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HomeMy WebLinkAboutExhibit 1EXHIBIT A QUALIFIED PROPOSERS RFQ 222246 - COMMERCIAL SOLID WASTE HAULING SERVICES EXHIBIT A Name Address City, State, Zip Code Contact Name Telephone Number Mobile Number Fax Number Email Address 1-866-Junk-Be-Gone Corp/Miami 3500 NW 51 Street Miami, FL 33142 Mr. Jorge M. Bustamante 305-634-2749 305-218-3788 305-634-0220 jmb bettevwaste@bellsouth.net Bicon, Inc. d/b/a S&S National Waste 1486 Skees Rd., Suite D West Palm Beach, FL 33411 Ms. Janna Wheeler 561-340-3111 561-340-3107 561-340-3112 ianna@ssnationaIwaste.com Choice Environmental Services of Miami, Inc. 13300 NW 38th Ct. 0pa-Locka, FL 33054 Mr. Neal Rodrigue 954-797-7974 407-902-1353 954-797-7984 near@choicewaste.com . 2865 SW 2.c c. Miami o3.70 M. Co.Ios Vazgucz 786 -50 n0 7 30„ 301 9493 08 Eagle Carting, Inc. 7455 NW 144 Street Miami Lakes, FL 33014 Mr. Rafael L. Diaz 305-759-0997 786-402-2693 305-759-0697 nationaleservice@aoLcom Eastern Waste Systems, Inc. 1660 NW 19 Avenue Pompano Beach, FL 33069 Mr. Angelo Marzano 954-580-0615 954-214-1573 954-580-0616 arnarzano@easternwaste.com G7 Holdings, Inc. d/b/a Garbageman.com 1601 Alton Road 4602 Miami Beach, FL 33139 Mr. Greg Davis 305-673-2847 305-776-6473 305-693-2277 gregAgarbageman.com General Hauling Service, Inc. 1451 NW 20 Street Miami, Florida 33142 Mr. Ben Bush 305-325-8666 305-610-8901 305-325-1877 benfageneralhauling.com 1 17925 NW 81 Ct. Miami, FL 33015 305 622 6492 30-5463-6460 1 305 617 6530 1 & M Scaffolds of Florida, Inc. 11050 N.W. 36th Avenue Miami, FL 33167 Mr. Rene L. Guerra 305-953-6965 786-282-2700 305-953-5497 rene@aesportable.com Lopefra Corp. 2601 S.W. 69 Ct. Miami, FL 33155 Ms. Rosemary L. Hartigan 305-266-3896 305-785-4075 305-266-9825 RosemarvH@lotefra.com Pronto Waste Services, Inc. 7000 NW 35 Ave. Miami, FL 33147 Mr. Roberto Arencibia 305-691-0020 305-796-1660 305-694-1777 prontowaste@bellsouth.net Reyal-Flush;-LLE 4660-NW 19-Avenue AAr. Angele-ty4arzaee 954-580-0446 954 211 1573 951 582 0794 omorzanocstcrnwast-s.com Southern Waste Systems, LLC 790 Hillbrath Drive Lantana, FL 33462 Mr. Charles Gusmano 561-582-6688 Ext. 229 561-762-3602 561-582-6985 cgusmano@swsfl.com Sunshine Recycling Services of SWFL, LLC. 3240 Cargo Street Ft. Myers, FL 33916 Mr. Rory P. Amundson 239-390-9529 239-980-1767 239-390-9539 sunshinerecvcling@vahoo.com Thunder Demolition, Inc. 7373 NE 3rd Court Miami, FL 33138 Mr. Ronny Herrera 305-757-9444 305-986-2462 305-757-9441 thunderdemolition@bellsouth.net thunderdemol@bellsouth.net Town & Country Sanitation, LLC d/b/a Universal Waste Services 2466 Ali Baba Ave. Opa-Locka, FL 33054 Mr. Paul Bandamo 305-362-1337 • 754-367-3400 305-362-5676 paulbadamo@aol.com T.Fipple--S-Wast.e-.SeFvieesrine, 87764PW 168 Lane Mi 018 M.Ms4anitFa-les.ine 30S 821 3568 786-2474802 305 o 598 o.inc577^hotm il.com Waste Management Inc. of Florida 2125 NW 10 Court Miami, FL 33127 Mr. Tim Hawkins 305-547-6024 jnea12@wm.com Waste Pro of Florida, Inc. 17302 Pines Blvd. Pembroke Pines, FL 33029 Mr. Russell Mackie 954-967-4200 772-370-3509 954-241-4489 rmackie@wasteprousa.com Waste Services of Florida, Inc. 3840 NW 37th Court Miami, FL 33142 Mr. Vahe Gabriel 305-638-3800 305-633-2973 vgabriel@wsii.us Waste Services USA, Inc. 840 NW 144th Street Miami, FL33168 Mr. Percy Markus 305-953-8988 305-986-0800 305-953-8773 pmarkus@wasteservicesusa.com Additional Qualified Proposers (Pursuant to Invitation for Quotation - IFQ 273256) Name Address City, State, Zip Code Contact Name Telephone Number Mobile Number Fax Number Email Address Environmental Waste Systems, LLC. 12847 N.W. 45th Ave. Opa Locka, FL 33054 Mr. Humberto Perez 305-688-8159 786-317-2425 305-688-8953 ewsmiami@vahoo.com Jayden Corp., d/b/a Farris Waste Services 4575 Oakes Rd. Davie, FL 33314 Mr. Farris Owen 954-714-8885 954-529-4394 954-714-8895 farriswaste@aol.com Great Waste & Recycling Service, LLC. 490 S.W. 101 Terr. Plantation, FL 33324 Mr. Carlo Piccinonna 954-496-3540 carlo.greatwaste@vahoo.com Additional Qualified Proposers (Pursuant to Invitation for Quotation - IFQ 340302 Name Address City, State, Zip Code Contact Name Telephone Number Mobile Number Fax Number Email Address Load It Away, LLC PO Box 40-3045 801 Brickell Key Blvd, Unit ' 2910 Miami Beach, FL 33140 Miami, FL 33131 Mr. Gaetano Alessi, Jr. 305-537-6326 201-4.81-4412 305-808-8731 loaditaway@aol.com galessijr@aol.com U.S.A. Scrap Metal & Recycling 2957 NW 24 Street Miami, FL 33142 Mr. Julio Gerardo Tadeo 305-635-5435 786-302-6039 305-635-5445 nadyvs@yahoo.es Created by: Yusbel Gonzalez, CPPB, Purchasing Department. REVISED: DECEMBER 10, 2012 1 OF 2 (-i-4H(.. olid Waste Department Director/ Designee Approval EXHIBIT A QUALIFIED PROPOSERS RFQ 222246 - COMMERCIAL SOLID WASTE HAULING SERVICES EXHIBIT A Total = 23 Note 1: Effective March 1, 2011, Royal Flush, LLC., CNC Management Group, Inc., Triple S Waste Services, Inc., and effective May 24, 2011, Greener Waste Services, Inc., were all deemed in default of its contractual obligation and the City, through action token by the Purchasing Department voided acceptance of the Bidder's/Proposer's Response. • Created by: Yusbel Gonzalez, CPPB, Purchasing Department. REVISED: DECEMBER 10, 2012 2 OF 2 5 id Waste Department Director / Designee Approval CITY 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 , 2013 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 g.51/?_ 3--6s'/ City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 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. 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 FRANCHISE 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. Annual Franchise Fee shall mean the yearly fee charged by the City to each FRANCHISEE who operates within the City limits and collects garbage and trash. See Section 22-50(b) of the City Code. Annual Specialized Waste Handling Fee shall mean the yearly fee charged by the City to each FRANCHISEE who operates within the City limits and collects trash, excluding garbage. See Section 22-50(c) of the City Code. 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 Waste 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. 2 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 City 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. City 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 City 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 following; garbage, trash, recycling, roll - off, and specialized waste handling service, etc. Director shall mean the Director of the Department of Solid Waste. Franchise Fee shall mean 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 be amended or adjusted by the City , from time to time, by amending this section of the City Code, and the FRANCHISEE acknowledges and agrees that 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 cooking oil waste, portable toilets and sanitation, environmental charges and fees, containerized waste, environmental waste services (vactor), equipment rental and 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 (excluding recovered materials at commercial establishments as defined by §403.7046, Florida Statutes), or from any other source related 3 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 directly or 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 -off s, 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 mean and include any building or structure containing four or more contiguous living units and intended exclusively for residential purposes. This definition incorporates by reference the definition of Multi -family residential establishment set forth in § 15-1, Miami -Dade County Code. Neighborhood Cleanups shall mean periodic intensive removal of litter, debris and other solid waste material from 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 by 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 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 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. 3.2 The CITY further grants unto the FRANCHISEE the non-exclusive 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 and recyclable materials, excluding biomedical, biological, and hazardous waste. Extraordinary material, unacceptable waste (acid, batteries, auto parts, excavating materials, construction and demolition debris, roofing materials, wood, pipe, steel, gas tanks, etc.), dead animals, abandoned vehicles/boats 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 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 5 City of Miami, Florida Commercial Solid Waste Hauling Services 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 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 make reasonable efforts to 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 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 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 6 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 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 strictly 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 district between the hours of 11:00 p.m. and 7:00 a.m., and to strictly adhere to any other terms and provisions of this Agreement as specified in the Notice of Violation, except and only as determined by the Director of the Department of Solid Waste. Each Fiscal Year (October 1, through September 30), the amounts assessed for non- compliance of this section will be as follows: 1st Non -Compliance: $ 250.00 2nd Non -Compliance: $ 500.00 3rd Non -Compliance: $1,000.00 Each Additional Non -Compliance: $1,000.00 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 will be due as 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 7 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 Third Violation: Each Additional Violation: $1,000.00 $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 notified of any and all hearings and/or meetings for participation. Also, upon resumed service, FRANCHISEE agrees to immediately notify the Department of Solid Waste. FRANCHISEE shall furnish 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 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. If the City identifies an illegal container placed and operating within the City limits by a non -licensed Commercial Hauler who is providing Commercial Solid Waste Service without a Franchise from 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 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) and as determined 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: (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 of Miami for which hand collection of bags/cans is provided. 8 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 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 II 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 list which reflects 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%) of the total amount collected should equal the remittance amount paid to the City. 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 (1.5%) 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 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 to 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 and activity within the City limits. 9 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 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 lst, 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 City annually a Permit Per Account Fee in the amount of seventy-five ($75.00) (due October 1st) for each account and each roll -off effective October 1st of every new fiscal year to those accounts and roll -offs booked as of October 1st of every new fiscal year with whom they contract for the provision of commercial solid waste 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 addition, for each new commercial account and new roll -off container acquired after October 1, the FRANCHISEE agrees to remit $75.00 for the new account including $75.00 for each roll -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 not 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. 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 lst) 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 term. 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 perform Commercial Solid Waste (Garbage) Services within the City limits. This fee applies to a FRANCHISEE that ONLY performs Specialized Waste Handling Services within the City limits. 10 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222146 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 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. 6.1.1 The City shall have the following inspection and audit rights as provided in §18-101 and § 18-102 of the City Code: 18-101 - Inspections. (a) Solicitationsand 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 of the city or any outside laboratory or special 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. 11 City of Miami, Florida (Ord. No. 12271, § 2, 8-22-02) Sec. 18-102 - Audits. Commercial Solid Waste Hauling Services RFO 222246 (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 officer, the city manager or the city commission. (c) Conduct of audits. Whenever 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 reasonable facilities and assistance, for the convenience of the city representatives performing the audit. (Ord. No. 12271, § 2, 8-22-02) 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 (1.5%) 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, 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. 12 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 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. 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 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. 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, 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 24% 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 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 Agreement shall commence on the last date in which it is signed by all parties 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. 13 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 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 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. 14 City.ofMiami, Florida Commercial Solid Waste Hauling Services RFQ 222246 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 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. 10.4 All complaints received by the CITY shall be resolved by the FRANCHISEE within 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 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 invite, notify, and qualify other Prospective Proposers of the opportunity to provide collection and disposal services. ARTICLE XI NOTICES 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. 15 City of Miami, Florida Commercial Solid Waste Hauling 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 ARTICLE XII INDEMNIFICATION 12.1 FRANCHISEE shall indemnify, defend and hold harmless the CITY and its officials, employees and agents (collectively referred to as "Indemnitees") 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- perfonnance 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 Indemnitees, 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 Indemnitees, 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. 16 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 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. If the CITY approves assignment of this Agreement, it may be conditioned on the proposed assignee demonstrating fiscal solvency, reliability, and responsibility. Prior to consideration of approval by the City, the proposed assignee must execute an Assignment/Assumption Agreement whereby they comply with every condition of the prior Franchise Agreement and this Agreement must be approved as to form and correctness by the 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 17 City of Miami, Florida Commercial,Solid Waste Hauling Services RFQ 222246 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; CIVIL ACTIONS 17.1 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. 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 18 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 formality 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. 19.4 The City of Miami's Department of Solid Waste, may request such other reasonable supporting financial documents, as reasonably needed, to evaluate the gross receipts of the FRANCHISEE, for accounts subject to this Franchise Agreement. ARTICLE XX APPROVAL OF THIS AGREEMENT 20.1 Execution of this Agreement by the City Manager, City Attorney, City Clerk, Risk Management Administrator and FRANCHISEE, shall constitute evidence of its approval. ARTICLE XXI ADDITIONAL QUALIFIED PROPOSERS 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 RFQ, to determine qualifications. 19 City of Miami, Florida Commercial Solid Waste Hauling Services RFO 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. "CITY" CITY OF MIAMI, a municipal ATTEST: corporation By: Todd Hannon, City Clerk Johnny Martinez, P.E. City Manager ATTEST: "FRANCHISEE" a Corporation By: Print Name: Print Name: Title: Title: APPROVED AS TO FORM AND APPROVED AS TO INSURANCE CORRECTNESS: REQUIREMENTS: Julie O. Bru Calvin Ellis City Attorney Director Risk Management 20 City of Miami Invitation for Quotation (IFQ) Purchasing Department Miami Riverside Center 444 SW 2nd Avenue, 6th Floor Miami, Florida 33130 Web Site Address: http://ci.miami.fl.us/procurement IFQ Number: 340302 Title:. Invitation for Quotation for Commercial Solid Waste Hauling Services Issue Date/Time: IFQ Closing Date/Time: Pre -Bid Conference: Pre -Bid Date/Time: Pre -Bid Location: Deadline for Request for Clarification: Buyer: Hard Copy Submittal Location: Buyer E-Mail Address: Buyer Facsimile: 14-SEP-2012 10/12/2012 @ 11:00:00 Wednesday, September 26, 2012 at 5:00 PM Gonzalez, Yusbel City of Miami - Purchasing 444 SW 2 Ave, 6th Floor Miami FL 33130 US YGonzalez@ci.miami.fl.us (305) 400-5104 Page 1 of 8 Certification Statement Please quote on this form, if applicable, net prices for the item(s) listed. Return signed original and retain a copy for your files. Prices should include all costs, including transportation to destination. The City reserves the right to accept or reject all or any part of this submission. Prices should be firm for a minimum of 180 days following the time set for closing of the submissions. In the event of errors in extension of totals, the unit prices shall govern in determining the quoted prices. We (I) certify that we have read your solicitation, completed the necessary documents, and propose to furnish and deliver, F.O.B. DESTINATION, the items or services specified herein. The undersigned hereby certifies that neither the contractual party nor any of its principal owners or personnel have been convicted of any of the violations, or debarred or suspended as set in section 18-107 or Ordinance No. 12271. All exceptions to this submission have been documented in the section below (refer to paragraph and section) . EXCEPTIONS: We (I) certify that any and all information contained in this submission is true; and we (I) further certify that this submission is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a submission for the same materials, supplies, equipment, or service, and is in all respects fair and without collusion or fraud. We (I) agree to abide by all terms and conditions of this solicitation and certify that I am authorized to sign this submission for the submitter. Please print the following and sign your name: SUPPLIER NAME. ADDRESS. PHONE: FAX. EMAIL: BEEPER. SIGNED BY• TITLE: DATE. FAILURE TO COMPLETE, SIGN, AND RETURN THIS FORM SHALL DISOUALIFY THIS BID. Page 2 of 8 Certifications Legal Name of Firm: Entity Type: Partnership, Sole Proprietorship, Corporation, etc. Year Established: Address: City, State, and Zip Code: Telephone Number: Fax Number: E-mail Address: Contact Person (First and Last Name) : Office Location: City of Miami, Miami -Dade County, or Other Occupational License / Business Tax Receipt Number: Occupational License / Business Tax Receipt Issuing Agency: Occupational License / Business Tax Receipt Expiration Date: Please list and acknowledge all addendum/addenda received. List the addendum/addenda number and Page 3 of 8 date of receipt (i.e. Addendum No. 1, 7/1/07). If no addendum/addenda was/were issued, please insert N/A. Page 4 of 8 Line: 1 Description: PROPOSERS ARE NOT REQUIRED TO ENTER A UNIT PRICE IN THIS LINE Category: 96239-00 Unit of Measure: Dollar Unit Price: $ Number of Units: 1 Total: $ Page 5 of 8 Invitation for Quotation (IFQ) 340302 Table of Contents Terms and Conditions 7 1. Special Conditions 7 1.1. ADDITIONAL QUALIFIED PROPOSER(S) PROVISION 7 1.2. SUBMISSION REQUIREMENTS 7 1.3. DEADLINE FOR RECEIPT OF REQUEST FOR ADDITIONAL INFORMATION/CLARIFICATION 7 2. Specifications 2.1. SPECIFICATIONS/SCOPE OF WORK 8 Page 6 of 8 Invitation for Quotation (IFQ) 340302 Terms and Conditions 1. Special Conditions 1.1. ADDITIONAL QUALIFIED PROPOSER(S) PROVISION Pursuant to Special Condition No. 2.29 of the Commercial Solid Waste Hauling Services Contract, RFQ No. 222246, the City is hereby seeking to qualify additional Proposers to provide Commercial Solid Waste Hauling Services within the City of Miami. Each proposer who seeks to be added to the Commercial Solid Waste Hauling Services contract will be evaluated, consistent with the requirements of RFQ 222246, to determine qualifications. Additional Proposers deemed qualified by the City, shall be provided with the opportunity to execute a Non -Exclusive Franchise Agreement with the City and will be made a part of Contract No. RFQ 222246 for Commercial Solid Waste Hauling Services. To download and view a copy of the current Commercial Solid Waste Hauling Services Contract (RFQ 222246) and the Non -Exclusive Franchise Agreement, please go to the Header / Notes and Attachments section of this solicitation, in the Oracle Sourcing system. It is Proposers responsibility to carefully read and understand the requirements stipulated in the current Commercial Solid Waste Hauling Services contract (RFO 222246) as well as the Non -Exclusive Franchise Agreement. 1.2. SUBMISSION REQUIREMENTS Prospective Proposers shall respond to this solicitation by submitting the documents listed below: 1. Attachment A - Attestation of Qualifications (located in the Header/Notes and Attachments section) 2. Certification Statement (Page 2 of this solicitation) 3. Certifications Page (Begins on Page 3 of this solicitation) Failure to submit the above listed documents may deem Proposer as non -responsive and may further disqualify Proposer from providing Commercial Solid Waste Hauling Services within the City of Miami. THE ABOVE LISTED DOCUMENTS SHALL BE SUBMITTED IN HARDCOPY FORMAT ONLY. ELECTRONIC RESPONSES TO THIS SOLICITkTION WILL NOT BE ACCEPTED BY THE CITY. 1.3. DEADLINE FOR RECEIPT OF REQUEST FOR ADDITIONAL INFORMATION/CLARIFICATION Any questions or clarifications concerning this solicitation shall be submitted by email or facsimile to the Purchasing Department, Attn: Yusbel Gonzalez; fax: (305) 400-5104 or email: ygonzalez@ci.miami.fl.us. The solicitation title and number shall be referenced on all correspondence. All questions must be received no later than Wednesday, September 26, 2012 at 5:00 PM. All responses to questions will be sent to all prospective bidders/proposers in the form on an addendum. NO QUESTIONS WILL BE RECEIVED VERBALLY OR AFTER SAID DEADLINE. Page 7 of 8 Invitation for Quotation (IFQ) 340302 2. Specifications 2.1. SPECIFICATIONS/SCOPE OF WORK Please refer to Section 3 of RFQ 222246, located in the Header/Notes and Attachments section of this solicitation, in the Oracle/Sourcing system. Page 8 of 8 KENNETH ROBERTSON JOIINNY MARTINEZ, P.E. Chief Procurement Officer City Manager ADDENDUM NO. 1 lFQ NO. 340302 September 27, 2012 Invitation for Quotation (IFQ) for Commercial Solid Waste Hauling Services (To Qualify Additional Proposers for RFQ 222246) TO: ALL PROSPECTIVE BIDDERS/PROPOSERS: The following changes, additions, clarifications, and deletions amend the Bid Documents of the above captioned IFQ, and shall become an integral part of the Contract Documents. Please note the contents herein and reflect same on - --the documents you have on hand. _.... .._ Q. 1 A. 1 Are current, qualified Commercial Solid Waste Haulers (Le. "Franchisees") under RFQ 222246 required to respond to 1FQ 340302? Qualified Commercial Solid Waste Haulers ("Franchisees") under RFQ 222246 are not required to respond to IFQ 340302. Q. 2 Will the new slots awarded be coterminous with the existing licensees? A. 2 Yes. The Franchise Agreements executed with the new qualified Franchisees will be coterminous. ALL OTHER TERMS AND CONDITIONS OF THE IFQ REMAIN THE SAME. Sincerely, nneth Robertson Director/Chief Procurement Officer KR/yg Cc: RFQ 222246 File City of Miami Request for Qualifications (RFQ) Purchasing Department Miami Riverside Center 444 SW 2nd Avenue, 6th Floor Miami, Florida 33130 Web Site Address: http://ci.miami.fl.us/procurement RFQ Number: Title: Issue Date/Time: RFQ Closing Date/Time: Pre -Bid Conference: Pre -Bid Date/Time: Pre -Bid Location: Deadline for Request for Clarification: Buyer: Hard Copy Submittal Location: Buyer E-Mail Address: Buyer Facsimile: 222246,3 Request for Qualifications for Commercial Solid Waste Hauling Services 06-AUG-2010 08/13/2010 @ 14:00:00 None Tuesday, July 13, 2010 at 4:00 PM Gonzalez, Yusbel City of Miami - City Clerk 3500 Pan American Drive Miami FL 33133 US YGonzalez@cianiami.fl.us (305) 400-5104 Page 1 of 34 Certification Statement Please quote on this form, if applicable, net prices for the item(s) listed. Return signed original and retain a copy for your files. Prices should include all costs, including transportation to destination. The City reserves the right to accept or reject all or any part of this submission. Prices should be firm for a minimum of 120 days following the time set for closing of the submissions. In the event of errors in extension of totals, the unit prices shall govern in determining the quoted prices. We (I) certify that we have read your solicitation, completed the necessary documents, and propose to furnish and deliver, F.O.B. DESTINATION, the items or services specified herein. The undersigned hereby certifies that neither the contractual party nor any of its principal owners or personnel have been convicted of any of the violations, or debarred or suspended as set in section 18-107 or Ordinance No. 12271. All exceptions to this submission have been documented in the section below (refer to paragraph and section). EXCEPTIONS: We (I) certify that any and all information contained in this submission is true; and we (I) further certify that this submission is made without prior understanding, agreement, or connection with any corporation, firm, or person submitting a submission for the same materials, supplies, equipment, or service, and is in all respects fair and without collusion or fraud. We (I) agree to abide by all terms and conditions of this solicitation and certify that I am authorized to sign this submission for the submitter. Please print the following and sign your name: SUPPLIER NAME. ADDRESS PHONE: FAX - EMAIL. BEEPER. SIGNED BY. TITLE: DATE. FAILURE TO COMPLETE, SIGN AND RETURN THIS FORM SHALL DISOUALIFY THIS BID. Page 2 of 34 Certifications Legal Name of Film: Entity Type: Partnership, Sole Proprietorship, Corporation, etc. Year Established: Office Location: City of Miami, Miami -Dade County, or Other Address: City, State, and Zip Code: Telephone Number: Fax Number: E-mail Address: Contact Person (First and Last Name): Business Tax Receipt / Occupational License Number: Business Tax Receipt / Occupational License Issuing Agency: Business Tax Receipt / Occupational License Expiration Date: Respondent certifies that (s) he has read and understood the provisions of City of Miami Ordinance No. Page 3 of 34 10032 (Section 18-105 of the City Code) pertaining to the implementation of a "First Source Hiring Agreement.": Yes or No Please list and acknowledge all addendum/addenda received. List the addendum/addenda number and date of receipt (i.e. Addendum No. 1, 7/1/07). If no addendum/addenda was/were issued, please insert N/A. Page 4 of 34 Line: 1 Description: Commercial Solid Waste Hauling Services Category: 96239-00 Unit of Measure: Unit Price: $ Number of Units: Total: $ Page 5 of 34 Table of Contents Terms and Conditions Request for Qualifications (RFQ) 222246,3 7 1. General Conditions 7 1.1. GENERAL TERMS AND CONDITIONS 7 2. Special Conditions 24 2.1. PURPOSE 24 2.2. DEADLINE FOR RECEIPT OF REQUEST FOR ADDITIONAL INFORMATION/CLARIFICATION 24 2.3. TERM OF FRANCHISE AGREEMENT 24 2.4. CONDITIONS FOR RENEWAL 24 2.5. MINIMUM QUALIFICATIONS OF PROPOSER(S) 24 2.6. PERMITS AND LICENSES 25 2.7. LEGAL REQUIREMENTS 25 2.8. PERFORMANCE 25 2.9. WORK ASSIGNMENTS 25 2.10. USE OF SUBCONTRACTORS 25 2.11. ASSIGNMENT 26 2.12. INSURANCE REQUIREMENTS 26 2.13. HOLD HARMLESS 28 2.14. PRE-BID/PRE-PROPOSAL CONFERENCE 28 2.15. CONTRACT ADMINISTRATOR 28 2.16. PERFORMANCE BOND REQUIREMENTS 28 2.17. USE OF PREMISES 28 2.18. LABOR, SUPERVISORS, EQUIPMENT AND MATERIALS 28 2.19. EMPLOYEES ARE RESPONSIBILITY OF QUALIFIED PROPOSER(S) 28 2.20. FRANCHISE AGREEMENT 29 2.21. LIMITED AGREEMENT EXTENSION 29 2.22. DAMAGES TO PUBLIC/PRIVATE PROPERTY 29 2.23. SAFETY MEASURES 29 2.24. TERMINATION 29 225, ADDITIONAL TERMS AND CONDITIONS 30 2.26. PRIMARY CLIENT (FIRST PRIORITY) 30 2.27. CHANGES/ALTERATIONS 30 2.28. ADDITIONAL SERVICES 30 2.29. ADDITIONAL QUALIFIED PROPOSER(S) 30 2.30. AUDIT AND INSPECTION RIGHTS 30 2.31. TRUTH IN NEGOTIATION CERTIFICATE 32 3. Specifications 33 3.1. SPECIFICATIONS/SCOPE OF WORK 33 4. Submission Requirements 34 4.1. SUBMISSION REQUIREMENTS 34 4.2. OPTIONAL REQUEST 34 Page 6 of 34 Request for Qualifications (RFQ) 222246,3 Terms and Conditions 1. General Conditions 1.1. GENERAL TERMS AND CONDITIONS Intent: The General Terms and Conditions described herein apply to the acquisition of goods/equipment/services with an estimated aggregate cost of $25,000.00 or more. Definition: A formal solicitation is defined as issuance of an Invitation for Bids, Request for Proposals, Request for Qualifications, or Request for Letters of Interest pursuant to the City of Miami Procurement Code and/or Florida Law, as amended. Formal Solicitation and Solicitation shall be defined in the same manner herein. 1.1. ACCEPTANCE OF GOODS OR EQUIPMENT - Any good(s) or equipment delivered under this formal solicitation, if applicable, shall remain the property of the seller until a physical inspection and actual usage of the good is made, and thereafter is accepted as satisfactory to the City. It must comply with the terms herein and be fully in accordance with specifications and of the highest quality. In the event the goods/equipment supplied to the City are found to be defective or does not conform to specifications, the City reserves the right to cancel the order upon written notice to the Contractor and return the product to the Contractor at the Contractor's expense. 1.2. ACCEPTANCE OF OFFER - The signed or electronic submission of your solicitation response shall be considered an offer on the part of the bidder/proposer; such offer shall be deemed accepted upon issuance by the City of a purchase order. 1.3. ACCEPTANCE/REJECTION — The City reserves the right to accept or reject any or all responses or parts of after opening/closing date and request re -issuance on the goods/services described in the formal solicitation. In the event of such rejection, the Director of Purchasing shall notify all affected bidders/proposers and make available a written explanation for the rejection. The City also reserves the right to reject the response of any bidder/proposer who has previously failed to properly perform under the terms and conditions of a contract, to deliver on time contracts of a similar nature, and who is not in a position to perform the requirements defined in this formal solicitation. The City further reserves the right to waive any irregularities or minor informalities or technicalities in any or all responses and may, at its discretion, re -issue this formal solicitation. 1.4. ADDENDA — It is the bidder's/proposer's responsibility to ensure receipt of all Addenda. Addenda are available at the City's website at: http://www.ci.miami.fl.us/procurement 1.5. ALTERNATE RESPONSES MAY BE CONSIDERED - The City may consider one (1) alternate response from the same Bidder/Proposer for the same formal solicitation; provided, that the alternate response offers a different product that meets or exceeds the formal solicitation requirements. In order for the City to consider an alternate response, the Bidder/Proposer shall complete a separate Price Sheet form and shall mark "Alternate Response". Alternate response shall be placed in the same response. This provision only applies to formal solicitations for the procurement of goods, services, items, equipment, materials, and/or supplies. 1.6. ASSIGNMENT - Contractor agrees not to subcontract, assign, transfer, convey, sublet, or otherwise dispose of the resulting Contract, or any or all of its right, title or interest herein, without City of Miami's prior written consent. 1.7. ATTORNEY'S FEES - In connection with any litigation, mediation and arbitration arising out of this Contract, the prevailing party shall be entitled to recover its costs and reasonable attorney's fees through and including appellate litigation and any post judgment proceedings. 1.8. AUDIT RIGHTS AND RECORDS RETENTION - The Successful Bidder/Proposer agrees to provide access at all reasonable times to the City, or to any of its duly authorized representatives, to any books, documents, papers, and records of Contractor which are directly pertinent to this formal solicitation, for the purpose of audit, examination, excerpts, and transcriptions. The Successful Bidder/Proposer shall maintain and retain any and all of the books, documents, papers and records pertinent to the Contract for Page 7 of 34 Request for Qualifications (RFQ) 222246,3 three (3) years after the City makes final payment and all other pending matters are closed. Contractor's failure to or refusal to comply with this condition shall result in the immediate cancellation of this contract by the City. 1.9. AVAILABILITY OF CONTRACT STATE-WIDE - Any Governmental, not -for -profit or quasi -governmental entity in the State of Florida, may avail itself of this contract and purchase any and all goods/services, specified herein from the successful bidder(s)/proposer(s) at the contract price(s) established herein, when permissible by federal, state, and local laws, rules, and regulations. Each Governmental, not -for -profit or quasi -governmental entity which uses this formal solicitation and resulting bid contract or agreement will establish its own contract/agreement, place its own orders, issue its own purchase orders, be invoiced there from and make its own payments, determine shipping terms and issue its own exemption certificates as required by the successful bidder(s)/proposer(s). 1.10. AWARD OF CONTRACT: A. The Formal Solicitation, Bidder's/Proposer's response, any addenda issued, and the purchase order shall constitute.the entire contract, unless modified in accordance with any ensuing contract/agreement, amendment or addenda. B. The award of a contract where there are Tie Bids will be decided by the Director of Purchasing or designee in the instance that Tie Bids can't be determined by applying Florida Statute 287.087, Preference to Businesses with Drug -Free Workplace Programs. C. The award of this contract may be preconditioned on the subsequent submission of other documents as specified in the Special Conditions or Technical Specifications. Bidder/Proposer shall be in default of its contractual obligation if such documents are not submitted in a timely manner and in the form required by the City. Where Bidder/Proposer is in default of these contractual requirements, the City, through action taken by the Purchasing Department, will void its acceptance of the Bidder's/Proposer's Response and may accept the Response from the next lowest responsive, responsible Bidder or Proposal most advantageous to the City or re -solicit the City's requirements. The City, at its sole discretion, may seek monetary restitution from Bidder/Proposer and its bid/proposal bond or guaranty, if applicable, as a result of damages or increased costs sustained as a result of the Bidder's/Proposer's default. D. The term of the contract shall be specified in one of three documents which shall be issued to the successful Bidder/Proposer. These documents may either be a purchase order, notice of award and/or contract award sheet. E. The City reserves the right to automatically extend this contract for up to one hundred twenty (120) calendar days beyond the stated contract term in order to provide City departments with continual service and supplies while a new contract is being solicited, evaluated, and/or awarded. If the right is exercised, the City shall notify the Bidder/Proposer, in writing, of its intent to extend the contract at the same price, terms and conditions for a specific number of days. Additional extensions over the first one hundred twenty (120) day extension may occur, if, the City and the Successful Bidder/Proposer are in mutual agreement of such extensions. F. Where the contract involves a single shipment of goods to the City, the contract term shall conclude upon completion of the expressed or implied warranty periods. G. The City reserves the right to award the contract on a split -order, lump sum or individual -item basis, or such combination as shall best serve the interests of the City unless otherwise specified. H. A Contract/Agreement may be awarded to the Bidder/Proposer by the City Commission based upon the minimum qualification requirements reflected herein. As a result of a RFP, RFQ, or RFLI, the City reserves the right to execute or not execute, as applicable, an Agreement with the Proposer, whichever is determined to be in the City's best interests. Such agreement will be furnished by the City, will contain certain terms as are in the City's best interests, and will be subject to approval as to legal form by the City Attorney. 1.11. BID BOND/ BID SECURITY - A cashier's or certified check, or a Bid Bond signed by a recognized surety company that is licensed to do business in the State of Florida, payable to the City of Miami, for the amount bid is required from all bidders/proposers, if so indicated under the Special Conditions. This check or bond guarantees that a bidder/proposer will accept the order or contract/agreement, as bid/proposed, if it is awarded to bidder/proposer. Bidder/Proposer shall forfeit bid deposit to the City should City award Page 8 of 34 Request for Qualifications (RFQ) 222246,3 contract/agreement to Bidder/Proposer and Bidder/Proposer fails to accept the award. The City reserves the right to reject any and all surety tendered to the City. Bid deposits are returned to unsuccessful bidders/proposers within ten (10) days after the award and successful bidder's/proposer's acceptance of award. If sixty (60) days have passed after the date of the formal solicitation closing date, and no contract has been awarded, all bid deposits will be retumed on demand. 1.12. RESPONSE FORM (HARDCOPY FORMAT) - All forms should be completed, signed and submitted accordingly. 1.13. BID SECURITY FORFEITED LIQUIDATED DAMAGES - Failure to execute an Agreement and/or file an acceptable Performance Bond, when required, as provided herein, shall be just cause for the annulment of the award and the forfeiture of the Bid Security to the City, which forfeiture shall be considered, not as a penalty, but in mitigation of damages sustained. Award may then be made to the next lowest responsive, responsible Bidder or Proposal most advantageous to the City or all responses may be rejected. 1.14. BRAND NAMES - If and wherever in the specifications brand names, makes, models, names of any manufacturers, trade names, or bidder/proposer catalog numbers are specified, it is for the purpose of establishing the type, function, minimum standard of design, efficiency, grade or quality of goods only. When the City does not wish to rule out other competitors' brands or makes, the phrase "OR EQUAL" is added. When bidding/proposing an approved equal, Bidders/Proposers will submit, with their response, complete sets of necessary data (factory information sheets, specifications, brochures, etc.) in order for the City to evaluate and determine the equality of the item(s) bid/proposed. The City shall be the sole judge of equality and its decision shall be fmal. Unless otherwise specified, evidence in the form of samples may be requested if the proposed brand is other than specified by the City. Such samples are to be furnished after formal solicitation opening/closing only upon request of the City. If samples should be requested, such samples must be received by the City no later than seven (7) calendar days after a formal request is made. 1.15. CANCELLATION - The City reserves the right to cancel all formal solicitations before its opening/closing. In the event of bid/proposal cancellation, the Director of Purchasing shall notify all prospective bidders/proposers and make available a written explanation for the cancellation. 1.16. CAPITAL EXPENDITURES - Contractor understands that any capital expenditures that the firm makes, or prepares to make, in order to deliver/perform the goods/services required by the City, is a business risk which the contractor must assume. The City will not be obligated to reimburse amortized or unamortized capital expenditures, or to maintain the approved status of any contractor. If contractor has been unable to recoup its capital expenditures during the time it is rendering such goods/services, it shall not have any claim upon the City. 1.17. CITY NOT LIABLE FOR DELAYS - It is further expressly agreed that in no event shall the City be liable for, or responsible to, the Bidder/Proposer/Consultant, any sub-contractor/sub-consultant, or to any other person for, or on account of, any stoppages or delay in the work herein provided for by injunction or other legal or equitable proceedings or on account of any delay for any cause over which the City has no control. 1.18. COLLUSION —Bidder/Proposer, by submitting a response, certifies that its response is made without previous understanding, agreement or connection either with any person, firm or corporation submitting a response for the same items/services or with the City of Miami's Purchasing Department or initiating department. The Bidder/Proposer certifies that its response is fair, without control, collusion, fraud or other illegal action. Bidder/Proposer certifies that it is in compliance with the Conflict of Interest and Code of Ethics Laws. The City will investigate all potential situations where collusion may have occurred and the City reserves the right to reject any and all bids/responses where collusion may have occurred. 1.19. COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS - Contractor understands that contracts between private entities and local governments are'subject to certain laws and regulations, including laws pertaining to public records, conflict of interest, records keeping, etc. City and Contractor agree to comply with and observe all applicable laws, codes and ordinances as that may in any way affect the goods or equipment offered, including but not limited to: A. Executive Order 11246, which prohibits discrimination against any employee, applicant, or client because of race, creed, color, national origin, sex, or age with regard to, but not limited to, the following: employment practices, rate of pay or other compensation methods, and training selection. Page 9 of 34 Request for Qualifications (RFQ) 222246,3 B. Occupational, Safety and Health Act (OSHA), as applicable to this Formal Solicitation. C. The State of Florida Statutes, Section 287.133(3)(A) on Public Entity Crimes. D. Environment Protection Agency (EPA), as applicable to this Formal Solicitation. E. Uniform Commercial Code (Florida Statutes, Chapter 672). F. Americans with Disabilities Act of 1990, as amended. G. National Institute of Occupational Safety Hazards (NIOSH), as applicable to this Formal Solicitation. 'H. National Forest Products Association (NFPA), as applicable to this Formal Solicitation. I. City Procurement Ordinance City Code Section 18, Article III. J. Conflict of Interest, City Code Section 2-611;61. K. Cone of Silence, City Code Section 18-74. L. The Florida Statutes Sections 218.73 and 218.74 on Prompt Payment. M. First Source Hiring Agreement, City Ordinance No. 10032, as applicable to this Formal Solicitation. Implemented to foster the creation of new and permanent jobs for City of Miami residents; requires as a condition precedent to the execution of service contracts including professional services. Lack of knowledge by the bidder/proposer will in no way be a cause for relief from responsibility. Non-compliance with all local, state, and federal directives, orders, and laws may be considered grounds for termination of contract(s). Copies of the City Ordinances may be obtained from the City Clerk's Office. 1.20. CONE OF SILENCE - Pursuant to Section 18-74 of the City of Miami Code, a "Cone of Silence" is imposed upon each RFP, RFQ, RFLI, or IFB after advertisement and terminates at the time the City Manager issues a written recommendation to the Miami City Commission, The Cone of Silence shall be applicable only to Contracts for the provision of goods and services and public works or improvements for amounts greater than $200,000. The Cone of Silence prohibits any communication regarding RFPs, RFQs, RFLI or IFBs (bids) between, among others: Potential vendors, service providers, bidders, lobbyists or consultants and the City's professional staff including, but not limited to, the City Manager and the City Manager's staff; the Mayor, City Commissioners, or their respective staffs and any member of the respective selection/evaluation committee. The provision does not apply to, among other communications: oral communications with the City purchasing staff, provided the communication is limited strictly to matters of process or procedure already contained in the formal solicitation document; the provisions of the Cone of Silence do not apply to oral communications at duly noticed site visits/inspections, pre -proposal or pre -bid conferences, oral presentations before selection/evaluation committees, contract negotiations during any duly noticed public meeting, or public presentations made to the Miami City Commission during a duly noticed public meeting; or communications in writing or by email at any time with any City employee, official or member of the City Commission unless specifically prohibited by the applicable RFP, RFQ, RFLI or IFB (bid) documents (See Section 2.2. of the Special Conditions); or communications in connection with the collection of industry comments or the performance of market research regarding a particular RFP, RFQ, RFLI OR IFB by City Purchasing staff. Proposers or bidders must file a copy of any written communications with the Office of the City Clerk, which shall be made available to any person upon request. The City shall respond in writing and file a copy with the Office of the City Clerk, which shall be made available to any person upon request. Written communications may be in the form of e-mail, with a copy to the Office of the City Clerk. In addition to any other penalties provided by law, violation of the Cone of Silence by any proposer or bidder shall render any award voidable. A violation by a particular Bidder, Proposer, Offeror, Respondent, lobbyist or consultant shall subject same to potential penalties pursuant to the City Code. Any person having personal knowledge of a violation of these provisions shall report such violation to the State Attorney and/or may file a complaint with the Ethics Commission. Proposers or bidders should reference Section 18-74 of the City of Miami Code for further clarification. Page 10 of 34 Request for Qualifications (RFQ) 222246,3 This language is only a summary of the key provisions of the Cone of Silence. Please review City of Miami Code Section 18-74 for a complete and thorough description of the Cone of Silence. You may contact the City Clerk at 305-250-5360, to obtain a copy of same. 1.21. CONFIDENTIALITY - As a political subdivision, the City of Miami is subject to the Florida Sunshine Act and Public Records Law. If this Contract/Agreement contains a confidentiality provision, it shall have no application when disclosure is required by Florida law or upon court order. 1.22. CONFLICT OF INTEREST — Bidders/Proposers, by responding to this Formal Solicitation, certify that to the best of their knowledge or belief, no elected/appointed official or employee of the City of Miami is financially interested, directly or indirectly, in the purchase of goods/services specified in this Formal Solicitation. Any such interests on the part of the Bidder/Proposer or its employees must be disclosed in writing to the City. Further, you must disclose the name of any City employee who owns, directly or indirectly, an interest of five percent (5%) or more of the total assets of capital stock in your firm. 1.23. COPYRIGHT OR PATENT RIGHTS — Bidders/Proposers warrant that there has been no violation of copyright or patent rights in manufacturing, producing, or selling the goods shipped or ordered and/or services provided as a result of this formal solicitation, and bidders/proposers agree to hold the City harmless from any and all liability, loss, or expense occasioned by any such violation. 1.24. COST INCURRED BY BIDDER/PROPOSER - All expenses involved with the preparation and submission of Responses to the City, or any work performed in connection therewith shall be borne by the Bidder (s) /Proposer (s) . 1.25. DEBARMENT AND SUSPENSIONS (Sec 18-107) (a) Authority and requirement to debar and suspend. After reasonable notice to an actual or prospective Contractual Party, and after reasonable opportunity for such party to be heard, the City Manager, after consultation with the Chief Procurement Officer and the city attorney, shall have the authority to debar a Contractual Party, for the causes listed below, from consideration for award of city Contracts. The debarment shall be for a period of not fewer than three years. The City Manager shall also have the authority to suspend a Contractual Party from consideration for award of city Contracts if there is probable cause for debarment, pending the debarment determination. The authority to debar and suspend contractors shall be exercised in accordance with regulations which shall be issued by the Chief Procurement Officer after approval by the City Manager, the city attorney, and the City Commission. (b) Causes for debarment or suspension. Causes for debarment or suspension include the following: (1) Conviction for commission of a criminal offense incident to obtaining or attempting to obtain a public or private Contract or subcontract, or incident to the performance of such Contract or subcontract. (2) Conviction under state or federal statutes of embezzlement, theft, forgery, bribery, falsification or destruction of records, receiving stolen property, or any other offense indicating a lack of business integrity or business honesty. (3) Conviction under state or federal antitrust statutes arising out of the submission of Bids or Proposals. (4) Violation of Contract provisions, which is regarded by the Chief Procurement Officer to be indicative of nonresponsibility. Such violation may include failure without good cause to perform in accordance with the terms and conditions of a Contract or to perform within the time limits provided in a Contract, provided that failure to perform caused by acts beyond the control of a party shall not be considered a basis for debarment or suspension. (5) Debarment or suspension of the Contractual Party by any federal, state or other governmental entity. (6) False certification pursuant to paragraph (c) below. (7) Found in violation of a zoning ordinance or any other city ordinance or regulation and for which the violation remains noncompliant. (8) Found in violation of a zoning ordinance or any other city ordinance or regulation and for which a civil penalty or fine is due and owing to the city. Page 11 of 34 Request for Qualifications (RFQ) 222246,3 (9) Any other cause judged by the City Manager to be so serious and compelling as to affect the responsibility of the Contractual Party performing city Contracts. (c) Certification. All Contracts for goods and services, sales, and leases by the city shall contain a certification that neither the Contractual Party nor any of its principal owners or personnel have been convicted of any of the violations set forth above or debarred or suspended as set forth in paragraph (b) (5). (d) Debarment and suspension decisions. Subject to the provisions of paragraph (a), the City Manager shall render a written decision stating the reasons for the debarment or suspension. A copy of the decision shall be provided promptly to the Contractual Party, along with a notice of said party's right to seek judicial relief. 1.26. DEBARRED/SUSPENDED VENDORS —An entity or affiliate who has been placed on the State of Florida debarred or suspended vendor list may not submit a response on a contract to provide goods or services to a public entity, may not submit a response on a contract with a public entity for the construction or repair of a public building or public work, may not submit response on leases of real property to a public entity, may not award or perform work as a contractor, supplier, subcontractor, or consultant under contract with any public entity, and may not transact business with any public entity. 1.27. DEFAULT/FAILURE TO PERFORM - The City shall be the sole judge of nonperformance, which shall include any failure on the part of the successful Bidder/Proposer to accept the award, to furnish required documents, and/or to fulfill any portion of this contract within the time stipulated. Upon default by the successful Bidder/Proposer to meet any terms of this agreement, the City will notify the Bidder/Proposer of the default and will provide the contractor three (3) days (weekends and holidays excluded) to remedy the default. Failure on the contractor's part to correct the default within the required three (3) days shall result in the Contract being terminated and upon the City notifying in writing the contractor of its intentions and the effective date of the termination. The following shall constitute default A. Failure to perform the work or deliver the goods/services required under the Contract and/or within the time required or failing to use the subcontractors, entities and personnel as identified and set forth, and to the degree specified in the Contract. B. Failure to begin the work under this Contract within the time specified. C. Failure to perform the work with sufficient workers and equipment or with sufficient materials to ensure timely completion. D. Neglecting or refusing to remove materials or perform new work where prior work has been rejected as nonconforming with the terms of the Contract. E. Becoming insolvent, being declared bankrupt, or committing any act of bankruptcy or insolvency, or making an assignment for the benefit of creditors, if the insolvency, bankruptcy, or assignment renders the successful Bidder/Proposer incapable of performing the work in accordance with and as required by the Contract. F. Failure to comply with any of the terms of the Contract in any material respect. All costs and charges incurred by the City as a result of a default or a default incurred beyond the time limits stated, together with the cost of completing the work, shall be deducted from any monies due or which may become due on this Contract. 1.28. DETERMINATION OF RESPONSIVENESS - Each Response will be reviewed to determine if it is responsive to the submission requirements outlined in the Formal Solicitation. A "responsive" response is one which follows the requirements of the formal solicitation, includes all documentation, is submitted in the format outlined in the formal solicitation, is of timely submission, and has appropriate signatures as required on each document. Failure to comply with these requirements may deem a Response non -responsive. 1.29. DISCOUNTS OFFERED DURING TERM OF CONTRACT - Discount Prices offered in the response shall be fixed after the award by the Commission, unless otherwise specified in the Special Terms and Conditions. Price discounts off the original prices quoted in the response will be accepted from successful Bidder(s)/Proposer(s) during the term of the contract. Such discounts shall remain in effect for a minimum of 120 days from approval by the City Commission Any discounts offered by a manufacturer to Bidder/Proposer will be passed on to the City. Page 12 of 34 Request for Qualifications (RFQ) 222246,3 1.30. DISCREPANCIES, ERRORS, AND OMISSIONS - Any discrepancies, errors, or ambiguities in the Formal Solicitation or addenda (if any) should be reported in writing to the City's Purchasing Department. Should it be found necessary, a written addendum will be incorporated in the Formal Solicitation and will become part of the purchase agreement (contract documents), The City will not be responsible for any oral instructions, clarifications, or other communications. A. Order of Precedence — Any inconsistency in this formal solicitation shall be resolved by giving precedence to the following documents, the first of such list being the governing documents. 1) Addenda (as applicable) 2) Specifications 3) Special Conditions 4) General Terms and Conditions 1.31. EMERGENCY / DISASTER PERFORMANCE - In the event of a hurricane or other emergency or disaster situation, the successful vendor shall provide the City with the commodities/services defined within the scope of this formal solicitation at the price contained within vendor's response. Further, successful vendor shall deliver/perform for the city on a priority basis during such times of emergency. 1.32. ENTIRE BID CONTRACT OR AGREEMENT - The Bid Contract or Agreement consists of this City of Miami Formal Solicitation and specifically this General Conditions Section, Contractor's Response and any written agreement entered into by the City of Miami and Contractor in cases involving RFPs, RFQs, and RFLIs, and represents the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all other negotiations, understanding and representations, if any, made by and between the parties. To the extent that the agreement conflicts with, modifies, alters or changes any of the terms and conditions contained in the Formal Solicitation and/or Response, the Formal Solicitation and then the Response shall control. This Contract may be modified only by a written agreement signed by the City of Miami and Contractor. 1.33. ESTIMATED QUANTITIES —Estimated quantities or estimated dollars are provided for your guidance only. No guarantee is expressed or implied as to quantities that will be purchased during the contract period. The City is not obligated to place an order for any given amount subsequent to the award of this contract. Said estimates may be used by the City for purposes of determining the low bidder or most advantageous proposer meeting specifications. The City reserves the right to acquire additional quantities at the prices bid/proposed or at lower prices in this Formal Solicitation. 1.34. EVALUATION OF RESPONSES A.Rejection of Responses The City may reject a Response for any of the following reasons: 1) Bidder/Proposer fails to acknowledge receipt of addenda; 2) Bidder/Proposer mistates or conceals any material fact in the Response ; 3) Response does not conform to the requirements of the Formal Solicitation; 4) Response requires a conditional award that conflicts with the method of award; 5) Response does not include required samples, certificates, licenses as required; and, 6) Response was not executed by the Bidder's/Proposer(s) authorized agent. The foregoing is not an all inclusive list of reasons for which a Response may be rejected. The City may reject and re -advertise for all or any part of the Formal Solicitation whenever it is deemed in the best interest of the City. B. Elimination From Consideration 1) A contract shall not be awarded to any person or firm which is in arrears to the City upon any debt or contract, or which is a defaulter as surety or otherwise upon any obligation to the City. 2) A contract may not be awarded to any person or firm which has failed to perform under the terms and conditions of any previous contract with the City or deliver on time contracts of a similar nature. 3) A contract may not be awarded to any person or firm which has been debarred by the City in accordance with the City's Debarment and Suspension Ordinance. Page 13 of 34 Request for Qualifications (RFQ) 222246,3 C. Determination of Responsibility 1) Responses will only be considered from entities who are regularly engaged in the business of providing the goods/equipment/services required by the Formal Solicitation. Bidder/Proposer must be able to ( demonstrate a satisfactory record of performance and integrity; and, have sufficient financial, material, equipment, facility, personnel resources, and expertise to meet all contractual requirements. The terms "equipment and organization" as used herein shall be construed to mean a fully equipped and well established entity in line with the best industry practices in the industry as determined by the City. 2) The City may consider any evidence available regarding the financial, technical and other qualifications and abilities of a Bidder/Proposer, including past performance (experience) with the City or any other governmental entity in making the award. 3) The City may require the Bidder(s)/Proposer(s) to show proof that they have been designated as an authorized representative of a manufacturer or supplier which is the actual source of supply, if required by the Formal Solicitation. 1.35. EXCEPTIONS TO GENERAL AND/OR SPECIAL CONDITIONS OR SPECIFICATIONS - Exceptions to the specifications shall be listed on the Response and shall reference the section. Any exceptions to the General or Special Conditions shall be cause for the bid (IFB) to be considered non -responsive. It also may be cause for a RFP, RFQ, or RFLI to be considered non -responsive; and, if exceptions are taken to the terms and conditions of the resulting agreement it may lead to terminating negotiations. 1.36. F.O.B. DESTINATION - Unless otherwise specified in the Formal Solicitation, all prices quoted/proposed by the bidder/proposer must be F.O.B. DESTINATION, inside delivery, with all delivery costs and charges included in the bid/proposal price, unless otherwise specified in this Formal Solicitation. Failure to do so may be cause for rejection of bid/proposal. 1.37. FIRM PRICES - The bidder/proposer warrants that prices, terms, and conditions quoted in its response will be firm throughout the duration of the contract unless otherwise specified in the Formal Solicitation. Such prices will remain firm for the period of performance or resulting purchase orders or contracts, which are to be performed or supplied over a period of time. 1.38. FIRST -SOURCE HIRING AGREEMENT (Sec. 18-105) (a) The Commission approves implementation of the first -source hiring agreement policy and requires as a condition precedent to the execution of service contracts for facilities, services, and/or receipt of grants and loans, for projects of a nature that create new jobs, the successful negotiation of first -source hiring agreements between the organization or individual receiving said contract and the authorized representative unless such an agreement is found infeasible by the city manager and such finding approved by the City Commission at a public hearing. (b) For the purpose of this section, the following terms, phrases, words and their derivations shall have the following meanings: Authorized representative means the Private Industry Council of South Florida/South Florida Employment and Training Consortium, or its successor as local recipient of federal and state training and employment funds. Facilities means all publicly financed projects, including but without limitation, unified development projects, municipal public works, and municipal improvements to the extent they are financed through public money services or the use of publicly owned property. Grants and loans means, without limitation, urban development action grants (UDAG), economic development agency construction loans, loans from Miami Capital Development, Incorporated, and all federal and state grants administered by the city. Service contracts means contracts for the procurement of services by the city which include professional services. Services includes, without limitation, public works improvements, facilities, professional services, commodities, supplies, materials and equipment. (c) The authorized representative shall negotiate each first -source hiring agreement. (d) The primary beneficiaries of the first -source hiring agreement shall be participants of the city Page 14 of 34 Request for Qualifications (RFQ) 222246,3 training and employment programs, and other residents of the city. 1.39. FLORIDA MINIMUM WAGE - The Constitution of the State of Florida, Article X, Section 24, states that employers shall pay employee wages no less than the minimum wage for all hours worked in Florida. Accordingly, it is the contractor's and its' subcontractor(s) responsibility to understand and comply with this Florida constitutional minimum wage requirement and pay its employees the current established hourly minimum wage rate, which is subject to change or adjusted by the rate of inflation using the consumer price index for urban wage earners and clerical workers, CPI-W, or a successor index as calculated by the United States Department of Labor. Each adjusted minimum wage rate calculated shall be determined and published by the Agency Workforce Innovation on September 30th of each year and take effect on the following January lst. At the time of responding, it is bidder/proposer and his/her subcontractor(s), if applicable, full responsibility to determine whether any of its employees may be impacted by this Florida Law at any given point in time during the term of the contract. If impacted, bidder/proposer must furnish employee name(s), job title(s), job description(s), and current pay rate(s). Failure to submit this information at the time of submitting a response constitute successful bidder's/proposer's.acknowledgement and understanding that the Florida Minimum Wage Law will not impact its prices throughout the term of contract and waiver of any contractual price increase request(s). The City reserves the right to request and successful bidder/proposer must provide for any and all information to make a wage and contractual price increase(s) determination. 1.40. GOVERNING LAW AND VENUE - The validity and effect of this Contract shall be governed by the laws of the State of Florida. The parties agree that any action, mediation or arbitration arising out of this Contract shall take place in Miami -Dade County, Florida. 1.41. HEADINGS AND TERMS - The headings to the various paragraphs of this Contract have been inserted for convenient reference only and shall not in any manner be construed as modifying, amending or affecting in any way the expressed terms and provisions hereof. 1.42. HEALTH INSURANCE PORTABILITY AND ACCOUNTABILITY ACT (HIPPA) - Any person or entity that performs or assists the City of Miami with a function or activity involving the use or disclosure of "individually identifiable health information (IIHI) and/or Protected Health Information (PHI) shall comply with the Health Insurance Portability and Accountability Act (HIPAA) of 1996 and the City of Miami Privacy Standards. HIPAA mandates for privacy, security and electronic transfer standards, which include but are not limited to: A. Use of information only for performing services required by the contract or as required by law; B. Use of appropriate safeguards to prevent non -permitted disclosures; C. Reporting to the City of Miami of any non -permitted use or disclosure; D. Assurances that any agents and subcontractors agree to the same restrictions and conditions that apply to the Bidder/Proposer and reasonable assurances that IIHI/PHI will be held confidential; E. Making Protected Health Information (PHI) available to the customer; F. Making PHI available to the customer for review and amendment; and incorporating any amendments requested by the customer; G. Making PHI available to the City of Miami for an accounting of disclosures; and H. Making internal practices, books and records related to PHI available to the City of Miami for compliance audits. PHI shall maintain its protected status regardless of the form and method of transmission (paper records, and/or electronic transfer of data). The Bidder/ Proposer must give its customers written notice of its privacy information practices including specifically, a description of the types of uses and disclosures that would be made with protected health information. 1.43. INDEMNIFICATION - The Contractor shall indemnify and save harmless forever the City, and all the City's agents, officers and employees from and against all charges or claims resulting from any bodily injury, loss of life, or damage to property from any act, omission or neglect, by itself or its employees; the Contractor shall become defendant in every suit brought for any of such causes of action against the City or the City's officials, agents and employees; the Contractor shall further indemnify City as to all costs, attorney's fees, expenses and liabilities incurred in the defense of any such claims and any resulting Page 15 of 34 Request for Qualifications (RFQ) 222246,3 investigation. 1.44. INFORMATION AND DESCRIPTIVE LITERATURE —Bidders/Proposer must furnish all information requested in the spaces provided in the Formal Solicitation. Further, as may be specified elsewhere, each Bidder/Proposer must submit for evaluation, cuts, sketches, descriptive literature, technical specifications, and Material Safety Data Sheets (MSDS)as required, covering the products offered. Reference to literature submitted with a previous response or on file with the Buyer will not satisfy this provision. 1.45. INSPECTIONS - The City may, at reasonable times during the term hereof, inspect Contractor's facilities and perform such tests, as the City deems reasonably necessary, to determine whether the goods and/or services required to be provided by the Contractor under this Contract conform to the terms and conditions of the Formal Solicitation. Contractor shall make available to the City all reasonable facilities and assistance to facilitate the performance of tests or inspections by City representatives. All tests and inspections shall be subject to, and made in accordance with, the provisions of the City of Miami Ordinance No. 12271 (Section 18-79), as same may be amended or supplemented from time to time. 1.46. INSPECTION OF RESPONSE - Responses received by the City pursuant to a Formal Solicitation will not be made available until such time as the City provides notice of a decision or intended decision or within 10 days after bid closing, whichever is earlier. Bid/Proposal results will be tabulated and may be furnished upon request via fax or e-mail to the Sr. Procurement Specialist issuing the Solicitation. Tabulations also are available on the City's Web Site following recommendation for award. 1.47. INSURANCE - Within ten (10) days after receipt of Notice of Award, the successful Contractor, shall furnish Evidence of Insurance to the Purchasing Department, if applicable. Submitted evidence of coverage shall demonstrate strict compliance to all requirements listed on the Special Conditions entitled "Insurance Requirements". The City shall be listed as an "Additional Insured." Issuance of a Purchase Order is contingent upon the receipt of proper insurance documents. If the insurance certificate is received within the specified time frame but not in the manner prescribed in this Solicitation the Contractor shall be verbally notified of such deficiency and shall have an additional five (5) calendar days to submit a corrected certificate to the City. If the Contractor fails to submit the required insurance documents in the manner prescribed in this Solicitation within fifteen (15) calendar days after receipt Notice of Award, the contractor shall be in default of the contractual terms and conditions and shall not be awarded the contract. Under such circumstances, the Bidder/Proposer may be prohibited from submitting future responses to the City. Information regarding any insurance requirements shall be directed to the Risk Administrator, Department of Risk Management, at 444 SW 2nd Avenue, 9th Floor, Miami, Florida 33130, 305-416-1604. The Bidder/Proposer shall be responsible for assuring that the insurance certificates required in conjunction with this Section remain in effect for the duration of the contractual period; including any and all option terms that may be granted to the Bidder/Proposer. 1.48. INVOICES - Invoices shall contain purchase order number and details of goods and/or services delivered (i.e. quantity, unit price, extended price, etc); and in compliance with Chapter 218 of the Florida Statutes (Prompt Payment Act). 1.49. LOCAL PREFERENCE - City Code Section 18-85, states that the City Commission may offer to a responsible and responsive bidder/proposer, who maintains a Local Office, the opportunity of accepting a bid at the low bid amount, if the original bid amount submitted by the local vendor is not more than ten percent (10%) in excess of the lowest other responsible and responsive bidder/proposer. 1.50. MANUFACTURER'S CERTIFICATION - The City reserves the right to request from bidders/proposers a separate Manufacturer's Certification of all statements made in the bid/proposal. Failure to provide such certification may result in the rejection of bid/proposal or termination of contract/agreement, for which the bidder/proposer must bear full liability. 1.51. MODIFICATIONS OR CHANGES IN PURCHASE ORDERS AND CONTRACTS - No contract or understanding to modify this Formal Solicitation and resultant purchase orders or contracts, if applicable, shall be binding upon the City unless made in writing by the Director of Purchasing of the City of Miami, Florida through the issuance of a change order, addendum, amendment, or supplement to the contract, purchase order or award sheet as appropriate. Page 16 of 34 Request for Qualifications (RFQ) 222246,3 1.52. NO PARTNERSHIP OR JOINT VENTURE - Nothing contained in this Contract will be deemed or construed to create a partnership or joint venture between the City of Miami and Contractor, or to create any other similar relationship between the parties. 1.53. NONCONFORMANCE TO CONTRACT CONDITIONS - Items may be tested for compliance with specifications under the direction of the Florida Department of Agriculture and Consumer Services or by other appropriate testing Laboratories as determined by the City. The data derived from any test for compliance with specifications is public record and open to examination thereto in accordance with Chapter 119, Florida Statutes. Items delivered not conforming to specifications may be rejected and returned at Bidder's/Proposer's expense. These non -conforming items not delivered as per delivery date in the response and/or Purchase Order may result in bidder/proposer being found in default in which event any and all re -procurement costs may be charged against the defaulted contractor. Any violation of these stipulations may also result in the supplier's name being removed from the City of Miami's Supplier's list. 1.54. NONDISCRIMINATION —Bidder/Proposer agrees that it shall not discriminate as to race, sex, color, age, religion, national origin, marital status, or disability in connection with its performance under this formal solicitation. Furthermore, Bidder/Proposer agrees that no otherwise qualified individual shall solely by reason of his/her race, sex, color, age, religion, national origin, marital status or disability be excluded from the participation in, be denied benefits of, or be subjected to, discrimination under any program or activity. In connection with the conduct of its business, including performance of services and employment of personnel, Bidder/Proposer shall not discriminate against any person on the basis of race, color, religion, disability, age, sex, marital status or national origin. All persons having appropriate qualifications shall be afforded equal opportunity for employment. 1.55. NON-EXCLUSIVE CONTRACT/ PIGGYBACK PROVISION - At such times as may serve its best interest, the City of Miami reserves the right to advertise for, receive, and award additional contracts for these herein goods and/or services, and to make use of other competitively bid (governmental) contracts, agreements, or other similar sources for the purchase of these goods and/or services as may be available. It is hereby agreed and understood that this formal solicitation does not constitute the exclusive rights of the successful bidder(s)/proposer(s) to receive all orders that may be generated by the City in conjunction with this Formal Solicitation. In addition, any and all commodities, equipment, and services required by the City in conjunction with construction projects are solicited under a distinctly different solicitation process and shall not be purchased under the terms, conditions and awards rendered under this solicitation, unless such purchases are determined to be in the best interest of the City. 1.56.00CUPATIONAL LICENSE - Any person, firm, corporation or joint venture, with a business location in the City of Miami and is submitting a Response under this Formal Solicitation shall meet the City's Occupational License Tax requirements in accordance with Chapter 31.1, Article I of the City of Miami Charter. Others with a location outside the City of Miami shall meet their local Occupational License Tax requirements. A copy of the license must be submitted with the response; however, the City may at its sole option and in its best interest allow the Bidder/Proposer to supply the license to the City during the evaluation period, but prior to award. 1.57. ONE PROPOSAL - Only one (1) Response from an individual, firm, partnership, corporation or joint venture will be considered in response to this Formal Solicitation. When submitting an alternate response, please refer to the herein condition for "Alternate Responses May Be Considered". 1.58. OWNERSHIP OF DOCUMENTS - It is understood by and between the parties that any documents, records, files, or any other matter whatsoever which is given by the City to the successful Bidder/Proposer pursuant to this formal solicitation shall at all times remain the property of the City and shall not be used by the Bidder/Proposer for any other purposes whatsoever without the written consent of the City. 1.59. PARTIAL INVALIDITY - If any provision of this Contract or the application thereof to any person or circumstance shall to any extent be held invalid, then the remainder of this Contract or the application of such provision to persons or circumstances other than those as to which it is held invalid shall not be affected thereby, and each provision of this Contract shall be valid and enforced to the fullest extent permitted by law. Page 17 of 34 Request for Qualifications (RFQ) 222246,3 1.60. PERFORMANCE/PAYMENT BOND —A Contractor may be required to furnish a Performance/Payment Bond as part of the requirements of this Contract, in an amount equal to one hundred percent (100%) of the contract price. 1.61. PREPARATION OF RESPONSES (HARDCOPY FORMAT) —Bidders/Proposers are expected to examine the specifications, required delivery, drawings, and all special and general conditions. All bid/proposed amounts, if required, shall be either typewritten or entered into the space provided with ink. Failure to do so will be at the Bidder's/Proposer's risk. A. Each Bidder/Proposer shall furnish the information required in the Formal Solicitation. The Bidder/Proposer shall sign the Response and print in ink or type the name of the Bidder/Proposer, address, and telephone number on the face page and on each continuation sheet thereof on which he/she makes an entry, as required. B. If so required, the unit price for each unit offered shall be shown, and such price shall include packaging, handling and shipping, and F.O.B. Miarni delivery inside City premises unless otherwise specified. Bidder/Proposer shall include in the response all taxes, insurance, social security, workmen's compensation, and any other benefits normally paid by the Bidder/Proposer to its employees. If applicable, a unit price shall be entered in the "Unit Price" column for each item. Based upon estimated quantity, an extended price shall be entered in the "Extended Price" column for each item offered. In case of a discrepancy between the unit price and extended price, the unit price will be presumed correct. C. The Bidder/Proposer must state a definite time, if required, in calendar days for delivery of goods and/or services. D. The Bidder/Proposer should retain a copy of all response documents for future reference. E. All responses, as described, must be fully completed and typed or printed in ink and must be signed in ink with the firm's name and by an officer or employee having authority to bind the company or firm by his/her signature. Bids/Proposals having any erasures or corrections must be initialed in ink by person signing the response or the response may be rejected. F. Responses are to remain valid for at least 180 days. Upon award of a contract, the content of the Successful Bidder's/Proposer's response may be included as part of the contract, at the City's discretion. G. The City of Miami's Response Forms shall be used when Bidder/Proposer is submitting its response in hardcopy format. Use of any other forms will result in the rejection of the response. IF SUBMITTING HARDCOPY FORMAT, THE ORIGINAL AND THREE (3) COPIES OF THESE SETS OF FORMS, UNLESS OTHERWISE SPECIFIED, AND ANY REQUIRED ATTACHMENTS MUST BE RETURNED TO THE CITY OR YOUR RESPONSE MAY BE DEEMED NON -RESPONSIVE. 1.62. PRICE ADJUSTMENTS — Any price decrease effectuated during the contract period either by reason of market change or on the part of the contractor to other customers shall be passed on to the City of Miami. 1.63. PRODUCT SUBSTITUTES - In the event a particular awarded and approved manufacturer's product becomes unavailable during the term of the Contract, the Contractor awarded that item may arrange with the City's authorized representative(s) to supply a substitute product at the awarded price or lower, provided that a sample is approved in advance of delivery and that the new product meets or exceeds all quality requirements. 1.64. CONFLICT OF INTEREST, AND UNETHICAL BUSINESS PRACTICE PROHIBITIONS - Contractor represents and warrants to the City that it has not employed or retained any person or company employed by the City to solicit or secure this Contract and that it has not offered to pay, paid, or agreed to pay any person any fee, commission, percentage, brokerage fee, or gift of any kind contingent upon or in connection with, the award of this Contract. 1.65. PROMPT PAYMENT —Bidders/Proposers may offer a cash discount for prompt payment; however, discounts shall not be considered in determining the lowest net cost for response evaluation purposes. Bidders/Proposers are required to provide their prompt payment terms in the space provided on the Formal Solicitation. If no prompt payment discount is being offered, the Bidder/Proposer must enter zero (0) for the percentage discount to indicate no discount. If the Bidder/Proposer fails to enter a percentage, it is understood and agreed that the terms shall be 2% 20 days, effective after receipt of invoice or final Page 18 of 34 Request for Qualifications (RFQ) 222246,3 acceptance by the City, whichever is later. When the City is entitled to a cash discount, the period of computation will commence on the date of delivery, or receipt of a correctly completed invoice, whichever is later. If an adjustment in payment is necessary due to damage, the cash discount period shall commence on the date final approval for payment is authorized. If a discount is part of the contract, but the invoice does not reflect the existence of a cash discount, the City is entitled to a cash discount with the period commencing on the date it is determined by the City that a cash discount applies. Price discounts off the original prices quoted on the Price Sheet will be accepted from successful bidders/proposers during the term of the contract. 1.66. PROPERTY - Property owned by the City of Miami is the responsibility of the City of Miami. Such property furnished to a Contractor for repair, modification, study, etc., shall remain the property of the City of Miami. Damages to such property occurring while in the possession of the Contractor shall be the responsibility of the Contractor. Damages occurring to such property while in route to the City of Miami shall be the responsibility of the Contractor. In the event that such property is destroyed 'or declared a total loss, the Contractor shall be responsible for replacement value of the property at the current market value, less depreciation of the property, if any. 1.67. PROVISIONS BINDING - Except as otherwise expressly provided in the resulting Contract, all covenants, conditions and provisions of the resulting Contract shall be binding upon and shall inure to the benefit of the parties hereto and their respective heirs, legal representatives, successors and assigns. 1.68. PUBLIC ENTITY CRIMES - A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a response on a contract to provide any goods or services to a public entity, may not submit a response on a contract with a public entity for the construction or repair of a public building or public work, may not submit responses on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list. 1.69. PUBLIC RECORDS - Contractor understands that the public shall have access, at all reasonable times, to all documents and information pertaining to City contracts, subject to the provisions of Chapter 119, Florida Statutes, and City of Miami Code, Section 18, Article III, and agrees to allow access by the City and the public to all documents subject to disclosure under applicable law. Contractor's failure or refusal to comply with the provision of this section shall result in the immediate cancellation of this Contract by the City. 1.70. QUALITY OF GOODS, MATERIALS, SUPPLIES, PRODUCTS, AND EQUIPMENT - All materials used in the manufacturing or construction of supplies, materials, or equipment covered by this solicitation shall be new. The items bid/proposed must be of the latest make or model, of the best quality, and of the highest grade of workmanship, unless as otherwise specified in this Solicitation. 1.71. QUALITY OF WORK/SERVICES - The work/services performed must be of the highest quality and workmanship. Materials furnished to complete the service shall be new and of the highest quality except as otherwise specified in this Solicitation. 1.72. REMEDIES PRIOR TO AWARD (Sec. 18-106) - If prior to Contract award it is determined that a formal solicitation or proposed award is in violation of law, then the solicitation or proposed award shall be cancelled by the City Commission, the City Manager or the Chief Procurement Officer, as may be applicable, or revised to comply with the law. 1.73. RESOLUTION OF CONTRACT DISPUTES (Sec. 18-105) (a) Authority to resolve Contract disputes. The City Manager, after obtaining the approval of the city attorney, shall have the authority to resolve controversies between the Contractual Party and the city which arise under, or by virtue of, a Contract between them; provided that, in cases involving an amount greater than $25,000, the City Commission must approve the City Manager's decision. Such authority extends, without limitation, to controversies based upon breach of Contract, mistake, misrepresentation or lack of complete performance, and shall be invoked by a Contractual Party by submission of a protest to the City Manager. Page 19 of 34 Request for Qualifications (RFQ) 222246,3 (b) Contract dispute decisions. If a dispute is not resolved by mutual consent, the City Manager shall promptly render a written report stating the reasons for the action taken by the City Commission or the City Manager which shall be final and conclusive. A copy of the decision shall be immediately provided to the protesting party, along with a notice of such party's right to seek judicial relief, provided that the protesting party shall not be entitled to such judicial relief without first having followed the procedure set forth in this section. 1.74. RESOLUTION OF PROTESTED SOLICITATIONS AND AWARDS (Sec. 18-104) (a) Right to protest. The following procedures shall be used for resolution of protested solicitations and awards except for purchases of goods, supplies, equipment, and services, the estimated cost of which does not exceed $25,000. Protests thereon shall be governed by the Administrative Policies and Procedures of Purchasing. 1.Protest of Solicitation. i. Any prospective proposer who perceives itself aggrieved in connection with the solicitation of a Contract may protest to the Chief Procurement Officer. A written notice of intent to file a protest shall be filed with the Chief Procurement Officer within three days after the Request for Proposals, Request for Qualifications or Request for Letters of Interest is published in a newspaper of general circulation. A notice of intent to file a protest is considered filed when received by the Chief Procurement Officer; or ii. Any prospective bidder who intends to contest the Solicitation Specifications or a solicitation may protest to the Chief Procurement Officer. A written notice of intent to file a protest shall be filed with the Chief Procurement Officer within three days after the solicitation is published in a newspaper of general circulation. A notice of intent to file a protest is considered filed when received by the Chief Procurement Officer. 2. Protest of Award. i. A written notice of intent to file a protest shall be filed with the Chief Procurement Officer within two days after receipt by the proposer of the notice of the City Manager's recommendation for award of Contract, which will be posted on the City of Miami Purchasing Department website, in the Supplier Corner, Current Solicitations and Notice of Recommendation of Award Section. The notice of the City Manager's recommendation can be found by selecting the details of the solicitation and is listed as Recommendation of Award Posting Date and Recommendation of Award To fields. If "various" is indicated in the Recommendation of Award To field, the Bidder/Proposer must contact the buyer for that solicitation to obtain the suppliers name. It shall be the responsibility of the Bidder/Proposer to check this section of the website daily after responses are submitted to receive the notice; or II. Any actual Responsive and Responsible Bidder whose Bid is lower than that of the recommended bidder may protest to the Chief Procurement Officer. A written notice of intent to file a protest shall be filed with the Chief Procurement Officer within two days after receipt by the bidder of the notice of the city's determination of non responsiveness or non responsibility. The receipt by bidder of such notice shall be confirmed by the city by facsimile or electronic mail or U.S. mail, return receipt requested. A notice of intent to file a protest is considered filed when received by the Chief Procurement Officer. iii. A written protest based on any of the foregoing must be submitted to the Chief Procurement Officer within five (5) days after the date the notice of protest was filed. A written protest is considered filed when received by the Chief Procurement Officer. The written protest may not challenge the relative weight of the evaluation criteria or the formula for assigning points in making an award determination. The written protest shall state with particularity the specific facts and law upon which the protest of the solicitation or the award is based, and shall include all pertinent documents and evidence and shall be accompanied by the required Filing Fee as provided in subsection (f). This shall form the basis for review of the written protest and no facts, grounds, documentation or evidence not contained in the protester's submission to the Chief Procurement Officer at the time of filing the protest shall be permitted in the consideration of the written protest. No time will be added to the above limits for service by mail. In computing any period of time prescribed or allowed by this section, the day of the act, event or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included unless it is a Saturday, Sunday or legal holiday in which event the period shall run until the end of the next day which is Page 20 of 34 Request for Qualifications (RFQ) 222246,3 neither a Saturday, Sunday or legal holiday. Intermediate Saturdays, Sundays and legal holidays shall be excluded in the computation of the time for filing. (b) Authority to resolve protests. The Chief Procurement Officer shall have the authority, subject to the approval of the City Manager and the city attorney, to settle and resolve any written protest. The Chief Procurement Officer shall obtain the requisite approvals and communicate said decision to the protesting party and shall submit said decision to the City Commission within 30 days after he/she receives the protest. In cases involving more than $25,000, the decision of the Chief Procurement Officer shall be submitted for approval or disapproval thereof to the City Commission after a favorable recommendation by the city attorney and the City Manager. (c) Compliance with filing requirements. Failure of a party to timely file either the notice of intent to file a protest or the written protest, together with the required Filing Fee as provided in subsection (f), with the Chief Procurement Officer within the time provided in subsection (a), above, shall constitute a forfeiture of such party's right to file a protest pursuant to this section. The protesting party shall not be entitled to seek judicial relief without first having followed the procedure set forth in this section (d) Stay of Procurements during protests. Upon receipt of a written protest filed pursuant to the requirements of this section, the city shall not proceed further with the solicitation or with the award of the Contract until the protest is resolved by the Chief Procurement Officer or the City Commission as provided in subsection (b) above, unless the City Manager makes a written determination that the solicitation process or the Contract award must be continued without delay in order to avoid an immediate and serious danger to the public health, safety or welfare. (e) Costs. All costs accruing from a protest shall be assumed by the protestor. (f) Filing Fee. The written protest must be accompanied by a filing fee in the form of a money order or cashier's check payable to the city in an amount equal to one percent of the amount of the Bid or proposed Contract, or $5000.00, whichever is less, which filing fee shall guarantee the payment of all costs which may be adjudged against the protestor in any administrative or court proceeding. If a protest is upheld by the Chief Procurement Officer and/or the City Commission, as applicable, the filing fee shalllbe refunded to the protestor less any costs assessed under subsection (e) above. If the protest is denied, the filing fee shall be forfeited to the city in lieu of payment of costs for the administrative proceedings as prescribed by subsection (e) above. 1.75. SAMPLES - Samples of items, when required, must be submitted within the time specified at no expense to the City. If not destroyed by testing, bidder(s)/proposer(s) will be notified to remove samples, at their expense, within 30 days after notification. Failure to remove the samples will result in the samples becoming the property of the City. 1.76. SELLING, TRANSFERRING OR ASSIGNING RESPONSIBILITIES - Contractor shall not sell, assign, transfer or subcontract at any time during the term of the Contract, or any part of its operations, or assign any portion of the performance required by this contract, except under and by virtue of written permission granted by the City through the proper officials, which may be withheld or conditioned, in the City's sole discretion. 1.77. SERVICE AND WARRANTY —When specified, the bidder/proposer shall define all warranty, service and replacements that will be provided. Bidders/Proposer must explain on the Response to what extent warranty and service facilities are available. A copy of the manufacturer's warranty, if applicable, should be submitted with your response. 1.78. SILENCEOF SPECIFICATIONS - The apparent silence of these specifications and any supplemental specification as to any detail or the omission from it of detailed description concerning any point shall be regarded as meaning that only the best commercial practices are to prevail and that only materials of first quality and correct type, size and design are to be used, All workmanship and services is to be first quality. All interpretations of these specifications shall be made upon the basis of this statement. If your firm has a current contract with the State of Florida, Department of General Services, to supply the items on this solicitation, the bidder/proposer shall quote not more than the contract price; failure to comply with this request will result in disqualification of bid/proposal. 1.79. SUBMISSION AND RECEIPT OF RESPONSES - Responses shall be submitted electronically via Page 21 of 34 Request for Qualifications (RFQ) 222246,3 the Oracle System or responses may be submitted in hardcopy format to the City Clerk, City Hall, 3500 Pan American Drive, Miami, Florida 33133-5504, at or before, the specified closing date and time as designated in the IFB, RFP, RFQ, or RFLI. NO EXCEPTIONS. Bidders/Proposers are welcome to attend the solicitation closing; however, no award will be made at that time. A. Hardcopy responses shall be enclosed in a sealed envelope, box package. The face of the envelope, box or package must show the hour and date specified for receipt of responses, the solicitation number and title, and the name and return address of the Bidder/Proposer. Hardcopy responses not submitted on the requisite Response Forms may be rejected. Hardcopy responses received at any other location than the specified shall be deemed non -responsive. Directions to City Hall: FROM THE NORTH: I-95 SOUTH UNTIL IT TURNS INTO US1. US1 SOUTH TO 27TH AVE., TURN LEFT, PROCEED SOUTH TO SO. BAYSHORE DR. (3RD TRAFFIC LIGHT), TURN LEFT, 1 BLOCK TURN RIGHT ON PAN AMERICAN DR. CITY HALL IS AT THE END OF PAN AMERICAN DR. PARKING IS ON RIGHT. FROM THE SOUTH: US1 NORTH TO 27TH AVENUE, TURN RIGHT, PROCEED SOUTH TO SO. BAYSHORE DR. (3RD TRAFFIC LIGHT), TURN LEFT, 1 BLOCK TURN RIGHT ON PAN AMERICAN DR. CITY HALL IS AT THE END OF PAN AMERICAN DR. PARKING IS ON RIGHT. B. Facsimile responses will not be considered. C. Failure to follow these procedures is cause for rejection of bid/proposal. D. The responsibility for obtaining and submitting a response on or before the close date is solely and strictly the responsibility of Bidder/Proposer. The City of Miami is not responsible for delays caused by the United States mail delivery or caused by any other occurrence. Responses received after the solicitation closing date and time will be returned unopened, and will not be considered for award. E. Late responses will be rejected. F. All responses are subject to the conditions specified herein. Those which do not comply with these conditions are subject to rejection. G. Modification of responses already submitted will be considered only if received at the City before the time and date set for closing of solicitation responses. All modifications must be submitted via the Oracle System or in writing. Once a solicitation closes (closed date and/or time expires), the City will not consider any subsequent submission which alters the responses. H. If hardcopy responses are submitted at the same time for different solicitations, each response must be placed in a separate envelope, box, or package and each envelope, box or package must contain the information previously stated in 1.82.A. 1.80. TAXES - The City of Miami is exempt from any taxes imposed by the State and/or Federal Government. Exemption certificates will be provided upon request. Notwithstanding, Bidders/Proposers should be aware of the fact that all materials and supplies which are purchased by the Bidder/Proposer for the completion of the contract is subject to the Florida State Sales Tax in accordance with Section 212.08, Florida Statutes, as amended and all amendments thereto and shall be paid solely by the Bidder/Proposer. 1.81. TERMINATION —The City Manager on behalf of the City of Miami reserves the right to terminate this contract by written notice to the contractor effective the date specified in the notice should any of the following apply: A. The contractor is determined by the City to be in breach of any of the terms and conditions of the contract. B. The City has determined that such termination will be in the best interest of the City to terminate the contract for its own convenience; C. Funds are not available to cover the cost of the goods and/or services. The City's obligation is contingent upon the availability of appropriate funds. 1.82. TERMS OF PAYMENT - Payment will be made by the City after the goods and/or services awarded to a Bidder/Proposer have been received, inspected, and found to comply with award Page 22 of 34 Request for Qualifications (RFQ) 222246,3 specifications, free of damage or defect, and properly invoiced. No advance payments of any kind will be made by the City of Miami. Payment shall be made after delivery, within 45 days of receipt of an invoice and authorized inspection and acceptance of the goods/services and pursuant to Section 218.74, Florida Statutes and other applicable law. 1.83. TIMELY DELIVERY - Time will be of the essence for any orders placed as a result of this solicitation. The City reserves the right to cancel such orders, or any part thereof, without obligation, if delivery is not made within the time(s) specified on their Response. Deliveries are to be made during regular City business hours unless otherwise specified in the Special Conditions. 1.84. TITLE - Title to the goods or equipment shall not pass to the City until after the City has accepted the goods/equipment or used the goods, whichever comes first. 1.85.TRADE SECRETS EXECUTION TO PUBLIC RECORDS DISCLOSURE- All Responses submitted to the City are subject to public disclosure pursuant to Chapter 119, Florida Statutes. An exception may be made for "trade secrets." If the Response contains information that constitutes a "trade secret", all material that qualifies for exemption from Chapter 119 must be submitted in a separate envelope, clearly identified as "TRADE SECRETS EXCEPTION," with your firm's name and the Solicitation number and title marked on the outside. Please be aware that the designation of an item as a trade secret by you may be challenged in court by any person. By your designation of material in your Response as a "trade secret" you agree to indemnify and hold harmless the City for any award to a plaintiff for damages, costs or attomey's fees and for costs and attorney's fees incurred by the City by reason of any legal action challenging your claim. 1.86. UNAUTHORIZED WORK OR DELIVERY OF GOODS- Neither the qualified Bidder(s)/Proposer(s) nor any of his/her employees shall perform any work or deliver any goods unless a change order or purchase order is issued and received by the Contractor. The qualified Bidder(s)/Proposer(s) shall not be paid for any work performed or goods delivered outside the scope of the contract or any work performed by an employee not otherwise previously authorized. 1.87. USE OF NAME - The City is not engaged in research for advertising, sales promotion, or other publicity purposes. No advertising, sales promotion or other publicity materials containing information obtained from this Solicitation are to be mentioned, or imply the name of the City, without prior express written permission of the City Manager or the City Commission. 1.88. VARIATIONS OF SPECIFICATIONS - For purposes of solicitation evaluation, bidders/proposers must indicate any variances from the solicitation specifications and/or conditions, no matter how slight. If variations are not stated on their Response, it will be assumed that the product fully complies with the City's specifications. Page 23 of 34 Request for Qualifications (RFQ) 222246,3 2. Special Conditions 2.1. PURPOSE The purpose of this Solicitation is to establish a contract, for a Franchise Agreement for Commercial Solid Waste Hauling Services, as specified herein, from a source(s) of supply that will give prompt and efficient service fully compliant with the terms, conditions and stipulations of the solicitation. 2.2. DEADLINE FOR RECEIPT OF REQUEST FOR ADDITIONAL INFORMATION/CLARIFICATION • Any questions or clarifications concerning this solicitation shall be submitted by email or facsimile to the Purchasing Department, Attn: Yusbel Gonzalez; fax: (305) 400-5104 or email: ygonzalez@ci.miami.fl.us. The solicitation title and number shall be referenced on all correspondence. All questions must be received no later than Tuesday, July 13, 2010 at 4:00.PM. All responses to questions will be sent to all prospective bidders/proposers in the form on an addendum. NO QUESTIONS WILL BE RECEIVED VERBALLY OR AFTER SAID DEADLINE. 2.3. TERM OF FRANCHISE AGREEMENT The Proposer(s) qualified and selected to provide the service(s) requested herein (the "Qualified Proposer(s) ") shall be required to execute a Franchise Agreement ("Agreement") with the City, which shall include, but not be limited to, the following terms: A. The initial term of the Agreement shall be for five (5) years. B. The City shall have the option to extend the Agreement for up to three (3) additional one (1) year periods, at its sole discretion. C. Extension of the term of the Agreement beyond the initial period is an option of the City to be exercised in its sole discretion and does not confer any rights upon the Qualified Proposer(s). It should be noted that any Qualified Proposer(s) that is not renewed for any of the option periods, will not be allowed to operate within the City limits. 2.4. CONDITIONS FOR RENEWAL Each renewal of this contract is subject to the following: (1) Continued satisfactory performance compliance with the specifications, terms and conditions established herein. 2.5. MINIMUM QUALIFICATIONS OF PROPOSER(S) In order to qualify, Prospective Proposer shall agree to adhere to all requirements as set forth in the Franchise Agreement as it may exist, as specified in the attached Draft form, andin its final form. Additionally, prospective haulers shall meet all of the following minimum qualification requirements and provide any and all required documentation pursuant to the same. The following requirements shall be met by a Prospective Proposer in order to be deemed "qualified" to provide said services. Each Prospective Proposer: a) Shall agree to all terms, conditions, and provisions of the final Franchise Agreement, and agree to execute the same upon being deemed qualified. (See attached Draft of the Franchise Agreement in the Header/Notes and Attachments section of this RFQ, in the Oracle Sourcing System) b) Shall agree to adhere, at the time of application and at all times during the period covered by the Franchise Agreement, to all applicable Codes and Ordinances of the City, State and Federal regulations. c) Shall not owe, or be in arrears for any sum to the City and/or under any prior/existing Agreement, unless expressly approved by the City prior to the submission due date. d) Shall possess equipment capable of providing safe and efficient service, and have sufficient Page 24 of 34 Request for Qualifications (RFQ) 222246,3 personnel to perform the same. e) If an individual, or in the case of a firm, corporation, partnership, association or organization, any person(s) having any financial, controlling, or managing interest therein, should be of good moral character. fj Shall maintain proper insurance coverage as defined in accordance with Section 2.12, Insurance Requirements, of the RFQ. The City shall be listed as an Additional Insured for liability and all insurances must be approved by the City's Risk Management Department prior to execution of the Agreement. g) Shall complete in full and return, along with the RFQ response, the attached Attachment A. Attestation of Qualifications, located in the Header/Notes and Attachments Section of this RFQ in the Oracle Sourcing system, and provide all its required information and documentation, which shall, in part, be utilized by the City to determine qualifications. h) Shall agree to furnish 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, to the Purchasing Department within ten (10) business days after receipt of the Notice of Award and prior to final execution of the Agreement by the City. FAILURE TO MEET ANY OF THE ABOVE MINIMUM QUALIFICATION REQUIREMENTS AND/OR COMPLETE AND RETURN ATTACHMENT "A". ATTESTATION OF OUALIFICATIONS. MAY DISQUALIFY A PROSPECTIVE PROPOSER FROM PROVIDING COMMERCIAL SOLID WASTE HAULING SERVICES WITHIN THE CITY OF MIAMI. 2.6. PERMITS AND LICENSES The Qualified Proposer(s) shall obtain and pay for all licenses, permits, inspection fees or any other costs that may be required to perform these services. Damages, penalties, and/or fines imposed on the City for any Qualified Proposer's failure to obtain required licenses, permits or fines shall be borne solely by the Proposer. Additionally, copies of all licenses required to complete this work should be included with response to this RFQ. Any Proposer who submits a Proposal under this RFQ and is deemed qualified to provide Commercial Waste Hauling Services within the City of Miami jurisdictional limits, shall meet the City's Business Tax Receipt requirements in accordance with Chapter 31.1, Article I of the City of Miami Charter. Qualified Proposer(s) shall provide a copy of the City of Miami's Business Tax Receipt to the Purchasing Department within ten (10) business days after receipt of Notice of Award. 2.7. LEGAL REQUIREMENTS This RFQ is subject to all applicable federal, state, county and local laws, ordinances, rules and regulations that in any manner affect any and all of the services covered herein. Lack of knowledge by the Qualified Proposer(s) shall in no way be cause for relief from responsibility. 2.8. PERFORMANCE The Qualified Proposer(s) will be responsible for performing the work necessary to meet City standards in a safe, neat, and good workmanlike manner, using only generally accepted methods in carrying out the work, and complying with all federal and state laws, and all ordinances and codes of the City relating to such work. 2.9. WORK ASSIGNMENTS All work assignments during the Agreement period will be on an "as needed" basis, complying with notification requirements. The City offers no guarantee as to the number or frequency of work assignments under the terms of this Agreement. 2.10. USE OF SUBCONTRACTORS Page 25 of 34 Request for Qualifications (RFQ) 222246,3 The Qualified Proposer shall not, at any time during the tenure of the Agreement, subcontract any part of his/her operations or assign any portion or part of the Agreement, to Subcontractor(s) except under and by virtue of permission granted by the City through the proper officials in writing. Nothing contained in this RFQ shall be construed as establishing any contractual relationship between any subcontractor and the City. The Qualified Proposer shall be fully responsible to the City for all of the acts and omissions of any subcontractor and their employees for the performance of work under this RFQ, and for any acts and omissions of persons employed by Qualified Proposer. 2.11. ASSIGNMENT The performance of this Contract shall not be transferred pledged, sold, delegated or assigned, in whole or in part, by the Contractor without the written consent of the City. It is understood that a sale of the majority of the stock or partnership shares of the Contractor, a merger or bulk sale, an assignment for the benefit of creditors shall each be deemed transactions that would constitute an assignment or sale hereunder requiring prior City approval. Any transference without City approval shall be cause for the City to nullify this Contract. Any assignment without the City's consent shall be null and void. The Contractor shall have no recourse from such cancellation. The City may require bonding, other security, certified financial statements and tax returns from any proposed assignee and the execution of an assignment/ assumption agreement in a form satisfactory to the City Attorney as a condition precedent to considering approval of an assignment. The Contractor and the City each binds one another, their partners, successors, legal representatives and authorized assigns to the other party of this Contract and to the partners, successors, legal representatives and assigns of such party in respect to all covenants of this Agreement. The term "Contractor" shall have the same meaning as "Franchisee". 2.12. INSURANCE REQUIREMENTS INDEMNIFICATION Qualified Proposer(s) shall pay on behalf of, indemnify and save City and its officials harmless, from and against any and all claims, liabilities, losses, and causes of action, which may arise out of proposer's performance under the provisions of the contract, including all acts or omissions to act on the part of proposer, including any person performing under this Contract for or on proposer's behalf, provided that any such claims, liabilities, losses and causes of such action are not attributable to the negligence or misconduct of the City and, from and against any orders, judgments or decrees which may be entered and which may result from this Contract, unless attributable to the negligence or misconduct of the City, and from and against all costs, attorneys' fees, expenses and liabilities incurred in the defense of any such claim, or the investigation thereof. The Proposer(s) shall furnish to City of Miami, c/o Purchasing Department, 444 SW 2nd Avenue, 6th Floor, Miami, Florida 33130, Certificate (s) of Insurance which indicate that insurance coverage has been obtained which meets the requirements as outlined below: (1) Worker's Compensation A. Limits of Liability - Statutory - State of Florida Waiver of subrogation Employer's 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 Commercial General Liability (Primary & Non Contributory): A. Limits of Liability Bodily Injury and Property Damage Liability - Each Occurrence: $1,000,000. General Aggregate Limit: $2,000,000. (2) Page 26 of 34 Request for Qualifications (RFQ) 222246,3 Products/Completed Operations: $1 000.000. Personal and Advertising Injury: $1,000,000. B. Endorsements Required: City of Miami included as an Additional insured. Contingent and Contractual Liability Premises and Operations Liability Employees included as insured's. (3) Automobile Liability A. Limits of Liability Bodily Injury and Property Damage Liability Combined Single Limit. Including Owned, Hired, Borrowed or Non -Owned Autos Any One Accident: $1.000.000. B. Endorsements Required: City of Miami included as an Additional Insured (4) Umbrella Liability (Excess Follow Form) A. Limits of Liability Each Occurrence Limit: $1 000.000. Aggregate Limit: $1.000,000. (5) Performance Bond/Irrevocable Letter of Credit in the amount of $35.000 City included as obligee on the bond and sole beneficiary on the letter of credit. The above policies shall provide the City of Miami with written notice of cancellation in accordance to policy provisions BINDERS ARE UNACCEPTABLE. The insurance coverage required shall include those classifications, as listed in standard liability insurance manuals, which most nearly reflect the operations of the proposer. All insurance policies required above shall be issued by companies authorized to do business under the laws of the State of Florida, with the following qualifications: 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 Key Rating 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. NOTE: CITY RFQ NUMBER AND/OR TITLE OF RFQ MUST APPEAR ON EACH CERTIFICATE. Compliance with the foregoing requirements shall not relieve the proposer of his/her liability and obligation under this section or under any other section of this Agreement. --If insurance certificates are scheduled to expire during the contractual period, the Proposer shall be responsible for submitting new or renewed insurance certificates to the City at a minimum of ten (10) calendar days in advance of such expiration. --In the event that expired certificates are not replaced with new or renewed certificates which cover the contractual period, the City shall: (1) Suspend the contract until such time as the new or renewed certificates are received by the City in the manner prescribed in the Request for Qualifications. (2) The City may, at its sole discretion, terminate this contract for cause and seek re -procurement damages from the Proposer in conjunction with the General and Special Terms and Conditions of the Request for Qualifications. The Proposer shall be responsible for assuring that the insurance certificates required in conjunction with this Section remain in force for the duration of the contractual period; including any and all option terms that may be granted to the Proposer. Page 27 of 34 Request for Qualifications (RFQ) 222246,3 2.13. HOLD HARMLESS The Qualified Proposer(s) shall hold harmless and indemnify the City for any errors in the provision of services and for any fines, which may result from the fault of the Qualified Proposer(s) and as stated in the previous section entitled Insurance Requirements. 2.14. PRE-BID/PRE-PROPOSAL CONFERENCE None 2.15. CONTRACT ADMINISTRATOR Upon award, contractor shall report and work directly with Frederick Hobson, Director of the Department of Solid Waste, who shall be designated as the Contract Administrator. 2.16. PERFORMANCE BOND REQUIREMENTS - The Qualified Proposer (s) 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 Qualified Proposer's previous 12 month franchise fees paid to the City (including the annual franchise fee, monthly 24% franchise fee, annual per account fee, and any other franchise feof paid to the City) or a minimum of $35,000, whichever is greater, as security for the faithful performance Franchise Agreement. The surety shall have a rating classification of "A-" and a financial category of Class V as evaluated in the current Best's Key Rating Guide, Property Liability. City of Miami shall appear listed as obligee. In lieu of a Performance Bond, the Qualified Proposer 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, in a form acceptable to the City, shall be submitted together with four (4) original signed copies of the Franchise Agreement and an approved insurance certificate(s), listing the City as Additional Insured, to the Purchasing Department within ten (10) business days after receipt of Notice of Award, and prior to final execution of the Agreement by the City. NOTE: Performance Bonds placed under the current Commercial Waste Hauling Services Franchise Agreement # 03-04-107 cannot be rolled over or transferred to the new Commercial Solid Waste Franchise Agreement solicited through RFQ 222246. This is a new solicitation process and current and new franchise holders are required to meet the performance bond requirement. Once the new Franchise Agreement is fully executed, the performance bonds submitted under the Commercial Waste Hauling Services Franchise Agreement # 03-04-107 will be returned to the respective franchisees. 2.17. USE OF PREMISES The Qualified Proposer(s) shall confine his/her equipment, apparatus, the storage of materials, and the operation of his/herworkmen to the limits indicated by law, ordinances, permits, or direction of the project manager, and shall not unreasonably encumber the premises with his/her materials, The Qualified Proposer(s) shall take all measures necessary to protect his own materials. 2.18. LABOR, SUPERVISORS, EQUIPMENT AND MATERIALS The Qualified Proposer(s) shall furnish, at his/her own expense, all personnel, supervision, equipment, materials and supplies necessary for the satisfactory completion of the services specified in this RFQ. 2.19. EMPLOYEES ARE RESPONSIBILITY OF QUALIFIED PROPOSER(S) Page 28 of 34 Request for Qualifications (RFQ) 222246,3 All employees of the Qualified Proposer(s) shall be considered to be, at all times, the sole employees of the Qualified Proposer(s) under its sole direction and not an employee or agent of the City. All applicable taxes, fringe benefits, and training for all personnel for the performance under the Agreement shall be the sole responsibility of the Qualified Proposer(s). 2.20. FRANCHISE AGREEMENT Although the purpose of this RFQ is to secure an Agreement that can satisfy the total needs of the City or of a specific City agency, it is hereby agreed and understood that this solicitation does not constitute the exclusive rights of the Qualified Proposer(s) to perform all the services that may be generated by the City in conjunction with this Solicitation, when deemed to be in the City's best interests to establish a separate contract to provide said services. 2.21. LIMITED AGREEMENT EXTENSION Any specific work assignment which commences prior to the termination date of the Agreement and which will extend beyond the termination date shall, unless terminated by mutual written agreement by both parties, continue until completion at the same rates, terms and conditions as set forth herein. 2.22. DAMAGES TO PUBLIC/PRIVATE PROPERTY Qualified Proposer(s) shall carry out the work with such care and methods as not to result in damage to public or private property adjacent to the work. Should any public or private property be damaged or destroyed, the Qualified Proposer, at his/her expense, shall repair or make restoration as is practical and acceptable to the City and/or owners of destroyed or damaged property promptly within a reasonable length of time. (Not to exceed one month from date damage was done). 2.23. SAFETY MEASURES Qualified Proposer(s) shall take all necessary precautions for the safety of employees, and shall erect and properly maintain at all times all necessary safeguards for the protection of the employees and the public. Danger signs warning against hazards created by his/her operation and work in progress must be posted. All employees of the Qualified Proposer(s) shall be expected to wear safety glasses or goggles, appropriate clothing, and hearing protection when and wherever applicable. The Qualified Proposer(s) shall use only equipment that is fully operational and in safe operating order. Qualified Proposer(s) shall be especially careful when servicing property when pedestrians and/or vehicles are in close proximity - work shall cease until it is safe to proceed. 2.24. TERMINATION If Qualified Proposer(s) defaults in its performance under this Contract and does not cure the default within 14 days after written notice of default, the City Manager may terminate this Contract, in whole or in part, upon written notice without penalty to the City of Miami. In such event the Qualified Proposer(s) shall be liable for damages including the excess cost of procuring similar supplies or services: provided that if, (1) it is determined for any reason that the Qualified Proposer (s) was not in default or (2) the Qualified Proposer's failure to perform is without his or his subcontractor's control, fault or negligence, the termination will be deemed to be a termination for the convenience of the City of Miami. B. FOR CONVENIENCE The City Manager may terminate this Contract, in whole or in part, with or without cause, upon 30 days prior written notice. If this Contract is for supplies, products, equipment, or software, and so terminated for the convenience by the City of Miami the Qualified Proposer(s) will be compensated in accordance with an agreed upon adjustment of cost. To the extent that this Contract is for services and so terminated, the City of Miami shall be liable only for payment in accordance with the payment provisions of the Contract for Page 29 of 34 Request for Qualifications (RFQ) 222246,3 those services rendered prior to termination, 2.25. ADDITIONAL TERMS AND CONDITIONS No additional terms and conditions included with the solicitation response shall be evaluated or considered, and any and all such additional terms and conditions shall have no force or effect and are inapplicable to this solicitation, If submitted either purposely, through intent or design, or inadvertently, appearing separately in transmittal letters, specifications, literature, price lists or warranties, it is understood and agreed that the General and Special Conditions in this solicitation are the only conditions applicable to this solicitation and that the bidder's/proposer(s authorized signature affixed to the bidder's/proposer's acknowledgment form attests to this. 2.26. PRIMARY CLIENT (FIRST PRIORITY) The successful bidder (s)/proposer (s) agree upon award of this contract that the City of Miami shall be its primary client and shall be serviced first during a schedule conflict arising between this contract and any other contract successful bidder(s)/proposer(s) may have with any other cities and/or counties to perform similar services as a result of any catastrophic events such as tornadoes, hurricanes, severe storms or any other public emergency impacting various areas during or approximately the same time. 2.27. CHANGES/ALTERATIONS Proposer may change or withdraw a Proposal at any time prior to Proposal submission deadline; however, no oral modifications will be allowed. Written modifications shall not be allowed following the proposal deadline. 2.28. ADDITIONAL SERVICES Services not specifically identified in this request may be added to any resultant contract upon successful negotiation and mutual consent of the contracting parties. 2.29. ADDITIONAL QUALIFIED PROPOSER(S). It is expressly agreed that in no event shall the City be liable or responsible to the Qualified Proposer(s) 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, Qualified Proposer(s) 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. In addition, Qualified Proposer(s) agree that the City has the right to add additional Qualified Proposer(s), (in the event any of the Proposers are cancelled, terminated, or the Proposers 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 RFQ, to determine qualifications. 2.30. AUDIT AND INSPECTION RIGHTS The City may, at reasonable times, and for a period of up to five (5) years following the date of fmal payment by the Qualified Proposer(s) to City under this Agreement, audit, or cause to be audited, those books and records of Qualified Proposer(s) which are related to Qualified Proposer(s performance under this Agreement. Qualified Proposer(s) agrees to maintain all such books and records at its principal place Page 30 of 34 Request for Qualifications (RFQ) 222246,3 of business for a period of five (5) years after fmal payment is made under this Agreement. City shall have the following inspection and audit rights as provided in §18-101 and § 18-102 of the City Code: 18-101 . Inspections (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 of the city or any outside laboratory or special 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. (Ord. No. 12271, § 2, 8-22-02) 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 terns 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 officer, the city manager or the city commission. (c) Conduct of audits. Whenever 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 reasonable facilities and assistance, for the convenience of the city representatives performing the audit. (Ord. No. 12271, § 2, 8-22-02) The City may, at reasonable times during the term hereof, inspect Qualified Proposer's facilities and perform such test, as the City deems reasonably necessary, to determine whether the goods or services Page 31 of 3,4 Request for Qualifications (RFQ) 222246,3 required to be provided by Qualified Proposer(s) under this Agreement conform to the terms hereof, if applicable. Qualified Proposer(s) 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. Qualified Proposer(s) also agrees to allow City auditors, during regular business hours and after reasonable notice, to audit, inspect and examine the Qualified Proposer'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 Qualified Proposer(s) and customer and any other financial information deemed necessary, insofar as they relate to City accounts, as well as, the Qualified Proposer(s) entire customer base, in order to confirm the Qualified Proposer's compliance with the Franchise Agreement. Qualified Proposer(s) 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 Qualified Proposer(s) under reported gross receipts, and results in additional revenue due the Cityin the amount of $20,000.00 (per Fiscal Year) or more, Qualified Proposer(s) agrees to pay for the cost of said Audit. Upon audit notification, Qualified Proposer(s) agrees to deliver all financial information and books and records to within the City limits, if said information is maintained outside the City boundaries. Qualified Proposer(s) agrees to allow City auditors the right to copy any financial related source documents when deemed necessary, to substantiate an audit finding. Also, any Qualified Proposer(s) 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, Qualified Proposer(s) may retain their own outside CPA Firm to verify their claim. Qualified Proposer(s) / Franchisees must pay for the hours necessary to verify the work of the outside CPA Firm. 2.31. TRUTH IN NEGOTIATION CERTIFICATE Execution of the resulting agreement by the Successful Proposer shall act as the execution of truth -in -negotiation certificate stating that wage rates and other factual unit costs supporting the compensation of the resulting Agreement are accurate, complete, and current at the time of contracting. The original contract price and any additions thereto shall be adjusted to exclude any significant sums by which City determines the contract price was increased due to inaccurate, incomplete, or non -current wage rates and other factual unit costs. All such contract adjustments shall be made within one (1) year following the end of the Agreement. Page 32 of 34 Request for Qualifications (RFQ) 222246,3 3. Specifications 3.1. SPECIFICATIONS/SCOPE OF WORK The City of Miami (hereinafter referred to as "City") is seeking to qualify private commercial haulers (herein referred to as "haulers" or "contractors") to enter into city-wide Franchise Agreements (hereinafter referred to as "Agreement") to provide collection and disposal of all Commercial Solid Waste and recyclable materials, excluding biomedical, biological, and hazardous waste, to its commercial establishments and multifamily residences with four (4) or more contiguous living units, totaling approximately 21,000 accounts in 34 square miles. The RFQ includes garbage, trash, specialized roll -off and recycling services. Extra -ordinary material, unacceptable waste (acid, batteries, auto parts, excavating materials, construction and demolition debris, roofing materials, wood, pipe, steel, gas tanks, etc.), dead animals, abandoned vehicles/boats and parts, large equipment and parts thereto will not be collected by the hauler unless specifically required by the generator and agreed to by the hauler. The Agreement shall enable qualified haulers to provide these services within the City for the term specified in the Agreement. Contractor shall be responsible for seeking their own commercial accounts within the City. Page 33 of 34 Request for Qualifications (RFQ) 222246,3 4. Submission Requirements 4.1. SUBMISSION REQUIREMENTS THE CITY OF MIAMI WILL ONLY ACCEPT HARD COPY RESPONSES FOR THIS RFQ. PROPOSER MUST SUBMIT AN ORIGINAL RESPONSE ALONG WITH FIVE (5) COPIES. The following documents should be submitted as part of the Response to this RFQ. a) Copy of hauler's current Business Tax Receipt / Occupational License. b) Attestation of Qualifications form, Attact A, completed in full, signed, and notarized. (This document is located in the Header / Notes and Attachments Section of this RFQ, in the Oracle Sourcing System.) c) Submission of all documentation, as a minimum, as required in the Attestation of Qualifications form, Attachment A. d) Certification Statement and Certify ons section of the Request for Qualifications # 222246 solicitation document must be completed in full and signed. FAILURE TO SUBMIT REQUIRED DOCUMENTATION AND OTHER REQUIRED INFORMATION ON MAY DISQUALIFY YOUR RESPONSE resp Note: Prospective Proposers are not reauired to submit along with th their Performance onceond an executed copy of the Commercial Solid Waste Franchise Agreement. Section 2.16, indicates when to submit executed copies of the Franchise Agreement. 4.2. OPTIONAL REQUEST As part of this RFQ and as the City is receptive to new and innovative ideas, the City is providing the option for any Proposer to submit concepts or ideas that are innovative in nature and provide for more efficient commercial solid waste services. These innovative concepts could identify methods to accomplish the City's goals of better City regulation, to promote greater competition, innovative or innovative services and services to promote the beautification of the City and the health and welfare of its citizens. This section shall not create any obligation on the City to enter into any Agreement based on the innovative idea(s), nor include the idea(s) in the final Agreement. However, this information may, at the City's sole option, be considered and incorporated in any final Agreement. Page 34 of 34 GLENN MARCOS Chief Procureruent Officer CARLOS A. MIGOYA City Manager ADDENDUM NO. 1 RFQ No. 222246 July 22, 2010 Re • uest for Qualifications RFQ for Commercial Solid Waste Haulin • Services TO: ALL PROSPECTIVE PROPOSERS: oned The following changes, additions, clarifications, Contdractletions DocumentsnThed e remaining n ngcuments prov provisions ahe now in effee above ct and RFQ, and shall become an integral part of th remain unchanged. Please note the contents herein and reflect same on the documents you have on hand. The closing date and time for this RFQ has been extended. The new closing date and time is: • Monday, August 2, 2010 at 2:00 p.m. ALL OTHER TERMS AND CONDITIONS OF THE IFB REMAIN THE SAME. Sincerely, GM/Lyg c: Bid File Page 1 ein L. PC, CPPB, FCPM, FCPA curement Officer T-ttg GLENN MARCOS Chief Procurement Officer CARLOS A. MIGOYA City Manager ADDENDUM NO.2 RFQ No. 222246 July 30, 2010 Re • uest for Qualifications RFQ for Commercial Solid Waste Haulin • Services TO: ALL PROSPECTIVE PROPOSERS: The following changes, additions, clarifications, and deletions ocumehts. DThe remaining provisions are now in effect and amend the RFQ documents of the above captioned RFQ, and shall become an integral part of the Contra remain unchanged. Please note the contents herein and reflect same on the documents you have on hand. The closing date and time for this RFQ has been extended. The new closing date and time is: • Monday, August 9, 2010 at 2:00 p.m. ALL OTHER TERMS AND CONDITIONS OF THE IFB REMAIN THE SAME. GM/LWYg c: Bid File er Glenn Marcos, CPP-PPB, FCPM, FCPA Director/Chief Procurement Officer Page 1 LARRY M. SPRING Chief Financial Officer CARLOS A. MIGOYA City Manager ADDENDUM NO.3.......• RFQ No. 222246 August 4, 2010 Re uest for Qualifications RFQ for Commercial Solid Waste Haulin Services TO: ALL PROSPECTIVE PROPOSERS: uments The foliog win changes, additions, clarifications, and deletions amend the RFQ Documents. Words and/or doc ures stricken through shafteef the above d RFQ, and shall become an integral part of the Contract Docum remaining be added. The provisions are now in effect and remain deleted.chand. Please note the contents herein and d words and/or lreflect same on the documents you have on hand. unchanged. Please THE CLO SING DATE AND TIME FOR THIS RFQ HAS BEEN EXTENDED. THE NEW CLOSING DATE AND TIME IS: Friday, August .13,.2010 at 2:00 p.m. IN AFTER THE FOLLOWING MODIFICATIONS HAVE BEEN MADETO SPECIFIC SECTIONS OF THE RFQ HERE SOLICITATION DOCUMENT. Section :2:12, Insurance Re uirements, of the RFQ solicitation document has been modified as follows: (5) Performance Bondllrrevocable bLeantter sole Cbredit nthe amothe lunt ofr $credit. City included as obligee on the ond Section 2:16, Performance Bond Re uirements, of the RFQ solicitation document has been modified as follows: agrees to maintain, for theterm he Statethis soAFreement1 which shall Performance cuBond,execut d ThebyQualified company r (s) 9 y y a ety company dulyaa, end to do bus anual to the agent for the company, resident in the Staise feespaidto the City (including the annil be uai franchise fee, Qualified franchise previous 12 month p monthly 24% franchise fee, annual per account fee, and any other franchise fees paid to the City) or a minimum of $25100 4.9TOGG, whichever is greater, as security for the faithful performance ofotthc�Franc Franchise Agreement. The surety shall have a rating classification of "A-" bll and City of Miami category appear ss st V as s evaluated in the current Best's Key Rating Guide, Property y obli ee. In lieu of a Performance Bond, the ,Qualified proposer -may -submit an- Irrevocable -Letter of Credit, 9 cash, certified check, treasurer's or cashier's check issued by a responsible bank or trust companY payable to the City of Miami. na The Performance Bond, in a form acceptable to the City, shall be submitted e ertifi together witht four rt (4) oiigyi a l signed copies of the Franchise Agreement and an pp Additional Insured, to the Purchasing Department within ten (10) business days after receipt of Notice of Award, and prior to final execution of the Agreement by the City. Page 1 NOTE: Performance Bonds placed under the current Commercial Waste Hauling Services Franchise d te Franchise Agreement # 03-04-107ited cannot b22224fi This stransferred a new solicitation process ndCommercial cur ent and new f anchise Agreement sequire through RFQ holdersecutare required f tom meet the performance submittedbond under the Commercial the Waste Hauling Services Franchise executed, the performance bon Agreement# 03-04-107 will be retumed to the respective franchisees. IC SECTIONS OF E HEREIN AFTER THE FOLLOWING MODIFICATIONS HAVE BEEN GREEMENT. A REVISED RANCHIESEFAGREEMENT WITHHTHE COMMERCIAL SOLID WASTE FRANCHISE A MODIFICATIONS INDICATED BELOW IS ATTACHED HERETO AS EXHIBIT A. The title of the Commercial Solid Waste Franchise Agreement has been modified as follows: CITY OF MIAMI NON-EXCLUSIVE COMMERCIAL SOLID WASTE FRANCHISE AGREEMENT BETWEEN THE CI-TY-OF-MI-AMI-= AN D Page 1 of the Commercial Solid Waste Franchise Agreement has been modified as follows: THIS CITY OF MIAMI NON-EXCLUSIVE COMMERCIAL SOLID WASO by FRd NCHISE AGREEMENT (AGREEMENT"), made and entered into this __day of een the City of Miami, Florida, a municipal corporation organized and existing under the laws of the State of Florida, (hereinafter referredI" CTY ) 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 Z2non entitledGarbagee CommerOther Solid Waste, of the cial Solid Waste Services ehde to Comm�ercia allow regulatory permits for providing _- Franchises to qualified firms; and 'n the CITY; and WHEREAS, FRANCHISEE'h Franchise the CITY to provide Commercial Solid WasteCollection Services withinthe CITY as Section 2.2 under Article 11, DEFINE' of the Commercial Solid Waste Franchise Agreement has been Modified as follows: Agreement shall mean this -Franc-h-ise FRANCHISE AGREEMENT, as it may hereinafter be amended or supplemented. Annual Franchise Fee shall mean the yearly fee charged by the City to each -F Re ise- FRANCHISEE who operates within the City limits and collects garbage and trash. See Section 22-50(b) of the City Code. Page 2 e e ed Annual Specialized Waste Handlinee shall mean its and collects yearly rlyhee c a g g garbage. the e City toeach Section 2€ a 5 ise FRANCHISEE who operates within theCity of the City Code. Commercial Business shall mean and include.all retail,. professional, wholesale, and industrial.facilities and anyother commercial enterprises, for profit or not forprofit, offering goods or services to the public. This 15-1 of the definition incorporates by reference the definition of "Commercial Establishment" set forth in § Miami -Dade County Code. Commercial Hauler shall mean a licensed City of Miami 4anshisee FRANC E that operates within the City limits and provides certain services to Multi -Family and Commercial establishments including but not limited to the following; garbage, trash, recycling, roll -off, and specialized waste handling service, etc. C rh' on City -by -each - s Receipts remitted Franchise Fee shall -mean -the 2 monthly 56 b) o percentage he C ty Code, as amended. This fee mao the bebe amended or ad{usted by FRANCHISEE. See Sectioni the Ci from time to time b amend f i�ossotion of the receints •a alble as amended or�ad'usHedEE will aufoma'ttlalls and rees that the month/ ercenta e execute an endment ra I to this e reement and that the ationRtoN aH�suc ad-'usted--o-rSEE will rom l-amended fee as of-the-effeetivee-date-ef-- --reco nizin-the-FRAN&HISEE s obl or failure to execute the h or am. Failure to a suchFRANCHISEE FRANCHISEE shall be deemed as indefaultof this A• reement addendum or amendment to this Agreement ursuant to"ArticleIX. -Should a default occur "ursuant to Article IX' alien this A reement will be terminated pursuant to Article X. ebit or redit, Gross Receipts shall mean all and monies,whether the FRANCHISEE'Said by cash, check, egularccourseollected from customers of business and trade resulting from all -transactions and including garbage, industrial, solid waste, used cooking oil waste, portable toilets and sanitation, trash,quinter, environmental charges and fees, containerized construcon and environmental e oofingces materialsr)'equipment maintenance, and ,leasing,pfuel surcharge, , maintenance, compactors, refuse and/or rubbish rellatedodir directly indirectlyd faom waste colll services dered, hand ection services, collection, recycling,oor forom any oh including, without limitations, all incomederived toldfrom /--off trucks,ntgrailedrsrerol{ ofPsr boxedanglfamedle S fenced onal property, or the use of dump trucks, grappling trucks, chutes, and any other vehicles and otherwise designated storage areas, etc., containers, bagsters, slams equipment whether -wholly used for collection and disposal lltad -w th nny therCITY,.Iess bad .debts. Gross Receipts shall not incude . .- .. is by the FRANCHISEE, exclusive of taxes as provided --by -law-, whether wholly or -partially collected income derived from the transportation, storage, treatment, collection, and removal of biomedical, biological, or hazardous waste as herein deft nd Permit Per Account Fee shalt mean theual thathisrge acqui acquirthe City ed a throughout the Fgii___Thirl_g each iscal Year,er 1, +tor C ,for each new account and roll-offfor the provision of commercial solid waste FRANCHISEE, ' services. s Specialized Waste Handling Services clud nshall mean the but not I mtecollection wh to goods, wa t tires used oste hl,tleadua fd baspecial handling and management n 9 batteries, construction and demolition thats e In hebiomedical --off colle aionob us'nessical aand doste. t not collect should garbage.noted that these are �� FRANCHISEES garbage. Section 3.1 under Article Ill, GRANTEE, of the Commercial Solid Waste Franchise Agreement has been modified as follows: with related The CITY grants unto the FRANCHISEE the continued non-e= sive on, right aandnd aprossege, present and obligations, to provide commercial solid waste ubl cNrf hts-of--way under, and other public places the CITY future streets, alleys, bridges, easements, p g laceswithinreligious, boundaries, present and future, for contracted multifamily, commercial business, governmental, educational, profit and non-profit agencies and/or property owners for solid waste collection and disposal services. Page 3 Section 3.2 under Article 11I, GRANTEE, of the Commercial Solid Waste Franchise Agreement has been modified as follows: The CITY further grants unto the FRANCHISEE services for nstve t ght dand pifivilegeanrenovation with related sobliigatio , to provide solid waste collection an.d disposal within the CITY on a contracted basis. Section 4.5, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise Agreement has been modified as follows: In cases of natural or man made disasters, the City Manager may grant the FRANCHISEE reasonable variance from regular schedules and routes. able effortsnas a to secure itsaconta ners n order to of an emergency fpr vent hazards s issued by the Mayor, FRANCHISEE shall make yeast - 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. Section 4.11, under Article IV, .OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise Agreement -has -been -modified -as -follows: ---- FRANCHISEE agrees to strictly adhere to the provisions of Section 22-46 and Section 22-93, asyamended, of the City Code which states it shall be unlawfulbeor any tween FRANCHISEE hou sof 11t00 p.m. and 7 00 a.m., to strictly commercial property within 100 feet of a residential district adhere to any other terms and provisios of thisAgreement of Solid Wasterfied in the Notice -of Violation, except,an only as determined by the Director of theDepartment Each Fiscal Year (October 1, through September 30), the amounts assessed for non-compliance of this section will be as follows: 1st Non -Compliance: $ 250.00 2"d Non -Compliance: $ 500.00$1,000.00 3rd Non -Compliance: Each Additional Non -Compliance: $1,000.00 d FRANCHISEE agrees to com•I with .SFation 15 mil and fthe Commea Commade Count Code ercial establishments are- re•Iuited to.litl initiate Waste o - Mane dfln. ero a amended. _-All - •ro. E. rec cline •ro•ram. The rec clip• 'f0eram c clinoallro•eam shall cause lacdefaut nitthisfMiami a•reemenAu suantto Failure of FRANCHISEE to •rovide a Article IX. failure to cure said default ma result in termination of said a reement ursuant to Article X. Section 4.11:2, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste"Franchise Agreement has been modified as follows: -- a Page 4 u —u th terms of this A reement he followin For an other failure to comol a`'�ienate for he violations of the Atreement as s eeified in the Notice of li unts will be due as uidated dame es and not as Violation. —First-Violation: Second Violation: Third Violation: Each Additional Violation: These amounts are established for the failures b A. reement. It is not the intention of the Cit A•ree t unless the 20% damages suffered b dama are of a recurring or continuin $ 250-00 $ 500.00 $1,000.00 $1,000.00 the hise FRANCHISEE to com to assess the entire amounts for minor failures to com nature . The Cit men of the amounts set forth in this section for minor failures to com the Cit es due at the time of the violation. Section 4.11.3, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise Agreement has been removed and incorporated into Section 4.11.2. -- - - I with this with the ef-V'ie4atiet�- 0 cannot be known or ascertained and these amounts re reserves the ri•ht to assess twent .I with the A•reement. The exact resent iiauidated Section 4.12, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise Agreement..h.as..b.e_en modified as follows:......_ _. 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, accounts in arrearwhich and will FRANCHISEEeseeeks remedadvise courtif ddec accions s cin arrears. Should accounts collection mlection a•encies •udents mediations all heardin etc. and/or mit eetm sl f receivefrom ration.rAlsotluponllresumed cted its applicable fees and notified of an Department of Solid Waste. FRANCHISEE shall service, FRANCHISEE agrees to immediately notify the furnish such notification(s) as are provided in Section 5 22-2, of the City Code.- Section 4.13, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise Agreement has been modified as follows: 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. If the City identifies an illegal container placed oviding Commercial Solid and operating within the City limits by a non -licensed he City confiscateercial ler who is said container and assess charges for Waste Service without a Franchise from the y, man-hours, equipment, disposal and administrative costs and fines. Se ction 4.15, under Article IV, OBLIGATIONS OF FRANCHISEE, of the Commercial Solid Waste Franchise Agreement has been modified as follows: by the At least annually (October 1) and as determined { the following by on a Director of the Department of Solid Waste, each FRANCHISEE shall supply diskette, compact disc, or other acceptable format and in the manner prescribed by the Director of the Department of Solid Waste: (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 ofMii each City which of Miami cohand llectionstomerof bags/cans is provided. (4) An accounts receivable aging port for (5) A listing of City of Miami accounts that were charged off as bad debts. Section 5.1, under Article V, FRANCHISE FEES, of the Commercial Solid Waste Franchise Agreement has been modified as -follows: FRANCHISEE agrees to pay all applicable fees as contained and defined in Chapter 22 of the City Code, ARTICLE II -DEFINITIONS of the Franc�ise ogreement and the ad'usted from time time bnchise grthe enactment ofin its rCy, within Code specified time frames, as ma be amended amendments as referenced in "Franchise Fees" in Article II of this A reement. Section 5.2, under Article V, FRANCHISE FEES, of the Commercial Solid Waste Franchise Agreement has been modified as follows: FRANCHISE FEE: FRANCHISEE agrees themit Citymonthly the CITY, twenty four percent whichever is greater.4o) of its Gross Accomp Accompanying Receipts, generated from accounts withinschedule of the remittance, FRANCHISEE must provide the ClTY with a list of the customers' names, addresses and total amount collected.ccout FRANCHISEE swhich ch must be retained for a period of 60 months from the end of agingrees to maintain a second list which reflects an e Agreement individual account e at four percent (24%) of the total amount collected and made available at all times to CITY auditors. Twenty • •should -equal -the -remittance amount paid to the last City ° of each month. he .remittance of the Failureptoorem byhthe last .day ofothe be received by the CITY on or before the la y percent following month will cause the FRANCHISEE excess of 60 days, the lfDepartment5of%)SofidalWaste will initiate on the its balance due. If payment is ast due i and owing the to City, including ole the FRANCHISEts.Itshould be notednd attach hthe twente y-four Performance Bond for all monies due and monthly to the City, swing the calculated late do g It s. It sho should be calculated on all monthly gross receipts, collected from thederived customfe customers, exclusive ,aof biological, and the hazardous removal, as defined in the Agreement franchise fees. The gross percentage fee underapplyto franchises engaged solely in Page 6 thissection does not om t this fee b biomedical, biological, the Cit hazardous Code. FRANCHISEE acknowledmes it shalltime be oblitime ed to.a such fee as ad usted • 22-56 of th ad'usted or amended as of the effective •date of such le islation and will rom tl execute an addendum or amendment affirmin the fore oin Section 5.8, under Article V, FRANCHISE FEES, of the Commercial Solid Waste Franchise Agreement has been modified as follows: Safety Inspection Fee:Fifacish4ee FRANCHISEE agrees to pay the City an annual $500.00 per vehicle inspection fee. This is a regulatory fee as referenced in Section6.221, Florida idwStatutes. tes. This The fee isfor the municipal inspection of the vehicles being used by s=e FR _-----EEthitheInspecthe tion of each vehicle will occur not less than on an annual basis. These are vehicles that are used by e -FRANC—HI-SEE-to .operate -within the City boundaries: Thevehicles will -include; but"are not -limited to, -roll -offs, - dump trucks, trailers, and any other vehicles used for grapple trucks, front and rear end loaders, vactor trucks, dump FRANCHISEE. � FRANCHISEES business, collection and disposal of any debris by the ----- 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. Section 7.2, under Article VII, INSURANCE AND BONDS, of the Commercial Solid Waste Franchise Agreement has been modified as follows: FRANCHISEE agrees to maintain, for theterm in the State oEFfor�da, T, a whchoshall be aounterexecuted by an. surety company duly authorized to do business equal to the for the company, the Florida. pad to the CITY (including the annualfranchise FRANCHISEES fee, previous 12 12 monthfranchise fees monthlyh2of franchise fee, QOannual whichever is greateraccount , as and for the faithful performaranchise fees nce of{the Franchise Ahe City) or a G minimum Ef r $25. a financial category of Class V as AGREEMENT. The entsrety Best'sl KehaVeY Rating Guide,a rating sPropertyoLiability.ndIn lieu of a Performance Bond, the evaluated in the currrent K treasurer's or cashier's check FRANCHISEE may submit an irrevocable letter of credit cash, certified ic The Performance Bond shall be issued by a responsible bank or trust company payable to the CITY of Miam 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. Section 10.-2, -under- Article X, -RIGHT=TO TERMINATE-ANDIOR TRANSFER AGREEMENT, of the .Commercial Solid Waste Franchise Agreement has been modified as follows: If after notice of default has t -r h' the sent FRANCHISEE is in well have tfault he option of traowes sums nsferring the rights sunder that FRANCHISEES been sent to FRANCHISEE, the City AGREEMENT to a third party. That right to transfer the rights under that FRANCHISEES 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. Section 11.2, under Article XI, NOTICES, of the Commercial Solid Waste Franchise Agreement has been modified as follows: Copy To: - City of Miami Director, Department of Solid Waste Director's Office 1290 NW 20th Street Miami, FI 33142 Section 14.1, under Article XIV, COMPLIANCE WITH FEDERAL STATE, AND LOCAL LAWS, of the Commercial Solid Waste Franchise Agreement has been modified as follows: FRANCHISEE understands that agreements between private entitiesFRANCHISEE governments op ati ss red services, so certain laws and regulations, including laws pertaining to .-tee ----and observe — public records, conflict of interest, record keeping, etc. FRANCHISE Codes and O dimEE agrees to ly withy as applicable tlll applicable Federal, State, County and City laws, rules, reg FRANCHISEE and its operations and services, as they may be amended from time to time. Page 7 Section 21.1, under Article XXI, ADDITIONAL QUALIFIED PROPOSERS, of the Commercial Solid Waste Franchise Agreement has been modified as follows: In addition, Qualified Proposer(s) agree that the City .has the right to add additional qualified ophoposer , (line n the to event any of the Franchises are cancelled, terminated, or the 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 RFQ, to determine qualifications. -HEREIN-AFTER.THE FOLLOWING -ARE -ANSWERS -TO -QUESTIONS SUBMITTED -BY PROSPECTIVE - • . - PROPOSERS: Q1: On July 26, 2010 at 2 pm, Prospective Proposer has to submit Attachment A RFQ 222246 plus 5 copies. What else does a Prospective Proposer need to submit (fingerprints? What about the Request for Qualifications -submitted -back -in -May, —is -that -still -good?) Al: Prospective Proposer shall refer to Section 4.1, Submission Requirements, of the RFQ solicitation document, for a list of documents that should be submitted as part of the -response to the RFQ. On Monday, June 28, 2010, Proposers who submitted a response to RFQ 198160 for Commercial Solid Waste Hauling Services were notified of the City Manager's decision to reject all responses received. Additionally, Proposers were allowed to visit the City's Purchasing Department to pick up all response copies and original fingerprint cards submitted under RFQ 198160. Original fingerprint cards submitted in response to RFQ 198160 may be resubmitted in response to RFQ 222246. • Q2: Prospective Proposer has a general hauler permit with Miami=Dade, Miami Beach and several other municipalities within Miami -Dade County. As such Prospective Proposer is interested in being allowed to offer Prospective Proposer's services to the City of Miami. Prospective Proposer has roll off containers and primarily works for General Contractors hauling the construction and demolition debris from specific job sites. Prospective Proposer does not Haul Solid Waste or household garbage. Prospective Proposer's question to the City is: Is this the contract that Prospective Proposer needs to -be bidding on in -order to -be allowed -to provide services within the .-City?-If.it_is not, would the City be able to direct Prospective Proposer as to how Prospective Proposer can provide services to private General Contractors within the City. A2: Yes. Prospective Proposer must submit a response to Request for Qualifications No. 222246 if Prospective Proposer is interested in providing hauling of construction and demolition debris within the City of Miami jurisdictional limits. Should Prospective Proposer be deemed unqualified or does not respond to RFQ 222246, Prospective Proposer will not be allowed to operate within the City of Miami jurisdictional limits. Additionally, Prospective Proposer runs the risk of having their roll -off container confiscated from the job site by the City of Miami and paying a large penalty to the City for the release of the roll -off container. in this Q3: Page 3 [Page 4 ofe the revised Franchise Agreement, Receipts" iincorporated ncludes sourcesr"relat d indirectly to waste um] of the Franchise Agreement, definition of collection services". The "indirectly" portion is confusing as to its limitations. For example, in the case of a building with a compactor and a chute (incorrectly referenced as "shoots" in the definitions) .and .a. built-in_.high-rise-_r-ecyclinglsolid..waste. system that an integral _,part,.of, a.,building., which components, aside from the obvious collection and disposal, would be subject to franchise fees? How will the City effectively collect franchise fees from compactor manufacturers that are NOT commercial haulers but still lease directly to building owners? The fact that these manufacturers are NOT commercial haulers would seem to give them a competitive advantage over the licensed haulers that are paying franchise fees and contributing in -kind services, which seems unfair. A3: There are no limitations on monies collected indirectly from waste collection services, by the Commercial Hauler/Franchisee. Therefore, each Franchisee must include all revenue that is received, directly or indirectly, Page 8 and include this revenue when reporting monthly gross receipts to the City. Compactor manufacturers that lease equipment directly to building owners are not subject to the City's Franchise Fees at this time. Q4: If recycling is not included in gross receipts, what about compactors and equipment used solely for recycling? es a customer for A4: Recycling s and/or ise included ihaharedefinition used solelyrfo Srecyc recycling, said charges Franchisee will be subject to the City's compactors and/or equipment t Franchise Fees. Q5: Please clarify intent of participation in "Neighborhood Cleanups", particularly in light of the fact that commercial franchisee's work typically includes primarily collection of containerized service. A5: -- - - As defined -in-- Section 2:2 of the franchise Agreement; -"Neighborhood- Cleanups" are to -provide-"per-iodic - ial from a intensive e removaleof litter, debrisNEofficesanand/or recognized er solid waste rcommunity based designated organizations orCity, associations approved by the City, its NE including special event activities citywide." All Ft require the Franchisee provide trash pickups in roll offs, orthe euse of garbage containers, orrecycling might require the Franchis p containers/bins etc., including the final disposal. lease clarify if there Q6: Sectionreay 4.2c p the Franchise Agreementlsothep tentrts one time per week is a minimum of twice pelr week or more. (Otherwise, it are any exceptions to this, and also if may be argued from the current language that every other week service or even monthly service is not prohibited). A6: one Multifamily residential unitst aWhi e the nud mberes ofpickups (basically var es basedestablishment on the numbe of units,) thecannot minimum one time per week service.the City's Department of Code weekly pickup is twice per week. All other businesses will be monitored, by Y p Enforcement, for adequate container size and service minimums.. ITY buildings ies as Q7: Please provide a t o 4.7.h service e rthese assigned based on proportionvels of all Co NUMBER of accountsrtOR on referenced in section 4.7 proportion of REVENUE as determined by franchise fees paid? s A7: The City of Miami Department of Solid 7 aste is of he Franchisiy updating e Ag eementeSaid list list wh alabe providedresses of iitoCall Proposers_ and properties", pursuant to Section 4. will be qualified after to FraFranchnchisee sse ement is percentagle of totalted by the co contracted coy. In -kind service mmercial mmerc al accountswithin i h n the City be made proportionate theto police and fire stations, etc. limits. The City facilities can include buildings, parks, Q8: Section 4.11.2 of the Franchise Agreement lists itcou n t attempting codes d ootineial fines to al PROPERTY or OWNERS. Is it correct to assume then that the city the fact for property owners that refuse to initiate recycling programs? This should be the case, given commercial haulers do not have any municipal authority to enforce the county's ordinances. an AB: Section 4.11.2 has been revised as indicated in this Addend m. The Cyis nob t attempting 15 of to fine Nne r a chisee s for property em. owners who refuse to initiate a recycling program. requiredY County Code, entitledgSolid Wheste enforaceme t of this requirement extendsa oilall structures f required to initiate a reycling bprogram; provide establishments, aents, Franchiseeisbe unwillingconstitute and/or default in the Franchisee's yagreement to dance with Section 9.1ily establishments, this will con which may lead to termination of the agreement in accordance with Section 10.1. Q9: If a commercial hauler pays the $8,000 annual fee, is it still obligated to pay the $4,000 specialized fee (sections 5.4 and 5.7)? A9: PursuantEEfto Sectionis 5pf thca e Cto a "FRial Solid ANCHISEE SEEaste Franchise Agreement, the "ANNUAL FRANCHISE that performs ONLY Commercial Solid Waste Services FEE" of $8,000 only applicable andServices FRANCHISEE that performs NQT apply Commercial o FRANCHISEE that performs ONLY Specialized Waste Handling Services [...] This fee does NQT pp Y Services. Page 9 rding e Additionally, Section states the following t rega h"Annual ecialized Waste Handling Fee"of $4,000: "This fee applies to a FANCHISEEthat ONLYperformsSpecialzed Waste Handling Services within the City limits." The following table is for guidance purposes only, to further understand Section 5.4 and 5.7 of the Franchise Agreement: Annual Franchise Fee Annual Specialized Waste Type of Service $8,000 Handlin Fee: $4,000 Commercial Solid Waste Specialized Waste Handling -Commercial --Solid- Waste . an Specialized Waste Handling „ [Page 4 of the revised Franchise Agreement, i (�15; The definition of "Gross Receipts on. page 3 � g ment .now exp Y incorporated herein this Adendum dof—the ranchise Agee "environmental waste services (vactor)" u iotbe includede new innt, effective the_definition, October 1, and the�refo0re ls this a already change, or was vactor -already considered_ subject to franchise fees and other licensing requirements under the current agreement. of Al 0: Environmental waste services (vactor) was not clearly defined in RFQ the of n0ion 10 Gross Receipts in the current Franchise Agreement, for Commercial Waste Hauling Services, tions to the "Safety Inspection Fee" for vehicles that may only be used Q11: Are there any exce P infrequently in the City of Miami? All: No, there are no exceptions. The safety inspection is for all vehicles that are to be used within the City limits, whether full-time, part-time or infrequently. Q12: Will the city consider including s a di the reduction provision in the currrent agreement helps, reduce needlesslyl s for franchisees that make timely payments and are in good standing? (This p --excessive expenditures -on bonding for -firms presenting little to no risk of default, and ass , ultimately can benefit the city's customers). anchisees Al2: No, the City will not consider including the reduction in bond Reductionts for Clauserwas removed tfrom the make imely new payments and are in good standing. The Performance Commercial Solid Waste Franchise Agreement attached to RFQ 222246. on Q13: f the Franc that franchise feeshare be revised ough to customers (much like sales to include Section 5.2 (along with section ) 5.6 eas written) iin the Franchise pricing. should therefore to oul Commercialntbpenalized ea ized when municipalities ulers do not "charge" rlevy increases that are beyondt" them, and the haulers' therefore they should not be pen control. A13: Section 4.13 has been revised as indicated in this Addendum. Q14: Proposer's response submitted under RFQ 19 160 did not five include theof as well? Solid W ste Franchise Agreement. Is this something thatthe City doing this again if it's only a draft? Should Prospective Proposer wait until it's not a draft? A14: Prospective Proposer is not required to submit an executed copy of the Commercial Solid Waste Franchise provided as a sample ofAgreement the f proposal li be executed between themittal. The "draft" chise Ci y andeement is the Qualified Proposers, Prospective f the type of agreementr Proposer shall refer to Section 4.1, Submis of the res I onse tos, of the the RFQ. RFQ solicitation document, for a list of documents that should be submitted as part p Page 10 TheR or id Waste ing Services reason the City re -issued the deeto thefCommmQualifications Franchiser olAg eement Pleaiease refer to wasas due to additionalIrevisions Question 29 for a summary of the changes made. Q15: CASH BOND pick -up truck, the thirty five thousand dollar ($35,000) bond is As a small hauler, running one (1) EXCESSIVE and prohibitive to small business owners. Can this be adjusted UP or DOWN to a reasonable amount on a case by case basis?on a case y A15: The as performance bond requirementscannot be adjusted up or down to a reasonable must comply with theperformance bond requirements stated in case basis. Every Franchisee (large or small) Section 2.16, Performance Bond Reauirements, of the RFQ solicitation and Section 7.2 of the Franchise Agreement as amended through this Addendum. Q16:- - COMMERCIAL DRIVER'S LICENSE ..- - -- -- ' -- - As a junk removal company, that has one (1) pick-up truck operating with a Gross Vehicle Weight (GVW) under the limits for Commercial Drivers License, can this requirement be waived? MS: This requirement cannot be waived. -Q17:—FRANCHISE-FEES• - As a small hauler, the 22% of GROSS RECEIPTS or $500.00, is an unfair burden on a business that runs one (1) pickup truck. Can it be limited to 22% of GROSS RECEIPTS? ective A17: Pu rsuant to Section 5.2 of the Commercial.Solid Waste FranchiseAgreement, prosp generated fromProposer hall note that the Franchise Fee is now "twenty four percent (24%) o its Gwithin City limits, or $500.00, whichever is greater." Therefore, annot be changed.remittance of 24% of gross receipts or a monthly remittance of $500, whichever greater, Q18: FRANCHISE ANNUAL FEE year on the same percentage increase for Commercial The Franchise Annual Fee should increase each Solid Waste as Special Waste Handlers Services, not on a dollar -figure each year. The Commercial Solid Waste Services 1st year fee is $7,500 and-2nd year is $7,750 a increase of 3.33%. The Special Waste Handlers Services 1st year fee is $3,500 and 2nd year is $3,750 a increase of 7.14% A18: Section 5.4 will not be modified. Pursuant to Section 5.ote Solid Waste Franchise Agreement, the new Annual Franchise Fee for Franchisees who provides Commercial Services ob tt, ng_Services, is ase . - . .-Commercial Solid Waste Services AND Specialized on 5.7 of the Franchise Agreement, FranchiseesODO,ew shall rovider only annually by $500.00. Also, pursuant to Specialized Waste Handling Services, shall pay $4,000 annually, which shall increase annually by $500.00 This increase not based on a percentage basis, but on a set fee of $500. Q19 SPECIAL WASTE HANDLERS SERVICES Prospective Proposer uses one (1) pickup truck and multiple dump trailers to collect junk frin om business on a one time basis: All of ouvehicles have the junk isFbeing lorida Irem vedicense lby aalicensed vehc le public parking spaces or private property. Since I to my business model? rather than a container would the FRANCHISE apply A19: Every aspect of the Franchise Agreement would apply to your business model directly. Also, the use of Prospective Proposer's pick-up truck(s) and dump trailers, would be subject to all the rules and regulations as stated in the Franchise Agreement. Q20: EXCLUSIONS - GENERAL HAULER PERMIT Does a DUMP TRUCK collecting material from ee n or out of a newmolition site ibushn ss regureSa FRANCHISE? , HAUL. truck. getting_loaded with trash froma mo _.� City What about a small contractor loading his constructiondebris erhicle within City ofeMiami slim' its justify is a the business that does $500 to $1000 a month with a licensedare a the expense of $3,500 annual fee 1st year and $6,000 in monthly fees? Can the city prepare fee and a similar to Miami Dade County's General Hauler that is $500 per year plus a p Franchise Fee on revenues from material collected with Miami Dade County limits? A20: At prepare anyother type of license other than the new Franchise Agreement. All the examples time, the City cannot xamples of companies hauling debris, would be subject to the City's Franchise Fees. If a company. is Page 11 . . found operating in the City without being a licensed City Franchisee, the company would be subject to fines, penalties and costs related to confiscation of container(s). A small hauler interested in operating as a City Franchisee, must weigh the costs involved in becoming a Franchisee against the revenue income, to ensure sound business decision is accomplished. Q21: Prospective Proposer is requesting that the City of Miami provide a new pre -response meeting for the waste haulers regarding the new RFQ. Waste Hauling Services (RFQ No. 03-04-107) expired s A21: The City of Miami is unable to accommodate atthis time a pre -proposal conference for RFQ 222246 sincee the current Franchise Agreement for Commercial submit any ues ons2010. Pursuant to Sviaema I or fax to hion 2.2 of Q222246, Prospective e attention of Y sbel Gonzalez ez by Tuesday, July 13, submit any questions or clarifications 2010 at 4:00 PM. - Q22: Section 5.8 of the Franchise Agreement adds a redundant fee for the haulers to absorb. The legally required U.S. Department of -Transportation current Federra] ons standa and frequent uent random road inspections ensure our vehicles are mechanically fit to the ed in Section 166.221, Florida Statutes. This fee is A22 As-stated-in-Section-5-8—Safety-Inspection-ee,—of-the-C-oinmercial-Solid Waste-Franchise-Agreement,—t- e "Safety Inspection Fee" is a regulatory fee FRANCHISEE within the City."Therefore, the City forwil l the municipal inspection of the vehicles beingg referenced used by Operate be performing its' own Safety Ihspectiori for vehicl�os those at spectiotnsnthe City perfo performed bysthehUSltDepartmenteof this Safety Inspection Fee adds a redundant fee Transportation. • proposed Q23: Regarding Section 5.8, Safety Ins pCees not authoof the rizedabyhise Federal LawenundereSect"on 49 $500CFR charge per he US for City inspectionsortation - Federal Motor Carrier Safety Administration is CFR 396 et seq. The US Department of Transportation are the only agency authorized to certify the safety of the annual vehicle inspection Cityhe vehicles involved. The inspectors required rby 49 limited to verifying that the vehicles have a copy or reasonable and not authorized by Section CFR 396. As such the proposed $ 500 is not customary ass to this charge it is unreasonable, and it has been 166.221 Florida Statues (2010) because as it p preempted by Federal Law. performing their own safety A23: The City is not preempted by federal law Section 49 CFR 396, et seq, from p inspections. Section 49 CFR 396.234 expresslystates that the requirements of 38 96.17 (a) A motor carrier or an intermodal equipment provider may meet q the motor ribe n through a State or other jurisdiction's on roadside dlnl using tthe poadside inspection, the must have been r performed during the preceding intermodal equipment provider would need to retain a copy of an annual inspection report showing ith minimum c on that the inspection was performed in accordance motorJcarriee operating thei�o'mmec ial'vehicle standards the forth in appendix G to this subchapter. 1 on party to the responsible for itsymaintenance,aimmanner. Before accepting such an inspection report, the report the responsible party in Y motor carrier or intermodal equipment provider must ensure that the report complies with the requirements of 396.21 a . on (b)(1) If a commercial motor vehicle issubject asbeffective mandatory Cory State the' motoricarpergram which is or n intermodal determined by the Administrator to b17 equipment provider must meet theumayebe condnt of o acted through State tperso{nnel, lat State aupthorized Commercial motor vehicle inspections _ .commercial facilitLes, or,bY_the motor -carrier or intermodal,equiprneni-provider itself_under.the auspices of a State authorized self -inspection program. (2 e program, rSam, the Fe deral Motor Carrier Safety Administration (FMCSA)r1ddeterminer or m that equipment inspection pection ider program, in whole or in part, is not as effective as 3� 96.17, the motor car must ensure that the periodic inspection required by 3§ 96.17 is performed on all commercial motor vehicles under its control in a manner specified in 3� 96.17 Page 12 The statute makes it dear that a motor carrier is entitled to meet the requirements of the state thawt is an performing their roadside inspection program; it does not need to defer to the federal law, provided on the effective as the federal inspection be ograin c mp�iance important to note the state thatthe burden county motor*carriere laced inspection recyclable material collector to requirements. Additionally, There is no a violation of the commerce class by granting an exclusive franchise agreement to aste Systems, LLC v. The City of Coral Springs, garbage or recyclable material collections. In Soutyears, it haern ts been settled law that garbage collection and disposal the court very recently held that: Ifjor ninety y provide garbage pick-up is a core function of local government in the United closely States.regulated At rpry ate cities to provide those services... to their citizens directly ... or they may rely Y_ .Tee Commerce Clause forbidsc ire the wherby local ci y sel cts interests economic onw waste hauler to provide basic does not forbid exclusive franchise agreements was iremenctha local inte•re tssbe[favored in the performance doft e contract 687 F. Supp. 2d 1342, 1353 (S.D.re a. t that This interests ts (S.D. Fla. 2010). This case, attached hereto as Exhibit B, recognizes you can have a non-exclusive franchise for recoverable materials which was part of a garbage collection franchise. The City is enfifldd to charge reasonevfees aste managemelntganfaci ity specified by the county shall not be greater solid fees charged to municipalities at a .in Section than ge_feet charged other n usersacount the basis shall be used to fund solid waste manag5ementlld waste services management fees collected on a Y�+' provided countywide". Section 403.709 (1), Florida Statutes. sor the Q24: Section 4.13 of the Franchise Agreement would require the e Fn hihi ee to to absorb the 2% Franchise e would increase indicated in Section 5.2 since by accepting only be permitted to increase the Annual per account Permit Per Account Fee indicated in paragraph 5.6 and not the Franchise Fees Increase indicated in 5.2 A24: Section 4.13 of the Franchise Agreement has been revised as indicated in this Addendum. 425: The same requirements for public hearings adopting Changes to Chapter 22 of increases by way of annual the City Code of Ordinances ( Garbage and Other Solid Waste ) are applicable to any franchise fees, per container fees, equipment leasing fees and any other fee increases to those already in existence —by --virtue of the current -Franchise Agrer ement- and- recordth t Chapter s 22 of -the City Code on of Ordinances. It should also be pointed leased equipment, the State of Florida is the only taxing authority entitled to collect sales and lease taxes and not local counties or municipalities like the City of Miami. ation from A25: The City Code provides a additional minimum guideline reasonabledoes not operational standards and/orude the fees in conducting supplementing City those guidelines with additional business. Also, the City is not collecting sales and lease taxes on leased equipment. Pursuant to Section 2. 2 of the Franchise Agreement, the iCitydis requesting Frthat "all sincome od trerived Grosleasing and rental of real or ipts. tangible personal property..." be Q26: Regarding any RFQ provisions increasing fees and n other charges n roll-offng Franchise Agreement and dnpmust ermit fees: Any such additional charges or fees not co first by approved by the City Commission and the Mayor. Until these approyals are given; as explained in Paragraph 2 [Question 251 above, the subject new RFQ 222246 is void as contrary to the City'.s Code or Ordinances, Charter, and State and Federal Law. ation om A26: The City Code provides a minimum guideline and does not preclude the standards mini tr fees f n co supplementing those guidelines with additional and reasonable operation City business. w RFQ Q27: In the absence of a new pre-responseCoomission thataulers fthe new reRFQ gardichangesthe ehavve been thethen n ubjectCity aof may not represent to the City negotiations with affected or interested haulers. Page 13 conference is optional and is A27: Prospective Proposers ,shall note that "negotiations" of the C ty'sttake Code place pre-proposal Request for Qualifications process. Additionally, pursuant to Section18-86(C)(4) simply hosted to "to explain the requirements of the proposed Procurement [...J". btains the on from Q28: the Co musts be cancelled untilyor such to a public heae as the Staff ring on a Resolutionradopt adopting or'd denying the City Commission and the Mayor pursuant the RFQ City nthe and the Interim andrent codified c n Chapter 22nof the City Code of approved by the City Commission Ordinances remain in effect. q royal bythe City Any ,extension of current Franchise Agreements would likewise require aCity .. . ulilic hearing- _ • - - • Comrriiss'iori and -the IVlagor fol►owing a p - in accordance with Chapter 22, Garbage and Other A28: RFQ 222246 does not need to be cancelled. Requirements in Request for Qualifications Number 222246 and the Commercial Solid Waste Franchise Agreement Solid Waste, and Chapter 18, Article III, Ci of Miami Procurement Ordinance, of the City Code. -04-107 oes An extension of the current Commercial Waste missio Hauling and Services YoFrar. ln accordance with Sehise Agreement Qctio0n31 8, Award of not require_ approval by the City of Miam i Franchise Agreement(sl, the following is stated: twenty "The City reserves the Agreement to extend tinorderto provide thereement for up to one City withucontinnual service while calendar0) new days beyond the stated Agreemen solicitation is evaluated tent and/or awarded. e Agreement the ight is exercised, the City shall the ame price, terms and conditions for the Qualified pcific Proposer(s) of its intent to extend girst one hundred extension may number the Cityy. nAd theQuad Qualified Proposer(s) are l extensions over the fin mutual agreement of such extensions." occur, if the and Q29: Why is the Franchise Agreement, attached RFQ 1224,2216, so different from the Franchise Agreement attached to the previous RFQ 198160 issued April test fee , as A29: The Franchise Agreement issued under RFQ 19816of Ordinances. faled Additionally, o contain the an annualaSafetyslnspectioerized in Fee of Section vehicle and 22-56 of the City'sedCode $ro0- perProp-was � incorporated tod the table shown belowo -the new sfor a summary of thefchanges purposes only: between RFQ Prospective Proposers may re 198160 and RFQ 222246: RFQ 198160 Franchise Fee: 22 % of Gross Recei.ts Annual Franchise Fee: $7,500, increased annuall b $250 Permit Per Account Fee: $50.00, Franchisee allowed to pass on fee not to exceed $24 to customer Annual Specialized Waste Handling Fee: $3,500, increased annuall b $250 RFQ 222246 Franchise Fee: 24 % of Gross Recei't Annual Franchise Fee: $8,000, increased annuall b $500 Permit allowed to opassoontFranchisee fee not to exceed$38 to customer . Annual Specialized Waste Handling Fee: $4,000, increased annuall b $500 City Code of Ordinances Section Section 22-56 b Section 22-50(b) Section 22-50(a) Section 22-50(c) a d local de governments Q30: The definition of Gross Receipts,State law, 3 of the Florida Statuteh403.7046(3)( shouldAgreement, not include recycling or any recyclable materials envisions must be removed from from charging -fees -on -these items. To comply -with -state law-, these -provisions the Franchise Agreement. A30: The City of Miami is allowed to charge franchise fees for picking up recyclable materials. Section 403.7046, Florida Statutes, is a statute that is not specially about recyclable materials but recoverable materials. The pertinent part of the statute is section (d) states: Page 14 law, a l "In addition to any other authority provided by r this slectao government doing business within the jurisdiction to prohibit a person or entity not certified provide for the of the local government; to enter into a of recoveredxclusive franchise maferalsoattc commercial establishments, collection, transportation, and processing provided that a local government may not require.a certified recovered materials dealer to enter into such franchise agreement in order to enter into a contracteollect, any commercial o roceprocess, blis en within the local government's jurisdiction to purchase, provide or to source- separatedorh- clusiv recovered materials; enter to an of exclusive recoverede materials ate single-family or exclusive collection, transportation, multifamily residential properties." From the plain reading of the statute, the City of Miami is expressly authorized at 1)e enter r into 8 le) mate nonexclusale re overable om franchise with a certified recoverable material dmaaiercollect an cexciusive(franchise agreement to collect "frny-commercial "establishment -and 2)- Y enter recoverable (garbage or recyclable) materials at single-family or multifamily residential properties. — — he co— Y Sh°u!d only be required -to make a reaso abas drafted Q31: Section 4.5 of the Franchise Agreement: The containers are the responsibility of the customer once they are p ace on their premiss, P an and the time given to comply, secure the container. Depending on the size of the company it may be impossible. .. . A31: Section 4.5 of the Commercial Solid Waste C fancs se Agreement has been modified to require the FRANCHISEE to "make reasonable efforts to se position of advocating, an and the customer.dvocaAs Q32: Section 4.1 or, not the respecting Franchise contractual relationship between the reement: The Cify should not ecomp the in Y drafted, condoning eisr p be a valid, binding, long term contract in place. drafted, there is no recognition that there may the City should make it clear that Additionally, if the City allows another hauler to service an account,e fees. Can this the customer must be current with the previous urf aler and greements?ent Canon also bethe samended to only section be redrafted to respect existing con allow customers to change at the end of a contract term and to only be able to do so if all fees have been satisfied? A32: Section 4.13 of the Franchise Agreement has been revised as indicated in this Addendum Safet Ins ection Fee, of the Franchise Agreement: Florida statutes do not allow the City Q33: Section 5.8, y to assess this fee, only the state. Please remove. A33: That is incorrect. Florida Statute 166.221, Regulatory Fees, states: "A municipality may levy reasonable e with he ost f e butory siness, professional, and occupational regulatory feesessofcbusnesses,tprofess�ons,candooceupafionsa the activity, including consumer protection, on suchpursuant to a county charter. regulation of which has not been preempted by the state or a county p The above cited Florida statute is a grant of home rule power to Cities to impose and assess regulatory fees. Additionally, the City is not preempted by federal law Section 49 CFR 396, et seq, from performing their own safety inspections. Section 49 CFR 396.234 expressly states that: meet the requirements of 3& 96.17 (a) A motor carrier or an intermodal equipment provider may months. in using the roadside inspection, the motor carrier or through a State or other jurisdiction's �roadside inspection program. The inspection must have been performed during the preceding of_an_annual_inspection_report_.showing--- �---- _____ _ __ - _ __intermodal-equipment-prouider_would._need to-retain-a_cop-y-- eriodic inspection standards set that the inspection was performed in accordance with the minimum p forth in appendix G to this subchapter. If the motor carrier operating the commercial vehicle is not the otor carrier must eliver e side ion party directly responsible for its maintenance, annermBefo e accepting such an nspetltion report, motor to the responsible party in ae timely carrier or intermodal equipment provider must ensure that the report complies with the requirements of 396.21 a . Page 15 is ject te on m ich is determined i a commercial motor °vehicletbe asbeffective asand3& Cory , the! motor' carriergoa intermodal l determined by the Administrator Comm equipment provider V hicle it nspections nsthe umay beement of cond§ conducted through that State's at State authorized Commercial motor commercial facilities, or by the motor carrier or intermodal equipment provider itself under the auspices of a State authorized self -inspection program. CSA) determine t a State inspection Should the or inal Motor as er Safety effective effective as Administration 3& L__17,the motoor carrier or intermodal equipment provider program, in whole or part, is not as must ensure that the periodic inspection required by 3� 96.17_ is performed on all commercial motor vehicles under its control in a manner specified in 3� 96.17. the state law The statute makes it clear that a motor carrier is entitledtneed to defer to the federal law,f provided that it is as- hen -performing-their roadside inspection program; it does not effective as the federal inspection program. It is important to note that the burden motor cbe place e inspection d on the recyclable material collector to be in compliance with the state and county requirements. oser ends to e City that it raise he Q34: Section m7.2 of the Franchise Amuch like other fixed ive feesr inthecontrract,1so that. it is not floating.There minimum bond to $500,000, mu hot to of s u operational burden to -the ,please redraft this section to make sure that theocompany does not securing new bonds. Additionally, p have to provide the City two bonds, one for the existing contract and one for the new contract. There should not be overlapping bonds. dendum and copied A34: Section 7.2 of the Franchise Agreement shall be e u al to the modified FRANCHIISEE'S previousd12 month franchise feespaid "The amount of the bond q the CITY (ifranchi e fees paid to the nual franchise andor a minimum of $25,000 35,000, whichever is greater, any other fr as security for the faithful performance of the Franchise AGREEMENT." Perf mance Additionally, Prospective Proposers shall note the clarification the submission Section two 2.16,peraor bond Bond Requirements of the RFQ solicitation document. with res fict t s. rformance bonds the "Once the rci l Waste His In Serviceseement 's Fralnchisecuted, the Aareemente# 03-04-107 will be submitted dtor the Commercial Waste Haull respective franchisees." Q35: -On a e 5 of 34 of the RFQ reads: Unit of Measure Unit Price: $ Questions: 1. Are you requesting .a price per yard for hauling services from the hauler? 2. If you are requesting a per yard rate how many yards should we be quoting on? 3. Would you provide more details on this rate request. A35: Line 1, Commercial Solid Waste Hauling Services, is not applicable to this RFQ. Prospective Proposers are not required to enter a "Unit Price" and "Total" in this line. --ALL-OTHER-TERMS_AND-_CONDITI.ONSAF_THE.IEI3.REMAIN_T1iE.SAME,______._..--------- - — Sinef-y, GM/LR g Cc: Bid File Number Of Units : ___— -Total : Lar �r g Ch - Fina al Officer Page 16 i EXHIBIT A Rev ised Commercial Solid Waste Franchise Agreement Page 17 CITY 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 _ y 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 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 City Commission which amended Chapter 22, entitled Garbage and City Code to allow regulatory permits for providing non-exclusive 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 specifications Code and Ordinances of theeCITY; st for Qualifications No. 222246 and applicable sections of the and was passed by the Miami Other Solid Waste, of the Commercial Solid Waste 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 CHISEE hereby agreeion, the 1po enter it and nto this ncy of which is hereby acknowledged, CITY AGREEMENT for furnishing Commercial Solid Waste Collection Services within the CITY, as follows: ARTICLE I GENERAL INFORMATION 1 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 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. 2.2 As used in this AGREEMENT, the following words and terms shall have the following 3neanings, unless Wericpratext clearly otherwi requires:g ree Itt shalll mean his FRANCHISE 'AGREEMEN , as it may hereinafter be amendecloz .supplemented � � ; -� � � � ,.-�: 'LL'� Agreemen �-Collecf on Areas shall include th Entire CIfiY, as the boundary of the CITY shaexist at alltunes'during the iife of this?ACRE&EN Annual Franchise, Fee \shall mean e y' 4 fee charged by the Cityto each FRANCHTISEE who= opera] within the C tyA.i n is and collects garbage and trash. See Section62250(b) ofthe City Ode nnual Specialized; Waste Handing Fee shall mean theyarly fee charged b the City eacf ?FRANCHISEE who operates;<within the Cit limitsand collects trash, cluding Eviv garbage. See Section 22-50(c) of the City Code. 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 produucts, n d body fluids from humans and other primates; laboratory and veterinarywastes are whichalso contain human disease -causing agents; and discarded sharps. The following included: (a) Used, absorbent materials saturated with blood, blood products, body fluids, or excretions or secretions contaminated blwith ood visible pred blood; cts andthabsorbent have materials saturated with blood or (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 Waste shall mean an solid waste that causes or has the ca.abili of causing disease or infection and includes but is not limited to biomedical waste diseased or dead animals and other wastes ca able of transmittin atho ens to humans or animals. 2 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 City Commission shall mean the local legislative body of the City transfers,fMiami.assignments Commission is the body that approves City Franchises. Any 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. Ci Mana er shall mean the dul as .ointed chief administrative doofficer not ofs the eCi C i of Miami. All actions of the Ci under this A • eement that Commission ma be erformed b the Ci Mana er or the Director servin 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 § the Uu -tin Code. Commercial Hauler shall .mean a license of Miami FRANCHISEE thaw operates f within the ``Ci Milts and rovides certain keryices to Multi -Family and Commercial establishments including bunot limitedt© the following,garbage, trash, recycling, roll- t Pin off, and specialized waste handling ser dice, etch ' Y a` Yj Director shall meanthe-➢riector of theiDepartmeptof Sold Waste v Franchisea.Fee shall mean the_montM5 percentage.�of Gros Receipts remitted i.Zo the City by each F.RANCI I8EE See Section -22-56(b) ofsthe City Code, as amended T isf thise r be amendei nor adlusri:ed by the City , from time, #o time, by . g on -of the City Code, and the4FRANCHISEE acknowledges and agrees that the monthly percentage of gross receipts payable, as amended, or adjusted, will automatically apply to this Agreement and that the FRANCHISEE SEE's obligationtto ly execute an addendum or amendment recognizing the 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 cooking oil waste, portable toilets and sanitation, environmental charges and fees, containerized waste, environmental waste services (vactor), equipment rental and leasing, fuel surcharge, construction and demolition debris, roofing materials, trash, litter, maintenance, compactors, refuse and/or rubobisr fre�lection any otherisour eval nrelatedsal directlyces or rendered, hand bag collection, recycling, 3 City of Miami, Florida Commercial Solid Waste Hauling Services indirectly from waste collection services, including, without limitationes,usa all of dump income derived from leasing and renting of real or tangible personal property, mocks, grappling trucks, roll -off trucks, trailers, roll -offs, boxed in, framed, fenced in, or otherwise designated storage areas, etc., containers, disposal bagsters, shoots, and of any debrisny by the other vehicles and equipment used for collection lly or FRANCHISEE, exclusive of taxes as provided CJs Receiptswhether shall n parti ncome ally collected within the CITY, less bad deb 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 non of solid wastesinfectious characteristics, ristics, , which, because of quantity, concentration, or physical, chemical,or may cause, or significantly contribute to, an increase in mortality san n real present or ase in serious irreversible or incapacitating reversible illness or may pose a potential hazard to human health or the environment when improperly transported, �21 posed of, storedTtreared, or otherwise mdnaged. RFQ 222246 Rf i £u Multifamily Residence shIllmean and irseA any building or structure cunt four use g This �Y or more contiguous living di% and intended, exclusively for residential purpti. reference ��tYie tdefinition of= Multi -family idential defmitior>`� incorporates by �4: �- establishment setforth i 5-1, Miam*Dade County Code Nei hborlood Cleant s shall mean periodic intensive removal-of=litter, debri d other solid waste4?nateriaifrom adesignated ea ofhe City, initiated or approved bathe City, aid/or recagnizec commit ty based rganizations or associations its NETK offices ;-_,,..1: �, s ��- me1udmgispecial nt actives crtywtile. -. each if I?erm itrPer Account Fee shah mean the chargessesse by the City beginning October 1, for each account and roll -off that is acquired or al solid awa setservioeout the Fiscal Year by FRANCHISEE for the provision of comet s. Recycling shall mean any process by which se idrat aste, or ma eria s which would otherwise become solid waste, are col , p 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 nin F Section R ct on 166.221, for Florida Statutes, which is a yearly remittance paid to the City y 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 at no ndisposal of to solid waste that requires special handling and management, including, white goods, waste tires, used oil, lead -acid batteries, construction and demolition debris, ash 4 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 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 o erves right and privilege, with related obligations, to provide commercial solid public upon, over and across the present and future streets, alleys, bridges, and future,u for rights -of -way and other public places within the CITY boundaries, present 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 non-exclusive n-excl s ve right and privilege, Nit h related obligatros; Ito provide solid` waste col � 'action, demolition and renovation at �e �ocated wi the= CLTYon aoritracted basis. ARTICLE l� OBEGATIONSOF FRANCHISEE. _ bR l 1 FRANCHISEE shah be-�reEsponsible fof; the co�ection au&disposat of all Comrnercia Solid WO and ecyclabe materials,exclud ghlomedic .l, biological, and iazardous waste. Extraordinary material; unacceptable waste acid, batteries, auto parts, esteelating gaspx v°"�F materialsAconstrutRon and743emolitionf debris, roofing matnals, wood, p p , s etc ), dead nasals, abandoned vehicles/boat and parts, large equipmentt nd parts o will not It collected $by FRANCHISEEunlesspecifically requiredby the " Ri generator and agreed to by the CHISEE. 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 F n�dNCHISEE shall beze to contain ermaintained an ain the City clean and Code. All containers serviced by 5 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 serviceable manner at all times. At no time shalls any of f FRANCHISEE'S require an coadntain e ers be left on the public right-of-way. The City, in it 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 CYallused in the collection and/or population vehicles inoperable. Except as otherwise provided, transportation of waste shall be equipped with a leak -proof body of metal type. If a FRANCHISEE uses a specially designed,motorized residential o eclection ommerc lst stopscle for to transporting solid waste over short distances from 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, neregistered, and equipped in compliance with the motor vehicles laws of the State : g Y 4FRINCFIISEE shafii beµresponsible for creating and mainf Inscheiu es ariroutes as well as frequencyzy o serviceviTrthin the 11e Eons and dingenot fir the cat onlofsofithe same to its CIISEE shalt Yoe responsll� v p Code.�N 4t, customers rnediately 0 ant the 5 In cases f naturals `car man made _disasterrs the City Manager may Mgr^ .� _ FRANCHISEE r soriablee.ariance from regular; schedules ancroutes. As soon as a declarationof an emergency is is edk;by;` thei.Mayor, t 'RANCHISEE shall make ti: �, reasonable efforts o secure�zts contarnersVln==oxer _to prey ent hazards and/or�threats to- the FRANCHISEE public safety andthealth Agoon aspracticable of er such disaster, alL'advise the CfTY and kgticustMers of the estinate1. time required before'. regular ides and routes; can be resume: 4.6 FRANCHISEE shall make its customers Multi -family re of Miami-Dade recycling ordinance and County's and/or City of Miami's mandatory Commercial and Mu Y shall make services available for contract. 4.7 FRANCHISEE agrees to recycle, collect dispose uant to the Cilid ty Codeeastassignedtby CITY buildings and properties, free of charge, p 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 thFRANCHISEE'S enR-AN eHo beEestablished by the Director tal franchise fees paid to the CITY. Such assignments of the Department of Solid Waste. 4.9 FRANCHISEE shall require .that its employeesat alllean times, nlforms or shirts ca y a valid Comm bearing the FRANCHISEE'S name; that each driver shall, 6 City of Miami, Florida Commercial Solid Waste Hauling Services Driver's License, for the type of vehicle being operated; that the CITY may request the removal of any employee of the FRANCHISEE his/her1duties; andCity ce thatnonis person wanton, 11 negligent, or discourteous in the performance ofs creed, be denied employment by the FRANCHISEE for reasons of race, sex, age, national origin, or religion. 4.10 FRANCHISEE is required and hereby agrees yWageution of this andto abide by AGREEMENT herhrequirement all employees not less that the Federal minimum as established by the Congress of the United States ctomply withair Labor all applicable laws relating ards Act, as amended and changed from time to time and to to the employment of employees and the provision of commercial solid o wng toorserver,such The FRANCHISEE shall have on hand at all times, in g equipment as shall permit the FRANCHISE ada available al times,rteserve equly, to �pment rm its duties hereunder. FRANCHISEE shall have which can be put into service and operation within two hours of any brreakddoo r amps o4str Icily adhere to=thy rovisions of atop 22 4 ndr echo n .11 „FRANCHISEE aged i Code: 'Oh states it shall be unlawful for any 22-93,as ;amended; of thee tY n £� commercial 4ro e within 100feet of a FRANCrSEE tom provide rvice to any co rm plop m' 1 residentia distric between he hours of � WOO till. and 7:0Q a.m., and to strictlydhere to anyother Ifezms and prove ns of this Agreement as specified nthe Notice of olation, except and_on1 asrdete mime'' bythe Director cif the Deparlm , Each Fiscal Year (October 1, throuerA 30), the= amounts assessed for non- 47. compliancetof this�section wll ,be as follanie.T'�.. 15ton-Complance sw 250 D nd $' S00 0.0 2 ,Non -Comp ince _� 3rd I7on-Compliance: $1,000.00 Each Additional Non -Compliance: $1,000.00 RFQ 222246 FRANCHISEE agrees to comply with Section m5 Al1the Mu1t1Family and Commeami-Dade County odal entitled "Solid Waste Management", as aended rci establishments are required to initiate a recycling HISEE. Falureg,ram. The cof FRANCHISEE to program shall be serviced by a licensed City of Miami FRAN 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 X. Article nts 4.11.2 For any other failure to comply with the terms of this malty, for the t of violations ofthe will be due as liquidated damages and p Agreement as specified in the Notice of Violation. First Violation: $ 250.00 Second Violation: $ 500.00 7 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 Third Violation: Each Additional Violation: $1,000.00 $ 1 , 0 0 0 . 0 0 These amounts are established for the failures by the FRANCHISEE entire amountsy for with minor this Agreement. It is not the intention of theCity to assess the 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 exactdamages liquidated damages due City cannot be known or ascertained and these amounts represent 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 a countess ys prior, arrears.of accounts Should any accounts for which it will discontinue service and advise if said s arein be in arrears and FRANCHISEE seeks remedy (court decisions, collection olt c ioao agencies, ments, mediator and etc.) the C styxshall receive` rom��p f .- ini _ 'Cable fees andot�fied of any and ale ees go andiknfeetitigs immecli ely notify the Department so, lf resumed service RANCHISEE: agr a of Sohdaste. cFtANCHIEE shall rzmh such notgiication(s) as are provided in Section 2 2a of the,City Code rice controls will be rimarily 4.1, FRANCHISEE ac;laiowledges that under this Agreement, p c am p extracted hrough m etition amongst the Franchise companies Tor existing future p s rFRANCHISEE further acl now}ed we that a4.y increase in pricing by the r accounts. ; FRANCHISEE could result \ in theme custome seeking better pricing fro anoing —thin hr FRANC-HI,1-. If the City 7dentifi s an iailll Haulegal r -vho . prov dmg Commer�ci l Solid Ai rts by a non -licensed Com,:m � h the:Ci will confiscate saicontainer �WasteS'ervice with -Out a Franse v,om the City, tY and assess charges for man-hours, equipment, disposal and administrative costs and fines. I. id waste in the City must be 4.14 ALL equipment utilized to collect andtransport lunit with the name of e hauler, conspicuously marked on both sides of the automotive ation vehicle number, tare weight, and tacAll markingsIdentification must be in letters and must also be marked on all trailer and container uni numerals at least two inches in height. 4.15 At least annually (October 1) and as determined 1 the following Director of nahe on Dep a diskette, ent of Solid Waste, each FRANCHISEE shallsupply compact disc, or other acceptable format and in the manner prescribed by the Director of the Department of Solid Waste: (1) A listing, as of the reporting 1, ofthe eervedes and addresses of customers, and the addresses each on (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. 8 City of Miami, Florida (4) (5) Commercial Solid Waste Hauling Services RFQ 222246 An accounts receivable aging report for each City of Miami customer. 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 1Franchd s e deAgr ement fined in andr the 22 of the City Code, ARTICLE II -DEFINITIONS of the Franchise Agreement in its entirety, within specified Code ae mendments es, as mayas referene ced in ed or adjusted from time to time by the enactment ofCity ur "Franchise Fees" in Article II of this Agreement . 5.2 FRANCHISE FEE: FRANCHISEE agrees to remit acoonntsly to the the City my our percent (24%) of its Gross Receipts, generated from the remittance, FRANCHISEE must $500.00,"whichever is greater. Accompanying �ddr�es and�ta�al�a��t rovide the CITY t a` list of the customers names, . K,- a pF Y �^ a()Tees to maintain a seconds hst ieh fee an=gins collected FRAIN x� auditors. schedule of individual accountacharges lit must be retained for a period of 0 mont s , from thes�rld of tl e Agreement and zia e available k all times to CITY Twenty-f wx p erc�rit 24% the total famaurit collectedf should equal the remittance amount paid to tY =City e remittance of the ,4 revious month s collection should be received liyhe CITY an orbefore the last day o fe ch month nl�uand one ha f percent day of the followin month "will cause re to remituyi,ithe last the FRA CHISF vt 1.5% ena,I per; znonth.Yoi Y, the balance"' ue f�;paymentiis past due in excess of 60 De a�iznent of Swolid V rite �w�l nitlate 4ts3 procedure to reVQke the days, the p IA FRANCHISE an c;;,:4 h the-Paymenf and Perf� Q �� t $0 enty four percen (24 � ) jwnd for all monieOdu and in lie City, ncludmg hosts. It `should be .-- remrtte monthly to the City s ou1d be calculated oall monthly gross receipts, excluding receipts derived 65m biomedical, biol gical, and hazardous �va ofu taxes and, theas defined in the Agreement collected from the customers,to franchises franchise fees. The gross percentagefee under this and hazardous removal servn does not acel The City may engaged solely in biomedical, biological, City Code. , from time to time, adjust this fee by amending § 22-56 such ofef the eas adjusted or FRANCHISEE acknowledges it shall be obliged to pay amended as of the effective date of such legislation and will promptly execute an addendum or amendment affirming the foregoing. er 5.3 FRANCHISEE shall, on or before 90 days following the close fiscal al year, deliver to the Director of the Department of Solid Waste, a statement itsannual byan receipts and charge -offs, generated from accounts within tohe s rC tiptity pras aparedctivity within independent Certified Public Accountant (CPA) reflecting the City for the preceding fiscal year. The CPAe statement eoffsrgeneratgedlfrom ified opinion relative to the accounting of all revenues, fees and charge - accounts and activity within the City limits. 9 City of Miami, Florida 5.4 ANNUAL FRANCHISE FEE: FRANCHISEE h to be to FRANCHISEE forees mit to the CITY r Commercial nually (due October 1) the sum of $8,000.00 for the rig Solid Waste Services within the City; said fee sehall increase tallywbyc$500se 00. Failure to remit the required annual franchisefee y e duemonatoe the balance due. the FRANCHISEE a one and one half percent (1.5%) penalty per FRANCHISEE that performs ONLY Co m ercial Solid aste der Waste AND Services iali nd d FRANCHISEE that performs BOTH Commerce Waste Handling Services will be subject to oozed annualhis Handling s fee Se does es NOT apply to FRANCHISEE that performs ONLY Specialized 1,2010 as 5.5 FRANCHISEE agrees to remit the $8,000annual furtherhb Oc each ber noted in paragraph 5.4 above. FRANCHISEE to increase said fee by (October 1) throughout the term of the Franchise Agreement,will be $500.00. For example; commencingOctober 1, 2011, the annual fee due the City $8,500.00, and so forth throughout the Agreement term. 5 6 CHISEE agrees -=to re rt to the City annually a Permit er Accourit ee to e amount, Hof ,seven five ($75.;00) (due October 1) for erc1 saaccco nt and roll offs boo- F:ged a of new fiscal 'eartto those account k effectiveOctoberlst'of every' z r ' st October, of every newscal year frhhom they contract for the provision of commercial solid waste ees and/qr specralzzed waste haenda g e services of providing solid each container an d�or loll off utilized by,-'�FR ] H1SEE i cr d waste services. In�addzfron; for each new commercial accountand,new roll-off�contamer acquired after October 1, the kRANa r-a a to ren t $75.00 for the new ccount q The remittance must€ be to the s includin5.00 afar eachrol1-off p�lacel Ln the Crty• 1 f _ die FRANCHISEEanay only Finance"i epartm t.by the Vend of thel following � per account fee oto nly � :fi Q p ass on an amouPm:, to Bed t -eight ($38 OQ) of said permit ermit er account fee shall not be transferable. eacime 'contracted customer. ••Said-p pd Effective October 1, 2010 the annual period will the FRn October 1st RANCHISEE anonenand one half d September 30t'. All late payments of this fee will cause percent (1.5%) penalty per month on the balance due. 5.7 Annual Specialized Waste Handling Fee: of $oagreesr e right to prov de ONLY annually (due October 1, 2010) the sum Specialized Waste Handling Services within aste HHCity andling Sery mits. It oes within thenoted, Ciiy, if a FRANCHISEE is providing ONLY Specialized the annual franchise fee will increase by $500.00 per year. For example; commencing mmefnci g October 1, 2011, the annual franchise fee for Specialized Waste HandlingServices e the City will be $4,500.00, and so forth Nthroughout the Agreement and one halftper m. entA(1.5%) ll late payments of this fee will cause the FRACHISEE aone penalty per month on the balance due. Thisefee does es notwitallow the in the City FRANCHISEE o perform Commercial Solid Waste (Garbage) e applies to a FRANCHISEE that ONLY performs Specialized Waste Handling Services within the City limits. RFQ 222246 Commercial Solid Waste Hauling Services City of Miami, Florida Commercial Solid Waste Hauling 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, 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 disposalof any debris by the FRANut C HIveh E. FRANCHISEES that are caught operating within' e inspection decal, will be subject to the violation schedule as specified in Section 4.11.2. ARTICLE VI AUDIT AND INSPECTION RIGHTS 6.1 i t tIGITY may, a reasonable times and f a'neriod of up o,3 mal payment: cause leg audited; FRANCHISEE' S .z , all such books an��records at after final payment�is made': ,yea`rs fol ow rt e FRANCHISEEho CITY under this greemenudif or os b d d of FRANCHISEE which are related to ormai nder th1s greement. s principal lae of business fora period of five (5yea icier this AGREEI�IENT. ooks an recor s .l 1 The Citylia1l have the following ins - - - of the City Code , ` � �,'. nspections. �3,. c Soft se Sofiatahenfacil ties ofrtheUcontactual pa City y andtperform tlests t ddet arm necwh herlth y conforgoods m to sorces at t tersolicitation nd conditions of the contract. Suchn t nspectio sdandrtests shall be performed in accordance with the terms a 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, cmaterials, onformance with the terms and conditioment, contractual ns upon which the oces or rdernorecontact was basedr lease . Any pus to rchasing conformance 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. The 1 inclluding samples submitted rwithibe bids hor offers cal, andlcal and other samp es of deliveries aand performace goodso or e services, determine their quality and conformance with the terms and conditions of the solicitation or contract. In the t performance of such abo ato y facilities sts oof inspections, y department chief the cc city orna y officer outs deshall labo laboratory orhoritY to make use special expertise of the laboratory to available to evaluate service performance. tests (c) Conduct oof r inconvenience the s. econvertractualeparties. ctContractions ual partiesllshall make available attno unduly delay charge to the city all reasonable facilities and assistance, in order to facilitate the performance of inspections or tests by city representative. FRtiNCHISEE agrees to. maintain years audit rights as provided in §1.8101 and 11 City of Miami, Florida Commercial Solid Waste Hauling Services i er the city manag ror�the ce y,.commi possible, .hall be perfarrnedY'so as�a otttto iin uly� delaytot Conduc au t s = r �P a- - vailable at no charge (Ord. No. 12271, § 2, 8-22-02) RFQ 222246 Sec. 18-102 - Audits. (a) ect the Solicitations and of contactual parties to determinprovisions. City eaconformanceprovide withthat the the solici a ionmay requirements books edid records contained in the invitation for bids or request for proposals or, after award, with the terms and conditions of the contract. (1) The chief procurement officer may specify the general procedures for inspection of books and records (b) Procedures for audits. 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; or service or d. A lack of cost experience due to the procurement of a new supply e. Other evidence that^ an audit is in the city's best interests as de�term edby the chief procurement trch � t of td f �U�ifae�never possible audrts s h to the city all ssion. wecsk.!, Contractual partes shall make inconvenience the conf[actual party, r reasons l'e facilities and assistance or the convenlen of the city rep esentatives performing Lhe audit (Ord. No.12271;'§?, 8.22 42) .,.. '4 � . } � a, ect FRANCI�SEE S 2' ma at-Ireasonable times during theterm hereof,lnsp , facilities cl erforrn su 1 test, as the tIT„Y deems reasonably. necessary, to determine whether he` oods:tor servrees required'to�'�;e ravided by: FRANCHISEE antler this AGREFLMIENT conform to lie terns hereof, if applicable �� FRANCHISEE shall make available - "to the `CITY reasonable facilities and render assistance to faoihtate the erfortndnce of all tests and/or inspections by CITY representatives. All -fests and Pa,_ -`inspections shall besubject to, n -made in sam�envMh, the be amended provisions supplemented, ons 18-95, 18-96 and 18-97, of the City Code, asmay 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 vrevenue) including c udinging fiscal books and records, sales tax returns, bank statements, generalledger 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 nom t ahCity rAuditcable reveals that revenue stream during the Agreement term. In add FRANCHISEE under reported gross receipts, and results re, FRANCHISEE agreesto pay City in the amount of $20,000.00 (per Fiscal Year ) or mo for the cost of said Audit. Upon audit notification, FRANCHISEE agrees to deliver all financial infoiivation and books and records to within the City limits, if said information is maintained outside the City boundaries. 12 City of Miami, Florida Commercial Solid Waste Hauling Services 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. Also, any FRANCHISEE requesting credit or refund for rnchise Fees ecessary to vaider to the City in fy the claim .that will be required to pay for the auditing hours nperformed by our City auditors. As an alternative,t FRANCHISEESd IZI�SEES must pay for ay retain their own outside CPA Firm to verify their claim. the hours necessary to verify the work of the outside CPA Firm. RFQ 222246 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 wl�amelliab lit�Fsingle RAI�CHISEI>'S O rt�fr ate per currence for bodily?3urya and property aa g lbe�:sap also_ include workers' compensation;rcoverage. The City s sh. ahsted4 a additional-�nsurefifor liability 7.2L; „ FRANCISEE a ees to maintain, for the terii of this AGREEMENT, a Perrformance Bond, executed bye a sure y companyduly auuthorized to zlov business in the. -:,State of ent for the coin an i resident in the State Florida, which shall be counfer-signed y: an ag y, l yf of Florida YI'he arnou`nt�of`the bond shall be e ual to thee RA CCHISEE' S previous 12 month franchise fees paid �o the CITYT(rncludm'g��he annual, franchise fee, monthly 24% v. 3f franchise fee, annual per account fee, and any ntl?er,franch* fees paid to theiCity) or a 00, whiche�=er is greater, as secir�ty forfhe faithful performance of the mimmum of $25,f� ,� ., �,� A.Y.'' shall Franchise>AGREEIv1ENT Tk�-Cl,sevaluatedhm the; currentlBest1saKey Rat... Guide, _-g, , financ�-al category of Class leas 5 ona, the �.,. Property Liability In lieu of a Perfo mance check,treasurer's oraashFierS's check issued by a an irrevocable letter of credit, cash, certified 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 Agreement 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. 13 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 221246 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 the establisheded prior cteria will each renewal period. During the review process for renewal, be used in order to ascertain how well each FRANCHISEE noted dhat any FRANCHISEE thatt is not of the October 1, 2010, Agreement. It should be renewed for any of the option periods, will not be allowed to operate within the City limits. ARTICLE IX DEFT 9.1 If FRANCHISEE fails to comply with any term or FRAdition of this NCHISEE shall be in or defaults to perform any of its obligations hereunder, then - ac -1X±,. 'to tine its ." t off the occurre oe €igas default hereunder, the CITY as ; x �P�`' Y f a arlabl R . it by law aY gr,,,,, atel , u at,w, n noti eetso thatteCimHI o e,0 1 this x Bement FRANCHISEE understands and agr 7:Iigation this Agr=�Agreement under a�tl is sectton shall e on FRANMISEEfro any beableor accruing pz�Qr to the effectFvedate of _.punwillingo commence taerform the service CHISEEithin e halle�labe to theTY fodr herein, then ,in acclitan e foregoingFRA•N tOT this �enent, as �.all expengCmcurredbY�th CITY m£preparation and negot�a0iou ement of theervt, s, well as, all Costs amend; expenses_ incurred by he . itym the reIp 1 CM including consequential andncidental datiages:� {t �� 2 I a default statuslisot curedgand the Agreementsermusated, the City has t trig t to seize the Franchise,�and transft rst to -third party. 14 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 ARTICLE X RIGHT TO 1.ERMINATE AND/OR TRANSFER AGREEMENT 10.1 The CITY shall have the right to terminate this AGREEMENT, in of a defauist cretion, at of any of any time after the CITY gives written notice to the FRANCHISEE or the provisions in this Agreement and the FRANCHISEE fails to correct the default of cease the conduct as set forth in the written notice, within fourteen (14) working days the receipt by the FRANCHISEE of said notice from the CITY. 10.2 If the FRANCHISEE is in default and EE °es �s to the City, 14 aof transferring the ys after notice of default has been sent to FRANCHISEE, the City will have the option 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 RANCHISEE and CIntent to later trap fets asewrights nee be e #ermination o��the�F, r���-� with FR e�.�McF.F.3 essed in any not�cexor>otr � to appeal ejre ovation of tlns AGREEMENT t the City 10.3= FRANCHISEE hasthe right pp ce with=fhe same timiperiod as set forth in Section 22-49 ofithe City u�: Manager art accordanY� Code. Saidequest for appeal=must be in writ ig 0.4 All complts receivecl Uythe CITYhall be resolved by t}�eFRANCHISEERithin 24 t theRNCHISEh of said complaint. The hours, after4notifieation bythe Ci oz � f�, FRANCHISEE agrees to make all ro res&Ve every �easonableya d exp sari ble act to ports tovidegii'A' l of complaintw'The IIRANCHISEE shallperform everrea �lg� yut�y service which will mmnize complains, K3, mi is i PP-4 10.5 It is expressly agreed that in 04 no event shall the CITY be liable or responsi le 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 Whenever either party desires to give notice unto the other, it madust be ed toven by the partywritten for notice, sent certified U.S. Mail, with return receipt requested, whom it is intended, at the place last specified and the place for giving of notice in compliance with the provisions of this paragraph. 15 City of Miarni, Florida Commercial Solid Waste Hauling 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, Depaittiient of Solid Waste Director's Office 1290 NW 20th Street Miami, Fl 33142 LZ TICLE XII _ INDEMNIFICATION � _ defends d old harmle ithe CITY and its officials, 12'1. FRANCHISEE shall indemnify, employees and agents (colle{t� ely preferred to as�� Indemnities) and each of Them from fines, dama es, ald claims, expenses(mcluding daanst all Toss, costs penalties,Mq atfarney s fees) orfhabilities =(-collectively referred- to as ,abilities") by reason of any injury to or death of any person or damage to or `destruction r lossofany oro property arisingout of, resulting from, or in connection with (i) performance 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 haunless 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. 16 City of Miami, Florida Commercial Solid Waste Hauling Services nFg 222246 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 Depailaaient 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 f any sale of a ma}Aity`Ostock in the FRANCHISEE and an cgt Rh gesrn . i �s$ awnersh��, of the F.KAIICHISEE, its office � dlrectors or personnel by Cerlsfied letEer rao 4 the new later thanyfive (5) business days after such action. If assignment is grante , FRANCHISEE Will' assume all obligations set forth in the, Agreement and immediately r �� `k a the CITSrapproves assignment4 of this comply withalleiis of ell Agreement. s Agreement, it may,, be conditioned on the proposed assignee demonstrating fiscal solvency, ei ability, and responsibility :Prior to =consideration `of approval byafil� e City, the proposed assignee `must execute an Assignmensfi Assumption- greement whereby they comply every conditiozi of the prio sa chrse{Agreement and this Agreement must be a roved' as to ` oiiii and=correctness by --the Cie Attomey, 13.E r hrs G EEMENT shall beg the parr ey hereto their heirs, execu�t� ors, legal reOntatives, successors, or ssigti ; ARTICLE XIV COMPLIANCE WITH FEDERAL, STATE AND LOCAL LAWS: 14.1 FRANCHISEE understands that agreements between private includingentities laws pertd local governments are subject to certain laws and regulations, 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 17 City of Miami, Florida Commercial Solid Waste Hauling Services RFQ 222246 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 Flonda Workers' Compensation benefitsa\rai ableto emplyees' b€ the City are"=not available to RANCHISEE, - c grees to p�rovide`workers. compensation ,; insurance for any employee agent of FR I tHISEE. izA _ __TICI XVII ING LAW VENUECIV1 ACTI 17.!1 x This Agreement Mall beligoverned b� Florida, Miami -Dade County'gand the Codes an Agreemen shall beteonstrued and interpreted un 17 Venuc In any claims, actions nor otnty, Florida. L'- of the ederal Governmen,i State of ordinances of the City of Miami. This ei the lawsof the State of Flonda. roceedings between` e parties shall be in M i-Dade 17.3 In order to expeditiously handle any claims, actions or proceedingsgbetweennthe parties under this Agreement each party voluntarily and knowingly: (i) (iii) demand a jury trial; (ii) waives their right to file a permissive counterclaim; 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 18 City of Miami, Florida • Commercial Solid Waste Hauling Services RFQ 222246 19.1 This instrument and its attachments constitutendonly AGREEMENT s forth the rights, duties,of and the parties relating to the subject matter hereofand correctly t Agreements, promises, obligations of each to the other as of its date. Any prior 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 formality and of equal dignity herewith. 19.3 Notwithstanding the aforementioned,sright , from time s pursuant time, to levy other reasonable business, professional, and occupatie .City reserves onal regulatory fees, to § 166.221, Florida .Statutes . ,. 194 Th Ci of Miami's3Department of SolictWaste, may a�qu t ueh iother reason bl ie ty ortiii fmancial doouments, as reason bly needed, to evaluate=the Was eceigts f PPS e FRANCHISEE for acco i is subject to this Franchise .Agreement. ��.y TICS_ VAL OF XHIS AGREE ' t City 201 Execution °af this `A.greernef t by the City Ivlanager, `Attorney, City Cleric, Risk Management Admrri7 tratorAnd FRANCHIS�s��l constitute evidence of its pproval. ARTICLE XXI ADDITIONAL QUALIFIED PROPOSERS to add 21.1 In addition, Qualified Proposer(s) agree Franchises are cancelle dt terminated, Iorothe qualified proposers, (in the event any of 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 acontra proposer hall be evaluated, bcone dsatent with d to the Commercial Solid Waste Hauling S the requirements of this RFQ, to determine qualifications. 19 City of Miami, Florida Commercial Solid Waste Hauling Services 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 o ATTEST: Priscilla A. Thompson, City Clerk APPROVED AS TO FORM AND CORRECTNESS: Julie O. Bru City Attorney "CITY" CITY OF MIAMI, a municipal corporation By: a Carlo As . Migoya, City Manager Corporation APPROVED AS TO INSURANCE REQUIREMENTS: `Gary Reshefsky Interim Director Risk Management RFQ 222246 20 EXHIBIT B Southern Waste Systems, LLC v. The City of Coral Springs, Fla. Page 18 Top of Form FOR EDUCATIONAL USE ONLY ri West Reporter Image (PDF) 687 F.Supp.2d 1342 Motions, Pleadings and Filings Judges, Attorneys an xperts United States District Court, S.D. Florida. SOUTHERN WASTE SYSTEMS, LLC, a Florida limited liability company; and Sun Recycling, LLC, a Florida limited liability company, Plaintiffs, v. Waste Management, inc. of Florida, a Florida THE CITY OF CORAL SPRINGS, FLORIDA, a Florida Municipal Corporation; Corporation, and the Broward Solid Waste Disposal District, a Florida Dependent Special District, Defendants. Case No. 06-61448-CIV. Jan. 22, 2010. sing of commercial and Background: Companies engaged in business of collecting, hauling, and commeocial waste collection ocontractornand county demolition waste brought § 1983 action against city, city's exclusive solid waste disposal district, alleging that exclusive contract between the defendants violated theCommerce n Ct use, and seeking damages, declaratory relief, and injunctive relief. Defendants moved for summary judgment, moved for partial summary judgment. Holdings: The District Court, Elan S. Gold, J., held that: (1) the exclusive contract did not violate the dormant Commerce Clause; (2) district's requirement that commercial waste be delivered to and processed at certain designated facilities did not violate -the dormant Commerce Clause; . (3) plaintiffs had constitutional standing to challenge the contract, ordinance, and requirement; but (4) plaintiffs lacked prudential standing to challenge the contract, ordinance, and requirement; and (5) alleged discriminatory effect against interstate commerce under contract, ordinance, and requirement did not outweigh benefits conferred upon locality. Defendants' motions for summary judgment granted, and plaintiffs' motion denied. West Heednotes [1] _ _KeyCite Citing References for this Headnote _ c83 Commerce (.-,;•83I1 Application to Particular Subjects and Methods of Regulation 8-31I(A)-In-General (7:.•83k52.10 k. Environmental protection regulations. Most Cited Cases (-149E Environmental Law M. KeyCite Citing References for this Headnote c 149EVIII Waste Disposal and Management ,149Ek373 Interjurisdictional Issues 149Ek376 k. Interstate flows, effects, and burdens. Most Cited Cases City's exclusive contract for collection of commercial waste, and city ordinance awarding exclusive rights to collect and dispose of commercial waste to contractor, did not facially discriminate el or even implicate use aocontractor forstate ommerCec Id thus, did not violate the dormant Commerce Clause, where they merelyrequired waste collection within city, and bidding process through which c ntractor wast. tar 8dcits l. 3exclusive rights did not promote local economic interests over out-of-state interests. U.S.C.A. [2] KeyCite Citing References for this Headnote 83 Commerce 4-7•831 Power to Regulate in General c-.83k11 Powers Remaining in States, and Limitations Thereon c 83k12 k. In general. Most Cited Cases The strictures of the dormant Commerce Clause are not limited to states, but also apply to counties within each state. U.S.C.A. Const. Art. 1, § 8, cl. 3. ray . [3] mKeyCite.Citing-Refer..ences.for.this. Headnote. . d;-•83 Commerce Utz 831 Power to Regulate in General ,,83k11 Powers Remaining in States, and Limitations Thereon 83k12 k. In general. Most Cited Cases III A s,.=-.83 Commerce EIKeyCite Citing References for this Headnote o 831 Power to Regulate in General 83k11 Powers Remaining in States, and Limitations Thereon z�:83k13.5 k. Local matters affecting commerce. Most Cited Cases 83-Commerce gl<eyCite Citing References forthis Headnote r.8311 Application to Particular Subjects and Methods of Regulation 8311(A) In General --83k54 Preferences and Discriminations 83k54.1 k. In general. Most Cited Cases riminating ains If a satatute is found to discriminate against interstate commerce on its face, or has the effect ofediscrk down as a per t se out-of-state interests to the benefit of in -state �omic the d 5criminatesil agai against ilnterstate commerce, it will be ly violation of the dormant Commerce Clause, but, even if the statute upheld if it advances a legitimate local interest that cannot be fulfilled by other reasonable nondiscriminatory alternatives. U.S.C.A. Const. Art. 1, § 8, cl. 3. [4]KeyCite Citing References for this Headnote 083 Commerce o 83II ApplicationtoParticular Subjects and Methods of Regulation c83I1(A) In General 83k52.10 k. Environmental protection regulations. Most Cited Cases aw�14E Environmental Law > KeyCite Citing References for this Headnote 149EVIII Waste Disposal and Management t.r.,149Ek373 Interjurisdictional Issues <-�149Ek376 k. Interstate flows, effects, and burdens. Most Cited Cases City's gh exclusive contract for collection of commercial waste in city, and city ordinance awardingexclusive righ s to ollect and dispose of commercial waste to contractor, in combination with county solid waste disposal nt that commercial waste be delivered to and processed at certain wa designatedprevented from haulities, ling g id ootprocessing iolate the dormant commercial Commerce Clause, where no company, local or out-of-state, waste, even out of state, once it was collected within city. U.S.C.A. Const. Art.1, § 8, cl. 3. [5] #KeyCite Citing References for this Headnote ,ti.-83 Commerce €r 83I1 Application to Particular Subjects and Methods of Regulation o 831I(A) In General m83k52.10 k. Environmental protection regulations. Most Cited Cases 149E Environmental Law KeyCite Citing References for this Headnote - 149EVIII Waste Disposal and Management dr`..r149 Ek373 Interju risd ictio nal Issues c149Ek376 k. Interstate flows, effects, and burdens. Most Cited Cases County solid waste disposal district's requirement that commercial waste be designated facilities did not facially discriminate against out-of-state haulers, Commerce Clause, where the requirement did not favor in -state haulers, but, commercial waste to a designated facility. U.S.C.A. Const. A. 1, § 8, cl. 3. [6] [KeyCite Citing References for this Headnote • delivered to and processed at certain and thus did not violate the dormant rather, required all haulers to deliver c 78 Civil Rights ,1....78111 Federal Remedies in General c 78k1328 Persons Protected and Entitled to Sue -.78k1333 injury and Causation 78k1333(6) k. Other particular cases and contexts. Most Cited Cases c 83 Commerce KeyCite Citing References for this Headnote 8311 Application -to Particular Subjects and Methods of Regulation . t.r,831I(A) In General < 83k52.10 k. Environmental protection regulations. Most Cited Cases tio Companies engaged in business of collecting, hauling, and disposing of commercial construction collection a dot common waste had constitutional standing to bring § 1983 action challenging city s exclusive contract waste in city, and city ordinance awarding exclusive rights to colle ct in and disposei that of commercial le gally waste to ly excluded from or, as violative of the dormant Commerce Clause, where it suffered injury in fact collecting commercial waste as a result of the agreement and ordinance. U.S.C.A. Const. Art. 1, § 8, cl. 3; U.S.C.A. Const. Art. 3, § 2, cl. 1; 42 U.S.C.A. § 1983. [7] -'KeyCite Citing References for this Headnote c 78 Civil Rights 78111 Federal Remedies in General 78k1328 Persons Protected and Entitled to Sue ,78k1331 Persons Aggrieved, and Standing in General o 78k1331(6) k. Other particular cases and contexts. Most Cited Cases E.�.83 Commerce KeyCite Citing References for this Headnote ,8311 Application to Particular Subjects and Methods of`Regulation . 8311(A) In General • 83k52.10 k. Environmental protection regulations. Most Cited Cases Companies engaged in business of collecting, hauling, and disposing of commercial construction and demolition waste . " ---- � � cit "'s exclusive contract for collection -Of comrrierciaf waste lacked prudential standing to bring § 1.983 action challenging y ractor, and county - in city, city ordinance awarding exclusive rights to collect and dispose of cand procesial waste osed at certain designated solid waste disposal district's requirement that commercial waste be delivered to facilities, as being facially discriminatory against.out-of-state economic interests, in violation of the dormant Commerce Clause, where they were local companies which did not ship, or contract with others to ship, commercial waste out-of- state. U.S.C.A. Const. Art." 1, § 8, cl. 3; 42 U.S.C.A. § 1983. rmf [8] 145-KeyCite Citing References for this Headnote c---83 Commerce :.8311 Application to Particular Subjects and Methods of Regulation 8311(A) In General cs 83k52.10 k. Environmental protection regulations. Most Cited Cases -�149E Environmental Law VKeyCite Citing References for this Headnote {149EV11I Waste Disposal and Management •t 149Ek343 Constitutional Provisions, Statutes, and Ordinances 07,149Ek346 Validity .149Ek346(2) k. Flow control measures. Most Cited Cases or,149E Environmental Law Li KeyCite Citing References for this Headnote o- 149EVIII Waste Disposal and Management or,149Ek373 Interjurisdictional Issues o149Ek376 k. Interstate flows, effects, and burdens. Most Cited Cases ercia Alleged discriminatory effect against interstate commerce under city's exclusive commercial waste to collection of comm, cand l waste in city, city ordinance awarding exclusive rights to collect and dispose of county solid waste disposal district's requirement that commercial wasteabe nd tdeli didendoto nd d processed at e the dormant certain mmerce designatedfacilities did hot odtweigh"benefits conferred upon Iocali y, Clause, where contract, ordinance, and requirement, which did not reduce commercial al wasteount of yhadllegitimate local purpose e materials which may enter interstate commerce or increase cost associated with processing ublic health and welfare. U.S.C.A. Const. A. 1, § of ensuring economic viability of landfills within district and protecting p 8, cl. 3. *1344 Michael Virgil Elsberry, Terry C. Young, Wayne Andrew Sorrell, I1, Terry C. Young, Lowndes Drosdick Doster Kantor al. Reed, Orlando, FL, Stuart Z. Grossman, Grossman Roth PA, Coral Gables, FL, Guy Millard Burns, Johnson Pope Bokor Ruppel & Burns, Tampa, FL, for Plaintiffs. Hole, Erika R. Kerry Lee Ezrol, Goren Cherof Doody & Ezrol P.A., Katherine Howland Miller, Brian Kenneth L for DefendantsRoyal, Holland & Knight, Ari Jonathan Glazer, Moskowitz Mandell Salim & Simowitz, Fort Lauderdale, , ORDER GRAN TING SUMMARY JUDGMENT FOR DEFENDANTS (OTHER THAN ON CORAL SPRINGS COUNTERCLAIM); ADMINISTRATIVELY CLOSING THE CASE PENDING APPEAL EL-AN-S-60L-D—District Judge: I. INTRODUCTION This matter is before the Court on the following motions: (1) Motion for Summary Defendent ant nt bysDefendMaa t City ii y of Coral f Springs, Florida ("Coral Springs") [DE 2751; (2) Motion for Summary Judgmentby Florida, Inc. ("Waste Management") DE 281]; (3) Motion for Summary Judgment by the Broward Solid Waste Disposal District ("District") [DE 288], (4) Motion for Partial Summary Judgment by Plaintiffs Southern Waste Systems,. LLC Coral 5 rin s' Motion To *1345 Strike or Exclude ("Southern Waste") and Sun Recycling, LLC's ("Sun") [DE 292] FN1; (5) p g Addendum to Expert Report of Mark P. Berkman [DE 2351;FN2 (6) WasteManagement's SMotion davit of Charlesto Strike Plamtiffs' Statement of Material Facts [DE 337]; and (7) Waste Management's Motions togino and Anthony Lomangino [DE 338 and 339].FN3 I held oral argument on these motions on Friday, January 15, 2010.FN4 FN1. Although Plaintiffs state that their motion is for "partial summary judgment," they are seeking judgment on all issues of liability. Their briefing, however; fails to addressmost of the affirmative he Defendants'defenses of her arthe gument that these I grant summary judgment on liability for the Defendants, I do not address Plaintiffs' motion for partial summary judgment should be denied on that ground, although I conclude their position has merit. FN2. I deny Coral Springs' motion to strike or exclude because it is mooted by my ruling on summary judgment in favor of the Defendants. FN 3. The Defendants have filed cross -motions to adopt the other Defendants' Motions for Summary Judgement [DE 287 and 2911. FN4. Dur'irig oral argument; I spent considerable time narrowing the undispUted•facts: Where geririane,l refer to the parties' stipulations during oral argument in the body of this Order. II. SUMMARY OF THE PLEADINGS The Plaintiffs have filed a three -count Third Amended Complaint ("Third Amended Complaint") [DE 160] seeking damages, declaratory and injunctive relief against Waste Management, ,98e City Coral Springs and the District. stri engage in Count 1, Plaintiffs allege that the Defendants have violated 42 U.S. § violating U.S. A. I, § 8, cl. 3 (the interstate commerce under the Dormant Commerce Clause allege that Defendants have States ovilolated,Plaintiffs' rights to engage "Dormant Commerce Clause"). In Count II, the Plaintiffsjudgment as to in foreign commerce under the Dormant Commerce Clause.FNS In Count wardlCounty s seek (Third Am. Compl. 1153). . carry on wit "those operations that Southern Waste and Sun may _ .. .. --. - - FN5. Although the Commerce Clause isaffirmative grant of power U.S. Coust. Art. 1, § 8, cl, 3, the Supreme Court has interpreted the clau se to contana negat ve aspect, the ngo called "Dormant Commerce Clause." The regula measues benefit Dormant Commerce Clause "'prohibits economic protectionism that is, or`/kla omar5 ITigned o112 Ct in- state economic interests by burdening out-of-state competitors. WY 6 v. 800,117 L.Ed.2d 1 (1992). Prior to the filing of the Third Amended Complaint, I had granted the Defendants' motion to dismiss Count III of the. Second Amended Complaint. [DE 121]. That Count was pled as an alternative rda Statutesclaratory judgmenAlthoughlali did not address m to the effect that the "materials" the Plaintiffs handle are not governed by Chapter403, Flo Count III with prejudice, it was not further amended in the Third Amended Complaint. 207, The Defendants have filed answers and numerous affirmative defenses he seeks Amended Complaint.r tortuous interference 206, 210]. Coral Springs also has filed a counterclaim [DE 73]. Specifically, theCity a ainst Southern Waste, an accounting and injunctive relief. Counter -Defendant Southern Waste has filed an answer to g the counterclaim [DE 78]. Because the counterclaim turns on the validityP fFr�hat theresolution of thecouOrdinance ntercla m under the Dormant Commerce . Clause,1 conclude, pursuant to Fe.d.R..Civ. 54(b), eao the count se there is should await a final determination of the Dormant Commerce Clause issue in the event of any app appeal, and because mmerce Clause issue on no just reason for any delay of the final resolution* 6ofthe Dormant mages onothe counterclaim,FN6 I shall entry of a I conclude there are material facts in dispute as to liability ud ment, but final judgment on Defendants motions for summary j not on the City's counterclaim which 1 shall stay g I also shall direct entry of a final judgment on pending the results of any appeal to the Eleventh Circuit Court of Appeals. the dismissal of Count III of the Second Amended Complaint. F N6. There are material issues of fact affecting liability which require resolution trial, iaEthanuding whethernvthe claimed etown intentional interference was with a business's relationship to the communitylarge. Manor, Inc., 647 So.2d 812, 815 (FIa.1994). At oral argument, the Plaintiffs conceded that final summary judgment on liability in their favor would not be appropriate at this juncture. III. FACTUAL BACKGRDUND'AND SUMMARYJUDGMENT.STANDARD The parties have filed a voluminous record purporting to comply with Local Rule requirements on summary judgment y d b submitting supporting affidavits and a multitude of depositions and the like [DE 277-280, 282, 284-286, 290-291, 294, 4, 305, 306, 309-312, 314, 316-318, 323, 335-336, 343, 348,350, 358-359]. Because it would not be helpful to the resolution of this cause, and because it would unduly lengthen this Order without any meaningful benefit, I decline to set forth a detailed factual recitation which discusses every fact presented, particularly where many of those facts are not material. Instead, I set forth below material facts which I conclude are not in dispute as supported by the record (with all inferences in favor of the non-moving party), and which are relevant to determine the specific issues raised by the respective parties' summary judgment motions. I do so based on my own review of this voluminous factual record, including the pleadings, the discovery and disclosure materials on file, and the affidavits. My review has been made more difficult because the Plaintiffs have not complied with Southern District of Florida Local Rule 7.5(B) by providing a single concise statement of material facts as to which they contend that thereexists a. genuine_ issueto be tried. They have provided three Statements of Facts. In addition, Plaintiffs have provided an "Issue Statement" which they have mislabeled as containing facts without proper citations to the record. Notwithstanding, 1 decline to grant Waste Management's motion to strike [DE 337]. I have applied the traditional standard for review under Fed.R.Civ.P. 56 and Eleventh Circuit case law to the undisputed material facts as determined below. This standard has been well -summarized in the parties' briefs. [ See DE 276 p. 3-4];. [DE 281, pp. 5-6; DE 292, p. 4-5]. Accordingly, I incorporate the standard by reference here.FN7 FN7. I grant Southern Waste's motion to strike the affidavit of Charles Lomangino [DE 338] and the affidavit of Anthony Lomangino [DE 339] which were filed in support of Plaintiffs' nopportunity Iralso concur les Lomangino was not disclosed as a witness, and the Defendants did not have an to depose him. with Southern Waste that the Charles Lomangino's affidavit contains conclusionary allegations and opinions which were not shown to be based on his personal knowledge, and, in any event, the affidavit lacks probative value because the majority of statements are not based on specific facts. Even if I considered the affidavit, it would not change my conclusions in this Order. Likewise, the majority of statements in Anthony Lomangino's affidavit are not based an specific facts. Rather, the affidavit contains conclusionary allegations, opinions, and hearsay. This affidavit is stricken as well. Even if I considered theaffidavit, it would not change. my conclusions.. ... *1347 IV. Summary of the Court's Ruling on SummaryJudgment I conclude the Defendants are entitled to summary judgment as a matter of law, and that the Plaintiffs' motion for partial summary judgment should be denied. The crux of this case is that Southern Waste wants the right to compete with Waste Management, the exclusive franchise holder for the collection odebris wh which has)in- in the City of Coral Springs. It then wants to haul the collected commercial waste to its sistecompany, Sun, District waste processing and recycling facilities in Broward County. FN8 By doing so, Southern Waste and Sun thereby seek to increase their market share for commercial C & D collection and processing.FN9 FNS. Plaintiffs are two related companies. Southern Waste is the hauling/collection arm. It utilizes trucks to collect solid waste materials from construction and demolitions sites in South Florida. Sun represents the disposal/processing arm. it owns and operates -facilities at two disposal-siteswithin the District (Dania. and. Pompano.Beach) that accept...... construction and demolition debris for processing, whereby some components are recycled and others are disposed of, primarily by landfill. In their Third Amended Complaint, the Plaintiffs allege that theyd deal in "materials." However, it is undisputed that this case is about commercial C & D and not some unspecified typeof FN9. Plaintiffs have testified that their claims in this case are about commercial construction and demolition debris generated in Coral Springs only, and not curbside waste collection. (Gusmano Depo. Tr. 245: 16-246:13). At oral argument, I inquired, "... [s]o you are here because you want to increase your market share legally in Coral Springs." Mr. Elsberry, on behalf of the Plaintiffs replied, "That is correct." I also inquired: "So you want to make it (Coral Springs) an open city, in effect, like some of the other cities in Broward 7" Mr. Elsberry replied, "That is correct." ---In-effect, the Plaintiffs want this Court, by-jc- udiial edict, to make Coral spring-san-"open city," like -Hollywood, Fort Lauderdale and Oakland Park (members of the District) for purposes of commercial solid waste collection. FN10 The only restriction Plaintiffs can identify as it pertains to their business in Coral Springs is the City's refusal to allow Southern Waste to place collection containers at commercial C & D sites. This is strictly an issue associated with the exclusive Franchise Agreement between Coral Springs and Waste Management. WhIfe e Plain iffs primary aim is to inval date the exclusive Franchise Agreement, and the companion city ordinance, they have attempted, in their Third Amended Complaint, to blur their constitutional claims by referencing so-called "flow control" regulations put in place by the District. The Plaintiffs then call the District's regulations; the City Ordinance and the Franchise Agreement "the Regime" without meaningfully distinguishing among the components of "the Regime." The Plaintiffs use this tactical approach to avoid clear Eleventh Circuit case law to which Southern Waste was a party. FN10. Different cities within the District treat the collection of construction and demolition debris differently. Some cities have exclusive franchises with haulers for the collection of all waste, includingnaall construction and demolition debris. Some cities do not have exclusive franchises with haulers of any type di At the same time, Plaintiffs are not against exclusive franchises within Broward cities. They are apparently happy with them when they are able towin them, as Southern Waste hasdone in Oakland Park within. the District.. In those instances, it has hardly confessed such arrangements constitute violations of the commerce clause. At no time during the pendency of this litigation has it withdrawn from exclusivity arrangements in Oakland Park.FN11 But neither Southern *1348 Waste nor Sun had competed for the exclusive franchise in Coral Springs. They are unhappy that Waste Management did, and that it enjoys the benefits of the exclusive franchise to the Plaintiffs' financial detriment through the remaining term of the Franchise Agreement. FN11. In East Coast Recycling, inc. v. The City of Port St. Lucie, 234 F.Supp.2d 1259, 1266 (S.D.FIa.2002), an operator of recycling facilities brought a Section 1983 action against the city and the county, alleging that, through interlocal agreement between defendants, and various city and county enabling ordinances, the defendants created a monopoly impermissibly directing the flow of solid waste to county -owned facilities, in violation of the Commerce Clause. In denying relief, the District Court noted, "The Court is quite confident that if East Coast were the favored facility, it would vigorously defend the arrangement and argue that there is no commerce clause violation." In the same manner here, this Court is quite. confident that if Southern Waste were the exclusive franchise holder in Coral Springs, and Waste Management was the complaining party, Southern Waste would vigorously claim that there is no Commerce Clause violation. The long, contentious history in these solid waste cases simply makes the point. It simply depends case -to -case as to who is financially disadvantaged. Essentially, all three counts of the Third Amended Complaint return to the basic issue of Waste Management's sole right to collect commercial construction and demolition debris as part of its Franchise Agreement with Coral Springs. AU of the evidence on summary judgment demonstrates that Plaintiffs' only real complaint is that Southern Waste is prevented by City Ordinance § 8-3 and the Franchise Agreement from collecting construction and demolition debris at commercial sites within the city. While the Plaintiffs implicate the District in the Third Amended Complaint, nothing from the District prevents Southern Waste from collecting G & D-in Coral Springs. Instead, C &-D collected in the District may be transported by haulersto Sun's facilities without any interference from the District under any of its plans of operation or interlocal compacts.FN12 All of Plaintiffs' witnesses, their "experts," and the Defendants' witnesses have testified that construction and demolition debris collected at commercial sites in Coral Springs can be delivered to Sun's facilities under the District's rules and policies. The only obstruction preventing this from happening its the Franchise Agreement and City ordinance. As such, the bottom line is that no Defendant has precluded Plaintiffs from taking materials they collect to Sun's facilities or anywhere else they desire within the District or out-of-state once the materials have been collected by Southern Waste and placed in their trucks. However, Sun does not want the materials hauled out-of-state because it does not own processing facilities other than in Florida, and it has no contractual relations with any out-of-state facilities. For that matter, nothing in the City's ordinance or in the Franchise Agreement prevents Waste Management from taking C & D from Coral Springs to Sun's facilities if it chooses to do so. Waste Management has elected not to do so for its own financial reasons since it hauls commercial C & D to its own processing facilities within the District. FN12. As conceded at oral argument, Sun has been operating its face1dent al C & D, are hauled by Southerninterference Waste's two District. It was further conceded that commercial C & D, as well as r facilities without interference from the District, notwithstanding that the hauling of commercial C & D is in violation of the City's ordinance and the Franchise Agreement. In.sum, there are no direct and material interstate commerce nexus concerns in this case. Southern Waste does not transport materials to any facility outside the State of Florida, nor does it, or Sun, operate any facilities outside the State of Florida. Neither*1349 has been denied the right by any Defendant from transporting commercial waste outside of the State of Florida. In point of fact, if an injunction was issued by this Court, Southern Waste concedes it would simply transfer the waste to Sun's facilities in Pompano and Dania, Broward County, Florida, for processing.FN13 Finally, Plaintiffs do not sell any of their products directly to customers located outside the State of Florida. At best, Sun contends that it sells materials to Florida customers, who, in turn, may ship te materials outside thState of below, there ahe no Dormant Commerce Clause Florida. (Gusmano Depo. Tr. 124:11-23). For reasons furtherdiscussed infringements pertaining to interstate or foreign commerce. FN13. Plaintiff Southern Waste alleges that "Sun Recycling is prevent from receiving the raw materials that it processes ..... and resells ..."..(Third Am, Compl._�136). But the Plaintiffs do not contend that it is the District that prevents Plaintiffs' from collecting C & D in Coral Springs or processing C & D collected in Coral Springs at Sun's facilities. ( See Gusmano Plaintiffs' Corp. Rep. Depo. Tr. 141:19-142:4; 144:5-9). V. ANALYSIS A. Prior Litigation Decided by the Eleventh Circuit Against Southern Waste. i��. [1] This is not the first time the issues raised in Plaintiffs' Third Amended Complaint have been litigated and resolved against it.FN14The essential and basic issue raised by the Third Amended Complaint concerns Coral Springs and Waste Management's right to enter into an Exclusive Franchise Agreement for the collection of commercial solid waste within Coral Springs. This same issue has been decided by the Eleventh Circuit Court of Appeals in a previous unsuccessful lawsuit brought by Southern Waste, the same plaintiff as in this case, against the City of Delray Beach, Florida. FN14. The Second Circuit noted almost a decade ago, "[a]lthough the flood of milk cases has receded in recent years, it has given -way to -a federal -docket that is ju--st as-clogged-with=of-all-things=gar-bage.'-SSC_Corp_v Town-of.Smithtawn,_66 F.3d 502, 504 (2d Cir.1995), cert. denied, 516 U.S. 1112, 116 S.Ct. 911, 133 L.Ed.2d 842 (1966). The following is a sample of the litigation involving the Plaintiffs where they have challenged local governments'.waste management methods: . Southern Waste, LLC v. City of Sunrise, Case No. 09-61302-CIV (S.D.Fla.); Southern Waste Systems, LLC v. City of Delray . Beach, Fla., 420 F.3d 1288 (11th Cir.2005); Southern Waste Systems, LLC v. Town of Lake Park, Fla & Waste Mgmt. of Florida, Inc., Case No. 05-80174-CIV (S.D.FIa.); Southern Waste Systems, LLC v.Town of Davie, Fla. & Waste Mgmt. Inc. of Florida, Case No. 05-608347-CIV (S.D.FIa). When faced with the fact that Coral Spring's Ordinance § 8-3 and franchise is virtually identical to the ordinance and franchise that were upheld by the Eleventh Circuit, Plaintiffs have patched together a legal theory involving a "Flow the Control Regime" of regulations that patently lacks merit and, misrepresentationsfrankly, contain dire t ng whepe wadsteymust factual record; namely, Plaintiffs allege that (1) Coral Springshas a flow control ordinance be.processed.and disposed of, and (2) that the. District prevents Southern Waste from collecting such waste, and further prevents Sun from receiving construction and demolition debris to process. In Southern Waste Systems v. City of Defray Beach, 420 F.3d 1288 (11th Cir.2005), the Eleventh Circuit rejected Southern Waste's challenge to Waste Management's exclusive franchise agreement with the City of Delray Beach under the Dormant Commerce Clause. A comparison of both cases establishes that the material facts are essentially the same. In the City of Delray Beach case, the City issued a request for proposals seeking a single contractor*1350 to provide comprehensive waste collection services within the City. Under that request for proposal ("RFP"), the successful bidder would become the exclusive provider of residential waste collection services, residential waste recycling services, and commercial waste collections services throughout the City. The agreement was to have an initial term of five years. Here, exclusivity is limited only to commercial solid waste collection services. Like the Delray. Beach cfase, Corty. al Springt'' ordinance is not a "flow control ordinance." FN15 It does not direct the flow of waste to anyspecific ther, iis a mandatory service ordinance compelling residents to use a particular franchise contractor for commercial C & D. As with such, this Easels directly.in line w�ththe sifuation in the Delray -Beach case, with one compelling diffeterice;'namely, Southern Waste Systems, which is in the business of collecting and disposing of construction and demolition debris, can readily compete within the City of Coral Springs for the collection of residential solid waste collection services. In order to do so, Southern Waste had to be a "licensed hauler" in accordance with City Ordinance 95-135. With such a license, Southern Waste would be authorized to collect and dispose of construction and demolition debris for single family and multi -family residential sites. FN15. As stated in United Haulers Association, Inc. v. Oneida -Herkimer Solid Waste Management Authority, 550 U.S., 330,127 S.Ct. 1786, 1790, 167 L.Ed.2d 655 (2007), "'flow control' ordinances require trash haulers to deliver solid waste to a particular waste processing facility." Here, the City Ordinance does not require Waste Management, or anyone else, to deliver waste to a particular private processing facility, let alone one operated by the District. In the City of Delray case, Southern Waste lacked the capacity to provide the full range of services specified in the proposal and did not submit a bid to the City of Delray Beach. The same is true here. Neither Southern Waste, nor its sister-company—Sun-RecyclingrlICsubmitted-a=bid to -the -City -of -Coral Springs, —nor -did -either -attend the-pr-e=pr-o.pose! conference, or otherwise express any interest in providing services to the City of Coral Springs in response to the RFP. Moreover, in the City of Delray case; five companies, including BFI Waste Systems of. North America, Inc. -a non -Florida company -did submit bids. Following a public hearing, the City awarded the contract to BFI; the lowest bidder.FN16 As dvantage in such, in that case, Southern Waste conceded that local firms enjoyed preference that WasteaManagementhwase lawla ng dedt he selection process. The same is true here. Southern Waste does notcontend bid other than through a non-discriminatory, open and fair bidding process. FN16. In City of Delray, the City and BFI entered into a contract that provided that BFI would be the exclusive wa Would hauler in the City. The contract further provided that, while the City would set the rates for waste collection, BFI directly bill and collect payment from the City's residents, and then transmit a 5% franchise fee to the City. The City codified the contract by municipal ordinance. In the present case, the City of Coral Springs, on May 20, 1998, issued a Request for Proposals for Solid Waste Collection and Disposal and Recycling Services. A pre -proposal conference was held on June 8,1998. Eleven firms attended the pre - proposal and four firms were short-listed by the City's Selection Committee. The four firms included BFI-the same non - Florida company involved in the City of Delray case, as well as Waste Management, Kimmins Recycling and AU Service Refuse. All Service Refuse was incorporated in Florida in 1979 but later was *1351 merged into Republic Services of ttee recommended that Florida, a Delaware limited partnership. BFI was a Delaware corporation. forth in the Request the RFP be awarded to Waste Management as the highestranked proposer under the criteria for Proposals. Thereafter on February 16, 1999, the City Commission accepted the recommendation of the Selection Committee and approved a contract with Waste Management. The evidence of record conclusively estabr lishes fiat the bid process was fair, non-discriminatory and open to all and did not favor one company over locale. The bid process also included out-of-state participants. The Franchise Agreement, among other rights, grants to Waste Management "the exclusive franchise and concomitant _ obligation to provide solid waste collection services within the municipal borders, except for residential construction an - demolition debris ... and except for commercial recycling pursuant to § 403.7046, Florida Statutes." IDE 280-6, p. 3]. According to § 2.02 of the Agreement, Waste Management is to delivery facility the solid facilit esedescollected ignatedbn the plan of dentiof and commercial] "... to the resource recovery system transfer or disposal or operation under the Interlocal Agreement with Broward County for Solid Waste Disposal Service, dated November 25, 1986, unless otherwise provided for by agreement with the Broward Solid Waste Disposal District to accommodate a City waste material recycling program." Id. Pursuant to § 8-3 of the City Code, every owner or tenant is required to utilize Waste Management as the City's exclusive provider, to collect and dispose of all solid waste, refuse, trash and debris generated at commercial construction or demolition sites and requires every owner, tenant or resident to utilize a licensed hauler for residential construction and demolition sites. Unlike in he City of Delray Beach case, in this case, Southern Waste does not claim in its Third Amended Complaint that any customer to -whom Southern Waste has supplied C- & D commercial -service in violation -of the. City's Ordinance. has been cited, nor has Southern Waste claimed that it has been fined for violating § 8-35(8)(a) which imposes a maximum $500 fine for violation of the Code.FN17 Nonetheless, the City of Coral Springs has provided ample evidence that Southern Waste has been systematically violating the City Code by collecting commercial construction and demolition debris since at least 2002. It continues to do so even a ter receiving Notues ofViolations and -has even offered to pay fines assessed against its customers. services was ted FN17. In the City of Delray Beach case, a customer to whom Southern Waste supplied and & D underlying agreementifor violating the ordinance. Southern Waste filed the action to challenge the ordinance between the City and BFI. Southern Waste asked the court to declare that the exclusive franchise violated the Commerce Clause of the United States Constitution and to enjoin its enforcement as to C & D. After Waste Management purchased various assets of BFI and assumed BFI's rights and obligations under the contract and ordinance, it was substituted as a party. [2] t In the City of Delray Beach case, the district court granted partial summary judgment to Southern Waste on its claim for injunctive and declaratory relief, holding that the exclusive franchise agreement violated the Commerce Clause, and enjoined enforcement ofthe-portionsof the agreement and ordinance pertaining to C & D. Upon review, - the Eleventh Circuit reversed holding that the contract in question did not violate the Commerce Clause because it did not favor in -state haulers. In rendering its decision, the Eleventh Circuit determined that the City's ordinance*1352 did the usive not violate the "dormant" side of the Commerce clause FN18 "... a nd intrastate -from to lect waste the City to one company, thereby excluding all other companies -both interstate City of Delray Beach, 420 F.3d at 1290. FN18. The Commerce Clause provides that "Congress shall have Power ... to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U'S. oseto st.,Amplrt.lict ly precludStates from imposing The ethe interpreted the very existence of Congress' powers under the Commerce Clau excessive restrictions on that same power. See Dennis v. Higgins, 498 U.S. 439, 447, 111 S.Ct. 865, 112 L.Ed.2d 969 mant" or ative" (1991). This implicit Constitutional restriction upon the e do m dormant Commerce Clause as become known as there(notrl'mited to Stages, but also Commerce Clause doctrine. Further, the strictures of th - apply to counties -within each State: -Ft, Gratiot Sanitary Landfill, Inc. v. Michigan. Dept... of Natural..Resources, 504 U.S. 353,112 S.Ct. 2019, 119 L.Ed.2d 139 (1992). In a manner which resolves the first prong analysis in this case as it relates to the Franchise Agreement and the City's Ordinance, the Eleventh Circuit stated: In this case, SWS claims that the City's ordinance violates the dormant Commerce Clause because it awards the exclusive right to collect waste in the City to one company, thereby excluding all other companies -both interstate and intrastate - from waste collection. SWS relies for this claim on the Supreme Court's decision in C & A Carbone, Inc. v. Town of Clarl<stown, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994). in that case, the Court struck down local train par al ordinance that awarded exclusive rights to process all town solid waste to a single, privately owned sf station. 511 U.S. at 391,114 S.Ct. 1677. The ordinance mandated that all waste haulers in the town transport their waste to the local station for processing. The Court held that such an arrangement constituted a "forced business transaction" that unconstitutionally favored the local processor, the reby discriminafing against out-of-state interests: l . at 391-92, 114 S.Ct. 1677. Following Carbone, waste haulers around the country challenged municipal waste collection agreements that awarded exclusive rights to collect waste to one hauler, arguing -that their exclusivity consfitu�es a orced-busir t- ransaction that offends the Commerce Clause. None was successful. See Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 17$ (1st Cir.1999); USA Recycling, Inc. v.Town of Babylon, 66 F.3d 1272 (2d Cir.1995); Barker Sanitation V. City of Nebraska City, No. 4:02CV3330, slip op. at 14-22 [2003 WL 24275215] (D.Neb. Nov. 4, 2003); Waste Management of Alameda County, Inc. v. Biagini Waste Reduction Sys. Inc., 63 Cal.App.4th 1488, 74 Cal.Rptr.2d 676 (Cal.App. 1 Dist.1998). See also Harvey & Harvey, Inc. v. County of Chester, 68 F.3d 788, 807 (3d Cir.1995) (dormant Commerce Clause inquiry should focus "on the designation process, on the reasonableness of the duration of the designation and on the practical likelihood of [designation of] an out-of-state facility"). These courts all agreed that there is nothing inherently discriminatory in the award of an exclusive waste hauling contract. As the Second Circuit noted in USA Recycling: For ninety years, it has been settled law that garbage collection and disposal is a core function of local government in the United States. At their option, cities may provide garbage pick-up to their citizens directly ... Or they may rely on a closely regulated private market to provide those services...: [W]e reject the *1353 plaintiffs' contention that the Carbone decision fashioned from the "dormant" Commerce clause a new, and unprecedentedly sweeping, limitation on local government authority to provide basic sanitation services to local residents and businesses, on an exclusive basis and financed by tax dollars. Id. at 1275-76. The Commerce Clause forbids only the promotion of local economic interests over out-of-state interests. It does not forbid exclusive franchise agreements whereby a city selects one waste hauler to provide basic waste collection services to its citizens, so long as the bidding process is open to all, and there is no requirement that local interests be favored in the performance of the contract. As the Second Circuit concluded in USA Recycling: There is no reason to assume that by shifting all hiring of garbage haulers into the hands of one buyer, the flow of interstate commerce will be reduced, and thereby burdened. In fact, the open bidding process used by the Town to hire a single garbage hauler could readily result in the hiring Of an out-of-state garbage hauler -which would actually shift a portion of the garbage collection market into interstate commerce. Id. Indeed, in the instant case, the waste collection franchise was not only open to out-of-state competitors, but it was, in fact, awarded to one. There is nothing in the record to support the claim that the City's actions constituted the sort of "local economic protectionism" that the Commerce Clause forbids. Carbone, 511 U.S. at 390,114 S.Ct. 1677. We agree with the First Circuit that "to the extent that in -state and out-of-state bidders are allowed to compete freely on a level playing filed, there is no cause for constitutional concern." Houlton, 175 F.3d at 189. The award of an exclusive waste hauling contract to the low bidder after a fair and open bidding process that has the effect of excluding all others for the term of the agreement does not, for this reason, offend the Commerce Clause. City of Delray Beach, 420 F.3d at 1290 (Emphasis added). [3] As explained in City of Delray Beach, a two tier analysis is implemented 7 � Stermine 617, 624, 98 S.Ct. 2531t57 L.Ed.2d e violates the dormant Commerce Clause. City of Philadelphia v. NewJersey, 475 (1978); Delray Beach, 420 F.3d at 1290. Under the first tier, if the statute is found to discriminate against interstate commerce on its Lace, or as the effect of discriminating against out=of=state interests rests -too th-e benefit of-in=state economic interests, the statute will generally be struck down as a per se constitutional violation. Id. But, even if the ot statute discriminates against interstate commerce, it will be-upheldc Inc.v.legitimate Cl rk townlocal 511 U.S. 383that 392n114 be fulfilled by other reasonable nondiscriminatory alternatives.0 & A Carbone S.Ct. 1677, 128 L.Ed.2d 399 (1994). "At a minimum such facial discrimination invokes the strictest scrutiny of any purported legitimate local purpose and of the absence of nondiscriminatory alternatives." Hughes v. Oklahoma, 441 U.S. 322, 99 S.Ct. 1727, 1737, 60 L.Ed.2d 250 (1979). If the statute passes the per se analysis, it may nevertheless be found. unconstitutional under and that the second tier of analysis. interest With the second category -the "evenhanded statutes" that effectuate a legitimate local only incidentally affect interstate commerce -the Court must apply the " Pike balancing test." The statute will be upheld unless the burden it imposes on interstate commerce is "'cley84454 excessive in relation 25 L.Ed 2d 174 (1970) ►on City of Deputative lray Beach, the benefits: " Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. Eleventh Circuit did not consider the second tier analysis because the district court did -not reach this second step in its review of the ordinance. City of Delray Beach, 420 F.3d at 1290 n. 3. Here, based upon my review of the entire record, and applying applicable summary judgment standards, I conclude that the Franchise Agreement and City Ordinance do not constitute per se constitutional violations by discriminating on their face, individually and collectively, by awarding exclusive rights to collect and dispose of commercial waste to Waste Management; that is, Ordinance § 8-3 does not facially discriminate or even implicate interstate commerce as it merely requires the use of Waste Management for commercial waste collection in Coral Springs. As the Eleventh Circuit concluded in City of Delray Beach, there is nothing in the bid process here which promoted local economic interests over out-of-state interests. The bidding process was open to all, and there was no requirement that local interests be favored in the performance of the contract. I find nothing in the record to support the claim that the City's actions constituted the sort of "local economic protection" that the Commerce Clause forbids.FN1 en aeerely Plan because oe the aCionsity ordinance nce arnd Franchise Agreement required compliance with the Districts Interlocal Agreem -does not itself violate the Commerce Clause. East Coast Recycling,. Inc. v_..City.ofP.ort.St. .Lucie, 234 F.Supp.2d 125.9,12.64 (S.D.FIa.2002) (holding that "mere reference to the Interlocal Agreement in the city's ordinances, even assuming the lnterlocal Agreement impermissibly burdens interstate commerce by restricting the flow of solid waste, is not enough to render those ordinances invalid.").FN20 FN19. Prior to the Eleventh Circuit's opinion in City of Delray Beach, Southern Waste had filed a similar challenge to the Town of Davie and Waste Management's franchise agreement and sought preliminary injunction. Southern Waste Systems, Inc. v. Town of Davie, Florida and Waste Management Inc. of Florida, Case No. 05-60847-DIV-DIMITROULEAS. In that case Southern Waste claimed that the Town's exclusive solid waste franchise agreement with Waste Management violated the Dormant Commerce Clause because commercial builders and contractors were not free to transact business with any contractor, other than Waste management, for the removal of C & D materials. Southern Waste claimed that the Town of Davie does not pay for the service provided by Waste Management -only builders and contractors pay Waste Management and that theTown received a -"financial donation" fromW—asrte Management• whereby a portion of the revenue generated by Waste Management is given back to the Town. Denying preliminary injunction, Judge Dimitrouleas found no per se violation. Additionally, balancing the effects of the Franchise Agreement upon interstate commerce against the.putativelocal benefits, the Court found that any burden on interstate commerce can only fairly be described 'as de minimis. The case was ultimately voluntarily dismissed by Southern Waste. FN20. Even assuming I concluded that the alleged "scheme" in the Interlocal Agreement and Plan of Operations was unconstitutional, Southern Waste would still be prohibited by the Franchise Agreement and Ordinance from collecting C & D from commercial sites within Coral Springs, which, in turn, would preclude it from taking from taking the materials from Coral Springs to Sun. B. The District's Flow Control Regulations [4] 2The Plaintiffs do not raise in their Third Amended Complaint, or argue on summary judgment, any second prong Pike issues solely related to the Franchise Agreement and Ordinance.FN21 Instead, *1355 they do so as to the "Flow Regime." Accordingly, 1 do not apply a Pike analysis to the Franchise Agreement and Ordinance alone, but, if l did, I would reach the same result as that set forth below regarding the District's regulations. FN21. At oral argument, the Plaintiffs concede that they did not claim a Pike violation based only on the City Ordinance and Franchise Agreement. Attempting to avoid the clear precedent of City of Delray Beach, the Plaintiffs have blurred the analysis by combining their claims regarding the Franchise Agreement and City Ordinance with a purported "flow control" regulation put in place by the Broward Solid Waste Disposal District. The linkage, claim Plaintiffs, is that the Franchise Agreement provides that Waste Management must deliver the solid waste collected in Coral Springs to a resource recovery system transfer or disposal facility or facilities designated in the Plan of Operation under the Interlocal Agreement with Broward County for Solid Waste Disposal Services ("BSWDD"). The Plaintiffs claim that "[s]uch combination of contracts, . ordinances and interlocal agreements constitute de facto regulation by Coral Springs and the BSWDD of theeprocessing and disposal of the Southern Waste and Sun Recycling dealt with materials that discriminates against interstate and foreign commerce by requiring all processing and disposal of such waste to occur within Broward County, Florida ...." (Third Am. Compl., ¶ 31). To begin with, neither Southern Waste nor Sun can point to any action taken by the District which prevents either of them from hauling and processing C & D once it is collected within Coral Springs. No rule or regulation of the District prohibits Southern Waste from taking materials to Sun's disposal facility in Broward County (even commercial materials in violation of the Franchise Agreement). To the contrary, the District's Plan of Operation specifically envisions and allows such transport and delivery.FN22 In fact, Sun's facilities in Pompano and Dania have always been listed as approved alternative facilities for Unprocessable Waste and Construction and Demolition Debris under Broward • County's Plan of Operation, and, unlike Sun's competitors in other counties in Florida that are not listed as approved facilities, Sun "is a favoredfocaTfacility Untie? the-- Plan -Of "Operation."No rule orregulation ofthe -Districtpreven s or prohibits collection by Southern Waste in Coral Springs. FN22. I discuss this point in more detail later in this Order. The situation here is that Plaintiffs are local companies, who conduct an entirely local business, Southern Waste concedes it does not transport materials to any facility outside of the State of Florida (and has admittedo desire to do hat none so).of Nor do the Plaintiffs own or operate any facilities outside the State of Florida. Sun has further customers (to whom it sells the various components, that Southern Waste collects) are located outside of the State of Florida. Neither Southern Waste or Sun have requested permission from the District to transport waste outside of the State of Florida. The interstate nexus is nonexistent and contrived.FN23 FN23. What is truly bizarre about this case is Sun's argument that its own facilities are currently operating in violation of the Interlocal Agreement and the Plan of Operations while the District unequivocally says that Sun's facilities are in full compliance, and none of the facilities has ever received a notification of non-compliance. At oral argument, I inquired if Sun was prepared to cease its operations immediately within the District. Mr. Elsberry, on behalf of Sun, replied, "No, - sir, I_ddn't mean.to suggest est that". Given this situation, Southern Waste, now joined by Sun, once again seeks to reassert prior unsuccessful Dormant Commerce*1356 Clause claims by implicating "the flow control regime." [DE 292, p.1]. They claim that the City, working in concert with the Broward Solid Waste Disposal District and Waste Management, discriminates against interstate commerce by (1) requiring all material generated at commercial construction and demolitions sites within the City be delivered to and processed at certain privately -owned local facilities, and (2) impeding the flow of the materials, and the byproducts created from processing such materials, from entering interstate and foreign commerce. They contend that the "flow control regime" comprises four elements: (1) the Interlocal Agreement with Broward County for Solid Waste Disposal Service (the "ILA"); (2) the Plan of Operations ("the Plan"); the City's ordinances, specifically Ordinance § 8-3 ("the Ordinance"), and the Franchise Agreement between the City and Waste Management.FN24 FN24. The Plaintiffs claim without evidentiary foundation sufficient for summary judgment that the City's actions are precludirig materials geherated in the- City from being processed out-of-state because -the -city is using its leverage in the collection and disposal markets to exert a regulatory effect in the processing market by requiring Waste Management to dispose of the material at the processing facilities designated in the Plan, which are only located in Broward County. However, neither the Interlocal Agreement nor the accompanying Plan of Operations prevents the delivery of solid waste and C & D outside of the State of Florida. Virtually ignoring the Eleventh Circuit's City of Delray Beach decision, the Plaintiffs claim that the Defendants have attempted to circumvent what is constitutionally permissible with respect to controlling the flow of materials generated in Broward municipalities, as previously determined in Coastal Carting Ltd. Inc. v. Broward County, Florida, 75 F.Supp.2d 1350 (S.D.Fla.1999). Of course, much has happened since Judge Gonzalez issued his Coastal Carting decision. Since that time; the Interloea1-Agreement and the Plan of Operations now allow,. and have .done so during.tha.pendency .ofthis. litigation, the disposal of solid waste and construction and demolition debris outside of the State of Florida and at alternative locations in the District, but not at other facilities in the State of Florida outside of the District. Also, the United States Supreme Court has rendered additional decisionswhich further clarify the applicable law on the Dormant Commerce Clause. I will -discuss that in due course. But, since Mb-Faiffs rely on oasTarCarting case; it-isfir important to put the circumstances of that case in context. _ In Coastal Carting, a solid waste hauler brought an action against Broward County; twenty-threeDistalleging mu its paat Bries in Broward County, and the Resource Recovery Board of Broward Solid Waste Disposal ard County Ordinances §§ 87-3 and 87-4 were unconstitutional and unenforceable. Citing to the Supreme Court's decision in Carbone, the Court found that the restrictions imposed .by Ordinances §§ 87-3 and 87-4 on waste collection and disposal in Broward County violated the Commerce Clause of the United States Constitution. Judge Gonzalez found that the "... real problem in Broward County, which is analogous to the problem in Carbone, is that, with respect to the local waste, the ordinance favors two Broward County transfer stations thereby forcing waste haulers to keep the waste in the County while depriving interstate or intercounty interests of access to the local processing market." 75 F.Supp.2d at 1356. In essence, Judge Gonzalez found that the real problem is the fact that Coastal, the hauler, was prevented from taking the waste outside of Broward County. Id. *1357 The complex Broward scheme, which was the subject of the Coastal Carting case, shares s a commAmerion factual c. t Broward background with this case, with some important additions.FN25 In BFI Waste Systems of County, Florida, 209 F.R.D. 509 (S.D.FIa.2002), Judge.Gonzalez again addressed the interrelationships among the various entities in a matter which is pertinent here: FN25. The parties' factual statements are consistent with Judge Gonzalez's order. I see no reason to restate what has been already set forth by Judge Gonzalez, except to note important additions which have occurred since his order. The relationships between and among the various agreements, ordinances, parties, and persons absent from this case, raised by the County's Motion to Dismiss, are complex. But, because the precise nature of these relationships is an essential element of the foundation upon which the Court's Order is based, the Court will attempt to elucidate them as succinctly as practicable. With its landfills burgeoning in the Tate 1980s, the County, like many political subdivisions in states nationwide at that time, took steps to address the problems associated with the disposal of solid waste. The County, along with twenty- three (23) of the County's incorporated municipalities (the "Cities"), entered into "An Interlocal Agreement with Broward County for Solid Waste Disposal" (the "Interlocal Agreement"). See Compl. 119 and Compl. Ex. A. (a copy of the Interlocal Agreement). The Interlocal Agreement, and the ordinances adopted, respectively, by the individual Cities and the County pursuant thereto, collectively established the Broward Solid Waste Disposal District (the "District"). See Interlocal Agreement ¶ 5.1; Coastal Carting, 75 F.Supp.2d at 1352. The District was therefore comprised of twenty-four (24) separate entities: the twenty-three (23) incorporated municipalities—i.e., the Cities; and the twenty-fourth entity, which was the County itself. See Coastal Carting, 75 F.Supp.2d at 1352. Importantly for addressing the merits of the County's Motion to Dismiss, the County assumed its various obligations under the Interlocal Agreement in two distinct capacities: (1) the County assumed some of its obligations as the representative of the unincorporated areas of the County, and (2) the. County assurriedother: obligations as tfie County itself; ffiaf is, the political"subdivision in which the Cities are situated. See Interlocal Agreement 111.5 ("the COUNTY is entering this Agreement both representing unincorporated County, a waste generation area with solid waste requiring disposal, and COUNTY, as the party assuming the obligation under this Agreement for the disposal of solid waste for the [Cities] as well as for the unincorporated County"). The County, in the "Factual Background"section of its Motion to Dismiss, states that a twenty-fourth incorporated municipality subsequently elected to join the District, bringing the total number ofentities comprising the District to twenty-five (25). The contractual rights and obligations created in the Interlocal Agreement are manifold. The Cities and the County agreed that the County, either by itself or by engaging independent contractors, would construct and maintain a "resource recovery system," which would include two new solid waste disposal facilities. See Interlocal Agreement ¶¶ 1.3,1.4, and 2.17. The County financed the construction of these state-of-the-art disposal facilities by issuing bonds. See Compl. ¶ 6. The Cities and the County also agreed that the Cities *1358 and the County, acting as representative of the unincorporated areas, would adopt "flow control ordinances" directing that solid waste generated in their respective geographic areas.be delivered to the designated facilities of the resource recovery system. See Interlocal Agreement ¶ 3.2. The constitutionality, under the Commerce Clause of the United States Constitution, of the flow control ordinance passed by the County pursuant to the Interlocal Agreement__— i.e., Broward, Fla., Ordinances 87-3 and 87-4 (March 10, 1987)-was the subject of Coastal Carting; this Court held that those ordinances unconstitutionally discriminated against interstate commerce. See Coastal Carting, 75 F.Supp.2d at 1357. To ensure that the County would be able to meet its financial obligations associated with the bond issuance, as well as its other obligations under the Interlocal Agreement, the Cities and the County -again, acting as representative of the unincorporated areas -also agreed, inter alia, that they would include in any contracts between them and solid waste haulers a provision requiring all solid waste hauled under such contracts to be delivered to designated disposal facilities within the resource recovery system. See Interlocal Agreement ¶ 3.3. To avoid ambiguity regarding whom such hauling contract provisions were intended to benefit, the Interlocal Agreement provides that "[t]he COUNTY will be a third party beneficiary ofsuch provisions. See Interlocal Agreement-11-3.3. In essence, therefore, the County itself is -intended to be the "third party beneficiary" of the contracts it signs, as the representative of the unincorporated areas, with solid waste haulers. The import of all of this is made clearer by Articles 5, 6 and 7 of the Interlocal Agreement, which relate, respectively, to the following: the creation of the Resource Recovery Board (the "RRB"); the setting and charging of "tipping fees" and service charges; and the collection of tipping fees. See Interlocal Agreement Art. 5, 6 and 7. See Interlocal Agreement ¶¶ 2.16, 5.1. The RRB, as the governing body of the District, adopts and revises.the tipping fees that solid waste haulers are charged for delivering solid waste to the disposal facilities of the resource recovery system. See Interlocal Agreement ¶ 6.1. While the RRB sets the amount of tipping fees haulers are to be charged, under the Interlocal Agreement it is the County, as the County itself, that bills haulers and collects the tipping fees. See Interlocal Agreement 11 7.1. The Inter --local Agreement further provides that the_ Cities and-the-Co.unty,_as. representative of the unincorporated arras, will_ . include in any contracts with haulers provisions requiring the haulers to pay tipping fees to the County, and that "the COUNTY shall be a third party beneficiary of such provision." See Interlocal Agreement ¶ 7.5.Once again, the County itself is the "third party beneficiary" of contracts the County, acting as representative of the unincorporated areas, enters into with haulers. The express purposeof the Interlocal Agreement can be summed up as follows. The County agreedto construct two . state-of-the-art solid waste disposal facilities -and incur the indebtedness associated with that project, in the form of its bond issuance -in exchange for the pledge of the Cities, and the County as representative of the unincorporated areas, to guarantee the County a revenue stream of tipping fees by including provisions appropriate to this purpose in any contracts they sign with solid waste haulers. Paragraph 1.4 of the Interlocal Agreement states: *1359 It is recognized by [the Cities] and COUNTY that the proposed resource recovery system to be constructed, operated, maintained and repaired by the COUNTY ... will be done in reliance upon the existence of the committed flow of solid waste from [the Cities] and unincorporated County and the revenue generating capabilities of [the District] created herein. BFI Waste, 209 F.R.D. 509, 510-12 (S.D.Fla.2002). Moreover, in BFI Waste, Judge Gonzalez stated that the arrangement met a stumbling block by virtue of his earlier decision in Coastal Carting. He further explained: In the wake of this Court's Coastal Carting decision, the Cities and the County took several steps. First, on May 21,1999, the Cities and the County amended the Interlocal Agreement. See Compl. ¶¶ 32-33 and Ex. E. In one of the "Whereas" clauses prefacing the amendment to the Interlocal Agreement, the text refers specifically to this Court's decision in Coastal Carting and the Supreme Court's decision in C & A Carbone, Inc. v. Town of Clarkstown, 511 U.S. 383,114 S.Ct. 1677, 128 L.Ed.2d 399 (1994) upon which this Court in part based its ruling in Coastal Carting, and then states as follows: [i]t is the intent of this amendment to require the parties to the Interlocal Agreement to conform the laws and rules governing [the District] to the case law regarding flow control and remove all barriers, restriction, impediments and regulations of whatever nature from any solid waste generated in Broward County which is destined for disposal outside of the State of Florida. Compl. Ex. E at 1. The amendment revised paragraph 3.3 of the Interlocal Agreement to provide the following: Each party agrees to include in any contract or contract amendments with haulers executed after the date of execution hereof, a provision that all solid waste shall be delivered to the resource recovery system transfer or disposal facility or facilities designated in the plan of operations and to enforce such provision, with the exception of waste generated in Broward County which is shown to be destined for transportation to any destination outside of the State of Florida. Compl. Ex. E at 2 (emphasis added). The RRB adopted an analogous revision to the Plan of Operations on March 19, 1999. See Compl. Ex. F. at 1. On July 13, 1999, the County amended Ordinance 87-4, one of those comprising its flow control ordinance found to be unconstitutional in Coastal Carting. See Compl. ¶1129-31 and Ex. D. Analogously to the amendment to the Interlocal Agreement, one of the "Whereas" clauses prefacing the amendment to the County's flow control ordinance states: Even tIrugh the County disputes the Court's findings, in an effort to avoid future litigation which challenges the validity of flow control ordinances adopted by the County and the [Cities], it is the intent of this amendment to conform the laws and rules governing [the District] to the case law regarding flow control and to remove all barriers, restrictions, impediments and regulations of whatever nature from any solid waste generated in Broward County which is destined for disposal outside of the State of Florida ... Compl. Ex. D at 1-2. The amendment recites the original content of the ordinance, that is, "the County on behalf of the unincorporated area of Broward County, Florida, hereby directs that all solid waste generated within the unincorporated area of the county be delivered*1360 to -the resource recovery system transfer or disposal facility of facilities designated in the plan of operation under the Interlocal Agreement ..." See Compl. Ex. D at 2. The amendment then states: Waste generated in Broward County which is shown to be destined for transportation to any destination outside of the State of Florida based upon a sworn affidavit of a hauler delivered to the County reciting facts which evidence the transportation and disposal of waste outside the State of Florida is excluded from the flow restrictions contained herein. Compl.-Ex. E_at3. The amendment also provides that the County "will confirm [sic] the terms and_ conditions of any agreement it may have with a hauler of solid waste to the terms and conditions of the Interlocal Agreement." Compl. Ex. Eat3. Therefore, what is important in the present case is that in 1999, the Plan of Operation was substantially amended. The Fifth Amendment to the Interlocal Agreement dated May 21, 1999, amended Section 3.3 to provide an exception for any waste generated in Broward County which is shown to be destined for transportation to any destination outside the State of Florida. Likewise, in 1999, the Plan of Operation was amended to provide that "[w]aste generated in Broward County which is shown to be destined for transportation to any destination outside of the state of Florida ... is excluded from the flow control restrictions contained herein." Section I(B) of the Plan of Operations makes clear that it applies to all solid waste generated in the District, including C & D. Even though Plaintiffs acknowledge that the Plan of Operations and Interlocal Agreement provide for an out-of-state exception, Plaintiffs claim without basis in the record sufficient for summary judgment, that the exception is "illusory and pre -textual:" FN26 Thy claim that Defendants' actions constitute economic protectionism and that the Defendants discriminate by requiring the "Materials" to be delivered to and processed at local privately -owned facilities and by - hoarding the "Materials and byproducts." As discussed below, Plaintiffs lack standing to raise this argument because neither Plaintiff has sought, let alone been denied, the right to move the "Materials" out-of-state. Rather, Southern Waste and Sun simply want to prevent the hauled commercial C & D from ending up in some other District landfill other than Suns. But, even if Plaintiffs had standing, they have patently failed in their attempt to unearth purported proof for this argument for summary judgment purposes. Simply stated, Plaintiffs have failed to present any evidence of any hauler that attempted to take C & D out-of-state and was prevented from doing so by any Defendant. Nor is there any evidence that the lnterlocal Agreement and Plan of Operations somehow preclude waste generated outside of the State of Florida from being disposed of at facilities *1361 within the District. Nothing on the face of the Plan of Operations, or from any evidence presented, sufficiently establishes that the financial or administrative burdens imposed on waste hauled out-of-state will be difficult to meet, or that such requirements were imposed to prevent waste from being -trariS'PdRecl-out=of state in a manner different from those haulers whi5 dispose of waste at -the ResoorceRecovery - Facilities in the District in a proper and safe manner. FN26. Notably, Plaintiffs do not support this argument with any facts in the form of affidavits, declarations, discovery responses, or depositions to demonstrate that -they, or anyone else, have begin prevented -from utilizin-g-the-o-utrof=state exception of the Plan of Operations or that the reporting requirements contained in the regulations constitute differential treatment cif interState interests that burden interstate commerce and benefit local interests. The only evidence. in the record supports that the reporting requirements apply equally to instate and out-of-state haulers: These reporting requirements are the only way the District ensures that waste is either being disposed of out-of-state or at the Resource Recovery Facility, landfills or alternative facilities designated in the Plan of Operations, and not at facilities located elsewhere in Florida. Moreover, the Plaintiffs have not attempted to transport waste outside of the State of Florida; have never been prevented by any Defendant from doing so, and have not shown that the reporting requirements included in the Plan of Operations preclude them from doing so. Plaintiffs' arguments dealing with out‘ -of -state reporting requirements have no bearing on the causation of Plaintiffs' alleged injuries by the District or the City. I conclude that Plaintiffs' arguments that the District is not entitled to -summary judgment if the District "integrally participated" -in the acts causing the alleged violations under § 1983 patently lacks factual basis in the record presented on summary judgement and does not create a material issue of fact. Moreover, Plaintiffs' other argument (as it pertains to Sun) that Sun is no longer an "alternative facility" and that there are no current "alternative.facilities" because none of the facilities complied with Section I(c)(1)- (3), and that the Plan of Operations now only designates the BIC and Central Disposal Landfill to receive C & D is another patent misreading of the Plan which blatantly ignores the uncontested and undisputed facts of record. C. Per Se Analysis Applied to the District's lnterlocal Agreements and its Plan of Operation [5] During the course of this litigation, the Supreme Court decided United Haulers Ass'n v. Oneida -Herkimer Solid Waste Mgmt. Auth., 550 U.S. 330, 127 S.Ct. 1786, 167 L.Ed.2d 655 (2007), which has direct impact on this case. In United Haulers, the Court held that county flow control ordinances that required all waste be delivered to facilities owned and operated by a state -created public benefit corporation, and that treated all in -state .and out-of-state private haulers the same, do .not discriminate for. -purposes of. dormant _Commerce .Cla use...ld.. at.17.90. Th.e. facts i.n. Unite_d Haulers.were explicitly distinguished from the facts found in Carbone, which, in contrast to the former, involved a private business entity receiving the favored local benefits. See Carbone, 511 U.S. at 387, 114 S.Ct. 1677. Thus, under this public -private distinction a state or municipality will not be subject to per se invalidity if the ordinance requires both local and out-of- state haulers to deliver all waste to a publically owned facility. The United States Supreme Court further explicated its decision in United Haulers in Department of Revenue of Kentucky v. Davis, 553 U.S. 328, 128 S.Ct. 1801,170 L.Ed2d 685 (2008). The Court there stated: FN27 FN27. The Supreme Court further clarified the distinction between United Haulers and Carbone by stating: "In so holding, we distinguished our decision in C & A Carbone, Inc. v. Clarkstown, 511 U.S. 383, 114 S.Ct. 1677, 128 L.Ed.2d 399 (1994), which struck clown a very similar ordinance on Commerce Clause grounds. The Carbone ordinance, however, benefitted a private processing facility, and we found "this difference constitutionally significant" for the reasons - adverted to in the main text: See United -Haulers, 550- U.S. at 334,127-S.Ct r at-1790..Although-the.Carbone . dissent . . argued that the private facility was "essentially a municipal facility," 511 U.S., at 419, 114 S.Ct. 1677 (opinion of SOUTER, J.), United Haulers relied on the apparent view of the Carbone majority that the facility was properly characterized as private, see 550 U.S., at 339-340,127 S.Ct., at 1793-94." Id. at 128 S.Ct. at 1809 n. 8. *1362 Our most recent look at the reach of the dormant Commerce Clause came just IastTerm, in a case decided independently of the market participation precedents. United Haulers, supra, upheld a "flow control" ordinance requiring trash haulers to deliver solid waste to a processing plant owned and operated by a public authority in New York State. We found "[c]ompelling reasons" for "treating [the ordinance] differently from laws favoring particular private businesses over their competitors." Id., at 342,127 S.Ct., at 1795. State and local governments that provide public goods and services on their own, unlike private businesses, are "vested with the responsibility of protecting the health, safety, and welfare of [their] citizens," ibid., and laws favoring such States and their subdivisions may "be directed toward any number of legitimate goals unrelated to protectionism," id., at 343, 127 S.Ct., at 1796. That was true in United Haulers, where the ordinance addressed waste disposal, "both typically and traditionally a local government function." Id., at 344, 127 S.Ct., at 1796 (quoting United Haulers Assn., Inc. v. Oneida -Herkimer Solid Waste Management Authority, 261 F.3d 245, 264 (C.A.2 2001) (Calabresi, J., concurring); internal quotation marks omitted). And if more had been needed -to show that NewYork's object was consequently different from forbidden protectionism; . we pointed out that "the most palpable harm imposed by the ordinances -more expensive trash removal -[was] likely to fall upon the very people who voted for the laws," rather than out-of-state interests. United Haulers, 550 U.S., at 345, 127 S.Ct. at 1797. Being concerned that a "contrary approach ... would lead to unprecedented and unbounded interference by the courts with state and local government," id., at 343,127 S.Ct., at 1796, we held that the ordinance did "not discriminate against interstate commerce for purposes of the dormant Commerce Clause," id., at 343,127 S.Ct., at 1795. It follows a fortiori from United Haulers that Kentucky must prevail. In United Haulers, we explained that a government function is not susceptible to standard dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause abhors. See id., at 343, 127 S.Ct., at 1796 ("Laws favoring local government ... may be directed toward any number of legitimate goals unrelated to protectionism"); see also id., at 344,127 S.Ct., at 1796 (noting that "[w]e should be particularly hesitant to interfere ... under the guise of the Commerce Clause" where a local government engages in a traditional government function). (Emphasis added). United Haulers is controlling precedent here as applied to the District's lnterlocal Agreement and Plan of Operations. The District is performing a government function. In performing its governmental function, the lnterlocal Agreements and Plan of Operation do not favor instate haulers. To the contrary, both explicitly grant an exemption for waste being transported interstate, while leaving no such exemption for waste being transported intrastate. Consequently, they do not discriminate against interstate commerce under the per se prong. Even if it could be shown by Plaintiffs, which it has not, that the District is a "market -participant," FN28 that is, it somehow *1363 is seeking to favor one private landfill over other private landfills in Broward, because it purportedly has a financial interest in the Broward Interim Contingency Landfill, and is thereby attempting to affect the local market, it, -as -a -government entity, is not subject to -the-restraints of the Cornrnerce. Cla.use..EN29. TheSupreme .Court reaffirmed this exception in Davis, as follows: FN28. For the same reasons related to the District, United Haulers would equally apply to the City of Coral Springs because its-Or-dinance-and-Franchise-Agr-eement does-no-more=than-r-equire_compliance with the_ istr-ict'sinter-local Agreement and Plan of Operation. Independent of the approach taken in the Eleventh Circuit's Dania Beach case, the City, also performing a government function., would not be susceptible to standard Dormant Commerce Clause scrutiny owing to its likely motivation by legitimate objectives distinct from the simple economic protectionism the Clause • abhors. However, I do not reach the issue of whether the City of Coral Springs is a."market participant." By way of dicta,. I find that it is not, but rather functions as a "government regulator." FN29. Plaintiffs claim that the Defendants have not only discriminated against the interstate market for processing C & D, but also for the C & D itself. They claim thatthe City is granting the Landfill, a privately -owned local facility, the exclusive right to the Materials to the detriment of all consumers in other countries, States and Nations. The record, however, is devoid of any evidence regarding the amount of C & D generated in Coral Springs or the District that is delivered to a landfill versus a recycling facility. Plaintiffs have not submitted any proof that a larger amount of C & D would.berecycledrather thanbe placed in a landfill in absence of.the.lnterlocal-Agreement and Plan of Operations. Some cases run a different course, however, and an exception covers States that go beyond regulation and themselves "participat[e] in the market" so as to "exercis[e] the right to favor [their] own citizens over others." [ Hughes v.] Alexandria Scrap, 426 U.S. [794], at 810, 96 S.Ct. 2488 [49 L.Ed.2d 220 (1976) ]. This "market -participant" exception reflects a "basic distinction ... between States as market participants and States as market regulators," Reeves [ v. Stake ], 447 U.S. [429], at 436, 100 S.Ct. 2271 [65 L.Ed.2d 244 (1980) ], "[t]here [being] no indication of a constitutional plan to limit the ability of the States themselves to operate freely in the free market," id., at 437,100 S.Ct.2271. See also White v. Massachusetts Council of Constr. Employers, Inc., 460 U.S. 204, 208,103 S.Ct. 1042, 75 L.Ed.2d 1 (1983) ("[W]hen a state or local government enters the market as a participant it is not subject to the restraints of the Commerce Clause"). Thus, in Alexandria Scrap, we found that a state law authorizing state payments to processors of automobile hulks validly burdened out-of-state processors with more onerous documentation requirements than their in -state counterparts..Likewise, Reeves accepted_South Dakota's policy of giving in -state customers first dibs on cement produced by a state-owned plant, and White held that a Boston executive order requiring half the workers on city - financed construction projects to be city residents passed muster. D. Plaintiffs Standing to Raise Commerce Clause Issues I return to whether Southern Waste and Sun have standing to challenge the "regime" of regulations at issue. The standing analysis consists of constitutional and prudential components. "To meet the constitutional standing requirement, a plaintiff must show (1) an injury in fact (2) that is fairly traceable to the actions of the defendant and (3) that likely will be redressed by a favorable decision." Procter & Gamble Co. v. Amway Corp., 242 F.3d 539, 560 (5th Cir.2001) (citing Bennett v. Spear, 520 U.S. 154, 117 S.Ct. 1154, 1161, 137 L.Ed.2d 281 (1997); *1364 Lujan v. Defenders of Wildlife, 504 U.S. 555,112 S.Ct. 2130, 2136,119 L.Ed.2d 351(1992)). -[6] 1-conclude that S5outhersi WaSte-US tbriftialtibrTarEtcling undertheThird Amended Complairit-to cIairrithat- - both the Franchise Agreement and the City Ordinances violate the Dormant Commerce Clause because: (1) Southern Waste is legally excluded from collecting commercial C & D as a result of the both the Agreement and Ordinance, and thereby is legally precluded from competing with Waste. Management in Coral Springs for commercial C & D, and (2) potentially would be subject to a fine or criminal violation for collecting commercial solid waste in violation of the Agreement and Ordinances. I reach this conclusion with some pause because, as a practical matter, Southern Waste has chosen to ignore the Franchise Agreement and Ordinance and collect commercial C & D in violation of both and, to date, apparently has done so without apparent consequence. Nonetheless, I conclude that Southern Waste has sufficiently demonstrated that it has been, and in the immediate future, can be harmed by the challenged Franchise Agreement and Ordinance. Otherwise stated, Southern Waste has an injury (lack of legal right to collect commercial C & D) that is traceable to the Franchise Agreement and Ordinance and which would be remedied if I rule that the Franchise Agreement and Ordinance violate the Dormant Commerce Clause. [7] .AThe more difficult question is whether both Plaintiffs meet the prudential standing requirements. The goal of the prudential standing requirements is to "determine whether each plaintiff 'is a proper party to invoke judicial resolution of the dispute and the exercise ofthe court's remedial powers.' " Procter & Gamble, 242 F.3d at 560 (quoting Bender v. Willia_msport Area Sch. Dist., 475 U.S. 534, 106. S.Ct._1326,,1334 n.8, 89 L.Ed.2d 501 (196)). "These judicially created limits concern whether a plaintiff's grievance arguably falls within the zone of interests protected by the statutory provision invoked in the suit, whether the complaint raises abstract questions or a generalized grievance more properly addressed by the legislative branch, and whether the plaintiff is asserting his or her own legal rights and interests rather than the legal rights and interests of third parties." Procter & Gamble, 242 F.3d at 560. The key inquiry for prudential standing as to the District's regulations in this case is whether the injury of which the Plaintiffs complain is "arguably within the zone of interests to be protected" by the dormant Commerce Clause, the "constitutional guaranteein question" here. Ass'n of Data Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 90 S.Ct.' 827, 830, 25 L.Ed.2d 184 (1970). See also Boston Stock Exch. v. State Tax Comm'n, 429 U.S. 318, 97 S.Ct. 599, 603 n. 3, 50 L.Ed.2d 514 (1977) (applying the zone of interests test in the context of the dormant Commerce Clause). The facts of this case require that I analyze the zone -of -interest question in two parts: I must determine whether plaintiffs have standing to challenge the flbW control ordinalices as being facially discriminatory against cut -of -state economic interests, or whether they can merely challenge the District's Interlocal Agreement and Plan of Operations as being excessively burdensome to interstate commerce. In this regard, I conclude that Southern Waste and Sun lack prudential standing to facially challenge the District's Interlocal Agreement and Plan of Operations as being in violation ofthe Dormant Commerce Clause because neither regulation acts to prohibit Southern Waste or Sun from collecting C & D in any municipality, nor has the District taken any steps to prevent *1365 Southern Waste and Sun from hauling and processing C & D from any city in the District. See Seacoast Sanitation, Ltd. v. Broward County, 275 F.Supp.2d 1370, 1377-78 (S.D.Fla.2003) (finding no standing where a plaintiff is "utterly unaffected" by the flow control ordinance for the unincorporated parts of Broward County). Plaintiffs have taken the curious position that not one of their witnesses or even their "experts" can provide competent or admissible testimony on the question of whether the District has caused Plaintiffs any injury (Plaintiffs' Opp. at p. 4-6). Even Plaintiffs' president and chief operating officer did not know in his deposition of any injury.FN30 FN30. Plaintiffs' "expert" Donald Freedland was the former interim executive director of the District. He acknowledged that cities and haulers of construction and demolition debris in the District had the choice under the Plan of Operations to send the construction and demolition debris to a number of C & D facilities, including Sun's facilities. Mr. Freedland acknowledged that the District allows cities to either be open (not have any franchise)7r closed (having an exclusive franchise) for construction and demolition debris collection, and that open cities are not violating any District rule or regulation. Plaintiffs posit that the District's documents "facially" discriminate against interstate commerce. But, they support their claim with two arguments regarding "effects," rather than facial discrimination. Here, the record fails to demonstrate that in -state economic interests were favored over out-of-state interests. In fact, the opposite is true, the only preferential treatment that the regulations bestows is to in -District operators, such as Sun, as opposed to other Florida operators, which "does not constitute discrimination against interstate commerce." See IESI AR Corp. v. Northwest Arkansas Regional Solid Waste Management District, 433 F.3d at 605. Significantly, neither Plaintiff can point to any evidence showing that the interlocal Agreement or Plan of Operations d.iscrim.inatesagainst out-of-state_interests when each facially.proyides that C & D collected in the District may be taken to landfills out-of-state. These Plaintiffs do not ship C & D out-of-state. They have no immediate plans to do so in the near future. All Sun can claim is that it has customers who purchases materials that it sells to those who then may place the materials in interstate or foreign commerce. In sum, there is no injury causally connected to any regulation of the District. Moreover, the Plaintiffs arguments on standing strain credibility. If Sun is successful as to the District's regulations only in establishing a violation of the Commerce Clause, then its.own receipt of non-commercial solid waste from Coral Springs, and the combined residential and commercial waste from other District cities under the District's Plan of Operations, would be implicated as being in violation of the Commerce Clause. Sun is not before this Court encouraging more competition from out-of-state or intra-state competitors. Sun simply cannot have it both ways.FN31 FN31. Plaintiffs contend that "[t]he City's actions are precluding materials generated in the City from being processed out of the State" because "the City is using its leverage in the collection and disposal markets to exert a regulatory effect in the.procesSirig market by -requiring Waste Management to dispose ofthe materials atthe processing facilities designated in the Plan, which are only located in Broward County." This contention is not supported by the record on summary judgment. Just because the Plaintiffs' expert may say so, it does not make it so or create a material issue of fact. There is nothing in the Franchise Agreement which prevents the delivery of solid waste, including C & D collected in Coral Springs, to a location outside the State of Florida. *1366 I find no material facts in dispute regarding Sun's facilities. FN32 Sun facilities have been designated in the Plan of Operations as alternative facilities for each and every one of the Revisions to the Plan of Operations in effect during this litigation. Revisions Twelve through Fourteen listed two Sun facilities located in Pompano Beach and Dania Beach as Alternative Facilities for Unprocessable Waste. Specifically, under Revision 13 of the Plan of Operations which was adopted .in December 2006 (and prior versions. from .19.99. onward), C.&. D. collected. in the District,including._Coral.. Springs, could be delivered to the geographically designated landfills, specially listed alternative facilities, and any other • licensed facility in Florida, for facilities outside of Florida. Under Revision 14 of the Plan of Operations (adopted on January 17, 2008), C & D collected in the District, including Coral Springs, could be delivered to the geographically designated- andTtll, specifically listed alternative facilities, anyther licensed facility in Broward Countyor facilities outside of Florida; this included Sun's facilities in Dania and Pompano Beach. Moreover, under Revision 15 of the Plan of operations (adopted in June 2008), C & D collected in the District, including Coral Springs, can be delivered to the geographically designated landfill, specifically listed alternative facilities or facilities outside of Florida.FN33 I reemphasize that the Plan of Operation specifically provides that waste "shown to be destined for transportation to any destination outside the State of Florida" is excluded from the limitations contained in the Plan of Operations. This out- of-state provision removes this case from Carbone and Coastal Carting. FN32. Plaintiffs contend that no alternative facilities exist under the Plan of Operations because none agreed to the conditions which set forth reporting requirements and inspections for alternative facilities. The record is devoid of any evidence that an alternative facility has been de -listed or threatened with de -listing for non-compliance. Rather, the evidence establishes without material dispute that all the alternative facilities listed in the Plan of Operations, including Sun's facilities, continue to be and have always been approved facilities for the processing and disposal of construction and .demolition debris. FN33. The current revision of the Plan of Operations goes further and designated Sun # 1(Pompano Beach), Sun # 2 (Dania Beach), Sun # 7 (Deerfield Beach), and Sun # 8 (Deerfield Beach) as Alternative Facilities for Unprocessable Waste and C & D. The fact that the District's regulations may discriminate intrastate does not change the result (assuming the Plaintiffs had standing even to raise the issue given that neither has facilities, or desires to send C & D to facilities, instate, or that any instate hauler desires to send C & D to Broward).FN34 Courts have consistently held that flow control ordinances which prohibit intrastate disposal of waste but allow interstate disposal of waste do not discriminate against interstate commerce. See IESI AR Corp. v. N.W. Ark. Reg'I Solid Waste Mgmt. District, 433 F.3d 600, 602-03 (8th Cir.2006); Ben Oehrleins v. Hennepin County, 115 F.3d 1372, 1387 (8th Cir.1997); Waste Management of Michigan v. Ingham County, 941 F.Supp. 656, 666 (W.D.Mich.1996); Vince Refuse Service, Inc. v. Clark County Solid Waste Management District, 1995 WL 253121, *9 (S.D.Ohio March 7, 1995). FN34. Nothing in the District's regulations prohibits, for instance, waste collected in the District from being transported through any other county in Florida. Here, either the C & D, or its recycled components, can be placed in interstate commerce. Here, the only preference is granted to designated facilities, like Sun, as a local operator. This may create a monopoly at the local level, but as long as the waste is allowed to flow freely in or out of the *1367 State, there is no discrimination againstinterstate commerce. It is simply not the kind of "economic protectionism" that the Commerce Clause is intended to prevent. A purely intrastate flow control regulation may be "protectionist" but it is only so at the local level. If -anything, such -a flow control regulation .treats ..interstate .commerce ..more .favorably than. intrastate commerce.. While Southern Waste and Sun claim that Sun's customers ship the C & D in interstate and foreign commerce, such tenuous "indirect" connections do not place Plaintiffs within the protected zone -of -interest required to have the —prudential standing-necessary--to-bring this -action The-P_laintiffs_ar_e_merely.locaLcompanies_whicb_danot_ship,_o.r contract to with others to ship, out-of-state much less out of the United States to foreign countries. Nothing prevents Southern Waste .orSun from disposing of the C &D out-of-state under the District's Plan of Operations and Interlocal Agreement, either before or after the processing. There is no claim that Sun owns facilities in other counties and is being precluded from receiving solid waste as a result of the District rules and regulations. As such, I decline to expand the zone -of -interest protected by the Commerce Clause to purely intra-county (let alone intrastate) disputes. I hold that because Southern Waste and Sun's injuries are not even "marginally related" to the interests the Commerce Clause seeks to protect and safeguard, they lack prudential standing to bring the federal constitutional claims at issue. E. Standing to Claim an Excessive Burden on interstate Commerce I next consider whether Plaintiffs nonetheless have standing to challenge the flow control ordinances on the basis of the claim that they excessively burden interstate commerce. Here, Plaintiffs are not directly involved in interstate commerce. Nothing in the record on summary judgment creates any issue of material fact on this point. Moreover, Plaintiffs point to no direct contracts with interstate customers which are burdened by the District's regulations. Accordingly, I conclude that Plaintiffs do not meet the zone -of -interests test in this regard as well, and thus lack standing to challenge the District's regulations as to their burden on interstate commerce. F. Pike Balancing Test [$] ffWhile I conclude that the Plaintiffs lack standing as to the District regulations, I address the merits in any event under the Pike analysis in the event I am wrong under both prongs of the standing issue. Although the Interlocal Agreement and Plan of Operation do not overtly discriminate against interstate commerce they may still violate the Commerce Clause if their incidental burdens on interstate commerce outweigh their benefits conferred upon the locality. Pike, 397 U.S. at 142, 90 S.Ct. 844. Plaintiffs bear the initial burden of demonstrating that the Plan of Operations and the Interlocal Agreement have a discriminatory effect on interstate commerce. Cherry Hill Vineyard, LLC v. Baldacci, • 505 F.3d 28, 33 (1st Cir.2007) ("[t]he initial burden of [proving] discrimination rests with the challenger").FN35 • Plaintiffs*1368 have failed to meet their initial burden: - FN35. In Cherry Hill, the First Circuit held that the plaintiffs had not proffered any evidence that the challenged laws had any discriminatory effect on interstate commerce and that to maintain their claim they were required "to submit some probative evidence of adverse impact" Id. at 505 F.3d at 36. Here, Plaintiffs have failed to sufficiently demonstrate how local economic actors are favored by the legislation, and how out-of-state actors are burdened by the legislation. Plaintiffs have failed to demonstrate how the District's regulations discriminates among similarly situated in -state and out-of-state interests, or how those regulations have the effect of providing a competitive advantage to in -state vis-a-vis similarly situated out-of-state interests. As explained at length in this Order, there is no evidence that any hauler has been prevented from hauling construction and demolition debris generated in Coral Springs outside the State of Florida, or that any out-of-state facility has been denied access to construction and demolition debris from Coral Springs. Nor is there any evidence of any increased costs or fees imposed on out-of-state interests by Defendants. Here, Plaintiffs do not complain of any direct infringement. Rather,. Plaintiffs' Dormant Commerce Clause arguments (presumably under the Pike analysis) are based on the allegation of the "incidental burden" that the materials they deal in are "ultimately bound for interstate and/or foreign commerce," and that the material is delivered "to Southern Waste for further delivery to Sun Recyc ing, where It is processed and shipped directly or indirectly, used in interstate and/or foreign commerce." (Third Am. Comp!.1111 9, 17). Plaintiffs posit that the City Ordinance, the Franchise Agreement, the Plan of Operations and the Interlocal Agreement have a "practical effect" on interstate commerce by prohibiting "the Materials" from being processed at any facility other than the privately -owned, local facilities designated in the Plan; and by prohibiting the Materials from entering the stream of interstate commerce both before and after they are processed. Plaintiffs claim that the Defendants accomplish the alleged discrimination in three ways: (1) the City of Coral Springs locks up the collection of the Materials though implementation and enforcement of the Ordinance; (2) Waste Management then collects the locked -up materials and delivers them to the facility designated in the Plan -the Landfill -which is privately -owned by Waste • Management and located in Broward County; and (3) the District drafted and continues to modify the Plan of Operations to ensure that the Materials go to the specifically designated facilities rather than the. "Alternative Facilities" or to out- of-state facilities, and polices the activities of the City and Waste Management to ensure compliance with the goals of the Interlocal Agreement and the -terms ofthe Plan of Operations. I conclude that none of these arguments have legal merit. First, the record on summary judgment does not support Plaintiffs' contentions. Plaintiffs have made no effort to show that the amount of recyclable materials generated in the City or the District, which may enter interstate commerce, were reduced as a result of the Exclusive Franchise Agreement, the Ordinance, Interlocal Agreement and/or the Plan of Operations. Second, even though the Plaintiffs refer to the "Regime" of interrelated regulation, the District does not and cannot require the City or any municipality to have an exclusive franchise agreement. Fla. Stat. § 403.706(3) (stating that "[n]othing in a count's solid waste management or recycling program shall affect the authority of a municipality to franchise or otherwise provide for the collection of solid waste generated within the boundaries of the municipality."). Thus, each city may independently decide whether to have a franchise and which aspects of the waste system to include in such franchises. The Franchise Agreement here is simply not interrelated to any policy or rule of the District. Third, there is no discriminatory effect here because there is no indication that instate economic interests were favored over out-of-state interests. The Plaintiffs have failed to establish for summary judgment purposes that the intercounty waste restrictions either facially or in practical *1369 effect discriminate against interstate or foreign commerce. Even at best, if Plaintiffs could establish that the flow control regulations were protectionist as to other waste processing facilities within the state, it only establishes a discrimination against intrastate commerce which is not covered by the Dormant Commerce Clause. Fourth, Plaintiffs claim that the Court should consider incidental burden in the aggregate. This approach has been properly rejected in Quality Compliance Services v. Dougherty County, 553 F.Supp.2d 1374, 1379 (M.D.Georgia 2008) where the plaintiffs expertvery same experthave ' (the Plaintiffs in this case) offered an opinion of an aggregate theory of harm -stating that if similar flow control legislation were implemented more widely, the national market for waste disposal would be severely interfered with. The court there explained the precedent on the issue and I adopt and apply it here without further comment or analysis. Fifth, the record is devoid of evidence that the Interlocal Agreement and Plan of Operations have the effect of increasing the cost associated with the processing or recycling of Commercial C & D in the District or in interstate or foreign commerce. East Coast Recycling v. City of Port St. Lucie, 234 F.Supp.2d 1259, 1266 (S.D.FIa.2002). In the event l am wrong on my analysis that the record on summary judgment fails to sufficiently establish incidental burdens on interstate or foreign commerce, I now address, again applying summary judgment standards, the Pike balancing test to determine whether the so-called "Regime" excessively burden interstate commerce. An "evenhanded" ordinance, i.e., one that does not facially discriminate against out-of-state interests and only incidentally affects interstate commerce, will be upheld unless the burden it imposes on interstate commerce is "clearly excessive in relation to the putative local benefits" of the ordinance. Pike, 90 S.Ct. at 847.To make this assessment, I consider the nature of the local interest and whether alternative means could achieve that interest with less impact on interstate commerce: "If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities." Id. I first look for a legitimate public purpose that defendants intended to advance by implementing flow control. The Supreme Court has expressly found that waste collection, disposal and management are core traditional functions of local government. United Haulers, 550 U.S. at 344,127 S.Ct. 1786. Defendants indeed have a legitimate local purpose: to ensure the economic viability of landfills within the District and to protect and safeguard the public health and welfare. See U & I Sanitation v. City of Columbus, 205 F.3d 1063, 1070 (8th Cir.2000) (recognizing economic viability as a legitimate local purpose in the context of a waste flow control ordinance). Indeed, the regulations give Broward County a convenient and efficient way to finance their integrated package of waste disposal service. And, "revenue generation," is a cognizable benefit for the purposes of the Pike test. United Haulers, 550 U.S. at 346, 127 S.Ct. 1786. I fail to find in this record that the District can promote the local benefits with a lesser impact on interstate commerce, particularly because the District directly allows for interstate hauling. •Next; I identify the burden imposed on interstate cornrnerce. To succeed. ina challenge to a regulation under the Pike balancing test, the challenging party must show that the regulation has "a disparate*1370 impact on interstate commerce." Automated Salvage Transp., Inc. v. Wheelabrator Envtl. Sys., Inc., 155 F.3d 59, 75 (2d Cir.1998). The "incidental burdens to which Pike refers are the burdens on interstate commerce that exceed the burdens on intrastate commerce." Id. (internal quotation and citation omitted). "Where a regulation does not have this disparate impact on interstate commerce, then we must conclude that ... [it] has not imposed any incidental burdens on interstate commerce" and, therefore, that it passes the Pike test. Id. (internal quotation and citation omitted). Even if I assumed that the an unspecified amount of recycled materials do not end up in interstate commerce, I conclude that such an effect is slight and the means chosen to accomplish the putative local benefits are reasonably effective and not clearly excessive in relation to the legitimate goals of long-term solid waste disposal planning. Otherwise stated, safe and sanitary management of solid waste generated within the District which is conducted on a self-financing basis constitutes -the kind of local benefits -which are not clearly -exceeded. by any.incidental .burden on interstate.commerce.. This is particularly true in Florida where, since the 1970's, the Florida Legislature has issued a mandate requiring urbanized counties to prepare resource recovery and solid waste plans. See Florida Statutes § 403.706 (as then in effect). Here, the Interlace( Agreement and the Plan of Operations are critical components of Broward Country's comprehensive p an for Tong -term management of -the County's solid waste —by providing for a reliable solid waste management system that has, in turn, met the goals established by the Florida Comprehensive Plan adopted by the Florida Legislature in 1985 to -deal with waste nianagerrierit, among other components. But, here, I further conclude from the record on summary judgment that the flow control regulations do not have a disparate impact on interstate commerce, nor does any evidence of record materially establish that they do; consequently, plaintiffs fail in their attempt to show that the ordinances do not pass the Pike test. Even if Plaintiffs can point to a legitimate "disparate burden," which they have not, they have failed to demonstrate that the measures impose a burden on interstate commerce that is qualitatively or quantitatively different from that imposed on intrastate commerce; that is, that there are no incidental burdens on interstate commerce which exceed the burdens on intrastate commerce, and burdens that are local or intrastate in nature are not relevant for Commerce Clause purposes because they do not affect interstate commerce. Plaintiffs. further appear to aruethat interstate commerce is being burdened because they are.being prevented from . introducing recycled C & D into the stream of commerce. But, Plaintiffs do not ship any.materials outside the State of Florida, and they do not have any customers outside the State of Florida. Plaintiffs have made no effortto quantify the alleged burden of materials being introduced into cornmerce.FN36 The only evidence of an interstate burden is the effect on Sun's customers who ship interstate. Sun's theory is obscure. Sun appears to argue that the flow control ordinances, because they will raise Sun's costs within the District and *1371 thereby make Sun's sales to customers who ship out-of-state relatively less competitive, impose a burden on Sun's interstate commerce by affecting the portion of business that may involve areas beyond Florida. Furthermore, even if I assume for summary judgment purposes that the District's regulations have; in some manner, the effect of shifting some business away from plaintiffs, as the ordinances increase their costs and make them relatively less competitive, this result does not mean that the ordinances burden interstate commerce. FN36, Plaintiffs claim, without record support, that the Plan of Operations requires the Materials to be taken to the .Landfill. This assertion is contradicted by every single witness who has testified that haulers of C & D have the option of where to dispose of C & D collected in the District, including from Coral Springs, and those options include numerous recycling facilities, such as Suns. In sum, Plaintiffs have been unable to sufficiently articulate, let alone support for summary judgment purposes, that the Franchise Agreement either alone, or coupled with the District's Interlocal Agreement and Plan of Operations, imposes any extra burden on out-of-state companies, or on local companies engaged in interstate commerce. In light of this, I conclude that neither the City nor the District, either alone or in combination, have imposed any incidental burdens on interstate commerce that are clearly excessive in relation to the putative local benefits articulated by both the City, Waste Management and the District in their briefs on summary judgment; namely, that it is not in excess in relation to the purpose of developing and implementing jointly a comprehensive, environmentally advanced, solid waste disposal grid resource recovery system to process solid waste generated wit iri the District. For the reasons stated, it is ORDERED: 1 The -motions -for —summary -judgment by-the=Defendants-Cor-al_Spr-ings_(other_than_on_its_counter_claim)_[DE1.75j; Waste—__ Management [DE 281] and the District [DE 288] are GRANTED. 2. The motion for summaryjudgment by the Plaintiffs Southern Waste and Sun [DE 292] is DENIED. 3. Coral Springs' motion to strike [DE 235] is DENIED AS MOOT. 4. Waste Management's motion to strike Plaintiffs' statement of material facts [DE 337] is DENIED. 5. Waste Management's motions to strike the affidavits of Charles Lomangino [DE 338] and Anthony Lomangino [DE 339] are GRANTED. 6. Dismissal of Count III of the Second Amended Complaint is now GRANTED WITH PREJUDICE. 7. Final judgment shall be entered pursuant to Fed.R.Civ.P. 54(b) for the Defendants and against the Plaintiffs on [DE 275, 281 and 288]. 8. The City's motion for summary judgment on its counterclaim [DE 275] is DENIED. Atrial on the City's counterclaim shall be held in abeyance pending an appeal of the final judgment on summaryjudgments. 9. This case is ADMINISTRATIVELY CLOSED pending a final determination on any appeal. It may be reopened as to the counterclaim by motion of the City or the Plaintiffs. S.D.Fla.,2010. Southern Waste Systems, LLC v. The City of Coral Springs, Florida 687 F.Supp.2d 1342 Motions, Pleadings and Filings (Back to top) 2009 WL 4703508 (Trial Motion, Memorandum -and Affidavit) Defendant Waste Management Inc. of Florida's Reply to Plaintiffs' Opposition to Wmif's Motion for Summary Judgment (Oct. 19, 2009)1 Original Image of this Document (PDF) • 2009 WL 4703509 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District, Reply Memorandum of Law in Further Support of Its Motion for Summary Judgment (Oct: 19, 2009) Original Image of this Document (PDF) • 2009 WL 4703510 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems. LLC and Sun Recycling, LLC's Joint Reply to Defendants' Opposition to Plaintiffs Motion for Partial Summary Judgment (Oct. 19, 2009) i Original Image of this Document (PDF) • 2009 WL 4703507 (Trial Motion, Memorandum and Affidavit) Defendant/Counter Plaintiff the City of Coral Springs, Florida's Reply to Southern Waste Systems, LLC and Sun Recycling, LLC's Memorandum of Law in Opposition to Coral F? Springs' Motion for Summary Judgment (Oct. 7, 2009) l Original Image of this Document (PDF) • 2009 WL 4703503 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems, LLC and Sun Recycling, LLC's Joint Opposition to Defendant Broward Solid Waste Disposal District's Motion for Summary Judgment (Including Memorandum in Support) (Sep. 25, 2009) ( Original Image of this Document (PDF) • 2009 WL 4703504 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems. LLC and Sun Recycling, LLC's Opposition to_Defendant_W_aste_Management_1nc._of_EI.o.Lida_s_Motion_for Summary Judgment, (-Incorporating Memorandum in Support) (Sep. 25, 2009) 1 Original Image of this Document (PDF) • 2009 WL 4703505 (Trial Motion, Memorandum and. Affidavit) Southern Waste Systems, LLC and Sun Recycling, LLC's Opposition to Defendant the City of Coral Springs' Motion for Summary Judgment, (Incorporating Memorandum in Support) (Sep. 25, 2009) i Original Image of this Document (PDF) • 2009 WL 4703506 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Response in Opposition to Plaintiffs' Motion for Partial Summary Judgment (Sep. 25, 2009)1 Original Image of this Document (PDF) • 2009 WL 4703500 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Motion for Summary Judgment and Incorporated Memorandum of Law (Sep. 9, 2009)1 Original Image of this Document (PDF) • 2009 WL 4703501 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District, Memorandum of Law in Support of Its Motion for Summary Judgment (Sep. 9, 2009) I Original Image of this Document (PDF) • 2009 WL 4703502 (Trial Motion, Memorandum and Affidavit)Southern Waste Systems. LLC and Sun Recycling. LLC's Motion for Partial Summary Judgment (Incorporating Memorandum in Support) (Sep. 9, 2009) 1 Original Image of this Document (PDF) • 2009 WL 4703499 (Trial Motion, Memorandum and Affidavit) Defendant/Counter Plaintiff the City of Coral Springs, Florida's Memorandum of Law in Support of Motion for Summary Judgment (Sep. 8, 2009) 1 Original Image of this Document (PDF) • 2009 WL 2334014 (Trial Motion, Memorandum and Affidavit) Waste Management's Reply in Support of Its Motion for Reconsideration of Order Compelling Discovery of Confidential Financial Information (May 5, 2009) 1 Original Image of this Document (PDF) • 2009 WL 2334013 (Trial Motion, Memorandum and Affidavit) Defendants' Reply to Plaintiffs' Opposition to Motion to Strike Expert Report Addendum (May 1, 2009) I Original Image of this Document (PDF) • 2009 WL 1613849 (Trial Motion, Memorandum and Affidavit) Response to Waste Management's Motion for Reconsideration of Order Compelling.Discovery of Confidential Financial Information (Apr.28;.2009)Original Image of this Document (PDF) • 2009 WL 1613848 (Trial Motion, Memorandum and Affidavit) Opposition to Motion to Strike Expert Report Addendum (Apr. 24, 2009) I Original Image of this Document (PDF) • 2009 WL 2207015 (Partial Expert Testimony) Deposition of Mark Berkman (Apr. 15, 2009) II Original Image of this Document (PDF) • 2009 WL 1613847 (Trial Motion, Memorandum and Affidavit) Waste Management's Motion for Reconsideration of Order Compelling Discovery of Confidential Financial information (Apr. 14, 2009) G Original Image of this Document (PDF) • 2009 WL 1613846 (Trial Motion, Memorandum and Affidavit) Defendants' Motion to Strike or Alternatively Exclude Addendum to the Expert Report of Mark P. Berkman and Incorporated Memorandum of Law (Apr. 13, 2009) E Original Image of this Document (PDF) • 2009. WL 1613845 (Trial Motion, Memorandum and Affidavit) Waste Management Inc. of Florida's Response to Plaintiffs' Motion to Compel Testimony of Corporate Representative(s) and Motion for Protective Order (Mar. 27, 2009) in Original Image of this Document (PDF) 0-2009 WL_1613844-(_ cia.l_M.otion,_Mem.o.ra.nd.um_a.nd_Affid.av_it)_M.otiortto_Compel_Testim_ony of Corporate Representatives) of Waste Management Inc. Of Florida (Mar. 24, 2009) G Original Image of this Document (PDF) • 2009 WL 1.574151 (Expert Report and Affidavit) (Report or Affidavit- of -Harvey W. Gershman) (Feb. 28, 2009) C Original Image of this Document with Appendix (PDF) • 2008 WL 2279233 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. Of Florida's Motion to Dismiss Plaintiffs' Third Amended Complaint, Alternative Motion for a More Definite Statement, and Incorporated Memorandum of Law (Apr. 21, 2008) l Original Image of this Document (PDF) • 2008 WL 2279232 (Trial Pleading) Third Amended Complaint (Apr. 2, 2008) I Original Image of this Document (PDF) • 2008 WL 2279230 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems, LLC and Sun Recycling, LLC's Reply to Waste Management Inc. of Florida's Memorandum in Opposition to Motion to Reconsider (Mar. 3, 2008) Ia Original image of this Document (PDF) • 2008 WL 2279231 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Reply to Broward Solid Waste Disposal Districts Opposition to Motion to Reconsider Dismissal of Count 111 (Mar. 3, 2008) i Original Image of this Document (PDF) • 2008 WL 972045 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District, Memorandum of Law in Opposition to Plaintiffs' Motion to Reconsider Dism'issaI of Count I11(Feb; 25, 2008)1 Original Image of this Document (PDF) • 2008 WL 972046 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Memorandum in Response to Plaintiffs' Motion to Reconsider Dismissal of Count III and Notice ofJoinder in the Broward Solid Waste Disposal District's Response (Feb. 25, 2008) 1 Original Image of this Document (PDF) • 2008 WL 972044 (Trial Motion, Memorandum and Affidavit) Plaintiffs' Motion to Reconsider Dismissal of Count III (Feb. 7, 2008) 1 Original Image of this Document with Appendix (PDF) • 2008 WL 972043 (Trial Motion, Memorandum and Affidavit) Waste Management Inc. of Florida's Reply to Plaintiffs' Response to Waste Management Inc. of Florida's Motion for Entry of Protective Order for Confidentiality (Jan. 11, 2008) Original Image of this Document (PDF) • 2007 WL 5079205 (Trial Motion, Memorandum and Affidavit) Memorandum of Law in Response to Waste - -- Management Inc. of Florida's Motion for Entry of Protective Order for Confidentiality and Incorporated Memorandum of Law (Dec. 21, 2007)1 Original Image of this Document (PDF) • 2007 WL5079203 (Trial Motion, Memorandum and Affidavit) Waste Management Inc. of Florida's Motion for Entry of Protective Order for Confidentiality and Incorporated Memorandum of Law (Dec. 14, 2007) G Original Image of this. Document (PDF) • 2007 WL 5079204 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District, Supplemental Memorandum of Law Regarding Subject Matter Jurisdiction (Dec. 14, 2007) E Original Image of this Document (PDF) • 2007 WL 5082609 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems, LLC and Sun Recycling, LLC's Combined Response to the Court's Interim Order On Defendant's Motion to Dismiss Count Hi of the Second Amended Complaint; Requiring Submission (Dec. 2007) E Original Image of this Document (PDF) • 2007 WL 3310366 (Trial Motion, Memorandum and Affidavit) Defendant's Broward Soid Waste Disposal District. Reply Memorandum of Law in Further Support of Its Motion to Dismiss Count III of the Second Amended Complaint (Sep. 24, 2007) g Original Image of this Document (PDF) • 2007_W1_3.3.10365_(_TriaI_Motio.n,_M.emo.Gand.um_an.d_Afi.davJt)_Qp.p.ositio_n to_Defe.ndant Broward Solid Waste_Disposal District's Motion to Dismiss Count III of the Second Amended Complaint (Sep. 4, 2007) IS Original Image of this Document (PDF) ..- • — - • 2007 WL 5079209 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District, Memorandum of Law in Support of its Motion to Dismiss Count III of the Second Amended Complaint (Jul. 30, 2007) gi Original Image of this Document (PDF) • 2007 WL 5082610 (Trial Motion, Memorandum and Affidavit) Defendant's, Broward Solid Waste Disposal District, Motion to Dismiss Count III of the Second Amended Complaint (Jul. 30, 2007) {1 Original Image of this Document (PDF) • 2007 WL 1986772 (Trial Pleading) Second Amended Complaint (May 30, 2007) IS Original Image of this Document (PDF) • 2007 WL 1985956 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Memorandum in Response to Southern Waste Systems, LLC's Supplemental Memorandum (May 8, 2007) E Original Image of this Document (PDF) • 2007 WL 1985953 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems, LLC's Supplemental Memorandum (May 1, 2007) I Original Image of this Document (PDF) • 2007 WL 5079208 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Reply Memorandum in Support of Motion to Dismiss Amended Complaint (Feb. 28, 2007) Original Image of this Document (PDF) • 2007 WL 5079207 (Trial Motion, Memorandum and Affidavit) Southern Waste Systems, LLC's Opposition to Defendant Waste Management Inc. of Florida's Motion to Dismiss (Feb. 8, 2007) i Original Image of this Document (PDF) • 2007 WL 5079206 (Trial Motion, Memorandum and Affidavit) Joint Motion to Amend Order Setting Pretrial and Trial Dates (Feb. 7, 2007)1 Original Image of this Document (PDF) • 2007 WL 620794 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Motion to Dismiss Amended Complaint, Motion for More Definite Statement and Incorporated Memorandum of Law (Jan. 8, 2007) Original Image of this Document (PDF) Exhibits) Available • • 2007 WL 620795 (Trial Filing) Joint Scheduling Report (Jan. 8, 2007) ) Original Image of this Document (PDF) • 2007 WL 6943685 (Exhibit) Franchise Agreement for Solid Waste Collection and Disposal Services (Jan. 8, 2007) I Original Image of this Document (PDF) • 2006 WL 4035480 (Trial Pleading) Amended Complaint (Dec. 1, 2006) l Original Image of this Document (PDF) • 2006 WL 3850905 (Trial Motion, Memorandum and Affidavit) Defendant City of Coral Springs' Response to Plaintiff's Unopposed Motion to Dismiss Party Defendants and Memorandum of Law in Support (Nov. 27, 2006) g Original Image of this Document (PDF) • 2006 WL 5534407 (Trial Motion, Memorandum and Affidavit) Unopposed Motion and Memorandum to Dismiss Party Defendants State of Florida and Florida Department of Environmental Protection Without Prejudice (Nov. 16, 2006) Original Image of this Document (PDF) 2006 WL 3850903 (Trial Motion, Memorandum and Affidavit) Defendant City of Coral Springs' Motion to Dismiss Plaintiffs Complaint and Memorandum of Law in Support (Nov. 2, 2006) g Original Image of this Document (PDF) • 2006-WL 3850904-(Trial-Motion,—Memorandum-and Affidavit) -Defendants, State of Florida and Florida Department of Environmental Protection, Motion to Dismiss Complaint for Declaratory and Injunctive Relief and Incorporated Memorandum of Law (Nov. 2, 2006) I Original Image of this Document (PDF) • 2006 WL 3668242 (Trial Motion, Memorandum and Affidavit) Defendant Waste Management Inc. of Florida's Motion to Dismiss Complaintfor Declaratory and Injunctive Relief and Incorporated Memorandum of Law (Oct. 30, 2006) Original Image of this Document (PDF) • 0:06cv61448 (Docket) (Sep. 25, 2006) • 2006 WL 3033279 (Trial Pleading) Complaint for Declardatory and Injunctive Relief (Sep. 22, 2006) l Original Image of this Document (PDF) • 2006 WL 6282357 (Expert Report and Affidavit) Expert Report of Mark P Berkman (2006) I Original Image of this Document (PDF) • 2009 WL 3170433 (Court -Filed Expert Resume) Expert Resume of Mark P. Berkman (Mar. 24, 2009) L> Original Image of this Document (PDF) Judges, Attorneys and Experts (Back to top) Judges ) Attorneys j Experts Judges IJ Gold, Hon. Alan S. United States District Court, Southern Florida Florida • Litigation History Report.' Judicial. Motion.Report. ( Judicial Reversal.Report. Judicial, Expert.Challenge.Repo.rt ( P.rofiler...... Attorneys Attorneys for Defendant Ezrol, Kerry L. Fort Lauderdale, Florida Litigation History Report j Profiler 0 Glazer, Ari Jonathan Fort Lauderdale, Florida Litigation History Report I Profiler 0 Hole, Brian K. Fort Lauderdale, Florida Litigation History Report Profiler I1 Miller, Katherine Howland .Fort Lauderdale, Florida Litigation History Report I Profiler Q Royal, Erika R. Fort Lauderdale, Florida Litigation History Report I Profiler Attorneys for Plaintiff D Burns, Guy M. Tampa, Florida Litigation History Report 1 Profiler 0 Elsberry, Michael V. Orlando, Florida Litigation History Report I Profiler 0 Grossman, StuartZ. Coral Gables, Florida Litigation History Report I Profiler 0 Sorrell, Drew Orlando, Florida Litigation History Report Profiler 0 Young, Terry C. Orlando, Florida Litigation History Report I Profiler Experts 0 Berkman, Mark P., PH.D. CERTIFIED PUBLIC ACCOUNTANT San Francisco, CA "Expert Evaluator Report I •Expert Challenge Report I -Expert Testimony I" Resume l Profiler I] Berkman, Mark P. ENVIRONMENTAL EXPERT/ PATENT/PATENT EXAMINER Berkeley, CA 94710 Resume Profiler ID Freedland, Donald... .. _. . EMERGENCY MANAGEMENT COORDINATOR FL Expert Evaluator Report ( Profiler Gershman, Harvey Construction & Architecture, Environmental / Demolition,EnvironmentaI Fairfax, VA 22031-4620 Expert Evaluator Report I ExpertTestimony I Profiler END OF DOCUM.U1_T 'MI West Reporter Image (PDF) Adobe Reader is required to view PDF images. . nu Mgt ifffik (c) 2010 Thomson Reuters. No Claim to Orig. US Gov. Works. Bottom of Form