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HomeMy WebLinkAbout2006 01 23 Regular Item 300.1 Resolution 2006-01 Solid Waste Contract Waste Pro COMMISSION AGENDA ITEM 300.1 Consent Informational Public Hearin Regular x January 23, 2006 Regular Meeting MGR. / DEPT. Authorization REQUEST: City Manager requesting the City Commission to approve the terms of a solid waste contract with Waste Pro of Florida, Inc and adopt via Ordinance 2006-01. PURPOSE: To obtain Commission approval of the terms of a solid waste contract with Waste Pro of Florida, Inc and adopt via Ordinance 2006-01. CONSIDERATIONS: On January 9, 2006 the City Commission considered options for a contract with Waste Pro of Florida, Inc. No motion passed at that meeting in regards to a contract with Waste Pro. However, Commission consensus was reached to select the service type related to semi- automated service. Two contract options for semi-automated service have been offered by Waste Pro and reviewed by staff for Commission consideration (as presented at the January 9, 2006 Commission meeting): OPTION A: a 5-year contract term with a 4 year renewal option (upon mutual agreement) with the rate structure related to semi-automated residential service of$15.85 (per residential unit per month) for collection and disposal and with a 2.5% maximum CPI factor for collection only, or OPTION B: a 7-year contract term with a 2 year renewal option (upon mutual agreement) with the rate structure related to semi-automated residential service of$15.76 (per residential unit per month) for collection and disposal and with a 3.0% maximum CPI factor for collection only. Further, during the January 9,2006 meeting, Commission discussion ensued in regards to the possibility of an 8-year contract with a 4 year renewal option (upon mutual agreement) with the rate structure related to semi-automated residential service of$15.76 (per residential unit per month) for collection and disposal with a 3.0% maximum CPI factor. A motion was then made to "direct the City Manager to enter into an eight year agreement with a four year option utilizing all other terms as originally described." This motion did not pass. Additionally, Waste Pro has subsequently reviewed this 8-year, with a 4-year renewal option, offer and concluded that they are unable to accept it. In accordance with Section 4.14 (4) of the City Charter, the City Commission is required to adopt an ordinance in order to "grant or renew or extend a franchise" agreement. FUNDING: The new contract will be funded from the new customer rate structure. RECOMMENDATION: The City Manager recommends the Commission take the following action: 1. Choose either: a. OPTION A: a 5 year contract term for semi-automated residential service with a 4 year renewal option (upon mutual agreement), first year collection and disposal rate of $15.85, and 2.5% maximum annual CPI on collection services. b. OPTION B: a 7 year contract term for semi-automated residential service with a 2 year renewal option (upon mutual agreement), first year collection and disposal rate of $15.76, and a 3.0% maximum annual CPI on collection services. 2. Approve all other terms and conditions related to the contract. 3. Adopt Ordinance 2006-01. ATTACHMENTS: Ordinance 2006-01, including "Exhibit A" to that Ordinance: Solid Waste Agreement with Waste Pro of Florida, Inc. COMMISSION ACTION: ORDINANCE NO. 2006-01 AN ORDINANCE OF THE CITY COMMISSION OF THE CITY OF WINTER SPlUNGS, FLORIDA, ADOPTING A NEW SOLID WASTE FRAl\.CHISE AGREEMENT WITH WASTE PRO OF FLORIDA, INC., A FLORIDA CORPORATION, EFFECTIVE MARCH 1, 2006; PROVIDING FOR THE REPEAL OF ORDINANCE NUMBER 649 AND ALL OTHER PRIOR INCONSISTENT ORDINANCES AND RESOLUTIONS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the City is granted the authority, under Section 2(b), Article VIII, of the State Constitution, to exercise any power for municipal purposes, except when expressly prohibited by law; and WHEREAS, there is an immediate and continuing need for the collection and disposal of bulk trash, refuse, vegetative waste, recyclable materials, white goods, and construction and demolition debris from residents, busim:sses, an other entities within the municipal boundaries of the City of Winter Springs; and WHEREAS, Waste Pro of Florida, Inc. has the necessary equipment, personnel, and experience to properly collect and dispose of solid waste; and WHEREAS, it appears to be in the best interests of the public health, safety, and welfare of the citizens ofthe City of Winter Springs and its resident businesses and entities to award a franchise to Waste Pro of Florida, Inc. to provide for the collection and disposal of bulk trash, refuse, vegetative waste, and recyclable materials as agreed upon in the attached Solid Waste Agreement, effective March I, 2006; and WHEREAS, the City Commission is required by section 4.14(4) of the City Charter to adopt an ordinance granting, renewing or ext(:nding a franchise agreement; and WHEREAS, the City Commission of the City of Winter Springs, Florida, hereby finds this Ordinance to be in the best interests of the public health, safety, and welfare of the citizens of Winter Springs. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: Section 1. reference. Recitals. The foregoing recitals are hereby incorporated herein by this City of Winter Springs Ordinance No. 2006-01 Page 1 of3 Section 2. Adoption of Solid Waste Agreement. The City Commission of the City of Winter Springs, Florida hereby approves and adopts the Solid Waste Agreement, by and between the City of Winter Springs, Florida and Waste Pro of Florida, Inc., a Florida corporation. A copy of said Agreement is attached hereto as "Exhibit A," and fully incorporated herein by this reference, and shall become effective on March I, 2006. Section 3. Repeal of Prior Inconsistent Ordinances and Resolutions. Ordinance number 649 and all other prior inconsistent ordinances and resolutions adopted by the City Commission, or parts of prior ordinance:s and resolutions in conflict herewith, are hereby repealed to the extent of the conflict. Section 4. Not Incorporated Into Code. This ordinance shall not be incorporated into the Winter Springs City Code. Section 5. Severability. If any section, subsection, sentence, clause, phrase, word or provision of this Ordinance is for any reason held invalid or unconstitutional by any court of competent jurisdiction, whether for substantive, procedural, or any other reason, 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. Section 6. Effective Date. This Ordinance shall become effective immediately upon adoption by the City Commission of the City of Winter Springs, Florida, and pursuant to City Charter. ADOPTED by the City Commission of the City of Winter Springs, Florida, in a regular meeting assembled on the _ day of , 2006. JOHN F. BUSH, Mayor ATTEST: ANDREA LORENZO-LUACES, City Clerk Approved as to legal form and sufficiency for the City of Winter Springs only: ANTHONY A. GARGANESE, City Attorney City of Winter Springs Ordinance No. 2006-0 I Page 2 of3 First Reading: Second Reading: Effective Date: City of Winter Springs Ordinance No. 2006-01 Page 3 of 3 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney SOLID WASTE AGREEMENT THIS AGREEMENT made and entered into this day of ,2006, by and between the CITY OF WINTER SPRINGS, FLORIDA, a Florida Municipal Corporation, located at 1126 E. State Road 434, Winter Springs, Florida 32708 (hereinafter "City") and WASTE PRO OF FLORIDA, INC., a Florida Corporation, located at 2101 West SR 434, Suite 301, Longwood, Florida 32779 (hereinafter "Contractor"). WITNESSETH: WHEREAS, there is an immediate and continuing need for the collection and disposal of bulk trash, refuse, vegetative waste, recyclable materials, white goods, and construction and demolition debris from residents, businesses, and other entities within the municipal boundaries of the City of Winter Springs; and WHEREAS, Contractor has the necessary equipment, personnel, and experience to properly perform the collection and disposal services described herein; and WHEREAS, it appears to be in the best interests of the public health, safety, and welfare of the citizens of the City of Winter Springs and its resident businesses and entities to award a franchise to Contractor to provide for the collection and disposal of bulk trash, refuse, vegetative waste, and recyclable materials upon the terms and conditions more particularly described herein. NOW THEREFORE, in consideration of the mutual covenants, agreements, and consideration contained herein, the City and Contractor agree as hereinafter set forth: 1.0 Recitals. The foregoing recitals are true and accurate and are incorporated herein by reference. 2.0 Definitions. The following words and phrases contained in this Agreement shall have the meaning set forth in this section unless the context clearly indicates otherwise: 2.1 Authorized Representative: Shall mean the City Manager or his designee who shall represent the City in the administration and supervision of the Agreement. The City Manager's designee, if any, shall be appointed in writing, and said appointment may be for the administration and supervision of this Agreement, in whole or in part. 2.2 Biohazardous Waste: Shall mean any solid waste or liquid waste which may present a threat of infection or disease to humans or may reasonably be suspected of harboring pathogenic organisms. The term includes, but is not limited to, non-liquid human tissue and body parts; laboratory and veterinary waste which contain human- Solid Waste Agreement City of Winter Springs / ~aste Pro of Florida, Inc. Page-ii-of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney disease-causing agents; used or contaminated disposable sharps (e.g. hypodermic needles, syringes, broken glass, and scalpel blades), human blood, and human blood products and body fluids; and other materials which in the opinion of the Department of Health and Rehabilitative Services represent a significant risk of infection to persons outside the generating facility. 2.3 Biological Waste: Shall mean solid waste that cause or has the capability of causing disease or infection and includes, but is not limited to, Biohazardous waste, diseased or dead animals, and other waste capable of transmitting pathogens to humans or animals. 2.4 Bulk Trash: Shall mean any non-vegetative item which cannot be containerized, bagged or bundled; including, but not limited to, inoperative and discarded bicycles, household goods, and furniture. Bulk trash shall not include white goods and shall not be commingled with vegetative waste. 2.5 City: Shall mean the City of Winter Springs, a Florida Municipal Corporation located in Seminole County, Florida, acting through its City Commission or Authorized Representative. 2.6 City Commission: Shall mean the City Commission of the City of Winter Springs, Florida. 2.7 City Code or Code: Shall mean the Code of Ordinances of the City of Winter Springs, Florida. 2.8 Collection and Disposal Service: Shall mean the process whereby refuse, bulk trash, vegetative waste, or recyclable material is collected and transported for disposal by Contractor under this Agreement to a designated facility or some other approved disposal facility. 2.9 Collection and Disposal Equipment: Shall mean any vehicle and equipment that are used by Contractor to perform the collection and disposal service required by this Agreement including, but not limited to, all vehicles, mechanical containers, mechanical carts, and all other equipment. 2.10 Collection Vehicle: Shall mean any vehicle that is used by Contractor to perform the collection and disposal service required by this Agreement. Solid Waste Agreement City of Winter Springs I.~ aste Pro of Florida, Inc. Page-iii of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 2.11 Collection Regulations: Shall mean any local, state, and federal laws and administrative rules that regulate any and all aspects of collection and disposal services, as may be in existence during the term of this Agreement. 2.12 Commercial Service: Shall herein refer to the collection and disposal service provided to business establishments, churches, schools, multiple dwelling units, office buildings and other commercial establishments. 2.13 Commercial Trash: Shall mean any and all accumulations of paper, rags, excelsior or other packing materials, furniture, appliances, wood, paper or cardboard boxes or containers, sweepings, and any other similar accumulation not included under the definition of garbage, generated by the operation of stores, offices, and other commercial establishments. Commercial trash shall not include special waste. 2.14 Complaint: Shall mean verbal or written indication from a customer or the Authorized Representative of a problem with any aspect of the collection and disposal services provided by Contractor pursuant to this Agreement, whether or not the problem results in a service call by Contractor. 2.15 Construction and Demolition Debris: Shall have the same meaning proscribed in 62- 701.200(27), Florida Administrative Code, which at the effective date of this Agreement means: Discarded materials generally considered to be not water soluble and non-hazardous in nature, including but not limited to steel, glass, brick, concrete, asphalt material, pipe, gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure, including such debris from construction of structures at a site remote from the construction or demolition project site. The term includes rocks, soils, tree remains, trees, and other vegetative matter which normally results from land clearing or land development operations for a construction project; clean cardboard, paper, plastic, wood, and metal scraps from a construction project. Further, except as provided in Section 403.707(12)(j), Florida Statutes, this term shall also include unpainted, non-treated wood scraps from facilities manufacturing materials used for construction of structures or their components and unpainted, non-treated wood pallets provided the wood scraps or pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets implements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste; and de minimis amounts of other nonhazardous wastes that are generated at construction or demolition projects, provided such amounts are consistent with best management practices of the Solid Waste Agreement City of Winter Springs / .Waste Pro of Florida, Inc. Page-iv of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney construction and demolition industries. Mixing of construction and demolition debris with other types of solid waste will cause it to be classified as other than construction and demolition debris. 2.16 Contract or Agreement: Shall mean this Contract, and any amendments and renewals from time to time, executed by the City and the Contractor for the performance of the collection and disposal services described herein. 2.17 Contractor or Franchisee: Shall mean Waste Pro of Florida, Inc., a Florida Corporation, and its directors, officers, employees, agents, contractors, and assigns. 2.18 CPI: Shall mean the Consumer Price Index (1982-84= 1 00) for the U.S. City average - all items - all urban customers - 5outll, papulation k,,6 than 50,000, published by the United States Department of Labor, Department of Labor Statistics. 2.19 Customer: Shall mean City and any person, establishment or entity who receives, is required to receive, or requests collection and disposal services within the service area. 2.20 Designated Facility: Shall mean a disposal processing, recovery, recycling or transfer facility designated by the Authorized Representative. 2.21 Disposal Costs: Shall mean the "tipping fees" or landfill costs charged to the Contractor by others for the disposal of sotid-waste collected by the Contractor in performing collection and disposal services provided hereunder. 2.22 Dispute: Shall mean a disagreement between Contractor and City concerning a question of fact, interpretation of this Agreement, Contractor's compliance and performance with the terms and conditions of this Agreement, and Contractor's level of service provided while performing collection and disposal services. A dispute does not include a disagreement concerning an annual evaluation as provided in paragraph 9.3. 2.23 Franchise: Shall mean an initial authorization or renewal thereof, voluntarily entered into by the Contractor and issued by the City, whether such authorization is referred to as a franchise permit, license, ordinance, resolution, agreement, contract or otherwise, which authorizes collection and disposal services within the service area. All Franchises shall be presumed to be non-exclusive unless otherwise specifically authorized by City in writing. Any such authorization, in whatever form granted, shall not mean or include any franchise or permit required for the privilege of transacting and carrying on a business within the service area as required by other Code provisions and ordinances of the City. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page-V-of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 2.24 Garbage: Shall mean all putrescible waste which generally includes, but is not limited to, kitchen and table food waste, animal, vegetative, food or any organic waste that is attendant with or results from the storage, preparation, cooking or handling offood materials whether attributed to residential or commercial activities. Garbage shall not include special waste. 2.25 Hazardous Waste: Shall mean waste defined as hazardous waste pursuant to local, state, and federal law. 2.26 Household Trash: Shall mean the accumulation of paper, excelsior, rags, wooden or paper boxes and containers, sweepings, broken toys, tools, utensils, whole automobile tires (not to exceed an amount permitted by the designated facility), construction and demolition debris from "do-it-yourself' projects not to exceed two cubic yards per customer per collection, and all other accumulations of a similar nature other than garbage and vegetative waste, which are usual to housekeeping, do- it-yourself home improvements, and home occupations (as defined by City Code). 2.27 Mechanical Cart: Shall mean a plastic sixty (60) or ninty (90) plastic ninety (96) gallon toter cart with wheels dumped mechanically by a collection vehicle and able to be serviced by Contractor. 2.28 Mechanical Container: Shall mean and include plastic or metal containers 2 cubic yards and greater dumped mechanically by a collection vehicle and able to be serviced by Contractor including, but not limited to, dumpsters, front load and compaction type containers. However, Mechanical container does not include mechanical carts. 2.29 Multiple Dwelling Units: Shall mean any building containing three (3) or more permanent living units, not including motels and hotels, and any mobile home park, which, at the sole discretion of the City, receives a dumpster or roll off service rather than curbside individual services. 2.30 Performance and Payment Bond or Letter of Credit: Shall mean the form of security approved by the City and furnished by the Contractor as required by this Contract as a guarantee that the Contractor will perform the collection and disposal services in accordance with the terms of the Contract. 2.31 Recyclable Materials: Shall mean newspapers (including inserts), magazines, mixed office paper, aluminum cans, steel cans, tin cans, plastic containers (coded 1, 2 or 3),cereal/snack boxes without wax paper lining, junk mail, amber, clear and green glass bottles and jars, cardboard and other solid waste materials added upon written Agreement between the City and the Contractor, when such materials have been either diverted from the remaining solid waste stream or removed prior to their Solid Waste Agreement City of Winter Springs /Waste Pro of Florida, Inc. Page-Vi-of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney entry into the remaining solid waste stream. Recyclable materials shall not include containers that previously held toxic material, cardboard boxes that have not been flattened and stacked under the recycle bin, and plastic grocery bags. 2.32 Recycling: Shall mean any process by which recyclable materials are collected, separated, and processed for purposes of extracting or reusing the raw materials contained in the recyclable materials. 2.33 Recycling Container: Shall mean a fourteen (14) gallon recycling bin used by residential customers and one or more forty- five (45), sixty (60) or ninety (90) gallon recycling center bins for commercial and multiple dwelling unit customers, or other types of recycling bins approved by the Authorized Representative, to store recyclable materials for collection and disposal service. 2.34 Refuse: Shall mean commercial trash, household trash and garbage, or a combination or mixture thereof. 2.35 Refuse Container: Shall mean a plastic ninety-six (96) gallon wheeled plastic toter provided by the Contractor for refuse storage and disposal. Or gavanized metal can, of a type which is commonly sold as a galbage can,which does not exceed thirty-two (32) gallon capacity or fifty (50) pounds in weight when full. Each Such can shall have two (2) handles upon the sides of the can or a bail by which it may be lifted by a person and shall have a tight fitting top and shall also mean disposal plastic or paper bags (with or without sack holders an not less than1 mm thick) of a type which is acccptable to be used for refuse storage and disposal. 2.36 Rolloff Container: Shall mean a dumpster which is used for the collection and disposal of construction and demolition debris or solid waste. The rolloff container may be of the open or enclosed variety and is typically hoisted onto a specifically equipped truck for transporting the construction and demolition debris or solid waste to a designated facility. 2.37 Residential: Shall mean single family detached homes, duplexes and multifamily dwelling units and mobile home parks with curbside individual service. 2.38 Residential Service: Shall mean collection and disposal services provided to persons occupying residential dwelling units who are not receiving commercial service under this Agreement. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page I of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 2.39 Service Area: Shall mean the area within the municipal boundaries of the City of Winter Springs, Florida, as may be modified from time to time pursuant to Chapter 171, Florida Statutes. 2.40 Sludge: Shall mean the accumulated solids, mixed liquids, residues, and precipitates generated from wastewater treatment, water supply treatment, air pollution control facilities, septic tanks, grease traps, privies, or similar waste disposal appurtenances. 2.41 Solid Waste: Shall mean bulk trash, refuse, vegetative waste, recyclable materials, and white goods or any combination thereof. 2.42 Special Waste: Shall mean solid wastes that require special handling and management by Contractor, and which are not accepted at the designated facility or other disposal facility or which are accepted at the designated facility or other disposal facility at higher rates than is charged for refuse, including, but not limited to, asbestos, whole tires which do not constitute household trash, used oil, lead-acid batteries, and biohazardous wastes. 2.43 Transfer means the disposal by this Agreement, directly or indirectly, by gift, assignment, voluntary sale, merger, consolidation or otherwise, of twenty percent (20%) or more at one time of the ownership or controlling interest of Contractor, or thirty-five percent (35%) cumulatively over the term of the Agreement of such interests to a corporation, partnership, limited partnership, trust or association, or person or group of persons acting in concert or a change in control. Transfer shall not include any transfer or assignment to a person controlling, controlled by, or under the same common control as the Contractor at the effective date of this Agreement. 2.44 Vegetative Waste: Shall mean any and all vegetative matter resulting from routine and normal yard and landscaping maintenance generated on site and shall include materials such as tree and shrub materials, grass clippings, palm fronds, Christmas trees, tree branches and similar vegetative matter usually produced in the care of lawns, landscaping and yards. Vegetative waste shall include any identified excess piles considered collectible only by means of a "cherry Picker" type collection vehicle. 2.45 White Goods: Shall mean any non-vegetative item which cannot be containerized, bagged, or bundled such as inoperative and discarded refrigerators, ranges, toilets, washers, dryers, bath tubs, water heaters, sinks, and other similar appliances. White goods shall not include bulk trash and shall not be commingled with vegetative waste or bulk trash. 3.0 Grant of Franchise. There is hereby granted to Contractor an exclusive right, privilege or franchise to collect and transport for disposal solid waste and construction and demolition Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 2 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney debris within the service area, during the term of this Agreement and subject to the limitations and conditions as set forth in this Agreement. All rights granted to Contractor hereunder shall be subject to the continuing right of the City to regulate the City's rights-of- way and to protect the public health, safety, and welfare as shall, at the sole discretion of the City, be in the public's interest. The grant of this franchise shall not affect the City's right to provide collection and disposal services not expressly and unambiguously provided hereunder to Contractor on an exclusive basis or during an emergency. In the event of any conflict or ambiguity hereunder as to whether a collection and disposal service is exclusively granted to Contractor, the conflict or ambiguity shall be construed as granting Contractor a non-exclusive franchise with respect to the collection and disposal service at issue. Nothing under this Agreement shall be construed as providing any franchise for collection and disposal services not expressly provided for hereunder. 4.0 Scope of Work. It is the intent of this franchise to provide for the exclusive collection and disposal service of solid waste and construction and demolition debris within the service area, with the exception of the exclusions specifically set forth in this Agreement. Contractor shall perform the collection and disposal service under the following terms and conditions, all of which shall be a material part of this Agreement: 4.1 General Requirements: Contractor shall fully comply with the following: A. Laws and Regulations. Contractor shall be familiar and comply with all collection regulations and shall be solely responsible for determining, absorbing, and adjusting to the financial and practical impact such regulations have on its operation, subject to Contractor's ability to petition the City Commission for a rate adjustment pursuant to paragraph 5.6 of this Agreement. B. Labor, Insurance, Equipment, etc. Contractor shall provide, at its sole cost and expense, all labor, insurance, supervision, machinery, equipment, plant and office buildings, trucks, and other tools, equipment, and accessories necessary to perform the collection and disposal services in accordance with the level of service required by this Agreement. C. Protection of Public/Private Property and Utilities. Contractor shall conduct his work in such a manner as to avoid damage to private or public property and shall repair or pay for any damage caused by its operations, except reasonable wear and tear to roadways. Contractor shall have knowledge of all existing utilities and it shall operate with due care in the vicinity of such utilities and shall repair or have repaired, at no additional cost to the customer or utility owner, any breakage or damage caused by its operations. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 3 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney D. Spillage. Contractor shall not cause any spillage of solid waste to occur upon private or public property or the rights-of-way wherein the collection and disposal service occurs. Collection and disposal service shall be performed by Contractor to avoid leaking, spilling, and blowing of solid waste. In the event of any spillage caused by Contractor, Contractor shall immediately clean up all spillage at its expense. In order to be the first responder to spillage incidents, Contractor shall maintain a certified spill cleanup kit, acceptable to the City, on each and every vehicle servicing the City including the vehicles used by supervisors. Such kit shall include at a minimum a pitch fork, broom, absorbent pads, boom, and shovel to pick up and contain spillage. In addition, Contractor shall immediately clean up all fluid spillage from collection equipment to the maximum extent feasible and promptly notify the Authorized Representative of all such fluid spillage. E. Designated Facility. All solid waste shall be hauled to a designated facility as directed in writing by the Authorized Representative and disposed of at those facilities. At present such designated facility includes the Seminole County disposal facility and the GEL facility in Volusia County for construction & demolition debris. F. Holidays. Unless otherwise directed by the Authorized Representative in writing, Contractor shall provide collection and disposal service on holidays observed by the City, except Memorial Day, Independence Day, Labor Day, Thanksgiving, Christmas, and New Years Day. Any disposal and collection service that would have been regularly provided, but were not provided at the direction of the Authorized Representative, shall be provided the next regularly scheduled pick-up day after the holiday. Further, unless otherwise directed by the Authorized Representative in writing, Contractor shall maintain the frequency of collection required by paragraphs 4.2(A), 4.3(A), and 4.4(A) during holiday weeks. Contractor shall inform the customers of any variance in the collection schedules resulting from a holiday at least five (5) days prior to each holiday. G. Contractor's Office. Contractor shall provide, at its sole cost and expense, a suitable office located within reasonable proximity to the service area. Within said office, Contractor shall maintain, during Contractor's normal working hours, a staff and a local telephone number where complaints and requests for collection and disposal service shall be received, recorded in a log, and handled during Contractor's normal working hours. The office shall also provide for a means to promptly handle emergency complaints and requests for service. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 4 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney H. Litter and Dangerous Animals. Contractor shall not be responsible for scattered solid waste which can be categorized as litter unless the same has been caused by Contractor's acts or omissions, in which case, all such scattered solid waste shall be picked up immediately by Contractor. Contractor shall maintain sufficient equipment on each collection vehicle (e.g. pitch fork, broom, shovel) to pick up such scattered solid waste. Contractor shall not be required to expose themselves to the danger of being bitten by vicious dogs and animals, roaming at large, in order to accomplish collection and disposal services. However, in the event Contractor is unable to provide collection and disposal services to a customer under such conditions, Contractor shall immediately notify the customer, in writing, of such conditions and its inability to provide such collection and disposal services. I. Hours and Days. Except for unusual circumstances approved by the Authorized Representative in writing or as otherwise provided elsewhere in this Agreement, Contractor shall not perform collection and disposal services prior to 7:00 A.M. or after 7:00 P.M., E.S.T., Monday through Saturday. No collection and disposal services shall normally occur on holidays designated in paragraph 4.1(F) or on Sundays unless Sunday pickup is authorized in writing by the Authorized Representative. J. Tagging Solid Waste Improperly Containerized. In the event solid waste is not containerized, bundled, or piled pursuant to this Agreement and Contractor does not perform collection and disposal services regarding such solid waste, Contractor shall tag the container, bundle, or pile or subject property with a written notice containing a brief explanation why the container, bundle, or pile was not collected and disposed of and promptly notify the Authorized Representative. The solid waste shall be collected and disposed of at the next regularly scheduled collection day, provided the solid waste is properly containerized, bundled, or piled. K. Customer Report; City Billing Database. Contractor and City agree that the monthly customer report required to be maintained and filed by Contractor pursuant to paragraph 19.3(A) is vital to keeping an accurate account of all customers receiving collection and disposal services under this Agreement and for ensuring accurate billing of customers by City. To this end, Contractor and City agree that each party must diligently maintain an accurate, up-to-date list of customers and the collection and disposal services received by those customers. The Contractor shall promptly notify the City of any new and existing Customers requesting collection and disposal services and any current Customers terminating such services. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 5 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney L. Handling of Freon White Goods/Solid Waste. Contractor shall be responsible for properly disposing of all white goods and solid waste that contain freon in accordance with law. 4.2 Residential Service. Contractor shall provide residential collection and disposal service to residential customers as follows: A. Frequency of Collection. Contractor shall provide collection and disposal services for household trash and garbage at least two (2) times per week, with collections at least three (3) days apart, and for bulk trash, vegetative waste, and recyclable materials not less than once per week. All collection route cycles shall be subject to the prior written approval of the Authorized Representative. Special pick-ups, including pick-ups of white goods, shall be provided on an "as needed basis" and shall be allowed on any day, except Sundays. B. Point of Collection. Collection of household trash, garbage, bulk trash, vegetative waste, and recyclable materials shall be within five (5) feet of curbside. In the event an appropriate location cannot be agreed upon by the customer and Contractor, the Authorized Representative shall designate the location. The Contractor and Authorized Representative shall mutually agree upon point of collection locations for non-conforming service areas. For customers that are need of special assistance (e.g., certified by a doctor as disabled and are unable to place household trash, garbage, or recyclable materials at the curb), the Authorized Representative, at his discretion, shall establish, and notify the Contractor of, special handling instructions for the benefit of the customer. Such special handling instructions may include collection from the customer's garage door or some other location acceptable to the customer. C. Containers and Preparation. 1. Household Trash and Garbage. Contractor shall be required to provide collection and disposal services for all household trash and garbage generated from residential customers which has been properly prepared and stored in a refuse container or mechanical cart. If mechanical carts are used, Contractor shall be required to provide an adequate number of mechanical carts at Contractor's expense. 2. Recyclable Materials. Contractor shall be required to provide collection and disposal services for all recyclable materials generated from residential customers which have been properly prepared and stored in a recycling container. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 6 of 48 Final Draft: 1/2012006 Prepared by Anthony A. Garganese, City Attorney 3. Vegetative Waste. Contractor shall be required to provide collection and disposal services for all vegetative waste generated from residential customers provided tree limbs, tree trunks, palm fronds, etc., shall be cut in lengths of no greater than five (5) feet in length and shall not exceed fifty (50) pounds per limb, trunk, frond, or bundle thereof. Additionally, vegetative waste shall be properly prepared and stored in refuse containers, specialized vegetative trash bags approved by the designated facility, or placed in orderly piles. A "Cherry Picker" type collection vehicle shall be used to collect excess piles of vegetative waste in excess of the maximum length and poundage set forth in this paragraph. If an excess pile exists, the Contractor's route driver shall identify the excess pile and immediately notify his supervisor of the date the pile is identified and the location and size of the pile. The supervisor shall then immediately provide said information to the Authorized Representative. Within three (3) business days, the Contractor shall collect and dispose of the excess pile regardless of the diameter and weight of the vegetative waste. 4. Bulk Trash and White Goods. Contractor shall be required to provide collection and disposal services for all bulk trash and white goods generated from residential customers regardless of whether they are containerized. 4.3 Commercial Service. Contractor shall provide commercial collection and disposal service to commercial customers as follows: A. Frequency of Collection. Contractor shall provide collection and disposal services for commercial trash and garbage at least two (2) times per week, and more frequently as mutually agreed to by Contractor and the commercial customer and/or required by the City, and for vegetative waste and recyclable materials (if vegetative waste and/or recyclable material service is requested by customer) not less than once per week or more frequently as required by the City. Special pick-ups, including pick-ups of white goods, shall be provided on an "as needed basis" and shall be allowed on any day, except Sundays. B. Point of Collection. Collection of commercial trash, garbage, vegetative waste, and recyclable material shall be at a location mutually agreed upon by the customer and Contractor, and approved by the Authorized Representative. If mutual agreement cannot be reached between customer and Contractor, the Authorized Representative shall designate the location. However, in the Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 7 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney event the location was approved as part of a City or County site plan or development review process, the location shall be as shown on the final approved site or development plan. To the maximum extent feasible, the designated location shall be located in a place that provides for safe, convenient, and expedient access by Contractor. C. Containers and Preparation. 1. Commercial Trash and Garbage. Contractor shall be required to provide collection and disposal services for all commercial trash and garbage generated by commercial customers which has been properly prepared and stored in a refuse container, mechanical cart, mechanical container, rolloff container, or compactor under the following conditions: a. Upon approval of the City, Customers shall be permitted to use refuse containers provided the amount of commercial trash and garbage per collection can be stored in a maximum of four (4) refuse containers or two (2) mechanical carts; otherwise, customers shall be required to use one or more of the following: mechanical containers, compactor service, or rolloff containers. b. Contractor shall be required to provide an adequate number of mechanical containers, mechanical carts, compactors, or rolloff containers to customers. Mechanical containers, mechanical carts, and rolloff containers shall be provided at Contractor's sole expense and shall remain the property of Contractor, unless the mechanical container, mechanical carts, or rolloff container is owned by the customer. Compactors shall be provided as mutually agreed to by Contractor and customer and City. 2. Recyclable Materials. Contractor may provide collection and disposal services for recyclable materials generated from commercial customers who specifically request such service or as required by City. If requested, recyclable materials shall be properly prepared and stored in a recycling container. 3. Vegetative Waste. Contractor shall be required to provide collection and disposal services for all vegetative materials generated from commercial customers who specifically request such service or as Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 8 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney required by City. Ifrequested, vegetative waste shall be containerized, prepared, and collected pursuant to paragraph 4.2(C)(3) of this Agreement. If required by City, vegetative waste shall be collected and disposed of regardless of how it is containerized and prepared. 4.4 Multiple Dwelling Units. Contractor shall provide collection and disposal service to multiple dwelling unit customers as follows: A. Frequency of Collection. Contractor shall provide collection and disposal services for household trash and garbage at least two (2) times per week, with collections at least three (3) days apart, and for bulk trash and recyclable materials not less than once per week. All collection route cycles shall be subject to the prior written approval of the Authorized Representative. Pick- ups, including pick-ups of white goods, shall be provided on an "as needed basis" and allowed on any day, except Sundays. B. Point of Collection. Collection of household trash, garbage, bulk trash, vegetative waste, and recyclable materials shall be at a location mutually agreed upon by the customer and Contractor, and approved by the Authorized Representative. If mutual agreement cannot be reached between customer and Contractor, the Authorized Representative shall designate the location. However, in the event the location was approved as part of a City or County site plan or development review process, the location shall be as shown on the final approved site or development plan. To the maximum extent feasible, the designated location shall be located in a place that provides for safe, convenient, and expedient access by Contractor. C. Containers and Preparation. 1. Household Trash and Garbage. Contractor shall be required to provide collection and disposal services for all household trash and garbage generated by multiple dwelling units which has been prepared and stored in a refuse container, mechanical carts, mechanical container, or compactor under the following conditions: a. The multiple dwelling unit customer shall be permitted to use individual refuse containers or mechanical carts for each dwelling unit only upon City approval, otherwise, customers shall be required to use mechanical containers or compactor service. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 9 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney b. Contractor shall be required to provide an adequate number of mechanical containers or compactors to customers who request or exceed the maximum number of refuse containers or mechanical carts. Mechanical containers and mechanical carts (if authorized by the City) shall be provided at Contractor's sole expense and shall remain the property of Contractor, unless the mechanical container is owned by the customer. Compactors shall be provided as mutually agreed to by Contractor and customer. 2. Recyclable Materials. Contractor shall be required to provide collection and disposal services for all recyclable materials generated from multiple dwelling unit customers which have been properly prepared and stored in a recycling container. 3. Vegetative Waste. Contractor shall be required to provide collection and disposal services for all vegetative materials generated from multiple dwelling unit customers who specifically request such service or as required by City. If requested, vegetative waste shall be containerized, prepared, and collected pursuant to paragraph 4.2(C)(3) of this Agreement. If required by City, vegetative waste shall be collected and disposed of regardless of how it is containerized and prepared. 4. Bulk Trash and White Goods. Contractor shall be required to provide collection and disposal services for bulk trash and white goods generated from multiple dwelling unit customers regardless of whether they are containerized. 4.5 City Controlled Property. As requested by the Authorized Representative, Contractor shall be required to provide collection and disposal services for all refuse, bulk trash, white goods, vegetative waste, and recyclable materials generated by City at properties owned, leased, or otherwise controlled by City. In addition, Contractor shall provide such collection and disposal services for any and all City sponsored special events as agreed to by City and Contractor, and for all City public receptacles located along or in public rights-of-way, sidewalks, beaches, and public recreational facilities. Such collection and disposal services shall be at no charge or expense to City. A. Frequency of Collection. Unless otherwise directed by the Authorized Representative in writing, Contractor shall provide collection and disposal services for refuse at least two (2) times per week, with collections at least Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 10 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney three (3) days apart, and for bulk trash, vegetative waste, and recyclable materials not less than once per week. All collection route cycles shall be subject to the prior written approval of the Authorized Representative. Special pick-ups, including pick-ups of white goods, shall be provided on an "as needed basis" and shall be allowed on any day, except Sundays. B. Point of Collection. Collection of refuse, bulk trash, vegetative waste, and recyclable materials shall be at locations designated by the Authorized Representative, with consideration given for the safe, convenient, and expedient access by Contractor. C. Containers and Preparation. 1. Refuse. Contractor shall be required to provide collection and disposal services for refuse generated by City which has been properly prepared and stored in a refuse container, mechanical cart, or mechanical container as determined by the Authorized Representative. Contractor shall be required to provide all mechanical containers and mechanical carts at Contractor's expense. 2. Recyclable Materials. Contractor shall be required to provide collection and disposal services for all recyclable materials generated by City which have been properly prepared and stored in a recycling container or other container mutually agreed to by the Authorized Representative and Contractor. 3. Vegetative Waste. Contractor shall be required to provide collection and disposal services for all vegetative waste generated by City provided the vegetative waste is containerized, prepared, and collected pursuant to paragraph 4.2(C)(3) of this Agreement. Notwithstanding, Contractor and City may mutually agree to some other method of preparation and storage for significant City projects which generate significant amounts of vegetative waste. 4. Bulk Trash and White Goods. Contractor shall be required to provide collection and disposal services for all bulk trash and white goods generated by City regardless of whether they are containerized. 4.6 Biohazardous, Biological, Hazardous, Sludge, and Special Waste. Contractor shall not be responsible for collection and disposal services for biohazardous waste, Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 11 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney biological waste, hazardous waste, sludge, and special waste under this Agreement. 4.7 Construction and Demolition Debris Service. Contractor shall provide collection and disposal service of construction and demolition debris to residential, multiple dwelling unit, and commercial customers as follows: A. Exclusive Right. Contractor shall provide and have the exclusive right to provide collection and disposal services for construction and demolition debris utilizing rolloff containers, as that term is defined in paragraph 2.36 of this Agreement, or other appropriate containers. B. Frequency of Collection. Contractor shall provide collection and disposal services for construction and demolition debris utilizing rolloff containers or other appropriate containers to customers that specifically request such service or as required by City. Said collection and disposal services shall be provided as frequently as mutually agreed to by Contractor and the customer or as required by the Authorized Representative or City Code to protect the public health, safety, and welfare. C. Point of Collection. Collection of construction and demolition debris shall be at a location mutually agreed upon by the customer and Contractor; provided, collection shall be located within the boundary of the property served, unless otherwise approved by the Authorized Representative. D. Containers and Preparation. Contractor shall be required to provide one or more rolloff containers or other appropriate containers of a size and number mutually agreed to by Contractor and customer. 4.8 Code Enforcement. Upon request of the Authorized Representative, Contractor shall assist the City in its code enforcement efforts by providing collection and disposal service of solid waste and construction and demolition debris located on real property in violation of the City Code at no cost to the City, not to exceed ten (10) twenty (20) yard rolloff containers per year. 4.9 Automated Cart Pro2ram. At the City's request, Contractor shall be required to implement a residential automated Cart Program in accordance with terms and conditions mutually agreed to by the Contractor and the City. 4.10 Tire Collection. Contractor shall provide weekly tire collection and disposal services to residential customers at no additional charge, provided no more than four (4) tires per household per year. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 12 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 4.11 Special Pickup Services. Customers can request that Contractor provide special handling and management of solid waste not covered under the general pick-ups required by this Agreement, including special pickups for items such as asbestos, white goods, waste tires, used oils, lead free batteries, construction and demolition debris, ash residue, yard waste and biological waste. All such requests shall be billed directly to the customer. 5.0 Rates and Charges; Compensation to Contractor; Franchise Fee Billing. 5.1 Rates; Compensation to Contractor. For collection and disposal services provided under this Agreement, Contractor agrees that the rates shall be as set forth in a Rate Resolution adopted by the City Commission of Winter Springs. Exhibit "I." 5.2 Consumer Price Index Adjustment. The rates in paragraph 5.1 shall remain unchanged during the term of this Agreement unless the Contractor petitions the City for a rate adjustment in accordance paragraphs 5.6 or 5.8. If a rate adjustment is approved by the City Commission based on a change in the CPI, each new rate shall be computed pursuant to the following mathematical formula: New Rate = [CPI2 - CPIl] + 1 x Current Rate CPIl "CPIl" The published CPI for the month of October of the preceding year. "CPI2" The published CPI for the month of October for the year in which the rate is being adjusted. Adjustments to the prices made in accordance with this subsection are intended to reflect changes in the purchasing power of a given amount of money expressed in dollars. Under no circumstances shall the CPI adjustment exceed two and one-half (2 Yz) percent in any given year. Moreover, the CPI adjustment shall not be applied to Disposal Costs. Disposal Costs shall be a one hundred pass through cost and shall be adjusted accordingly only upon changes in land fill tipping fees. IfCPIl and CPI2 are not expressed in relation to the same base period or if a material change is made in the method of establishing CPI, the City and the Contractor shall make an appropriate statistical adjustment or conversion. If the CPI is discontinued, the City and the Contractor shall mutually select another index published by the United States Government or by a reputable publisher of financial and economic indices. 5.3 Billing Customers by City. Customer billing shall be established and enforced by City Code. The City shall provide the customer billing for all collection and disposal Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 13 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney services provided by Contractor under this Agreement, unless otherwise specifically stated herein. City shall perform said billing by means and at times deemed appropriate by City. Contractor shall fully cooperate with City in customer billing. 5.4 Billing and Payment Procedure. Unless otherwise provided by the Authorized Representative, customer billing and payment to Contractor shall be in accordance with the following procedure: A. The City shall provide all Customer billing for residential collection and disposal services provided under this Agreement by adding a line item on the City's monthly utility bill. Contractor shall, however, provide Customer billing when special rates and services apply, as approved by the City, and for commercial service. B. On a quarterly basis, the City shall provide to the Contractor an updated assessment roll or customer list setting forth the total number of, and address of each, residential collection units to be served under this Agreement. In addition, the City shall provide Contractor with monthly notification of new residential certificates of occupancy issued in the preceding month and City will pay Contractor for the new residences the next full month following notification. C. Contractor shall be paid by the City based on the number of residential collection units on the assessment roll or customer list. Payment shall be made by the City no later than the 15th day of each month for collection and disposal services provided by Contractor during the preceding month. Payment shall also be made based on the fees that are collected by the City. The Franchise Fee charged in accordance with paragraph 5.5 herein shall be directly billed to the customer and collected by City. D. Should the City or Contractor discover that the City is erroneously paying for collection and disposal services to a non-existent residential collection unit, or alternatively, Contractor is providing such services to residential collection unit not listed on the most recent assessment roll or customer list, the discovering party shall immediately notify the other party. Upon verification by the other party that the omission is correct, the City's next payment to the Contractor shall be accordingly increased for each non-listed unit or decreased for each non-existent unit. E. Contractor shall direct bill all commercial customers and customers not billed by the City. The Contractor shall provide the City with a monthly report regarding the collection and disposal services provided to such customers. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 14 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney The report shall be in a form acceptable to the City and shall be delivered no later than the fifteenth (15th) of each month for the preceding month's services. The report shall include at a minimum the customer address, the collection and disposal services provided, and the amount paid by the customer for said services. Any amount of money collected by Contractor on behalf of the City shall be remitted to the City along with said report including, but not limited to any franchise fees authorized under this Agreement. 5.5 Franchise Fee. At the City Commission's sole and absolute discretion, the City reserves the unconditional right to charge Contractor, from time to time, a Franchise Fee equal to an amount permitted by law. The Franchise Fee shall not be construed as a tax, but shall be considered a payment to the City in exchange for the rights and privileges granted by this Franchise. The Franchise Fee shall be passed along to the customer and remitted by customer directly to City pursuant to paragraph 5.4(C) or remitted by Contractor to the City pursuant to paragraph 5.4(E). At the effective date of this Agreement, Contractor acknowledges and agrees to pay a Franchise Fee equal to ten (10%) percent of all Contractor's gross monthly billings related to all collection and disposal services directly billed by Contractor under this Agreement including, but not limited to, commercial, special residential services and construction and demolition debris services. 5.6 Contractor's Petition for a Rate Adjustment. The Contractor may petition the City to adjust the rates in paragraph 5.1 herein based upon unusual and unanticipated increases in the cost of doing business, including but not limited to a change in any collection regulation or change in the CPI. Any such request shall be supported by full documentation establishing the increase in operating costs and the reasons therefor. The City shall be entitled to audit the Contractor's financial and operational records directly related to the Contractor's request in order to verify the increase in costs and the reasons therefor. The Contractor's request may be made annually in writing, beginning the second year of this Agreement, and no later than ninety (90) days prior to the anniversary date of this Agreement, and shall contain reasonable proof and justification to support the need for the rate adjustment. The City may request from the Contractor, and the Contractor shall provide, such further information within its possession as may be reasonably necessary in making its determination. The City Commission shall approve or deny the request (without penalty), in whole or in part, at its sole and absolute discretion, within sixty (60) days of receipt of the request and all other additional information required by the City. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page I5 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 5.7 Landfill Tipping Fees. Any and all landfill tipping fees charged by Contractor to the City shall not exceed the amount actually charged or offered in writing by Seminole County to the City for the Seminole County Landfill, regardless of whether the solid waste is disposed of at the Seminole County landfill; except, however, Contractor may take construction and demolition debris to other licensed and suitable landfills and tipping fees charged for demolition and construction debris shall be equal to the amount charged by the GEL land fill facility in Volusia County, Florida. As provided in Paragraph 5.2, landfill tipping fees shall not be subject to a CPI adjustment. Contractor disposes of Residential Class I and Class III landfill tipping fees shall be calculated based on one (1) ton 1.54 tons per unit per year for household trash, garbage, and vegetative waste. The City and Contractor agree that the 1.54 ton figure is an estimate and that it will be verified upon the first anniversary of this Agreement to reflect the actual per unit per year amount of household trash, garbage, and vegetative waste. Contractor agree to send to the City on a weekly basis actual residential disposal tickets with report backup from Seminole County. Ifresidential tonnage is greater than 1.54 ton per unit per year, the City will reimburse the Contractor an amount equal to the actual cost of tipping fees paid by Contractor for residential tonnage minus the amount of tipping fees paid to the Contractor by the City for said tonnage. However, if the residential tonnage is less than 1.54 per unit per year, Contractor will reimburse the City an amount equal to the amount of tipping fees paid by the City for residential tonnage minus the amount of tipping fees paid to Seminole County by the Contractor for said tonnage. Notwithstanding any other provision of this Agreement to the contrary, the City reserves the right to contract directly with Seminole County for the payment of tipping fees charged by Seminole County for solid waste collected within the City of Winter Springs and disposed of by Contractor under this Agreement. and residential yard waste, Class III landfill tipping fees shall be calculated based on thirty-four percent of one ton (.34) pel unit per year. 5.8 Reduction in CPI. In the event the CPI goes down in any given year, the City shall have the right to adjust the rates in paragraph 5.1 in accordance with the mathematical formula in paragraph 5.2, not to exceed a reduction in excess of two and one-half (2 Yz) percent in any given year. 6.0 Schedules and Routes. Contractor shall provide written notice to the City of its collection and disposal routes and schedules. The City reserves the unconditional right to deny Contractor's vehicles access to any street, alley, bridge, beach, or public way within the service area while performing collection and disposal services under this Agreement, where the City determines that it is in the best interests of the public health, safety, and welfare to do so because of the conditions of the streets, alleys, bridges, beaches, or public ways. However, Contractor shall not interrupt the regular schedule and level of service because of such closures of less than eight (8) hours in duration. The City shall notify Contractor of any Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 16 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney such closures of longer duration, and arrangements shall be made in a manner acceptable to Contractor and the Authorized Representative for the collection and disposal services interrupted by the closure. Customers shall be notified in writing by Contractor of the schedules provided by Contractor and any amendments thereto, provided customers shall be given at least seven (7) days prior written notice of any such amendments. Any and all route and schedule changes must receive prior approval by the Authorized Representative and schedule changes shall be published, at Contractor's expense, in a newspaper of general circulation meeting the requirements of Section 50.011, Florida Statutes. 7.0 Collection Equipment and Vehicles. Contractor shall provide collection equipment for the collection and disposal services under the following conditions: 7.1 Type and Amount. Contractor shall have on hand, at all times under this Agreement, collection equipment that is in good working order and sanitary condition that will permit Contractor to perform the collection and disposal services in a sufficient and efficient manner so that the schedules and routes can be maintained. Collection equipment shall be obtained from a nationally known and recognized manufacturer of collection equipment. Collection vehicles shall be of the enclosed packer type or other type vehicle which meets industry standards and is approved by the Authorized Representative. Contractor recognizes and agrees that a smaller wheel base garbage truck will be required in order to properly service areas within the Winter Springs Town Center and some townhome developments that contain alleys. All collection vehicles shall be equipped with communication devices which allow for proper communication with Contractor's dispatcher and the City and such devices shall be maintained in good operating order. 7.2 New Equipment; Condition. No later than ninety (90) days from the effective date of this Agreement, all of Contractor's collection and disposal equipment used within the service area shall be licensed and/or registered as 2005 6 models or newer. Contractor shall submit proof of title to all such equipment to the Authorized Representative by said date and thereafter for any new collection and disposal equipment. During the term of this Agreement, all collection and disposal equipment used in the service area shall not exceed an average age of seven (7) years old, provided, however, at the start of the Agreement, all primary collection and disposal equipment shall be new, at the start of the second year, all such equipment can not exceed one year old, at the start of the third year, all such equipment can not exceed two years old and so on during the remaining term of the Agreement. be no older than five (5) years old. At all times, Contractor shall be required to keep on file with the Authorized Representative a current inventory of all collection and disposal equipment used within the service area. All collection and disposal equipment shall be maintained, at all times, in a reasonable and safe working condition and shall be in good repair, appearance, and sanitary and clean condition. The Contractor shall Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 17 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney provide to the Authorized Representative a monthly maintenance report, by the fifteenth (l5th) of each month, showing collection vehicle number, service and/or repairs made to each piece of collection and disposal equipment. Contractor shall spray all mechanical containers with disinfectant after every collection. Collection and disposal equipment shall be painted uniformly with the name ofthe Contractor, Contractor's telephone number, the number of the collection vehicle, and a sign stating "Serving the City of Winter Springs" in letters not less than three (3) inches high on each side of all collection vehicles. Contractor shall keep an accurate record of the collection vehicle to which each number is assigned. Advertising on collection and disposal equipment is strictly prohibited, except for advertisements promoting City sponsored special events. 7.3 Overloading. Collection vehicles shall not be overloaded by Contractor so as to cause litter or spillage (described in paragraphs 4.1 (D) and (H); however, if litter or spillage occurs because of overloading it shall be picked up immediately as required by paragraphs 4.1 (D) and (H). 7.4 Back-up Equipment. Contractor shall maintain sufficient back-up collection and disposal equipment, which shall satisfy the condition requirements of paragraph 7.2 of this Agreement, to temporarily replace collection and disposal equipment that is in a state of disrepair or is inoperable at any time during Contractor's performance of the collection and disposal services pursuant to this Agreement. The back-up collection and disposal equipment shall be put into service within a reasonable time and without interruption of collection and disposal services. Such back -up collection and disposal equipment shall correspond in size and capacity to the collection and disposal equipment ordinarily used by Contractor in performance of the collection and disposal services under this Agreement. 7.5 City Right To Inspect. The City, at its discretion, shall have the right to inspect all collection and disposal equipment used by the Contractor within the service area at any time. Should the City deem that any collection and disposal equipment fails to meet the standards contained in this paragraph 7.0, the City shall have the right to prohibit such equipment from being utilized within the service area until such time that the equipment is repaired to meet such standards or replaced. 7.6 Annual Maintenance Plan. Upon the effective date of this Agreement, and on January 1st of each year thereafter, Contractor shall file with the City an annual preventative maintenance plan for all collection and disposal equipment which will be used within the service area. The plan shall include, but not be limited to, a schedule for painting, cleaning and replacing all collection and disposal equipment. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 18 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 7.7 Minimum Collection and Disposal Equipment. Contractor agrees that the minimum collection and disposal equipment required to provide sufficient residential and commercial service within the service area shall be as follows: Rear Loaders: 4 - 2006 New Way King Cobra #32 RL - 32 cubic year/Mack Chassis 1 - 2006 New Way Cobra #13RL - 13 cubic yard/Sterling Chassis 1 - Spare Rear Loader - Waste Pro Fleet Recycling Trucks: 2 - 2006 G-S 5000 23 cubic yard/Freightliner Chassis 1 - Spare Recycling Truck - Waste Pro Fleet Front Loader Trucks: 1 - New Way Mammoth 40 cubic yard/Mack Chassis 1 - Spare Front Loader - Waste Pro Fleet Clamshell Truck: 1 - Peterson Lighting Loader 26 cubic yard/Freightliner Chassis 1 - Spare Clamshell Truck - Waste Pro Fleet The City shall have the right to demand that additional equipment be added to service residential and commercial customers if the City's service area is significantly expanded or Contractor's performance is determined by the City, pursuant to paragraph 9.0, to be such that additional equipment is needed to provide a high quality and efficient level of collection and disposal services to all residential customers. 8.0 Contractor's Personnel. Contractor shall fully comply with the following terms and conditions regarding Contractor's personnel: 8.1 Contractor's Representative. Contractor shall appoint a representative to administer and manage this Agreement on Contractor's behalf as required by paragraph 26.0 of this Agreement. 8.2 Personnel. Contractor shall provide a sufficient number of permanent and qualified full-time employees to provide all of the collection and disposal services within the Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 19 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney service area. All such employees shall be lawfully permitted to work in the State of Florida and the United States. Temporary employees and labor shall be prohibited unless authorized by the Authorized Representative to handle emergency situations. At all times, Contractor shall be required to keep on file with the Authorized Representative a current roster of all permanent employees performing collection and disposal services under this Agreement. The roster shall contain the person's name, drivers license number, position, and the routes that the person will be working within the service area. The City shall have the right to conduct criminal background checks, at the City's expense, on all said permanent employees. All persons who are given supervisory authority by Contractor shall be made available to the Authorized Representative for consultation within a reasonable and practicable time after Contractor receives notice from the Authorized Representative that a consultation is being requested. Supervisors shall operate a collection vehicle that is equipped with a communication device in order to properly communicate with Contractor's dispatcher and the City. 8.3 Conduct of Personnel. Contractor shall require and ensure that its personnel shall serve all customers in a courteous, helpful, and impartial manner. Contractor's personnel shall perform collection and disposal services while using existing sidewalks and driveways when on private and public property. Contractor personnel shall observe all no trespassing signs and shall not cross between neighboring properties unless the customer, or customer's in the case of neighboring properties, has expressly given said personnel permission. Contractor's personnel shall perform all collection and disposal services with due care and shall always take reasonable precautions and steps to avoid damaging all real and personal property including, but not limited to, refuse containers, recycling containers, carts, racks, trees, shrubs, flowers, and similar property. Contractor shall be fully liable for all such damage caused by Contractor's personnel and Contractor shall promptly provide sufficient and appropriate compensation to customer's for such damage. 8.4 Uniform Regulations. Contractor agrees that the identification of Contractor's personnel while performing the collection and disposal services is important to the customer's health, safety, and welfare. Consequently, Contractor's personnel performing collection and disposal services shall wear a uniform or shirt bearing the Contractor's name and an approved safety vest. Lettering stitched on or identifying patches permanently attached to the uniform or shirt shall be acceptable. 8.5 Labor and Employment Laws. Contractor shall comply with all applicable local, state, and federal labor and employment laws affecting its personnel. 8.6 Informing Personnel of Responsibilities. Contractor shall take whatever steps it deems necessary to fully inform its personnel about the terms and conditions and Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 20 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney personal responsibilities provided under this Agreement. City shall not be responsible for informing Contractor's personnel of said terms, conditions, and responsibilities. Contractor shall also provide operating and safety training manuals to all its personnel. 8.7 Driver's License. All Contractor's personnel that drive a collection vehicle while performing collection and disposal services shall at all times have and carry a valid Florida commercial driver's license for the type of vehicle being driven. 8.8 Drug Free Workplace. Contractor shall maintain a drug free workplace policy. If requested by City, Contractor shall provide a document certifying to the City it is a drug free workplace. 9.0 Level of Service; Customer Complaints; Annual Evaluation By City. 9.1 Level of Service. Contractor acknowledges and agrees that the continuation of this Franchise depends on Contractor consistently providing a high quality and efficient level of collection and disposal services to all customers. To insure such services are provided in such a manner, Contractor's performance shall be evaluated, on an annual basis, pursuant to the procedure established in paragraph 9.3 of this Agreement and based on the following review criteria: A. The number of complaints received pursuant to paragraph 9.2 herein and Contractor's performance in resolving the complaints in a professional and expedient manner. B. Contractor's responsiveness to direction gIven by the Authorized Representative. C. The number of times that Contractor had to pay liquidated damages pursuant to paragraph 25.0 herein. D. Contractor's participation in community meetings/events sponsored by City. E. Contractor's financial viability to continue performing the collection and disposal services as required by this Agreement. F. Contractor's compliance with its "Customer Service Policy" required by paragraph 9.4. G. Inspection records of all collection vehicles. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 21 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 9.2 Customer Complaints. It is the intent of this Agreement to ensure that the Contractor provides a high quality level of collection and disposal services to all customers. To this end, all failures to provide collection and disposal services to customers, or failures observed by the Authorized Representative, and reported to the Contractor shall promptly be resolved pursuant to the provisions of this Agreement. All customer complaints should be made to the Authorized Representative and will be forwarded to the Contractor by person, telephone, or in writing by mail, email or facsimile. When received, whether directly from the Customer or forwarded from the Authorized Representative, the Contractor shall record complaints on a form approved by the Authorized Representative and shall take appropriate steps to resolve the complaint in a professional and expedient manner. All complaints_shall be resolved within the time periods set forth in Section 25.0 of this Agreement. same day of receipt. However, in the event that circumstances make it impossible to resolve a particular complaint within the time periods set forth in paragraph 25.0 same day, Contractor shall notify the Authorized Representative and the customer as to the reason the complaint can not be resolved within said time periods the same day-and when the complaint will be fully resolved. Upon request by the Contractor, the City may grant, at its sole discretion, a written extension of time to resolve the complaint if Contractor's reasons for the delay are reasonable, legitimate, and not a habitual excuse for failing to resolve the complaint. Contractor shall be required to promptly notify the customer as to when the complaint will be resolved. The Contractor shall notify the Authorized Representative within twenty- four (24) hours, on the approved forms, of the action taken to resolve the complaint. If the complaint involves a claim of damage to private or public property caused by Contractor during the performance of collection and disposal services, the Contractor shall within twenty-four (24) hours provide the Authorized Representative with a full written explanation of said complaint, an estimate of the damage, and Contractor's proposed actions to remedy the damage. 9.3 Annual Evaluation Procedure. Contractor's performance shall be annually evaluated by City's Authorized Representative and/or City Commission under the following procedure: A. Upon or soon after the occurrence of each annual anniversary date of this Agreement, the Authorized Representative shall conduct and prepare a written annual evaluation of Contractor's performance in providing the collection and disposal services under this Agreement ("Evaluation"). The Evaluation shall be based on the level of service criteria set forth in paragraph 9.1 herein. For each criteria the Authorized Representative shall evaluate and grade Contractor's performance as unacceptable, acceptable but needs improvement, or good. If Contractor receives an unacceptable grade, the Authorized Representative shall provide Contractor a written explanation of Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 22 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney why Contractor's performance was unacceptable and Contractor shall be given a reasonable period of time, as determined by the Authorized Representative, to bring its level of performance up to levels acceptable to the Authorized Representative. B. The Authorized Representative shall deliver the Evaluation, the aforesaid explanation, and other relevant documents to the City Commission for consideration by the City Commission at a public meeting. At the meeting, the Authorized Representative and Contractor shall have the opportunity to explain their positions and the City Commission shall then determine whether this Franchise should continue under conditions determined by the City Commission or be terminated, without penalty, pursuant to paragraph 14.1 (H) herein. 9.4 Customer Service Policy. Within thirty (30) days of the effective date of this Agreement, Contractor shall submit for the City's approval a "Customer Service Policy" which shall set forth customer service standards. Contractor shall abide by such standards during the term of this Agreement. The Customer Service Policy may be amended from time to time at Contractor's or City's request. A current copy of the Customer Service Policy shall be maintained at the Authorize Representative's office at all times. 10.0 Authorized Representative's Interpretation and Decision. Any dispute between the City and Contractor, which cannot be disposed of by mutual consent between the parties within a reasonable period of time ("Impasse"), shall be ultimately decided by the Authorized Representative at such time the Authorized Representative declares an Impasse. Upon Impasse, the Authorized Representative shall have thirty (30) days to decide the Impasse issue, unless additional time is reasonably needed. All such decisions shall be reduced to writing by the Authorized Representative and delivered to Contractor within three (3) days of said decision. All such written decisions shall contain a sufficient explanation, as may be deemed necessary by the Authorized Representative, to explain the decision. The decision shall be final and binding on both parties unless appealed to the City Commission. Within three (3) days of the Authorized Representative's decision, Contractor may appeal said decision to the City Commission. The City Commission will hear and decide the appeal at the next regularly scheduled City Commission meeting unless otherwise provided by the City Commission. The City Commission's decision shall be binding and final. Failure to file an appeal within said time period shall result in a waiver of the right to appeal. Pending the decision, Contractor shall proceed diligently with the performance of the collection and disposal services in accordance with this Agreement and any preliminary directions of the Authorized Representative. The Authorized Representative may amend, suspend, or revoke any decision if circumstances warrant. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 23 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 11.0 Other City Permits. For collection and disposal services of any kind not exclusively provided by Contractor under this Agreement, Contractor shall obtain all permits required by City Code to provide said services. 12.0 Performance Bond; Alternatives. 12.1 Performance Bond. The Contractor shall obtain and maintain during the entire term of this Agreement and any extensions and renewals thereof, at its cost and expense, and file with the City a corporate surety bond. The amount of said bond shall be updated annually and shall provide for a maximum aggregate penalty not to exceed an be in the amount equal to Five Hundred Thousand Dollars ($500,000.00). theprevious years gross revenues of all collection and disposal services provided Under this Agreement. The bond shall be in a form acceptable to the City Attorney and shall guarantee the faithful performance by the Contractor of all of its obligations provided under this Agreement and the, City Code (hereinafter referred to as "Bond" or "Performance Bond"). Such bond must be issued by a nationally recognized surety company. Alternatively, the Contractor shall obtain and continuously maintain an unexpired irrevocable letter of credit, which shall at all times be in the possession of the City. The amount of the letter of credit shall be equal to that required for a performance bond and the form and contents of such performance bond or letter of credit shall be acceptable to the City Attorney. The letter of credit shall be released only upon expiration of the Agreement or upon the replacement of the letter of credit by a successor Contractor. The Bond may be issued for a one year period of time and renewed on an annual basis at the discretion of the surety. Neither non-renewal by the surety, nor the inability of the Contractor to file a replacement Bond or suitable form of security shall constitute a loss to the City recoverable under the expired Bond. However, the preceding sentence shall not relieve the Contractor from finding a replacement Bond or other suitable form of security which satisfies the requirements of this Agreement. 12.2 Conditions. The performance bond or letter of credit shall be issued upon the following conditions: A. The performance bond shall be issued by a surety approved by City and licensed and authorized by the State of Florida to do business as a surety in the State of Florida. The irrevocable letter of credit shall be issued by a bank or savings and loan association acceptable to the City, authorized to do business in this State by either the State of Florida Comptroller or the United States government. The letter of credit shall name the City as the beneficiary. B. There shall be recoverable by the City, jointly and severally from the principal and surety or the financial institution that has issued the letter of Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 24 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney credit, any and all fines and liquidated damages due to the City and any and all damages, losses, costs, and expenses suffered or incurred by the City resulting from the failure of the Contractor to: faithfully comply with any and all provisions of the City Code., comply with any and all provisions of this Agreement, comply with and any and all orders, permits and directives of any City agency or body having jurisdiction over its acts or defaults under this Agreement; pay any and all claims, liens, fees, or taxes due the City which arise by reason of the collection and disposal services provided under this Agreement. Such losses, costs and expenses shall include but not be limited to reasonable attorney's fees and other associated expenses incurred by the City. C. The total amount of the bond or letter of credit shall be forfeited as a liquidated damage paid to the City in the event: 1. Contractor abandons, or cancels with less than ninety (90) days written notice to City, its obligations and responsibilities to perform the collection and disposal services required under this Franchise, prior to the expiration of the term of the Agreement; 2. Contractor assigns this Agreement without the express written consent of the City; or 3. This Agreement IS terminated by reason of the default of the Contractor. 12.3 Use of Bond and Letter of Credit. Prior to drawing upon the letter of credit or the bond for the purposes described in this section, the City shall notify Contractor in writing that payment is due, and the Contractor shall have thirty (30) days from the receipt of such written notice to make a full and complete payment. If the Contractor does not make the payment within thirty (30) days or demonstrate reason acceptable to the City why such action should not be taken, the City may withdraw the amount thereof, with interest and penalties, from the letter of credit or the bond. Within three (3) days of a withdrawal from the letter of credit or bond, the City shall send to the Contractor, by certified mail, return receipt requested, written notification of the amount, date and purpose of such withdrawal. 12.4 Replenishment of Letter of Credit and Performance Bond. No later than thirty (30) days, after mailing to the Contractor by certified mail notification of a withdrawal pursuant to paragraph 12.3 above, the Contractor shall replenish the letter of credit and/or performance bond in an amount equal to the amount so withdrawn. Failure to make timely replenishment of such amount to the letter of credit and/or Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 25 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney performance bond shall constitute a failure of the Contractor to faithfully comply with the provisions of this Agreement. 12.5 Non-renewal, Alteration, or Cancellation of Letter of Credit or Performance Bond. The performance bond and letter of credit required herein shall be in a form satisfactory to the City which approval shall not be unreasonably withheld and shall require thirty (30) days written notice of any non-renewal, alteration or cancellation to both the City and the Contractor. The Contractor shall, in the event of any such cancellation, alteration, arnon-renewal notice, obtain, pay all premiums for, and file with the City, written evidence of the issuance of replacement bond or policies within thirty (30) days following receipt by the City or the Contractor of any notice of cancellation, alteration, or non-renewal. 12.6 Default. The performance bond and letter of credit provided pursuant to this section shall become the property of the City in the event that this Agreement is canceled or terminated by reason of the default of the Contractor. 12.7 Right to Require Replacement of Bonds or Letter of Credit. If the City becomes aware of the financial condition of any bonding or financial institution issuing a performance bond or letter of credit as required herein and said financial condition is reasonably deemed by the City to jeopardize the collateral posted with the City, the City may, at any time, require that any such bond or letter of credit be replaced with such other bond or letter of credit consistent with the requirements set forth in this section. 13.0 Transfer of Ownership or Control. 13.1 Transfer of Franchise. This Agreement and any right, title, or interest herein shall not be sold, Transferred, leased, assigned, sublet, or otherwise disposed of, including but not limited to, by forced or voluntary sale, merger, consolidation, receivership or other means without the prior written consent ofthe City Commission, and then only under such reasonable conditions as the City Commission may establish which may include but not be limited to financial guarantees to the collection and disposal services. 13.2 Transfer Threshold. The Contractor shall promptly notify the City of any actual or proposed change in, or Transfer of, or acquisition by any other party of, control of the Contractor. 13.3 City Approval. Every Transfer shall make this Agreement subject to cancellation unless and until the City Commission shall have consented thereto in writing. For the purpose of determining whether it may consent to Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 26 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney such Transfer, the City shall inquire into the requirements enumerated within paragraph 13.4 and may also inquire into any other relevant legal, financial, character, technical, and other public interest qualifications of the prospective Transferee or controlling party. The Contractor shall assist the City in obtaining all required information. Failure to provide all reasonable information requested by the City as part of said inquiry shall be grounds for denial of the proposed Transfer. 13.4 Minimum Requirements. In order to be eligible to take an assignment or transfer of the Franchise granted under this Agreement, the transferee/assignee must demonstrate in writing to the City that it meets the following minimum threshold conditions: (A) Annual revenue greater than twenty million dollars ($20,000,000). (B) Operating margins of at least five percent (5%). (C) Investment grade debt rating (D) At least two contracts similar in scope and value. (E) Sufficient personnel and equipment to meet the requirements set forth herein. 13.5 Signatory Requirement. Any approval by the City Commission of transfer of ownership shall be contingent upon the prospective assignee becoming a signatory to this Agreement. 13.6 Transfer Fee. Upon approval of any transfer of this Franchise by the City Commission, the Contractor or the transferee/assignee shall pay the City a transfer fee of Twenty-Five Thousand Dollars ($25,000.00) for the first transfer and One Hundred Thousand Dollars ($100,000.00) for each subsequent transfer as a condition precedent to the effective date of any such transfer. 14.0 Forfeiture or Termination. 14.1 Grounds for Revocation. In accordance with the procedure set forth in paragraph 14.4 of this Agreement, the City Commission reserves the right to terminate this Agreement, without penalty, and rescind all rights and privileges associated with the Franchise in the following circumstances, each of which shall represent a default and breach of this Agreement: A. Contractor defaults in the performance of any of the material obligations to provide collection and disposal services under this Agreement or the City Code; Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 27 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney B. Contractor fails to provide or maintain in full force and effect the liability and indemnification coverage or the performance bond (or alternative letter of credit) as required herein; C. Contractor violates any material provisions of any orders or rulings of any regulatory body having jurisdiction over the Contractor relative to this Agreement and any regulatory ordinance of the City, and Contractor fails to begin cure within five business (5) days of notice from the City and to complete cure within a reasonable time after notice, as determined by the City; D. Contractor practices or engages in any fraud upon the City or any customer; E. Contractor is gross negligent, as defined by general law, in maintaining any of the level of service standards provided in this Agreement; F. Contractor becomes insolvent, unable or unwilling to pay its debts or is adjudged bankrupt; G. Contractor fails to provide collection and disposal service throughout the service area if a disruption of such service occurs pursuant to paragraph 24.0 of this Agreement, unless approval of such disruption is obtained from the City Commission; H. Contractor fails to satisfy the level of service annual evaluation conducted by the Authorized Representative and City Commission pursuant to paragraph 9.3 of this Agreement; or I. Contractor provided a material misrepresentation of fact in the application for or negotiation of the Franchise granted under this Agreement or any extension or renewal thereof. J. Contractor has breached a provision of the Agreement after being declared a "habitual violator" by the City Commission in accordance with paragraph 14.5. 14.2 Effect of Circumstances Beyond Control of Franchisee ("Force Majeure"). Contractor shall not be declared at fault or be subject to any sanction under any provision of this Agreement in any case, in which performance of any such provision is prevented for reasons beyond the Contractor's control. For the purposes of this Agreement, causes or events beyond the Contractor's control shall include, without limitation, acts of God, floods, earthquakes, landslides, hurricanes, fires and other Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 28 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney natural disasters, acts of public enemies, terrorism, riots or civil disturbances, sabotage, restraints imposed by order of a governmental agency or court. A fault shall not be deemed to be beyond the Contractor's control if committed by a corporation or other business entity in which the Contractor holds a controlling interest whether held directly or indirectly, when such fault is due to Contractor's financial inability to perform or comply, economic hardship, or misfeasance, malfeasance or nonfeasance by any of the Contractor's directors, officers, employees or contractors or agents. Failure of collection and disposal equipment and strikes or work stoppages held by Contractor's employees shall not be considered acts beyond Contractor's control. 14.3 Effect of Pending Litigation. Pending litigation or any appeal to any regulatory body or court having jurisdiction over the Contractor shall not excuse the Contractor from the performance of its obligations under this Agreement, unless specifically provided for by court order or by the regulatory body having jurisdiction over such matters. Failure of the Contractor to perform such obligations because of pending litigation or petition may result in forfeiture or revocation pursuant to the provisions of this section. 14.4 Procedure Prior to Revocation. Except as provided in paragraph 9.3 for annual evaluations or paragraph 14.5 as a "habitual violator," the Authorized Representative shall notify the Contractor in writing of the exact nature of the alleged violation constituting a ground for termination and give the Contractor forty- five (45) calendar days, or such greater amount of time as the Authorized Representative may specify, to correct such violations or to present facts and arguments to refute the alleged violation. If the Authorized Representative then concludes that there is a basis for termination, it shall notify the Contractor thereof. If within the designated time the Contractor does not remedy and/or put an end to the alleged violation, the City's City Commission, after a public hearing where all interested parties may be heard, may revoke the Franchise under this Agreement, without penalty, if it determines that such action is warranted. The Contractor shall not be held in default nor suffer any penalties where non-compliance or default is caused by an event beyond the Contractor's control, as stated in Section 14.2. 14.5 Habitual Violator. Upon prior written notice to the Contractor, the City Commission reserves the right to declare, at a public meeting, that Contractor is a "habitual violator" of the terms and conditions of this Agreement. For purposes of this paragraph 14.0, a declaration that the Contractor is a "habitual violator" shall mean that Contractor's performance is such that Contractor frequently, regularly, or repetitively breaches the terms and conditions of this Agreement, regardless of whether the Contractor has cured any or all of the breaches. Upon being declared a "habitual violator," Contractor shall forfeit the right to receive any further cure or Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 29 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney grace periods to correct any future violations or defaults under this Agreement. Further, any subsequent violations or defaults by Contractor shall be grounds for immediate termination of this Agreement by the City at such time the City deems, at its sole discretion, it is in the best interests of the public health, safety, and welfare to terminate Contractor's services. The City shall provide the Contractor with a final written notice of termination at least fifteen (15) calendar days prior to the effective date of the termination. 14.6 Result of Termination. Upon termination of this Agreement by the City, the City shall provide the Contractor with written notice establishing the effective date of the termination. At the effective date of the termination, Contractor shall immediately cease performance under this Agreement and the City shall have the right to assign the rights and obligations under this Agreement to itself or some other contractor under the same or different terms. In addition, upon said termination, the City shall have the unconditional and irrevocable right to take immediate possession and control over any and all collection and disposal equipment used by Contractor to provide collection and disposal services under this Agreement, until such time that the City makes other long term arrangements to provide such services. Moreover, the City shall have the right to utilize the full amount of the performance bond or letter of credit in order to perform collection and disposal services required under this Agreement. 15.0 Regulatory Authority. 15.1 Authority. The City reserves the right to exercise the maximum authority, as may at any time be lawfully permissible, to regulate the collection and disposal services and any other solid waste services, the Franchise granted hereunder, and the Contractor. Should applicable legislative, judicial or regulatory authorities at any time permit regulation not presently permitted to the City, the City may without the approval of the Contractor engage in any such additional regulation as may then be permissible, whether or not contemplated by this Agreement or the City Code, including without limitation, regulation regarding franchise fees, taxes, programming, rates charged to customers, consumer protection, or any other similar or dissimilar matter. The City agrees to meet and confer with the Contractor prior to enacting new regulatory ordinances. 15.2 Right of Inspection. The City shall have the right to inspect in a timely manner and in the accompaniment of a representative of the Contractor all collection and disposal services performed subject to the provisions of this Agreement and equipment used by Contractor, and to make such tests as it shall find necessary to ensure compliance with the terms of this Agreement, the City Code and any other applicable provisions of local, state or federal law. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 30 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 15.3 City Regulation. To the extent that federal or state law or regulation may now, or as the same may hereafter be amended by legislation, administrative regulation or decision, or judicial determination, authorize the City to regulate the rates for any particular service tiers, service packages, equipment, or any other services provided by Contractor, the City shall have the right to exercise rate regulation to the full extent authorized by law, or to refrain from exercising such regulation for any period of time, at the sole discretion of the City. The City shall provide advance notification to the Contractor of its intention to exercise any such regulation and written notification when such ordinance is adopted. However, failure to so provide advance notification to the Contractor or written notification when such ordinance is adopted shall not be a basis upon which to declare this Agreement in breach or to invalidate the ordinance. 15.4 City Health and Sanitation Regulations. Without any limitation on the authority granted City above, City reserves the unconditional right to adopt by ordinance additional health and sanitation regulations which shall apply to the collection and disposal of solid waste, biohazardous waste, biological waste, construction and demolition debris, hazardous waste, sludge, special waste and all other kinds of waste. To the extent determined at the sole discretion of the City's City Commission, these regulations shall be codified in the City Code. Contractor shall fully comply with these regulations to the extent applicable to the collection and disposal services provided under this Agreement and said regulations shall be deemed to be fully incorporated herein by this reference. In the event any provision of this Agreement is in conflict with any provision of the additional City health and sanitation regulations, the provision contained in the regulations shall prevail. 16.0 Liability and Insurance. 16.1 Certificate ofInsurance. Prior to the effective date ofthis Agreement and thereafter continuously throughout the duration of the Agreement and any extensions or renewals thereof, Contractor shall furnish to the City, certificates of insurance and endorsements, in a form approved by the City, for all types of insurance required under this section. Failure to furnish said certificates of insurance and endorsements in a timely manner shall constitute material breach of this Agreement. At the City's request, Contractor shall furnish certificates of insurance and endorsements which are in effect from time to time. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 31 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 16.2 No Liability Limit. Neither the provisions of this Section or any damages recovered by the City hereunder, shall be construed to limit the liability of Contractor for damages under this Agreement. 16.3 Endorsement. All insurance policies maintained pursuant to this Agreement shall contain an endorsement in substantially the following form: It is hereby understood and agreed that this insurance policy may not be modified or canceled by the insurance company nor the intention not to renew be stated by the insurance company until thirty (30) Days after receipt by the City of Winter Springs City Manager by certified mail, of a written notice of such intention to cancel or not to renew. 16.4 State Institution. All insurance policies provided pursuant to this Agreement shall be written by companies authorized by the Florida Insurance Commissioner to do business in the State of Florida as an insurance company. The insurance company shall have a Best Insurance rating of A or better, unless otherwise approved by the Authorized Representative. 16.5 Named Insured. The City shall be an additional named insured for all insurance policies written pursuant to this Agreement, as the City's interests may appear from time to time. 16.6 Changes in Policy Limits. To offset the effects of inflation and to reflect changing liability limits, all of the coverage, limits, and amounts of the insurance provided for herein are subject to reasonable increases at the end of every two (2) year period of this Agreement, applicable to the next two (2) year period or termination date of this Agreement (whichever occurs first), at the City's discretion, but not to exceed the coverage, limits, and amounts of insurance the City requires of other contractors transacting business with the City. 16.7 Commercial General Liability Insurance. Contractor shall maintain throughout the term of this Agreement, general liability insurance insuring Contractor in the minimum of: A. $5,000,000 for property damage single limit; and B. $5,000,000 single limit liability for personal bodily injury or death to anyone person. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 32 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 16.8 Automobile Liability Insurance. Contractor shall maintain throughout the term of the Agreement, automobile liability insurance for owned, non-owned, or rented vehicles in the minimum amount of: A. $5,000,000 single limit liability for bodily injury and consequent death per occurrence; and B. $5,000,000 for property damage per occurrence. 16.9 Worker's Compensation. Contractor shall maintain throughout the term of the Agreement, worker's compensation at least to the minimum amount of the statutory limit for worker's compensation, as amended from time to time. 17.0 Indemnification and Hold Harmless. For any and all collection and disposal services performed by Contractor pursuant to this Agreement, Contractor agrees to the fullest extent permitted by law, to indemnify and hold harmless the City, its commissioners, attorneys, employees, officers, and agents from and against all claims, losses, damages, personal injuries (including but not limited to death), or liability (including reasonable attorney's fees through any and all administrative, pre-trial, trial, post judgment, and appellate proceedings), directly or indirectly arising from: (i) the acts, errors, omissions, intentional or otherwise, arising out of or resulting from Contractor's or its subcontractors, or agents performance of the collection and disposal services pursuant to this Agreement; (ii) defaults under this Agreement; (iii) failing to properly train employees under Contractor's control or direction; and (iv) failing to properly equip or hire employees under Contractor's control or direction in the performance of the collection and disposal services under this Agreement. The indemnification provided above shall obligate Contractor to defend at its own expense or to provide for such defense, at the option of the City, as the case may be, of any and all claims of liability and all suits and actions of every name and description that may be brought against the City, its commissioners, attorneys, employees, officers, and/or agents which may result from the collection and disposal services under this Agreement whether the collection and disposal services be performed by the Contractor, its subcontractors, or anyone directly or indirectly employed by them. In all events the City shall be permitted to choose legal counsel of its sole choice, the attorney fees for which shall be subject to and included with this indemnification provided herein, as long as said fees are no greater than at a rate deemed reasonable at the time indemnification is required. The City agrees to be responsible for the City's own negligent acts and omissions. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 33 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 18.0 Interference with Persons, Public and Private Property, and Utilities. Contractor's collection equipment and personnel used in performing the collection and disposal services hereunder shall: A. Not endanger or interfere with the health, safety or lives of persons; B. Not interfere with any improvements which the City, county, state, and federal government may deem proper to make; C. Not interfere with the free and proper use of Public Rights-of-Way, alleys, bridges, easements or other public property, except to the minimum extent possible during actual collection and disposal services being provided hereunder; D. Not interfere with the rights and reasonable convenience of private property owners, except to the minimum extent possible during actual collection and disposal services being provided hereunder; and E. Not obstruct, hinder or interfere with any gas, electric, water, wastewater, reclaimed water, stormwater drainage, telephone, or other utility facilities located within the service area. 19.0 Books and Records Available to City; Quarterly Report to City Commission. 19.1 Records. With advance written request, the City shall have the right to inspect and copy at any time during Contractor's normal business hours, all books, records, maps, revenue statements, service complaint logs, performance test results and other like materials of the Contractor that are directly related to the collection and disposal services provided under this Agreement and which constitute a public record under Chapter 119, Florida Statutes. It is agreed that this Agreement and Contractor's performance thereunder as an independent contractor does not render Contractor a public agency. Further, Contractor's trade secrets and proprietary information shall not be subject to disclosure hereunder. Said records shall be maintained at Contractor's office set forth in paragraph 4.1 (G) of this Agreement. 19.2 Review. For records not constituting a public record under Chapter 119, Florida Statutes, Contractor shall permit, during Contractor's normal business hours, the Authorized Representative to examine, at the City's discretion, any and all maps and other records kept or maintained by the Contractor or under its contro I concerning the operations, affairs, transactions or property of Contractor relative to the collection Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 34 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney and disposal services provided under this Agreement. The examination shall take place at Contractor's office. 19.3 Reports to be Filed. The following reports shall be provided to the City in an electronic and other form acceptable to the City: A. Monthly Commercial Customer Report. A monthly commercial customer report sorted alphabetically by address, which lists the customer's address and name, type, quantity, and size of the container picked-up from the customer, and a description of the kind of service provided customer. B. Monthly Disposal Report. A monthly report indicating the amount (in tonnage) of residential and commercial refuse, vegetative waste, and recycle materials collected and disposed of under this Agreement. A weekly report indicating the amount (in tonnage) of residential refuse, vegetative waste, and recycle materials collected and disposed of under this Agreement. C. Annual Financial Report An annual financial report prepared by Contractor or the parent company of Contractor shall be provided annually at the time said report is published. D. Annual Operational Plan. An annual operational plan and report which shall include, at a minimum, information reasonably requested by the Authorized Representative and the following information related to the service area: 1. A summary of the manner in which the Contractor will provide the collection and disposal services required under this Agreement and a related list and map of routes and schedules for collection and disposal services. 2. An inventory of collection equipment including make, year, model, and type. 3. Personnel summary including a list of persons to be employed and their classification, the background of local management in charge of operations, statement of general working conditions such as hours of work, number of days worked, and other benefits of employment. 4. Financial report of all the previous year's collection and disposal services. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 3S of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 5. The manner in which the Contractor will ensure that all customers are fully informed of the customer service standards established and required by this Agreement and the City Code. 6. A summary of all solid waste collected (in tonnage) from residential Class I and III, recycling material by class and commercial. 7. A schedule for the annual cleaning and painting all Mechanical Containers. 19.4 Mandatory Records. The Contractor shall at all times maintain: A. A record of all complaints received and interruptions, disruptions, or degradation of collection and disposal services for the preceding year prior to the annual performance evaluation by the City. B. A full and complete document(s) describing the rates, schedules, and routes for the collection and disposal services. C. A record of all customers, and fees received from them by Contractor, for collection and disposal services not billed by the City, if any. D. All reports required by paragraph 19.3 of this Agreement. 19.5 Other Records. The City may impose reasonable requests for additional information, records and documents from time to time, and the Contractor shall produce said records within ten (10) business days, so long as such request relates to the City's enforcement abilities under this Agreement or the Code. 20.0 Preferential or Discriminatory Practices Prohibited. All collection and disposal services rendered and all rules and regulations adopted by Contractor shall have general application to all persons and shall not subject any person to prejudice or disadvantage on account of race, gender, religion, origin, or ethnicity. Contractor shall not deny service to any group of potential customers within the City because of the income of the customers within the service area. Contractor shall not charge customers different rates for service for the same class or type of service. However, this paragraph is not intended to restrict Contractor from offering reasonable discounts to senior citizens or other economically disadvantaged groups in accordance with any local, state, or federal law. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 36 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 21.0 Storms; Hurricanes; Natural Disasters; Calamities. In the event a major storm, hurricane, natural disaster, or any other type of major or serious calamity ("calamity") causes an excessive amount of refuse, vegetative waste, bulk trash, or other excessive debris ("debris") to accumulate on streets, alleys, bridges, and on private and/or public property, Contractor shall collect such debris at the City's written request. City agrees to pay Contractor for such additional service in an amount mutually agreed upon in writing by the City and Contractor. Contractor acknowledges and agrees that collection and disposal services performed after a calamity may be subject to special procedures in order that the City can receive reimbursement from state and federal agencies like FEMA. In such cases, Contractor shall be fully responsible and liable for complying with all such procedures and shall also indemnify and hold harmless the City in the event Contractor fails to comply with said procedures. Nothing in this Agreement shall exclude or prohibit the City or any other contractors from collecting and disposing of such debris caused by a major or serious calamity. 22.0 Miscellaneous Provisions. 22.1 Independent Contractor. Contractor is an independent contractor and nothing in this Agreement is intended nor shall be construed to create an employer/employee relationship, a joint venture relationship, a partnership relationship, or to allow the City to exercise control or direction over the manner or method by which Contractor performs the collection and disposal services which are the subject matter of this Agreement. Contractor understands and agrees that: (i) the City will not withhold on behalf of Contractor pursuant to this Agreement any sums for payment of income tax, unemployment insurance, social security or any other withholding; (ii) all such payments, withholdings and taxes are the sole responsibility of Contractor; and (iii) Contractor will indemnify and hold the City, its City Commission members, attorneys, employees, officers, and/or agents harmless from and against any and all loss or liability arising with respect to such payments, withholdings, or taxes, including, but not limited to reasonable attorneys' fees through any and all administrative, pre-trial, trial, post trial judgment, and appellate proceedings. The parties hereto agree that both Contractor and the City shall have the right to participate in any discussion or negotiation with the Internal Revenue Service concerning Contractor's independent contractor status regardless of with whom or by whom such discussions or negotiations are initiated. In the event that any applicable government agency determines that Contractor is an employee of the City and the City is required to pay any additional amount to any governmental authority based upon Contractor being reclassified an employee of the City, Contractor hereby covenants and agrees to reimburse immediately the City for any such amount paid to any such governmental authority and the costs and expenses associated with Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 37 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney defending the City, including, but not limited to reasonable attorneys' fees. In the event that Contractor is reclassified as an employee and becomes eligible for a refund of any taxes paid to any governmental agency, including but not limited to, a claim for refund of self-employment taxes, then Contractor hereby covenants and agrees to pursue any such refund and assign to the City the proceeds from any such refund. 22.2 No Joint Venture. Nothing herein shall be deemed to create a joint venture or principal-agent relationship between the parties, and neither party is authorized to, nor shall either party act toward third persons or the public in any manner which would indicate any such relationship with the other. 22.3 Entire Agreement. This Agreement represents the entire understanding and agreement between the parties hereto with respect to the subject matter hereof, and supersede all prior oral negotiations and written agreements between the parties. This Agreement may be amended, supplemented, modified, or changed only by a written instrument agreeing to said amendment, supplementation, modification, or change in the terms hereof by the parties. 22.4 Notices. Any notice, request, instruction, or other document to be given as part of this Contract shall be in writing and shall be deemed served when either delivered in person to the following designated agents or received by registered or certified United States mail, return receipt requested, postage prepaid, or received by facsimile, addressed as follows: TO THE CITY: City Manager City of Winter Springs 1126 East State Road 434 Winter Springs, FL 32708 Ph: (407) 327-5957 TO THE CONTRACTOR: Waste Pro of Florida, Inc. Attn: 2101 West SR 434, Suite 301 Longwood, Florida 32791 Ph: Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 38 of 48 Final Draft: 1/2012006 Prepared by Anthony A. Garganese, City Attorney Either party may change the aforementioned designated agents at any time by providing written notice of such change to the other party. 22.5 Captions. Captions to sections through this Agreement are solely to facilitate the reading and reference to the sections and provisions of the Agreement. Such captions shall not affect the meaning or interpretation of the Agreement. 22.6 Severability. If any section, subsection, sentence, clause, phrase, or portion of this Agreement 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. Such holding shall not affect the validity of the remaining portions of this Agreement, unless the City determines that the portions remaining (without the severed portions) have an adverse effect on the best interests of City, then City shall have the right to terminate this Agreement without penalty. 22.7 City's Rights of Intervention. Contractor agrees not to oppose intervention by the City in any suit or proceeding to which Contractor is a party, concerning or involving this Agreement and the City's rights under this Agreement. 22.8 Attorney's Fees. In the event of litigation arising out of or relating to this Agreement, the prevailing party shall be entitled to recover all its reasonable expenses, including attorney's fees, costs, and other expenses reasonably and necessarily incurred, through all administrative, pre-trial, trial, post judgment, and appellate proceedings. 22.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed and delivered shall be considered an original agreement; but such counterparts shall together constitute but one and the same instrument. 22.10 Waiver. Failure of the City to insist upon performance within any time period or upon a proper level of service shall not act as a waiver of the City's right to later claim a failure to perform on the part of Contractor. 22.11 Jurisdiction; Venue. This Agreement is made and shall be interpreted, construed, governed, and enforced in accordance with the laws of the State of Florida. Venue for any state action or litigation shall be SeminoleCounty, Florida. Venue for any federal action or litigation shall be Orlando, Florida. 23.0 Effective Date;Term. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 39 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 23.1 Effective Date. The effective date of this Agreement shall be ,2006. Any prior contract between the parties, and all addendums thereto, is hereby superseded and of no further force and effect; provided, however, any monies still owed by the Contractor to the City under the prior contract shall be duly and fully paid and Contractor shall be paid the last month's billing under the prior contract for only the last month's collection and disposal services performed by Contractor. 23.2 Term. The initial term of this Agreement shall be for ( )years and shall commence on ,2006 and terminate on ,2013, subject to an annual evaluation by the City under paragraph 9.0 herein and termination as provided for in paragraph 14.0 herein. The term of this Agreement maybe extended pursuant to paragraph 23.3 herein. 23.3 Renewal. At the City's sole discretion, this Agreement may be renewed by the City for a two (2) year renewal term. If the City elects to renew this Agreement, the City shall provide written notice of the renewal to the Contractor no later than ninety (90) days prior to the expiration of the term of this Agreement. 24.0 Disruption in Collection and Disposal Services. In the event a disruption (e.g. strike, labor stoppage, collection equipment in disrepair) causes Contractor to fall one week or more behind in its collection schedule, City may, at its option, cause the collection and disposal services to be performed by any means available to City. Such means may include, but not be limited to, City taking over and operating the collection equipment used in the performance of this Agreement until such time Contractor can perform the collection and disposal services and City contracting with a third party to perform the collection and disposal services. Any cost incurred by City in exercising this option shall be charged against Contractor and the performance bond or alternative letter of credit furnished by Contractor under this Agreement. The foregoing option shall only be exercised by a majority vote of the City's City Commission after the City Commission has declared that the disruption has caused an emergency to arise within the service area that adversely effects the public health, safety, and welfare. 25.0 Liquidated Damages. It is the intent of Contractor and City to provide for liquidated damages for certain breaches of this Agreement by Contractor. However, liquidated damages shall temporarily not be imposed for a ninety (90) day period commencing upon the effective date of this Agreement in order to provide the Contractor with a grace period under which to get established and acclimated to the service standards required under this Agreement. The liquidated damages set forth shall not be construed as a penalty. At the effective date of this Agreement, Contractor and City agree that any damages flowing from Contractor's breach of paragraphs 25.1 through 25.29, inclusive, are not readily ascertainable, and the Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 40 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney liquidated damages set forth therein are reasonable and proportionate to any damages that might reasonably be expected from a breach of said paragraphs. As such, should Contractor fail to perform the collection and disposal services required below, City shall be entitled to liquidated damages. Liquidated damages will be generally categorized as general and administrative complaints as follows: GENERAL COMPLAINTS: 25.1 Failure to collect missed customers per the service policy at a particular address on the the same day as given notice. $150.00 per incident a maximum of $300 per truck per day. 25.2 Collection of Commercial, Residential Solid Waste and /or Recyclables before 7:00 AM or after 7:00 PM. within the service area. $300.00 per incident 25.3. Co-mingling solid waste with Vegetative waste, recyclable Materials, C & D materials or Other waste materials within the service area. $500.00 per incident 25.4 Failure to clean spillage within the service area other than hydraulic and other fluids of any type in accordance with the Agreement. $200.00 per incident 25.5 Failure to replace damaged containers within five days, twenty four (24) hours for residential at a particular address. $100.00 per incident 25.6 Failure to return containers or $250.00 per incident garbage receptacles to original appropriate location as per the Agreement at a particular address. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 41 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 25.7 Failure to repair or schedule to be repaired damage $350.00 per incident to customer's property within 7 days. 25.8 Failure to comply with the current $250.00 per incident schedules and route maps within the service area. 25.9 Failure to respond to customer $300.00 per incident complaints and customer calls in a timely fashion and appropriate manner as per the "customer service policy" provided to the City from the Contractor at a particular address. 25.10 Failure to complete a route on the regular collection day. $500.00 per incidcnt 25.11 Causing skid marks, spillage marks on roadways, private driveways or any thoroughfare within the service area $100 pel skid/spillage mark 25.12 Failure to close gates on dumpster $250.00 per incident enclosures as well as container lids on commercial customers locations at a particular address. 25.13 Causing hydraulic spills or leaks as well as any $500.00 per incident other fluids having potential to damage or stain asphalt, concrete or other roadway surfaces within service area. No liquidated damages will be imposed for such legitimate general complaints if Contractor resolves the complaint to the City's satisfaction by 7:00 pm of the same day that the complaint is received by the Contractor, provided, however, if the complaint is received by the contractor after 12:00 noon, Contractor shall have until 12:00 noon ofthe following day to resolve the complaint. Notwithstanding the aforesaid, if Contractor receives the same type of legitimate general complaint more than three (3) times within the same calendar week (Monday through Sunday) , liquidated damages will be imposed beginning on the fourth such Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 42 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney complaint and all such complaints thereafter during the calendar week. The liquidated damages shall be $150.00 for each such complaint that is resolved with the aforementioned time periods and $300.00 for each such complaint that is not resolved within said time periods. ADMINISTRATNE COMPLAINTS: 25.14 Ligitimate complaints over forty (40) per month which are not resolved within the time periods required by paragraph 9.2. 25.14 Failure to provide clean, safe and sanitary equipment at the beginning of each work schedule. 25.15 Failure to maintain signs stating "Serving the City of Winter Springs" on all collection and work vehicles while servicing the City. 25.16 Failure to maintain office hours as required. 25.17 Equipment operator not properly licensed. 25.18 Failure to provide documents and reports in a timely and accurate manner per Agreement 25.19 Failure to cover materials, if appropriate, on all collection vehicles. 25.20 Failure to have name and phone number displayed on all equipment or containers. 25.21 Failure to comply with employee roster, proper uniforms and employee identification $300.00 per incident including the first ten. $500.00 per incident $250.00 per incident $200.00 per incident $500.00 per incident $250.00 per incident $250.00 per incident $250.00 per incident $300.00 per incident Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 43 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney per Agreement. 25.22 Using improper unauthorized equipment $250.00 per incident or vehicles to service commercial or residential customers. 25.23 Failure to provide monthly tonnage reports $250.00 per incident 25.24 Failure to submit financial $500.00 per incident reports by the required date 25.25 Failure to provide proper $250.00 per incident notification prior to Residential Route changes. 25.26 Failure to follow established $300.00 per incident reporting, operational or administrative procedures. 25.27 Failure to provide promotional $1,000.00 per year and educational materials, activities, advertisements and civic awareness programs annually as per the Agreement 25.28 Contractors failure to provide the quantity of approved roster equipment within the City during the required collection days. $500.00 per incident 25.29 Failure to report accidents / damage / spillage to the City immediately and provide a copy of a written report in the same day. $250.00 per incident Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 44 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney With respect to administrative complaints, the Contractor will be afforded a twenty- four hour time period in which to correct said complaints before liquidated damages are imposed by the City. Therefore, no liquidated damages will be imposed for an administrative complaint if Contractor resolves the complaint to the City's satisfaction within twenty-four hours of Contractor receiving the administrative complaint. Failure to resolve the complaint within the prescribed time period shall result in liquidated damages as set forth above. In addition and supplemental to the liquidated damages stated above, liquidated damages in the amount of$600.00 per legitimate general and administrative complaint shall be imposed for each such complaint in excess of forty (40) for any given calendar month. The Contractor agrees and acknowledges that over forty legitimate complaints in any given calendar month is excessive and should be subject to additional liquidated damages. When liquidated damages are imposed hereunder, sSuch liquidated damages shall be deducted from the monthly payments due the Contractor under this Agreement. In the event that Contractor does not accept the deductions, the City shall have the right to claim against the performance bond or letter of credit required under this Agreement. 26.0 Contractor's Representative. Contractor shall designate an individual to act as a representative for Contractor under this Agreement with the authority to transmit instructions, receive information, and make or interpret Contractor's decisions. This person shall be Contractor's contract administrator. Initially, the person who shall act as the representative for Contractor with respect to this Agreement shall be . Contractor may from time to time designate other individuals or delete individual's with the authority to act for Contractor under this Agreement with the authority to transmit instructions, receive information, and make or interpret Contractor's decisions. All deletions or designation of individuals to serve as a representative shall be given by written notice. 27.0 Time of the Essence. Contractor acknowledges and agrees that time is of the essence for the completion of the collection and disposal services to be performed under this Agreement. Unless otherwise extended in writing by the City, Contractor agrees to complete the collection and disposal services as required by this Agreement. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 45 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney 28.0 Sovereign Immunity. Nothing contained in this Agreement shall be construed as a waiver of the City's right to sovereign immunity under Section 768.28, Florida Statutes, or other limitations imposed on the City's potential liability under state or federal law. 29.0 Franchise Costs. Contractor agrees to pay the reasonable administrative and legal costs incurred by the City in initially granting this Franchise, which shall be Three Thousand and No/100 Dollars ($3,000.00). Payment shall be made to the City no later than thirty (30) days from the initial effective date. In the event this Franchise is renewed, transferred or assigned, Contractor or its successor in interest shall pay to the City the reasonable legal and administrative costs incurred with said renewal or assignment, not to exceed Four Thousand and No/100 Dollars ($4,000.00). Payment shall be made to the City no later than thirty (30) days from the effective date of said renewal, transfer, or assignment. 30.0 Title to Refuse. The City shall have the right and title to all refuse, except commercial recycling, collected by Contractor under this Agreement. 31.0 Public Awareness Campaign. 31.1 General. Contractor agrees to provide, and assist the City in conducting, a public awareness campaign to promote the collection and disposal services provided under this Agreement. All materials and publications used by Contractor shall be reviewed by the City and approved by the Authorized Representative. All materials and publications used by the City shall be reviewed by Contractor and approved by Contractor's representative. 31.2 Automated Cart Program. Upon the effective date of this Agreement, the City may request that Contractor implement a new Automated Cart Program within the service area. Contractor shall provide communication of said service to all customers receiving the service by direct mail, a letter to all Homeowners' Associations, and City newsletter and website. During the implementation phase, Contractor shall also conduct a customer satisfaction survey which shall be reported to the City in writing upon completion. 32.0 Solid Waste Disposal Sites. The Contractor shall transport all solid waste to a site or facility that is legally empowered to accept such waste for treatment and disposal. The City reserves the right to approve or disapprove disposal sites, at its discretion, taking into account all pricing, type and amount of waste to be disposed, governmental regulations, routes of Contractor, and the rules and regulations of the governmental body having jurisdiction over such sites or facilities. Solid Waste Agreement City of Winter Springs / Waste Pro of Florida, Inc. Page 46 of 48 Final Draft: 1/2012006 Prepared by Anthony A. Garganese, City Attorney 33.0 Community Involvement. The Contractor shall be actively involved in community events that are sponsored or recognized by the City and Contractor shall budget and expend a minimum of Twenty Five Thousand Dollars ($20, 5000.00) per year. Contractor agrees to have a strong presence in local civic clubs and organizations such as homeowners associations, local business organizations and student organizations such as Junior achievement. 34.0 Favored Nations Clause. In the interest of fairness and enhanced service to the public, Contractor agrees that during the term of this Agreement, Contractor shall not enter into any contractual arrangement, after the effective date of this Agreement, with any other municipality or county in the counties of Seminole, Orange, or Osceola, which provides or makes available, any rate and/or other applicable terms more favorable than that provided to the City under this Agreement, without first making such offer available to the City. In such event, the City shall have the option, exercisable in writing, to replace the rate and/or applicable terms stated in this Agreement with the more favorable terms set forth in the other agreement which are applicable to the City's situation. The City shall notify the Contractor, in writing, of the City's election to accept such substitute rate and/or terms pursuant to an agreement amending or replacing this Agreement. 35.0 Performance Bonus. To the extent permitted by law, beginning with the first anniversary of this Agreement, Contractor shall be entitled to earn a performance bonus for the prior year's collection and disposal services within the service area, provided Contractor receives a customer satisfaction rating of ninety percent (90%) or greater. The rating shall be determined by a competent and independent research consultant chosen by mutual agreement of the Contractor and City. The Contractor shall pay one hundred and City shall each pay fifty-percent of the cost of retaining the consultant. The performance bonus shall be Twelve Thousand Five Hundred Dollars ($12,500.00) per year for the first three years performance under this Agreement and Fifteen Thousand Dollars ($15,000.00) per year thereafter. Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 47 of 48 Final Draft: 1/20/2006 Prepared by Anthony A. Garganese, City Attorney ATTEST: CITY OF WINTER SPRINGS, FLORIDA: Andrea Lorenzo-Luaces, City Clerk By: John F. Bush, Mayor Date: CORPORATE SEAL: CONTRACTOR: WASTE PRO OF FLORIDA, INC. Print Name/Title: By: Print Name/Title: Date: Solid Waste Agreement City of Winter Springs I Waste Pro of Florida, Inc. Page 48 of 48 Date: January 23, 2006 The following Document was distributed on January 23, 2006 during Regular Agenda Item 300.1. "' . .. DEPARTMENT OF THE CITY MANAGER MEMORANDUM January 23, 2006 To: From: Re: Mayor and City Commission Ron McLemore, City Manager Analysis of Five Year and Seven Year Solid Waste Contracts In order to help you decide if the Five Year or Seven Year solid waste contract would be better for the City, we prepared the following analysis: Contract Choices: 1. Five Year Contract at $11.98 (1st Year Rate) with 2.5% annual CPI cap. (Note: Assume CPI under this Contract Option is "trued-up" in year 6 to actual - Le., per are-bid). 2. Seven Year Contract at $11.89 (1st Year Rate) with 3.0% annual CPI cap. Scenario Variables: 1. Assume four different Actual CPI scenarios as follows: Scenario: A. 4.0% CPI B. 3.5% CPI C. 3.0% CPI D. 2.5% CPI Question: 1. Under each scenario, which Contract Choice would result in the City paying the least amount of money to the contractor over a 7 year period? > Under Scenarios A, B, & C, the City would pay the solid waste contractor less money (over a 7 year period) under the Five Year Contract Option. However, the delta is statistically immaterial, Le., < 0.5%, as follows: Scenario A: $17,292 (0.11%) Scenario B: $46,440 (0.29%) Scenario C: $72,816 (0.46%) > Under Scenario D, the City would pay the solid waste contractor less money (over a 7 year period) under the Seven Year Contract Option. However, the delta is statistically immaterial, Le., < 0.6%, as follows: Scenario D: $90,948 (0.58%) U:\docs\word\City Manager\Solid Waste Contract\Commission Memo Contract Analysis.doc .. Conclusion: The total actual amount paid to the contractor under each Contract Choice is very similar under all four scenarios. Over a 7 year period, the Five Year Contract would result in a small savings over the Seven Year Contract, in 3 of the 4 scenarios. However, the initial (year 1) collection rate would be $0.09 lower under the Seven Year Contract ($11.89) than the Five Year Contract ($11.98). 2. If the contracts were not capped at 2.5% and 3.0%, which Contract Choice would save the Rate Payers the most money in comparison to that which would have been paid to the contractor if the contract allowed for annual payment increases equal to the corresponding actual CPI? > Under Scenarios A, 8, & C, the Rate Payers would save the most money under the Five Year Contract Option. Savings would range from $158,340 to $494,292 over a 7 year period as follows: Scenario A: $494,292 Scenario B: $322,224 Scenario C: $158,340 > Under Scenario D, savings are $0 under either contract option. Conclusion: If the contracts were not capped, the Five Year Contract would save more money than the Seven Year Contract. U:\docs\word\City Manager\Solid Waste Contract\Commission Memo Contract Analysis.doc