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Ordinance 91-2758 ORDINANCE NO. 91-2758 AN ORDINANCE OF THE CITY OF MIAMI BEACH, FLORIDA, PROVIDING FOR THE GRANTING OF A NON-EXCLUSIVE FRANCHISE TO AMERI-CARTING INC. , A FLORIDA CORPORATION, FOR THE COLLECTION AND DISPOSAL OF SOLID WASTE GENERATED WITHIN THE CITY OF MIAMI BEACH; IMPOSING CERTAIN CONDITIONS RELATING THERETO; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. SHORT TITLE This Ordinance shall be known and may be cited as the "Ameri- Carting, Inc. Franchise Ordinance" . SECTION 2 . FINDINGS, DETERMINATIONS AND DECLARATIONS The City Commission of 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 welfare considerations associated with the provision of this service. (c) That it is in the public interest to retain control over the use of public rights-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 and that this can be accomplished by protecting capital investments of such collectors. e) That it is in the public interest to ensure that high-quality Solid Waste collections and disposal service 1 is maintained through a responsive complaint handling procedure. (f) That the granting of a nonexclusive franchise is the best means of assuring that the above-described interests of the City of Miami Beach are promoted. (g) That former City of Miami Beach Ordinance No. 84- 2453 provided that the City Commission may elect to renew the licenses for Solid Waste collection and disposal granted to the five entities licensed pursuant to that Ordinance. (h) That the City of Miami Beach has determined, based upon the past performance record of the Grantee, that it is in the best interests of the citizens of the City of Miami Beach to renew its agreement with the Grantee for collection and disposal of Solid Waste within the City. (i) That the Grantee has indicated to the City that it is willing to undertake the collection and disposal of Solid Waste within the City of Miami Beach in accordance with the provisions contained herein under a franchise from the City. (j ) That City of Miami Beach Ordinance No. 91-2742 adopted on April 24 , 1991 provided for the granting of franchises to private entities to provide for collection and disposal of Solid Waste generated within the City. (k) That after due notice to the public, the City Commission of the City of Miami Beach held a public hearing affording all interested parties an opportunity to address the City Commission concerning the granting of a non-exclusive franchise in the City to Ameri-Carting, Inc. 1) That after the close of said public hearing and due deliberation, the City Commission of the City of Miami Beach in open session at a regular meeting voted to award a franchise to Ameri-Carting, Inc. 2 (m) That the grant of this franchise in the City is in the public interest. BE IT ORDAINED BY THE CITY COMMISSION OF THE CITY OF MIAMI BEACH, FLORIDA: SECTION 1. DEFINITIONS For purposes of this Ordinance, the following words shall have the following meanings: "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 City Manager of the City of Miami Beach, Florida. "Franchise Waste Contractor" shall mean a private waste contractor who is granted a franchise by the City of Miami Beach for collection and disposal of Waste therein, and who pays a percentage of his or its gross earnings to the City of Miami Beach. "Grantee" shall mean Ameri-Carting, Inc. who is hereby granted this franchise and has hereby undertaken to perform each and every obligation as set forth in this Ordinance and hereby agreed to. "Grantor" shall mean the City of Miami Beach, Florida. "Recycling" shall mean any process by which materials which would otherwise become Solid Waste are collected, separated, or processed to be reused or returned to use in the form of raw materials or products. "Solid Waste" shall mean any "Bulky Waste" , "Commercial Refuse" , "Garden Trash" , "Trash" , "Hazardous Waste" , "Industrial Waste" , "Residential Refuse" , "White Goods" , as these words are defined in Ordinance No. 91-2742 , as well as other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial, commercial, mining or agricultural operations. "Ordinance No. 91-2742" shall mean Ordinance No. 91-2742 of the City of Miami Beach, Florida, as it may be amended from time to 3 time. Any other words 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 Ordinance No. 91- 2742 , in which case they shall have the meaning set forth therein. SECTION 3. GRANT OF FRANCHISE Pursuant to Ordinance No. 91-2742 which authorized the granting of franchises for the purposes set forth herein and to former Ordinance No. 84-2453 and amendments thereto which authorized the renewal of the licenses granted to five (5) private contractors for waste collection and removal, Grantee is hereby granted a franchise, including every right and privilege appertaining thereto, except as limited by Section 14A-3 of Ordinance No. 91-2742 and/or by present or future federal, state and county ordinances and laws, to operate and maintain a Solid Waste collection and removal service in, upon, over and across the present and future streets, alleys bridges, easements and other public places within the limits of the City of Miami Beach, Florida for the purpose of collecting and disposing of the Solid Waste generated by the citizens, residents, inhabitants, business enterprises and other entities therein. Except for Recyclable Materials otherwise provided for pursuant to Ordinance No. 91-2742 and/or by present or future federal, state or county ordinances and laws, Grantee is hereby granted title to all of such Solid Waste generated within said boundaries, insofar as the Grantor can establish its legal right to make such grant of title. SECTION 4. GEOGRAPHICAL LIMITS OF THE FRANCHISE The area covered by this franchise is the city limits of the City of Miami Beach, Florida, as they are now located and any areas which may at some future time be incorporated into the City. Grantee agrees that the limits of the franchise are subject to expansion or reduction by annexation and contraction of municipal boundaries and that Grantee has no vested right in a specific area. 4 SECTION 5. TERM The term of this franchise shall commence on the effective date of this ordinance. The franchise shall be granted for a period of seven (7) years unless sooner terminated by revocation due to breach of the terms hereof by the Grantee or due to bankruptcy or insolvency of the Grantee. At the expiration or earlier, revocation thereof, the City Commission may choose, in its sole discretion, to accept applications for a new franchisee and/or to renew this franchise for an additional seven (7) year period or to provide for collection and disposal of Solid Waste by some other means. 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 Section 14A-16 of Ordinance No. 91-2742 . SECTION 6. FRANCHISE CONSIDERATION For a period of one year after the granting and acceptance of this franchise, the Grantee shall pay to the Grantor a franchise fee consisting of eight percent (8%) of said Grantee' s total monthly gross receipts. Thereafter the Grantor shall have the option, in its sole discretion, of raising the franchise fee once yearly; said raises shall not exceed two percent (2%) of the Grantee' s total monthly gross receipts yearly and shall be imposed only by resolution after a public hearing and thirty (30) days prior notice to Grantee. The term "gross receipts" as used in this section shall mean the entire amount of the fees collected by the Grantee, exclusive of taxes as provided by law, whether wholly or partially collected, from accounts located within the City, for Solid Waste removal and disposal. Gross Receipts from servicing "Roll Off Containers" as defined in Ordinance No. 91-2742 are not included under the franchise fee due to the Grantor and shall be subject to separate fees as set forth in Section 14A-17 of Ordinance No. 91-2742 . 5 I SECTION 7 . ASSIGNMENT The franchise rights herein granted to the Grantee and any licenses granted to the Grantee by the City shall not be assigned by the Grantee except with the express approval of the Grantor, which approval shall not be unreasonably, withheld, but which shall be reflected by a resolution of the Grantor. In the event of such assignment, Grantee shall cause its assignee to execute an Agreement of Acceptance, subject to the approval of the Grantor, evidencing that such assignee accepts the assignment subject to any and all of the terms, conditions and limitations imposed hereby, and which acceptance shall include an affirmative statement evidencing such assignee' s intent to fulfill the obligations imposed upon Grantee in contemplation hereof. Notwithstanding the Grantor' s approval of such as assignment and assignees ' acceptance, Grantee shall guarantee the performance of its assignee and such assignment shall always be with full recourse to Grantee. A transfer of the controlling stock ownership or voting rights of Grantee shall constitute an assignment for the purposes of this Section. Provided, however, that the foregoing restrictions on stock transfer shall not apply to corporations whose common stock is traded over the New York Stock Exchange or the American Stock Exchange or that are institutional lenders. SECTION 8. BANKRUPTCY OR INSOLVENCY If the Grantee becomes insolvent this franchise shall terminate, or if the Grantee 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 9. HOLD HARMLESS - INSURANCE Grantee hereby agrees to indemnify, hold harmless and defend the City, its officers, agents and employees against and assume all liability for any and all claims, suits, actions, damages liabilities, expenditures, or causes of actions of any kind arising 6 from Grantee' s Waste collection and/or disposal activities and/or the use of the public streets for the purposes authorized in this franchise and in Ordinance No. 91-2742 and resulting or accruing from any negligence, act, omission or error of the Grantee, its agents or employees and/or arising from the failure of Grantee, its agents or employees to comply with each and every covenant of this franchise or with any other City or County ordinance or State or federal law or regulation applicable to Grantee' s activities resulting in or relating to bodily injury, loss of life or limb or damage to property sustained by any person, firm, corporation or other business entity. Grantee hereby agrees to save Grantor, its officers, agents and employees harmless from and against all 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. Grantee shall defend, at its sole cost and expense any legal action, claim or proceeding instituted by any person against the Grantor, its officers, agents and employees 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. Grantee agrees to maintain throughout the entire period during which this franchise is in effect, in full force and effect, the insurance coverages set forth in Section 14A-15 of Ordinance No. 91-2742 , and that any deviation from these requirements must be approved by the City' s Risk Manager. Grantee further agrees that Grantor may increase the kinds and amounts of insurance coverage required, if Grantor, in its sole discretion, deems such increase necessary to protect the City. Operation of activities by the Grantee without the required insurance shall be grounds for license and/or franchise revocation as specified herein. SECTION 10. COMPLIANCE WITH ORDINANCES, RULES, LAWS Grantee shall keep fully informed of all federal, state and 7 county ordinances, laws, rules, regulations, and all orders and decrees of bodies or tribunals having jurisdiction or authority which in any manner affect its activities authorized by this franchise, or which in any way affect the conduct of its work. Said Grantee shall at all times observe and comply with all such laws, ordinances, rules, regulations, orders, and decrees. Additionally, Grantee shall obtain all licenses and permits required to conduct business pursuant to Ordinance No. 91-2742 . SECTION 11. REVOCATION OF FRANCHISE Failure on the part of Grantee to comply in any material way with the provisions of Ordinance No. 91-2742 or of this franchise shall be grounds for termination of this franchise, but no such termination shall take effect if the reasonableness or propriety thereof is protested by Grantee until a court of competent jurisdiction (with right of appeal in either party) shall have found that Grantee failed to comply in material respect with any of the provisions of this Ordinance or of Ordinance No. 91-2742 . SECTION 12 . REPORTING, ACCOUNTING; AUDIT Grantee shall keep an accurate set of books and records reflecting the gross revenues derived under and pursuant to the franchise rights herein granted. Grantor shall be bound by the provisions of Section 14A-16A of Ordinance No. 91-2742 with regard to reporting and accounting requirements and Grantor' s right to audit Grantee' s books and records. SECTION 13. COLLECTION EQUIPMENT Grantee shall have on hand at all times sufficient equipment in good working order to permit Grantee, to perform its duties hereunder fully, adequately, and efficiently. Garbage collection equipment shall be kept clean, sanitary, neat in appearance and in good repair at all times. The Grantee 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, 8 to the equipment normally used by the Grantee to perform its duties hereunder. SECTION 14. DISPOSAL All Solid Waste shall be hauled to sites or facilities legally empowered to accept it for treatment or disposal. The Grantor 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 15. COLLECTION SERVICES AND OPERATIONS Grantee' s procedures for Collection of Solid Waste shall be in keeping with all provisions of Ordinance No. 91-2742 . SECTION 16. STORMS AND OTHER EMERGENCIES In case of an unusually severe storm or disruption caused by other severe emergencies not caused by Grantee, Grantor may grant Grantee reasonable variance from regular schedules. As soon as practicable after such storm or other emergency, Grantee shall inform the Grantor of the estimated time required before regular schedules and routes can be resumed and, upon request of Grantor, Grantee shall provide notice to residential premises in the service area. In event of a storm or emergency requiring mass cleanup operations, Grantee shall, upon direction of Grantor, participate in said cleanup to the extent directed, by the Grantor. Grantee shall be compensated by the Grantor in the amount of actual costs, plus 12 percent (12%) of said costs, and shall be excused from conducting regular services if approved by Grantor. Any expenses incurred or revenue received under this provision shall not be included or considered in rate base calculations. SECTION 17 . RIGHT TO REQUIRE PERFORMANCE The failure of the Grantor at any time to require performance by the Grantee of any provision hereof or of Ordinance No. 91-2742 shall not affect the right of the Grantor thereafter to enforce same; nor shall waiver by the Grantor of any breach of any provision hereof be taken or held to be a waiver of any succeeding 9 breach of such provision or as a waiver of any provision itself. SECTION 18. OPERATIONS DURING DISPUTE In the event that a dispute arises between the Grantor and the Grantee, or any other interested party in any way relating to this franchise agreement, performance or compensation hereunder, the Grantee shall continue to render service in full compliance with all terms and conditions of this agreement regardless of the nature of the dispute. Grantee expressly recognizes the paramount right and duty of Grantor to provide adequate Waste collection and disposal service as necessary governmental functions, and further agrees, in consideration for the execution of this franchise, that in the event of a dispute, said Grantee will not stop service during the pendency of the dispute without the written consent of Grantor. SECTION 19 . HANDLING OF COMPLAINTS Grantee shall be bound by Section 14A-16B of Ordinance No. 91- 2742 with regard to handling of complaints from its patrons. SECTION 20 . NONDISCRIMINATION The Grantee agrees that it hes adopted and will maintain and enforce a policy of nondiscrimination on the basis of race, color, religion, sex, age, handicap, disability or national origin. Said nondiscrimination policy shall apply to employment practices of the Grantee and the provision of services. The Grantee agrees that on written request, it will permit reasonable access to its records of employment, employment advertisements, application forms, and other pertinent data and records by Grantor for the purposes of investigation to ascertain compliance with the non-discrimination provisions of this franchise, provided, however, that Grantee shall not be required to produce for inspection any records covering any period of time more than two (2) years prior to the date of this franchise. SECTION 21. CONTINGENCY TO PROVIDE FOR RECYCLING Notwithstanding any other provision of this Ordinance, if the City Commission or Metropolitan Dade County decides at any time to 10 establish a citywide or countywide Recycling program and/or regulations requiring multifamily and/or Commercial Establishments and/or multifamily residences to recycle, the City Manager shall meet with Grantee and with the other current Franchise Waste Contractors as provided in Florida Statute Section 403 . 706 (a) for the purpose of negotiating terms and regulations connected with provision of such Recycling services. The terms, including rates charged by said Contractors in the City for these services, shall be comparable to those established in other municipalities in Dade, Broward and Palm Beach Counties for provision of similar Recycling services. If none of the Franchise Waste Contractors come to an agreement with the City within sixty (60) days, then the City may, at its option, provide for Recycling services by a) entering into an agreement with other persons or entities, to provide Recycling services to accounts serviced by Grantee and other Franchise Waste Contractors, b) entering into interlocal agreements, and/or c) franchising and licensing new Franchise Waste Contractors who are willing to provide the Recycling services required by the City and/or by Metropolitan Dade County and who shall also have all privileges and duties of Franchise Waste Contractors as set forth in Ordinance No. 91-2742 , including collection and disposal of Solid Waste. In the event that Metropolitan Dade County or the City mandates recycling for multifamily and/or commercial establishments, if Grantee does not enter into agreement with the City to provide the required Recycling services, Grantee shall, at that time, 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 the Grantee. In the event that the City enters into agreement for provision of Recycling services other than by interlocal agreement with only one or two Contractors, rates charged for Recycling services in Miami Beach by those contractors shall be set by the City Commission. 11 SECTION 22 . INVALIDITY - NO RIGHT OF ACTION If this Ordinance or any provision thereof is found to be invalid or unconstitutional by any court of competent jurisdiction and/or if Grantee is prevented from exercising its rights hereunder by present or future federal or state laws or county ordinances, and Grantee' s rights under this franchise are materially impaired thereby, then Grantee shall have no claim or cause of action against the City therefore. SECTION 23 . POWER TO REGULATE STREETS Nothing in this Ordinance shall be construed as a surrender by Grantor of its right or power to pass ordinances regulating the use of its streets. SECTION 24. ACCEPTANCE OF FRANCHISE Grantee shall file with the City Clerk of said City its acceptance of this franchise and the provisions of this Ordinance and Ordinance No. 91-2742 within twenty (20) days after the date of adoption. SECTION 25. CONFLICT WITH ORDINANCE NO. 91-2742 In the event that any part of this Ordinance is in conflict with Ordinance No. 91-2742 , then this Ordinance shall prevail. SECTION 26. SEVERABILITY If any section, subsection, sentence, clause, phrase or portion of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, such portion shall be deemed a separate, distinct and independent provision and such holding shall not affect the validity of the remaining portions of this Ordinance; except that where Grantor finds that the invalidated provision is essential to the franchise as a whole, Grantor may terminate said franchise. SECTION 27 . REPEALER All ordinances or parts in conflict herewith be and the same are hereby repealed. 12 x 6.0 oi /44m &4d P1 8 � ` FLORIDA 3 3 1 3 9 *s kINCORP "VACATIONLAND U. S. A. " OFFICE OF THE CITY MANAGER CITY HALL 1700 CONVENTION CENTER DRIVE TELEPHONE: 673-7010 COMMISSION MEMORANDUM NO. j_f_LI-9/ DATE: Sept. 25, 1991. TO: Mayor Alex Daoud and Members of the City Commission FROM: Carla Bernabei Talarico ''+ City Manager SUBJECT: GARBAGE FRANCHISE AGREEMENTS RENEWING PREVIOUS LICENSES On April 24, 1991, the City Commission passed Ordinance Number 91-2742 amending Chapter 14A of the Miami Beach Code, entitled, "Garbage" . Section 14A-16 of the amended ordinance provides licensing and operation criteria for not more than five franchise waste contractors to provide residential and commercial waste collection and disposal in the City of Miami Beach. The franchise agreements with the existing operators have expired and a new ordinance extending non-exclusive franchises to the five existing operators have been prepared for your consideration. Based on the findings, determinations and declaration, as listed in the franchise agreements, it is the Administrations recommendation to extend the franchise agreements to the five existing operators in accordance with the provisions or Ordinance No. 91-2742 . ADMINISTRATION RECOMMENDATION: The Administration recommends that the City Commission adopt the Ordinance granting non-exclusive franchises to the five current operators to provide collection and disposal of solid waste generated within the City of Miami Beach. CBT/RAG/b 10 AGENDA ITEM - 2rig DATE / L' �� 9/ 1. f ACCEPTANCE OF CITY OF MIAMI BEACH NON-EXCLUSIVE FRANCHISE FOR THE COLLECTION AND DISPOSAL OF SOLID WASTE GENERATED WITHIN THE CITY OF MIAMI BEACH City of Miami Beach Miami Beach, Florida The AMERI-CARTING, INC. does hereby accept Ordinance No. 91-2758, it being: AN ORDINANCE OF THE CITY OF MIAMI BEACH, FLORIDA, PROVIDING FOR THE GRANTING OF A NON-EXCLUSIVE FRANCHISE TO AMERI-CARTING, INC. , A FLORIDA CORPORATION, FOR THE COLLECTION AND DISPOSAL OF SOLID WASTE GENERATED WITHIN THE CITY OF MIAMI BEACH; IMPOSING CERTAIN CONDITIONS RELATING THERETO; PROVIDING FOR SEVERABILITY; REPEALING ALL ORDINANCES IN CONFLICT THEREWITH; AND PROVIDING FOR AN EFFECTIVE DATE. This instrument is to be filed with the City Clerk of the City of Miami Beach, in accordance with the provisions of section 24 of said ordinance. AMERIAR Ne sign. ure and title ATTEST' // signature and title I hereby acknowledge receipt of the above acceptance by AMERI- CARTING, INC. of Ordinance No. 91-2758, and certify that I have filed the same in the permanent files and records 9f the City of Miami Beach, Florida, this S ‘ day of 1991. Ri hard E. Brown, City Clerk CITY OF MIAMI BEACH CITY HALL 1700 CONVENTION CENTER DRIVE MIAMI BEACH FLORIDA 33139 DEPARTMENT OF PUBLIC WORKS October 22, 1991 Mr. Nick Casione Ameri-Carting, Inc. 5521 Castlegate Avenue Davie, Florida 33331 Dear Mr. Casione: Attached for your files is a copy of Ordinance No. 91-2757 granting Ameri-Carting, Inc., a franchise for the collection and disposal of solid waste generated in the City of Miami Beach. A fully executed copy will be sent to you in the near future. Also attached is an acceptance instrument which must be executed by your firm and returned to the City Clerk's office by October 30, 1991. Please return the acceptance clause to: Mr. Richard E. Brown City Clerk City of Miami Beach 1700 Convention Center Drive Miami Beach, Florida 33139 Sincerely, Richard A. atti, P.E. Director of ublic Works RAG/b Attachments cc: Richard E. Brown City Clerk CITY OF MIAMI BEACH TO: Richard Gatti October 18 1991 City Manager DATE ► FROM: Richard E. Brown (f1/6 City Clerk SUBJECT: ACCEPTANCE OF NON-EXCIAISIVE FRANCHISE ORDINANCES FOR THE COLLECTION AND DISPOSAL, OF SOLID WASTE We are herewith forwarding certified, conformed copies of each of the ordinances together with a letter of acceptance for forwarding to each franchisee. Under the provisions of section 24 of the ordinances, acceptance is required to be made within 20 days after the date of adoption, or by October 30. We are also providing you with conformed copies of the ordinances for your files. Thank you for your assistance. 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