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Agreement with Davis Sanitation Inc.~o~y~Dk- 1Q7~ NON-EXCLUSIVE FRANCHISE WASTE CONTRACTOR AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA (CITY) AND DAMS SANITATION INC. (FRANCHISEE) FOR RESIDENTIAL AND COMMERCIAL WASTE COLLECTION AND DISPOSAL AS WELL AS FOR RECYCLING SERVICES FOR MULTI- FAMILY RESIDENCES WITH EIGHT (8) OR MORE UNITS IN THE CITY OF MIAMI BEACH, FLORIDA. RECITALS The City of Miami Beach, Florida, does hereby find, determine and declare as follows: (a) That it is in the public interest to ensure that all areas within the City limits are adequately provided with high-quality solid waste collection and disposal service. (b) That it is in the public interest to retain regulatory authority over solid waste collection and disposal, to the extent allowed by law, because of the overriding public health, safety and welfaze considerations associated with the provision of this service. (c) That it is in the public interest to retain control over the use of public right-of- way by solid waste collectors to ensure against interference with the public convenience, to promote aesthetic considerations, and to protect the public investment in right-of--way property. (d) That it is in the public interest to attract high-quality solid waste collectors. 1 ~~ (e) That it is in the public interest to ensure that high-quality solid waste collection and disposal service is maintained through a responsive complaint handling procedure. (f) That it is also in the public interest for solid waste collectors to offer and directly provide recycling services to their clients (g) That the granting of anon-exclusive franchise is the best means of assuring that the above-described interests of the City of Miami Beach are promoted. (h) That, pursuant to Section 90-230 of the Miami Beach City Code, the City Commission may elect to renew the licenses for solid waste collection and disposal, and now also including recycling services, currently granted to its four (4) franchise waste contractors; said licenses/ franchise agreements expired on October 1, 200$ and, pursuant to further action by the City Commission, have continued on a month to month extension. (i) That, at its regular meeting on October 7, 2008, the Mayor and City Commission adopted Resolution No. 2008-26923, which approved the renewal of the City's existing franchise waste contractors for collection and disposal of solid waste, and now also for the provision of recycling services, within the City. (j) That, as a condition of renewal of their franchise agreements, the City's franchise waste contractors further agreai to negotiate and execute new individual service agreements with the City, providing for the provision of additional public waste collection and disposal and recycling services. (k) That the Franchisee has indicated to the City that it is ready, willing, and able to provide the aforestated services within the City of Miami Beach, in accordance 2 with the provisions contained within the following Franchise Agreement and with Chapter 90 of the City Code. NOW THEREFORE, City and Franchisee, in consideration of the mutual covenants herein contained, agree as follows: SECTION 1. For the purposes of this Agreement, the following words shall have the following meanings: "Chapter 90 of the City Code" shall mean Chapter 90 of the Miami Beach City Code (the City Code), as same may be amended from time to time. "City" shall mean the City of Miami Beach, Florida. "City Commission" shall mean the elected officials of the City of Miami Beach, Florida. "City Manager" shall mean the chief operating officer of the City or his authorized designee. "Franchisee" shall mean Davis Sanitation Inc., which is hereby granted this fanchise and has hereby agreed to undertake and perform each and every obligation as set forth in this Agreement. "Service Agreement" shall mean the certain agreement between the City and Franchisee for the provision of additional solid waste collection and disposal and recycling services at certain City owned facilities and properties. The Service Agreement is intended to have a term that will run concurrent with the term of the franchise and this Agreement. 3 Execution of the Service Agreement by City and Franchisee is a condition of the Franchise Agreement. Any other wards or terms used herein which are not defined in this Section shall have their normal dictionary meaning and customary usage unless such terms are defined in Chapter 90 of the City Code, in which case they shall have the meaning set forth therein. SECTION 2. GRANT OF FRANCHISE Pursuant to Chapter 90 of the City Code, which authorizes the granting of franchises for the purposes set forth herein, Franchisee is hereby granted a franchise, including every right and privilege appertaining thereto (except as otherwise limited by Chapter 90 of the City Code, and/or by present or future Federal, State and County ordinances and laws), to operate and maintain a solid waste collection and disposal service, and also to provide such recycling services as contemplated in Section 90-231 of the City Code, in, upon, over and across the present and future streets, alleys, bridges, easements and other public right-of--ways, properiy(ies), and/or facility(ies) within the limits of the City of Miami Beach, Florida, for the purpose of collecting and disposing of solid waste, and for the purpose of providing recycling services as contemplated in Section 90-231 of the City Code, generated by the citizens, residents, inhabitants, business enterprises and other entities therein. Except for Recyclable Material otherwise provided for pursuant to Chapter 90 of the City Code, and/or by present or future Federal, State or County ordinances and laws, Franchisee is hereby granted title to all of such solid waste generated within said boundaries, insofar as the City can establish its legal right to make such grant of title. 4 SECTION 3. GEOGRAPHICAL LINIITS OF THE FRANCHISE The area covered by this franchise is the city limits of the City of Miami Beach, Florida, as they aze now located and any areas which may at some future time be incorporated into the City. Franchisee agrees that the limits of the franchise are subject to expansion or reduction by annexation and contraction of municipal boundaries and that Franchisee has no vested right in a specific area. SECTION 4. TERM The term of this franchise shall be deemed to have commenced (retroactively) on October 1, 2008, which shall be the effective date of this Agreement. The franchise shall be granted for an initial period of three (3) years from the effective date, unless sooner terminated by revocation of the franchise, as provided in Chapter 90 of the City Code. At the expiration or earlier revocation of the franchise, the City Commission may choose, in its sole discretion, to accept applications for new franchise waste contract licenses, as provided in Chapter 90 of the City Code or, in the alternative, may renew this franchise for an additional three (3) year term. In deciding whether to issue a new franchise to a different franchisee, or to accept a franchise application from the current Franchisee for renewal of this franchise, the City Commission shall follow the criteria and procedures set forth in Sections 90-229 and 90-230 of the City Code. SECTION 5. FRANCHISE CONSIDERATION For a period of one year after the effective date of this franchise, the Franchisee shall pay to the City a franchise fee consisting of eighteen percent (1$%) of said Franchisee's total monthly gross receipts. Thereafter, the City shall have the option of raising the franchise fee, 5 as provided in Section 90-221 of the City Code. The term "gross receipts", as used in this Section 6, shall be as defined in Section 90-221 of the City Code. Gross Receipts from servicing rolloff containers are not included under the franchise fee due to the City, and shall be subject to separate fees, as set forth in Section 90-276 of the City Code. Payment of the franchise fee shall me made monthly in accordance with Section 91-223 of the City Code. In addition to payment of the franchise fee, the Franchisee shall also pay an amount equal to (2%) of its total annual gross receipts, to be applied by the City toward the establishment, implementation, and operation of a public right-of--way cleaning program, which shall be operated through the City's Sanitation Department. The Franchisee shall, on or before thirty (30) days following the close of its fiscal year, and in any event no later than February 15s', deliver to the City Manager a statement of its annual gross receipts, certified by an independent certified public accountant, reflecting gross receipts generated within the City for the preceding fiscal year. Payment of this amount shall be made monthly to the City's Chief Financial Officer, on or before the last day of each month SECTION 6. ASSIGNMENT The rights herein granted to the Franchisee, and any licenses granted to the Franchisee by the City, shall not be assigned by the Franchisee except with the express prior approval of the City Commission, and as provided in Section 90-191(f) of the City Code. In the event of such assignment, Franchisee shall cause its assignee to execute an agreement of acceptance, subject to the approval of the City Manager, evidencing that such assignee accepts the assignment subject to any and all terms, conditions and limitations imposed hereby, and which acceptance shall include an affirmative statement evidencing such 6 assignee's intent to fulfill the obligations imposed upon Franchisee herein. Notwithstanding the City's approval of the assignment and assignee's acceptance, Franchisee shall guarantee the performance of its assignee and such assignment shall always be with full recourse to Franchisee. SECTION '7. BANKRUPTCY OR INSOLVENCY If the Franchisee becomes insolvent, this franchise shall terminate. If the Franchisee files a petition of voluntary bankruptcy, or in the event of involuntary bankruptcy, this franchise shall terminate no later than the date of filing of the bankruptcy petition. SECTION 8. INDEIVINi)H'ICATION AND INSURANCE Franchisee hereby agrees to indemnify, hold harmless and defend the City, its officers, employees, agents and contractors against, and assumes all liability for, any and all claims, suits, actions, damages, liabilities, expenditures, or causes of actions, of any kind, arising from Franchisee's, and/or its officers, employees, agents, and contractors, activities and/or the use of the public streets and/or other City property or right-of--ways, for the purposes authorized in this franchise and in Chapter 90 of the City Code, and resulting or accruing from any negligence, act, omission or error of the Franchisee, and/or its officers, agents, employees and contractors, and/or arising from the failure of Franchisee, to comply with each and every covenant of this franchise, or with Chapter 90 of the City Code, or with any other Federal, State, County and/or City ordinance, law, or regulation applicable to Franchisee's activities, resulting in or relating to bodily injury, loss of life or limb, or damage to property sustained by an~ person, property, firm, corporation {or other business entity). Franchisee hereby agrees to hold City, its officers, employees, agents and contractors, harmless from and against ail 7 judgments, orders, decrees, attorney's fees, costs, expenses and liabilities incurred in and about any such claim, investigation or defense thereof, which may be entered, incurred or assessed as a result of the foregoing. Franchisee shall defend, at its sole cost and expense, any legal action, claim or proceeding instituted by any person against the City, its officers, employees, agents or contractors, as a result of any claim, suit or cause of action accruing from activities authorized by this franchise, for injuries to body, limb or property as set forth above. Franchisee agrees to maintain in full force and effect throughout the entire Term of the franchise, the insurance coverages set forth in Section 90-191 of the City Code. Franchisee further agrees that the City Manager may increase the kinds and amounts of insurance coverage required if, in his sole reasonable judgment and discretion, he deems such increase necessary to protect the City. Operation of activities by the Franchisee without the required insurance shall be grounds for revocation of the franchise. SECTION 9. COMPLIANCE WITH ORDINANCES. RULES. LAWS Franchisee shall be solely responsible for keeping and maintaining itself fully informed with all Federal, State, County and City ordinances (including, without limitation, Chapter 90 of the City Code), laws, rules, regulations, and all orders and decrees of bodies or tribunals having jurisdiction or authority, which in any manner affect its activities and this franchise, or which in any way affect the conduct of its work (collectively, the aforestated are referred to as the Applicable Laws). Franchisee shall at all times observe and comply with all Applicable Laws. Additionally, Franchisee shall be solely responsible for obtaining and maintaining current and in good standing any licenses and permits required under Applicable Laws to conduct its business(es) and activities under the franchise. 8 SECTION 10. REVOCATION OF FRANCHISE Failure on the part of Franchisee to comply in any material way with the provisions of this Franchise Agreement, Chapter 90 of the City Code, or other Applicable Laws, shall be grounds for revocation or temunation of the franchise, which termination shall be in accordance with Section 90-233 of the City Code, and shall be effective upon written notice to Franchisee. SECTION 11. REPORTING. ACCOUNTING: AUDIT Franchisee shall keep an accurate set of books and records in accordance with general accounting principles, reflecting the gross revenues derived under and pursuant to the franchise rights granted herein. The City shall have the right to audit Franchisee's books and records, as provided in Section 90-224 of the City Code. SECTION 12. COLLECTION EQUIPMENT Franchisee shall have on hand, at all times during the Term of the franchise, sufficient personnel and equipment to permit Franchisee to fully, adequately and efficiently perform its duties hereunder. Collection equipment shall be kept clean, sanitary, and neat in appearance, and in good repair and working order at all times. The Franchisee shall at all times have available to it reserve equipment, which can be put into service and operation within two (2) hours of any breakdown. Such reserve equipment shall substantially correspond in size and capability to the equipment normally used by Franchisee to perform its duties hereunder. 9 SECTION 13. DISPOSAL All solid waste shall be hauled to sites or facilities legally empowered to accept it for treatment or disposal. The City reserves the right to approve or disapprove sites, taking into account all governmental regulations, routes within the franchise area, and the rules and regulations of the governmental body having jurisdiction over said sites or facilities SECTION 14. COLLECTION SERVICES AND OPERATIONS Franchisee's procedures for collection of solid waste shall be in keeping with all provisions of Chapter 90 of the City Code and other Applicable Laws. SECTION 15. STORMS AND OTHER EMERGENCIES In case of an unusually severe storm, and/or other extreme acts of weather (i.e. including, without limitation, tropical storms, tropical depressions, hurricanes, floods, tornadoes, etc.), or disruption caused by other emergencies not caused by Franchisee, the City Manager may grant Franchisee reasonable variance from its regulaz schedules. As soon as practicable after such storm, act of weather, or other emergency, Franchisee shall inform the City of the estimated time required before regular schedules and routes can be resumed and, upon request of the City Manager and in such form as determined by the City Manager, Franchisee shall provide notice of same to its commercial and residential (multi-family) clients in the franchise area. In event of a storm, act of weather, or other emergency requiring mass clean-up operations, Franchisee shall, upon direction of the City Manager, participate in said clean-up, to the extent directed by the City Manger. Franchisee shall be compensated by the City, in the amount of actual costs, plus twelve percent (12%) of said costs, and shall be excused. from conducting regulaz services, as and to the extent approved by the City Manager. 10 Any expense incurred or revenue received under this Section 15 shall not be included or considered in rate base calculations. SECTION 16. NON-WAIVE~t The failure by the City at any time to require performance by the Franchisee of any provision hereof, or of Chapter 90 of the City Code, or of any other Applicable Laws, shall not in any respect limit, prejudice, diminish, or constitute a waiver of any rights of the City thereafter to enforce same, nor shall waiver by the City of any breach of any provision of the Franchise Agreement, or of Chapter 90, or of any other Applicable Laws, be taken or held to be a waiver of the City's rights to enforce or take action against any such succeeding breach (of such provision), or as waiver of any provision itself. SECTION 17. CONTINUED OPERATIONS DURING DISPUTES In the event that a dispute arises between the City and Franchisee (or any other interested party) in any way relating to this franchise (including performance or compensation hereunder), the Franchisee shall continue to perform hereunder and to render service in full compliance with all terms and conditions of the Franchise Agreement, regardless of the nature of the dispute. Franchisee expressly recognizes the paramount right and duty of the City to provide adequate waste collection and disposal services as a necessary governmental function, and further agrees, as consideration for the City's approval and execution of this Franchise Agreement that, in the event of a dispute, said Franchisee will not cease performance or stop service during the pendency of any such dispute. 11 SECTION 18. HANDLING OF COMPLAINTS Franchisee shall be bound by Chapter 90 of the City Code with regazd to handling of complaints from its patrons. SECTION 19. The Franchisee agrees that it has adopted and will maintain and enforce a policy of nondiscnmination on the basis of race, color, religion, sex, age, handicap, disability, sexual orientation, or national origin, Said nondiscrimination policy shall apply to employment practices of the Franchisee and the provision of services. The Franchisee agrees that, upon written request from the City Manager, it will permit access to its records of employment, employment advertisements, application forms, and other pertinent data and records, by the City for the purposes of investigation to ascertain compliance with the non-discrimination provisions of this Section; provided, however, that Franchisee shall not be required to produce for inspection any records covering any period of time more than two (2) years prior to the effective date of this franchise. SECTION 20. EXEMPTION TO PROVIDE FOR RECYCLING Notwithstanding any other provision of this Franchise Agreement, or of Chapter 90 of the City Code (including without limitation Sections 90-221 through 90-231 of the City Code), until such time as the City establishes recycling requirements for multi-family and commercial establishments, the City Manager may continue to license individual recycling contractors pursuant to Sections 90-306 through 90-332 of the City Code. Additionally, if the City Commission decides at any time to establish a Citywide recycling program for multi-family andlor commercial establishments, or enacts an ordinance 12 requiring commercial establishments and/or multi-family residences to recycle, the City Manager and/or the City Commission (as the case may be) may take such action as prescribed in Section 90-232 (b) of the City Code with regazd to the provision of said recycling services. In the event the City mandates recycling for multi-family and/or commercial establishments and Franchisee elects not to enter into agreement with the City to provide the required recycling services, then Franchisee, as required pursuant to Section 90-232 (c) of the City Code, shall immediately notify the accounts it services, in writing, informing those accounts that they may, within sixty (60) days of receipt of the notice, elect to terminate their then-existing contracts with Franchisee. SECTION 21. RECYCLING SERVICES REQUIREMENTS Notwithstanding Section 20 hereof, and in accordance with the provisions of Section 90-231 of the City Code, Franchisee shall, during the Term of this franchise, comply with the following recycling requirements: (1) Franchisee shall, as a condition of the franchise, be required to offer directly, or to provide a subcontractor for, those recycling services required pursuant to Miami-Dade County Code, for any multi-family residence with eight (S) or more units for which Franchisee provides solid waste services (as a franchise waste contractor). (2) All of franchisee's contracts {within the jurisdictional limits of the City of Miami Beach) with multi-family residences for waste removal services, shall also include a proposal to provide those recycling services required pursuant to Miami-Dade County Code. Such recycling proposal shall be specifically made to maximize the recycling activity at each multi-family 13 residence. Such proposal shall provide for sufficient flexibility in recyclable materials container size and location, as is both necessary and consistent for that specific multi-family residence. (3) Whether directly provided, or subcontracted with a qualified recycling contractor, each multi-family residence recycling proposal shall require Franchisee to disclose to the contract holder the savings offset that is anticipated from the Franchisee's waste hauling agreement with the mulri- family residence, as a result of the provision of recycling services and the reduction of solid waste disposed. The recycling proposal, and the required savings offset there from, is strictly within the purview of the Franchisee and the individual multi-family residence to negotiate. (4) For existing contracts for the removal of solid waste between Franchisee and multi-family residences (i.e. accounts existing as of the effective date of this Franchisee Agreement), Franchisee shall amend said contracts to add a requirement for recycling services consistent with this Section 21 and the provisions of Section 94-231 (b) of the City Code. Existing contracts between Franchisee and multi-family residences shall have a six (6) month period, from the effective date of this franchise, to amend their agreements to add the required recycling provisions. SECTION 22. INVALIDITY - NO RIGHT OF ACTION If this Franchisee Agreement, or any provision thereof, is found to be invalid or unconstitutional by any court of competent jurisdiction, andlor if Franchisee is prevented from exercising its rights hereunder by present or future Federal,. State, or County ordinances or laws 14 and Franchisee's rights under this franchise are materially impaired thereby, Franchisee shall have no claim or cause of action against the City therefore. SECTION 23. POWER TO REGULATE STREETS Nothing in this Agreement shall be construed as surrender by City of its right or power to pass ordinances regulating the use of its streets, and/or other public right of ways, and/or public properties or facilities. SECTION 24. ACCEPTANCE OF FRANCHISE This Franchise Agreement shall be filed with the Miami Beach City Clerk within twenty {20) days after the date of approval of the franchise by the Mayor and City Commission and execution by the parties hereto. Filing of a fully executed Franchise Agreement with the City Clerk shall be deemed proof of Franchisee's acceptance of the franchise. SECTION 25. GOVERNING LAW AND EXCLUSIVE VENUE This Franchisee Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida, both substantive and remedial, without regard to principles of conflict of laws. The exclusive venue for any litigation arising out of this Agreement shall be Miami -Dade County, Florida, if in State court, and the U.S. District Court, Southern District of Florida, if in Federal court. BY ENTERING INTO THIS AGREEMENT, CITY AND FRANCHISEE EXPRESSLY WAIVE ANY RIGHTS EITHER PARTY MAY HAVE TO A TRIAL BY JURY OF ANY CIVIL LITIGATION RELATED TO, OR ARISING OUT OF, THIS AGREEMENT. 15 SECTION 26. NOTICE All notices and communications in writing required or permitted hereunder may be delivered personally to the representatives of the Franchisee and the City listed below or may be mailed by registered mail, postage prepaid (or airmailed if addressed to an address outside of the city of dispatch). Until changed by notice in writing, all such notices and communications shall be addressed as follows: TO FRANCHISEE; Davis Sanitation Inc. Attn: Raymond Davis Jr. & Kerry Simmons General Mana~er 1210 N.E. 200 Street Miami, Florida 33179 (305) 653-2684 TO CITY: City of Miami Beach Attn: Jorge M. Gonzalez City Manager 1700 Convention Center Drive Miami Beach, Florida 33139 (305) 673-7010 WITH COPIES TO: City of Miami Beach Attn: Fred Beckmann Public Works Director 1700 Convention Center Drive Miami Beach, Florida 33139 (305) 673-7080 and City of Miami Beach Attn: Alberto Zamora Public Works Sanitation Director 1700 Convention Center Drive Miami Beach, Florida 33139 (305) 673-7616 Notices hereunder shall be effective: lb If delivered personally, on delivery; if mailed to an address in the city of dispatch, on the day following the date mailed; and if mailed to an address outside the city of dispatch on the seventh day following the date mailed. IN WITNESS WHEREOF, the parties hereto have caused this Franchisee Agreement to be executed by their appropriate officials, as of the date first entered above. FOR CITY• CITY OF MIAMI BEACH, FLORIDA ATTEST: ~: ~ a~~ city ~ o~ FOR FRANCHISEE• ATTEST: BY~ n ~w~( ~ ~ ~ Sec ry DAMS SANITATION INC. Pres dent APPROVED AS TO FORM & LANGUAGE 'ION 125 v& Date 17