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HomeMy WebLinkAbout2004 07 12 Regular 502 071204_ COMM_Regular_502 _ Solid_ Waste_Agreement COMMISSION AGENDA ITEM 502 Consent Informational Public Hearing Regular X July 12. 2004 Regular Meeting ~ Mgr. 1 Dept. Authorization REQUEST: City Manager requesting the Commission to receive a report from Waste Services of Florida regarding solid waste collection issues in the City. PURPOSE: This agenda item is needed for the Waste Services of Florida to address solid waste collection issues in the City. . CONSIDERATIONS: Currently, the City has four issues with Waste Services of Florida as follows: 1. Assignment of Franchise Agreement: Waste Services of Florida believes that the rights contained in the Franchise Agreement are automatically assigned to the parent company Capital Environmental Resources Inc. as a result of their buyout of Florida Recycling. The City does not agree. 2. Performance Default: On October 13,2003, the City declared Florida Recycling to be in default of their contract due to poor performance. Waste Services of Florida needs to explain to the Commission how it intends to improve servIce. 071204_ COMM_Regular_502_ Solid_ Waste_Agreement 3. Franchise Performance Amendment: The City has prepared additional performance related language that it desires to be added to the existing Franchise Agreement. Waste Services of Florida needs to make its intentions known regarding their acceptance of the proposed new language. 4. Favored Nations Clause: There has been an ongoing dispute regarding the favored nation's clause in the contract regarding the collection of City bulk containers. The City believes that it is entitled to free pick up services through the period of time that Florida Recycling Services provided free service to the City of Oviedo in the contract. Florida Recycling Services held that Winter Springs was not entitled to free pick up. Invoices to date in dispute amount to $51,534.61. Waste Services of Florida needs to advise the Commission of its position on this matter. FUNDING: No changes in rates are related to this issue. However, settlement of the Favored Nations Clause is a $48,000 issue. RECOMMENDATION: It is recommended that in return for the City assigning the rights of the City's Franchise Agreement with Florida Recycling Services to Waste Services of Florida and satisfaction of the City declared Performance Default that Waste Services of Florida should agree to the following: 1) To provide free solid waste collection for City facilities during the period of time this free services was provided to Oviedo. 2) To accept the amendments to the Franchise Agreement proposed by the City. 3) To satisfactorily demonstrate to the Commission how Waste Services of Florida is going to improve its performance. ATTACHMENTS: June 9, 2004 Letter to Dan Malloy of Waste Services of Florida. COMMISSION ACTION: CITY OF WINTER SPRINGS, FLORIDA 1126 EAST STATE ROAD 434 WINTER SPRINGS, FLORIDA 32708-2799 Telephone (407) 327-1800 Ronald W. McLemore City Manager June 9, 2004 Dan Mallory Waste Services of Florida 1099 Miller Drive Altamonte Springs, FL 32701 Dear Dan: I enjoyed meeting with you this morning regarding the continuation of waste collection services in Winter Springs for the balance of the contract period ending February 28, 2006. As discussed, there are four issues as follows in re-establishing your company's credibility with the city as follows: 1. Existing Performance Default. 2. Favored Nations Clause issue regarding the collection of solid waste on municipal property. 3. Community Involvement 4. Problem Solving 5. Assignment of the Florida Recycling Contract to Capital Environmental Resources, Inc. 1. Performance Default a) You will need to layout the plan by which you are going 'to convince the Commission that you will cure what is perceived to be poor performance on the part of your company in executing the contract. b) You will need to agree to amend the existing franchise agreement to include the new performance language we have developed. (attached) c) I cannot emphasize enough how important it is to change the color of your vehicles so that it is clear that a different provider is on the job. 2. Favored Nations Clause After our discussion I reviewed the Oviedo bid and verified that the collection of city facilities was part of the bid and contract. Florida Recycling's position claiming that the Favored Nations Clause was not applicable in this case because pricing for these services was not contained on the rate schedule was a pretty weak defense, and one that only brought into question the credibility of the company. The question you raised regarding the applicability of the Favored Nations Clause to this situation since you no longer provide services to Oviedo is an interesting question. '. At minimum, I will maintain that you would not be entitled to back charges since the date your contract ended with Oviedo. As discussed, a reasonable compromise would be for you to waive Winter Springs charges through July 1,2004, and to apply changes from that date through the end of the contract period. Additionally, you need to detennine if it is worth fighting this issue at all as opposed to removing it from the table all together for good will value. Technical Assistance As we discussed, Florida Recycling was not pro-active, and didn't appear to be competent in finding ways to solve problems. I would propose that you fonnulate a plan for resolving the bulk container issue that we are having in the west part of the city as part of your overall proposal demonstrating your competency in resolving unique problems. Community Involvement Simply stated, Florida Recycling made themselves a non-factor in community involvement. They simply weren't present. I would suggest that you get involved in community events, and have a strong presence in local civic clubs. Assignment of Florida Recvcling Contract I think we can be successful in having the Commission to finalize the assignment issue as a package deal involving the above strategies. As stated above, I have attached a copy of the draft franchise amendment language that we have developed through our consultant for your review. Additionally, I think it is important that we attempt to get this matter before the City Commission at the June 28, 2004 Commission meeting or certainly no late than the July 12,2004 Commission meeting. After that, it could be two moths before we could get this issue before the Commission. If you have any additional comments or questions, please contact me at your convenience. Sincerely, /~cJpt/-/ Ronald W. McLemore City Manager /jp Attachment Florida Recycling/060904 Waste Services of Florida PROPOSED AGREEMENT TERMS Section I - Term of A2reement; Renewal and Default C. DEFAULT 1. Notice of Default. The City may terminate this Agreement, except as otherwise provide below in this Section, by giving the Contractor thirty (30) days advance written notice, upon the happening of anyone of the following events: (a) If the Contractor shall take the benefit of any present or future insolvency statute, or shall make a general assignment for the benefit of creditors, or file a voluntary petition in bankruptcy or a petition or answer seeking an arrangement for its reorganization or the readjustment of its indebtedness under the Federal bankruptcy laws or under any other law or state of the United States or any state thereof, or consent to the appointment of a receiver, trustee or liquidator of all or substantially all of its property; or (b) By order or decree of a Court, the Contractor shall be adjusted bankrupt or an order shall be made approving a petition filed by any of its creditors or by any of the stockholders of the Contractor, seeking its reorganization or the readjustment of its indebtedness under the Federal bankruptcy law or under any law or statute of the United States or of any state thereof, provided that if any such judgment or order is stayed or vacated within sixty (60) days after the entry thereof, any notice of cancellation shall be and become null, void and of no effect; unless such stayed judgment or order is reinstated in which case, said default shall be deemed immediate; or . (c) By or pursuant to or under authority of any legislative act, resolution or rule or any order or decree of any Court or governmental board, agency or officer having jurisdiction, a receiver, trustee or liquidator shall take possession or control of all or substantially all of the property of the Contract, and such possession or control shall continue in effect for a period of sixty (60) days; or (d) The Contractor has defaulted, by failing or refusing to perform or observe the terms, conditions or covenants in this Agreement or any of the rules and regulations promulgated by the City pursuant thereto or has wrongfully failed or refused to comply with the instructions of the City relative thereto and said default is not cured within thirty (30) days of receipt of written notice by the City to do so, or if by reason of the nature of such default, the same cannot be remedied within thirty (30) days following receipt by the Contractor of written demand from City to do so, the Contractor fails to commence the remedy of such default within said thirty (30) days following such written notice, or having so commenced shall fail thereafter to continue with diligence the curing thereof (with the Contractor having the burden of proof to demonstrate [a] that the default cannot be cured within thirty (30) days, and [b] that it is proceeding with diligence to cure said default, and such default will be cured within a reasonable period of time). 2. However, notwithstanding anything contained herein to the: contrary, for the failure of the Contractor to provide collection service for a period of five (5) consecutive scheduled working days, the City may secure the Contractor's billing records on the sixth working day in order to provide interim Contract collection services until such time as the matter is resolved and the Contractor is again able Ronald McLemore, City of Winter Springs February 6, 2004 Page 2 to perform pursuant to this Agreement; provided, however, if the Contractor is unable for any reason or cause to resume performance at the end of fifteen (15) working days all liability of the City under this Agreement to the Contractor shall cease and this Agreement may be terminated by the City. 3. Notwithstanding the foregoing and as supplemental and additional means of termination of this Agreement under this Section, in the event that the Contractor's record of performance shows that the Contractor has frequently, regularly or repetitively defaulted in the performance of any of the covenants and conditions required herein to be kept and performed by the Contractor, in the opinion of the City and regardless of whether the Contractor has corrected each individual condition of default, the Contractor shall be deemed a "habitual violator", shall forfeit the right to any further notice or grace period to correct, and all of said defaults shall be considered cumulative and collectively, shall constitute a condition of irredeemable default. The City shall thereupon issue the Contractor a final warning citing the circumstances therefore, and any single default by the Contractor of whatever nature subsequent to the occurrence of the last of said cumulative defaults, shall be grounds for immediate termination of this Agreement. In the event of any such subsequent default, the City may terminate this Agreement upon the giving of written Final Notice to the Contractor, such cancellation to be effective upon the fifteenth consecutive calendar day following the date of the Final Notice, and all contractual fees due hereunder plus any and all charges and interest shall be payable to said date, and the Contractor shall have no further rights hereunder. Immediately upon receipt of said Final Notice, the Contractor shall proceed to cease any further performance under this Agreement. 4. The Contractor's right to continue performance under this Contract shall not be terminated nor the Contractor charged with damages if their performance was interrupted by extreme weather conditions or other acts of God, public disturbance, acts of war, acts of terrorism or other valid causes beyond the Contractor's control. Failures of the Contractor's collection equipment or employee strikes are not considered to be a valid reason for non-performance under this Contract. However, the Contractor must recommence collections interrupted for any of the above reasons on cessation of cause for such interruption. Contractor must notify the City immediately anytime there is an interruption of normally scheduled refuse collection service. 5. In the event of the aforesaid events specified in paragraphs 1, 2, 3, and 4 above and except as otherwise provided in said paragraphs, termination shall be effective upon the date specified in City's written notice to the Contractor and upon said date this Agreement to the Contractor shall cease, and the City shall have the right to utilize the full amount of the Performance Bond and shall be free to negotiate with other contractors for the operation of the herein specified " Ronald McLemore, City of Winter Springs February 6, 2004 Page 3 services. The Contractor, for failure to perform, shall reimburse the City all direct and indirect costs of providing interim collection service. 6. The Contractor recognizes that the failure on the part of the Contractor to comply with the terms of this Agreement is likely to cause irreparable damage to the City and damages at law would be an inadequate remedy. Therefore, the Contractor agrees that in the event of a breach or threatened breach of any of the terms of the Agreement by the Contractor, the City shall be entitled to an injunction restraining such breach and/or to a decree of specific performance, without showing or proving any actual damage, together with recovery of reasonable attorneys' fees and costs incurred in obtaining said equitable relief until such time as a final and binding determination is made by the court. The foregoing equitable remedy shall be in addition to, and not in lieu of, all remedies or right, which the City may otherwise have by virtue of any breach of this Agreement by the Contractor. The City shall be entitled to seek injunctive relief without the posting of any bond or security to obtain the entry of temporary and permanent injunctions and orders of specific performance enforcing the provisions of this Agreement. The City shall also be able to seek injunctive relief to prohibit any act or omission by the Contractor or it's employees that constitutes a violation of any applicable law, is dishonest or misleading. The Contractor expressly consents and agrees that the City may, in addition to any other available remedies, obtain an injunction to terminate or prevent the continuance of any existing default or violation, and/or to prevent the occurrence of any threatened default by the Contractor of this Agreement. Section IX - Assi2nment of Contract 1. All covenants and agreements herein contained shall extend and be obligatory on the successor and assigns of the Contractor. It is mutually understood and agreed that the Contractor shall not assign, transfer, convey, sublet or otherwise dispose of its Contract or its right, title or interest herein, or its power to execute such Contract, to any other person, firm or corporation, without the previous written consent of the City, but in no case shall such consent relieve the Contractor from the obligations, or change the terms, of the Contract. For the purposes of this provision, Assignment shall also include mergers, acquisitions, and/or changes in controlling interest. 2. The assignee must, at a minimum, meet the following conditions: a. Financial · Annual revenue greater than $20 million ($20,000,000.00). · Operating Margin greater than 5%. · Investment grade debt rating. b. Experience · At least two contracts similar in scope and value. Ronald McLemore, City of Winter Springs February 6,2004 Page 4 · Sufficient staff and equipment to meet the contractual obligations described herein. The Contractor shall provide evidence that the aforementioned conditions are met, as well as provide audited financial statements for the three most recent fiscal years. An officer of the Contractor's company shall certify to the City that the information provided related to the minimum requirements is true and accurate as of the day or certification. The City reserves the right to waive any of the aforementioned conditions of this prOVISIOn. Section XVI - Oualitv of Performance A. It is the intent of the City to ensure that the Contractor provides a quality level of solid waste collection services. To this end, all complaints received by the Contractor and reported to the City shall be promptly resolved pursuant to the provisions of this Agreement. In the event legitimate complaints, as determined by the City, shall exceed two percent (2%) of service opportunities within the service area served by the Contractor during any month, the City may levy administrative charges for those complaints as set forth in subsections (1) and (2) hereof exceeding the percentage levels specified in this Section. The City may deduct the administrative charges from payments due or to become due to the Contractor. Failure to clean-up Spilled Solid Waste Exhibit B - V and Section XX Exhibit B - III $10.00 per incident er location $50.00 per incident per location Failure or neglect to collect solid waste and recyc1ables from any premises at or within the times specified within this Agreement Per performance failures by the Contractor as specified in subsection (3) through (9) hereof, the City may deduct from payments due or to become due to the Contractor, the amounts provided as follows: ~kL~~D~D~ 3. Failure or neglect to complete each Section XVII, $1000.00 for each route on the regular scheduled Section XIX, route not pick-up day and Exhibit B - completed each VII day 4. Failure to keep vehicles and Section XX and $100.00 per equipment in good repair and Exhibit B - V vehicle incident maintained in clean, safe, and per day Ronald McLemore, City of Winter Springs February 6, 2004 Page 5 sanitary manner 5. Failure to have vehicle operators Section XXIII $100.00 per day properly licensed per incident 6. Failure to maintain hours of Section XVII $100.00 per day operation as specified in this and Exhibit B - per incident Agreement III 7. Failure to replace or repair any Section XXI $25.00 per container damaged by the and Exhibit B - incident per Contractor VI location 8. Failure to file and keep current all Section XVIII $100.00 per day documents and reports required by per incident this Agreement 9. Failure to resolve any complaint as Section XVII $25.00 per day per specified by this Agreement incident If the City determines that the Contractor's activities in the service area caused litter, which was not corrected within six (6) business hours after the City notifies the Contractor, then the City may levy an administrative charge of $100 per day per incident. This provision applies to litter caused by the Contractor's collection activities at residential and commercial locations, as well as roadside litter caused when materials blowout of the Contractor's vehicles. The City may also levy an administrative charge of $100 per incident if the City determines that one of the Contractor's vehicles was not properly covered while transporting Solid Waste or recovered materials within the service area. If the Contractor is assessed administrative charges pursuant to the provisions of this paragraph on more than 15 occasions in one month, the amount of the administrative charge shall be increased to $200 per incident per day until the Contractor completes a consecutive three month period with less than 15 administrative charges in each month. For the purposes of this paragraph only, litter shall mean three (3) or more pieces of paper, cardboard or solid waste. B. The City may assess administrative charges pursuant to this Section on a monthly basis in connection with this Agreement and shall at the end of each month during the term of this Agreement notify the Contractor in writing of the administrative charges assessed and the basis for each assessment. The City may, at its discretion, deduct the administrative charges directly from its payment to the Contractor. In the event the Contractor wishes to contest such assessment it shall provide written objection to each contested assessment or charge and, within five (5) days after receiving such monthly notice, request in writing an opportunity to be heard by the City Manager and present its defense to such assessment. The City shall notify the Contractor in writing of any action talce with respect to the Contractor's claims and the decision of the City Manager will be the final administrative action. Ronald McLemore, City of Winter Springs February 6, 2004 Page 6 C. The assessment of payment of any damages imposed upon the Contractor by virtue of this entire section shall not constitute a defense to the Contractor, or an election of remedies by the City, or an estoppel against the City nor prevent the City from terminating this Agreement. The election of the City to refrain from assessing damages, suspending or terminating this Agreement, or seeking any other relief for any failure of the Contractor shall not constitute a waiver on the part of the City of its rights to pursue a remedy for any party of future failure. Section XVII - Complaints A. The Contractor shall maintain a local office in Seminole County with adequate staff and telephone service to handle and resolve all incoming calls and complaints between the hours of 8:00 am and 5:00 pm, Monday through Friday, excluding holidays. During all other hours of the week, including holidays during which collection services are not provided, the Contractor shall maintain an answering service or answering machine to receive incoming calls and complaints. B. The Contractor shall give prompt and courteous attention to all complaints and in no instance may the complaint remain unresolved more than 24 hours. Should the complaints remain unresolved for more than 24 hours, the City may assess penalties, as indicated in Section XVI, as appropriate. C. The Contractor shall investigate complaints, as necessary. In the event that the complaint is determined to be inaccurate, the Contractor shall notify the City, and the customer, if appropriate, with its findings. D. The Contractor shall notify the City's Public Works Director in the event that a route, or a portion of a route will not receive regularly scheduled collection during the specified hours of operation. E. The Contractor shall provide the City with an emergency telephone number(s) where the Contractor may be reached during both working and non-working hours. F. The Contractor shall keep records of all complaints and indicate the disposition of each. Such records shall be available for inspection by the City at all times during business hours. Section XVIII - Reports A. The Contractor shall submit written reports twice monthly to the City to properly and accurately reflect the following: 1. Weight by waste type, including copies of receipts issued to the Contractor by the receiving waste facilities; 2. A daily count of the number of containers "set out" by each customer class, which Ronald McLemore, City of Winter Springs February 6, 2004 Page 7 shall be utilized to obtain an accurate count of service opportunities; 3. The number of customers by class; and 4. A complaint summary that includes the following information: date and time of complaint, missed street, missed yard waste, missed garbage, missed recycling, damaged cans, litter, property damage, general complaints, employee conduct, and vehicle complaints. B. The Contractor shall submit the completed reports to the City on or before 2nd and 4th Wednesday of each month. C. In addition to the above named reports, the Contractor agrees to provide the City with other reports or reporting information as is now or in the future required by law, whether state, county, City, or another governmental agency at no additional cost. D. The City reserves the right to examine, audit, and review any and all records of the Contractor relating to this contract at any time during normal business hours upon giving reasonable notice. Section XIX -Routin2 [relates to Exhibit B - WIl The Contractor shall submit to the City, not later than ten (10) days prior to commencing work a detailed routing schedule detailing how the Contractor plans to service the route. If the Contractor chooses to use a different route for yard waste collection, this list must be submitted as well. In addition, the Contractor shall submit at this same time a listing of their routing of vehicles for each day listing each street in numerical order according to sequence of collection. After the initial submission, the City shall require the Contractor to resubmit this material upon renewal of their option or change of collection days. Section :xx - Vehicles and Licensin2 [relates to Exhibit B - V] The Contractor agrees to use modern loader trucks for its operations in the City and to keep all equipment used in performance of its work in a clean, sanitary condition. Should any equipment become disabled in the City, the Contractor shall remove the equipment from City streets within 2 hours. Failure to meet this obligation may result in a penalty, or penalties identified in Section XVI The Contractor shall furnish to the City a complete list of the vehicles to be used in the execution of the Contract. All vehicles shall display the name of the Contractor, a local telephone number and a vehicle identification number, which are clearly visible on both sides. All vehicles shall be fully enclosed, leak proof and operated in such a way that no solid waste can leak, spill or blow off the vehicle. In result of the vehicle operator's failure to properly monitor the load or to close openings, the Contractor shall be responsible for the immediate collection and clean up of same. Section XXI - Dama2e The restoration of any damage(s) to City property, or to any adjoining/adjacent private or public Ronald McLemore, City of Winter Springs February 6, 2004 Page 8 property, resulting from the Contractor's performance of this Contract shall be the responsibility of the Contractor. The Contractor shall, within twenty four (24) hours of receiving notification of damage, whether verbal or written; contact the claimant to resolve the claim. All valid claims must be resolved within thirty (30) days of notification. In the event the Contractor does not contact claimant or resolve the claim in the time frame above, the City may investigate the complaint and determine its validity. Damages determined by the City to be valid and due to the act(s) of the Contractor, or other personnel while performing under this Contract, may be corrected by the City and the costs incurred will be deducted from monies due the Contractor. The City Manager shall decide the final disposition of any claims by the Contractor. Repeated failures by the Contractor to contact claimants or settle claims may be the basis for termination of the Contract as specified in Section I - Section C (3) Section XXII - Public Awareness In the event that this Contract is assigned, as specified in Section IX, the Contractor shall provide information to the public, which shall set forth the basic rules governing the types of services and rates provided. This information shall be subject to the approval of the City and shall be distributed by the Contractor to all customers within ninety (90) days following the assignment of this Contract, or any subsequent amendment(s) hereto. The Contractor shall also develop a Public Education and Public Awareness Program and provide informational materials to educate residential and non-residential customers of all aspects included in this Contract. The Public Education and Public Awareness Program to shall include the development of informational brochures that the Contractor will distribute to all customers. As part of this program, the Contractor shall supply the City with at least [~] copies of the residential informational brochure and at least [~] copies of the non-reside~ti'~l informational brochure. The Contractor and the City shall mutually agree upon the contents of the informational brochures. The City retains the right to approve all Public Education and Public Awareness Program materials developed by the Contractor In addition, the Contractor shall provide inserts and/or mailers up to twice a year or as deemed necessary by the City, to each residential and non-residential customer with the purpose of promoting and educating the community on recycling opportunities, program changes and other pertinent information regarding the solid waste programs. The Contractor and the City shall develop the information in these mailers/inserts jointly. Upon request of the City, the Contractor shall also make available personnel for presentations at meetings or other similar gatherings to explain or reinforce the collection program throughout the term of the Contract. The City retains the right to approve all materials to be delivered by the Contractor to residential and non- residential customers including, but not limited to, door hangers, leaflets, fliers, and other means of communication. The Contractor shall have the sole responsibility of communicating any and all future Contract changes to the public. The Contractor shall provide a tagging system for any solid waste or recycling container that does not get collected. Each tag or label must provide a brief explanation as to why the material was not collected, including, but not limited to, over capacity; container overweight; unacceptable materials; and the like. Ronald McLemore, City of Winter Springs February 6, 2004 Page 9 Section XXIII - Emplovee Conduct [relates to Exhibit B - V (e)] Contractor agrees not knowingly or negligently to employ agents, employees or drivers who use intoxicating liquors or drugs while on duty. The Contractor shall prohibit the drinking of any alcoholic beverages or the ingestion of any illegal narcotics, drugs or substances by its drivers and crew members while on duty or in the course of performing their duties under the Contract. All employees shall carry official company identification and shall present such identification upon request. All vehicle operators shall carry valid State of Florida driver's licenses for the class of vehicle operated. Vehicle operators shall obey all traffic regulations, including weight and speed limits. The Contractor agrees to perform all collection and disposal services rendered hereunder in a neat, orderly and efficient manner, to use due care and diligence in the performance of the Contract and to provide neat, orderly and courteous employees and personnel. Exhibit B-1 - Definitions "Spilled Solid Waste" - shall mean solid waste and recyclables previously under the cOIitrol of the Contractor that have not been properly disposed. 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