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HomeMy WebLinkAboutFranchise Agreement-1992 FRANCHISE AGREEMENT ���� L�,,, THIS AGREEMENT is made and entered into this'17 day ofj1stni-- ( 19 q2 , by and between the City of Winter Springs, Florida (hereinafter referred to as the "City") , and Industrial Waste Service, Inc. (hereinafter referred to as "IWS") , whose address is 1099 Miller Drive, Altamonte Springs, Florida 32701, and provides as follows: WHEREAS, the City and IWS are parties to an existing Franchise Agreement dated January 4, 1989, the term of which expires at midnight on December 31, 1992 ; and WHEREAS, the City wishes for IWS to increase the level of service provided to the City in order to comply with various environmental regulations, including the state mandated segregation of garbage, yard trash and recyclable materials, at no initial additional cost to the City or its residents; and WHEREAS, IWS has agreed to provide such increased level of service to the City, at no initial additional cost to the City or its residents, in exchange for the City's agreement to grant IWS an exclusive franchise for the collection, transport and disposal of residential, commercial and industrial solid waste and recyclable materials, in exchange for the City's agreement to enact a Mandatory Solid Waste Collection Ordinance making utilization of IWS's services mandatory for all residential, commercial and industrial customers within the City, in exchange for the City's agreement to devise and implement a system whereby the City will be billed directly for IWS's residential services and will pass that expense on to its residents by inclusion of a line item for such services on City utility bills, and in exchange for the City's agreement to enact a Mandatory Solid Waste Collection Ordinance providing for a method to enforce and compel City residents' direct payment to IWS until such time as the billing system referred to above has been devised and fully implemented. NOW, THEREFORE, in consideration of the mutual covenants, promises and conditions herein contained and other valuable considerations, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: I. TERM OF AGREEMENT; RENEWAL AND DEFAULT. A. SCOPE AND TERM. This Agreement is an exclusive Franchise Agreement to collect, transport and dispose of residential, business, commercial and industrial solid waste and recyclable materials generated within the boundaries of the City. This Agreement shall not become effective or binding on either _Z_ party hereto until the City has passed and adodted a Mandatory Solid Waste Collection Ordinance substantially similar to that set forth in Exhibit "A" hereto, the substance of which shall be reviewed by IWS prior to first reading. Upon the passage and adoption of such a Mandatory Solid Waste Collection Ordinance by the City, this Agreement shall supersede, replace, and render null and void the Franchise Agreement between the parties dated January 4, 1989. The term of this Agreement shall commence on the effective date of the above-referenced Mandatory Solid Waste Collection Ordinance, and shall end at midnight on the 31st day of December, 1997. B. RENEWAL. The City and IWS, by mutual consent, may opt to extend this Agreement for one additional term of two years, and thereafter for additional terms of one year each. Either party which wishes to so renew this Agreement shall give the other party written notice of its intent to renew this Agreement 90 days prior to the expiration of the term then in effect. Within 60 days of receipt of such notice, the other party shall respond in writing as to whether it agrees to such renewal. C. DEFAULT. 1. Notice of Default. IWS's failure to comply in any substantial respect with any of the provisions in this Agreement shall be grounds for forfeiture of its franchise. Prior to any such forfeiture, the City shall serve upon IWS a written notice of default which notice shall set forth the specific nature of -3- the default and the extent thereof. IWS shall have sixty (60) days from the date of the notice of default within which to correct same prior to any forfeiture of its franchise. Should IWS contest the reasonableness or propriety of the City's notice of default, it shall notify the City in writing within ten (10) days of its receipt of the notice of default. 2 . Arbitration. If the City and IWS cannot agree as to the reasonableness or propriety of the City's notice of default, then the issue shall be promptly submitted to a three member arbitration panel. One panel member shall be selected by the City, one shall be selected by IWS, and these two members shall jointly agree upon a third member. The arbitration panel shall notify the City and IWS of its determination of the reasonableness and propriety of the City's notice of default not later than thirty days following submission of the issue to the panel. 3 . Reservation of Rights. The purpose of this section is to enable the City and IWS to resolve by arbitration such differences as they may be unable to resolve by mutual agreement, and the decision of the arbitration panel shall be advisory only and shall not be binding upon either the City or IWS. Nothing contained herein shall be construed to limit or restrict the legal rights and powers of the City or IWS. II. DUTIES OF IWS. IWS promises to perform its duties hereunder in a good and workmanlike manner and in strict compliance with the Specifications for the Collection of Solid _q_ Waste and Recyclable Materials attached hereto as Exhibit "B" and incorporated herein by reference as though set forth in full at this place, which Specifications shall be binding on the parties hereto. III. FIRST PRIORITY. In the event that IWS experiences equipment failure or personnel problems in its overall operations, IWS agrees to give first priority in the assignment of equipment and personnel to all routes within the City. IV. IWS'S EXCLUSIVE RIGHT TO SERVICE RESIDENTIAL DWELLINGS. During the term of this Agreement and any renewals hereof, IWS shall have the exclusive franchise for the collection, transport and disposal of residential solid waste and recyclable materials within the City and shall be the City's sole Franchisee for such services, as the term "Franchisee" is used in the Mandatory Solid Waste Collection Ordinance attached hereto as Exhibit "A". In accordance with the duties of IWS as set forth in Section II above, no collection schedule shall be less than that provided in the Specifications attached hereto as Exhibit V. IWS'S EXCLUSIVE RIGHT TO SERVICE BUSINESS, COMMERCIAL AND INDUSTRIAL ENTERPRISES. During the term of this Agreement and any renewals hereof, IWS shall have the exclusive right to contract for solid waste and recyclable materials collection services with all business, commercial and industrial enterprises within the City (including Multi-Family Residential Units and mobile home parks which receive dumpster or roll off service as -5- opposed to curbside individual service) , agrees to collect all types of solid waste and recyclable materials from business, commercial and industrial enterprises within the City that have entered into individual contracts for such services with IWS, and shall be the City's sole franchisee for such services as the term "Franchisee" is used in the Mandatory Solid Waste Collection Ordinance attached hereto as Exhibit "A" . The places and days of collection, quantities and items to be collected, and rates for such business, commercial and industrial service shall be established by individual contract between IWS and each business, commercial or industrial enterprise; provided, however, that the maximum permissible business, commercial and industrial rates to be charged by IWS shall be established by the City. The maximum permissible business, commercial and industrial rates established by the City as of the effective date of this Agreement are $3 .44 per cubic yard, although a lower price may be contracted for with any particular business, commercial or industrial customer. VI. RATES AND BILLING. A. INTERIM METHOD FOR RESIDENTIAL BILLING BY IWS. The City agrees to devise a program, and implement said program as soon as the City deems it possible, whereby IWS will bill the City directly for all collection, transportation and disposal of solid waste and recyclable materials from Residential Collection Units, as defined in Exhibit "A" hereto, and the City will pass -6- the cost for such services through to its residents by inclusion of a line item for such services on City utility bills. Until such time as said program is actually implemented, IWS, at no cost to the City, shall directly bill the owners or occupants of all Residential Collection Units, as defined in Exhibit "A" hereto. All fees shall be billed by IWS to the owner or occupant of each Residential Collection Unit on a quarterly basis in advance, 15 days prior to the beginning of each quarter, and shall be paid by the person to whom the bill is rendered by the first day of the first month of the quarter. All persons who have not remitted payment within 25 days of the date of billing shall be sent a notice by IWS, with notice to the City, which states that service may be discontinued 5 days from the date of the notice if payment is not made before that time. If the payment still is not made within 5 days from the date of the notice, IWS may discontinue service to the customer and shall so notify the City immediately. Upon being advised by IWS that it has discontinued service to a customer for nonpayment, the City shall immediately implement oneor more of the collection/enforcement mechanisms set forth in Section of the Mandatory Solid Waste Collection Ordinance attached hereto as Exhibit "A" . If the City's collection/enforcement efforts are successful, the City shall promptly remit to IWS the past due amount owed to it, but shall be entitled to retain any fines assessed against and collected from the person against whom the collection/enforcement _7_ action was taken. Upon payment of the delinquent fees, whether by the City or by the customer, IWS shall recommence servicing the customer on the next regularly scheduled collection day. B. RESIDENTIAL BILLING BY THE CITY. 1. Beginning on January 1, 1993, IWS will bill the City directly for all collection, transportation and disposal of solid waste and recyclable materials from Residential Collec-tion Units, as defined in Exhibit "A" hereto, and the City will pass the cost for such services through to its residents by inclusion of a line item for such services on City utility bills. 2. IWS shall be entitled to payment by the City for services rendered to Residential Collection Units regardless of whether or not the City collects from its residents for such service. As of the date of execution of0rth. eement, the number of Residential Collection Uni stwi e City is NO later than January 1, 1993, the City shall provide to IWS an assessment roll or customer list setting forth the total number of Residential Collection Units to be served by IWS pursuant to this Agreement during the first quarter of calendar year 1993 and the address of each such Residential Collection Unit. Thereafter, for the duration of this Agreement and any extensions or renewals hereof, the City shall promptly notify IWS in writing of any new construction resulting in additions to the list of Residential Collection Units to be served by IWS. -g- 3 . Payments due from the City to IWS for monthly service to Residential Collection Units shall be due and payable not later than the 15th day of the month following the month during which the service was rendered. 4 . Beginning on April 1, 1993, and on a quarterly basis thereafter for the duration of this Agreement and any extensions or renewals hereof, the City shall provide IWS with an adjusted assessment roll or customer list, as referred to in Section VI (B) (1) above, to reflect any new construction resulting in additions to such list during the prior quarter and from that date forward the City shall be billed by IWS based upon the adjusted assessment roll or customer list. 5. In the event that IWS discovers that it is providing service to a Residential Collection Unit that is not included on the most recent assessment roll or customer list provided by the City, IWS shall provide the City Manager with the location or address of the omitted Residential Collection Unit. The City Manager shall promptly take steps to verify the existence of the omitted Residential Collection Unit and IWS's provision of service to such omitted Residential Unit and, upon verifying that the information is correct, the City shall immediately begin remitting monthly payments to IWS for such service. Should either the City or IWS discover that the City is erroneously paying IWS for service to a non-existent Residential Unit, the discovering party shall immediately notify the other party and, upon verification of the information by the other party, the City's -9_ payments to IWS shall be adjusted accordingly and the amount paid by City shall be remitted to the City. C. METHOD FOR BUSINESS. COMMERCIAL AND INDUSTRIAL BILLING. IWS, at no cost to the City, shall directly bill all business, commercial and industrial enterprises with which it has contracted to collect, transport and dispose of solid waste and recyclable materials. All fees shall be billed by IWS to the owner or occupant of each business, commercial or industrial enterprise on a monthly basis in advance, 15 days prior to the beginning of each month, and shall be paid by the person to whom the bill is rendered by the first day of the month for which the bill is rendered. All persons who have not remitted payment within 30 days of the date of billing shall be sent a notice by IWS, with notice to the City, which states that service may be discontinued 15 days from the date of the notice if payment is not made before that time, If the payment still is not made within 15 days from the date of the notice, IWS may discontinue service to the customer and shall so notify the City immediately. Upon being advised by IWS that it has discontinued service to a customer for nonpayment, the City shall immediately implement one or more of the collection/enforcement mechanisms set forth in Section of the Mandatory Solid Waste Collection Ordinance attached hereto as Exhibit "A" . If the City's collection/enforcement efforts are successful, the City shall promptly remit to IWS the past due amount owed to it, but shall -10- be entitled to retain any fines assessed against and collected from the person against whom the collection/enforcement action was taken. Upon payment of the delinquent fees, whether by the City or by the customer, IWS shall recommence servicing the customer on the next regularly scheduled collection day. D. GENERAL PROVISIONS 1. Uniform Rates. The initial uniform rate for the residential service described.on the Specifications attached hereto as Exhibit "B" shall be $13. 14 per month, per Residential Collection Unit, for curbside service. IWS shall only be required to provide side or back yard service to Residential Collection Units occupied by disabled persons under the conditions set forth in the Mandatory Solid Waste Collection Ordinance attached hereto as Exhibit "A" , and shall not charge such persons more than the uniform rate established for each Residential Collection Unit. For residential customers who desire curbside service that cannot be provided by truck and requires the use of tote carts, or for any other special service not provided for in the Specifications attached hereto as Exhibit "B", IWS may impose a surcharge over the uniform rate which may either be included on the customer's utility bill or billed directly by IWS to the customer. The maximum permissible busi-ness, commercial and industrial rates presently established by the City as of the effective date of this Agreement are $3 .44 per cubic yard, as set forth in Section V above. -11- 2. Increase in Uniform Rates. IWS shall be entitled to request an extraordinary adjustment of both the uniform rate for Residential Collection Units and the maximum permissible business, commercial and industrial rates if the request is due to an increase in its cost of doing business which is a direct result of an increase in landfill tipping fees or of compliance with new county, state or federal regulations regard-ing the solid waste industry. If IWS's request for a rate adjustment is due to an increase in the landfill tipping fees charged by Seminole County, the rate per Residential Collection Unit shall be increased according to the following formula: Total amount of landfill tipping fee increase per ton of solid waste multiplied by 1. 3 (average annual solid waste generated per Residential Collection Unit is 1. 3 tons) divided by 12 equals monthly rate increase per Residential Collection Unit. IWS shall provide adequate documentation and justification for any extraordinary rate adjustment requested pursuant to this section and such request shall be approved by the City via ordinance, resolution, amendment to this Agreement, or other appropriate mechanism, absent reasonable cause for refusing to approve such request. 3. Books of Account. IWS shall maintain good and accurate books of account reflecting the Residential Collection Units and business, commercial or industrial enterprises from which collections are made and the payments received therefrom. All -12- such books of account pertaining to collections made in the City shall be open to inspection by authorized City officials on reasonable notice. In addition, IWS shall provide the City with such information or documentation as the City may reasonably request in connection with any collection/enforcement actions referred by IWS to the City pursuant to Paragraph VI (A) of this Agreement. VII. PERFORMANCE REOUIREMENTS. IWS hereby guarantees performance of all of its obligations hereunder in accordance with Florida law and any City ordinances now in effect or here-inafter enacted. IWS acknowledges that it is thoroughly familiar with Florida law and City ordinances and shall abide by their specific terms. VIII.ASSIGNMENT OF CONTRACT. This Agreement shall not be assignable by IWS without the written consent of the City Commission, such consent not to be unreasonably withheld. IX. LAWSUITS. It is expressly understood and agreed that IWS is in all respects an independent contractor as to all work to be performed hereunder, notwithstanding that directions with regard to IWS's performance hereunder may be issued from f rom time to time by the City, its employees and/or its agents. IWS shall pay any attorney's fees and costs incurred by the City plus any judgment which may be obtained against the City in any administrative or judicial proceedings, either alone or jointly with IWS, its agents or employees, for injury or damages to -13- persons or parties by reason of IWS's performance or nonperformance of its obligations under this Agreement; provided, however, that if the City alone is sued for such injury or damage, written notice shall be given to IWS to appear and defend such action on the City's behalf. IWS shall hold the City harmless against any damages, attorney's fees and/or costs incurred by the City as a result of the City's award to IWS of the franchise set forth in this Agreement and any challenges thereto. In the event of litigation between IWS and the City arising out of or relating to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to recover all of its costs and attorney's fees at the trial and all appellate levels from the other party. X. WAIVERS. None of the following shall be construed as a waiver or alteration of any of the provisions of this Agreement: A. The acquiescence, failure, or neglect of either of the parties hereto to insist on strict performance of any or all of the terms or conditions of this Agreement, or of any of the actions required hereby; B. The acquiescence, failure or neglect of either of the parties hereto to assert any remedy, damages, or other rights arising out of the other party's refusal, neglect or inability to perform any of its obligations hereunder. -14- XI. SEVERABILITY. Should any part, clause, provision, or condition of this Agreement be held to be void, invalid or inoperative by any court of competent jurisdiction, then such invalidity shall not affect any other provisions hereof, and the remaining provisions shall be effective as though such invalid part, clause, provision or condition had not been set forth herein. XII. MUTUAL AGREEMENT. IWS and the City agree that this Agreement sets forth the entire agreement between them with regard to the subject matter hereof, and that this Agreement shall only be amended, supplemented or altered by a written instrument executed by both of the parties hereto through their duly authorized representatives. XIII.NOTICES. Any notices required or permitted to be given by one of the parties to this Agreement shall be sent in writing to the other via U.S. Mail, hand-delivery or telefax, as follows: A. TO THE CITY: Winter Springs City Manager 1126 East State Road 434 Winter Springs, Florida 32708 with a copy to Winter Springs City Clerk 1126 East State Road 434 Winter Springs, Florida 32708 -15- B. TO IWS: 1099 Miller Drive Altamonte Springs, FL 32701 Attn: Thomas Daly IN WITNESS WHEREOF, the parties have executed this Agreement on the dates set forth below. CITY TE GS, FLORIDA INDUSTRIAL W•STE SERVIC , I C. By: < � - By: �J1.L1.: • It C. (Name) 1 "" ,�� (Tit e) 4 //de- (Title)U � �� (I�C�+ nj Date: /1/ / 9 �} a. Date: 1?-141 ) 9!T U 02627d -16-