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HomeMy WebLinkAboutExhibit 1PROFESSIONAL SERVICES AGREEMENT FOR RECYCLING BY AND BETWEEN WASTE MANAGEMENT INC. OF FLORIDA AND THE CITY OF MIAMI THIS AGREEMENT made as of the day of November, 2012, by and between Waste Management Inc. of Florida, a Florida Corporation authorized to do business in the State of Florida, with current offices 2700 Wiles Road Pompano Beach, Florida 33073 ("WM") and the City of Miami, a Florida municipal corporation, with offices at 3500 Pan American Drive, Miami, Florida 33133 ("City"). WITNESSETH: WHEREAS, the City Manager approved the findings of the Evaluation Committee pursuant to RFP No. 290257 for which recommended WM as the successful proposer. WHEREAS, WM and its affiliates are experienced, and have been engaged, in the recycling business for more than 20 years, currently having 7 Materials Recovery Facilities in North America and processing over 500,000 tons of recycling materials on an annual basis. WHEREAS, City desires that WM provides its Hialeah Transfer Station, 5000 NW 37th Avenue, Miami, Florida (the "Facility"), for the primary acceptance of Commingled Recyclable Materials (as the term is defined herein below) to be collected and transported by City, from Miami to the Facility; and WHEREAS, City and WM wish to enter into this Agreement to set forth the terms and conditions pursuant to RFP No. 290257 for which City will deliver to WM and WM will accept all recyclable materials collected from the City's curbside residential recycling program. NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and intending to be legally bound, the parties hereto agree as follows: 1. Definitions: The following definitions will apply to all "Recyclable Materials" accepted by WM for the term of this Agreement which, after mutual consent, may be amended from time to time: "Aluminum Cans" means aluminum beverage cans but does not include bi-metal containers. "Aseptic Packages" means poly -coated paperboard containers with aluminum linings, for example, drink boxes. "Comingled Recyclable Materials" means all paper fibers, plastics, metals, and other containers are mixed in a collection truck, instead of being sorted by the resident into separate commodities (newspaper, paperboard, Corrugated fiberboard, plastic, glass, etc.) and handled separately throughout the collection process. "Corrugated" means corrugated containers having liners of test liner, jute, or kraft. "Designated Recyclables" means aluminum cans, aseptic packages, corrugated, gable -topped containers, glass containers, HDPE, Kraft bags, newspaper, PETE and PVC. "Facility" shall means the Hialeah Transfer Station at 5000 NW 37TH Avenue Miami, FL. 1 "Glass Containers" means clear, brown and green glass food and beverage containers that are cleaned and rinsed. "Kraft Bags" means brown paper grocery or shopping bags used to contain newspaper only. "Newspaper" means newspapers, supplements, advertising and magazine sections (all of which has been included). "Paper Load" means mixed loads of Newspaper, Kraft Bags and Corrugated Containers and other paper based products or containers. "Recyclable Materials " means those materials that Are capable of being recycled and that would otherwise be processed or disposed of as solid waste as defined in Chapter 403, Florida Statutes. "Recycling" means any process by which solid waste, or materials that would otherwise become solid waste are collected, separated, or processed and reused or returned to use in the form of raw materials or products as defined in Chapter 403, Florida Statutes. Type 1 Plastic Containers - means containers made of polyethylene terephtalate (PET) such as two liter soda bottles. Type 2 Plastic Containers - means containers made of high density polyethylene (HDPE) such as milk, juice, water jugs and detergent bottles. Tvpe 3 Plastic Containers - means containers made of vinyl (PVC, V) such as shampoo bottles and crystal clear food containers. TIN -STEEL based 'cans - means all cans used for food and beverage only. Cleaned and rinsed. 2. Acceptance of Recyclable Materials. The City will deliver to the Facility, and WM shall accept from City, all of City's daily collected Recyclable Materials. 3. Tenn of Agreement. This Agreement shall commence on November , 2012 (the "Effective Date") and shall continue in full force and effect for a period of five (5) years, unless terminated in accordance with the provisions set forth in this Agreement. This Agreement shall automatically renew for five (5) additional one (1) year period unless either party notifies the other in writing of its intent not to renew no less than sixty (60) days prior to the expiration of the then current term. In addition to other rights the City may have by law or under this Agreement with respect to cancellation or termination, the City may at any time, after the first year following the implementation of the Agreement, in its sole discretion, with or without cause, terminate the Agreement, in whole or in part, by providing sixty (60) days written notice to WM. 4. Operating Rules. WM reserves the right to make and enforce reasonable rules and regulations concerning the operation of the Facility, the conduct of the drivers and others on the Facility, and any other matters necessary or desirable for the safe, legal and efficient operation of the Facility. Said rules and regulations shall be applied in a reasonably equitable manner to all entities delivering recyclables at the Facility. Vehicles delivering materials to the Facility on behalf of the City shall comply with all of said rules and regulations. 5. Material Standards. All deliveries of Recyclable Materials shall meet the minimum daily standards set by the most current standards available for recyclable materials and WM will have the right to reject any loads that contain more than 10.0% non -recyclable materials. The City shall not deliver to the Facility any contaminated or hazardous materials and shall be solely responsible for its disposition. 2 6. Payments. In consideration for the obligations of the parties under this Agreement, City and WM agree as follows: A WM agrees to pay City the following: (i) $150,000.00 upon execution of the Agreement as a contribution towards the "Believe in Recycling for a Cleaner City" City of Miami program. The contribution will be made payable to the City of Miami and will be spent on this program. (ii) Fee of $41.00 per ton for all Recyclable Materials delivered to the Facility. Said fee shall be paid in arrears on a monthly basis and due within thirty (30) days from the preceding month; a late fee payment of 1.5% per month for any outstanding late balance will be added to any amounts due. 7. Weighing Records. WM shall cause the Facility to operate and maintain motor truck scales calibrated to the accuracy required by Florida law and to weigh all vehicles delivering recyclable materials. Each vehicle delivering recyclable materials from the City shall have its tare weight and cubic yard capacity permanently and conspicuously displayed on the exterior of the vehicle. WM or its contractor may, from time to time, require revalidation of the tare weight of any vehicle. WM will supply the City with monthly weighing records as may be reasonably required by the City to administer its recycle collection program. Copies of all transaction tickets will be maintained by WM for at least three (3) years. If weighing scales are inoperable or are being tested, the Facility operator shall estimate the quantity of recyclables delivered using a schedule of estimated recyclable material weights in accordance with Section 15-25, Subsections (b) and (d) of the Miami -Dade County Code, as amended from time to time. The estimates shall take the place of actual weighing records, when the scales are not operational. Nonetheless, WM shall use reasonable effort to maintain the scales in an operable and accurate weighing condition. 8. Dispute on Payments. In the event of a dispute on payment, the City shall give written notice of the disputed payment amount to WM. The notice of dispute shall identify the disputed invoice, state the amount in dispute and set forth a full statement of grounds on which such dispute is based. WM's Area Vice President or his/her designee shall confer with the City Manager or his/her designee to resolve the dispute not later than thirty (30) days after the date upon which the disputed payment notice was received. Should the City disagree with the determination of WM's Area Vice President or his/her designee, it may pursue any remedy at law. 9. Indemnity. WM shall indemnify, hold harmless and defend the City, its officials, officers, agents, directors, and employees, from liabilities, damages, losses, and costs, including, but not limited to reasonable attorney's fees, to the extent caused by the negligence, recklessness or intentional wrongful misconduct of WM and persons employed or utilized by WM in the performance of this Agreement and will indemnify, hold harmless and defend the City, its officials, officers, agents, directors and employees against, any civil actions, statutory or similar claims, injuries or damages arising or resulting from the permitted work, even if it is alleged that 3 the City, its officials and/or employees were negligent, unless such injuries or damages are ultimately proven to be the result of grossly negligent or willful acts or omissions on the part of the City, its officials and/or_ employees. These indemnifications shall survive the 'term of this Agreement. In the event that any action or proceeding is brought against City by reason of any such claim or demand, WM shall, upon written notice from City, resist and defend such action or proceeding by counsel satisfactory to City. WM expressly understands and agrees that any insurance protection required by this Agreement or otherwise provided by WM shall in no way limit the responsibility to indemnify, keep and save harmless and defend the City or its officers, employees, agents and instrumentalities as herein provided. The indemnification provided above shall obligate WM to defend at its own expense to and through appellate, supplemental or bankruptcy proceeding, or to provide for such defense, at City's option, any and all claims of liability and all suits and actions of every name and description which may be brought against City whether performed by WM, or persons employed or utilized by WM. This indemnity will survive the cancellation or expiration of the Agreement. This indemnity will be interpreted under the laws of the State of Florida, including without limitation and which conforms to the limitations of §725.06 and/or §725.08, Fla. Statues, as amended from time to time as applicable. WM shall require all Sub -Contractor agreements to include a provision that they will indemnify the City. WM agrees and recognizes that the City shall not be held liable or responsible for any claims which may result from any actions or omissions of WM in which the City participated either through review or concurrence of WM's actions. In reviewing, approving or rejecting any submissions by WM or other acts of WM, the City in no way assumes or shares any responsibility or liability of WM or Sub -Contractor, under this Agreement. 10. Insurance. WM will be required to maintain the following kinds of insurance coverage as specified by the City's Risk Manager or designee on Exhibit "A". 11. Conditions Precedent. This Agreement shall be of no legal force or effect unless and until it shall be executed and delivered by both parties. 12. Breach of this Agreement and Remedies. A. Subject to the right of City and WM to cure as provided in this paragraph, City or WM may cancel or revoke this Agreement any time upon the failure of City or WM to materially comply with any of its provisions. Before cancelling or revoking this Agreement the cancelling party shall send the defaulting party a ten (10) day written notice specifying the failure(s), to comply with the material terms and conditions of this Agreement. If the defaulting party fails to correct the specified noncompliance within ten (10) days after said notice, then the cancelling party shall have the right to cancel this Agreement. B. The remedy set forth above is cumulative and in addition to any other remedies afforded at law or in equity, and any failure to assert a breach or any election of remedies shall not constitute a waiver of any subsequent breach or bar to other or further remedies. C. Any obligation for the payment of money by WM, or otherwise arising from the conduct of either party prior to termination, shall not be affected by such termination and shall remain in full force and effect until satisfied, discharged or waived. 4 13. Excuse of Performance. The performance of any obligation under this Agreement, except for the payment of money for services already rendered, may be suspended by either party in the event that such performance or obligationis materially affected or is prevented by an act of force majeure. Force majeure events shall include, but are not limited to: acts of God; acts of war; riot or similar civil disturbance; fire; explosion; accident; flood; sabotage; complete inability to obtain adequate fuel or power; changes in governmental laws, regulations, rules, permits (including existing limitations in permits which hereafter become applicable or effective), approvals, requirements (including new fees, assessments or impositions), orders or actions which significantly affect either party; national defense requirements, injunctions or restraining orders; strikes or other labor disputes. . 14. Notice. Whenever either party desires to give notice to the other, it must be in writing and sent by United States Mail, Certified, Return Receipt Requested, or by e-mail addressed to the party for whom it is intended at the place last specified pursuant to this article. The address designated for sending notice shall remain such until it shall have been changed by written notice in compliance with provisions of this paragraph. Notice shall be effective upon receipt of an e-mail or five (5) days after deposit into the US mail. Notwithstanding the foregoing, notice by fax shall not be effective unless confirmed by a copy of the notice transmitted by certified mail, return receipt requested. The parties designate the following as the respective addresses for sending notice, to wit: For WM: For City: Waste Management Inc. of Florida Attn: Tim Hawkins Area Vice President 2700 Wiles Road Pompano Beach, Florida 33073 E-Mail: THawkins@WM.Com City of Miami Attn: Johnny Martinez City Manager 444 S.W. 2nd Avenue Miami, Florida 3 313 0-1910 E-Mail: JohnnyMartinez@MiamiGov.Com City of Miami Attn: Keith A. Carswell, Director Department of Solid Waste 1290 NW 20th Street Miami, Florida 33142 E-Mail: KeithCarswell@MiamiGov.Com 5 15. Miscellaneous. A. Governing Law. This Agreement shall be governed by the laws of the State of Florida. B. Waiver. No indulgence, consent to or waiver of any breach of any provision of this Agreement by any. party hereto shall be construed as a consent to or waiver of any other ,breach of the same or any other provision hereof unless specifically acknowledged in writing by both parties. C. Modification. No modification, release, discharge or waiver of any provision hereof shall be of any force, effect or value, unless in writing, signed by all parties to this Agreement. D. Severability. If any term, covenant or provision of this Agreement shall be held to be invalid, illegal, or unenforceable in any respect, the balance of this Agreement shall remain in effect and be construed without regard to such provision. E. Additional Services. Services not specifically identified in this request may be addeded to any resultant Agreement upon successful negotiation and mutual consent of the contracting parties. F. Entire Agreement. This Agreement constitutes the entire understanding between the parties, replacing and amending any prior agreements between the parties, and shall be binding upon all parties hereto, their successors, heirs, representatives and assigns. There are .no other agreements or understandings between the parties, except as expressly set forth herein. G. Headings: The Section headings in this Agreement are for the convenience and reference only and in no way define or limit the scope or content of this Agreement or in any way affect its provisions. H. No Third Party Beneficiaries. This Agreement shall be for the sole benefit of the parties hereto, and no other person or entity shall be entitled to rely upon or receive any benefit from this Agreement or any provision hereof. I. Attorney's Fees; Venue. In the event of any action at law or equity between the parties to enforce any provision of this Agreement, each party shall bear their own attorney's fees. Venue for any civil action between the parties shall be in Miami -Dade County, Florida. J. • Construction. The parties acknowledge and agree that each party has participated in the drafting of this Agreement and that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement. 16. Nondelegability. The obligations undertaken by either party pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless the other party shall first consent in writing to the performance or assignment of such service or any part thereof by another person or firm. 17. Conflict of Interest. WM covenants that no person under its employ has any personal financial interest, direct or indirect, in the work product of this Agreement. WM further covenants that, in the performance of this Agreement, no person having such conflicting interest shall be employed. Any such interests on the part of WM or its employees must be disclosed in writing to the City. WIv1 is aware of the conflict of interest laws of the City of Miami (City of Miami Code Chapter 2, Article V), Miami -Dade County, Florida and the State of Florida, and agrees that it will fully comply in all respects with the terms of said laws. 6 18. Non -Discrimination. WM agrees that there shall be no discrimination because of race, color, sex, religion, age, handicap, marital status or national origin, in connection with its performance under this Agreement. 19. Minority Procurement Compliance. WM acknowledges that it has been furnished a copy of Local Workforce and Certified Small Disadvantaged Business Enterprise Ordinances of the City of Miami, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. 20. Audit Rights. The City reserves the right to audit the records of WM pertaining to its performance and payment under this Agreement at any time during the term hereof and for a period of three (3) years after final payment is made hereunder. 21. Compliance with Laws. In the performance of this Agreement WM shall comply with all applicable Federal, State, County and City of Miami Laws and Regulations. 7 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their respective authorized officers as of the day and year just above written. ATTEST: CITY OF MIAMI, a Municipal Corporation of the State of Florida By: By: Dwight S. Danie, MSL Johnny Martinez, P.E. City Clerk City Manager ATTEST: WASTE MANAGEMENT INC. OF FLORIDA a Corporation of the State of Florida By: By: Corporate Secretary Tim Hawkins Area Vice President APPROVED AS TO INSURANCE APPROVED AS TO LEGAL FORM AND REQUIREMENTS: CORRECTNESS: By: By: Calvin Ellis Director of Risk Management 8 Julie O. Bru City Attorney EXHIBIT A INSURANCE REQUIREMENTS -PROFESSIONAL SERVICES AGREEMENT FOR RECYCLING SERVICES (WASTE MANAGEMENT) I. Commercial General Liability (Primary & Non Contributory) A. Limits of Liability Bodily Injury and Property Damage Liability Each Occurrence General Aggregate Limit Personal and Adv. Injury Products/Completed Operations B. Endorsements Required City of Miami listed as an Additional Insured Contingent and Contractual Liability Premises and Operations Liability II. Business Automobile Liability $ 1,000,000 $ 2,000,000 $ 1,000,000 $ 1,000,000 A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit Owned/Scheduled Autos Including Hired, Borrowed or Non -Owned Autos Any One Accident $ 1,000,000 B. Endorsements Required City of Miami listed as an Additional Insured III. Worker's Compensation Limits of Liability Statutory -State of Florida Waiver of Subrogation IV. Employer's Liability A. Limits of Liability $500,000 for bodily injury caused by an accident, each accident $500,000 for bodily injury caused by disease, each employee $500,000 for bodily injury caused by disease, policy limit 9 V. Umbrella Liability (Excess Follow Form) A. Limits of Liability Each Occurrence Aggregate Limit VI. Pollution Liability (If Applicable) Each Claim General Aggregate Limit $ 2,000,000 $ 2,000,000 $ 1,000,000 $ 1,000,000 The above policies shall provide the City of Miami with written notice of cancellation or material change from the insurer not Less than (30) days prior to any such cancellation or material change. Companies authorized to do business in the State of Florida, with the following qualifications, shall issue all insurance policies required above: The company must be rated no less than "A-" as to management, and no less than "Class V" as to Financial Strength, by the latest edition of Best's Insurance Guide, published by A.M. Best Company, Oldwick, New Jersey, or its equivalent. All policies and /or certificates of insurance are subject to review and verification by Risk Management prior to insurance approval. 10