Loading...
HomeMy WebLinkAboutWaste Management of Dade Co. /0-/5-03 c9cX/3- c:;S3f?S NON-EXCLUSIVE FRANCHISE WASTE CONTRACTOR AGREEMENT BETWEEN CITY OF MIAMI BEACH, FLORIDA (CITY) AND WASTE MANAGEMENT OF DADE COUNTY NORTH, A DIVISION OF WASTE MANAGEMENT, INC. OF FLORIDA (FRANCHISEE), FOR RESIDENTIAL AND COMMERCIAL WASTE COLLECTION AND DISPOSAL 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 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 is maintained through a responsive complaint handling procedure. (t) That the granting of a non-exclusive franchise is the best means of assuring that the above-described interests of the City of Miami Beach are promoted. (g) 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 granted to the four entities licensed pursuant to Article 90 therein. (h) That the City of Miami Beach has determined, based upon the past performance record of the Franchisee, that it is in the best interests of the citizens of the City of Miami Beach to renew its agreement with the Franchisee for collection and disposal of Solid Waste within the City. (i) That the Franchisee 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. NOW THEREFORE, City and Franchisee, in consideration of the mutual covenants herein contained, agree as follows: SECTION 1. DEFINITIONS For 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, as it 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 City Manager of the City of Miami Beach, Florida. "Franchisee" shall mean Waste Management of Dade County North, a Division of Waste Management, Inc. of Florida, who is hereby granted this franchise and has hereby undertaken to perform each and every obligation as set forth in this Agreement and hereby agreed to. "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. "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 Chapter 90 of the City Code, as well as other discarded material, including solid, liquid, semi-solid, or contained gaseous material resulting from domestic, industrial, commercial, mining or agricultural operations. 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 Chapter 90 of the City Code, in which case they shall have the meaning set forth therein. SECTION 3. 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 limited by Section 90-97 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 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 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. 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. 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 5. TERM The term of this franchise shall commence retroactively on October 1, 2003, which shall be the effective date of this Agreement. The franchise shall be granted for a period of five (5) years unless sooner terminated by revocation due to breach of the terms hereofby the Franchisee or due to bankruptcy or insolvency of the Franchisee. 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 five (5) 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 Sections 90-229 and 90-230 of the City Code, as same may be amended from time to time. SECTION 6. FRANCHISE CONSIDERATION For a period of one year after the granting and acceptance of this franchise, the Franchisee shall pay to the City a franchise fee consisting of sixteen percent (16%) of said Franchisee's total monthly gross receipts. Thereafter the City 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 Franchisee's total monthly gross receipts yearly and shall be imposed only by resolution after a public hearing and thirty (30) days prior notice to Franchisee. The term "gross receipts", as used in this Section, shall mean the entire amount of the fees collected by the Franchisee, 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 Chapter 90 of the City Code 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, as same may be amended from time to time. In addition to payment of the franchise fee, as set forth herein, the Franchisee shall pay an amount equal to two percent (2%) of its total annual gross receipts, as defined in this Section, to be applied by the City toward the establishment, implementation, and operation of a public right-of-way cleaning program, to be established by the City and operated through its Sanitation Department. The Franchisee shall, on or before thirty (30) days following the close of its fiscal year, deliver to the City's Chief Financial Officer and the City Manager a statement of its annual gross receipts generated from accounts within the City certified by an independent certified public accountant, reflecting gross receipts within the City for the preceding fiscal year. Payment of this amount for the City's program shall be made monthly to the City's Chief Financial Officer, on or before the last day of each month. SECTION 7. ASSIGNMENT The franchise 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 approval of the City, which approval shall not be unreasonably withheld, but which shall be reflected by a resolution of the City. In the event of such assignment, Franchisee shall cause its assignee to execute an Agreement of Acceptance, subject to the approval of the City, 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 Franchisee in contemplation hereof. Notwithstanding the City's approval of such as assignment and assignees' acceptance, Franchisee shall guarantee the performance of its assignee and such assignment shall always be with full recourse to Franchisee. A transfer of the controlling stock ownership or voting rights of Franchisee 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 Franchisee becomes insolvent, this franchise shall terminate, or 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 9. HOLD HARMLESS - INSURANCE Franchisee 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 from Franchisee's Waste collection and/or disposal activities and/or the use of the public streets 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, its agents or employees and/or arising from the failure of Franchisee, 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 Franchisee'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. Franchisee hereby agrees to hold City, 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. Franchisee shall defend, at its sole cost and expense any legal action, claim or proceeding instituted by any person against the City, 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. Franchisee 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 90-191 of the City Code, as may be amended. Franchisee further agrees that City may increase the kinds and amounts of insurance coverage required, if City, in its sole discretion, deems such increase necessary to protect the City. Operation of activities by the Franchisee without the required insurance shall be grounds for license and/or franchise revocation as specified herein. SECTION 10. COMPLIANCE WITH ORDINANCES. RULES. LAWS Franchisee shall keep fully informed of all federal, state, and 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 Franchisee shall at all times observe and comply with all such laws, ordinances, rules, regulations, orders and decrees. Additionally, Franchisee shall obtain all licenses and permits required to conduct business pursuant to Chapter 90 of the City Code. SECTION 11. REVOCATION OF FRANCHISE Failure on the part of Franchisee to comply in any material way with the provisions of Chapter 90 of the City Code or of this Agreement shall be grounds for automatic termination of this franchise; said termination effective upon written notice from the City SECTION 12. 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 herein granted. City shall be bound by the provisions of Section 90-221 of the City Code, as may be amended, with regard to reporting and accounting requirements and City's right to audit Franchisee's books and records. SECTION 13. COLLECTION EOUlPMENT Franchisee shall have on hand at all times sufficient equipment in good working order to permit Franchisee, 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 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 the Franchisee to perform its duties hereunder. DISPOSAL SECTION 14. 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 15. 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. SECTION 16. STORMS AND OTHER EMERGENCIES In case of an unusually severe storm or disruption caused by other severe emergencies not caused by Franchisee, City may grant Franchisee reasonable variance from regular schedules. As soon as practicable after such storm 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 City, Franchisee shall provide notice to residential premises in the service area, in such manner as to be determined by City. In event of a storm or emergency requiring mass cleanup operations, Franchisee shall, upon direction of City, participate in said cleanup to the extent directed, by the City. Franchisee shall be compensated by the City in the amount of actual costs, plus 12 percent (12%) of said costs, and shall be excused from conducting regular services if approved by City. Any expenses incurred or revenue received under this provision shall not be included or considered in rate base calculations. SECTION 17. RIGHT TO REOUlRE PERFORMANCE The failure of the City at any time to require performance by the Franchisee of any provision hereof or of Chapter 90 of the City Code shall not affect the right of the City thereafter to enforce same; nor shall waiver by the City of any breach of any provision hereofbe taken or held to be a waiver of any succeeding 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 City and the Franchisee, or any other interested party in any way relating to this franchise agreement, performance or compensation hereunder, the Franchisee shall continue to render service in full compliance with all tenns and conditions ofthis agreement regardless of the nature of the dispute. Franchisee expressly recognizes the paramount right and duty of City 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 Franchisee will not stop service during the pendency of the dispute without the written consent of City. SECTION 19. HANDLING OF COMPLAINTS Franchisee shall be bound by Chapter 90 of the City Code with regard to handling of complaints from its patrons. SECTION 20. NONDISCRIMINATION The Franchisee agrees that it has adopted and will maintain and enforce a policy of nondiscrimination 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 on written request, it will permit reasonable access to its records of employment, employment advertisements, application fonns, and other pertinent data and records by City for the purposes of investigation to ascertain compliance with the non-discrimination provisions of this franchise, provided, however, that Franchisee shall not be required to produce for inspection any records covering any period oftime 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 Agreement, if the City Commission or Miami - Dade County decides at any time to 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 Franchisee and with the other current Franchise Waste Contractors as provided in Florida Statutes, Section 403.706(a) for the purpose of negotiating tenns and regulations connected with provision of such Recycling services. The tenns, including rates charged by said Contractors in the City for these services, shall be comparable to those established in other municipalities in Miami - 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 Franchisee 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 Miami - Dade County and who shall also have all privileges and duties of Franchise Waste Contractors as set forth in Chapter 90 of the City Code, including collection and disposal of Solid Waste. In the event that Miami - Dade County or the City mandates recycling for multifamily and/or commercial establishments, if Franchisee does not enter into agreement with the City to provide the required Recycling services, Franchisee 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 Franchisee. 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. SECTION 22. INV ALInITY - NO RIGHT OF ACTION If this Agreement or any provision thereof is found to be invalid or unconstitutional by any court of competent jurisdiction and/or if Franchisee is prevented from exercising its rights hereunder by present or future federal or state laws or county ordinances, and Franchisee's rights under this franchise are materially impaired thereby, then 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. SECTION 24. ACCEPTANCE OF FRANCHISE Franchisee shall file with the City Clerk of said City its acceptance of this franchise within twenty (20) days after the date of approval of the franchise by the Mayor and City Commission. SECTION 25. CONFLICT WITH CHAPTER 90 OF THE CITY CODE In the event that any part of this Agreement is in conflict with Chapter 90 of the City Code, then this Agreement shall prevail. SECTION 26. GOVERNING LAW AND EXCLUSIVE VENUE. This 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 AND/OR THE GROUND LEASE. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their appropriate officials, as of the date first entered above. FOR CITY: CITY OF MIAMI BEACH, FLORIDA ATTEST: ~~t f~ FOR FRANCHISEE: WASTE MANAGEMENT OF DADE COUNTY NORTH, A DMSION OF WASTE MANAGEMENT, INC. OF FLORIDA ---- PI ",..ldent Pt'S-1If.lQ' /fA1WI'IUl- ATTEST: APPROVED AS TO FORM & LANGUAGE & FOR EXECUTION Corporate Seal r~ /() -, -(f~ Date