HomeMy WebLinkAboutEmergency Item - Franchise Agreement with Waste Works:FOLEY
FOLEY & LARDNER LLP
ATTORNEYS AT LAW
AGENDA ITEM COVER SHEET
Meeting Date: July 6, 2010
Item # EMERGENCY ITEM
Contact Name:
Contact Number:
Reviewed By_
Paul E. Rosenthal, Department Director: Steve Krug
City Attorney
City Manager: Rob Frank
S,~ib~e~ 1~rr~ht~ Agr~r~~t ~ W ~b~s - ._, __y
Background Summary:
The City entered into an Exclusive Commercial and Multi-Family Solid Waste Collection Franchise
Agreement with Waste Depot LLC DBA Waste Works, dated October 20, 2009. The Franchise
Agreement was amended on January 5, 2010. Pursuant to the Franchise Agreement, the City
received a Contract Performance Bond in the amount of $200,000 issued by Platte River Insurance
Company (copy attached). Additionally, the First Amendment to the Franchise Agreement required
that Waste Works pay to the City the amount which the City incurred with Veolia ES Solid Waste
Southeast, Inc. in order for Veolia to continue to provide solid waste collection and disposal
services subsequent to the date on which Veolia anticipated that Waste Works would commence
service.
A change in ownership is currently in process with respect to Waste Depot LLC. Attached is a letter
dated July 2, 2010 from Waste Works to the City Attorney which provides specific details regarding
this change in ownership. Closing has not yet occurred on this change. The Franchisee under the
Franchise Agreement will remain as Waste Depot LLC DBA Waste Works.
In connection with the change in ownership of Waste Depot LLC, the new owners are requesting
that the City accept a substitute a Contract Performance Bond in the amount of $200,000 issued by
United Casualty and Surety Insurance Company. Additionally, Platte River Insurance Company
has requested that the City return their original bond and execute a release of all past, present and
future liability thereunder. The delivery of the requested Release (copy attached) would need to be
executed by the Mayor and City Clerk and requires City Commission approval. This request was
received on Monday, July 5"' and is not on the published Agenda. It is staff's understanding that
this must be in place for the anticipated closing on or about July 8~'. fn order for this item to be
considered by the City Commission, the Mayor would need to declare this to be an emergency
matter.
A_1587818.1
The City has received an Invoice from Veolia in the amount of $45,000 for the cost of providing
solid waste collection and disposal services subsequent to the date on which Veolia anticipated that
Waste Works would commence service. This amount is due to Veolia, but has not yet been paid by
the City. Steve Krug can address any questions regarding the Invoice. The Release of the Platte
River Insurance Company Contract Performance Bond without the receipt of this cash payment
from Waste Works in the amount of $45,000 could leave the City without any security for this
obligation. At the time of the First Amendment, the cost was estimated at $33,000.
It has been brought to staffs attention that there is a question regarding the ownership of the
dumpsters currently being used by Waste Works. This question was addressed in an email from
Rob Schwandt (one of the new owners of Waste Works) dated July 2, 2010 (copy attached).
The form of substitute Contract Performance Bond has not been finalized with United Casualty and
Surety. Attached hereto is the form of bond which is being requested by the City Attorney. This is
identical to the bond issued by Platte River Insurance Company except that it references the First
Amendment and has other provisions which assure that it is effective as of the October 20, 2010
date of the Franchise Agreement in order to avoid any gap in coverage between the date of the
original Bond and the date of the Substitute Bond.
Issue:
(1) Should the Mayor declare this matter to be an emergency item? (2) Should the Mayor and City
Commissioners approve the proposed release of Platte River Insurance Company in connection
with its Contract Performance Bond #41173998 and authorize execution thereof by the Mayor and
City Clerk?
Recommendations
Staff respectfully recommends that the Mayor declare this to be an emergency item. Staff further
respectfully recommends that Mayor and City Commission approve the proposed release of Platte
River Insurance Company in connection with its Contract Performance Bond #41173998 and
authorize execution thereof by the Mayor and City Clerk, subject to receipt from Waste Works of a
substitute Contract Performance Bond and payment for the Invoice currently due to Veolia and
further subject to such additional conditions as may be imposed by the City Commission based on
the staff presentation and discussion at the City Commission meeting.
Attachments:
1. Platte River Insurance Company Contract PerFormance Bond #41173998.
2. Letter from Waste Works dated July 2, 2010.
3. Proposed Release of Platte River Insurance Company.
4. Email Regarding Status of dumpsters.
5. Proposed Substitute Contract Performance Bond.
Financial Impact:
LA_1587818.1
Type of Item:
XX^
Public Hearing
Qrdinance First Reading
Ordinance First Reading
Resolution
Commission Approval
Discussion 8 Direction
For Clerk's Depf Use:
^ Consent Agenda
^ Public Hearing
XX^ Regular Agenda/Emergency Item
^ Original Document/Contract Attached for Execution by City Clerk
XX^ Original DocumentlContract Held by Department for Execution
Reviewed by City Attorney
Reviewed by Finance Dept.
Reviewed by ( )
Paul Rosenthal
Steve Krug/Craig Shadrix
^ N/A
^ N/A
^ N/A
X4_1587818.1
Bond No. 41173998
CONTRACT PERFOP:MANCE BOND
(Exclusive Commercial and Multi-Family Solid Waste Collection Franchise Agreement)
KNOW ALL MEN BY THESE PRESENTS that Waste Depot, LLC d/b/a Waste
Works, a Florida limited liability company, (hereinafter referred to as "Principal"}, and Platte
River Insurance Company, a corporation organized under the laws of the State of Nebraska
and licensed to do business in the State of Florida (hereinafter referred to as "Surety"), are held
and firmly bound unto the City of Ocoee, Florida, as Obligee, (hereinafter referred to as
"Obligee"), in the Penal Sum of Two Hundred Thousand Dollars ($200,000.00), for the payment
of which sum well and truly made, Principal and Surety bind themselves, and their successors
and assigns, jointly and severally, in accordance with the terms set forth herein.
Recitals
WHEREAS, Principal has by written agreement dated October 20, 2009 entered into a
contract, with the Obligee titled "Exclusive Commercial and Multi-Family Solid Waste
Collection Franchise Agreement" (hereinafter referred to as the "Contract") for the purposes of
establishing an exclusive franchise granted by the Obligee and accepted by the .Principal for the
collection of commercial and multi-family solid waste within the corporate limits of the City of
Ocoee; and
WHEREAS, the Contract identifies certain performance obligations of the Principal for a
t:rYn ofthree (3) years, ~,-hicl> tcz°m niay i~ octendeJ for an additional twu (2) y;:~~ca; ati~i
WHEREAS, the Surety acknowledges receipt of good and valuable consideration for the
obligations it assumes hereunder.
NOW, THEREFORE, it is agreed that the above Recitals are acknowledged to be true
and are incorporated herein by reference.
This Contract Performance Bond is being issued by the Surety to secure the performance
obligations of the Principal under the Contract and any additional extensions thereof. If the
Principal shall well, truly and timely perform all the .:,tadertakings, covenants, terms, conditions,
and agreements of said Contract, within the term of the Contract and all extensions thereof; and
shall also well, truly and timely perform all undertakings, covenants, terms, conditions, and
agreements of any and all duly authorized modifications of said Contract that may hereafter be
made; and shall pay, compensate, indemnify and save harmless the said Obligee of and from any
and all loss, damage and expense, caused by any breach or default by Principal under the
Contract, including, but not limited to, liquidated damages, damages caused by delays in
performance of the Principal, expenses, costs and attorneys' fees, including attorneys' fees
incurred in appellate proceedings, that Obligee sustair_s resulting directly or indirectly from
failure of the Principal to perform its performance obligations under the Contract, then the
obligations of this Contract Performance Bond shall be null and void; otherwise, this Contract
Performance Bond shall remain in full force and effect and Surety shall be liable to Obligee
under this Contract Performance Bond in accordance with its terms.
Regardless of the number of years this bond remains in effect, the total
aggregate liability of the Surety shall not exceed the penal sum of the bond."
ORLA_1484T61.1
The Surety's obligations to the Obligee hereunder shall be duect and immediate and not
eonditionaI or contingent upon Obligee's pursuit of its remedies against Principal, and shall
remain in full force and effect notwithstanding (a) amendments or modifications to the Contract
entered into by Obligee and Principal without the Surety's knowledge or consent; (b) waivers of
compliance with or any default under the Contract granted by Obligee to Principal ar by
Principal to Obligee without the Surety's knowledge or consent; (c) the discharge of Principal
from its obligations under the Contract as a result of any proceeding initiated under The United
States Bankruptcy Code, as the same may be from time to time amended, or any similar state or
federal law, or any limitation of the liability of Principal or its estate as a result of any such
proceedings; or (d) any other action taken by Obligee or Principal that would, in the absence of
this clause, result in the .release or discharge by operation of law of the Surety from its
obligations hereunder. Any changes in or under the Contract or noncompliance with any
formalities connected with the Contract or cl-.~nges therein shall not affect Surety's obligations
under this bond, and Surety hereby waives notice of any such changes.
The Surety shall perform the obligations of the Principal under the Contract upon receipt
of five (5) days written notice of the Principal's default. In the event that the Surety fails to
fulfill its obligations under this Contract Performance Bond, then the Surety shall pay, indemnify
and save the Obligee hatrriless from any and 'all loss, :damage, cost and expense, including
reasonable attorneys' fees and other legal costs for all trial and appellate proceedings, caused
directly or indirectly by the Principal's default(s) and the Surety's failure to fulfill its obligations
hereunder. This Contract Performance Bond and its obligations shall survive the termination or
^,~ cancellation of the Contract. The payFncnt and indemnification obligations .set forth ui this
paragraph shall be limited by the Penal Suin of this Contract Performance Bond.
IN WITNESS WHEREOF, the Principal and Surety have executed this
instrument under their several seals on the sth day of October, 2009, 1~f~0, the
name and corporate seal of each corporate party being hereto affixed and these presents fully
signed by its undersigned representative, pursuant to the authority of its governing body.
Signed, sealed and delivered
in the presence of:
W. ~l:~ ~T~e ot, LL'C d/b/a Waste Works Principal
~~)'`.;.,.~ ~~-~~ (SEAL)
~ r"
-~ (Off cial Title)
,~~
r
~P].~tte River Insurance Company Surety
~~~" ~ ~~ (SEAL)
Do as ee
Attorney-In-Fact (Official Title)
(Conn igned b Florida Reg1s erect Agent)
B. Leek
O R LA_1484761. t
:PLATTE RIVER IlVSURANCE ;COMPANY 411' T3 9 ~-g
-; .
POWER O~ ATTfJ.RNEY `
:.::.
KNOW ALL MEN BY THESE PRESENTS, That the PLATTE RIVER INSURANCE COMPANY, a corporation of the State of Nebraska, having its
principal offices in the, City of Middleton, Wisconsin, does make, constitute and appoint
------- --M DECKER YOUNGMAN HI,`JIM W HENDERSON; RICHARD A FREEBOURN 1R; DOUGLAS B LEEK
fts true and lawful Attorney(s)-in-fact, to make, execute, seal and deliver-for and bn:its behalf, as surety, and as its act and dcud, any and all bonds,
undertakings and contracts of suretyship, provided that no band or undertaking or contract of suretyship executed undez this authority sha[1 exceed in
amowtt the um of
------------------------ ALL WRITTEN INSTRUMENTS IN AN AMOUNT: 52,500,000:00- -----------_
>.
,.
This Yower of Attorney is granted and is signed and sea]ed by facsimile undo: and by Lhe auWority of the following Resoluhorra3ypted by the Board
of Directors of PLATTE RIVER INSURANCE COMPANY at a meeting duly called and held on the Bth day of January, 2002.
"RESOLVED, that the President, and Vice-President, .the Secretary or Treasurer, acting individually.: or otherwise, be and they hereby aze granted rho
power and authorization to appoint by a Power of Attorney for the purposes only of executing and attesting,bonds and undertakings and other writings
obligatory in he'natuce'thet'eof,':one or more vice-presidents, assistant secretaries and attorney(s)-in-fact, each appointee t0 have.the;pawers an8 duties
usual to such offices io the business of hti Corporation; the signatwc of such officers and khe seal of the Corporation tnay be.affixed to spch power Af
_ .: .
attarney..or to any certt~Cate relating thereto by facsimile, and $ny. such powerof attorney tircertificate bearing such facsimile signatures orfaasime
seal shall be valid and binding upon the Corporation in the future with respect to any bond or undertaking or other venting obligatory in the nature
thcieof io which it is attached. Any such appointment may be revoked, for cause, or without'cause, by any of said officers, at anytime."
IN WITNESS WHEREOF, the PLATTE RIVER INSURANCE COMPANY has caused these presents to be signed by its officer undersigned and its
corporate sealao be horeto~affixed duly attested, this lstday of January,:2007.
Attest: t~~~r/r PLATTE RIVER 1NSURANCE COMPANY'
Q,~~p iNSUggh,C~y
David FPauly = A T _
S~1~iL James J. McIntyre
Chairman & CEO . -; ~ i President
STATE pF ~VI5CON5[N ) ~ \~- ~~\
COUNTY OF'DANE r s.s.; aa~ '
On the 1st day bf January, 2007 before me personally came James J. McIntyre, to me known, who being by me duly sworn, :did depose and say:.thet he
resides in the: County of Dane, .State of Wisconsin; that he 3s President of PLATTE RIVER INSURANCE COMPANY, the corporation described in
and which executed the above instrument; that he knows the seal ofthe said corporation; thatihe seal affixed to said instrument is such corporate seal;
that it was so; affixed by orderof the Doard of Directorsof said corporation and tfiat he'signed his name thereto by tike tiideT.'
./ ugN1Er
I, KRUEGEA
Daniel W. Krueger
STATE OF WISCONSI7V )
COUNTY".OF DANE f ~,5.: ~""` ..Notary PuGlic, Dana Co., WI
CERTIFICATE My Commission ]s Perlilancnt
I, the undersigned, duly. elected to the office stated below, now the incumbentin PLATTE RIVER INSURANCE COMPANY, aNabzas~a Corporation,
authorized to_ make this certificate, DO, HEREBY CERTIFY that the foregoing attached Power of Attorney: remains in full force and has not been
revoked; and furthermore, that the Resolutiodof the Board of Directorsy set forth in the Power of Attorney is now ~in force.
Signed and sealed et the City of Middleton, State of Wisconsin this 8TH _ _, day of OCTOBER , Z OO9
~~
r '~
,SEAL '~
Alan S. Ogilvie
,.~-~..,. ~ Secretary
TH75 DOC.UME~IT IS NOT VALID UNLESS PRINTED ON GREEN SHADED BACKGROUND WITH A RED SERIAL NUIvIRER IN TJ1E UPPER
RIGHT HAND CORNER, IF Y-OU HAVE ANY QUESTIONS CONCERNING THE AT7THENTICITY OF THIS DOCUMENT CALL 300-475-4450,
' ra,eoa to-off
Waste Works Florida. Inc,
320 Enterprise St.
Ocoee, FL 34761
(407} 417-0047
July 2, 2010
Paul E. Rosenthal
Foley & Lardner LLP
111 North Orange Avenue #1800
Orlando, FL 32801
Re: City of Ocoee Sotid Waste Collection Franchise Contract
Dear Paul:
Following up on our recent discussions, the purpose of this letter is to update you
regarding our pending acquisition of Waste Depot LLC dba Waste Works. Waste Works
Florida, Inc. is a recently established Florida corporation owned by three principals: (1) Paul
Reddish, a Naples, FL resident with some 30 years experience in the solid waste industry who
prior to selling several years ago owned and operated one of the lazger independent solid waste
companies in Florida, (2) Pau! S. Barry, Jr., who has owned and operated solid waste companies
in the Boston area since the 1970s, and (3) myself (I have owned and operated a solid waste
company for the past 13 years}, For the past month, our management team has been significantly
involved in running the Waste DepotJWaste Works operation, and we believe that we have
already made significant improvements.
For the past six months, our group has been working towards a purchase of the property
at 320 Enterprise St., which we currently have under a Purchase and Sale Agreement with an
anticipated August closing, and of Waste Depot LLC, which we intend to operate from that
location. We intend to close on the acquisition of Waste Depot LLC neat week, making it a
wholly owned subsidiary of Waste Works Florida, ]nc. There is no proposed transfer or
assignment of the rights under the solid waste collection franchise agreement ("Franchise
Agreement"). Waste Depot LLC dba Waste Works will remain as the franchisee pursuant to the
Franchise Agreement.
As you know, our insurance company has been working with your office to insure that
our performance bond meets the requirements of the Franchise Agreement As we have
discussed, the cwrent bond is secured with funds owned personally by the current owners of
Waste Depot LLC. As our group is qualified to secure bonding without such collateral (and the
current owners wish to recover their collateral), we wish to replace [he current bond with our
own, subject to the City's approval.
Please let me know if 1 can provide any additional information or answer any questions
relating to this transaction.
Ve truly
i
t
G~ obe h
June 16, 2010
Platte River Insurance Company
C/O Capitol Insurance Companies
1301 Hightower Trail, Suite 370
Atlanta, GA 30350
RE: Waste Depot, LLC d,/b/a Waste Works
Bond Number: 41173998, X200,000 Bond Amount
Contract: Commercial and Multi-Family Solid Waste Franchise RFP#09-004
This document signifies that Platte River Insurance Company is hereby fully exonerated,
released and discharged from its obligation there under and from any and all past, present
and future liability under bond number 41173998 in the name of Waste Depot, LLC d/b/a
Waste Works. Please return the original document signed on your letterhead and sent to
the attention of Jeffrey Fitzgerald at the above address.
Sincerely,
Jeffrey Fitzgerald
Senior Underwriter
678-528-6605-Phone
678-528-6638-Fax
Release Acceptance:
City Of Ocoee
Signature of Obligee Release/Title Date
Rosenthal, Paul
Fram: Rob Schwandt [RSchwandt@grahamwaste.com]
Sent: Friday, Jufy 02, 2010 4:11 PM
To: Rosenthal, Paul
Subject: RE: Ocoee
Paul:
As background on the dumpster situation, please be advised that Waste Depot LLC dba Waste Works
purportedly entered into a lease agreement with Appalachian Managing Group LLC ("Appalachian"') for the use
of front load containers, some compactors and several roll-off containers for its performance under the solid
waste collection franchise agreement with the City of Ocoee. It is our understanding that the current ownership
of Waste Depot LLC has failed to make lease payments to Appalachian Managing Group. It is our further
understanding that Eric Thompson loaned money to (or invested money in) Appalachian which enabled it, in
part, to acquire the containers which are the subject of the lease between Waste Depot LLC and Appalachian.
In May, our group signed a letter of intent with Appalachian/Eric Thompson whereby we agreed to an outright
purchase of the containers in conjunction with our acquisition of Waste Depot LLC. At that time, we had
anticipated a June 1 closing on the Waste Depot and Appalachian transactions. Due to circumstances beyond
our control, the Waste Depot transaction was postponed until next week, so the Appalachian transaction was
delayed accordingly. Because Appalachian has not received sales proceeds from us, it has not been able to
reimburse Mr.
Thompson. As it is Appalachian which owns the containers, it does not appear that Mr. Thompson would even
have the right to repossess the containers as he has reportedly threatened to do if payment is not forthcoming.
Mr. Thompson has been in frequent contact with my partner over the past month, and has been made aware of
the timing of these transactions.
I forwarded closing documents to Mr. Thompson this morning via e-mail for a June 7 closing. I just received a
response from him by email that he will review the documents with his attorney and respond to me.
Mr. Thompson is understandably frustrated at having entered into a poor business arrangement involving the
current owners of Waste Depot.
V4'e intend to proceed next week with the purchase commitment we made in May, which we expect will result in
Mr. Thompson recovering the loan/investment he made with Appalachian.
Please let me know if I can provide any additional information in this regard. Have a great holiday.
Regards,
Rob Schwandt
-----Original Message-----
From: Rosenthal, Paul [mailto:PRosenthal@foley.com]
Sent: Thursday, July O1, 2010 8:43 PM
To: robschwandt@comcast.net
Cc: jtolbert@ci.ocoee.fl.us
Subject: Ocoee
Rob: please send me a letter which outlines the proposed change in ownership, Also, please address your
agreement with the dumpsters so that the City Commission will know that this issue is resolved. Thanks.
Paul.
CONTRACT PERFORI<1ANCE BOND
(Exclusive Commercial and Multi-Family Solid Waste Collection Franchise Agreement)
KNOW ALL MEN BY THESE PRESENTS that Waste Depot, LLC d/b/a Waste
Works, a Florida limited liability company, (hereinafter referred to as "Princi al"), and
- -, a corporation organized under the laws of the State of and
licensed to do business in the State of Florida (hereinafter referred to as "Surety"}, are held and
firmly bound unto the City of Ocoee, Florida, as Obligee, (hereinafter referred to as "Obligee"),
in the Penal Sum of Two Hundred Thousand Dollars ($200,000.00), for the payment of which
sum well and truly made, Principal and Surety bind themselves, and their successors and assigns,
jointly and severally, in accordance with the terms set forth herein.
Recitals
WHEREAS, Principal has by written agreement dated October 20, 2009 entered into a
contract, with the Obligee titled "Exclusive Commercial and Multi-Family Solid Waste
Collection Franchise Agreement", as amended by First Amendment thereto dated January 5,
2010 (hereinafter referred to as the "Contract") for the purposes of establishing an exclusive
franchise granted by the Obligee and accepted by the Principal for the collection of commercial
and multi-family solid waste within the corporate limits of the City of Ocoee; and
WHEREAS, the Contract identifies certain performance obligations of the Principal for a
term of three (3} years, which term may be extended for an additional two (2) years; and
WHEREAS, this Contract Performance Bond is being accepted by the City of Ocoee, as
Obligee, on the condition that it is acknowledged by the Surety as covering all non-performance,
defaults and matters arising under the Contract, including, but not limited to such non-
performance, defaults and matters that have arisen since October 20, 2009 and/or are in existence
as of the date of the execution of this Contract Performance Bond; and
WHEREAS, the Surety acknowledges receipt of good and valuable consideration for the
obligations it assumes hereunder.
NOW, THEREFORE, it is agreed that the above Recitals are acknowledged to be true
and accurate and are incorporated herein by reference.
This Contract Performance Bond is being issued by the Surety to secure the performance
obligations of the Principal under the Contract since the date of it inception and any additional
extensions thereof. If the Principal shall well, truly and timely perform all the undertakings,
covenants, terms, conditions, and agreements of said Contract, within the term of the Contract
and all extensions thereof; and shall also well, truly and timely perform all undertakings,
covenants, terms, conditions, and agreements of any and all duly authorized modifications of
said Contract that may hereafter be made; and shall pay, compensate, indemnify and save
harmless the said Obligee of and from any and all loss, damage and expense, caused by any
breach or default by Principal under the Contract, including, but not limited to, those arising
before or which are in existence as of the date of the execution of this Contract Performance
Bond; and including, but not limited to, liquidated damages, damages caused by delays in
performance of the Principal, expenses, costs and attorneys' fees, including attorneys' fees
incurred in appellate proceedings, that Obligee sustains resulting directly or indirectly from
failure of the Principal to perform its performance obligations under the Contract, then the
obligations of this Contract Performance Bond shall be null and void; otherwise, this Contract
Performance Bond shall remain in full force and effect and Surety shall be liable to Obligee
under this Contract Performance Bond in accordance with its terms and shall pay the Obligee for
such damages that result from the non-performance of the Principal as described above subject to
the notice provisions described below.
The Surety's obligations to the Obligee hereunder shall be direct and immediate and are
not conditional or contingent upon Obligee's pursuit of its remedies against Principal, and shal]
remain in full force and effect notwithstanding (a) amendments or modifications to the Contract
entered into by Obligee and Principal without the Surety's knowledge or consent; (b) waivers of
compliance with or any default under the Contract granted by Obligee to Principal or by
Principal to Obligee without the Surety's knowledge or consent; (c) the discharge of Principal
from its obligations under the Contract as a result of any proceeding initiated under The United
States Bankruptcy Code, as the same may be from time to time amended, or any similar state or
federal law, or any limitation of the liability of Principal or its estate as a result of any such
proceedings; or (d) any other action taken by Obligee or Principal that would, in the absence of
this clause, result in the release or discharge by operation of law of the Surety from its
obligations hereunder. Any changes in or under the Contract or noncompliance with any
formalities connected with the Contract or changes therein shall not affect Surety's obligations
under this bond, and Surety hereby waives notice of any such changes.
The Surety shall perform the obligations of the Principal under the Contract upon receipt
of five (5) days written notice of the Principal's default. In the event that the Surety fails to
fulfill its obligations under this Contract Performance Bond, then the Surety shall pay, indemnify
and save the Obligee harmless from any and all loss, damage, cost and expense, including
reasonable attorneys' fees and other legal costs for all trial and appellate proceedings, caused
duectly or indirectly by the Principal's default(s) and the Surety's failure to fulfill its obligations
hereunder. This Contract Performance Bond and its obligations shall survive the termination or
cancellation of the Contract. The payment and indemnification obligations set forth in this
paragraph shall be limited by the Penal Sum of this Contract Performance Bond regardless of the
duration of the Contract.
IN WITNESS WHEREOF, the Principal and Surety have executed this
instrument under their several seals on the day of 2010, the
name and corporate seal of each corporate party being hereto affixed and these presents fully
signed by its undersigned representative, pursuant to the authority of its governing body.
Signed, sealed and delivered
in the presence of:
Waste Depot LLC dlb/a Waste Works Principal
Bv:
By_
.(SEAL)
(Official Title)
Surety
(SEAL)
(Official Title)
(Countersigned by Florida Registered Agent)
NOTES: If Principal and Surety are corporations, the respective corporate seal should be affixed and
attached.
Surety shall execute and attach a certified copy of Power of Attorney Appointing Individual
Attorney-In-Fact for execution of Performance Bond on behalf of Surety.
PERFORMANCE SURETY ESCROW AGREEMENT
THIS PERFORMANCE SURETY ESCROW AGREEMENT (this "Agreement") is
entered into this day of , 2010 by SUMMIT XV HOLDINGS, LLC
a Florida limited liability company whose address is 132 West Plant Street, Suite 200, Winter
Garden, Florida 34787 (the "Owner"), and the CITY OF OCOEE, a Florida municipal
corporation whose address is 150 North Lakeshore Drive, Ocoee, Florida 34761 (the "City").
WITNESSETH:
WHEREAS, the Owner is the owner of certain lots within the development commonly
known as Villas at Woodsmere located in the City of Ocoee as depicted in that plat recorded at
Plat Book 65, Page 112, Public Records of Orange County, Florida (the "Subdivision"); and
WHEREAS, the original developer, Bay Point Builders, LLC (the "Original Owner"),
was subject to an action of foreclosure; and
WHEREAS, SUMMIT XV HOLDINGS, LLC, a Florida Limited Liability Company,
acquired certain lots within the Subdivision by special warranty deed dated the 29th day of
March, 2010, and recorded at O.R. Book 10024, Page 4691, Public Records of Orange County,
Florida; and
WHEREAS, pursuant to an Assignment of Rights under the Declaration of Covenants
and Restrictions for Villas at Woodsmere, Summit XV Holdings, LLC, a Florida Limited
Liability Company has become the successor Developer pursuant to the terms and conditions of
said Declaration of Covenants and Restrictions for Villas at Woodsmere; and
WHEREAS, the Owner as the owner of the majority of the lots within the Subdivision,
has agreed to fun an escrow account able to be utilized by the City to remediate certain work not
performed by the Original Owner; and
WHEREAS, the escrow funds are to be utilized to fund work to be performed by the City
to remediate those improperly constructed or incomplete improvements (the "Improvements")
identified by the City of Ocoee and set out in that letter dated September 17, 2009 and attached
hereto as Exhibit "A" (the "Letter").
NOW THEREFORE, the parties agree as follows:
SECTION 1. Establishment of Escrow Fund.
The Owner does hereby establish an escrow fund with the City in the amount of Thirty-
nine Thousand One Hundred DOLLARS ($39,100) to be utilized by the City in the performance
of the work called for in the Letter. This escrow fund shall be placed by the City in an account at
a local financial institution and shall be disbursed only in accordance with the terms of this
ORLA_1584981.1
Agreement. The escrowed funds shall be permitted to be commingled with the other funds of the
City but shall be accounted. for under a separate ledger and segregated for use only in accordance
with this Agreement.
SECTION 2. Terms and Conditions for Return of Escrow Fund.
In the event the Owner completes the Improvements in accordance with the ordinances
and regulations of the City of Ocoee, Florida, in regard to subdivision improvements and
according to the plans, specifications and schedules covering said work and such approved
additions, amendments or alterations as may be made in the plans, specifications and schedules
for such work as approved by the City and shall complete all said work on the earlier of (i) the
completion of construction for all vertical infrastructure within the Subdivision or (ii) December
31, 2012, then the monies escrowed hereunder shall be returned to the Owner less all bank
charges with respect to the maintenance of the escrow fund and less a legal expense
reimbursement fee equal to all outstanding legal fees and costs owed to the City and related to
this Agreement or the Subdivision.
SECTION 3. City's Right to Draw on Escrow Fund.
The funds escrowed hereunder shall be used by the City to complete the remedial work
required pursuant to the specific enumerated list set forth in the Letter, together with those items
discovered during the performance of the remedial work, which in the reasonable discretion of
the City's engineer, require work to be done to complete or repair the infrastructure of the
Subdivision to comply with the plans and specifications for the Subdivision upon the failure or
refusal of the Owner to complete the Improvements by the date hereinabove specified or any
subsequent date provided through an agreement between the Owner and the City for an extension
of time. If the Owner fails or refuses to complete the Improvements by the date hereinabove
specified, taking into account any extensions thereof by agreement, then the City may, but shall
not be obligated to, complete the Improvements, the cost of which shall be paid for out of the
escrow fund for this purpose without notice to the Owner.
SECTION 4. Excess Funds.
In the event that the City completes the Improvements with the escrowed funds under the
terms of this Agreement, any excess funds remaining after completion of the Improvements shall
be returned to the Owner less all bank charges with respect to the maintenance of the escrow
fund and less an administration and oversight fee in an amount not to exceed ten percent (10%)
of the amount paid to have the remedial work completed and less a legal expense reimbursement
fee equal to all outstanding legal fees and costs owed to the City and related to this Agreement or
the Subdivision.
SECTION 5. Continued Applicability of Subdivision Regulations.
This Agreement shall. not be construed to relieve or release the Owner from any of its
obligations under the City Subdivision Regulations with respect to the Improvements.
2
ORLA_1584981.1
SECTION 6. Construction.
This Agreement shall be construed in accordance with the laws of the State of Florida.
SECTION 7. Effective Date.
This Agreement shall first be executed by the Owner and submitted to the City for
approval by the Ocoee City Commission. This Agreement shall become effective upon the later
of (i) the date of execution by the City or (ii) the date of funding of the escrow fund as described
in Section 1 hereof.
IN WITNESS WHEREOF, the parties hereto have caused these presents to be signed as
of the date and year first above written.
OWNER:
SUMMIT XV HOLDINGS, LLC, a Florida
limited liability company
By:_
Name:
Title:
3
ORLA_1584981.1
CITY:
ATTEST:
CITY OF OCOEE, FLORIDA, a Florida
municipal corporation
By:
Beth Eikenberry, City Clerk
(SEAL)
FOR THE USE AND RELIANCE BY THE
CITY OF OCOEE ONLY. APPROVED
AS TO FORM AND LEGALITY
this day of
,2010
FOLEY & LARDNER LLP
By:
City Attorney
By:
S. Scott Vandergrift, Mayor
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING
HELD ON , 2010
UNDER AGENDA ITEM NO.
4
ORLA_1584981.1
Mavor
S. Scott Vandergrift
City Manaeer
Robert Frank
,Sre Center of Good LI v1~
-__ _ ~ . g
5,.
October 29, 2004
Fred Bonham
Secretary /Treasurer
Waste Works
320 Enterprise Street
Ocoee, FL, 34761
Commissioners
Gary Hood, District 1
Rosemary Wilsen, District 2
Rusty Johnson, District 3
Joel F. Keller, District 4
Re: City of Ocoee Commercial & Multifamily Solid Waste Collection Franchise
RFP #09-004
Franchise Service Start Date
~~ E~
Mr. Bo.
Per our various conversations and meeting on October 22, 2009, the transfer date far your firm to begin
servicing the above referenced franchise wilt be December 2, 2009. This date is based on obtaining
Orange County Commission approval of your Commercial Refuse License at their December 1, 2009
meeting. In order to have your license application on the County agenda, the complete application
package must be submitted to the County no later than November 4, 2009. Orange County understands
the time sensitive nature of your application and has notified the City that they are awaiting submittal of
your Pollution Legal Liability insurance certificate, vehicle tag information and the processing fee in
order to move the application to the approval phase.
We will continue to work with Waste Works and the current service provider, Veolia Environmental, to
ensure a smooth transition. Please-feel free to contact me if you have any updated information or
questions.
Sincerely,
Step en C. Krug, P.E.
Public Works Director
City of Ocoee
cc: Robert Frank, City Manager, City of Ocoee
Jamie Crote u Assistant Ci Manager, City of Ocoee
~ ,_ ~ . Aagge _.- _.
Bill Simmons, Sanitation & Fleet Operations 1Glaiiagirr, City of Ocoee
City of Ocoee Public Works • 301 Maguire Road • Ocoee, Florida 34761
phone: (407) 905-3170 • fax: (407) 905-3176 • www.ocoee.org
EXCLUSIVE COMMERCIAL AND MULTI-FAMILY
SOLID WASTE COLLECTION FRANCHISE AGREEMENT [-" /
THIS AGREEMENT is made and entered into this ~ day of ~~,r~ ,
2009, between the CITY OF OCOEE, a Florida municipal corporation (hereinafter referred to
as the "City") and WASTE DEPOT LLC DBA WASTE WORKS, a Florida limited liability
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. The provisions of Florida Statute 403.70605
shall also apply.
n 4. Term.
~ The franchise shall be granted for an initial term of three (3) years commencing on
2009 and terminating on r , 2012, 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) y~ar term commencing with the expiration of the Initial
Term and terminating on ~r~om.~r_, 2014. 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 finrelve (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 7-years, such agreement to be entered into at least three (3) months prior to
expiration of the Initial Term.
~...-- Section 6. 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 on~,AQm~r~, 2009. 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 once a week on a
regularly-scheduled basis. Collection shall be made between the hours of 7:00 a.m. and 7:00
p.m., Monday through Saturday. Franchisee may provide for collections on a less frequent
basis upon written approval of the City.
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.
0 "•#
Section 9. Complainh
The Franchisee shall assign a qualified person or persons to be in charge of operations within n
the service area. The Franchisee shall give the name and quaycations of these persons to r'' fi
the City. The Franchisee shall insthute a system for addressing wmplaints from within the City '
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 6:00
a.m. to 5:00 p.m., Monday through Friday. In the event that the Franchisee b unable to
promptly resolve any such complaints the Franchisee shall prompty notify the City of the
nature of the complaint and the attempts made to resolve the complaint.
Section 10. Personnel.
A. The Franchisee shall require its employees to serve the public in a
courteous, helpful and imparbat manner.
8. Franchisee collection employees shall wear dress uniforms hearing the
company name during working hours.
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, inducting
receptacles, trees, shrubs, flowers and other plants.
Section 11. Swllape.
The Franchisee shall not litter or cause any spillage to occur upon the premises or the dghts-
of-way wherein the wllection occurs. The Franchisee may refuse to culled any solid waste
that has not been placed in an appropriate receptade. During hauling, all solid waste shall be
contained, Ued or enclosed so that leaking, spilling and blowing is prevented. In the event of
any spillage caused by the FranchLee, the Franchisee shall promptly dean up all spillage a[
its sole cost and expense. In the event that the Franchisee fails to promptty clean up spillage,
then the City may do so and the Franchisee shall pay Ure City all costs and expenses inwred
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 demoliton debris from residential
building, roofing and remodeling are expressly excluded from the franchise granted herein,
provided, however, that nothing contained herein shall predude the City, at the City's sole
option, from amending this Agreement to indude within the scope of the franchise granted
herein the exclusive right and privilege to collect all construction and demolition debris from
residental 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 Chames.
A. Rates to be charged for the commercial and multi-family solid waste
collection and disposal service to be performed 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 a1V such fees on a monthty 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 ('Yhe
Franchise Fee"). The Franchisee shall pay the Franchise Fee to the City on or before the
tenth (10th) day of each rroMh wkh 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 end such other infomwtion as may be required by the City.
Failure of the Franchisee to make timely payment to the City of the Franchise Fee or
falsifiption of the certification regarding fees and charges actually collected shall constitute a
defauR by the Franchisee of this Agreement. The obligation to pay the Franchise Fee with
respect to fees and charges actually collected with respell to services provided during the
Term of this Agreement shall survive the tertninaflon 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, subject to the terms and conditions set forth herein, be
annually adjusted in accordance wdh the Annual Rate Adjustment formula set forth in Exhibit
"B" hereto. Within thirty (30) days following each anniversary date of this Agreement, the City
shall calculate the Annual Rate Adjustment as aforesaid and provided a written notice thereof
to the Franchisee. The City's calcuVation and interpretation of the Annual Rate Adjustment
formula shall be binding on the Franchisee. Upon receipt of such notice from the City, the
Franchisee shall provide a written notice to all of its customers under this Agreement which
notice sets forth the Annual Rate Adjustment. Any such Annual Rate Adjustment shall become
effective thirty (30) days after the mailing of such notice by the Franchisee to its customers and
shall be retroactive to the beginning of the billing period in which such Annual Rate Adjustment
becomes effective. Except as aforesaid, the Franchisee shall not be entitled to an adjustment
in the rate schedule.
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, Fire Stations, Public Works
Facilities, cemetery, and the City Sewer Plant, and the removal and
disposal of all solid waste and other materials placed in such
dumpsters. '
r (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 ar~rovided 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 2 cubic yard dumpster collected once per week, with charges
for additional requested services to be the incremental cost above the donated service. 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 fisting 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 contents of said
books and records during normal business hours. Upon thirty (30) days written request from
the City, the Franchisee shat{ 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 December 31 of each year
except that the last such audit shall be submitted within sixty (60) days after the temlination of
this Agreement.
Section 16. Preliminar~r Plans.
The Franchisee shall, at no cost or expense, when requested, 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 Gity.
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 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.
6
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 a O HUNDRED AND NO/100 DO
($200,000.00. i s or t o pe o see. This
nce 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 th
term of this Agreement.
Section 20. Non on.
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, coverages as
stated in RFP #09-004, and naming the City of Ocoee as an additional insured:
Comprehensive automobile insurance (any auto, including owned
autos, non-awned autos and 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 sha{I 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 sf~all 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.~separateypo(icy has been written for
each; provided, however, that these provisions shall not operate to~i~crease the policy limits.
C. Franchisee shall provide, prior to the execution of this Agreement and
within ten (10) days of award of the Agreement, and at least thirty (30} days prior ,fo the
z.,.....
expiration of an insurance policy or policies theretofore provided to the City by Fr~ichisee
hereunder, a certificate of insurance evidencing all coverage required under this Section.
Such certificates} shalt 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 became 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;
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 far 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 Gity. _ _
_--`'~- - 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. _--~
~°~-- 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.
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 th
manner prescribed herein:
As to the City: City of Ocoee
150 North Lakeshore Drive
Ocoee, Florida 34761
Attention: Public Works Director
Phone: (407) 905-3100 Ext. 6002
As to Franchisee:
Waste Depot LLC DBA Waste Works
320 Enterprise Street
Ocoee, Florida 34761
Attention: Fred Bonham, Secretary/Treasurer
Phone: (407) 447-0047
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 whicf~ 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).
~y. Section 26. Miscellaneous.
A. Time is of the essence with respect to all matters set forth ~in~#his
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 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 shill
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 solidw,waste
pick-ups with recyclable materials. °«
io
G. The City has been induced by Franchisee to enter into this Agreement by
submittal of that certain response to request for proposals dated June 16, 2009, 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.
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 far 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
aff,~xed; and he said Franchisee has caused this Agreement b exec ted in its name by
~~ -- ,its President, attested b ,its Secretary,
and has caused the seal of said corporation to be o affixed, all as of the day and year
first above written.
CITY OF OCOEE
B ~ c~ V G-.
Y
S. Scott Vandergrift,^ or
~.
Attes "
ikenberry, City CI r
(SEAL)
Signed, sealed and delivered
Signed, sealed and delivered
in the presence of:
FRANCHISEE:
By:,~i ~ ~~--
President
Attes ~ ~~
,Secretary
(SEAL)
For use and reliance only
by the City of Ocoee, Florida.
Approve as to form anc~ le I'
This D day of ~ ,
2009
Foley Lardner LLP
~~ ~
City Attorney
APPROVED BY THE OCOEE CITY
COMMISSION AT A MEETING HELD ON
September 15, 2009 UNDER AGENDA
ITEM NO. H.16
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