HomeMy WebLinkAboutExhibit1Ut of 4*tami
ANNIE PEREZ, CPPO DANIEL J. ALFONSO
Chief Procurement Officer City Manager
SUPPLEMENT TO AGREEMENT FOR PROCESSING RECYCLABLE
MATERIALS BETWEEN THE CITY OF HIALEAH AND PROGRESSIVE
WASTE SOLUTIONS OF FL, INC.
The City of Miami ("City") is accessing the above mentioned agreement to procure Recyclable
Materials Processing Services for the Solid Waste Department. That certain Agreement titled
"Agreement for Processing Recyclable Materials" ("Hialeah Agreement") between the City of Hialeah
("Hialeah") and Progressive Waste Solutions of FL, Inc. ("Progressive") made and entered into
effective as of September 30, 2014 is attached hereto and is incorporated by reference herein. This
supplement to the Hialeah Agreement includes City of Miami legal requirements. The term of this
Agreement is as stated in Section 1 of the Hialeah Agreement. The effective date of access by the
City of Miami is
a) Progressive's Responsibilities:
Progressive shall execute its responsibilities as expressed within Section 4, titled "Contractor's
Recyclables Processing Responsibilities", of the Hialeah Agreement:
b) Section 4.D, titled "Record Keeping" of the Hialeah Agreement is hereby deleted in its
entirety and replaced with the following language:
Progressive hereby agrees and understands that the public shall have access, at all reasonable
times, to all documents and information pertaining to the City, subject to the provisions of
Chapter 119, Florida Statutes, and any specific exemptions there from, and Progressive agrees
to allow access by the City and the public to all documents subject to disclosure under applicable
law unless there is a specific exemption from such access. Progressive's failure or refusal to
comply with the provisions of this section shall result in immediate termination of Progressive by
the City.
Pursuant to the provisions of Section 119.0701, Florida Statutes, Progressive must comply with
the Florida Public Records Laws, specifically Progressive must:
1) Keep and maintain public records that ordinarily and necessarily would be required by the
public agency in order to perform the service.
2) Provide the public with access to public records on the same terms and conditions that the
public agency would provide the records and at a cost that does not exceed the cost
provided in this chapter or as otherwise provided by law.
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May 26, 2017
3) Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law.
4) Meet all requirements for retaining public records and transfer, at no cost, to the public
agency all public records in possession of Progressive upon termination of the contract and
destroy any duplicate public records that are exempt or confidential and exempt from public
records disclosure requirements.
5) All records stored electronically must be provided to the City in a format compatible with the
information technology systems of the public agency.
Should Progressive determine to dispute any public access provision required by Florida
Statutes, then Contractor shall do so at its own expense and at no cost to the City. IF THE
CONTRACTOR HAS QUESTIONS REGARDING THE APPLICATION OF CHAPTER 119,
FLORIDA STATUTES, TO THE CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS CONTRACT, CONTACT THE CUSTODIAN OF PUBLIC RECORDS AT
PUBLICRECORDS@MIAMIGOV.COM, OR REGULAR MAIL AT CITY OF MIAMI OFFICE OF
THE CITY ATTORNEY, 444 SW 2ND AVENUE, 9T" FLOOR, MIAMI, FL 33130.
The Inspection and Audit provisions set forth in Sections 18-101 and 18-102 of the City Code
are deemed as being incorporated by reference herein and additionally apply to this Agreement.
c) Subsection 6.B, titled "Invoicing and Payment", of the Hialeah Agreement is hereby
deleted in its entirety and replaced with the following language:
No later than the fifteenth (15th) day of each month, Progressive shall submit a monthly report,
in a form acceptable to the City, detailing the total revenue due to the City for the Program
Materials delivered to the Designated Recycling Facility during the previous month; and shall
remit payment of said revenue, as detailed in the monthly report, within thirty (30) calendar days
after the end of the month for which the payment is due. Reports and payments shall be delivered
to the following:
City of Miami
Solid Waste Department
Attn: Vanessa Giron, Fiscal Administrator
1290 NW 20th Street
Miami, FL 33142
d) Section 11, titled "Insurance", of the Hialeah Agreement, is hereby deleted in its entirety
and replaced with the following language:
Progressive shall provide and maintain in force at all times during the Agreement with the City,
such insurance, including Workers' Compensation and Employer's Liability Insurance,
Comprehensive General Liability Insurance, Automobile Liability Insurance and Errors and
Omissions Insurance to assure the protection contained in the foregoing indemnification
undertaken by Progressive.
A. Commercial General Liability Insurance with limits of no less than $1,000,000.00 per
occurrence, $2,000,000 policy aggregate, affording coverage for bodily injury, including
death, and property damage. The certificate of insurance shall insure exposures arising out
of premises and operations, products and completed operations, personal injury and
advertising liability, and include coverage for contingent and contractual exposures. This
100077311.DOCX. i
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insurance shall be written on a primary and non-contributory wording, and shall List the City
of Miami as an additional insured.
B. Business Auto Liability protecting against bodily injury and property damage arising out of
operation, maintenance or use of any auto, including owned, non -owned and hired
automobiles exposures, with limits of not less than $1,000,000.00 per accident. The City
shall appear listed as an additional insured on this coverage.
C. Workers' Compensation subject to Statutory limits for the State of Florida with $100,000
Employers Liability.
D. Pollution Liability Insurance (not applicable for Contractor providing Recyclable Materials
Processing services), with limits of no less than $1,000,000.00 per occurrence, $2,000,000
policy aggregate.
E. A Certificate of Insurance using the standard ACORD form shall be provided listing the above
coverages. The City shall be named as an additional insured on all liabilities, except workers'
compensation coverage. A copy of the certificate shall be mailed to the City's Risk
Management Department at the time Progressive executes this Agreement.
e) Section 14, titled "Notice" of the Hialeah Agreement is hereby deleted in its entirety and
replaced with the following language:
TO THE CITY:
Daniel J. Alfonso
City Manager
444 SW 2nd Avenue, 10th Floor
Miami, Florida 33130
Victoria Mendez
City Attorney
444 SW 2nd Avenue, 9th Floor
Miami, Florida 33130
Annie Perez, CPPO
Procurement Director
City of Miami
444 SW 2nd Avenue, eth Floor
Miami, Florida 33130
TO PROGRESSIVE:
Progressive Waste Solutions of FL, Inc.
Attn.: Robert Nielsen, III
Regional Vice President
Progressive Waste Solutions, Inc.
3840 NW 37th Court
Miami, FL 33142
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f) Section 15.C, titled "Termination Without Cause", is hereby deleted in its entirety and
replaced with the following language:
The City, acting by and through its City Manager, shall have the right to terminate this
Agreement, in its sole discretion, and without penalty, at any time, by giving written notice to
Progressive at least sixty (60) calendar days prior to the effective date of such termination
g) Section 18, titled "Independence of Agreement", is hereby deleted in its entirety and
replaced with the following language:
This Agreement does not create an employee/employer relationship between the parties. It is
the express intent of the parties that Progressive is an independent contractor under this
Agreement and not the City's employee for all purposes, including but not limited to, the
application of the Fair Labor Standards Act minimum wage and overtime payments, Federal
Insurance Contribution Act, the Social Security Act, the Federal Unemployment Tax Act, the
provisions of the Internal Revenue Code, the State Workers Compensation Act, any benefits
under the City Pension Ordinances, and the State unemployment insurance law. Progressive
shall retain sole and absolute discretion in the judgment of the manner and means of carrying
out Progressive's activities and responsibilities hereunder. Progressive agrees that it is a
separate and independent enterprise from the City, that it has full opportunity to find other
business, that it make its own investment in its business, and that it will utilize a high level of skill
necessary to perform the work.
This Agreement shall not be construed as creating any joint employment relationship, joint
venture partnership or other affiliated entity status between Progressive and the City and the
City will not be liable for any obligation incurred by Progressive, including but not limited to
unpaid minimum wages and/or overtime premiums.
In this regard the City is not responsible for any debts, defaults, acts or omissions of Progressive
or its officials, agents, servants and employees.
h) Section 19, titled "Force Majeure", of the Hialeah Agreement is hereby deleted in its
entirety and replaced with the following language:
A "Force Majeure Event" shall mean an act of God, act of governmental body or military authority,
fire, explosion, power failure, flood, storm, hurricane, sink hole, other natural disasters, epidemic,
riot or civil disturbance, war or terrorism, sabotage, insurrection, blockade, or embargo. In the
event that either party is delayed in the performance of any act or obligation pursuant to or
required by the Agreement by reason of a Force Majeure Event, the time for required completion
of such act or obligation shall be extended by the number of days equal to the total number of
days, if any, that such party is actually delayed by such Force Majeure Event. The party seeking
delay in performance shall give notice to the other party specifying the anticipated duration of
the delay, and if such delay shall extend beyond the duration specified in such notice, additional
notice shall be repeated no less than monthly so long as such delay due to a Force Majeure
Event continues. Any party seeking delay in performance due to a Force Majeure Event shall
use its best efforts to rectify any condition causing such delay and shall cooperate with the other
party to overcome any delay that has resulted.
000773I 1.DOCX,
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i) Section 21, titled "Equal Opportunity Employment", of the Hialeah Agreement is hereby
deleted in its entirety and replaced with the following language:
1)
In the performance of this Agreement, Progressive shall not discriminate against any firm,
employee or applicant for employment or any other firm or individual in providing services
because of sex, age, race, color, religion, ancestry, disability, or national origin.
Sections 24, titled "Governing Law", 25, titled "Consent to Jurisdiction and Venue; Waiver
of Jury Trial", and 26, titled "Litigation" of the Hialeah Agreement are hereby deleted in
their entirety and replaced with the following language:
This Agreement with the City of Miami will be governed by and construed under the laws of the
State of Florida regardless of choice or conflict of laws principles. Venue in any proceedings
between Progressive and the City of Miami will be in a court of competent jurisdiction located in
Miami -Dade County, Florida. Each party shall bear their own respective attorney's fees.
k) Section 27, titled "Compliance With Laws", of the Hialeah Agreement is hereby deleted in
its entirety and replaced with the following language:
Progressive shall be responsible to follow and observe all applicable laws, rules, regulations and
ordinances of the City, County, State, Federal governments or other public agencies having
jurisdiction over the subject matter of this Agreement relating to the activities, undertakings and
operations being conducted pursuant to this Agreement.
I) Section 29, titled "Assignment and Subletting", of the Hialeah Agreement is hereby
deleted in its entirety and replaced with the following language:
Progressive was selected for these services due to its particular and unique experience in the
subject matter of this Agreement, which is not freely assignable or transferable. This Agreement
shall not be assigned, sold, transferred, or otherwise sold, by Progressive, in whole or in part,
and Progressive shall not assign any part of its operations that are subject to being performed
under this agreement, without the prior written consent of the City Manager, which shall not be
unreasonably denied, withheld or conditioned, in the City's sole discretion through the City
Manager.
m) Section 32, titled "Fund Appropriation" of the Hialeah Agreement is hereby deleted in its
entirety and replaced with the following language:
Funding for this Agreement is contingent on the availability of funds and continued authorization
for program activities and the Agreement is subject to amendment or termination due to lack of
funds, reduction of funds, failure to allocate or appropriate funds, and/or change in applicable
laws, city programs or policies, or regulations, upon thirty (30) days written notice.
n) Section 34, titled "Financial Interest", of the Hialeah Agreement is hereby deleted in its
entirety and replaced with the following language:
Pursuant to City of Miami Code Section 2-611, as amended ("City Code"), regarding conflicts of
interest, Progressive hereby certifies to the City that no individual member of Progressive, no
employee, and no subcontractors under this Agreement or any immediate family member of any
of the same is also a member of any board, commission, or agency of the City. Progressive
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hereby represents and warrants to the City that throughout the term of this Agreement,
Contractor, its employees, and its subcontractors will abide by this prohibition of the City Code.
o) Section 46, titled "Mediation" is hereby added with the following language:
The parties may, at their discretion, agree in writing to resolve any dispute between them arising
under this Agreement by submitting such dispute to non —binding mediation by a certified
mediator in Miami -Dade County, Florida. The parties shall split the cost of the mediator. The
decision of the mediator shall not be binding.
p) Section 47, titled "City Not Liable for Delays" is hereby added with the following language:
Progressive hereby understands and agrees that in no event shall the City be liable for, or
responsible to Progressive or any subcontractor, or to any other person, firm, or entity for or on
account of, any stoppages or delay(s) in work herein provided for, or any damages whatsoever
related thereto, because of any injunction or other legal or equitable proceedings or on account
of any delay(s) for any cause over which the City has no control.
q) Section 48, titled "Use of Name" is hereby added with the following language:
Progressive understands and agrees that the City is not engaged in research for advertising,
sales promotion, or other publicity purposes. Progressive is allowed, within the limited scope of
normal and customary marketing and promotion of its work, to use the general results of this
project and the name of the City. Progressive agrees to protect any confidential information
provided by the City and will not release information of a specific nature without prior written
consent of the City Manager or the City Commission.
r) Section 49, titled "Third -Party Benefactor" is hereby added with the following language:
No persons other than Progressive and the City (and their successors and assigns) shall have
any rights whatsoever under this Agreement.
s) Section 50, titled "Survival" is hereby added with the following language:
All obligations (including but not limited to indemnity and obligations to defend and hold
harmless) and rights of any party arising during or attributable to the period prior to expiration or
earlier termination of this Agreement shall survive such expiration or earlier termination.
t) Section 51, titled "Counterparts" is hereby added with the following language:
This Agreement may be executed in three or more counterparts, each of which shall constitute
an original, but all of which, when taken together, shall constitute one and the same agreement.
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1N WITNESS WHEREOF, the parties hereto have caused this instrument to be executed by their
respective officials thereunto duly authorized.
PROGRESSIVE WASTE SOLUTIONS OF
FL, INC.
BY:
DATE:
ATTEST:
CAL
Robert Nielsen, III, Regional Vice Pres.
Atli 0-
otary Public
Corporate Seal/Notary Seal
SF q,,, MASSIELFAXAS•ROLON
Notary Public — 5tata of flor,da
Commission k CG 108450
My Comm, Expires Jun 13, 2021
Banded (hough Nahenal NataryAssn.
CITY OF MIAMI, a municipal corporation:
BY:
DATE
Daniel J. Alfonso, City Manager
ATTEST:
Todd Hannon, City Clerk
APPROVED AS TO INSURANCE
REQUIREMENTS:
Ann -Marie Sharpe, Director
Risk Management
APPROVED AS TO LEGAL FORM AND
CORRECTNESS:
1000773 t I . DOCX.1
Page 7
Victoria Mendez, City Attorney
AGREEMENT FOR PROCESSING RECYCLABLE MATERIALS
This Agreement for Processing Recyclable Materials ("Agreement") is made and entered into
this day of , 2014 ("Effective Date"), by and between the City of
Hialeah, Florida, a municipal corporation of the State of Florida ("City") and Progressive Waste Solutions
of FL, Inc. ("Contractor").
RECITALS
WHEREAS, the City collects Recyclable Materials ("Recyclables") from the residents in the City;
and
WHEREAS, the City wishes to manage the City's Recyclables in a manner that is efficient, lawful,
environmentally -sound, and financially beneficial; and
WHEREAS, the City issued an invitation to bid ("ITB" or "Solicitation") that solicited bids from any
qualified Person wishing to Process, market, and sell the City's Recyclables; and
WHEREAS, the Contractor submitted a bid in response to the City's Solicitation (ITB No. 2013-14-
9500-00-011); and
WHEREAS, the City has relied upon the information provided by the Contractor concerning the
Contractor's experience and ability to provide the services requested by the City; and
WHEREAS, the City has concluded that the Contractor's bid is responsive to the City's Solicitation
and it provides the best overall value for the City; and
WHEREAS, the City and the Contractor wish to enter into this Agreement concerning the
Recyclables Processing services that the Contractor will provide to the City; and
WHEREAS, the City has concluded that entering into this Agreement is beneficial, in the best
interests of the public, and in compliance with the City's Ordinances.
NOW, THEREFORE, in consideration of the mutual covenants, promises, terms and conditions set
forth herein, the receipt and sufficiency of which are hereby acknowledged, Contractor and the City do
hereby agree to comply with and be bound by the following provisions of this Agre4ent:
SECTION 1. EFFECTIVE DATE, COMMENCEMENT DATE, AND TERM
A. Effective Date and Commencement Date. The Effective Date of this Agreement is the date when
this Agreement is duly executed and signed by the City, which shall occur after the Agreement is
duly executed and signed by the Contractor. The Commencement Date is the date when the
Contractor shall begin to provide the services required pursuant to this Agreement.
R. Initial Term. This Agreement shall be in effect and binding upon the Parties from the Effective
Date until this Agreement terminates or expires. The initial term of this Agreement shall be a
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five (5) year period, beginning on the Commencement Date, unless this Agreement is
terminated earlier or extended in accordance with the provisions contained herein.
C. Renewal Option. At the option of the City and with the concurrence of the Contractor, this
Agreement may be renewed multiple times, but the total duration of the renewal terms shall
not exceed five (5) years. Each renewal shall be subject to the prior approval of the City Council.
SECTION 2. DEFINITIONS
The words and phrases used in this Agreement shall be defined in the manner provided in this Section 2.
If a word or phrase is not defined herein, the word or phrase shall be defined in the manner provided in
the City's Ordinances.
Agreement means this "Agreement For Processing Recyclable Materials," including all of the exhibits
and amendments hereto.
Applicable Law means any local, state or federal statute, law, constitution, charter, ordinance,
judgment, order, decree, permit, rule, regulation, directive, policy, standard or similar binding
authority, or a judicial or administrative interpretation of any of the same, which are in effect or are
enacted, adopted, promulgated, issued or enforced by a governmental agency or authority during
the term of this Agreement, and relate or apply in any manner to the performance of the City or
Contractor under this Agreement.
Average Market Value or AMU means a market index used to determine the amount of revenue that
will be paid by the Contractor to the City for the Program Materials delivered to the Designated
Recycling Facility, based on the monthly values paid in the commodity market for Recyclables. The
specific method for calculating the AMV is set forth in Section 6, below.
Biomedical Waste means any waste that may cause disease or reasonably be suspected of harboring
pathogenic organisms, including waste resulting from the operation of medical clinics (veterinary or
otherwise), hospitals (veterinary or otherwise), and other facilities processing waste that may
consist of, but are not limited to, human and animal parts, contaminated bandages, pathological
specimens, hypodermic needles, sharps, contaminated clothing, and surgical gloves.
City means, depending on the context, either (a) the geographic area contained within the municipal
boundaries of the City of Hialeah, Florida or (b) the government of the City, acting through the City
Council or its designees.
City Vehicle means a truck or other motor vehicle that delivers Recyclable Materials to the
Designated Recycling Facility and is owned and operated by the City or a Contract Hauler.
Commencement Date means the date when the Contractor shall begin to provide its services to the
City pursuant to this Agreement. The Commencement Date shall be September 1, 2014, or any
other date that is mutually acceptable to the City and the Contractor.
Contract Hauler means any Person that has entered into a franchise agreement or other contract
with the City to collect or transport Recyclables for the City.
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Contract Year means (a) with regard to the first Contract Year, the twelve (12) consecutive month
period beginning on the Commencement Date and (b) with regard to subsequent Contract Years,
each twelve (12) consecutive month period thereafter.
Contractor means the Person that shall provide the services required pursuant to this Agreement.
The Contractor is Progressive Waste Solutions of FL, Inc.
Council means the City Council of the City of Hialeah, Florida, or its designee.
Designated Processing Facility means the facility designated in this Agreement where the Contractor
will Process the City's Program Materials. The Designated Processing Facility may be the same as or
different than the Designated Recycling Facility.
Designated Recycling Facility means the facility designated in this Agreement where the Contractor
will receive and accept delivery of the City's Program Materials. The Designated Recycling Facility
may be a materials recovery facility, a recovered materials processing facility, or a transfer station,
as those terms are defined in Rule 62-701.200, Florida Administrative Code.
Director means the Director of the City's Public Works Department or the Director's designee.
Effective Date means the date when this Agreement is signed and duly executed by the City, which
shall occur after the Agreement is signed and duly executed by the Contractor.
FDEP means the Florida Department of Environmental Protection and any successor agency or
Governmental Authority.
Force Majeure Event means an act, event, or condition that (a) directly, substantially, and adversely
affects the City's or the Contractor's ability or cost to perform in compliance with the requirements
in this Agreement, (b) is beyond the reasonable control of the Person affected by the Force Majeure
Event, and (c) is not due to any negligence or lack of planning or diligence by the Person affected by
the Force Majeure Event. However, a Force Majeure Event does not include a change in a tax law, a
labor strike or labor difficulty, changing economic conditions, or an economic hardship.
Governmental Authority means any federal, state, or local governmental, regulatory or
administrative agency, authority, or commission or any court, tribunal, or judicial or arbitral body.
Hazardous Waste means any Solid Waste present in quantities or concentrations that are defined
and regulated as a "hazardous waste" by the Florida Department of Environmental Protection.
Holiday means a designated date on which the Contractor is not be required to provide its services
under this Agreement. For the purposes of this Agreement, the only Holidays are Christmas Day and
other days that are approved as Holidays by the Director.
Household Hazardous Waste or HHW means a waste that is produced in a home and contains
hazardous substances in concentrations that pose a threat to human health. HHW includes:
ammonia; ammunition; anti -freeze, fluids, and batteries for automobiles; batteries, oil, and fluids for
boats; charcoal lighter fluid; compact fluorescent bulbs; drain cleaners; fertilizers; fire extinguishers;
fireworks; flares; fluorescent tubes; gasoline; herbicides; household cleaners; insecticides; kerosene;
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lawn chemicals; lighter fluid; mercury thermometers; motor oil; nail polish remover; paint;
pesticides; photographic chemicals; pool chemicals; propane tanks; rechargeable batteries; rust
remover; solvents; spot remover; tires; turpentine; weed killer; wood stains; wood stripper; and
other items that are designated as HHW with the mutual consent of the City and Contractor.
Load means the Recyclables and other materials delivered to the Designated Recycling Facility in a
City Vehicle.
Ordinances means the ordinances included in the City's code of ordinances.
Parties means the City and the Contractor.
Party means, depending on the context, either the City or the Contractor.
Permit means any permit, license, authorization, or other governmental approval required for the
Contractor's work under this Agreement.
Person means any and all persons and entities, natural or artificial, including any individual, firrn,
partnership, joint venture, or other association, however organized; any municipal or private
corporation organized or existing under the laws of the State of Florida or any other state; any
county or municipality; and any Governmental Authority.
Processing, Processed, and other variations of the verb "to Process" mean any technique designed
to change the physical, chemical, or biological character or composition of any Solid Waste so as to
render it: safe for transport; amenable to recovery, storage, or recycling; safe for disposal; or
reduced in volume or in concentration.
Program Materials means Recyclable Materials collected by or on behalf of the City and over which
the City has control. Recyclable Materials include newspapers (including inserts), corrugated
cardboard, mixed paper (including brown paper bags, magazines, phonebooks, junk mail, white and
colored paper, shredded paper in a bag, and paperboard), aluminum cans, plastic containers and
bottles marked with SP1 codes 1-7, glass bottles and jars, tin and ferrous cans, polycoated cartons,
and other materials designated as Program Materials by mutual agreement of the City and
Contractor.
Public Records Law means Chapter 119 of the Florida Statutes.
Recovered Materials means Recyclable Materials that have been separated from the Solid Waste
stream and Processed to market specifications.
Recyclable Materials or Recyclables means those materials that are capable of being recycled and
which would otherwise be Processed or disposed of as Solid Waste.
Rejects means materials, other than Residue, that cannot be recycled and cannot be Processed into
Recovered Materials,
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Residue means the portion of the Recyclable fvlaterials accepted by the Contractor that is not
converted to Recovered Materials due to breakage and/or Processing inefficiencies at the
Designated Processing Facility.
Single Stream means a recycling Process in which the generator (e.g., a resident) places all of the
different types of Recyclable Materials together in a bin or cart for collection by the City or its
Contract Hauler (if any). In a Single Stream system, all of the Recyclables are commingled together;
the generator and the hauler are not required to separate the Recyclables into two or more
containers.
Solid Waste means garbage, rubbish, refuse, trash, and other similar discarded materials resulting
from domestic, commercial, industrial, agricultural, or governmental operations. Solid Waste does
not include Recyclable Materials, Unacceptable Waste, or Solid Waste that is not controlled by the
City.
Ton means 2,000 pounds.
Transfer Station means a facility that is primarily used to store or hold Solid Waste prior to transport
to a Processing or disposal facility. The operations at a Transfer Station may include the separation
of incidental amounts of Recyclable Materials or Unacceptable Waste.
Unacceptable Waste means Biomedical Waste, Hazardous Waste, sludge, automobiles, automobile
parts, boats, boat parts, boat trailers, internal combustion engines, lead -acid batteries, used oil,
tires, and those wastes under the control of the Nuclear Regulatory Commission,
Work Day means any calendar day, except Sundays and Holidays.
SECTION 3. RESERVED
SECTION 4. CONTRACTOR'S RECYCLABLES PROCESSING RESPONSIBILITIES
A. Designated Facilities
(1) The following facility is the Designated Recycling Facility at which Program Materials will
be received by the Contractor pursuant to this Agreement, beginning on the
Commencement Date: Progressive Waste Solutions of FL, Inc. — Miami Recycling
Facility, located at 3840 N.W. 37th Court, Miami, Florida, 33142 or such other facility that
is approved in writing by the Director.
(2) The following facility is the Designated Processing Facility at which Program Materials
will be Processed pursuant to this Agreement, beginning on the Commencement Date:
Progressive Waste Solutions of FL, Inc. — Miami Recycling Facility, located at 3840 N.W.
37th Court, Miami, Florida, 33142 or such other facility that is approved in writing by the
Director.
S3)
The Designated Recycling Facility and Designated Processing Facility may be changed
only with the prior written approval of the Director.
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(4) The Contractor shah be solely responsible for all aspects of the design, permitting,
financing, construction, management, staffing, operation, closure, and maintenance of
the Designated Recycling Facility and Designated Processing Facility.
(5) The Contractor shall ensure that the Designated Recycling Facility and Designated
Processing Facility are operated at all times in compliance with all Applicable Law.
(6) The City shall have the right, but not the duty, to inspect and observe the operating and
maintenance practices at the Designated Recycling Facility and Designated Processing
Facility. Among other things, the City may observe the receipt, separation, Processing,
loading, storage, and transport of the materials received at each facility. The City may
inspect and observe these facilities at any time during the Contractor's normal hours of
operation, as specified in Section 4.B(2), below. The Contractor shall accommodate the
City's inspections, but may require the City to comply with reasonable safety
requirements.
B. Materials Acceptance
(1)
Beginning on the Commencement Date, to the extent allowed by law, the City shall
deliver and direct the Contract Hauler (if any) to deliver the City's Program Materials to
the Designated Recycling Facility during the days and hours specified in Section 4.B(2),
below. The City's Program Materials may be collected and delivered to the Designated
Recycling Facility in a Single Stream. The City provides no warranties or guarantees
regarding the quantity, quality, or characteristics of the Program Materials that will be
delivered to the Designated Recycling Facility.
(2) Beginning on the Commencement Date, the Contractor shall accept deliveries of the
City's Program Materials at the Designated Recycling Facility between the hours of 6:00
a.m. and 6:00 p.m., Monday through Friday, and 6:00 a,m. and 4:00 p.m. on Saturday, or
other hours approved in writing by the Director. At the Contractor's option, the
Designated Recycling Facility may be closed on Holidays. No reduction in the scheduled
receiving hours shall be made without the prior written approval of the Director.
(3)
4)
The City shall have the right to designate other types of Recyclable Materials as Program
Materials, if the Parties agree it is technically feasible and cost-effective to Process such
Recyclable Materials.
The Designated Recycling Facility shall be operated in a manner that facilitates the easy
and rapid ingress and egress of City Vehicles. The Contractor shall use all reasonable
measures to ensure that the average turnaround time for City Vehicles does not exceed
twenty (20) minutes. The average turnaround time shall be determined on a daily basis.
The turnaround time shall be measured from the time when a City Vehicle enters the
queue at the entrance to the Designated Recycling Facility and it shall include all of the
time until the City Vehicle leaves the facility site. However, the turnaround time shall
not include delays caused by (a) equipment failures that are not the result of the
Contractor's negligence, (b) the negligent actions of the City's drivers or the Contract
Hauler, or (c) the breakdown of City Vehicles. Within one (1) Working Day after
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(5)
receiving the City's request, the Contractor shall provide the City with access to the
Contractor's records concerning the turnaround times for the City Vehicles,
The Designated Recycling Facility shall be equipped with truck scales and computerized
recordkeeping systems for weighing and recording the delivery of the City's Program
Materials. The Contractor shall calibrate and certify the accuracy of the scales at least
once each calendar quarter.
(6) The Contractor shall weigh each City Vehicle that delivers Program Materials to the
Designated Recycling Facility. The Contractor's records shall identify the gross weight of
each City Vehicle, the weight of the Load delivered in each City Vehicle, the date when
the City Vehicle delivered the Load, and the times when the City Vehicle entered and
left the facility site. The Contractor shall record and keep this information in a manner
that allows the Contractor to provide reports concerning the City's Program Materials as
required herein or reasonably requested by the City. The Contractor may use tare
weights. If the Contractor chooses to use tare weights, all tare weights shall be
recalibrated at least once every sixty (60) calendar days.
(7)
(8)
If Hazardous Waste is found within a Load of Program Materials delivered to the
Designated Recycling Facility in a City Vehicle, the Contractor shall immediately: (a) take
photographs of the Hazardous Waste; (b) take photographs of the truck that delivered
the waste to the Designated Recycling Facility; (c) take photographs of the truck
number; (d) record the truck driver's name and pertinent information concerning the
source of the Hazardous Waste, if known; and (e) notify the Director. The Contractor
shall properly isolate, containerize, and dispose of the Hazardous Waste in accordance
with Applicable Law. The Contractor shall have the burden of demonstrating that the
Hazardous Waste was delivered to the Designated Recycling Facility in a City Vehicle.
The City shall reimburse the Contractor for all reasonable, documented, out-of-pocket
expenses the Contractor incurs for the management and disposal of Hazardous Waste
that was delivered to the Designated Recycling Facility in a City Vehicle.
In the event the Contractor fails, refuses, or is unable to accept part or all of the City's
Program Materials on the Commencement Date or anytime thereafter during the term
of this Agreement, the Contractor shall be liable for all hauling, Processing,
transportation, disposal, and other related charges and costs that the City incurs with
regard to marketing, recycling, and/or disposing of such materials. Among other things,
the Contractor shall pay the City for any deficit the City incurs if the revenue from the
sale of Program Materials is less than the revenue the City would have received if the
Contractor had accepted the Program Materials when they were delivered to the
Designated Recycling Facility.
C. Transport, Processing, Marketing, and Disposal
(1) Upon acceptance of Program Materials at the Designated Recycling Facility, the
Contractor shall bear all costs associated with Processing or transporting Program
Materials and marketing and transporting Recovered Materials. The Contractor is
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responsible for all costs of transporting and disposing non -recyclable materials,
including Rejects and Residue, resulting from the Processing of Program Materials.
(2) Unless the Contractor has received the prior written permission of the Director, the
Contractor shall not dispose of Program Materials or Recovered Materials resulting from
the Processing of Program Materials. Such prior written permission from the City is not
required for any type of Recyclable Material or Recovered Material that has an AMV of
zero ($0.00) or less, as determined in compliance with Section 6, below.
(3)
With regard to Program Materials or Recovered Materials obtained from Program
Materials, the Contractor shall not knowingly provide such materials to a Person that
will place such materials in a landfill, burn such materials in a waste -to -energy facility, or
otherwise dispose of such materials, except as provided in 4.C(2), above. The
Contractor shall not knowingly, or without reasonable investigation, sell Program
Materials or Recovered Materials resulting from processing of Program Materials to
another Person that will dispose of such material.
(4) The requirements in Sections 4.C(2) and (3) do not apply to Rejects and Residue.
D. Record Keeping
(1) The Contractor shall create, maintain, and make available all of the records required
herein, as well as any records required under Applicable Law, The Contractor shall
create, maintain, and make available to the City all of the records reasonably necessary
to demonstrate that the Contractor has performed all of its work under this Agreement
in compliance with the requirements contained herein.
(2) The Contractor shall create and maintain records identifying the amount of Program
Materials that were delivered to the Designated Recycling Facility by the City and its
Contract Hauler (if any). The Contractor's records shall clearly distinguish between the
Program Materials delivered by or on behalf of the City and the materials delivered by
other Persons.
(3)
The Contractor shall maintain its records in an organized, up-to-date manner, in
accordance with generally accepted management principles and practices. The City shall
have access to the Contractor's books, records, and documents for inspection, review,
and copying in Dade County during normal business hours, within five (5) Working Days
after the City requests such records. The Contractor will provide appropriate facilities
for conducting such inspection.
(4) The Florida Public Records Law may be applicable to the Contractor's records or
documents pertaining to this Agreement. Contractor agrees to comply with all
Applicable Laws, including the applicable provisions (if any) of Section 119.0701, Florida
Statutes.
(5) The Contractor will maintain and allow access to the books, records, data, documents,
and reports relating to this Agreement in accordance with the records retention
8
requirements set forth in Florida law or for five (5) years after this Agreement expires or
terminates, whichever is later.
E. Reporting
(1) Prior to the fifteenth (15th) calendar day of each month during the term of this
Agreement, the Contractor shall submit a report electronically to the Director, in a
format approved by the Director. The report shall identify the total tonnage of Program
Materials delivered to the Designated Recycling Facility by the City and its Contract
Hauler during the previous month. The report shall contain a breakdown of such
deliveries by delivery date and time, vehicle number, and quantity per vehicle.
(2) Within thirty (30) days after the end of each Contract Year, the Contractor shall provide
the Director with a report summarizing the total Tons of Program Materials delivered to
the Designated Facility by the City and its Contract Hauler during the Contract Year and
the net tonnage diverted from disposal. Additionally, the Contractor shall provide the
City with a copy of the Contractor's annual report to FDEP, summarizing the Recyclable
Materials deliveries by type, quantity, and source. The report shall be provided to the
City within seven (7) days after the report is submitted to FDEP.
(3)
At least fifteen (15) days prior to the end of each Contract Year during the term of this
Agreement, the Contractor shall ensure and certify to the City that all required
documents are current and on file with the City. Such documents include, but are not
limited to, certificates of insurance and the performance bond.
F. Public Education and Information
(1) The Contractor shall, at no cost to the City, provide an educational presentation
concerning the Designated Recycling Facility at two (2) events per Contract Year, if such
presentations are requested by the City.
(2)
The Contractor shall, at no cost to the City, provide tours of the Designated Recycling
Facility and Designated Processing Facility for the benefit of the City and its invitees/
guests. The City shall provide the Contractor at least ten (10) calendar days advance
notice of such tours. The Contractor shall provide personnel (bilingual upon request) to
lead the tour and the Contractor shall provide all necessary personal safety equipment.
Prior to conducting any tours, the City and the Contractor shall jointly designate the
areas where tour -group participants can safely observe the operations of the facility.
SECTION 5. RESERVED
SECTION 6. REVENUE AND PAYMENT FOR RECYCLABLE
A. Program Materials Revenue
(1) The Contractor shall pay the City monthly for each Ton of Program Materials delivered
to the Designated Recycling Facility, as determined by the Designated Recycling Facility's
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scales. The payment per Ton shall be calculated as follows and as described in Exhibits 1,
2, and 3:
(a)
Each month, the Contractor shall calculate the Average Market Value (AMV) of the
Program Materials, defined as the sum of the Southeast USA regional average
commodity prices (U.S. Dollars per Ton) first posted in the month for which
payment is being made in RecyclingMarkets.net, multiplied by the composition
percentages identified in Exhibit 2. If at any time during the term of this Agreement
RecyclingMarkets.net no longer posts or otherwise fails to provide the applicable
market indices, then the parties shall mutually select an appropriate replacement
source for the required information from among the sources recycling industry
professionals utilize to obtain reliable Recovered Material pricing information.
(b) A Contractor's Fee of Fifty Dollars ($50.00) per Ton shall be deducted from the AMV.
This fee shall be adjusted as specified in Section 6.A.(2).
(c) The Contractor shall pay the City a percentage, as provided in Exhibit 1, of the
remaining amount, for each Ton of Program Materials delivered to the Designated
Recycling Facility during that month. The percentage payable to the City is thirty-
five and one-half percent (35.5%) of the AMV (net of Contractor's Fee).
(d) If the AMV is less than the Contractor's Fee, the Contractor shall make no payment
to the City. At no time shall the City make payment to the Contractor for accepting,
Processing, or marketing Program Materials, regardless of the AMV.
(2) The Contractor's Fee of Fifty Dollars ($50.00) per Ton shall remain unchanged through
the first Contract Year. On June 1, 2015 and each subsequent June 1 during the term of
the Agreement, the Contractor's Fee shall be adjusted based on seventy-five percent
(75%) of the percentage change in the Consumer Price Index (CPI) between the month
of March in the previous year and the month of March in the current year, rounded to
the nearest tenth. The CPI will be the Consumer Price index for the South Urban Region,
All Items — All Urban Wage Earners and Clerical Workers, (series iD #CWURO300SA0)
published by the United States Department of Labor, Department of Labor Statistics.
Notwithstanding anything else contained herein, the total adjustment to the
Contractor's Fee in any given year shall not exceed three percent (3%) of the
Contractor's Fee in the previous year. If the CPI is discontinued or substantially altered,
the City may select another relevant price index published by the United States
Government or by a reputable publisher of financial and economic indices.
(3)
At any time, the City or Contractor may conduct a composition study of the Program
Materials delivered to the Designated Recycling Facility. The Party requesting such study
shall pay for the study unless otherwise agreed upon. The final methodology for the
study, and the selection of a qualified Person to conduct the study, must be approved by
the City. The City reserves the right to have a representative onsite throughout the
composition study. Study results are subject to final approval by the City, which shall not
be unreasonably withheld. if approved by the City, adjustments to the composition
percentages provided in Exhibit 2 shall be made and shall become effective for the
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following month and the remainder of the Agreement or until further adjusted as the
result of a future composition study.
(4) In May 2014, the City conducted a composition study concerning the Program Materials.
At that time, the City used garbage cans to collect garbage and it used wheeled carts to
collect Program Material, If the City uses wheeled carts to collect garbage in the future,
the composition of the Program Materials may change significantly. Accordingly, the
City and the Contractor shall conduct a new composition study within ninety (90) days
after the City's residents receive garbage carts or at any other time that is mutually
acceptable to the City and the Contractor. The requirements in Section 6.A.(3) shall
apply to the new composition study; however, the cost of the composition study shall
be shared equally (50% - 50%) by the City and the Contractor.
(5)
The Contractor acknowledges and accepts that the formula outlined in this Section 6.A
shall be used for calculating the Contractor's revenue throughout the term of this
Agreement. The formula is intended to reflect the current value of Program Materials,
but might not be an exact calculation of that value. If the commodity revenue received
by the Contractor differs from the market index, or if the Contractor's Fee does not
accurately reflect the Contractor's cost for accepting, Processing, and marketing
Program Materials, the Contractor shall not be entitled to other payments or revenues
from the City, because the Contractor has taken such items into consideration when
establishing the percentage of the AMV (less the Contractor's Fee) that the Contractor
will pay to the City. Any a9d all costs associated with accepting, Processing, marketing,
and transporting Progranaterials shall be the sole responsibility of the Contractor.
B. Invoicing and Payment
(1) No later than the fifteenth (15) day of each month, the Contractor shall submit a
monthly report, in a form acceptable to the City, detailing the total revenue due to the
City for the Program Materials delivered to the Designated Recycling Facility during the
previous month. The report shall be sent to the following address:
City of Hialeah
Public Works Department
Attn: Director
3700 West 4th Street
Hialeah, FL 33012
(2) The Contractor shall remit payment of said revenue, as detailed in the monthly report,
within thirty (30) calendar days after the end of the month for which the payment is
due. Payment shall be delivered to the following:
City of Hialeah
Public Works Department
Attn: Director
3700 West 4th Street
Hialeah, FL 33012
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SECTION 7. CHANGE IN LAW
The Contractor may petition the City for a rate adjustment based on a change in law that directly,
significantly, and adversely affects Contractor's cost of providing its services under this Agreement. The
Contractor's request shall contain substantial proof and justification to support the need for the rate
adjustment. The City may request from the Contractor such further information as may be reasonably
necessary in making the City's determination. Within sixty (60) calendar days of receipt of the request
and all other additional information required by the City, the Director shall make a determination
regarding the fairness of the request, and shall make a recommendation to the City Council. The City
Council shall consider the request at a regular meeting. The City Council may grant or deny the
Contractor's request, in the Council's sole discretion. If the City Council approves the request, adjusted
rates shall become effective upon execution of a written amendment to the Agreement.
SECTION 8. LIQUIDATED DAMAGES
A. Assessment of Liquidated Damages. The City and Contractor recognize and agree that certain
events may cause the City to suffer losses or damages that are by their nature uncertain,
difficult to prove, and not ascertainable at the time the Agreement is entered into. The parties
agree that certain breaches will cause Contractor to pay liquidated damages without any proof
of the actual damage resulting from the breach. In no event shall these liquidated damages be
construed or deemed to constitute penalties. The Director (or the Director's designee) may
assess such liquidated damages pursuant to this Section 8 on a monthly basis in connection with
this Agreement and shall, at the end of each month during the term of this Agreement, notify
the Contractor in writing of the liquidated damages assessed and the basis for each assessment.
In the event the Contractor wishes to contest such assessment, it may request in writing a
meeting with the Director to resolve the issue. The Director shall notify the Contractor in
writing of any action taken with respect to Contractor's claims. The Director's decision shall be
final and conclusive unless determined by a court of competent jurisdiction to be fraudulent,
capricious, arbitrary, so grossly erroneous as to necessarily imply bad faith, or not supported by
competent evidence..
Liquidated Damages for Recyclables Processing Service. The City may assess liquidated damages
against the Contractor for failing to provide Processing services in compliance with the
requirements of this Agreement. It is hereby agreed that the City may demand immediate
payment from the Contractor, and the Contractor shall pay, for liquidated damages, and not as a
penalty, in the following amounts:
1. Failure to accept Recyclable Materials during scheduled $500 per unaccepted Load
receiving hours (Section 4.B(2))
2. Failure to provide a daily average delivery vehicle turnaround $500 per day
time that does not exceed 20 minutes (Section 4.B(4))
3. Disposing of Recyclable Materials or Recovered Materials $1,000 per occurrence
without prior approval of the Director (Section 4.C.)
4. Failure to submit timely records and reports (Section 4.E.) $100 per calendar day late
within one Work Day after the Contractor receives notice of
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such failure from the City.
5. Failure to make timely payment to the City (Section 6,B.)
SECTION 9. EMERGENCY SERVICE PROVISIONS
$100 per calendar day late
In the event of a hurricane, tornado, major storm, natural disaster, or other such event, the Director
may grant the Contractor a variance from regular service. However, Contractor shall make its best effort
to resume regular service as soon as possible. As soon as practicable after such event, the Contractor
shall advise the Director when it is anticipated that normal service can be resumed.
SECTION 10. PERFORMANCE BOND
A. Prior to the Commencement Date, the Contractor shall furnish to the City a Performance Bond
for the faithful performance of this Agreement and all obligations arising hereunder. The
Contractor shall keep the Performance Bond current and in effect at all times throughout the
term of this Agreement and any renewal terms. The Performance Bond shall be in the amount
of Fifty Thousand Dollars ($50,000).
B. The Performance Bond shall be executed by a surety company: licensed to do business in the
State of Florida; having an "A X" or better rating by A.M. Best or Standard and Poors; included
on the list of surety companies approved by the Treasurer of the United States; and in a form
acceptable to the City.
SECTION 11. INSURANCE
11.1 Policy limits. Contractor shall not commence performance under this Agreement until
Contractor has obtained all of the insurance required under this Section 11 and Certificates of
Insurance reflecting the required insurance have been filed with the Director,
Contractor shall maintain insurance with minimum policy limits for each coverage as scheduled
below, with such coverage per occurrence, single limit, and commencing prior to the
commencement of the work under this Agreement, and continuing to provide coverage for
claims based on occurrences during the initial term and any renewal term of this Agreement
(except for Pollution Liability, which may be provided on a claims made basis) for a minimum of
three years after the date of termination or expiration of this Agreement:
Commercial General Liability
Contractual Liability
Commercial Automobile Liability
Pollution Liability
Worker's Compensation
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$1, 000, 000/$2, 000, 000
$1, 000, 000/$2,000, 000
$1,000000 Per occurrence
$1, 000, 000/$2,000,000
Statutory Amount
Employer's Liability $1,000,000
Umbrella Liability $5,000,000
The Commercial General Liability insurance and the Contractual Liability insurance shall have
dedicated limits of One Million Dollars ($1,000,000) per occurrence and Two Million Dollars
($2,000,000) aggregate for bodily injury and property damage. This coverage shalt also include
personal and advertising injury, medical payments, and completed operations. The Commercial
Automobile Liability insurance shall have a minimum limit of One Million Dollars ($1,000,000)
per occurrence and Two Million Dollars ($2,000,000) aggregate and shall cover any automobile
or other vehicle, including non -owned, hired, or leased vehicles. The Worker's Compensation
insurance shall comply with the requirements and statutory limits established by the State of
Florida. The Employer's Liability insurance shall have a minimum limit of One Million Dollars
($1,000,000) per accident for bodily injury or disease.
11.2 City as additional insured. The City shall be named as an additional insured on all insurance
policies required under this Agreement, except Workers Compensation. All Insurance Policies
shall be endorsed to provide that (a) Contractor's insurance is primary and non-contributory to
any other insurance available to the City or any other additional insured with respect to claims
covered under the policy and (b) Contractor's insurance applies separately to each insured
against whom claims are made or suit is brought, and (c) the inclusion of more than one insured
shall not operate to increase the Insurer's limit of liability. Without the City's prior written
approval, self-insurance by Contractor shall not be acceptable as providing any of the insurance
coverages required in this Agreement. The Contractor's Certificate of Insurance must identify
the City's Solicitation number and title (Recyclable Materials Processing Services; ITB No. 2013-
14-9500-00-001).
11.3 Insurance company standards. Policies required under this Agreement shall be issued by
companies authorized to do business under the laws of the State of Florida, with minimum
ratings from A.M. Best Company of A or better, and FSC X or better.
11.4 Notice of cancellation. Contractor agrees to furnish City at least thirty (30) days prior written
notice of any cancellation of any insurance policy required under this Agreement. In the event
the insurance certificate provided indicates that the insurance shall terminate and lapse during
the period of this Agreement, then Contractor shall furnish, at least ten (10) days prior to the
expiration date of such insurance, a renewed certificate of insurance as proof that equal and like
coverage for the balance of the period of the Agreement and extension thereunder is in effect.
Contractor shall not continue to work pursuant to this Agreement unless all required insurance
remains in full force and effect.
11.5 Minimum level of umbrella coverage. To ensure an adequate level of outstanding insurance
coverage for claims that arise from Contractor's performance under this Agreement, Contractor
shall maintain a minimum outstanding level of umbrella insurance coverage during the term of
this Agreement in the amount of Five Million Dollars ($5,000,000) after deducting the amount of
any claims filed or made against any policy required under this Agreement. Such coverage shall
be maintained at all times during the term of this Agreement and the three (3) year period
following the term of this Agreement.
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11.6 Premium payment responsibility. Contractor shall be solely responsible for payment of all
premiums for insurance contributing to the satisfaction of this Agreement and shall be solely
responsible for the payment of all deductibles and retentions to which such policies are subject.
Contractor shall ensure that any company issuing insurance to satisfy the requirements
contained in this Agreement, agrees that they shall have no recourse against City for payment or
assessments in any form on any policy of insurance.
11.7 Claims made policies. If Contractor's insurance policy is a "claims -made" policy, then Contractor
sha!l maintain such insurance coverage for a period of five (5) years after the expiration or
termination of this Agreement or any extensions or renewals of this Agreement. Applicable
coverages may be met by keeping the policies in force, or by obtaining an extension of coverage
commonly known as a reporting endorsement of tail coverage.
11.8 If any of Contractor's insurance policies includes a general aggregate limit and provides that
claims investigation or legal defense costs are included in the general aggregate limit, the
genera! aggregate limit that is required shall be at least five (5) times the occurrence limits
specified in this Section 11.
11.9 The official title of the owner is the City of Hialeah. This official title shall be used in all insurance
policies and documentation.
11.10 AU required insurance policies shall preclude any insurer's or underwriter's rights of recovery or
subrogation against the City, with the express intention of the Parties being that the required
insurance coverage protects both Parties as the primary coverage for any and all losses covered
by the above -described insurance.
11.11 The clauses "Other Insurance Provisions" and "Insured Duties in the Event of an Occurrence,
Claim or Suit" as it appears in any policy of insurance in which City is named as an additional
named insured shall not apply to the City in any respect. The City shall use its best efforts to
provide written notice of occurrence within thirty (30) Working Days after City's actual notice of
such event.
11.12 Notwithstanding any other provisions of this Agreement, Contractor's obligation to maintain all
required insurance as specified in this Section 11 of the Agreement shall survive the expiration
and termination of this Agreement.
SECTION 12. INDEMNIFICATION OF CITY
A. Contractor shall indemnify, defend, and hold harmless City, City's contractors, and the public
officials, officers, directors, employees, agents, and other contractors of each of them, from and
against any and all claims, which shall include but not be limited to any and all costs, losses and
damages (including but not limited to all fees and charges of engineers, architects, attorneys,
and other professionals as well as all court or other dispute resolution costs), liabilities,
expenditures or causes of action of any kind (including negligent, reckless, willful or intentional
acts or omissions of the Contractor, any subcontractor, any supplier, any Person or organization
directly or indirectly employed by any of them to perform or furnish any services or anyone for
whose acts any of them may be liable), caused by the Contractor's breach of this Agreement,
15
the Contractor's violation of Applicable Law, or the negligent acts or omissions of the Contractor
in the performance of this Agreement. This indemnity includes but is not limited to claims
attributable to bodily injury, sickness, disease or death and to injury or destruction of tangible
property. Further, the Contractor's indemnity includes all claims based on, arising out of, or
related to (1) the payment of fees, royalties, or costs for any invention or patent rights or for the
infringement of any copyrights or patents claimed by any Person, (2) the City's decision to award
this Agreement to the Contractor, and (3) the Contractor's refusal to produce documents under
the Public Records Law, However, Contractor's indemnity does not include claims caused by the
negligent acts or omissions of the City.
B. Contractor agrees, at Contractor's expense, after written notice from the City, to defend any
action against the City that falls within the scope of the indemnity set forth above in Section
12.A, or the City, at the City's option, may elect instead to secure its own attorneys to defend
any such action and the reasonable costs and expenses of such attorneys incurred in defending
such action shall be payable by Contractor. Additionally, if Contractor, after receipt of written
notice from the City, fails to make any payment due under this Agreement to the City or fails to
perform any obligation required by this Agreement, Contractor shall pay any reasonable
attorneys' fees and costs incurred by the City in securing any such payment from Contractor, or
any reasonable attorneys' fees and costs incurred in the enforcement of this indemnity, or both.
Payment of any amount due pursuant to the foregoing indemnity shall, after receipt of written
notice by Contractor from the City that such amount is due, be made by Contractor prior to the
City being required to pay same, or in the alternative, the City, at the City's option, may make
payment of an amount so due and Contractor shall promptly reimburse the City for same,
together with interest thereon at the rate of twelve percent (12%) per annum simple interest
from the date of receipt by Contractor of written notice from the City that such payment is past
due at least twenty (20) days .
C. It is specifically understood and agreed that the consideration inuring to the Contractor for the
execution of this Agreement includes the promises, payments, covenants, rights, and
responsibilities contained in this Agreement.
D. The execution of this Agreement by the Contractor shall obligate the Contractor to comply with
the foregoing indemnification provision; however, the collateral obligation of providing
insurance must be also complied with, as set forth in Section 11, above.
E. The Contractor shall require each of its subcontractors to enter into a contract containing the
provisions set forth in the preceding subsections and shall require the subcontractors to fully
indemnify the City in accordance with this Agreement.
SECTION 13. POINT OF CONTACT
The day-to-day dealings between the Contractor and the City shall be between the Contractor and the
Director or the Director's designee.
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SECTION 14. NOTICE
Except as otherwise expressly provided herein, whenever either party desires to give notice to the
other, it must be given by written notice with hand delivery or sent by certified U.S. mail, with return
receipt requested, addressed to the Party for whom it is intended, at the place fast specified and to the
place for giving of notice in compliance with the provisions of this Section 14. For the present, the
Parties designate the following as the respective Persons and places for giving of notice:
As to the City:
Director of Public Works Department
City of Hialeah
3700 West 4th Street
Hialeah, FL 33012
With a copy to:
Lorena Bravo, City Attorney
City of Hialeah
501 Palm Avenue
Hialeah, FL 33010
As to the Contractor:
Progressive Waste Solutions of FL, Inc.
Dean DiValerio, Southeast Region Vice President
3840 N,W. 37`h Court
Miami, Florida 33142
With a copy to:
Progressive Waste Solutions of FI, Inc.
Legal Department
2301 Eagle Parkway, Suite 200
Fort Worth, TX 76177
Notices shall be effective when received at the address specified above. Changes in the respective
addresses to which such notice is to be directed may be made from time -to -time by written notice.
17
SECTION 15. TERMINATION OF CONTRACT
A. Termination for Cause. The City may cancel this Agreement, except as otherwise provided
below in this Section 15, by giving the Contractor fifteen (15) days advance written notice, to be
served as provided in Section 14, upon the happening of any one of the following events:
(1)
The Contractor shall take the benefit of any present or future insolvency statute, or shall
make a general assignment for the benefit of creditors or file a voluntary petition in
bankruptcy (court) or a petition or answer seeking an arrangement for its reorganization
or the readjustment of its indebtedness under the federal bankruptcy laws or under any
other law or statute of the United States or any state thereof or consent to the
appointment of a receiver, trustee or liquidator of all or substantially all of its property;
or
(2) By order or decree of a court, the Contractor shall be adjudged bankrupt or an order
shall be made approving a petition filed by any of its creditors or by any of the
stockholders of the Contractor, seeking its reorganization or the readjustment of its
indebtedness under the federal bankruptcy laws or under any law or statute of the
United States or of any state thereof, provided that if any such judgment or order is
stayed or vacated within sixty (60) days after the entry thereof, any notice of default
shall be and become null, void and of no effect, unless such stayed judgment or order is
reinstated, in which case, said default shall be deemed immediate; or
(3)
By, or pursuant to or under the authority of any legislative act, resolution or rule or any
order or decree of any court or governmental board, agency or officer having
jurisdiction, a receiver trustee or liquidator shall take possession or control of all or
substantially all of the property of the Contractor, and such possession or control shall
continue in effect for a period of sixty (60) days; or
(4) The Contractor has defaulted by failing or refusing to pay in a timely manner the
liquidated damages or other monies due the City and said default is not cured within
fifteen (15) days of receipt of written notice by City to do so; or
(5)
The Contractor has defaulted by allowing any final judgment for the payment of money
to stand against it unsatisfied and said default is not cured within fifteen (15) days of
receipt of written notice by City to do so; or
(6) The Contractor has defaulted, by failing or refusing to perform or observe the terms,
conditions or covenants in this Agreement or any of the rules and regulations
promulgated by the City pursuant to this Agreement or has wrongfully failed or refused
to comply with the instructions of the Director relative thereto and said default is not
cured within fifteen (15) days of receipt of written notice by the City to do so, or if by
reason of the nature of such default, the same cannot be remedied within fifteen (15)
days following receipt by the Contractor of written demand from the City to do so, the
Contractor fails to commence the remedy of such default within said fifteen (15) days
following such written notice or having so commenced shall fail thereafter to continue
with diligence the curing thereof (with the Contractor having the burden of proof to
18
demonstrate that (a) the default cannot be cured within fifteen (15) days, (b) it is
proceeding with diligence to cure said default, and (c) such default will be cured within a
reasonable period of time). However, notwithstanding anything contained herein to the
contrary, if the Contractor is unable for any reason or cause to resume performance at
the end of thirty (30) calendar days, all liability of the City under this Agreement to the
Contractor shall cease and this Agreement may be deemed terminated by the City.
In the event that the monies due the City under subsection (4) above or an unsatisfied final
judgment under subsection (5) above is the subject of a judicial proceeding, the Contractor
shall not be in default if the sum of money is bonded. All bonds shall be in the form
acceptable to the City Attorney.
B. Habitual Violations. Notwithstanding the foregoing and as supplemental and additional means
of terminating this Agreement under this Section 15, in the event that the Contractor's record of
performance shows that the Contractor has frequently, regularly or repetitively defaulted in the
performance of any of the covenants and conditions required herein to be kept and performed
by the Contractor, and regardless of whether the Contractor has corrected each individual
condition of default, the Contractor shall be deemed a "habitual violator," shall be deemed to
have waived the right to any further notice or grace period to correct, and all of said defaults
shall be considered cumulative and collectively and shall constitute a condition of irredeemable
default. The City shall thereupon issue the Contractor a final warning citing the circumstances
therefore, and any single default by the Contractor of whatever nature, subsequent to the
occurrence of the last of said cumulative defaults, shall be grounds for immediate termination of
this Agreement. In the event of any such subsequent default, the City may terminate this
Agreement upon giving of written final notice to the Contractor, such cancellation to be
effective upon the date specified in the City's written notice to the Contractor, and all
contractual fees due hereunder plus any and all charges and interest shall be payable to said
date, and the Contractor shall have no further rights hereunder. Immediately upon the specified
date in such final notice, the Contractor shall cease any further performance under this
Agreement.
C. Termination Without Cause. In addition to and not withstanding any other provisions of this
Agreement, this Agreement may be terminated by the City for conveniecie, without cause,
upon providing the Contractor with ninety (90) days written notice.
D. Effective Date of Termination. In the event of the aforesaid events specified in subsections 15.A,
15.B, and 15.C, above, and except as otherwise provided in said subsections, termination shall
be effective upon the date specified in the City's written notice to the Contractor and upon said
date this Agreement shall be deemed immediately terminated and upon such termination all
liability of the City under this Agreement to the Contractor shall cease, and the City shall have
the right to call the performance bond and shall be free to negotiate with other contractors for
the services specified herein, The Contractor, for failure to perform, shall reimburse the City for
all direct and indirect costs of obtaining interim service.
19
SECTION 16. MODIFICATIONS TO THE AGREEMENT
The City shall have the power to make changes in this Agreement as the result of changes in law, the
City Code, or both, and to impose new rules and regulations on the Contractor under this Agreement
relative to the scope and methods of providing the service specified herein as shall from time -to -time be
necessary and desirable for the public welfare, The City shall give the Contractor notice of any proposed
change and an opportunity to be heard concerning those matters. If a change is required as a result of
an amendment to the City's Code, upon receipt of the proposed change, Contractor shall have ten (10)
business days to either accept the change or to terminate this Agreement by providing the City with
ninety (90) days written notice of termination. Failure to provide the City with written notice of
termination shall constitute acceptance of the proposed change. The scope and method of providing
service as referenced herein shall also be liberally construed to include, but they are not limited to, the
manner, procedures, operations and obligations, financial or otherwise, of the Contractor.
The City and the Contractor understand and agree that the Florida Legislature has the authority to make
comprehensive changes in Solid Waste management legislation and that these and other changes in law
in the future which mandate certain actions or programs for counties or municipalities may require
changes or modifications in some of the terms, conditions or obligations under this Agreement. The
Contractor agrees that the terms and provisions of any City Code of the City related to Solid Waste
services and regulations, as it now exists or as it may be amended in the future as a result of any
changes in the law, shall apply to all of the provisions of this Agreement. In the event any future change
in the City Code materially alters the obligations of the Contractor, then the fee established in the
exhibits to this Agreement shall be adjusted. Nothing contained in this Agreement shall require any
Party to perform any act or function contrary to law. The City and Contractor agree to enter into good
faith negotiations regarding modifications to this Agreement which may be required in order to
implement changes in the interest of the public welfare or due to change in law. When such
modifications are made to this Agreement, the City and the Contractor shall negotiate in good faith a
reasonable and appropriate compensation adjustment for any increase or decrease in the services or
other obligations required of the Contractor due to any modification in the Agreement under this
Section 16. The City and the Contractor shall not unreasonably delay or withhold agreement to such
compensation adjustment.
SECTION 17. PERMITS AND LICENSES
The Contractor shall obtain, at its own expense, all permits and licenses required by Applicable Law and
shall maintain same in full force and effect at all times rlhiring the term of this Agreement.
SCTION 1$) INDEPENDENCE OF AGREEMENT
It is derstaod and agreed that nothing herein is intended or should be construed as in any way
establishing the relationship of co-partners or a joint venture between the Parties hereto or as
constituting the Contractor_as an agent, representative or employee of the City for any purpose
whatsoever. The Contractor is to be, and shall remain, an independent contractor with respect to all
services performed under this Agreement.
20
SECTION 19. FORCE MAJEURE
If either Party is prevented from or delayed in performing its duties under this Agreement by a Force
Majeure Event, including, without limitation, fires, hurricanes, severe weather, floods, pandemics,
quarantines, war, civil disturbances, acts of terrorism, labor disputes, acts of God, or material changes in
any Applicable Law, or acts of any Governmental Authority, then the affected Party shall be excused
from performance hereunder during the period of such disability. The Party seeking relief as a result of a
Force Majeure Event shall promptly notify the other Party in writing when it learns of the existence of a
Force Majeure Event and when the Force Majeure Event has terminated. Notwithstanding anything in
this Agreement to the contrary: (a) the term "Farce Majeure Event" does not include, and a Party shall
not be excused from performance under this Agreement far, events relating to increased costs or
changing economic conditions, including, without limitation, increased costs of fuel, labor, insurance, or
other expenses of performing the services hereunder; and (b) a Force Majeure Event shall not be
grounds for a delay or failure to satisfy a Party's payment obligations under this Agreement. If a Force
Majeure Event will prevent the Contractor from satisfying its obligations under this Agreement for more
than thirty (30) calendar days, the City may terminate this Agreement after providing five (5) Work Days
written notice.
SECTION 20. EMPLOYEE STATUS
The City shall have no obligation to pay or provide for the Contractor's employees. A Person employed
by the Contractor in the performance of services and functions pursuant to this Agreement shall have no
claim to any rights or benefits provided by the City to the City's employees (e.g., pension, workers'
compensation, unemployment compensation, civil service or other employee rights or privileges
granted to the City's officers and employees).
SECTION 21. EQUAL OPPORTUNITY EMPLOYMENT
Contractor shall comply with all federal, state and local laws applicable to the Contractor's services,
specifically including those covering Equal Opportunity Employment, the Americans with Disabilities Act
("ADA"), and the South Florida Building Code. The Contractor is expected to fully comply with all
provisions of all Applicable Laws and the City reserves the right, but not the obligation, to verify the
Contractor's compliance with them. Failure to comply with any Applicable Laws will be grounds for
termination of this Agreement for cause.
SECTION 22. CONTRACTOR'S WARRANTIES
The Contractor warrants that all work, materials, services and equipment that may reasonably be inferred
from this Agreement as being required to produce the intended result, will be supplied by the Contractor at
its own cost, whether or not specifically identified and required in this Agreement.
The Contractor warrants and agrees that all work, materials, services and equipment necessitated by the
inspections of City agencies or other regulatory agencies, in order to bring the Contractor's work into
compliance with this Agreement and all Applicable Laws, shall be the responsibility of the Contractor and
shall be provided at no additional cost to the City.
21
SECTION 23, RIGHT TO REQUIRE PERFORMANCE
The failure of the City at any time to require performance by the Contractor of any provision hereof shall
in no way affect the right of the City thereafter to enforce same, nor shall waiver by the City of any
breach of any provision hereof be taken or held to be a waiver of any succeeding breach of such
provision or as a waiver of any provision itself. To be effective, any waiver shall be in writing and signed
by the Party granting such waiver. Any waiver shall be limited to the particular right so waived and shall
not been deemed to waive any other right under this Agreement.
SECTION 24. GOVERNING LAW
The Parties agree that this Agreement shall be construed in accordance with and governed by the laws
of the State of Florida.
SECTION 25. CONSENT TO JURISDICTION AND VENUE; WAIVER OF JURY TRIAL
Any claim, objection or dispute arising out of the terms of this Agreement shall be litigated exclusively in
the state and federal courts in and for Dade County, Florida. THE PARTIES EXPRESSLY, VOLUNTARILY,
AND IRREVOCABLY WAIVE ALL RIGHTS TO TRIAL BY JURY FOR ANY DISPUTES ARISING FROM OR IN ANY
WAY CONNECTED WITH THIS AGREEMENT. The Parties understand and agree that this waiver is a
material term of this Agreement.
SECTION 26. LITIGATION
!n the event of any litigation which arises out of, pertains to, or relates to this Agreement, or the breach
of it, including, but not limited to, the standard of performance required in it, the Parties shall each pay
their own attorneys' fees, costs, and expenses at trial and all appellate levels.
SECTION 27. COMPLIANCE WITH LAWS
The Contractor shall conduct its operations under this Agreement in compliance with all applicable
federal, state and local taws and regulations.
SECTION 28. SEVERABILITY
If any provision of this Agreement or the application of it to any Person or situation shall to any extent
be held invalid or unenforceable, the remainder of this Agreement and the application of such
provisions to Persons or situations other than those as to which it shall have been held invalid or
unenforceable, shall not be affected, shall continue in full force andffect, and shall be enforced to the
fullest extent permitted by law.
SECTION 29. ASSIGNMENT AND SUBLETTING
No assignment of this Agreement or any right occurring under this Agreement shall be made in whole or
in part by the Contractor without the express written consent of the City. The City shall have full
22
discretion to approve or deny, with or without cause, any proposed or actual assignment by the
Contractor. Any assignment of this Agreement made by the Contractor without the express written
consent of the City shall be null and void and shall be grounds for the City to declare a default of this
Agreement and immediately terminate this Agreement by giving written notice to the Contractor, and
upon the date of such notice this Agreement shall be deemed immediately terminated, and upon such
termination all liability of the City under this Agreement to the Contractor shall cease, and the City shall
have the right to call the performance bond and shall be free to negotiate with other contractors, or any
other Person or company for the service which is the subject of this Agreement. In the event any
assignment is approved by the City, the assignee shall fully assume all the liabilities of the Contractor.
SECTION 30. MODIFICATIONS
This Agreement constitutes the entire Agreement and understanding between the Parties, and it shall
not be considered modified, altered, changed or amended in any respect unless in writing and signed by
the Parties hereto.
SECTION 31. CONSTRUCTION OF AGREEMENT
A. Both Parties are represented by legal counsel and they hereby waive any rule of law that
would require any doubtful or ambiguous provisions contained herein to be construed against
the Party that physically prepared this Agreement. The rule sometimes referred to as "Fortius
Contra Proferentum" shall not be applied to the interpretation of this Agreement. The Parties
agree that this Agreement shall not be construed more strictly against one Party than against
the other merely because one Party prepared the document.
B. In this Agreement, the words "include" and "including" shall be deemed to be followed by the
phrase "without limitation." References to included matters or items shall be regarded as
illustrative only and shall not be interpreted as a limitation on or an exclusive listing of the
matters or items referred to.
C. All of the citations herein to the Florida Statutes shall mean and refer to the Florida Statutes
as they exist on the Effective Date.
SECTION 32. FUND APPROPRIATION
The Contractor understands and agrees that the City, during any fiscal year, is not authorized to expend
money, incur any liability, or enter into any contract which, by its terms, involves the expenditure of
money in excess of the amounts budgeted as available for expenditure during such fiscal year and that
any contract, verbal or written, made in violation of these prohibitions is null and void and that
consequently, no money may be paid on such contract beyond such limits. Nothing contained in this
Agreement shall prevent the making of contracts for periods exceeding one (1) year, but any contract so
made shall be executed only for the value of the services to be rendered or agreed to be paid for in
succeeding fiscal years. Contractor shall not proceed with services under this Agreement without City's
written verification that the funds necessary for Contractor's compensation and other necessary
expenditures are budgeted as available within the appropriate fiscal year budget. The City does not
23
represent that said budget item will be adopted, such determination being the prerogative of the City
Council at the time of the adoption of the budget.
SECTION 33. PUBLIC ENTITY CRIME
Contractor understands that a Person or affiliate as defined in Section 287.133, Florida Statutes, who
has been placed on the convicted vendor list maintained by the Florida Department of Management
Services following a conviction for a public entity crime may not submit a bid on a contract to provide
any goods or services to the City and may not transact business with the City in an amount set forth in
Section 287.017, Florida Statutes, for Category Two for a period of thirty-six (36) months from the date
of being placed on the convicted vendor list. Contractor herein certifies that it is qualified under Section
287.133, Florida Statutes, to provide the services set forth in this Agreement.
SECTION 34. FINANCIAL INTEREST
Contractor warrants and represents that: (a) no elected official, officer, agent or employee of the City
has a financial interest, directly or indirectly, in this Agreement or the compensation to be paid under it;
(b) no Person who acts in the City as a "purchasing agent" as defined in Chapter 112, Florida Statutes,
nor any elected or appointed officer of the City, nor any spouse or child of such purchasing agent,
employee or elected or appointed officer, is a partner, officer, director or proprietor of the Contractor;
and (c) no such Person, purchasing agent, City elected or appointed officer, or the spouse or child of any
of them, alone or in combination, has a material interest in the Contractor. Material interest means
direct or indirect ownership of more than five percent (5%) of the total assets or capital stock of the
Contractor.
SECTION 35. ALL PRIOR AGREEMENTS SUPERSEDED
This document incorporates and includes all prior negotiations, correspondence, conversations,
agreements and understandings applicable to the matters contained in this Agreement. The Parties
agree that there are no commitments, agreements or understandings concerning the subject matter of
this Agreement that are not contained in this document. Accordingly, it is agreed that no deviation from
the terms of this Agreement shall be predicated upon any prior representations or agreements, whether
oral or written.
SECTION 36. AUDIT AND INSPECTION RIGHTS AND RETENTION OF RECORDS
City shall have the right to audit the books, records and accounts of Contractor that are related to this
Agreement during normal business hours. Contractor shall keep such books, records, and accounts
reasonably required to document and substantiate Contractor's performance under this Agreement,
including, but not limited to, records concerning calibration of the motor truck scales and the monthly
reports required under Section 4, above.
Contractor shall preserve and make available at reasonable times for examination and audit by City, all
financial records, supporting documents, statistical records, and any other documents pertinent to this
Agreement for the required retention period established by the Florida Public Records Law, if applicable
or a minimum period of five (5) years after termination of this Agreement, whichever is longer, unless
24
Contractor is notified in writing by the City of the need to extend the retention period. The retention of
such records and documents shall be at Contractor's expense. If any audit has been initiated and audit
findings have not been resolved at the end of the retention period or five (5) years, whichever is longer,
the books, records, and accounts shall be retained until resolution of the audit findings. If the Florida
Public Records Law is determined by City to be applicable to Contractor's records, Contractor shall
comply with all requirements thereof; however, no confidentiality or non -disclosure requirement of
either federal or state law shall be violated by Contractor. Any incomplete or incorrect entry in the
Contractor's books, records, and accounts shall be a basis for disallowance and recovery of any payment
based upon such entry.
SECTION 37. THIRD PARTY BENEFICIARIES
Neither the City nor Contractor intends that any Person shall have a cause of action against either of
them as a third party beneficiary under this Agreement. Therefore, the Parties agree that there are no
third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim
against either of them based upon this Agreement. The Parties expressly acknowledge that it is not
their intent to create any rights in any third person or entity under this Agreement.
SECTION 38. PAYMENT DISPUTES
If the City disagrees with any amount stated in any invoice from the Contractor, the City shall notify the
Contractor of such dispute. The City shall make payment to Contractor of the undisputed invoiced
amounts within thirty-(30) days after receipt of the invoice. In the event of a disputed amount, the
Parties shall reasonably attempt to discover the cause of any discrepancy between the Parties, and if a
resolution is not reached within forty five (45) days of the City's notice of such dispute, the Parties shall
resolve the dispute in any manner permitted by Florida law. The existence of a dispute shall not delay
payment of undisputed amounts to Contractor, or relieve Contractor of any of its obligations to City
under this Agreement.
SECTION 39. PUBLIC RECORDS
The Contractor shall comply with all of the requirements in the Florida Public Records Law that are
applicable to the Contractor. Among other things, the Contractor shall comply with any applicable
requirements in Section 119.0701, Florida Statutes.
SECTION 40. MOST FAVORED PRICING AND MATERIAL TERMS
In the event that Contractor subsequently enters into an agreement for a term of more than twelve (12)
months (including renewal and option periods) for the Processing and/or recycling of another
Governmental Authority's Recyclable Materials (or a private entity that provides the recycling for all or
substantially all of the Recyclables generated within a Governmental Authority's jurisdiction) generated
anywhere within Miami -Dade, Palm Beach, or Broward County (an "Eligible Agreement"), Contractor
shall provide the City with a copy of the Eligible Agreement within sixty (60) days of execution thereof.
If the City determines that the Eligible Agreement includes a recycling payment that is greater than the
payment set forth herein for the City, the City may provide written notice to Contractor of City's
determination and, if the City does so, the Program Recyclable payments to the City shall be increased to
25
the amount set forth in the Eligible Agreement, and such change shall be effective retroactive to the
effective date of the Eligible Agreement. Thereafter, the Parties shall proceed under this Agreement in
accordance with the greater Recyclables payment.
SECTION 41. HEADINGS
Headings in this document are for convenience of reference only and are not to be considered in any
interpretation of this Agreement.
SECTION 42. EXHIBITS
Each exhibit referred to in this Agreement forms an essential part of this Agreement. Each such exhibit is
a part of this Agreement and is incorporated by this reference.
SECTION 43. REPRESENTATIONS
As an inducement to the City, Contractor represents and warrants that: (a) Contractor is duly organized
and validly existing under the laws of the State of Florida, with full legal right and authority to enter into
and perform its obligations under this Agreement; and (b) Contractor is duly authorized to execute and
deliver this Agreement without further approvals or authorizations.
SECTION 44. REMEDIES NOT EXCLUSIVE
The remedies specified in this Agreement shall supplement, and not be in lieu of, any other remedies
provided at law or in equity. The payment of any liquidated damages by the Contractor shall not
constitute a defense for the Contractor, nor an election of remedies by the City, nor serve as the basis
for a claim of estoppel against the City, nor prevent the City from terminating this Agreement. The
City's decision to refrain from assessing liquidated damages, or suspending or terminating this
Agreement, or seeking any other relief from any failure in the Contractor's performance, shall not
constitute a waiver of the City's right to pursue any other remedy or a waiver of its right to pursue a
remedy for any future failure by the Contractor. No remedy conferred by this Agreement is intended to
be exclusive of any other remedy. Each and every such remedy shall be cumulative and shall be in
addition to every other remedy given hereunder or now or hereafter existing at law or in equity. No
single or partial exercise by any Party of any right, power, or remedy hereunder shall preclude any other
or further exercise thereof.
SECTION 45. SOVEREIGN IMMUNITY
Nothing in this Agreement shall be interpreted or construed to mean that the City waives its common
law sovereign immunity or the limits on liability set forth in Section 768.28, Florida Statutes.
26
IN WITNESS WHEREOF, the City and the Contractor have executed this Agreement on the respective
date(s) below each signature.
ATTEST:
Marbelys Fatjo, AcEing City Clerk
Date: C{f(?“)I1i
(CITY SEAL)
Ap.-,...
Lorena
Date:
City Attorney
City of Hia&eah, Florida
A municipal corporation
By:
Carlos Hernandez, Mayor
Date:
27
CONTRACTOR Progressive Waste Solutions of FL, Inc.,
a Florida corporation
W ITN ESS ES:
r
et
Signature
Go )4 Dean DiValerio, S.E. Region Vice President
Print Name and Title Mc�rr
C1 day of Dkcrn �-eY' , 2014
i
Signature
PfaA
Print Name and Title
Ft-
0,_$/ iejf
021/day of „.7f,7,7lPm }'", 2014
ATTE
ARY Thomas J. Fowler
(CORPORATE SEAL)
STATE OF FLORIDA )
) SS:
COUNTY OF DADE )
Print Name and Title
c2/day of .f, 2014
BEFORE ME, an officer duly authorized by law to administer oaths and take acknowledgments,
personally appeared tle4p dJ Va /{ri'iName] as Ai Via [Title], of Progressive Waste
Solutions of FL, Inc., an organization authorized to do business in the State of Florida, and acknowledged
that he/she executed the foregoing Agreement as the proper official of Progressive Waste Solutions of
FL, Inc. for the use and purposes mentioned in it and affixed the official seal of the corporation, and that
the instrument is the act and deed of that corporation. He/she is personally known to me or has
produced as identification.
IN WITNESS OF THE FOREGOING I have set my hand and official seal in the State and County aforesaid
on this 9Y day of , /''d.,.s 6Pr , 2014.
My Comm
Notary Public State of Florida
F' Deborah A Burgas
Commission EE135458
res 1010712015
28
4 efs,0-
ARY PUBLIC
EXHIBIT 1
CONTRACTOR'S PROGRAM MATERIALS REVENUE FORM
Contractor subrnited the attached Program Recyclables Revenue Form in response to the City's ITB No.
2013-14-9500-00-011, establishing the basis for the payments that will be made by the Contractor to
the City pursuant to this Agreement.
29
Appendix C (Revised July 28, 2014)
PRoG_BplI+ MATERIALS REVENUU FORI41
RECYCLABLE MATERIALS PROCESSING SERVICES
1TB No,: 2013.14.9500-08-011
The Contractor's payments to the City shall be calculated in the manner described in Section
6.A of the Agreement for Processing Recyclable Materials (`Agreement"), which is attached to
the City's ITS. Sample calculations are presented in Exhibit 3 to the Agreement.
In pertinent part, Section 6.A.1 of the Agreement provides:
"(a) Each month, the Contractor shall calculate the Average Market Value (AMV)
of the Program Materials, defined as the sum of the Southeast USA regional
average commodity prices (U. S. Dollars per Ton) first posted in the month for
which payment is being made In RecyclingMarkets.net, multiplied by the
composition percentages identified in Exhibit 2 [of the Agreement]. .. .
(b) A Contractor's Fee of Fifty Dollars ($50.00) per Ton shall be deducted from
the AMV. This fee shell be adjusted as specified in Section 6.A.(2) [of the
Agreement].
(c) The Contractor shall pay the City a percentage, as provided in Exhibit 1 [of
the Agreement], of the remaining amount, for each Ton of Program Materials
delivered to the Designated Recycling Facility during that month. The
percentage payable to the City is thirty- five percent (3 5. 5%) of the AMV
(net of Contractor's Fee)." (.) five
In this ITB, the City wants to determine the percentage that a Bidder/Contractor will pay to the
City pursuant to Section 6.A.1(c) of the Agreement.
In the space provided below, the Bidder shall write the percentage that the Bidder will pay to the
City, pursuant to Section 6.A.1(c) of the Agreement, for each Ton of Program Materials
delivered to the Bidder's Designated Recycling Facility by the City or its Contract Haulers:
thirty-five (.) five Percent of AMV [write the number in words]
3 5.5 % of AMV [write the number]
A. By signing and submitting this document, the bidder: (1) acknowledges that he/she/it
has carefully reviewed the terms, conditions, and requirements contained in this
Solicitation, including the Agreement; and (2) If selected by the City, the Bidder will
promptly execute the Agreement, as Is, without change, and will comply with the
requirements in the Agreement.
B. The Bidder agrees that, after the City's Program Materials are delivered to the Bidder's
facility, any and eiI costs associated with Processing, marketing, and transporting the
Program Materiels (Including but not limited to the costs for the transportation and
I
disposal of Rejects and Residue) shall be paid by the Bidder, except when the
Agreement explicitly provides otherwise.
C. The Bidder acknowledges that the capitalized words in this form are defined in the
Agreement and shall have the meaning set forth therein.
D. By signing and submitting this document, I hereby certify that I am authorized to act on
behalf of the Person (I.e„ indlvtdual, partnership, corporation, association, or other
entity) submitting this Bid and that ail statements made In this Bid are true and correct
The Bidder agrees to hold this offer open for a period of one hundred and eighty (180)
days from the deadline for the delivery of Bids. if the Bidder is selected as the top -
ranked Bidder, the Bidder agrees to hold tills offer open for such further period as Is
necessary far obtaining a final award and executing the Agreement.
Progressive Waste Solutions of FL, Inc.
Name of Bidder (Please Print)
Dean DiValerio Southeast Region Vice President
Name of Bidder's Agent (Please Print) Title:
Signature of Bidder's Agent
WITNESSES
E'GXJ/P G ripS
Witness Na (Please nnt)
Witne ''�' ature
2
EXHIBIT 2
INITIAL COMPOSITION OF PROGRAM MATERIALS
AND CALCULATION OF AVERAGE MARKET VALUE
Material
Index Description
Index
Value
'Apr
Index
Value
Per/Ton
Ma teria i
Average
Market
Value
(5/Tool
75 ] ha.ed.E^ B. -,Q-;r•Ed[;r
S 71 _2,
7r r
-352
_L 9n
Mints pp./.
Steel ors
n51Lal�d °,C,3. _Ile_a�ck
E.1E
a:-hn ;coiled bl,i anc :eIitiergC
i1=-r"C
rl,umy,9.= =11.
^.Is; p. #9'C,d hand 7rc
5:1_
�.rr,vaa:ey'r3- xn[t;14 ira.ed 12:7..[C<e7.1 r�-- 5..
ce-
:err:111,• bl'er: 3n.7jlvtrd.,p
2 :.
5.1.. ,
.}__1
J 1:S 19
PIaIu+ALMC."F
?-rt, i!h,12..m,rn.$!`:.7.1._F'
.'I ..
., _._.
-...2. I
2.1.-2 _.
based lc, .ic :ed •--
:-a
_ '4:
Fa .2eoa[ya Carr-••:
Lire 21' �..•�_
Ca�r�am_rnt _ur
total:
Mate'rdaI
N'ii3peper
irsde*Desc-riptiofi
P s.& ha r edr.FeD-5=se, l e r-
index
*aloe Mater;a4
5.-Sh59
17:0+5
Ssa.76
Aver age
141,34e1
liatoe
0404
5- a_.63
fotrugatad ^ers
?s-Isba.ed:.F S,cse. er-s• dock
5 i45.%-0
Miser^ room
s:�+t�^twwayn;
F.rtrt-2- :9-7
RzF=naFeA: F�-�sr14Y=r.Mz<
3;7,7n, :o•tad, baf_i a^d d-lir.r_d
nt.,`6.:erte I. ieledand-st'werea
Ern•r�vesgl«+F�`r--s en lz. N� 8aier�=mFp•+w d-aw i
5-5244
r+w
»ri
PE;
-:rrrsiJlyd[afai �N••.atvaKlwp
52r
5-7,e
NardtasFIEPE
t=rsts219.4114.4492. a fired -up
5-74EE-224
Co.-c3 -TP5
S 29.:
S 12.7'2
5,"cn. d7l..st•gd
51:9 co] 2243;
Po.yeaaie9•Cartor.3
stone ae tF:slinte
€eet.rn .!dlan
30
ter:
I
Note: The index values for Fe-br nary April 2014 are used for estimation purposes only, I Formatted: Not riicrur4m 1
and are subject to fluctuation as determined by Secondary Fibers and Material Pricing
found on RecyclingMarkets.net. Prices to be used are the first published Regional
Average prices for the Southeast USA in the month for which payment is being made.
No market index currently exists for polycoated cartons in RecyclingMarkets.net;
therefore, the value is set at zero ($0.00). When a market index for polycoated cartons
or aseptic containers becomes available on RecyclingMarkets.net, it will be utilized.
EXHIBIT 3
SAMPLE CALCULATIONS OF MONTHLY PAYMENTS TO CITY
When making payments based on the AMV, the Contractor shall calculate the amount of the
Contractor's monthly payments to the City by using the following formula:
CP = (AMV—SF) x (RS) x PM
Where:
CP = Contractor's Payment to the City
AMV = Average Market Value, measured in dollars per Ton, for one
Ton of Program Materials
SF =Service Fee
RS =the revenue share for the City, expressed as a percentage
PM = the total amount of Program Materials, measured in Tons,
delivered to the Contractor during the prior month
Example 1
Assume the following hypothetical values:
AMV = $124.00 per Ton
Service Fee = $50.00 per Ton
Revenue Share = 4S is
PM = 750 Tons
Calculation: CP = ($124.00 • $50.00) x 45% x 750 Tons
CP = $74.00 x 0.45 x 750 Tons
CP = $33.30 x 750 Tons
CP = $24,975.00
32
In this hypothetical example, the Contractor's payment to the City shall be $24,975.
Example 2
Assume the following hypothetical values:
AMV = $172.00 per Ton
Service Fee = $50.00 per Ton
Revenue Share = 40%
PM = 750 Tons
Calculation: CP = ($172.00 - 550.00) x 40%x 750Tons
CP = $122-00 x 0-40 x 750 Tons
CP = $48.80 x 750 Tons
CP = 536,600.00
In this hypolheticai example, the Contractor's payment to the City will be $36,600.
Example 3
Assume the following hypothetical values:
AMV = $46,00 per Ton`
Service Fee = $50.04 per Ton*
Revenue Share = 40✓
PM = 750 Tons
`If the AMV is less than the Service Fee, the Afv1V is assumed to be zero and there is no payment
to the City.
Calculation_ CP = ($46.00 - $50.001 x 40% x 750 Tons
CP=($0.00) x 0.40 x 750 Tons
33
CP=$0.00
As shown in this hypothetical calculation, when the Service Fee is greater than the AMV, the
Contractor's payment to the City ("CP" ) is zero (SO.00h and the Contractor retains all of the revenue
derived from the sale of the Program Material.
34