For commercial can and multiple dwelling refuse container service provided
pursuant to paragraphs 4.3 and 4.4 of this Agreement, a monthly amount
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equal to:
Individual Commercial Accounts with trash cans: $10.88 per month, per unit
Mobile Homes and Multiple Dwelling Units: $4.74 per month, per unit
5.2 Consumer Price Index Adjustment. The rates in paragraph 5.1 shall remain
unchanged during the term of this Agreement unless the growth in the gross revenue
generated from all collection and disposal services required hereunder falls below
five percent (5 %o) for a particular year. If the gross revenue growth rate falls below
five percent (5 %), the rates shall be adjusted by the CPI. Each new rate shall be
computed pursuant to the following mathematical formula:
New Rate = [CPI2 - CPI1] +1 x Current Rate
CPI1
"CPI1" The published CPI for the month of October of the preceding year.
"CPI2" The published CPI for the month of October for the year in which the
rate is being adjusted.
Adjustments to the prices made in accordance with this subsection are intended to
reflect changes in the purchasing power of a given amount of money expressed in
dollars. If CPI1 and CPI2 are not expressed in relation to the same base period or if
a material change is made in the method of establishing GPI, the City and the
Contractor shall make an appropriate statistical adjustment or conversion. If the CPI
is discontinued, the City and the Contractor shall mutually select another index
published by the United States Government or by a reputable publisher of financial
and economic indices.
5.3 Billing Customers by City. Customer billing shall be established and enforced by
City Code. The City shall provide the customer billing for all collection and disposal
services provided by Contractor under this Agreement, unless otherwise specifically
stated herein. City shall perform said billing by means and at times deemed
appropriate by City. Contractor shall fully cooperate with City in customer billing.
Contractor agrees to reimburse the City an amount equal to the City's actual cost for
billing Contractor's services under this Agreement. Contractor and City
acknowledge that the City currently contracts with the City of Cocoa to bill
Contractor's services and that the cost is currently equal to $0.35 per each customer
bill.
5.4 Billing and Payment Procedure. Unless otherwise provided by the Authorized
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full documentation establishing the increase in operating costs and the reasons
therefor. The City shall be entitled to audit the Contractor's financial and operational
records directly related to the Contractor's request in order to verify the increase in
costs and the reasons therefor.
The Contractor's request must be made within a reasonable time, and shall contain
reasonable proof and justification to support the need for the rate adjustment. The
City may request from the Contractor, and the Contractor shall provide, such further
information within its possession as may be reasonably necessary in making its
determination. The City Council shall approve or deny the request (without penalty),
in whole or in part, at its sole and absolute discretion, within sixty (50) days of
receipt of the request and all other additional information required by the City.
5.0 Schedules and Routes Contractor shall provide written notice to the City of its collection
and disposal routes and schedules. The City reserves the unconditional right to deny
Contractor's vehicles access to any street, alley, bridge, beach, or public way within the
service area while performing collection and disposal services under this Agreement, where
the City determines that it is in the best interests of the public health, safety, and welfare to
do so because of the conditions of the streets, alleys, bridges, beaches, or public ways.
However, Contractor shall not interrupt the regular schedule and level of service because of
such closures of less than eight (8) hours in duration. The City shall notify Contractor of any
such closures of longer duration, and arrangements shall be made in a manner acceptable to
Contractor and the Authorized Representative for the collection and disposal services
interrupted by the closure. Customers shall be notified in writing by Contractor of the
schedules provided by Contractor and any amendments thereto, provided customers shall be
given at least seven (7) days prior written notice of any such amendments. Any and all route
and schedule changes must receive prior approval by the Authorized Representative and
schedule changes shall be published in a newspaper of general circulation meeting the
requirements of Section 50.011, Florida Statutes.
7.0 Collection Equipment and Vehicles Contractor shall provide collection equipment
for the collection and disposal services as follows:
7.1 Type and Amount. Contractor shall have on hand, at all times under this
Agreement, collection equipment that is in good working order and sanitary
condition that will permit Contractor to perform the collection and disposal services
in a sufficient and efficient manner so that the schedules and routes can be
maintained. Collection equipment shall be obtained from a nationally known and
recognized manufacturer of collection equipment. Collection vehicles shall be of the
enclosed packer type or other type vehicle which meets industry standards and is
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approved by the Authorized Representative. All collection vehicles shall be
equipped with communication devices and such devices shall be maintained in good
operating order.
7.2 Condition. All collection equipment shall be maintained, at all times, in a
reasonable and safe working condition and shall be in good repair, appearance, and
sanitary and clean condition. Contractor shall spray all mechanical containers with
disinfectant every thirty (30) days. Collection equipment shall be painted uniformly
with the name of the Contractor, Contractor's telephone number and number of the
collection vehicle in letters not less than three (3) inches high on each side of the
collection vehicle. Contractor shall keep an accurate record of the vehicle to which
each number is assigned. Advertising on collection vehicles is strictly prohibited,
except for advertisements promoting City sponsored special events.
7.3 Overloading. Collection vehicles shall not be overloaded by Contractor so as to
cause litter or spillage (described in paragraphs 4.1(D) and (H); however, if litter or
spillage occurs because of overloading it shall be picked up immediately as required
by paragraphs 4.1(D) and (H).
7.4 Back -up Equipment. Contractor shall maintain sufficient back -up collection
equipment, which shall satisfy the condition requirements of paragraph 7.2 of this
Agreement, to temporarily replace collection equipment that is in a state of disrepair
or is inoperable at any time during Contractor's performance of the collection and
disposal services pursuant to this Agreement. The back --up collection equipment
shall be put into service within a reasonable time and without interruption of
collection and disposal services. Such back -up collection equipment shall
correspond in size and capacity to the collection equipment ordinarily used by
Contractor in performance of the collection and disposal services under this
Agreement.
8.0 Contractor's Personnel Contractor shall fully comply with the following terms and
conditions regarding Contractor's personnel:
8.1 Contractor's Representative. Contractor shall appoint a representative to
administer and manage this Agreement on Contractor's behalf as required by
paragraph 26.0 of this Agreement.
8.2 other Personnel. Contractor shall provide a sufficient number of qualified persons
to provide the collection and disposal services. All persons who are given supervisory
authority by Contractor shall be made available to the Authorized Representative for
consultation within a reasonable and practicable time after Contractor receives notice
from the Authorized Representative that a consultation is being requested.
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Supervisors shall operate a collection vehicle that is equipped with a communication
device.
8.3 Conduct of Personnel. Contractor shall require and ensure that its personnel shall
serve all customers in a courteous, helpful, and impartial manner. Contractor's
personnel shall perform collection and disposal services while using existing
sidewalks and driveways when on private and public property. Contractor personnel
shall observe all no trespassing signs and shall not cross between neighboring
properties unless the customer, or customer's in the case of neighboring properties,
has expressly given said personnel permission. Contractor's personnel shall perform
all collection and disposal services with due care and shall always take reasonable
precautions and steps to avoid damaging all real and personal property including, but
not limited to, refuse containers, recycling containers, carts, racks, trees, shrubs,
flowers, and similar property. Contractor shall be fully liable for all such damage
caused by Contractor's personnel and Contractor shall promptly provide sufficient
and appropriate compensation to customer's for such damage.
8.4 Uniform Regulations. Contractor agrees that the identification of Contractor's
personnel while performing the collection and disposal services is important to the
customer's health, safety, and welfare. Consequently, Contractor's personnel
performing collection and disposal services shall wear a uniform or shirt bearing the
Contractor's name. Lettering stitched on or identifying patches permanently attached
to the uniform or shirt shall be acceptable.
8.5 Labor and Employment Laws. Contractor shall comply with all applicable local,
state, and federal labor and employment laws affecting its personnel.
8.6 Informing Personnel of Responsibilities. Contractor shall take whatever steps it
deems necessary to fully inform its personnel about the terms and conditions and
personal responsibilities provided under this Agreement. City shall not be
responsible for informing Contractor's personnel of said terms, conditions, and
responsibilities. Contractor shall also provide operating and safety training manuals
to all its personnel.
8.7 Driver's License. All Contractor's personnel that drive a collection vehicle while
performing collection and disposal services shall at all times have and carry a valid
Florida commercial driver's license for the type of vehicle being driven.
8.8 Drug Free Workplace. Contractor shall maintain a drug free workplace policy. If
requested by City, Contractor shall provide a document certifying to the City it is a
drug free workplace.
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9.0 Level of Service; Customer Complaints; Annual Evaluation By City
9.1 Level of Service. Contractor acknowledges and agrees that the continuation of
this Franchise depends on Contractor consistently providing a high quality and
efficient level of collection and disposal services to all customers. To insure such
services are provided in such a manner, Contractor's performance shall be evaluated,
on an annual basis, pursuant to the procedure established in paragraph 9.3 of this
Agreement and based on the following review criteria:
A. The number of complaints received pursuant to paragraph 9.2 herein and
Contractor's performance in resolving the complaints in a professional and
expedient manner.
B. Contractor's responsiveness to direction given by the Authorized
Representative.
C. The number of times that Contractor had to pay liquidated damages pursuant
to paragraph 25.0 herein.
D. Contractor's participation in community meetings sponsored by City and
Contractor's performance in resolving the complaints received at those
meetings in a professional and expedient manner.
E. Contractor's financial viability to continue performing the collection and
disposal services as required by this Agreement.
9.2 Customer Complaints. It is the intent of this Agreement to ensure that the
Contractor provides a high quality level of collection and disposal services to all
customers. To this end, all failures to provide collection and disposal services to
customers, or failures observed by the Authorized Representative, and reported to the
Contractor shall promptly be resolved pursuant to the provisions of this Agreement.
All customer complaints will be forwarded to the Contractor by person, telephone,
or in writing by mail or facsimile. When received, the Contractor shall record
complaints on a form approved by the Authorized Representative and shall take
appropriate steps to resolve the complaint in a professional and expedient manner.
Any complaints received by the Contractor before 12 :00 noon shall be resolved
before 5:00 p.m. of that same day. Complaints received after 12:00 noon shall be
resolved before 12:00 noon of the following day. The Contractor shall make contact
with the customer complainant, within the above times, for all complaints related to
collection and disposal services. The Contractor shall notify the Authorized
Representative within twenty -four (24) hours, on the approved forms, of the action
taken to resolve the complaint. If the complaint involves a claim of damage to
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private or public property caused by Contractor during the performance of collection
and disposal services, the Contractor shall within twenty -four (24) hours provide the
Authorized Representative with a full written explanation of said complaint, an
estimate of the damage, and Contractor's proposed actions to remedy the damage.
9.3 Annual Evaluation Procedure. Contractor's performance shall be annually
evaluated by City's Authorized Representative and/or City Council under the
following procedure:
A. Upon or soon after the occurrence of each annual anniversary date of this
Agreement, the Authorized Representative shall conduct and prepare a
written annual evaluation of Contractor's performance in providing the
collection and disposal services under this Agreement ( "Evaluation "). The
Evaluation shall be based on the level of service criteria set forth in paragraph
9.1 herein. For each criteria the Authorized Representative shall evaluate and
grade Contractor's performance as unacceptable, acceptable but needs
improvement, or good. If Contractor receives an unacceptable grade, the
Authorized Representative shall provide Contractor a written explanation of
why Contractor's performance was unacceptable and Contractor shall be
given a reasonable period of time, as determined by the Authorized
Representative, to bring its level of performance up to levels acceptable to the
Authorized Representative.
B. At the City Council's discretion, the Authorized Representative shall deliver
the Evaluation, the aforesaid explanation, and other relevant documents to the
City Council for consideration by the City Council at a public meeting. At the
meeting, the Authorized Representative and Contractor shall have the
opportunity to explain their positions and the City Council shall then
determine whether this Franchise should continue under conditions
determined by the City Council or be terminated, without penalty, pursuant
to paragraph 14.1(H) herein.
10.0 Authorized Representative's Interpretation and Decision. Any dispute between the City
and Contractor, which cannot be disposed of by mutual consent between the parties within
a reasonable period of time ( "Impasse "), shall be ultimately decided by the Authorized
Representative at such time the Authorized Representative declares an Impasse. Upon
Impasse, the Authorized Representative shall have thirty (30) days to decide the Impasse
issue, unless additional time is reasonably needed. All such decisions shall be reduced to
writing by the Authorized Representative and delivered to Contractor within three (3) days
of said decision. All such written decisions shall contain a sufficient explanation, as may be
deemed necessary by the Authorized Representative, to explain the decision. The decision
shall be final and binding on both parties unless appealed to the City Council. Within three
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(3) days of the Authorized Representative's decision, Contractor may appeal said decision
to the City Council. The City Council will hear and decide the appeal at the next regularly
scheduled City Council meeting unless otherwise provided by the City Council. The City
Council's decision shall be binding and final. Failure to file an appeal within said time
period shall result in a waiver of the right to appeal. Pending the decision, Contractor shall
proceed diligently with the performance of the collection and disposal services in accordance
with this Agreement and any preliminary directions of the Authorized Representative. The
Authorized Representative may amend, suspend, or revoke any decision if circumstances
warrant.
11.0 other City Permits For collection and disposal services of any kind not exclusively
provided by Contractor under this Agreement, Contractor shall obtain all permits required
by City Code to provide said services.
12.0 Performance Bond; Alternatives
12.1 Performance Bond. The Contractor shall obtain and maintain during the entire
term of this Agreement and any extensions and renewals thereof, at its cost and
expense, and file with the City a corporate surety bond in the amount of Five
Hundred Thousand Dollars ($500,000.00) to guarantee the faithful performance by
the Contractor of all of its obligations provided under this Agreement and the City
Code (hereinafter referred to as "Bond" or "Performance Bond ") . Such bond must
be issued by a surety. Alternatively, the Contractor shall obtain and continuously
maintain an unexpired irrevocable letter of credit, which shall at all times be in the
possession of the City. The form and contents of such performance bond or letter of
credit shall be acceptable to the City. The letter of credit shall be released only upon
expiration of the Agreement or upon the replacement of the letter of credit by a
successor Contractor.
12.2 Conditions. The performance bond or letter of credit shall be issued upon the
following conditions:
A. The performance bond shall be issued by a surety approved by City and
licensed and authorized by the State of Florida to do business as a surety in
the State of Florida. The irrevocable letter of credit shall be issued by a bank
or savings and loan association acceptable to the City, authorized to do
business in this State by either the State of Florida Comptroller or the United
States government. The letter of credit shall name the City as the beneficiary.
B . There shall be recoverable by the City j ointly and severally from the principal
and surety or the financial institution that has issued the letter of credit, any
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and all fines and liquidated damages due to the City and any and all damages,
losses, costs, and expenses suffered or incurred by the City resulting from the
failure of the Contractor to: faithfully comply with the provisions of the City
Code and the Agreement; comply with all orders, permits and directives of
any City agency or body having jurisdiction over its acts or defaults; pay any
claims, liens, fees, or taxes due the City which arise by reason of the
collection and disposal services provided under this Agreement. Such losses,
costs and expenses shall include but not be limited to attorney's fees and other
associated expenses.
C. The total amount of the bond or letter of credit shall be forfeited as a
liquidated damage paid to the City in the event:
1. Contractor abandons, or cancels with less than ninety (90) days written
notice to City, its obligations and responsibilities to perform the
collection and disposal services required under this Franchise, prior to
the expiration of the term of the Agreement;
2. Contractor assigns this Agreement without the express written consent
of the City; or
3. This Agreement is terminated by reason of the default of the
Contractor.
12.3 Reduction of Bond/Letter of Credit. Upon written application by the Contractor,
the City may, at its sole option, permit the amount of the bond or letter of credit to
be reduced for the term of this Agreement or periods of time, when it is determined
by the City's City Council to be in the public interest. Upon written application by
the Contractor, the City may, at its sole option, permit the terms of the requirements
of the performance bond/letter of credit to be altered for the term of this Agreement
or periods of time, when it is determined by the City Council to be in the public
interest.
12.4 Use of Bond and Letter of Credit. Prior to drawing upon the letter of credit or the
bond for the purposes described in this section, the City shall notify Contractor in
writing that payment is due, and the Franchisee shall have thirty (30) days from the
receipt of such written notice to make a full and complete payment. If the Contractor
does not make the payment within thirty (30) days or demonstrate reason acceptable
to the City why such action should not be taken, the City may withdraw the amount
thereof, with interest and penalties, from the letter of credit or the bond. Within
three (3) days of a withdrawal from the letter of credit or bond, the City shall send to
the Contractor, by certified mail, return receipt requested, written notification of the
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amount, date and purpose of such withdrawal.
12.5 Replenishment of Letter of Credit and Performance Bond. No later than thirty
(30) days, after mailing to the Contractor by certified mail notification of a
withdrawal pursuant to paragraph 12.4 above, the Contractor shall replenish the letter
of credit and/or performance bond in an amount equal to the amount so withdrawn.
Failure to make timely replenishment of such amount to the letter of credit and/or
performance bond shall constitute a failure of the Contractor to faithfully comply
with the provisions of this Agreement.
12.6 Non - renewal, Alteration, or Cancellation of Letter of Credit or Performance
Bond. The performance bond and letter of credit required herein shall be in a form
satisfactory to the City which approval shall not be unreasonably withheld and shall
require thirty (30) days written notice of any non - renewal, alteration or cancellation
to both the City and the Contractor. The Contractor shall, in the event of any such
cancellation, alteration, or non - renewal notice, obtain, pay all premiums for, and file
with the City, written evidence of the issuance of replacement bond or policies within
thirty (30) days following receipt by the City or the Contractor of any notice of
cancellation, alteration, or non -- renewal.
12.7 Inflation. At the sole discretion of the City, to offset the effects of inflation, the
amount of the bond or letter of credit provided for herein is subject to annual
increases at the end of every year provided the amount of the bond or letter of credit
shall not exceed fifty percent (50 %) of the total amount paid Contractor by City
pursuant to paragraph 5.0 for the year previous to the increase.
12.8 Default. The performance bond and letter of credit provided pursuant to this section
shall become the property of the City in the event that this Agreement is canceled or
terminated by reason of the default of the Contractor.
12.9 Right to Require Replacement of Bonds or Letter of Credit. If the City becomes
aware of the financial condition of any bonding or financial institution issuing a
performance bond or letter of credit as required herein and said financial condition
is reasonably deemed by the City to jeopardize the collateral posted with the City, the
City may, at any time, require that any such bond or letter of credit be replaced with
such other bond or letter of credit consistent with the requirements set forth in this
section.
13.0 Transfer of OwnershiR or Control.
13.1 Transfer of Franchise. This Agreement shall not be sold, Transferred,
leased, assigned or disposed of, including but not limited to, by forced or
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voluntary sale, merger, consolidation, receivership or other means without the
prior written consent of the City Council, and then only under such
reasonable conditions as the City Council may establish which may include
but not be limited to financial guarantees to the collection and disposal
services.
13.2 Transfer Threshold. The Contractor shall promptly notify the City of any
actual or proposed change in, or Transfer of, or acquisition by any other party
of, control of the Contractor.
13.3 City Approval. Every Transfer shall make this Agreement subject to
cancellation unless and until the City Council shall have consented thereto in
writing. For the purpose of determining whether it may consent to such
Transfer, the City may inquire into the legal, financial, character, technical,
and other public interest qualifications of the prospective Transferee or
controlling party, and the Contractor shall assist the City in obtaining all
required information. Failure to provide all reasonable information requested
by the City as part of said inquiry shall be grounds for denial of the proposed
Transfer.
13.4 Signatory Requirement. Any approval by the City Council of transfer of
ownership shall be contingent upon the prospective assignee becoming a
signatory to this Agreement.
14.0 Forfeiture or Termination
14.1 Grounds for Revocation. The City Council reserves the right to terminate this
Agreement, without penalty, and rescind all rights and privileges associated with the
Franchise in the following circumstances, each of which shall represent a default and
breach of this Agreement:
A. Contractor defaults in the performance of any of the material obligations to
provide collection and disposal services under this Agreement or the City
Code;
B. Contractor fails to provide or maintain in full force and effect the liability and
indemnification coverage or the performance bond (or alternative letter of
credit) as required herein;
C. Contractor violates any material provisions of any orders or rulings of any
regulatory body having jurisdiction over the Contractor relative to this
Agreement and any regulatory ordinance of the City, and Contractor fails to
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begin cure within five business (5) days of notice from the City and to
complete cure within a reasonable time after notice, as determined by the
City;
D. Contractor practices or engages in any fraud upon the City or any customer;
E. Contractor is gross negligent, as defined by general law, in maintaining any
of the level of service standards provided in this Agreement;
F. Contractor becomes insolvent, unable or unwilling to pay its debts or is
adjudged bankrupt;
G. Contractor fails to provide collection and disposal service throughout the
service area if a disruption of such service occurs pursuant to paragraph 24.0
of this Agreement, unless approval of such disruption is obtained from the
City Council;
H. Contractor fails to satisfy the level of service annual evaluation conducted by
the Authorized Representative and City Council pursuant to paragraph 9.3 of
this Agreement; or
I. Contractor provided a material misrepresentation of fact in the application for
or negotiation of the Franchise granted under this Agreement or any
extension or renewal thereof.
14.2 Effect of Circumstances Beyond Control of Franchisee. Contractor shall not be
declared at fault or be subject to any sanction under any provision of this Agreement
in any case, in which performance of any such provision is prevented for reasons
beyond the Contractor's control. For the purposes of this Agreement, causes or
events beyond the Contractor's control shall include, without limitation, acts of God,
floods, earthquakes, landslides, hurricanes, fires and other natural disasters, acts of
public enemies, riots or civil disturbances, sabotage, restraints imposed by order of
a governmental agency or court. A fault shall not be deemed to be beyond the
Contractor's control if committed by a corporation or other business entity in which
the Contractor holds a controlling interest whether held directly or indirectly, when
such fault is due to Contractor's financial inability to perform or comply, economic
hardship, or misfeasance, malfeasance or nonfeasance by any of the Contractor's
directors, officers, employees or contractors or agents.
14.3 Effect of Pending Litigation. Pending litigation or any appeal to any regulatory
body or court having jurisdiction over the Contractor shall not excuse the Contractor
from the performance of its obligations under this Agreement, unless specifically
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provided for by court order or by the regulatory body having jurisdiction over such
matters. Failure of the Contractor to perform such obligations because of pending
litigation or petition may result in forfeiture or revocation pursuant to the provisions
of this section.
14.4 Procedure Prior to Revocation. Except as provided in paragraph 9.3 for annual
evaluations, the Authorized Representative shall notify the Contractor in writing of
the exact nature of the alleged violation constituting a ground for termination and
give the Contractor thirty (30) days, or such greater amount of time as the Authorized
Representative may specify, to correct such violations or to present facts and
arguments to refute the alleged violation. If the Authorized Representative then
concludes that there is a basis for termination, it shall notify the Contractor thereof.
If within the designated time the Contractor does not remedy and/or put an end to the
alleged violation, the City's City Council, after a public hearing where all interested
parties may be heard, may suspend or revoke the Franchise under this Agreement,
without penalty, if it determines that such action is warranted. The Contractor shall
not be held in default nor suffer any penalties where non - compliance or default is
caused by an event beyond the Contractor's control, as stated in Section 14.2.
15.0 Regulatory „Authority_
15.1 Authority. The City reserves the right to exercise the maximum authority, as may
at any time be lawfully permissible, to regulate the collection and disposal services
and any other solid waste services, the Franchise granted hereunder, and the
Contractor. Should applicable legislative, judicial or regulatory authorities at any
time permit regulation not presently permitted to the City, the City may without the
approval of the Contractor engage in any such additional regulation as may then be
permissible, whether or not contemplated by this Agreement or the City Code,
including without limitation, regulation regarding franchise fees, taxes,
programming, rates charged to customers, consumer protection, or any other similar
or dissimilar matter. The City agrees to meet and confer with the Contractor prior
to enacting new regulatory ordinances.
15.2 Right of Inspection. The City shall have the right to inspect in a timely manner and
in the accompaniment of a representative of the Contractor all collection and disposal
services performed subject to the provisions of this Agreement and equipment used
by Contractor, and to make such tests as it shall find necessary to ensure compliance
with the terms of this Agreement, the City Code and any other applicable provisions
of local, state or federal law.
15.3 City Regulation. To the extent that federal or state law or regulation may now, or
as the same may hereafter be amended by legislation, administrative regulation or
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decision, or judicial determination, authorize the City to regulate the rates for any
particular service tiers, service packages, equipment, or any other services provided
by Contractor, the City shall have the right to exercise rate regulation to the full
extent authorized by law, or to refrain from exercising such regulation for any period
of time, at the sole discretion of the City. The City shall provide advance notification
to the Contractor of its intention to exercise any such regulation and written
notification when such ordinance is adopted. However, failure to so provide advance
notification to the Contractor or written notification when such ordinance is adopted
shall not be a basis upon which to declare this Agreement in breach or to invalidate
the ordinance.
15.4 City Health and Sanitation Regulations. Without any limitation on the authority
granted City above, City reserves the unconditional right to adopt by ordinance
additional health and sanitation regulations which shall apply to the collection and
disposal of solid waste, biohazardous waste, biological waste, construction and
demolition debris, hazardous waste, sludge, special waste and all other kinds of
waste. To the extent determined at the sole discretion of the City's City Council,
these regulations shall be codified in Chapter 62 of the City Code. Contractor shall
fully comply with these regulations to the extent applicable to the collection and
disposal services provided under this Agreement and said regulations shall be
deemed to be fully incorporated herein by this reference. In the event any provision
of this Agreement is in conflict with any provision of the additional City health and
sanitation regulations, the provision contained in this Agreement shall prevail.
16.0 Liability and Insurance
16.1 Certificate of Insurance. Prior to the effective date of this Agreement and thereafter
continuously throughout the duration of the Agreement and any extensions or
renewals thereof, Contractor shall furnish to the City, certificates of insurance and
endorsements, in a form approved by the City, for all types of insurance required
under this section. Failure to furnish said certificates of insurance and endorsements
in a timely manner shall constitute material breach of this Agreement. At the City's
request, Contractor shall furnish certificates of insurance and endorsements which
are in effect from time to time.
16.2 No Liability Limit. Neither the provisions of this Section or any damages recovered
by the City hereunder, shall be construed to limit the liability of Contractor for
damages under this Agreement.
16.3 Endorsement. All insurance policies maintained pursuant to this Agreement shall
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contain an endorsement in substantially the following form:
It is hereby understood and agreed that this insurance policy
may not be modified or canceled by the insurance company
nor the intention not to renew be stated by the insurance
company until thirty (30) Days after receipt by the City of
Cape Canaveral City Manager by certified mail, of a written
notice of such intention to cancel or not to renew.
16.4 State Institution. All insurance policies provided pursuant to this Agreement shall
be written by companies authorized by the Florida Insurance Commissioner to do
business in the State of Florida as an insurance company. The insurance company
shall have a Best Insurance rating of A or better, unless otherwise approved by the
Authorized Representative.
16.5 Named Insured. The City shall be an additional named insured for all insurance
policies written pursuant to this Agreement, as the City's interests may appear from
time to time.
16.6 Changes in Policy Limits. To offset the effects of inflation and to reflect changing
liability limits, all of the coverage, limits, and amounts of the insurance provided for
herein are subject to reasonable increases at the end of every two (2) year period of
this Agreement, applicable to the next two (2) year period or termination date of this
Agreement (whichever occurs first), at the City's discretion, but not to exceed the
coverage, limits, and amounts of insurance the City requires of other contractors
transacting business with the City.
16.7 Commercial General Liability Insurance. Contractor shall maintain throughout
the term of this Agreement, general liability insurance insuring Contractor in the
minimum of:
A. $1 000,000 for property damage single limit; and
B. $1,000,000 single limit liability for personal bodily injury or death to any one
person.
16.8 Automobile Liability Insurance. Contractor shall maintain throughout the term of
the Agreement, automobile liability insurance for owned, non - owned, or rented
vehicles in the minimum amount of:
A. $ 1,000,000 single limit liability for bodily injury and consequent death per
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occurrence; and
B. $1,000,000 for property damage per occurrence.
16.9 Worker's Compensation. Contractor shall maintain throughout the term of the
Agreement, worker's compensation at least to the minimum amount of the statutory
limit for worker's compensation, as amended from time to time.
17.0 Indemnification and Hold Harmless For all collection and disposal services performed
by Contractor pursuant to this Agreement, Contractor agrees to the fullest extent permitted
by law, to indemnify and hold harmless the City, its council members, attorneys, employees,
officers, and agents from and against all claims, losses, damages, personal injuries (including
but not limited to death), or liability (including reasonable attorney's fees through any and
all administrative, pre - trial, trial, post judgment, and appellate proceedings), directly or
indirectly arising from: (i) the acts, errors, omissions, intentional or otherwise, arising out of
or resulting from Contractor's or its subcontractors, or agents performance of the collection
and disposal services pursuant to this Agreement; (ii) defaults under this Agreement; (iii)
failing to properly train employees under Contractor's control or direction; and (iv) failing
to properly equip or hire employees under Contractor's control or direction in the
performance of the collection and disposal services under this Agreement.
The indemnification provided above shall obligate Contractor to defend at its own expense
or to provide for such defense, at the option of the City, as the case may be, of any and all
claims of liability and all suits and actions of every name and description that may be brought
against the City, its council members, attorneys, employees, officers, and/or agents which
may result from the collection and disposal services under this Agreement whether the
collection and disposal services be performed by the Contractor, its subcontractors, or anyone
directly or indirectly employed by them. In all events the City shall be permitted to choose
legal counsel of its sole choice, the attorney fees for which shall be sub ect to and included
with this indemnification provided herein, as long as said fees are no greater than at a rate
deemed reasonable at the time indemnification is required.
The City agrees to be responsible for the City's own negligent acts and omissions.
18.0 Interference with Persons Public and Private Properly, and Utilities. Contractor's
collection equipment and personnel used in performing the collection and disposal services
hereunder shall:
A. Not endanger or interfere with the health, safety or lives of persons;
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B. Not interfere with any improvements which the City, county, state, and
federal government may deem proper to make;
C. Not interfere with the free and proper use of Public Rights -of -Way, alleys,
bridges, easements or other public property, except to the minimum extent
possible during actual collection and disposal services being provided
hereunder;
D. Not interfere with the rights and reasonable convenience of private property
owners, except to the minimum extent possible during actual collection and
disposal services being provided hereunder; and
E. Not obstruct, hinder or interfere with any gas, electric, water, wastewater,
reclaimed water, stormwater drainage, telephone, or other utility facilities
located within the service area.
1 9.0 Books and Records Available to City; Quarterly Report to City Council
..�
19.1 Records. With advance written request, the City shall have the right to inspect and
copy at any time during Contractor's normal business hours, all books, records, maps,
revenue statements, service complaint logs, performance test results and other like
materials of the Contractor that are directly related to the collection and disposal
services provided under this Agreement and which constitute a public record under
Chapter 119, Florida Statutes. It is agreed that this Solid Waste Agreement and
Contractor's performance thereunder as an independent contract does not render
Contractor a public agency. Further, Contractor's trade secrets and proprietary
information shall not be subject to disclosure hereunder. Said records shall be
maintained at Contractor's office set forth in paragraph 4.1 (G) of this Agreement.
19.2 Review. For records not constituting a public record under Chapter 119, Florida
Statutes, Contractor shall permit, during Contractor's normal business hours, the
Authorized Representative to examine, at the City's discretion, any and all maps and
other records kept or maintained by the Contractor or under its control concerning the
operations, affairs, transactions or property of Contractor relative to the collection
and disposal services provided under this Agreement. The examination shall take
place at Contractor's office.
19.3 Reports to be Filed. The following reports shall be provided to the City:
A. A monthly customer report sorted alphabetically by address, which lists the
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customer's address and name, type, quantity, and size of the container picked -
up from the customer, and a description of the kind of service provided
customer.
B. An annual report prepared by Contractor or the parent company of Contractor
shall be provided annually at the time said report is published.
19.4 Mandatory Records. The Contractor shall at all times maintain:
A. A record of all complaints received and interruptions, disruptions, or
degradation of collection and disposal services for the preceding year prior
to the annual performance evaluation by the City.
B. A full and complete document(s) describing the rates, schedules, and routes
for the collection and disposal services.
C. A record of all customers, and fees received from them by Contractor, for
collection and disposal services not billed by the City, if any.
19.5 Quarterly Report to City Council. Contractor shall present a quarterly report to the
City Council for each calendar quarter regarding the status of collection and disposal
services being provided hereunder.
19.6 other Records. The City may impose reasonable requests for additional
information, records and documents from time to time, and the Contractor shall
produce said records within ten (10) business days, so long as such request relates to
the City's enforcement abilities under this Agreement or the Code.
20.0 Preferential or Discriminatory Practices Prohibited All collection and disposal services
rendered and all rules and regulations adopted by Contractor shall have general application
to all persons and shall not subject any person to prejudice or disadvantage on account of
race, gender, religion, origin, or ethnicity. Contractor shall not deny service to any group of
potential customers within the City because of the income of the customers within the service
area. Contractor shall not charge customers different rates for service for the same class or
type of service. However, this paragraph is not intended to restrict Contractor from offering
reasonable discounts to senior citizens or other economically disadvantaged groups in
accordance with any local, state, or federal law.
21.0 Storms; Hurricanes; Natural Disasters; Calamities In the event a major storm, hurricane,
natural disaster, or any other type of major or serious calamity ( "calamity ") causes an
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excessive amount of refuse, vegetative waste, bulk trash, or other excessive debris ( "debris ")
to accumulate on streets, alleys, bridges, and on private and/or public property, Contractor
shall collect such debris at the City's written request. City agrees to pay Contractor for such
additional service in an amount mutually agreed upon in writing by the City and Contractor.
Contractor acknowledges and agrees that collection and disposal services performed after a
calamity may be subject to special procedures in order that the City can receive
reimbursement from state and federal agencies like FEMA. In such cases, Contractor shall
be fully responsible and liable for complying with all such procedures and shall also
indemnify and hold harmless the City in the event Contractor fails to comply with said
procedures. Nothing in this Agreement shall exclude or prohibit the City or any other
contractors from collecting and disposing of such debris caused by a major or serious
calamity.
22.0 Miscellaneous Provisions
22.1 Independent Contractor. Contractor is an independent contractor and nothing in
this Agreement is intended nor shall be construed to create an employer /employee
relationship, a joint venture relationship, a partnership relationship, or to allow the
City to exercise control or direction over the manner or method by which Contractor
performs the collection and disposal services which are the subject matter of this
Agreement. Contractor understands and agrees that: (i) the City will not withhold
on behalf of Contractor pursuant to this Agreement any sums for payment of income
tax, unemployment insurance, social security or any other withholding; (ii) all such
payments, withholdings and taxes are the sole responsibility of Contractor; and (iii)
Contractor will indemnify and hold the City, its City Council members, attorneys,
employees, officers, and/or agents harmless from and against any and all loss or
liability arising with respect to such payments, withholdings, or taxes, including, but
not limited to reasonable attorneys' fees through any and all administrative, pre - trial,
trial, post trial judgment, and appellate proceedings. The parties hereto agree that
both Contractor and the City shall have the right to participate in any discussion or
negotiation with the Internal Revenue Service concerning Contractor's independent
contractor status regardless of with whom or by whom such discussions or
negotiations are initiated. In the event that any applicable government agency
determines that Contractor is an employee of the City and the City is required to pay
any additional amount to any governmental authority based upon Contractor being
reclassified an employee of the City, Contractor hereby covenants and agrees to
reimburse immediately the City for any such amount paid to any such governmental
authority and the costs and expenses associated with defending the City, including,
but not limited to reasonable attorneys' fees. In the event that Contractor is
reclassified as an employee and becomes eligible for a refund of any taxes paid to any
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governmental agency, including but not limited to, a claim for refund of self -
employment taxes, then Contractor hereby covenants and agrees to pursue any such
refund and assign to the City the proceeds from any such refund.
22.2 No Joint Venture. Nothing herein shall be deemed to create a joint venture or
principal -agent relationship between the parties, and neither party is authorized to,
nor shall either party act toward third persons or the public in any manner which
would indicate any such relationship with the other.
22.3 Entire Agreement. This Agreement represents the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof, and
supersede all prior oral negotiations and written agreements between the parties.
This Agreement may be amended, supplemented, modified, or changed only by a
written instrument agreeing to said amendment, supplementation, modification, or
change in the terms hereof by the parties.
22.4 Notices. Any notice, request, instruction, or other document to be given as part of
this Contract shall be in writing and shall be deemed served when either delivered in
person to the following designated agents or received by registered or certified
United States mail, return receipt requested, postage prepaid, or received by
facsimile, addressed as follows:
TO THE CITY:
City Manager
City of Cape Canaveral
105 Polk Avenue
Cape Canaveral, FL 32920
ph: 321 -868 -1230
TO THE CONTRACTOR:
George Geletko
Florida Government Affairs Director
Waste Management, Inc., of Florida
7352 Talona Drive
W. Melbourne, Florida 32904
Ph: 407 -723 -4455
Either party may change the aforementioned designated agents at any time by
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providing written notice of such change to the other party.
22.5 Captions. Captions to sections through this Agreement are solely to facilitate the
reading and reference to the sections and provisions of the Agreement. Such captions
shall not affect the meaning or interpretation of the Agreement.
22.6 Severability. If any section, subsection, sentence, clause, phrase, or portion of this
Agreement is, for any reason, held invalid or unconstitutional by any court of
competent jurisdiction, such portion shall be deemed a separate, distinct, and
independent provision. Such holding shall not affect the validity of the remaining
portions of this Agreement, unless the City determines that the portions remaining
(without the severed portions) have an adverse effect on the best interests of City,
then City shall have the right to terminate this Agreement.
22.7 City's Rights of Intervention. Contractor agrees not to oppose intervention by the
City in any suit or proceeding to which Contractor is a party, concerning or involving
this Agreement and the City's rights under this Agreement.
22.8 Attorney's Fees. In the event of litigation arising out of or relating to this
Agreement, the prevailing party shall be entitled to recover all its reasonable
expenses, including attorney's fees, costs, and other expenses reasonably and
necessarily incurred, through all administrative, pre - trial, trial, post judgment, and
appellate proceedings.
22.3 Counterparts. This Agreement may be executed in any number of counterparts,
each of which when so executed and delivered shall be considered an original
agreement; but such counterparts shall together constitute but one and the same
instrument.
22.10 Waiver. Failure of the City to insist upon performance within any time period or
upon a proper level of service shall not act as a waiver of the City's right to later
claim a failure to perform on the part of Contractor.
22.11 Jurisdiction; Venue. This Agreement is made and shall be interpreted, construed,
governed, and enforced in accordance with the laws of the State of Florida. Venue
for any state action or litigation shall be Brevard County, Florida. Venue for any
federal action or litigation shall be Orlando, Florida.
23.0 Effective Date; Term
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23.1 Effective Date. The effective date of the Contract shall be October 1, 2004. The
prior Contract between the parties, and all addendums thereto, is hereby superseded
and of no further force and effect; provided, however, Contractor shall be paid the
last month's billing under the prior Contract for only the last month's collection and
disposal services performed by Contractor.
23.2 Term. The term of this Agreement shall be from October 1, 2004 to September 30,
2009, subject to an annual evaluation by the City under paragraph 9.0 herein and
termination as provided for in paragraph 14.0 herein. The term of this Agreement
may be extended pursuant to paragraph 23.3 herein.
23.3 Renewal. By mutual agreement between the parties, this Agreement may be
renewed by exercising a maximum of two (2) five (5) year renewal terms. Contractor
shall deliver to the City written notice of its desire to renew this Agreement at most
One Hundred Eighty (180) days and at least Ninety (90) days prior to the expiration
of this Agreement or renewal thereof.
24.0 Disru Lion in Collection and Disposal Services. In the event a disruption (e.g. strike, labor
stoppage, collection equipment in disrepair) causes Contractor to fall one week or more
behind in its collection schedule, City may, at its option, cause the collection and disposal
services to be performed by any means available to City. Such means may include, but not
be limited to, City taking over and operating the collection equipment used in the
performance of this Agreement until such time Contractor can perform the collection and
disposal services and City contracting with a third party to perform the collection and
disposal services. Any cost incurred by City in exercising this option shall be charged
against Contractor and the performance bond or alternative letter of credit furnished by
Contractor under this Agreement. The foregoing option shall only be exercised by a majority
vote of the City's City Council after the City Council has declared that the disruption has
caused an emergency to arise within the service area that adversely effects the public health,
safety, and welfare.
25.0 Liquidated DamaLres. It is the intent of Contractor and City to provide for liquidated
damages for certain breaches of this Agreement by Contractor. The liquidated damages set
forth shall not be construed as a penalty. At the effective date of this Agreement, Contractor
and City agree that any damages flowing from Contractor's breach of paragraphs 25.1
through 25.7, inclusive, are not readily ascertainable, and the liquidated damages set forth
therein are reasonable and proportionate to any damages that might reasonably be expected
from a breach of said paragraphs. As such, should Contractor fail to perform the collection
and disposal services required below, City shall be entitled to liquidated damages as follows:
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25.1 Legitimate Complaints. For each legitimate complaint in excess of ten (10) per
calendar month, liquidated damages shall be $100.00 and $25.00 each complaint in
excess of ten.
25.2 Spillage. For each occurrence Contractor fails to clean up litter or spillage (which
is prohibited by paragraphs 4.1(D) and 4.1(H), liquidated damages shall be $25.00
per occurrence.
25.3 Collection Vehicles and Containers. For each occurrence Contractor fails to
promptly clean collection vehicles or change mechanical containers or compactors
at the request of the Authorized Representative, liquidated damages shall be $25.00
per vehicle or container.
25.4 Unattended Collection Vehicles. For each occurrence Contractor leaves a loaded
collection vehicle unattended on the street unnecessarily, liquidated damages shall
be $25.00 per occurrence.
25.5 Collection Schedules. For each occurrence Contractor fails to maintain a
collection schedule required by this Agreement, liquidated damages shall be $250.00
per occurrence and $10.00 for each customer not served on a particular day as
regularly scheduled.
25.6 Failure to Keep Collection Vehicles Closed or Covered. For each occurrence
Contractor fails to keep a collection vehicle closed or covered, liquidated damages
shall be $25.00 per occurrence.
25.7 Failure to Have Back -Up Collection Equipment When Needed. For each
occurrence Contractor fails to have back -up collection equipment available to
temporarily replace collection equipment that is in a state of disrepair or is inoperable
when a customer or the Authorized Representative demands collection and disposal
services as required by this Agreement, liquidated damages shall be $25.00 per
occurrence.
Such liquidated damages shall be deducted from the monthly payments due the Contractor
under this Agreement. In the event that Contractor does not accept the deductions, the City
shall have the right to claim against the performance bond or letter of credit required under
this Agreement.
25.0 Contractor's Representative Contractor shall designate an individual to act as a
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representative for Contractor under this Agreement with the authority to transmit
instructions, receive information, and make or interpret Contractor's decisions. This person
shall be Contractor's contract administrator. Initially, the person who shall act as the
representative for Contractor with respect to this Agreement shall be George Geletko,
District Manager. Contractor may from time to time designate other individuals or delete
individual's with the authority to act for Contractor under this Agreement with the authority
to transmit instructions, receive information, and make or interpret Contractor's decisions.
All deletions or designation of individuals to serve as a representative shall be given by
written notice.
27.0 Time of the Essence Contractor acknowledges and agrees that time is of the essence for
the completion of the collection and disposal services to be performed under this Agreement.
Unless otherwise extended in writing by the City, Contractor agrees to complete the
collection and disposal services as required by this Agreement.
28.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver
of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other
limitations imposed on the City's potential liability under state or federal law.
29.0 Franchise Costs. Contractor agrees to pay the reasonable administrative and legal costs
incurred by the City in initially granting this Franchise, which shall be Three Thousand and
No /100 Dollars ($3,000.00). Payment shall be made to the City no later than thirty (30) days
from the initial effective date. In the event this Franchise is renewed, transferred or assigned,
Contractor or its successor in interest shall pay to the City the reasonable legal and
administrative costs incurred with said renewal or assignment, not to exceed Three Thousand
and No /100 Dollars ($3,000.00). Payment shall be made to the City no later than thirty (30)
days from the effective date of said renewal, transfer, or assignment.
30.0 Title to Refuse. The City shall have the right and title to all refuse, except recycling,
collected by Contractor under this AgTeement.
31.0 Public Awareness Campaign.
31.1 General. Contractor agrees to provide, and assist the City in conducting, a public
awareness campaign to promote the collection and disposal services provided under
this Agreement. All materials and publications used by Contractor shall be reviewed
by the City and approved by the Authorized Representative. All materials and
publications used by the City shall be reviewed by Contractor and approved by
Contractor's representative.
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31.2 Automated Cart Program. Upon the effective date of this Agreement, Contractor
shall be implementing a new Automated Cart Program within the Service Area.
Contractor shall provide communication of said service to all customers receiving the
service by direct mail, a letter to all Homeowners' Associations, and City newsletter
and website. During the implementation phase, Contractor shall also conduct a
customer satisfaction survey which shall be reported to the City in writing upon
completion.
32.0 Additional Recycling Compensation to City_.
32.1 The Collector will maintain accurate weight records of each type of recycling
material collected within the City. The recyclable materials will be mixed with
similar materials collected from other recyling areas. The materials may be held until
enough volume is accumulated and/or the offering price appears to be in the best
range under the existing condition in the judgment of the Collector at which time the
material will be sold. The cost for processing and shipment will be taken out of the
revenue received for the sale of material. The remaining money, if any, will be the
City's. The recyclable materials may be handled through a County processing center
if and when one is developed. The revenue from the materials would be handled in
the same manner as above.
Within fifteen (15) days after the Collector receives the revenue for the materials, a
check for the City's portion of the money will be mailed to the City.
32.2 The Collector will provide the City with a monthly statement showing the quantity of
recyclable material collected, the expenses, and the revenues relating to the recyclable
materials. This report will identify by week, by type of material, the amount of recyclable
materials collected from the City. It will also show the accumulative amounts of material
from the City at the Collector's site, and the amount of the City's materials sold that month.
Within two (2) weeks of each materials sales, a report will be issued to the City showing the
amount of materials from the City that was involved in the same, the portion of the
processing and shipping cost, and the amount of money due the City. If the cost exceeds the
revenue, there will be no charge to the City, but if the revenue exceeds the cost, the City will
receive one hundred percent (100%) of the excess.
ATTEST: CITY of CAPE CANAVERAL, FLORIDA:
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By:
Susan Stills, City Clerk Rocky Randels, Mayor
CORPORATE SEAL: WASTE MANAGEMENT, INC., OF FLORIDA
Name/Title:
By:
Print
David Green, Market Area Vice President
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