HomeMy WebLinkAbout1997 02 10 Regular Item F.2
COMMISSION AGENDA
ITEM F.2
REGULAR X
CONSENT
INFORMATIONAL
February 10, 1997
Meeting
MAR.l?tJ }1/DEPT
Authorization
REQUEST: City Manager requesting the Commission to consider approval of the first reading
of Ordinance 649 providing for a new Franchise Agreement with Browning-Ferris
Industries for the provision of Solid Waste Collection Services.
PURPOSE: To approve a new Solid Waste Collection Franchise Agreement with B.F.I,
CONSIDERATIONS:
This item authorizes the Franchise Agreement necessary to implement the terms and
conditions of Solid Waste Services discussed in Agenda Item F ,1,
FUNDING:
Solid Waste Fee as provided in Agenda Item F,)
RECOMMENDA TION:
The Commission approve final reading of Ordinance No. 649 establishing a new
Solid Waste Franchise Agreement.
IMPLEMENTA TION:
The Ordinance will become effective upon approval.
The Solid Waste Franchise Agreement will become effective March 1, 1997.
ATTACHMENTS:
Ordinance No. 649
Solid Waste Franchise Agreement
COMMISSION ACTION:
Page 1
ORDINANCE NO. 649
AN ORDINANCE TERMINATING THE CITY OF WINTER
SPRINGS SOLID WASTE COLLECTION FRANCmSE
AGREEMENT DATED DECEMBER 12, 1992 AND AWARDING A
NEW FRANCHISE TO B.F.I. AFF.ECTIVE MARCH 1, 1997;
PROVIDING FOR ASSIGNMENT, TERMS, CONDITIONS AND
SEVERABILITY.
WHEREAS, the City of Winter Springs and Industrial Waste Services entered
into a Franchise Agreement on December 12, 1992, the terms of which expire on
December 31, 1997, and
WHEREAS, Section 4.14 of the City Charter for the City of Winter Springs,
Florida, authorizes the City Commission to award a franchise pursuant to ordinance;
WHEREAS, the Winter Springs City Commission desires to enter into a new
Franchise Agreement for the provisions of Solid Waste Collection Services.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY
COMMISSION OF THE CITY OF WINTER SPRINGS, FLORIDA:
SECTION I - The Franchise Agreement between I.W.S. and the City of Winter
Springs, Florida, effective December 12, 1992, is hereby terminated by the City based
upon the request of the franchisee,
SECTION IT - The City hereby adopts and grants the attached Franchise
Agreement effective March 1, 1997, to B.F.I. The terms of the attached Franchise
Agreement are incorporated herein by reference. The City Commission reserves the
right to amend the attached Franchise Agreement and/or amend the rate or fees
authorized thereunder by Resolution.
SECTION ill - Any Ordinance or Resolution in conflict herewith, is hereby
replaced to the extent of said conflict.
SECTION IV - This Ordinance shall take effect upon its passage and adoption.
Passed and adopted this _day of , 1997, in Chamber at the Winter
Springs City Commission, City of Winter Springs, Seminole County, Florida.
CITY OF WINTER SPRINGS, FLORIDA
PAUL P. PARTYKA, MAYOR
ATTEST:
CITY CLERK
First Reading
Posted
Second Reading and Public Hearing
EXHIBIT" A"
FRANCHISE AGREEMENT
THIS AGREEMENT is made and entered into this day of February, 1997, by
and between the City of Winter Springs,Florida (hereinafter referred to as the "City") ,
and Browning Ferris Industries, Inc. (herein referred to as B.F.I.) whose address is 1099
Miller Drive" Altamonte Springs, Florida 32701, and provides as follows:
WHEREAS, the City and Industrial Waste Services were parties to an existing
Franchise Agreement dated December 12, 1992, the term of which expires at midnight
on December 31, 1997; and
WHEREAS, the City and B.F.I. desire to enter into a new Franchise Agreement
effective March 1, 1997.
NOW, THEREFORE, in consideration of the mutual covenants, promises and
conditions herein contained and other valuable considerations, the receipt and adequacy
of which are hereby acknowledged, the parties hereby agree as follows:
I. TERM OF AGREEMENT; RENEWAL AND DEFAULT.
A. SCOPE AND TERM. This Agreement is an exclusive Franchise
Agreement to collect, transport and dispose of residential , business, commercial and
industrial solid waste and recyclable materials generated within the boundaries of the
City, The term of this Agreement shall commence on March 1, ] 997, and shall end at
midnight on the 31st. day of December, 19_.
B. RENEWAL. The City and B.F.I, by mutual consent, may opt to extend
or renew this Agreement Either party which wishes to extend or renew this Agreement
shall give the other party written notice of its intent to extend or renew this Agreement
365 days prior to the expiration of the term of the Agreement. Within 60 days of receipt
of such notice, the other party shall respond in writing as to whether it agrees to such
renewal. Any extension shall require passage of a resolution authorizing the extension
by the City Commission of the City of Winter Springs, Florida.
C. DEFAULT.
1. Notice of Default. B.F.I.'s failure to comply in any substantial respect
with any of the provisions in this Agreement shall be grounds for forfeiture of its
franchise. Prior to any such forfeiture, the City shall serve upon B.F.I. a written notice
of default which notice shall set forth the specific nature of the default and the extent
thereof. B.F.I. shall have sixty (60) days from the date of the notice of default within
which to correct same prior to any forfeiture of its franchise. Should B.F.I, contest the
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reasonableness or propriety of the City's notice of default, it shall notify the City in
writing within ten (10) days of its receipt of the notice of default. Should B.F.I, be
served with a Notice of Default for a repeat breach of the Franchise Agreement, the City
Commission shall have the option to terminate this Agreement on one-hundred and
eighty days (180) written notice.
2. MEDIATION. If the City and B.F.I. cannot agree as to the
reasonableness or propriety of the City's notice of default, then the issue shall be
promptly submitted to a three member arbitration panel. One panel member shall be
selected by the City, one shall be selected by B.F.I., and these two members shall jointly
agree upon a third member. The mediation panel shall notify the city and B.F.I. of its
determination of the reasonableness and propriety of the City's notice of default not later
than thirty days following submission of the issue to the panel. The determination shall
be non-binding and advisory only to the City and B.F.I,
3. Reservation of Rights, The purpose of this section is to enable the
City and B.F.I. to resolve by mediation such differences as they may be unable to resolve
by mutual agreement, and the decision of the mediation panel shall be advisory only and
shall not be binding upon either the City or B.FJ.. Nothing contained herein shall be
construed to limit or restrict the legal rights and powers of the City or B.F.!..
II. DUTIES OF B.F.L. B.F,I. promises to perform its duties hereunder in a good
and workmanlike manner and in strict compliance with the specifications for the
Collection of Solid Waste and Recyclable Materials attached hereto as Exhibit "B" of the
Mandatory Solid Waste Collection Ordinance No. 537 of the Winter Springs Code of
Ordinances, and incorporated herein by reference as though set forth in full at this place,
which Specifications shall be binding on the parties hereto.
m. ADDITIONAL DUTIES. In addition to the duties described in II above, B.F.I.
shall provide a special pick up day for normally scheduled yard waste and recyclable
collection service days missed for any reason on the first Saturday following the missed
collection day. Additionally, B.F.I. shall provide notice of the normally scheduled day of
service that will not be provided and the make up day of service by either three
consecutive days publication in a newspaper of general circulation or by notice at the
location of each affected customer. Both alternative forms of notice must be completed
three days prior to the normally scheduled work day that will be missed,
IV. FIRST PRIORITY. In the event that B.F.I. experiences equipment failure or
personnel problems in its overall operations, B.F.I. agrees to give first priority in the
assignment of equipment and personnel to all routes within the City,
V. B.F.I.'s EXCLUSIVE RIGHT TO SERVICE RESIDENTIAL DWELLINGS.
During the term of this Agreement and any renewals hereof, B.P.I. shall have the
exclusive franchise for the collection, transport and disposal of residential solid waste
and recyclable materials within the City and shall be the City's sole Franchisee for such
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services, as the term "Franchisee" is used in the Mandatory Solid Waste Collection
Ordinance No, 537 of the Winter Springs Code of Ordinances, In accordance with the
duties of B.F.I. as set forth in Section II above, no collection schedule shall be less than
that provided in Exhibit "B" of Ordinance No. 537 of the Winter Springs Code of
Ordinances. B.F.I. shall have the obligation of enforcing the exclusiveness of the
Franchise and the City shall have no obligation to enforce same,
VI. B.F.I.'s- EXCLUSIVE RIGHT TO SERVICE BUSINESS.- COMMERCIAL
AND INDUSTRIAL ENTERPRISES. During the term of this Agreement and any
renewals hereof, B.F.I. shall have the exclusive right to contract for solid waste and
recyclable materials collection services with all business, commercial and industrial
enterprises within the City (including Multi-Family Residential Units and mobile home
parks which receive dumpster or roll off service as opposed to curbside individual
service), and agrees to collect all types of solid waste and recyclable materials from
business, commercial and industrial enterprises within the City that have entered into
individual contracts for such services with B.F.I., and shall be the City's sole franchisee
for such services as the term "Franchisee" is used in the Mandatory Solid Waste
Collection Ordinance No. 537 of the City of Winter Springs Code of Ordinances. The
places and days of collection, quantities and items to be collected, and rates for such
business, commercial and industrial service shall be established by individual contract
between B.F ,!. and each business, commercial or industrial enterprise; provided,
however, that the maximum permissible business, commercial and industrial rates to be
charged by B.F.I. shall be established by the City by Resolution.
vn. RATES AND BILLING.
A. RESIDENTIAL BILLING BY THE CITY.
1. B.F.!. will invoice the City directly for all collection, transportation and
disposal of solid waste and recyclable materials from Residential Collection Units, as
defined in the Mandatory Solid Waste Collection Ordinance No. 537 of the Winter
Springs Code of Ordinances. The City will pass the cost for such services through to its
residents by inclusion of a line item for such services on City utility bills. In no event
shall this Franchise Agreement be deemed or construed to mean the City is purchasing
anything from B.F.I. The City shall only be obligated to transmit those monies it collects
from customers to B.F,[
2. B.F.I. shall be entitled to payment by the City for services rendered to
Residential Collection Units regardless of whether or not the City collects from its
residents for such service, The City shall provide to B.F.I. an assessment roll or
customer list setting forth the total number of Residential Collection Units to be served
by B.F.I. pursuant to this Agreement and the address of each such Residential Collection
Unit for the duration of this Agreement and any extensions or renewals hereof. The City
shall promptly notify B.F.I. in writing of any new construction resulting in additions to
the list of Residential Collection Units to be served by B.F.I..
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3. Payments due from the City to B.F.I. for collections for monthly service to
Residential Collection Units shall be due and payable not later than the 15th day of the
month following the month during which the service was rendered
4. On a quarterly basis for the duration of this Agreement and any extensions or
renewals hereof, the City shall provide RF.I. with an adjusted assessment roll or
customer list, as referred to in Section VI(I) above, to reflect any new construction
resulting in additions to such list during the prior quarter and from that date forward the
City shall be billed by RF.I. based upon the adjusted assessment roll or customer list.
5. In the event that RF.I. discovers that it is providing service to a Residential
Collection Unit that is not included on the most recent assessment roll or customer list
provided by the City, RF.I. shall provide the City Manager with the location or address
of the omitted Residential Collection Unit. The City Manager shall promptly take steps
to verify the existence of the omitted Residential Collection Unit and RF.I.'s provision of
service to such omitted Residential Unit and, upon verifying that the information is
correct, the City shall immediately begin remitting monthly payments to RF.I for such
service. Should either the City or RF.I discover that the City is erroneously paying
RF.I for service to a non-existent Residential Unit, the discovering party shall
immediately notify the other party and, upon verification of the information by the other
party, the City's payments to RF.I shall be adjusted accordingly and the amount paid by
City shall be remitted to the City,
B. METHOD FOR BUSINESS. COMMERCIAL AND INDUSTRIAL
BILLING. RF.I., at no cost to the City, shall directly bill all business, commercial
and industrial enterprises with which it has contracted to collect, transport and dispose of
solid waste and recyclable materials, All fees shall be billed by RF.I to the owner or
occupant of each business, commercial or industrial enterprise on a monthly basis in
advance, 15 days prior to the beginning of each month, and shall be paid by the person to
whom the bill is rendered by the first day of the month for which the bill is rendered, All
persons who have not remitted payment within 30 days of the date of billing shall be sent
a notice by B.F.I., with notice to the City, which states that service may be discontinued
15 days from the date of the notice if payment is not made before that time, If the
payment still is not made within 15 days from the date of the notice, B.F.I. may
discontinue service to the customer-and shall so notify the City immediately. RF.I. shall
have the responsibility for enforcing its collection efforts and terms of this agreement, for
commercial and residential accounts.
C. GENERAL PROVISIONS
1. Uniform Rates. The uniform rate for the residential and commercial services
provided by RF.I. are described in City of Winter Springs Resolution No. _ attached
hereto as Exhibit "B". B.F.I. shall only be required to provide side or back yard service
to Residential Collection Units occupied by disabled persons under the conditions set
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forth in the Mandatory Solid Waste Collection Ordinance No. 537 of the Winter Springs
Code of Ordinances, and shall not charge such persons more than the uniform rate
established for each Residential Collection Unit. For residential customers who desire
curbside service that cannot be provided by truck and requires the use of tote carts, or for
any other special service not provided for in the Mandatory Solid Waste Collection
Ordinance No. 537 City of Winter Springs Code of Ordinances, Exhibit "B", RF.I. may
impose a surcharge over the uniform rate which may either be included on the customer's
utility bill or billed directly by RF.I. to the customer.
2. Increase in Uniform Rates. RF.I. shall be entitled to request an
extraordinary adjustment of both the uniform rate for Residential Collection Units and
the maximum permissible business, commercial and industrial rates if the request is due
to an increase in its cost of doing business which is a direct result of an increase in
landfill tipping fees or of compliance with new county, state or federal regulations
regarding the solid waste industry. If RF.I.'s request for a rate adjustment is due to an
increase in the landfill tipping fees charged by Seminole County, the rate per Residential
Collection Unit shall be increased according to the following formula:
Total amount of landfill tipping fee increase per ton of solid waste multiplied by
1.369 (average annual solid waste generated per Residential Collection Unit is
1,369 tons) divided by , 12 equals monthly rate increase per Residential
Collection Unit.
RF.I. shall provide adequate documentation and justification for any extraordinary rate
adjustment requested pursuant to this section and such request shall be approved by the
City via ordinance, resolution" amendment to this Agreement, or other appropriate
mechanism" absent reasonable cause for refusing to approve such request.
3. Annual C.P.I. Beginning March 1, 1998 and every year there after B.F.I.
shall be entitled to an annual c.P,I. adjustment not to exceed 2.5% based upon the
increase in the c.P.I, over the past 12 month period.
4. Favored Nations Clause. The City of Winter Springs Rate Schedule should
be adjusted to a rate equal to that provided to any municipal government in Seminole,
Orange and Osceola Counties during the duration of this Agreement by RF.I. which is
lower that provided for in this Agreement.
5. Performance Bonus. Beginning March 1, 1998, B,F.l. shall be entitled to a
Performance Bonus for the performance of the company over the prior twelve month
period of the Agreement s determined by a customer's satisfaction rating of 90% or
greater as performed by a competent independent market research consultant chosen
mutually by B.F.I,
The performance bonus shall be in the amount of $
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6. Performance Bond. B.F.1. shall post with the City and keep in full force and
effect during the term of this Agreement a performance bond issued by a nationally
recognized surety company which will guarantee the full and faithful performance of
B.F.I.'s duties and obligations under the Agreement in an amount equal to the average
yearly revenues derived by B.F.1. for the twelve month period preceding March 1st of
each contract year.
7. Books of Account. B.F.I. shall maintain good and accurate books of account
reflecting the Residential Collection Units and business, commercial or industrial
enterprises from which collections are made and the payments received therefrom. All
such books of account pertaining to collections made in the City shall be open to
inspection by authorized City officials on reasonable notice. In addition, B.F.I. shall
provide the City with such information or documentation as the City may reasonably
request in connection with any collection/enforcement actions referred by B.F.1. to the
City pursuant to Paragraph VI(A) of this Agreement.
vm. PERFORMANCE REQUIREMENTS. B.F.I. hereby guarantees performance
of all of its obligations hereunder in accordance with Florida law and any City ordinances
now in effect or hereinafter enacted. B.F.1. acknowledges that it is thoroughly familiar
with Florida law and City ordinances and shall abide by their specific terms.
JX. ASSIGNMENT OF CONTRACT. This Agreement shall not be assignable by
B.F.1. without the written consent of the City commission, such consent not to be
unreasonably withheld.
x. LAWSUITS. It is expressly understood and agreed that B.F.1. is in all respects
an independent contractor as to all work to be performed hereunder, notwithstanding that
directions with regard to B.F.I.'s performance hereunder may be issued from time to time
by the City, its employees and/or its agents. B.F.I. shall pay any attorney's fees and costs
incurred by the City plus any judgment which may be obtained against the City in any
administrative or judicial proceedings, either alone or jointly with B.F.I., its agents or
employees, for injury or damages to performance or persons or parties by reason of
B.F.I.'S non performance of its obligations under this Agreement; provided, however,
that if the City alone is sued for such injury or damage, written notice shall be given to
B.F.I. to appear and defend such action on the City's behalf. B.F.1. shall hold the City
harmless against any damages, attorney's fees and/or costs incurred by the city as a result
of the City's award to B.F,I. of the franchise set forth in this Agreement, any challenges
thereto and any work performed by B.F.I. pursuant to the Franchise Agreement. In the
event of litigation between B.F.I. and the City arising out of or relating to the
enforcement or interpretation of this Agreement, the prevailing party shall be entitled to
recover all of its costs and attorney's fees at the trial and all appellate levels from the
other party. Venue for any cause of action arising hereunder shall be in the Circuit Court
of Seminole County, Florida,
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XI. WAIVERS. The failure of either side to enforce a term of this agreement shall
not be construed as a waiver of either sides rights to require enforcement or to declare a
default.
xu. SEVERABILITY. Should any part, clause, provIsIon, or condition of this
Agreement be held to be void, invalid or inoperative by any court of competent
jurisdiction, then such invalidity shall not affect any other provisions hereof, and the
remaining provisions shall be effective as though such invalid part, clause, provision or
condition had not been set forth herein,
xm. MUTUAL AGREEMENT. B.F.I. and the City agree that this Agreement sets
forth the entire agreement between them with regard to the subject matter hereof, and
that this Agreement shall only be amended, supplemented or altered by a written
instrument executed by both of the parties hereto through their duly authorized
representatives.
XIV. NOTICES. Any notices required or permitted to be given by one of the parties
to this Agreement shall be sent in writing to the other via U.S. Mail, hand-delivery or
telefax, as follows:
A. TO THE CITY:
Winter Springs City Manager
1126 East State Road 434
Winter Springs, Florida 32708
with a copy to
Winter Springs City Clerk
1126 East State Road
434Winter Springs, Florida 32708
B. TO B.F.I.:
1099 Miller Drive
Altamonte Springs, FL 32701
xv. In the event any new laws or regulations are passed by any governmental body, the
parties shall mutually negotiate in good faith to resolve the impact on the parties, In the
event the parties cannot agree to a mutually satisfactory resolution, either side may
submit the matter to a mediator as provided in paragraph C-2 of this agreement. In the
event the parties are unable to resolve the issue(s) after mediation, either side may
terminate this agreement upon one-hundred and eighty (180) days written notice,
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XVI. The City reserves the right to enforce any terms of this Franchise Agreement and
to amend Ordinance No. 537 as it deems in the best interest of the public's health, safety
and welfare.
IN WITNESS WHEREOF, the parties have executed this Agreement on the dates
set forth below.
CITY WINTER SPRINGS, FLORIDA
BROWNING-FERRIS INDUSTRIES, INC.
By:
(Name)
(Title)
By:
(Name)
(Title)
Date:
Date:
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