HomeMy WebLinkAboutCommercial Solid Waste Franchise AgreementCITY OF MIAMI
NON-EXCLUSIVE
COMMERCIAL SOLID WASTE
FRANCHISE AGREEMENT
BETWEEN THE CITY OF MIAMI
AND
THIS CITY OF MIAMI NON-EXCLUSIVE COMMERCIAL SOLID WASTE
FRANCHISE AGREEMENT ("AGREEMENT"), made and entered into this day of
2010 by and between the City of Miami, Florida, a municipal corporation organized
and existing under the laws of the State of Florida, (hereinafter referred to as "CITY") and
Inc. a corporation,
qualified and authorized to do business in the State of Florida, (hereinafter referred to as
"FRANCHISEE").
WITNESSETH:
WHEREAS, on September 28, 1999, Ordinance No. 11837 was passed by the Miami
City Commission which amended Chapter 22, entitled Garbage and Other Solid Waste, of the
City Code to allow regulatory permits for providing non-exclusive Commercial Solid Waste
Services with Commercial Franchises to qualified firms; and
WHEREAS, the City Manager has determined that FRANCHISEE is qualified to serve
in the aforesaid capacity in that it has met the specifications set forth in Request for
Qualifications No. 222246 and applicable sections of the Code and Ordinances of the CITY;
and
WHEREAS, FRANCHISEE is desirous of obtaining a non-exclusive Franchise from the
CITY to provide Commercial Solid Waste Collection Services within the CITY as set forth
herein; and
NOW THEREFORE, in consideration of the mutual terms, conditions, promises and
covenants herein set forth and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, CITY and FRANCHISEE hereby agree to enter into this
AGREEMENT for furnishing Commercial Solid Waste Collection Services within the CITY, as
follows: -- --- -- -
ARTICLE I
GENERAL INFORMATION
City of Miami, Florida Commercial Solid Waste Hauling Services RF0 222246
1.1 Each "WHEREAS" clause set forth above is true and correct and herein incorporated by
this reference.
1.2 The ATTESTATION OF QUALIFICATIONS for Commercial Waste Hauling
Services, submitted in response to RFQ NO. 222246 by FRANCHISEE is herein
incorporated by this reference.
ARTICLE II
DEFINITIONS
2.1 All Definitions set forth in the City of Miami City Code ("City Code"), Chapter 22,
Section 22-1, entitled Definitions, as amended, entitled Garbage and Other Solid Waste
and Chapter 22 in its entirety, are hereby incorporated by this reference.
Biomedical Waste shall mean any solid or liquid waste which may present a threat of
infection to humans, including nonliquid tissue, body parts, blood, blood products, and
body fluids from humans and other primates; laboratory and veterinary wastes which
contain human disease -causing agents; and discarded sharps. The following are also
included:
(a) Used, absorbent materials saturated with blood, blood products, body fluids, or
excretions or secretions contaminated with visible blood; and absorbent materials
saturated with blood or blood products that have dried.
(b) Non-absorbent, disposable devices that have been contaminated with blood, body
fluids or, secretions or excretions visibly contaminated with blood, but have not been
treated by an approved method.
Biological Taste shall mean any solid waste that causes or has the capability of causing - -- - - -
disease or infection and includes but is not limited to biomedical waste diseased or dead
animals, and other wastes capable of transmitting pathogens to humans or animals.
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Cit) of Miami, Florida Commercial Solid K'aste Hauling Services RFO222246
Citv Commission shall mean the local legislative body of the City of Miami. The City
Commission is the body that approves City Franchises. Any transfers, assignments,
amendments, conveyances, or delegations pursuant to this Agreement shall only be made
with the approval of the City Commission and in accordance with the terms in Article
XIII of this Agreement.
Citv Manager shall mean the duly appointed chief administrative officer of the City of
Miami. All actions of the City under this Agreement that do not specify City
Commission may be performed by the Cily Manager or the Director serving as the
Manager's designee.
Commercial Business shall mean and include all retail, professional, wholesale, and
industrial facilities and any other commercial enterprises, for profit or not for profit,
offering goods or services to the public. This definition incorporates by reference the
definition of "Commercial Establishment" set forth in § 15-1 of the Miami -Dade
-.County Code.
Commercial Hauler shall mean a licensed,City of Miami..FRANCHISEE that operates
within the ;City limits and provides certain services to Multi -Family and Commercial
establishments including but -not limited to the:followin-- garbage, trash, recycling, roll-
off and specialized waste handling service, etc.,
Director shall mean the Director of the -Department of Solid Waste.-
Franchise .Fee shallImean the: monthly. percentage of Gross Receipts remitted to the City
by each' FRANCHISEE. See" -Section 22-56(b) of the City Code, as amended... This fee
may ,lie :amended�:or adjusted by the City , from time '`to time, by amending this
�sectiion of the City Code, and the -FRANCHISEE .acknowledges and agrees Ahat the
monthly percentage of gross receipts payable, as amended, or adjusted, will
automatically apply to this Agreement and that the FRANCHISEE will promptly
execute an addendum or amendment recognizing the FRANCHISEE's obligation to
pay such adjusted or amended fee as of the effective date of such amendment.
Failure to pay such FRANCHISEE fee , as adjusted or amended , or failure to
execute the addendum or amendment to this Agreement FRANCHISEE shall be
deemed as in default of this Agreement pursuant to Article IX. Should a default
occur pursuant to Article IX, then this Agreement will be terminated pursuant to
Article X.
Gross Receipts shall mean all monies, whether paid by cash, check, debit or credit,
collected from customers resulting from all transactions and activities in the
FRANCHISEE'S regular course of business and trade including garbage, industrial, solid
waste, used_cookuigoil waste portable toilets and sanitation, environmental charges and
-- - —
fees, containerized waste, environmental waste services (vactor), equipment rental -arid- --
leasing, fuel surcharge, construction and demolition debris, roofing materials, trash, litter,
maintenance, compactors, refuse and/or rubbish collection removal and disposal services
rendered, hand bag collection, recycling, or from any other source related directly or
ki
Cite of Miami, Florida Commercial Solid Waste Hatilin.- Services RFO 222246
indirectly from waste collection services, including, without limitations, all income
derived from leasing and renting of real or tangible personal property, the use of dump
trucks, grappling trucks, roll -off trucks, trailers, roll -offs, boxed in, framed, fenced in, or
otherwise designated storage areas, etc., containers, bagsters, shoots, and any other
vehicles and equipment used for collection and disposal of any debris by the
FRANCHISEE, exclusive of taxes as provided by law, whether wholly or partially
collected within the CITY, less bad debts. Gross Receipts shall not include income
derived from the transportation, storage, treatment, collection, and removal of
biomedical, biological, or hazardous waste as herein defined.
Hazardous Waste shall mean any solid waste, or a combination of solid wastes, which,
because of quantity, concentration, or physical, chemical, or infectious characteristics,
may cause, or significantly contribute to, an increase in mortality or an increase in serious
irreversible or incapacitating reversible illness or may pose a substantial present or
potential hazard to human health or the environment when improperly transported,
disposed of, stored; treated,,or otherwise managed.
Multifamily Residence shall an and indlude any building or structure containing four
or more :contiguous"living units and intended .exclusively_ for residential purposes. This
definitionincorporates by= reference :the jdefinition .of Multi -family residential
establishment setforth in,,§ 4154, Miami=Dade*County Code.
Neighborliood Cleanups shall mean periodic intensive removal-6flitter, debris.and other
solid waste material fi om a: designated area, of the° city, initiated or approved by':the. City,
its NET offices and/or recognized :,community ...based .,organizations or associations
including special event activities citywide.
"Permit Per Account Fee shall mean the charge `assessed by the City beginning each
October 1, for each account and roll -off that is acquired or maintained throughout the
Fiscal Year FRANCHISEE for the provision of commercial solid waste services.
Recycling shall mean any process by which solid waste, or materials which would
otherwise become solid waste, are collected, separated, or processed and reused or
retuned to use in the form of raw materials or products.
Recyclable Material shall mean those materials which are capable of being recycled and
which would otherwise be processed or disposed of as solid waste.
Safety Inspection Fee shall mean a regulatory fee as referenced in Section 166.221,
Florida Statutes, which is a yearly remittance paid to the City by the FRANCHISEE for
inspection of all vehicles that the commercial haulers will use to conduct business of
-- - - --- - ---- -------whatever source within the City_ boundaries.
Specialized Waste Handling Services shall mean the collection and disposal of solid
waste that requires special handling and management, including, but not limited to white
goods, waste tires, used oil, lead -acid batteries, construction and demolition debris, ash
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Cite of 14iami, Florida Commercial Solid Wasle Haulin.- Services RFO 222246
residue and biomedical and biological waste. It should be noted that these are
FRANCHISEES that are in the roll -off collection business and do not collect garbage.
ARTICLE III
GRANTEE
3.1 The CITY grants unto the FRANCHISEE the continued non-exclusive right and
privilege, with related obligations, to provide commercial solid waste services in, under,
upon, over and across the present and future streets, alleys, bridges, easements, public
rights-of-way and other public places within the CITY boundaries, present and future, for
contracted multifamily, commercial business, governmental, religious, educational, profit
and non-profit agencies and/or property owners for solid waste collection and disposal
services.
4.2 FRANCHISEE shall make collection with as little disturbance as possible. Refuse
containers shall be thoroughly emptied and maintained in a clean manner. Any refuse
spilled by the FRANCHISEE shall be picked up immediately by the FRANCHISEE. The
removal of all refuse within 10 ft. of container will be the responsibility of the
FRANCHISEE. The FRANCHISEE will be held responsible for keeping the 10 ft.
radius surrounding containers clean and free of waste and debris. Service minimums for
multi -family dwellings shall be as follows: 1-8 Units — 2 CY @ 2 x per week; 9-16 Units
- 4 CY @ 2 x per week; 17-32 Units — 6 CY @ 3 x per week, 33-48 Units — 8 CY @ 3 x
per week, over 48 Units will require two 8 CY @ 5 x per week, with the City monitoring.
In case of insufficient service being noted, FRANCHISEE may be required to increase
service. Also, please be reminded that no customers are to be signed up for 1 x per week
garbage collection service.
4.3 FRANCHISEE agrees that all containers shall be identified with its name and telephone
number and be sufficient in quantity and size to contain material as indicated in the City
Code. All containers serviced by FRANCHISEE shall be maintained in a clean and
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Cit? of Miami, Florida Commercial Solid Waste Hauling Servicer RFQ 222246
serviceable manner at all times. At no time shall any of FRANCHISEE'S containers be
left on the public right-of-way. The City, in its discretion, may require an adjustment in
the location, pick up schedule or the size of the container(s) if they become an unsightly
nuisance, cause a civil violation to occur, pose a threat to the surrounding environment,
threaten the health and/or safety of the CITY's population or become unsanitary and/or
inoperable. Except as otherwise provided, all vehicles used in the collection and/or
transportation of waste shall be equipped with a leak -proof body of metal type. If a
FRANCHISEE uses a specially designed, motorized local collection vehicle for
transporting solid waste over short distances from residential or commercial stops to
waiting trucks, the container portion of such vehicle shall be equipped with a cover,
adequate to prevent scattering of the load. If any pickup truck or open -bed truck is used
by a FRANCHISEE, the load shall be covered with an adequate cover to prevent
scattering of the load. All vehicles shall be operated in conformity with all ordinances of
the City. All vehicles shall be properly licensed, registered, and equipped in compliance
with the motor vehicles laws of the State of Florida.
4.4 FRANCHISEE shall:beresponsible for creating
well as;,frequency�of service°within the limitati
Code. FRANCHISEE shall "be responsible 'fo
customers- immediately.
4.51"` In cases
FRANCE
is issue
public safety and'health. As.=soon as practicable
.shall,, advise the CITY and its <.customers of the
schedules and routes can be resumed.
and maintain ngwschedules.aiidd:routes,.as
ons and under the provisions of .the City
r providing" notification of same to its
the City "';Manager may grant the
ar schedules 'and routes. As soon as a
ie .Mayor; ,FRANCHISEE shall make
der -to prevent hazards and/or,.threats to
after such disaster, the FRANCHISEE
estimated lime required before regular
4.6 FRANCHISEE shall make its customers aware of Miami -Dade County's and/or City of
Miami's mandatory Commercial and Multi -family Residence recycling ordinance and
shall make services available for contract.
4.7 FRANCHISEE agrees to recycle, collect and dispose of the solid waste at designated
CITY buildings and properties, free of charge, pursuant to the City Code, as assigned by
the Director of the Department of Solid Waste. In-kind service assignments, including
recycling City facilities, will be made proportionate to FRANCHISEE'S percentage of
total contracted commercial accounts in the CITY.
4.8 FRANCHISEE agrees to collect and dispose of waste generated at assigned
Neighborhood Cleanups in proportion to the FRANCHISEE'S percentage of the total
-- - _-- _.- _franchise_ fees -paid to the CITY. Such ass ignments are to be established by the Director
of the Department of Solid Waste. —
4.9 FRANCHISEE shall require that its employees wear clean unifonns or shirts bearing the
FRANCHISEE'S name; that each driver shall, at all times, carry a valid Commercial
City of Miami, Florida Commercial Solid Waste Hauling Services RFO 222246
Driver's License, for the type of vehicle being operated; that the CITY may request the
removal of any employee of the FRANCHISEE from City service who is wanton,
negligent, or discourteous in the performance of his/her duties; and that no person shall
be denied employment by the FRANCHISEE for reasons of race, sex, age, creed,
national origin, or religion.
4.10 FRANCHISEE is required and hereby agrees by execution of this AGREEMENT to pay
all employees not less that the Federal minimum wage and to abide by other requirements
as established by the Congress of the United States in the Fair Labor Standards Act, as
amended and changed from time to time and to comply with all applicable laws relating
to the employment of employees and the provision of commercial solid waste services.
The FRANCHISEE shall have on hand at all times, in good working order, such
equipment as shall permit the FRANCHISEE, adequately and efficiently, to perform its
duties hereunder. FRANCHISEE shall have available at all times, reserve equipment
which can be put into service and operation within two hours of any breakdown.
4.11 FRANCHISEE agrees to .stnctly adhere to ; the provisions "of 'Section 22-46 and :Section
22-93, �~as;: amended, of the `:City Code- ,which states it ::shall be unlawful '..for any
FRANCHISEE to provide .service to any commercial property within 100 ",feet of a
residential districf .between the,.hours of 1:1' 00 pan. and 7:00 a.m., and to strictly. -adhere to
any other terms and.Trovisions of this Agreement as specified in the Notice of"Violation,
except and",only as deternniined by the Director of the Departuientof Solid Waste.. `:
FRANCHISEE agrees to comply with Section 15 of the Miami -Dade County Code,
entitled "Solid Waste Management", as amended. All Multi -Family and Commercial
establishments are required to initiate a recycling program. The recycling program shall
be serviced by a licensed City of Miami FRANCHISEE. Failure of FRANCHISEE to
provide a recycling program shall cause a default in this agreement pursuant to Article
IX; failure to cure said default may result in termination of said agreement pursuant to
Article X.
4.11.2 For any other failure to comply with the terms of this Agreement, the following amounts
liquidated damages and not as a penalty," for the violations of the
Agreement as specified in the Notice of Violation. — -
First Violation:
Second Violation:
$ 250.00
$ 500.00
City of Miami, Florida Commercial Solid Waste Hauling Services RFO 222246
Third Violation: $1,000.00
Each Additional Violation: $1,000.00
These amounts are established for the failures by the FRANCHISEE to comply with this
Agreement. It is not the intention of the City to assess the entire amounts for minor
failures to comply with the Agreement unless they are of a recurring or continuing nature.
The City reserves the right to assess twenty (20%) of the amounts set forth in this section
for minor failures to comply with the Agreement. The exact damages suffered by the
City cannot be known or ascertained and these amounts represent liquidated damages due
at the time of the violation.
4.12 FRANCHISEE is required, pursuant to Section 22-2 of the City Code to notify the
Department of Solid Waste, at least seven business days prior, of accounts for which it
will discontinue service and advise if said accounts are in arrears. Should any accounts
be in arrears and FRANCHISEE seeks remedy (court decisions, collection agencies,
judgments, mediations, and etc.) the City ;.shall receive "from proceeds collected its
applicable fees and notifi6d' of any and all hearings and/or.meetings for.�participation.
Also, upon resumed. service ,TRANCHISEE agrees to immediately notify the Department
of Solid :Waste. ,;FRANCHISEE shall fiunisl such notification(s) as are provided in
Section 22=2 of the.City Code.'
4.13<.FRANCHISEE acknowledges that under this Agreement, price -controls will be -Primarily
extracted through 'co'mpetition amongst the Franchise companies for existing and future
accounts.. FRANCHISEE";further acknowledges that any; increase in pricing by the
FRANCHISEE could result;" in the customer ;seeking "better pricing from ,another
FRANCHISEE. If the City 'dentifies an illegal container placed and operating'within the
City, "liniits by a non -licensed _Commercial Hauler who is providing Commercial Solid
Waste -Service without a FranchiseN r in the City, the City will confiscate said container
and assess charges for man-hours, equipment, disposal and administrative costs and fines.
4.14 ALL equipment utilized to collect and transport solid waste in the City must be
conspicuously marked on both sides of the automotive unit with the naive of the hauler,
vehicle number, tare weight, and cubic yard capacity. Identification information must
also be marked on all trailer and container units. All markings must be in letters and
numerals at least two inches in height.
4.15 At least annually (October 1) and as detennined by the Director of the Department of
Solid Waste, each FRANCHISEE shall supply the following information on a diskette,
compact disc, or other acceptable format and in the manner prescribed by the Director of
the Department of Solid Waste:
- A._listing,__as__.of__the_reportin date, of the names and addresses of
- (1) g -
customers, and the addresses of each location served.
(2) The number and capacity of each dumpster and compactor per account.
(3) The list of accounts within the City of Miami for which hand collection of
bags/cans is provided.
Citi, of Miami, Florida Commercial Solid Waste Harding Services RFO 222246
(4) An accounts receivable aging report for each City of Miami customer.
(5) A listing of City of Miami accounts that were charged off as bad debts.
ARTICLE V
FRANCHISE FEES
5.1 FRANCHISEE agrees to pay all applicable fees as contained and defined in Chapter 22
of the City Code, ARTICLE II -DEFINITIONS of the Franchise Agreement and the
Franchise Agreement in its entirety, within specified time frames, as may be amended or
adjusted from time to time by the enactment of City Code amendments as referenced in
"Franchise Fees" in Article I1 of this Agreement .
5.2 FRANCHISE FEE: FRANCHISEE agrees to remit monthly to the CITY, twenty four
percent (24%) of its Gross Receipts, generated from accounts within the City limits, or
$500.00, whichever is greater. Accompanying the remittance, FRANCHISEE must
provide the CITY with a- list of the customers' names, ;,addresses and total amount
collected. FRANCHISEE agrees to maintain a second , hst which reflects'_Zn an .aging
schedule 'of individual account:.charges which,.must be retained for a period of 60 months
from the',end of -the Agreement and made :available at.,all times to CITY auditors.
Twenty-four percent (24%),'9f the total' -amount collected should equal the remittance
amount paid to the :City. The remittance of the„previous°month's collection should be
received byahe CITY on,or before the last day of.each month: Failure to remit by the last
day of the :following month will cause. the FRANCHISEE ...a one and one half percent
(1.5%) penalty pe:r-month on the balance due.,_ Ifpayment is past due in excess of 60
days, the >Department of .Solid Waste .will initiate its procedure to revoke the
FRANCHISE and -attach the Payment and Performance Bond for all monies -due and
owing` .the City, including costs. It should be noted, the twenty-four percent (24%)
remitted monthly oto the City,. should be calculated on :;all monthly gross .receipts,
excluding receipts derived from biomedical, biological," and hazardous removal, as
defined in the Agreement collected from the customers, exclusive of taxes and the
franchise fees. The gross percentage fee under this section does not apply to franchises
engaged solely in biomedical, biological, and hazardous removal services. The City may
from time to time, adjust this fee by amending § 22-56 of the City Code.
FRANCHISEE acknowledges it shall be obliged to pay such fee as adjusted or
amended as of the effective date of such legislation and will promptly execute an
addendum or amendment affirming the foregoing.
5.3 FRANCHISEE shall, on or before 90 days following the close of each fiscal year, deliver
to the Director of the Department of Solid Waste, a certified statement of its annual gross
receipts and charge-offs, generated from accounts within the City prepared by an
independent Certified Public Accountant (CPA) reflecting gross receipts/activity within
the City -for -the.. preceding fiscal year. The CPA statement shall render an unqualified
opinion relative to the accounting of all revenues, fees and charge-offs generated- -from-
accounts
romaccounts and activity within the City limits.
City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 122246
5.4 ANNUAL FRANCHISE FEE: FRANCHISEE agrees to remit to the CITY annually (due
October 1) the sum of $8,000.00 for the right to be a FRANCHISEE for Commercial
Solid Waste Services within the City; said fee shall increase annually by $500.00.
Failure to remit the required annual franchise fee by the due date will cause the
FRANCHISEE a one and one half percent (1.5%) penalty per month on the balance due.
FRANCHISEE that performs ONLY Commercial Solid Waste Services and
FRANCHISEE that performs BOTH Commercial Solid Waste Services AND Specialized
Waste Handling Services will be subject to this annual fee. This fee does NOT apply to
FRANCHISEE that performs ONLY Specialized Waste Handling Services.
5.5 FRANCHISEE agrees to remit the $8,000.00 annual franchise fee by October 1, 2010, as
noted in paragraph 5.4 above. FRANCHISEE further agrees on each anniversary
(October 1) throughout the term of the Franchise Agreement, to increase said fee by
$500.00. For example; commencing October 1, 2011, the annual fee due the City will be
$8,500.00, and so forth throughout the Agreement term.
5.6 FRANCHISEE agrees `to remit to the Cary , annually a Permi .Per Account 'Fee '.m :the
amount of seventy=five ($75:,00) (due October 1) for each account and each- roll -off
effective,-, ctoberVt of everynew fiscal year'to�hose accounts and roll -offs booked as of
October 15` of every new fiscal year with whom they ,.contract for the provision of
commercial.solidlwaste services and/or specialized waste handling services,'including
each container and/or -roll -off utilized by FRANCHISEE in.the course of providing solid
waste services. in additi&i for each new commercial account, and -new roll-off:contamer
acquired after October 1, the FRANCHISEE agrees to remit $75.00 for the newi:account
7,15 including 575.00 'for each -iol1-off placed :.in ,the :City. The remittance must "be to the
Finance -Department by the .end of the following .month.. The FRANCHISEE 'may only
_pass on an amount -mot to exceed thirty-eight ($38.00) of said permit per account fee to
each.,,contracted customer. _,Said _:-permit per account fee shall not be transferable.
Effective October 1, 2010 the annual period will begin October 1St and end September
30th. All late payments of this fee will cause the FRANCHISEE a one and one half
percent (1.5%) penalty per month on the balance due.
5.7 Annual Specialized Waste Handling Fee: FRANCHISEE agrees to remit to the City
annually (due October 1, 2010) the sum of $4,000.00 for the right to provide ONLY
Specialized Waste Handling Services within the City limits. It should be noted, if a
FRANCHISEE is providing ONLY Specialized Waste Handling Services within the City,
the annual franchise fee will increase by $500.00 per year. For example; commencing
October 1, 2011, the annual franchise fee for Specialized Waste Handling Services due
the City will be $4,500.00, and so forth throughout the Agreement ten -n. All late
payments of this fee will cause the FRANCHISEE a one and one half percent (1.5%)
penalty per month on the balance due. This fee does not allow the FRANCHISEE to
-- - - - - erform-.Commercial_S.olid Waste_.(Garbage) Services within the City limits. This fee
applies to a FRANCHISEE that ONLY perforans Specialized Waste Handling Services-- --
within the City limits.
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Cite of Miami, Floi-ida Commercial Solid Waste Haulin.- Services RFQ 222246
5.8 Safety Inspection Fee: FRANCHISEE agrees to pay the City an annual $500.00 per
vehicle inspection fee. This is a regulatory fee as referenced in Section 166.221, Florida
Statutes. This fee is for the municipal inspection of the vehicles being used by
FRANCHISEE within the City. The inspection of each vehicle will occur not less than
on an annual basis. These are vehicles that are used by FRANCHISEE to operate within
the City boundaries. The vehicles will include, but are not limited to, roll -offs, grapple
trucks, front and rear end loaders, vactor trucks, dump trucks, trailers, and any other
vehicles used for business, collection and disposal of any debris by the FRANCHISEE.
FRANCHISEES that are caught operating within the City limits without a vehicle
inspection decal, will be subject to the violation schedule as specified in Section 4.11.2.
ARTICLE VI
AUDIT AND INSPECTION RIGHTS
6.1 " ,The ;CITY may, at --reasonable times, and for 4,period of up"to°five (5") 'years _,following the
date" offinal payment by the FRANCHISEE to CITY under -this Agreement, -audit,".-or
cause to be audited, those books and records of FRANCHISEE which are je4lated to
FRANCHISEE'S, performanceunder this Agreement. FRANCHISEE agrees to maintain
all such books and .records at its principal ;place hof business for a period of five "(5) years
after final=payment is made:under this AGREEMENT.
6.1.1 The City shall have the following inspection.and.audit rights as provided in §I.&J01 and
§ 18-102.6f the City Code:.
�," ...18-'1.Q1 "-?lnspeciiorts.
"(a)` Solicitations and contractual provisions. City contracts shall provide that the city may inspect goods or
services at the facilities of the contractual party and perform tests to determine whether they conform to
solicitation requirements contained in invitation for bids or requests for proposals or, after award, to the
terms and conditions of the contract. Such inspections and tests shall be performed in accordance with the
terms and conditions of the solicitation and contract.
(b) Procedures for tests and inspections.
(1) The chief procurement officer may specify general operational procedures governing the test and
inspection of all goods or services, sales or leases being performed under city contract by city departments,
offices and individual purchasing agents.
(2) The chief procurement officer shall inspect or supervise the inspection of all deliveries of supplies,
materials, equipment, contractual services or performance under lease agreements to determine
conformance with the terms and conditions upon which the order or contract was based. Any purchasing
agent or department may be authorized by the chief procurement officer to inspect deliveries or contract
performance in the manner stipulated with the approval of the city manager.
(3) The chief procurement officer may prescribe chemical, physical and other performance tests for goods
or services, including samples submitted with bids or offers and samples of deliveries and performance to
determine their quality and conformance with the terms and conditions of the solicitation or contract. In the
performance of such tests or inspections, the chief procurement officer shall have the authority to make use
- of -the-laboratory- facilities- of -any- department -o -.the.- cit or -.any,- outside-.I,abqratorv--or-.s.DeciaI expertise
available to evaluate service performance. -
(c) Conduct of inspections. Whenever possible, inspections and tests shall be performed so as not to
unduly delay or inconvenience the contractual parties. Contractual parties shall make available at no
charge to the city all reasonable facilities and assistance, in order to facilitate the performance of
inspections or tests by city representative.
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Cite of Miami, Florida Commercial Solid Waste Hauling Services RFC) 222246
(Ord. No. 12271, § 2, 8-22-02)
Sec. 18-102 - Audits.
(a) Solicitations and contractual provisions. City contracts shall provide that the city may inspect the
books and records of contractual parties to determine conformance with the solicitation requirements
contained in the invitation for bids or request for proposals or, after award, with the terms and conditions of
the contract.
(b) Procedures for audits.
(1) The chief procurement officer may specify the general procedures for inspection of books and records
and for the conduct of audits of all goods or services, sales or leases under city contracts.
(2) An audit may be required when, in respect to an actual or prospective contractual party, there is:
a. A question as to the adequacy of accounting policies or cost systems;
b. A substantial change in the methods or levels of operations;
c. Previous unfavorable experience indicating doubtful reliability of estimating, accounting or purchasing
methods;
d. A lack of cost experience due to the procurement of a new supply or service; or
e. Other evidence that an audit is in the city's best interests as determined by the chief procurement
officer3he city manager or city commission.
:(c) Conduct of audits Wheriever possible, audits shall be performed` so .as not .to,:.unduly delay, or
inconvenience the contractual party. Contractual;; parties shall make available at no charge to. the city all
reasonablelfacilities and assistance; -for the convenience of the city representatives performing the audit.
;'(Ord. No. 12271 §.-,2, B-22-0
6.21 The CITY -may, at reasonable times during the'term hereof,inspect FRANCHISEE'S
facilities and perform such :fest, as the CITY deems reasonably necessary, to 'determine
whether the goods: or services required to be provided `hy FRANCHISEE under this
AGREEMENT conform to the terms 'hereof, if applicable. FRANCHISEE shall make
available 'to the ?`CITY reasonable. facilities and' .render .assistance to facilitate the
performance of all `tests and/or inspections by CITY representatives. All tests and
inspections shall be subject to; and rude in accordance with, the provisions of `Sections
18-95, 18-96 and 18-97, of the City Code, as same may be amended or supplemented,
from time to time. FRANCHISEE also agrees to allow City auditors, during regular
business hours and after reasonable notice, to audit, inspect and examine the
FRANCHISEE'S financial records (as they relate to City of Miami revenue) including all
fiscal books and records, sales tax returns, bank statements, general ledger (vouching
City of Miami revenue to the G/L), contract/agreement between FRANCHISEE and
customer and any other financial information deemed necessary, insofar as they relate to
City accounts, as well as, the FRANCHISEE'S entire customer base, in order to confirm
the FRANCHISEE'S compliance with the Franchise Agreement. FRANCHISEE further
agrees to pay a one and one half percent (1.5%) penalty per month on any monies due
and owing the CITY, as a direct result of an audit from whatever applicable revenue
stream during the Agreement term. In addition, if a City Audit reveals that
_FRANCHISEE under reported gross receipts, and results in additional revenue due the
City in the amount of $20,000.00 (per Fiscal Year)or more; FRANCHISEEagrees to pay- --- - for the cost of said Audit. Upon audit notification, FRANCHISEE agrees to deliver all
financial information and books and records to within the City limits, if said information
is maintained outside the City boundaries.
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6.3 FRANCHISEE agrees to allow CITY auditors the right to copy any financial related
source documents when deemed necessary, to substantiate an audit funding. Also, any
FRANCHISEE requesting credit or refund for Franchise Fees paid to the City in error,
will be required to pay for the auditing hours necessary to verify the claim that is
performed by our City auditors. As an alternative, FRANCHISEES may retain their own
outside CPA Firm to verify their claim. It is agreed that FRANCHISEES must pay for
the hours necessary to verify the work of the outside CPA Firm.
ARTICLE VII
INSURANCE AND BONDS
7.1 FRANCHISEE agrees to maintain, for the teen of this AGREEMENT, a public liability
policy in the minimum amount of $1,000,000; automobile liability insurance policy
covering FRANCHISEE'S operations with a combine single limit of $1,000,000 per
occurrence for bodily injury and property .damage liability.. FRANCHISEE'S certificate
shall .also include' workers' °::compensation coverage. The ;City. shall be .listed as an
additional:insured�for liability.
7.2 FRANCHISEE agrees to maintain, for the term of this AGREEMENT, a Performance
Bond, executedby a surety company ,.duly authorized to, .do business in the °State of
Florida, which shall be counter -signed by an agent for the -company, resident in -the State
of Florida. The amount-of.the bond shall be equal to thexFRANCHISEE'S previous 12
month franchise fees paid'to-the CITY, (including the annual franchise fee, monthly 24%
franchise fee, annual per account fee; _and airy other franchise fees paid to the City) or a
minimum of $25,000, whichever is gr eater, as security orahe faithful performance of the
_.Franchise AGREEMENT. The surety shall have =,a rating classification of "A2' and a
financial category of Class V .as evaluated in the':-current Best's Key Rating Guide,
"Property Liability." In lieu of a Performance Bond, the FRANCHISEE may submit an
irrevocable letter of credit, cash, certified check, treasurer's or cashier's check issued by a
responsible bank or trust company payable to the CITY of Miami. The Performance
Bond shall be submitted to the Purchasing Department no later than ten (10) business
days after approval of the Agreement by the City Commission and prior to the execution
of the Agreement.
ARTICLE VIII
TERM
8.1 The term of the Agreemeni shall -be for -a-period of -five (5) years with three -(3) -one -(1)- - -----------
year options to renew. The Agreement shall commence October 1, 2010, and shall
terminate on September 30, 2015, with the three (3) one (1) year option periods through
September 30, 2018. The AGREEMENT shall become effective upon execution by the
parties hereto.
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8.2 The option to renew the Agreement for the additional three (3) one (1) year periods will
be at the sole discretion of the City. Various criteria will be established prior to each
renewal period. During the review process for renewal, the established criteria will be
used in order to ascertain how well each FRANCHISEE performed since the inception of
the October 1, 2010, Agreement. It should be noted that any FRANCHISEE that is not
renewed for any of the option periods, will not be allowed to operate within the City
limits.
ARTICLE IX
DEFAULT
9.1 If FRANCHISEE fails to comply with any term or condition of this Agreement, or fails
to perform any of its obligations hereunder, then FRANCHISEE shall be in default.
Upon the occurrence ..of : a _ default hereunder, the CITY, in addition "to all _remedies
available;to it by law may immediately, upon�written noticelo'FRANCHISEE, terminate
this Agreement ;FRANCHISEE understands and agrees that termination of this
Agreement ,under 'this section shall not' -release FRANCHISEE from any "obligation
accruing prior to the effective date of termination. Should FRANCHISEE be -unable or
unwilling;to commence to perform the Services"within the;.fime provided or contemplated
herein, then,' in additionto the foregoing, FRANCHISEE "shallbe .liable to the "CITY for
all expenses : incurred by the CITY in°preparation =and negotiation of this Agreement, as
well as, all"costs and expenses incurred:by".,the;,C ty in the re -Procurement of the`Services,
including"consequential and incidental damages.
9.2 If:.a.default status isnot cured.and the AgreemenCis,lenninated, the City has the right to
-seize the Franchiseand transfer"it to."athird parry.
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ARTICLE X
RIGHT TO TERMINATE AND/OR TRANSFER AGREEMENT
10.1 The CITY shall have the right to terminate this AGREEMENT, in its sole discretion, at
any time after the CITY gives written notice to the FRANCHISEE of a default of any of
the provisions in this Agreement and the FRANCHISEE fails to correct the default or
cease the conduct as set forth in the written notice, within fourteen (14) working days of
the receipt by the FRANCHISEE of said notice from the CITY.
10.2 If the FRANCHISEE is in default and owes sums to the City, 14 days after notice of
default has been sent to FRANCHISEE, the City will have the option of transferring the
rights under that FRANCHISEE'S AGREEMENT to a third party. That right to transfer
the rights under that FRANCHISEE'S AGREEMENT may be exercised at any time after
the termination of`the:FRANCHISEE and:no intent to later transfer those; ghghts-need;b.e
expressed in any notice or other communication with FRANCHISEE:
10.3, ` FRANCHISEE has :the right to appeal the.revocation of this AGREEMENT to the City
r ` Manager in -accordance with..the same time period as set forth in Section 22-49 of the City
Code. Said..request,,,', .pea,I must be in writing:
10.4 All complaints received bythe CITY shall be resolved by",the'FRANCHISEEiiwithin 24
hours, after notification by ::the City _to the _FRANCHISEE of said complaint. The
FRANCHISEE agrees to make all reasonable :.and -.expeditious efforts to resolve every
complaint. The FRANCHISEE shall perform every,reasonable act to provide a 1eve1 of
high,qu'al ty service which will. -minimize complaints.
10.5 It is expressly agreed that in no event shall the CITY be liable or responsible to the
FRANCHISEE or its customers for delay or temporary interruption in service because of
disputes between the parties or any cause over which the CITY has no control. In the
event of any condition which makes performance of contracts entered into under the
terms and conditions of this AGREEMENT impossible, FRANCHISEE agrees that the
CITY shall have the right to invite, notify, and qualify other Prospective Proposers of the
opportunity to provide collection and disposal services.
ARTICLE XI
NOTICES
11.1 Whenever either party desires to give notice unto the other, it must be given by written
notice, sent certified U.S. Mail, with return receipt requested, addressed to the party for
whom it is intended, at the place last specified and the place for giving of notice in
compliance with the provisions of this paragraph.
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Cite of Miami, Florida Commercial Solid Waste Raiding Services RFQ 222246
11.2 For the present, the parties designate the following as the respective places for giving of
notice, to -wit:
CITY of MIAMI
c/o City Manager
3500 Pan American Drive
Miami, Florida, 33133
FRANCHISEE
Copy To:
City of Miami
Director, Department of Solid Waste Director's Office
1290 NW 20th Street
Miami, Fl 33142
injury to or death", of any person or damage to or ' destruction or loss of any property
arising out of, resulting from, or in connection with (i) the performance or non-
performance of the services contemplated by this AGREEMENT which is or is alleged to
be directly or indirectly caused, in whole or in part, by any act, omission, default or
negligence (whether active or passive) of FRANCHISEE or its employees, agents or
subcontractors (collectively referred to as "FRANCHISEE"), regardless of whether it is,
or is alleged to be, caused in whole or part (whether joint, concurrent or contributing) by
any act, omission, default or negligence (whether active or passive) of the Indemnities, or
any of them or (ii) the failure of the FRANCHISEE to comply with any of the paragraphs
herein or the failure of the FRANCHISEE to conform to statutes, ordinances, or other
regulations or requirements of any governmental authority, Federal or State, in
connection with the performance of this Agreement. FRANCHISEE expressly agrees to
indemnify and hold harmless the Indemnities, or any of them, from and against all
liabilities which may be asserted by an employee or former employee of FRANCHISEE,
or any of its subcontractors, as provided above, for which the FRANCHISEE'S liability
to such employee or former employee would otherwise be limited to payments under
State Workers' Compensation or similar laws.
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ARTICLE XIII
ASSIGNABILITY
13.1 There is no right to assign this Agreement. The City Commission may allow an
assignment if it is deemed in the best interests of the City of Miami ("CITY") to do so.
Under no circumstances may the City Commission consider assignment of a Franchise as
long as the FRANCHISEE has any outstanding balance to the CITY or is otherwise not
in complete compliance with the Agreement. If the FRANCHISEE is up to date with all
payments to the CITY and is otherwise fully in compliance with the Agreement, then a
FRANCHISEE may request consideration for assignment only as follows: by Certified
letter to the Director of the Department of Solid Waste with reports enclosed reflecting all
payments due to the CITY have been paid through the date of the letter. For the purposes
of this paragraph, "assignment" shall include any transfer of a majority of stock in a
FRANCHISEE or any significant change in ownership of the FRANCHISEE, its officers,
directors or personnel. The Director of the Department of Solid Waste must be notified
Of-any..sale of a majority of -stock in the FRANCHISEE and any, significant -changes in -the
ownership of the FRANCHISEE, its officers,:directors or personnel r'by Certified "Ieti&,,no
later than ;five (5) business days after such action. If assignment is granted, the new
FRANCHISEE will;assume"all obligations setforth in the Agreement and immediately
comply with all terms of the` Agreement. If ;the CITY .approves assignment of this
Agreement;:..it may be conditioned on, the -proposed assignee demonstrating fiscal
solvency, reliability, ..afi& Prior 'to consideration of .approval by ;the City,
the proposed assignee must execute an Assianment/Assumption Agreement whereby they
comply with every..:condition of the prior, Franchise. Agreement and this Agreement must
be approved as to:form and:correctness byahe'City Attorney.`
13.2,This AGREEMENT shall be,:binding upon the parties hereto, their heirs, executors, legal
representatives, successors, or assigns
ARTICLE XIV
COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS:
14.1 FRANCHISEE understands that agreements between private entities and local
governments are subject to certain laws and regulations, including laws pertaining to
FRANCHISEE's operations and services, public records, conflict of interest, record
keeping, etc. FRANCHISEE agrees to comply with and observe all applicable Federal,
State, County and City laws, rules, regulations, Codes and Ordinances, as applicable to
FRANCHISEE and its operations and services, as they may be amended from time to
time.
ARTICLE XV
NONDISCRIMINATION
15.1 FRANCHISEE represents and warrants to the City that FRANCHISEE does not and will
not engage in discriminatory practices and that there shall be no discrimination in
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connection with FRANCHISEE'S performance under this Agreement on account of race,
color, sex, religion, age, handicap, marital status or national origin. FRANCHISEE
further covenants that no otherwise qualified individual shall, solely by reason of his/her
race, color, sex, religion, age, handicap, marital status or national origin, be excluded
from participation in, be denied services, or be subject to discrimination under any
provision of this Agreement.
ARTICLE XVI
INDEPENDENT CONTRACTOR
16.1 FRANCHISEE is being engaged as an independent contractor, and not as an agent or
employee of the City. Accordingly, FRANCHISEE shall not attain, nor be entitled to,
any rights or benefits under the Civil Service or Pension Ordinances of the City, nor any
rights generally afforded classified or unclassified employees. FRANCHISEE further
understands that Florida Workers' Compensation benefits .available"to employees of the
.City "are„not available to FRANCHISEE, and;;agrees to provide .workers' compensation
insurance., -for any "employee or.agent of FRANCHISEE.
ARTICLE XVII
GOVERNING LAW; VENUE; .CNIL ACTIONS
17.1 This Agreement shall be `"governed by the laws of the Federal Government, "State of
Florida, Miami -Dade County :and the Codes andOrdinances of the City of Miami. This
Agreement shall be _construed:and interpreted "under the laws” of the State of Florida.
17.2 Venue.in any claims, actions or"proceedings between"the parties shall be in Miami -Dade
-'County, Florida.
17.3 In order to expeditiously handle any claims, actions or proceedings between the parties
under this Agreement each party voluntarily and knowingly: (i) waives their right to
demand a jury trial; (ii) waives their right to file a permissive counterclaim; (iii) agrees to
bear their own attorney's fees.
ARTICLE XVIII
SEVERABILITY
18.1 Should any section of this AGREEMENT, or any part thereof, or any paragraph, sentence
or word be declared by a Court of competent jurisdiction to be invalid, such decision
shall not affect the validity of the remainder hereof.
ARTICLE XIX
ENTIRE AGREEMENT
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City of Miami, Florida Commercial Solid Waste Hauling Services RFO 222246
19.1 This instrument and its attachments constitute the sole and only AGREEMENT of the
parties relating to the subject matter hereof and correctly sets forth the rights, duties, and
obligations of each to the other as of its date. Any prior Agreements, promises,
negotiations, or representations not expressly set forth in this AGREEMENT are of no
force or effect.
19.2 It is further understood that no modification, amendment or alteration in the terms or
conditions contained herein shall be effective unless contained in a written document
executed with the same fonnality and of equal dignity herewith.
19.3 Notwithstanding the aforementioned, the City reserves the right , from time to time, to
levy other reasonable business, professional, and occupational regulatory fees, pursuant
to § 166.221, Florida .Statutes . ,.
21.1 In addition, Qualified Proposer(s) agree that the City has the right to add additional
qualified proposers, (in the event any of the Franchises are cancelled, terminated, or the
FRANCHISEES otherwise cease to do business or provide adequate service within the
City), who meet all requirements of applicable laws, codes, rules and regulations and will
execute City furnished Agreements, to provide collection and disposal services, as
determined necessary by the City, through the duration of the contract in order to insure
availability and expediency of services. Each proposer who seeks to be added to the
Commercial Solid Waste Hauling Services contract shall be evaluated, consistent with
the requirements of this R.FQ, to determine qualifications.
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City of Miami, Florida Commercial Solid Waste Hauling Services RFn 222246
IN WITNESS 'WHEREOF, the parties hereto have caused this instrument to be executed by
their respective officials thereunto duly authorized, this the day and year above written.
ATTEST:
"CITY"
CITY OF MIAMI, a municipal
corporation
I'm
APPROVED AS TO FORM AND
CORRECTNESS:
Julie O. Bru
City Attorney
APPROVED AS TO INSURANCE
REQUIREMENTS:
Gary Reshefsky
Interim Director
Risk Management
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