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HomeMy WebLinkAboutexhibit2CITY OF MIAMI COMMERCIAL SOLID WASTE FRANCHISE AGREEMENT BETWEEN THE CITY OF MIAMI AND THIS AGREEMENT ("AGREEMENT"), made and entered into this day of , 2004 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 replace regulatory permits for providing Commercial Solid Waste Services with commercial Franchises to qualified firms; and WHEREAS, the City Commission has determined that it is in the best interest of the CITY to issue a commercial Franchise to FRANCHISEE to engage in Commercial Waste Collection Services within the CITY; 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. 03-04-107 and applicable sections of the Code and Ordinances of the CITY; and WHEREAS, FRANCHISEE is desirous of obtaining a Franchise from the CITY to provide Commercial Solid Waste Collection Services within the CITY as set forth herein; and WHEREAS, the CITY believes that the Franchising of the Commercial Solid Waste Services is in the CITY'S best interest and will result in significant cost savings, additional revenues and better services for commercial solid waste customers; and NOW THEREFORE, in consideration of the mutual tenns, 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: 1 ARTICLE I GENERAL INFORMATION 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. 03-04-107 by FRANCHISEE is herein incorporated by this reference. ARTICLE II DEFINITIONS 2.1 All Definitions set forth in the City of Miami Code, Chapter 22, entitled Garbage and Other Solid Waste and Chapter 22 in its entirety, is hereby incorporated by this reference. 2.2 As used in this AGREEMENT, the, following words and terms shall have the following meanings, unless the context clearly otherwise requires: Agreement shall mean this AGREEMENT, as it may hereinafter be amended or supplemented. Agreement Collection Area shall include the entire CITY, as the boundaries of the CITY shall exist at all times during the life of this AGREEMENT. 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. Gross Receipts shall mean all monies, whether paid by cash, check, debit or credit, collected from customers for garbage, solid waste, fuel surcharge, construction and demolition debris, roofing materials, trash, litter, refuse and/or rubbish collection removal and disposal services rendered, or from any other source related directly from waste collection services by the FRANCHISEE, exclusive of taxes as provided by law, whether wholly or partially collected within the CITY, less bad debts. Multifamily Residence shall mean and include any building or structure containing four or more contiguous living units and intended exclusively for residential purposes. Neighborhood Cleanups shall mean periodic intensive removal of litter, debris and other solid waste material from a designated area of the City, initiated or 2 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 annual charge assessed by the City each October 1, to FRANCHISEE, for every account with whom they contract 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. Ref. - Florida Statutes, Chapter 403, Environmental Control Part IV - Resource Recovery and Management, as may be amended from time to time. ARTICLE III GRANT 3.1 The CITY grants unto the FRANCHISEE the continued 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. 3.2 The CITY further grants unto the FRANCHISEE the right and privilege, with related obligations, to provide solid waste collection and disposal services for construction, demolition and renovation sites located within the CITY on a contracted basis. ARTICLE IV OBLIGATIONS OF FRANCHISEE 4.1 FRANCHISEE shall be responsible for the collection and disposal of all Commercial Solid Waste. Extra -ordinary material, Hazardous Waste, unacceptable waste, body waste, dead animals, abandoned vehicles and parts, large equipment and parts thereto will not be collected by FRANCHISEE unless specifically required by the generator and agreed to by the FRANCHISEE. 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 3 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. 4.3 FRANCHISEE agrees that ail 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 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. 4.4 FRANCHISEE shall be responsible for creating and maintaining schedules and routes, as well as, frequency of service within the limitations and under the provisions of the City Code. FRANCHISEE shall be responsible for providing notification of same to its customers immediately. 4.5 In cases of natural or man made disasters, the City Manager may grant the FRANCHISEE reasonable variance from regular schedules and routes. As soon as a declaration of .an emergency is issued by the Mayor, FRANCHISEE shall secure its containers in order to prevent hazards and/or threats to public safety and health. As soon as practicable after such disaster, the FRANCHISEE shall advise the CITY and its customers of the estimated time required before regular schedules and routes can be resumed. 4.6 FRANCHISEE shall make its customers aware of Miami -Dade County's mandatory Commercial and Multi -family Residence recycling ordinance and shall make services available for contract. 4.7 FRANCHISEE agrees to 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 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 assignments are to be established by the Director of the Department of Solid Waste. 4.9 FRANCHISEE shall require that its employees wear clean uniforms or shirts bearing the FRANCHISEE'S name; that each driver shall, at all times, carry a valid Commercial Driver's License, for the type of vehicle being operated; that the CITY may request the removal of any employee of the FRANCHISEE from 4 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 strictly adhere to the provisions of Section 22-46 of the City Code which limits private waste collection service to accounts located within 100 feet of a residential district to between the hours of 7:00 a.m. and 11:00 p.m., except and only as determined by the Director of the Department of Solid Waste. Each Fiscal Year, the fines assessed for noncompliance of this section will be as follows: • 1st Offense: $ 250.00 2nd Offense: $ 500.00 3rd Offense: $1,000.00 Each additional offense: $1,000.00 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. 4.13 FRANCHISEE acknowledges that under this Agreement, price controls will be primarily extracted through competition 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. Therefore, FRANCHISEE agrees that none of the requirements under any of the articles of this Agreement except and to the extent as set forth in paragraph 5.6 below, shall result in an increase of pricing to the customer. The FRANCHISEE may, however, increase service charges as a result of increases in operating costs such as tipping fees, labor and other related operating costs. 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 name 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) but not more frequently than quarterly, as determined by the Director of the Department of Solid Waste, each FRANCHISEE shall supply the following information on a diskette or other acceptable format and in the manner prescribed by the Director: (1) A listing, as of the reporting date, of the names and addresses of 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 for which hand collection of bags/cans is provided, 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. 5.2 FRANCHISEE agrees to remit monthly to the CITY, 22 percent (22%) 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 list which reflects 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-two percent (22%) of the total amount collected should equal the remittance amount. The remittance of the previous month's collection should be received by the 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 (1-1/2%) penalty per month on the balance due. If payment is past due in excess of 60 days, the Department of Solid Waste will initiate its procedure to revoke the FRANCHISE and attach the Performance Bond for all monies due and owing the City, including costs. It should be noted, the 22% remitted monthly to the City, should be calculated on all monthly gross receipts collected from the customers, exclusive of taxes and the franchise fees. 6 5.3 FRANCHISEE shall, on or before 60 days following the close of each fiscal year, deliver to the Director of the Department of Solid Waste, a statement of its annual gross receipts generated from accounts within the City prepared by an independent Certified Public Accountant reflecting gross receipts within the City for the preceding fiscal year. 5.4 In addition to the fees enumerated in paragraph 5.2 and 5.6, FRANCHISEE agrees to remit to the CITY annually (due October 1) the sum of $5,000.00 (increased annually by $500.00) for the right to be a FRANCHISEE for Commercial Solid Waste Services and Specialized Waste Handling Services within the City. Failure to remit the required annual franchise fee by the due date will cause the FRANCHISEE a one and one half percent (1-1/2%) penalty per month on the balance due. 5.5 FRANCHISEE agrees to remit the $5,000.00 annual franchise fee by October 1, 2004, 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, 2005, the annual fee due the City will be $5,500.00, and so forth throughout the Agreement term. 5.6 FRANCHISEE agrees to remit to the City annually (October 15) a Permit Per Account Fee in the amount of $50.00 for each account contracted within the City for commercial solid waste service and/or specialized waste handling services, including, each container and/or roll -off utilized by FRANCHISEE in the course of the provision of solid waste services. The FRANCHISEE may only pass on an amount not to exceed $24.00 of said Permit Per Account Fee to each contracted customer. This fee shall not be transferable. All late payments of this fee will cause the FRANCHISEE a one and one half percent (1-1/2%) penalty per month on the balance due. 5.7 In addition to the fees enumerated in paragraph 5.2 and 5.6, FRANCHISEE agrees to remit to the City annually (due October 1) the sum of $1,000.00 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, 2005, the annual franchise fee for Specialized Waste Handling Services due the City will be $1,500.00, and so forth throughout the Agreement term. All late payments of this fee will cause the FRANCHISEE a one and one half percent (1-1/2%) penalty per month on the balance due. 7 ARTICLE VI AUDIT AND INSPECTION RIGHTS 6.1 The CITY may, at reasonable times, and for a period of up to five (5) years following the date of final payment by the FRANCHISEE to CITY under this Agreement, audit, or cause to be audited, those books and records of FRANCHISEE which are related to FRANCHISEE'S performance under this Agreement. FRANCHISEE agrees to maintain all such books and records at its principal place of business for a period of five (5) years after final payment is made under this AGREEMENT. 6.2 The CITY may, at reasonable times during the term hereof, inspect FRANCHISEE'S facilities and perform such test, as the CITY deems reasonably necessary, to determine whether the goods or services required to be provided by 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 made 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- 1/2%) 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, FRANCHISEE agrees 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. 6.3 FRANCHISEE agrees to allow CITY auditors the right to copy any financial related source documents when deemed necessary, to substantiate an audit finding. 8 ARTICLE VII INSURANCE AND BONDS 7.1 FRANCHISEE agrees to maintain, for the term 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. 7.2 FRANCHISEE agrees to maintain, for the term of this AGREEMENT, a Performance Bond, executed by 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 the FRANCHISEE'S previous 12 month franchise fees paid to the CITY (including the annual franchise fee, monthly 22% franchise fee, annual per account fee, and any other franchise fees paid to the City) or a minimum of $25,000, whichever is greater, as security for the faithful performance of the Franchise AGREEMENT. The surety shall have a rating classification of "A" and a financial category of Class VII 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. The Performance Bond may be reduced, at the City's discretion, 25% per year to a maximum of 50%, if payments due the City were remitted timely during the previous 12 month period. It should be noted the bond reduction may not fall below the $25,000.00 minimum limit, throughout the term of the Agreement. ARTICLE VIII TERM 8.1 The term of the Agreement shall be for a period of five (5) years with one (1) three (3) year option to renew. The Agreement shall commence October 1, 2004, and shall terminate on September 30, 2009, with the three (3) year option period through September 30, 2012. The AGREEMENT shall become effective upon execution by the parties hereto. 8.2 The option to renew the Agreement for the additional three (3) year period will be at the sole discretion of the City. Various criteria will be established prior to the 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, 2004, Agreement. It should be noted that any 9 FRANCHISEE that is not renewed for the three (3) year option period, will not be allowed to operate within the City limits during the three (3) year period. 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 notice to 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 time provided or contemplated herein, then, in addition to the foregoing, FRANCHISEE shall be 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 City in the re procurement of the Services, including consequential and incidental damages. 9.2 If a default status is not cured and the Agreement is terminated, the City has 'the right to seize the Franchise and transfer it to a third party. 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 clays 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 rights need be 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 Manager in accordance with the same time period as set forth in Section 22- 49 of the City Code. Said request for appeal must be in writing. 10 10.4 All complaints received by the CITY shall be resolved by the FRANCHISEE within 24 hours. The FRANCHISEE agrees to make all reasonable and expeditious efforts to resolve every complaint. The FRANCHISEE shall perform every reasonable act to provide a level of high quality 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 notify other Franchisees to invite other Franchisees 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. 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 ARTICLE XII INDEMNIFICATION FRANCHISEE 12.1 FRANCHISEE shall indemnify, defend and hold harmless the CITY and its officials, employees and agents (collectively referred to as "Indemnities") and each of them from and against all loss, costs, penalties, fines, damages, claims, expenses (including attorney's fees) or liabilities (collectively referred to as "Liabilities") by reason of any 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 11 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. 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 by Certified letter no later than five (5) business days after such action. If assignment is granted, the new FRANCHISEE will assume all obligations set forth in the Agreement and immediately comply with all terms of the Agreement. 13.2 This AGREEMENT shall be binding upon the parties hereto, their heirs, executors, legal representatives, successors, or assigns. 12 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 public records, conflict of interest, record keeping, etc. City and FRANCHISEE agree to comply with and observe all applicable Federal, State and local laws, rules, regulations, Codes and Ordinances, 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 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 MINORITY AND WOMEN BUSINESS AFFAIRS AND PROCUREMENT PROGRAM 16.1 The City has established a Minority and Women Business Affairs and Procurement Program (the "M/WBE Program") designed to increase the volume of City procurement and contracts with Blacks, Hispanic and Women -owned business. The M/WBE Program is found in Ordinance No. 10062, a copy of which has been delivered to, and receipt of which is hereby acknowledged by, FRANCHISEE. FRANCHISEE understands and agrees that the City shall have the right to terminate and cancel this Agreement, without notice or penalty to the City, and to eliminate FRANCHISEE from consideration and participation in future City contracts if FRANCHISEE, in the preparation and/or submission of the Proposal, submitted false or misleading information as to its status as Black, Hispanic and/or Women owned business and/or the quality and/or type of minority or women owned business participation. 13 ARTICLE XVII INDEPENDENT CONTRACTOR 17.1 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 XVIII GOVERNING LAW 18.1 This Agreement shall be governed by the laws of the Federal Government, State of Florida, Miami -Dade County and the Codes and Ordinances of the City of Miami. . ARTICLE XIX SEVERABILITY 19.1 Should any section of this AGREEMENT, or any part thereof, or any paragraph, sentence or wordbe declared by a Court of competent jurisdiction to be invalid, such decision shall not affect the validity of the remainder hereof. ARTICLE XX ENTIRE AGREEMENT 20.1 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. 20.2 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 formality and of equal dignity herewith. 14 ARTICLE XXI APPROVAL OF THIS AGREEMENT 21.1 Execution of this Agreement by the City Manager, City Attorney, City Clerk, Risk Management Administrator and FRANCHISEE, shall constitute evidence of its approval. 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. "CITY" CITY OF MIAMI, a municipal ATTEST: corporation By: Priscilla A. Thompson, City Clerk Joe Arriola, City Manager ATTEST: "FRANCHISEE" a Corporation By: Print Name: Print Name: Title: Title: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: ALEJANDRO VILARELLO City Attorney DANIA F. CARRILLO Administrator Risk Management 15