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HomeMy WebLinkAboutVII(C) Discussion/ Action Re: Renewal Of Solid Waste Franchise Agreement With Jennings Environmental Services To October 15, 2000 • • _ Ocoee Agenda 2-3-98 o o Item VII C • •• ROBERT SMITH z,,,. PUBLIC WORKS DIRECTOR 560 FLEWELLINGAVE.•OCOEE,FL 34761 PHONE(407)877-8420•FAX(407)877-0392 STAFF REPORT TO: The Honorable Mayor and Board of City Commissioners FROM: Robert Smith, Public Works Director l- 0t DATE:. January 28, 1998 ISSUE: Should the City notify Jennings Environmental Services that it intends to renew the current.franchise agreement for an additional two (2) year term? BACKGROUND AND DISCUSSION: The current Franchise Agreement with Jennings Environmental Services expires October 15, 1998. The term of the franchise may be extended by mutual agreement of the City and the Franchisee for an additional two (2) year term, extending to October 15, 2000. Under the agreement each party is required to give the other written notice no sooner than twelve months (12) and no later than six (6) months prior to expiration if the contract is not to be extended beyond the initial term. Should the parties agree to extend the Agreement for the additional two (2) years, such an agreement must be entered into at least three (3) months prior to the expiration of the current agreement. I have discussed the extension of the agreement with Jennings Environmental, and we both agree to an extension. The extension would place the expiration of the agreement on the same day as the Yard Waste franchise. During the past term the city has received excellent service from Jennings, they have been cooperative in providing dumpster service for special events, and a minimum number of complaints have been received. Our association with Jennings has been pleasant and positive. RECOMMENDATION: Staff respectfully requests commission approval to proceed with Jennings Environmental to extend the term of the current franchise agreement to October 15, 2000. - BS:jh C: Ellis Shapiro, City Manager THE PRIDE OF WEST ORANGE AGREEMENT OF ACCEPTANCE , (Garbage Collection Franchise Agreement) THIS AGREEMENT OF ACCEPTANCE is made and entered into this 6 day of Ah U&rit 4&A 1996 by and between JENNINGS ENVIRONMENTAL SERVICES, INC., a Florida corporation ("JES"), whose mailing address is P.O. Box 6862, Longwood, FL 32791-6862, WESTERN WASTE INDUSTRIES, a Florida corporation ("WWI"), and the CITY OF OCOEE, a Florida municipal corporation ("the City"). WITNESSETH: WHEREAS, the City and WWI have previously entered into a Commercial Garbage Collection Franchise Agreement, dated September 6, 1995 ("the Franchise Agreement"), granting WWI an exclusive franchise for the collection of commercial garbage within the corporate limits of the City; and WHEREAS, WWI desires to assign the Franchise Agreement to JES, assigning all of WWI's rights and responsibilities under the Franchise Agreement to JES; and WHEREAS, the provisions of Section 17 of the Franchise Agreement provide that no assignment shall be effective until the City has approved the assignment and the assignee has executed with the City an Agreement of Acceptance; and 'WHEREAS, WWI and JES have requested that the City consent to the assignment of the Franchise Agreement to JES and approve all documents necessary to accomplish such assignment; and • WHEREAS, subject to the terms and conditions set forth herein, the City desires to approve the assignment of the Franchise Agreement and all of the rights and responsibilities thereunder from WWI to the JES. NOW THEREFORE, in consideration of the premises set forth above and other valuable considerations, the receipt and sufficiency of which is hereby acknowledged, JES, WWI and the City hereby agree as follows: (1) The above recitals are true and correct and are incorporated herein by reference as if fully set forth herein. 1 (2) JES represents and warrants to the City that the Franchise Agreement and all of the rights and responsibilities of WWI thereunder have been duly 'assigned and transferred from WWI to JES and that JES has accepted such assignment and transfer. (3) JES hereby agrees to be bound by all of the terms and conditions of the Franchise Agreement and hereby assumes all of the rights and responsibilities of WWI thereunder in the sane manner as if JES were the original signatory to the Franchise Agreement. (4) JES hereby ratifies the Franchise Agreement and acknowledges that it is in full force and effect and that JES is bound by all of the terms, conditions and limitations thereof. (5) All references in the Franchise Agreement to the "Franchisee" shall hereafter be deemed to refer to JES. • (6) . All notices to the "Franchisee" shall hereafter be sent to JES at the address indicated on the first page of this Agreement of Acceptance. (7) WWI hereby joins in this Agreement of Acceptance for the sole purpose of acknowledging that it has assigned and transferred the Franchise Agreement to TES along with all of its rights and responsibilities thereunder. (8) Subject to the terms, conditions and limitations set forth herein, the City hereby consents to and approves the assignment of the Franchise Agreement to JES as set forth herein. (9) Nothing contained herein shall be construed to relieve WWI of its obligations under Section 15, Books and Records, and Section 18, Indemnification, of the Franchise Agreement, which obligations shall survive the assignment to JES and remain binding on WWI; provided, however, that JES may discharge such obligations on behalf of WWI. (10) This Agreement of Acceptance shall become effective upon execution by all of the parties hereto. (11) The terms of the Franchise Agreement remain in full force and effect except to the extent expressly set forth herein. IN WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by its proper officers as of the date and year first above written: 2 • / Signed, sealed and delivered JENNINGS ENVIRONMENTAL in the presence of: SERVICES, INC. • By: • W. ness Pri Name: Jo Jennin s )(itid(M- (1-2(2r-S�� Title: Regional Vice President Witness Executed on: October 7 , 1996 Signed, sealed and delivered WESTERN WASTE INDUSTRIES in the presence of: Witness Print Name: Robert J. Hyres Title: Governmental Contracts Manager Witness Executed on: October 7 , 1996 3 a Signed, sealed and delivered in the presence of: CITY OF OCOEE, FLORIDA an.c.nac 1 4,4izszat...) By: t om-"` (1, Witness M ALI A N B. GREEN S. Scott Vandergrift, Miy r itness „lu o iE , L u),a Attest: J Grafton, City Jerk (SEAL) Executed on: ./i o dc--018 64- S— • , 1996 FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA COMMISSION AT A MEETING APPROVED AS TO FORM AND FIELD ON A)OOcm ,S;1996 LEGALITY this � FIELD of FJJ' , 1996. UNDER AGENDA ITEM NO. C. FOLEY & LARDNER By: 64) 4‘111 City Attorney C:\WP5I\DOCSIBKA\OCOEEUES.AGRI9/10/96I1SWOl4IBKA:m 4 COMMERCIAL AND MULTI-FAMILY SOLID WASTE CO:.LECTION FRANCHISE AGREEMENT THIS AGREEMENT is made and entered into this 6th day of September , 1995, between the CITY OF OCOEE, a Florida municipal corporation (hereinafter refereed to as the "City") and WESTERN WASTE INDUSTRIES, INC. OF FLORIDA, a Florida corporation (hereinafter referred to as the "Franchisee") for the purposes of granting an exclusive franchise for the collection of commercial and multi-family solid waste within the corporate limits of the City, all subject to the terms, conditions and limitations set forth herein. Section 1. Definitions For the purposes of this Agreement,. all terms and words shall have the meaning set forth in Chapter 143 of the Ocoee City Code and in the definitions contained in Part IV of Chapter 403 , Florida Statutes, and in state administrative rules adopted pursuant to Part IV of Chapter 403, Florida Statutes; as such statutes and rules may be amended from time to time. All references herein to "multi-family" or "multi-family accounts" shall refer to multi-family residential units containing more than four (4) single family residential units. Section 2 . Grant of Franchise. In consideration of the agreement of the Franchisee to (i) perform the services set forth in this Agreement, (ii) pay to the City the Franchise Fee set forth in Section 14 hereof, and (iii) otherwise comply with the terms and conditions of this Agreement, the City hereby grants to the Franchisee the exclusive franchise, including every right and privilege pertaining thereto, ' to operate and maintain solid waste collection and disposal service for commercial and multi-family accounts within the corporate limits of the City, except as provided in Section 12 hereof. Section 3. Limits of the Franchise. Except as set forth herein, the franchise covers the corporate limits of the City of Ocoee. Franchisee agrees that the limits of the franchise are subject to expansion or reduction by annexation or contraction of municipal boundaries and Franchisee has no vested right in a specific area. Further, Franchisee acknowledges and agrees that its right to serve certain lands hereto or hereafter annexed by the City which were the subject of an exclusive solid waste collection services franchise with Orange County which was in effect at least 6 months prior to the initiation of annexation is limited by the provisions of Section 171. 062 (4) , Florida Statutes, as it may from time to time be amended. 1 Section 4. Term. The franchise shall be granted for an initial term of three (3) years commencing on October 16, 1995 and terminating on October 15, 1998 , unless sooner terminated by the City due to breach of the terms of this • Agreement by the Franchisee ("the Initial Term") . The Initial Term of the franchise may be extended by mutual agreement of the City and the Franchisee for an additional two (2) year term commencing with the expiration of the Initial Term and terminating on October 15 , 2000. Should the City or the Franchisee determine not to extend the term of the franchise beyond the Initial Term, they shall provide written notice of such intent to the other party no sooner than twelve (12) months prior to the expiration of the Initial. Term and no later than six (6) months prior to the expiration of the Initial Term and in the event of such notice the franchise and this Agreement shall terminate upon expiration of the Initial Term. In the event neither party gives notice as aforesaid that it does not desire to extend the term of the franchise, then the City and the Franchisee shall enter into an amendment extending the term of the franchise and this Agreement for an additional 2-years for a total of 5-years, such agreement to be entered into at least three (3) months prior to expiration of the Initial Term. Section 5. Collection Services and Operations. A. Except as set forth in Section 12 hereof, the Franchisee shall provide solid waste collection and disposal services to all commercial and multi-family accounts commencing October 16, 1995 . The Franchisee shall transport all solid waste collected to a properly licensed solid waste facility. B. The Franchisee shall provide all labor, materials, equipment, supervision and facilities necessary to provide efficient and effective collection services. The Franchisee shall pay all costs, expenses, and charges required to perform the collection services and dispose of the collected materials including the disposal charges and "tipping fees" at the solid waste facility. The Franchisee shall comply with all applicable local, state and federal statutes, laws, ordinances, rules and regulations. Section 6. Frequency of Collections. Franchisee shall make collections from each account at least twice a week on a regularly-scheduled basis. Collection shall be made between the hours of 7:00 a.m. and 8 : 00 p.m. , Monday through Saturday. Franchisee may provide for collections- on a less frequent basis upon written approval of the City. 2 • Section 7. Routes and Schedules. - Franchisee shall provide the City with schedules and collections routes and shall keep such information current at all times. Franchisee shall notify each customer and the City prior to any change in collection schedules which alter the day of collection. Section 8.- Equipment. A. The Franchisee shall have on hand at all times and in good working order such equipment as shall permit the adequate and efficient collection of all commercial and multi-family accounts. Equipment shall be obtained from nationally known and recognized manufacturers of solid waste collection and disposal equipment. The Franchisee shall have available reserve equipment which can be put . into service in the event of any breakdown. Vehicles used in a collection of commercial and multi-family accounts shall be marked with the name of the Franchisee, business telephone number and the number of the vehicle in letters not less than five (5) inches high on each. side of the vehicle. B. The Franchisee shall provide all receptacles, containers, or dumpsters necessary for the collection of all commercial and multi-family accounts. The Franchisee shall make arrangements with each customer for the removal and replacement of receptacles which do not conform to Franchisee 's equipment. The City shall retain ownership and control of all receptacles currently the property of the City. Section 9. Complaints. The Franchisee shall assign a qualified person or persons to be in charge of operations within the service area. The Franchisee shall give the name and qualifications of these persons to the City. The Franchisee shall institute a system for addressing complaints from all accounts within the City and from residents which shall include informing each customer and the City of the phone number at which complaints will be received. Such phone will be promptly answered at a minimum from 8 : 00 a.m. to 5: 00 p.m. , Monday through Friday. In the event that the Franchisee is unable to promptly resolve any such complaints the Franchisee shall promptly notify the City of the nature of the complaint and the attempts made to resolve the complaint. Section 10. Personnel. A. The Franchisee shall see to it that its employees serve the- public in a courteous, helpful and impartial manner. B. Franchisee collection employees shall wear dress uniforms bearing the company name during working hours. 3 C. Each person employed to operate a vehicle shall at all times carry a valid Florida Driver' s, License for the type of vehicle being operated. D. The Franchisee' s collection employees will be required to remain on public right-of-ways and the premises of its customers. No trespassing by employees will be permitted on private property. Care shall be taken to prevent damage to property, including receptacles, trees, shrubs, flowers and other plants. Section 11. Spillage. The Franchisee shall not litter or cause any spillage to occur upon the premises or the rights-of-way wherein the collection occurs. The Franchisee may refuse to collect any solid waste that has not been placed in an appropriate receptacle. During hauling, all solid waste shall be contained, tied or enclosed so that leaking, spilling and blowing is prevented. In the event of any spillage caused by the Franchisee, the Franchisee shall promptly clean up all spillage at its sole cost and expense. In theevent that the Franchisee fails to promptly clean up spillage, then the City may do so and the Franchisee shall pay the City all costs and expenses incurred by the City in connection therewith. Section 12. Excluded Solid Waste. • Hazardous waste, biological waste, used oil and yard trash are expressly excluded from the franchise granted herein. Additionally, construction and demolition debris from residential building, roofing and remodeling are expressly excluded from the franchise granted herein; provided, however, that nothing contained herein shall preclude the City, at the City's sole option, from amending this Agreement to include within the scope of the franchise granted herein the exclusive right and privilege to. collect all construction and demolition debris from residential building, roofing and remodeling. Section 13. Subcontractors. Subcontractors shall be allowed only with the prior , approval of the City Commission which consent may be granted or withheld in the discretion of the City Commission. The consent of the City Commission shall not be construed as making the City a part of such subcontract or subjecting the City to liability of any kind to any subcontractor. Section 14. Rates and Charges. A. Rates to be charged for the commercial and multi- family solid waste collection and disposal service to be performed 4 under this Agreement are as set forth in Exhibit "A" attached hereto and by this reference made a part hereof. B. The Franchisee, at its sole cost and expense, shall be solely responsible for the billing and collection of all fees and charges payable to the Franchisee by customers for services rendered pursuant to this Agreement. The Franchisee shall use its best efforts to bill and collect. all such fees on a monthly basis unless otherwise agreed to in writing by the City. C. In consideration for the, grant of this franchise and the execution of this Agreement by the City, the Franchisee agrees to pay to the City a franchise fee equal to TWENTY PERCENT (20%) of the fees and charges actually collected by the Franchisee from customers for services rendered pursuant to the franchise granted by this Agreement ("the Franchise. Fee") . The Franchisee shall pay • the Franchise Fee to the City on or before the tenth (10th) day of each month with respect to the fees and charges actually collected by the Franchisee during the previous month. Such payment shall be transmitted on a City approved form and shall include a certification by the Franchisee of the fees and charges actually collected during the prior month and such other information as may be required by the City. Failure of the Franchisee to make timely payment to the City of the Franchise Fee or falsification of the certification regarding fees and charges actually collected shall constitute a default by the Franchisee of this Agreement. D. Notwithstanding any provisions contained herein to the contrary, the rates and charges for commercial and multi-family solid waste collection and disposal services set forth in Exhibit "A" hereto shall remain in effect until at least January 1, 1998 . Thereafter, subject to the terms and conditions set forth herein, the Franchisee may annually request a change in such rate schedule by submitting a written request to the City accompanied by supporting data relating to changes in the cost. of service and the profitability of the enterprise. Any such annual request for a rate change must be submitted to the City on or before January 15 of the' year in which such proposed rate change will be effective (but no earlier than November 15 of the prior year) . All requested rate changes shall be considered in good faith by the City Commission taking into account the supporting data submitted by the Franchisee, the rates charged for commercial and multi-family solid waste collection and disposal in other comparable Central Florida communities and such other information as may be presented to the City Commission. The City Commission shall not approve any requested rate change until after a public hearing preceded by at least seven (7) days ' notice of the hearing and the proposed action by publication in a newspaper of general circulation in the City of Ocoee. Any rate change shall not become effective until the City and the Franchisee have executed an amendment to this Agreement setting forth the new rates and the effective date thereof; provided, however, that any such amendment may be considered at the 5 same meeting at which the public hearing is held. Any such new rate may be retroactive to the beginning of the billing period in which such amendment is executed. Any rate change approved by the City Commission shall remain in effect until at least January 1 of the following year. Except as aforesaid, the Franchisee shall not be entitled to apply to the City for a change in the rate schedule. Nothing contained herein shall be construed to obligate the City Commission to approve any change in the rates set forth herein. E. Notwithstanding any provisions contained .herein to the contrary, the Franchisee has agreed to, at no cost or expense to the City, provide the City with the following services: 1. Dumpsters in sizes to be mutually agreed upon at all City owned and operated facilities, including but not limited to City Hall, City parks and recreational facilities and the City Sewer Plant, and the removal and disposal of all solid waste and other materials placed in such dumpsters. 2 . Temporary dumpsters in a size to be mutually agreed upon for all City sponsored events which are open to the general public. The removal and disposal of all solid waste and other materials placed in such dumpsters and the removal of such dumpsters promptly following each City sponsored event. The above services are provided to the City at no cost or expense in further consideration for the grant of this franchise and the execution of this Agreement by the City. F. Notwithstanding any provisions contained herein to the contrary, the Franchisee has agreed to, at no cost or expense, provide solid waste collection and disposal services to all religious institutions located within the corporate limits of the City. This donated service shall include providing a dumpster in a size to be mutually agreed upon between the Franchisee and the religious institution. For the purposes hereof, "religious institutions" means churches and ecclesiastical or denominational organizations or established physical places of worship at which non-profit religious services and activities are regularly conducted and carried on. Section 15. Books and Records. A. The Franchisee shall keep complete books and records at its place of business in Central Florida, setting forth a true and accurate account of all business transactions arising out of or in connection with this Agreement, including but. not limited to a complete customer account listing and a record of all fees and , charges billed and collected, all in accordance with good business practices and generally accepted accounting principles. The City shall have the right to have access to and inspect and copy the 6 contents of said books and records during normal business hours. Upon thirty (30) days written request from the City, the Franchisee shall provide the City with a complete customer account listing and • a record of all fees and charges billed and collected during the prior twelve (12) months. B. The Franchisee shall annually submit to the City an audited financial statement with respect to all business transactions arising out of or in connection with this Agreement, which shall have been prepared by an independent certified public accountant reasonably acceptable to the City. The financial statement shall include a determination of all fees and charges billed and collected by the Franchisee pursuant to the franchise granted by this Agreement and the Franchise Fees due to the City pursuant to this Agreement. Each such audited financial statement shall be based on the City's fiscal year of October 1 to; September 30 and shall be submitted to the City on or before November 15 of each year except that the last such audit shall be submitted within sixty (60) days after the termination of this Agreement. Section 16. Preliminary Plans. The Franchisee shall, at no cost or expense, review the preliminary subdivision and site plans for all commercial and multi-family developments within the City and provide the City in a timely manner with written comments concerning the placement and location of solid waste receptacles or dumpsters. Section 17. Assignment. This Agreement and the rights and privileges hereunder shall not be assigned or otherwise transferred by Franchisee except with the express written approval of the City. The City reserves the right in its sole and absolute discretion to approve or disapprove any such requested assignment or transfer of this Agreement. The City may require that any proposed assignee submit similar documentation to that provided by the franchisee at the time of award of the franchise. No assignment or transfer shall be effective until the assignee or transferee has executed with the City an Agreement of Acceptance, subject to approval by -the City, evidencing that the assignee or transferee accepts the assignment or transfer subject to all of the terms, conditions and limitations imposed herein. Any such assignment or transfer shall be in form and content subject to the approval of the City. Section 18. Indemnification. Franchisee shall indemnify, defend and hold completely harmless the City, its elected representatives, officers, employees and agents of each, from and against any and all liabilities, losses, suits, claims, demands, judgments, fines, damages, costs and expenses (including all costs for investigation and defense 7 thereof, including, but not limited to court costs, expert fees and reasonable attorneys fees and paralegal fees and attorneys and paralegal fees on appeal) which may be incurred by, charged to or • recovered from any of the foregoing (i) by reason or on account of damage to or destruction of any property of the City, or any property of, injury to or death of any person resulting from or arising out of the performance under this Agreement, or the acts or omissions of Franchisee officers, agents, employees, subcontractors, licensees or invitees, regardless of where the damage, destruction, injury or death occurred, unless such liability, loss, suit, claim, demand, judgment, fine, damage, cost or expense was proximately caused solely by City' s negligence or by the joint negligence of City and any person other than Franchisee or Franchisee's officers, agents, employees, subcontractors, licensees or invitees, or (ii) arising out of the failure of Franchisee to keep, observe or perform any of the covenants or agreements herein to be kept, observed or performed by Franchisee. City agrees to give Franchisee reasonable notice of any suit or claim for which indemnification will be sought hereunder, to allow Franchisee or its insurer to compromise and defend the same to the extent of its interests and to reasonably cooperate with the defense of any such suit or claim. The provisions of this Section shall survive the expiration or earlier termination of the term of this Agreement with respect to any acts or omissions .occurring during the term of this Agreement. Section 19 . Performance Bond. The Franchisee shall, without expense to the City, furnish a performance bond in a form acceptable to the City as security for the performance of this Agreement. Said performance bond will be in the amount of TWO HUNDRED THOUSAND AND NO/100 DOLLARS ($200, 000.00) . All premiums for the performance bond shall be paid by the Franchisee. This performance bond shall be written by a surety company licensed to do business in the State of Florida and approved by the City and shall be maintained in full force and effect throughout the term of this Agreement. Section 20. Nondiscrimination. The Franchisee agrees that it has adopted and will maintain and enforce a policy of nondiscrimination on the basis of race, color, religion, sex, age, handicap or national origin. Section 21. Insurance. A. Franchisee shall, without expense to the City, obtain and maintain or cause to be . obtained and maintained throughout the term of this Agreement: 1. Comprehensive automobile insurance (any auto, including owned autos, non-owned autos and 8 hired autos) and garage liability insurance, if applicable. 2. Comprehensive general liability, insurance (including but not limited to contractual, independent contractors, broad form property damage, and personal injury, as applicable, and such other coverage as may from time to time be generally issued by -insurance companies for businesses similar to that engaged in by Franchisee in the performance of this Agreement which City may reasonably require) protecting Franchisee, the City, its elected representatives, officers, agents and employees of each from and against any and all liabilities arising out of, or relating to Franchisee's performance of this Agreement whether such operations be by himself, or by any subcontractor or by anyone directly or indirectly employed by any of them or by anyone for whose acts any of them may be liable. 3 . Insurance against theft or damage to all Franchisee's equipment used in carrying out this Agreement. 4 . Workers ' compensation or similar insurance affording the required statutory coverage and containing the required statutory coverage and containing the requisite statutory limits. B. Such policies shall be in such form and with such company or companies as the City shall approve, and except for coverage limits of Workmen's Compensation Insurance, be in an amount no less than ONE MILLION AND NO/100 DOLLARS ($1, 000, 000. 00) combined single limit, or its equivalent, or such greater amount of such insurance as shall be maintained by Franchisee, with no deductible, with cross liability endorsement and with contractual liability coverage for Franchisee's covenants to and indemnification of the City. Franchisee' s insurance shall provide that it is primary insurance as respects any other valid and collectible insurance City may possess, including any self-insured retention or deductible City may have, and that any other insurance City does possess shall be considered excess insurance only. Franchisee's insurance shall also provide that it shall act for each insured and each additional insured as though a separate policy has been written for each; provided, however, that these provisions shall not operate to increase the policy limits. C. Franchisee shall provide, prior to the execution of this Agreement and within ten (10) days of award of the Agreement, 9 and at least thirty (30) days prior to the expiration of an insurance policy or policies theretofore provided to the City by Franchisee hereunder, a certificate of insurance evidencing all coverage required under this Section. Such certificate(s) shall name the City and its elected representatives, officers, employees and agents of each as additional insured and shall provide that the policy or policies may not be canceled or modified nor the limits thereunder decreased without thirty (30) days prior written notice thereof to the City. Franchisee agrees that City shall have the right, exercisable on ninety (90) days prior written notice to Franchisee, to require Franchisee, from time to time, to reasonably alter the monetary limits or coverage provided by such policy or policies. Section 22. Default and Termination. A. In the event that: (1) the Franchisee shall fail to keep, perform and observe each and every promise, covenant and agreement set forth in this Agreement applicable to the Franchisee, and such failure shall continue for a period of more than five (5) days after delivery to the Franchisee of a written notice of such breach or default; (2) the Franchisee ' s occupational or business licenses shall terminate for any reason; (3) the Franchisee shall become insolvent, or shall take the benefit of any present or future insolvency statutes, or shall make a general assignment for the benefit of creditors, or file a voluntary petition in bankruptcy or a petition or answer seeking an arrangement for its reorganization, or the readjustment of its indebtedness under the Federal Bankruptcy laws, or under any other law or statute of the United States or any State thereof, or shall consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its property; or (4) the Franchisee shall have a petition under any part of the Federal Bankruptcy laws, or an action under any present or future insolvency laws or statute, filed against it, which petition is not dismissed within thirty (30) days after the filing thereof; 10 then in any of such events, the City, in its discretion, shall have the right to: (i) seek specific performance of this Agreement, (ii) terminate this Agreement for Default, which termination shall be effective twenty-four (24) hours after written notice of such termination is given to the Franchisee, or (iii) pursue such other actions and remedies as may be permitted by law, including an action for actual damages incurred or suffered by the City. In the event the City elects to terminate this Agreement, then the City may, at its option, delay the effective date of termination for default until the first day of the month following the date on which written notice of such termination is given to the Franchisee. The City shall specify the termination date on its written notice of termination. B. In the event that the City shall fail to keep, perform, and observe each and every promise, covenant and agreement set forth in this Agreement applicable to the City, and such failure shall continue for a period of more than thirty (30) days after delivery to the City of a written notice of such breach, then the Franchisee may, as its sole and exclusive remedy, seek specific performance of this Agreement. It is expressly agreed that the Franchisee shall not be entitled to terminate this Agreement or seek damages against the City in the event of a default by the City. C. In the event that a dispute arises between the City and the Franchisee, or any interested party, in any way relating to this Agreement, the Franchisee shall continue to render service in full compliance with all terms and conditions of this Agreement regardless of the nature of the dispute. The Franchisee shall be liable to the City for all costs reasonably incurred in providing collection and disposal service should the Franchisee fail to provide such services. D. Upon termination of this Agreement the Franchisee shall cooperate with the City in order to ensure an orderly transition of all commercial and multi-family solid waste accounts to such new franchisee(s) as may be designated by the City. Section 23. Attorneys' Fees. In the event that either party finds it necessary to commence an action against the other party to enforce any provisions of this Agreement or because of a breach by the other party of any of the terms hereof, the prevailing party shall be entitled to recover from the other party its reasonable attorneys ' fees, paralegal fees and costs incurred in connection therewith, at both trial and appellate levels, including bankruptcy proceedings and the right to such reasonable attorneys ' fees, paralegal fees and costs shall be deemed to have accrued from the commencement of such action and shall be enforceable whether or not such action is prosecuted to judgment. 11 Section 24. Notices. All notices and approvals which any party shall be required or shall desire to make or give under this Agreement shall be in writing and shall be made or given (i) by certified mail, postage prepaid, return receipt required, (ii) by hand delivery to named individuals representing the party to be notified, or (iii) by private parcel (next day) delivery service. Notices, -including notice of a change of address or phone number, shall be addressed or transmitted to the addressees set forth below, or that a party may otherwise designate in the manner prescribed herein: As to the City: City of Ocoee 150 North Lakeshore Drive Ocoee, Florida 34761 Attention: Public Works Director Phone: (407) 877-8420 As to Franchisee: Western Waste Industries, Inc. of Florida P.O. Box 574998 Orlando, FL 32857-4998 Attention: Operations Manager Phone: (407) 273-8200 Notices and approvals given or made as aforesaid shall be deemed to have been given and received on the date of actual receipt. Section 25. Combination of Solid Waste. The City shall not be responsible for any contamination of solid waste loads which are collected by the Franchisee (i.e. , mixing of recyclable materials, yard trash, construction and demolition debris or other materials which are required to be separated prior to disposal under applicable federal, state and local statutes, laws, ordinances, rules and regulations) . Section 26. Miscellaneous. A. Time is of the essence with respect to all matters set forth in this Agreement. B. The Franchisee is not, and shall not for any purpose be, the agent of the City and shall have no power or authority to bind the City in any manner whatsoever. C. This Agreement embodies and constitutes the entire understandings of the parties with respect to the matters contemplated herein, and all prior or contemporaneous agreements, understandings, representations, and statements, oral or written, are merged into this Agreement. Neither this Agreement nor any provisions hereof may be waived, modified, amended, discharged, or 12 terminated except by an instrument in writing signed by the party against whom the enforcement of such waiver, modification, amendment, discharge, or termination is sought except by an instrument in writing signed by the party against whom the enforcement of such waiver, modification, amendment, discharge, or termination is sought, and then only to the extent set forth in such instrument. D. It is stipulated and agreed between the parties that this Agreement shall be interpreted and construed in accordance with the laws of the State of Florida and any trial or other proceeding with respect to this Agreement shall take place in the State of Florida with venue in Orange County, Florida. E. Captions of the sections and subsections of this Agreement are for convenience and reference only, and the words contained therein shall in no way be held to explain, modify, amplify or aid in the interpretation, construction or meaning of the provisions of this Agreement. F. The City shall not be responsible for any contamination of solid waste pick-ups with recyclable materials. G. The City has been induced by Franchisee to enter into this Agreement by submittal of that certain response to request for proposals dated July 11, 1995, said response being incorporated herein by reference and made a part of this Agreement. The Franchisee warrants and represents that the information submitted in said response to request for proposals remains true and correct as of the date hereof. Section 27. Severability. If any part, section, subsection, or other portion of this Agreement except for the provisions of Section 14 hereof is declared void, unconstitutional, or invalid for any reason, such part, section, subsection or other portion, or the prescribed application thereof, shall be severable, and the remaining provisions of this Agreement, and all applications thereof not having been declared void, unconstitutional or invalid shall remain in full force and effect. The City and Franchisee declare that no invalid or prescribed provision or application was an inducement at the execution of this Agreement, and that they would have executed this Agreement, regardless of the invalid or prescribed provision or application. In the event any part, subsection or other portion of Section 14 hereof is declared void, unconstitutional, or invalid for any reason, then either party may terminate this Agreement upon at least ninety (90) days notice to the other party. 13 Section 28. Charter Compliance. The franchise granted pursuant to this Agreement has been awarded following a public hearing on the proposed franchise preceded by at least thirty (30) days' notice of the hearing and the proposed action by publication once a week for four (4) consecutive weeks in a newspaper of general circulation in the City of Ocoee. IN WITNESS WHEREOF, the . CITY OF OCOEE has caused this Agreement to be executed by its Mayor and attested by its City Clerk, and has caused its seal to be hereto affixed; and the said Franchisee has caused this Agreement to be executed in its name by Craig Osepian , its Vice President, attested by Madhu Chanani , its Asst. Secretary, and has caused the seal of said corporation to be hereunto affixed, all .as of the day and year first above written. Signed, sealed and delivered CITY OF OCOEE in the presence of: IBy:., d4471 X/•���,* . Scott Vandergrif , ayor kaaiJ . i p i / Attest: Jean Graf n, City Clerk (SEAL) FRANCHISEE: WESTERN WASTE INDUSTRIES, INC. OF FLORIDA By: -4((2../„.-1.--• Vice, President Attest: ice-g/fesat-2X0--t- !),,PSecretary (SEAL) • 14 For use and reliance only APPROVED BY THE OCOEE CITY by the City of Ocoee, Florida. COMMISSION AT A MEETING HELD Approve as to form an egality ON AUGUST 15, 1995 UNDER this day of S , 1995 . AGENDA ITEM NO. V B. FOLEY & LARDNER By: City Attorney • A:IGARBAGE.NW3I8/29/93!OCOEE GARBAGE(DISC)I PER:jed 15 EXHIBIT A RATES FOR COMMERCIAL SOLID WASTE FRANCHISE 2 CUBIC YARDS 3 CUBIC YARDS 4 CUBIC YARDS 1 TIME $ 38 . 05 $ 45.96 $ 53 . 86 2 TIMES 55 . 14 74 . 19 93 . 24 3 TIMES 77 . 01 104 . 82 132 . 63 4 TIMES 98 . 89 135.45 172 . 02 5 TIMES 120 . 76 166 . 08 211. 41 6 TIMES 142 . 63 196.71 250 . 80 6 CUBIC YARDS 8 CUBIC YARDS 1 TIME $ 74 . 28 $ 93 .53 2 TIMES 131. 18 167.95 3 TIMES 188 . 09 242 .37 4 TIMES 244 . 99 316.79 5 TIMES 301. 89 391.21 6 TIMES 358 .80 465. 63 EXTRA PICK-UPS PER WEEK 2 CUBIC YARDS $10 . 00 3 CUBIC YARDS 14 . 00 4 CUBIC YARDS 16 . 00 5 CUBIC YARDS 19 . 00 8 CUBIC YARDS 22 . 00 ALL ABOVE PRICING INCLUDES FULL PRICE OF DUMPSTER RENTAL ROLL-OFFS OPEN TOP 20 CUBIC YARD $111 PER PULL + LANDFILL* OPEN TOP 30 CUBIC YARD 121 PER PULL + LANDFILL OPEN TOP 40 CUBIC YARD 131 PER PULL + LANDFILL COMPACTOR ANY SIZE ** 141 PER PULL + LANDFILL Minimum Charge - 1 pull per 30 days * LANDFILL CHARGE = ACTUAL COST + 20% FRANCHISE FEE + 10% ADMINISTRATION FEE (BAD DEBT, BILLING, CARRYING CHARGES) ** ROLL OFF COMPACTORS RENTAL = CUSTOMER DESIRED CONFIGURATION COST PLUS 20% FRANCHISE FEE + 10% ADMINISTRATION FEE. WILL ASSIST CUSTOMER TO OBTAIN THEIR OWN COMPACTOR. OTHER CHARGES CONTAINER LOCK BAR $45 INSTALLATION - CUSTOMER RESPONSIBILITY FOR UNLOCKING WHEELS $75 INSTALLATION - CUSTOMER ROLL OUT (4 CUBIC YARD MAXIMUM) RETURN TO SITE $30 - F/L EXTRA DUMP