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HomeMy WebLinkAboutOrdinance 2015-23 WCA of Florida, LLC Collection and Disposal of Solid Waste ORDINANCE NO. 2015-23 AN ORDINANCE OF THE CITY OF WINTER SPRINGS, FLORIDA, PROVIDING FOR THE GRANTING OF A NON- EXCLUSIVE FRANCHISE TO WCA OF FLORIDA, LLC FOR THE COLLECTION AND DISPOSAL OF COMMERCIAL SOLID WASTE WITHIN THE CITY OF WINTER SPRINGS FOR SCHOOL FACILITIES OWNED AND OPERATED BY THE SCHOOL DISTRICT OF SEMINOLE COUNTY; OUTLINING FRANCHISE DUTIES; IMPOSING REOUIREMENTS UNDER WHICH FRANCHISE SHALL OPERATE; PROVIDING FOR CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, the School District of Seminole County, Florida ("School District") has an immediate and continuing need for the collection and disposal of solid waste materials from school facilities located on real property within the City of Winter Springs, and WHEREAS, in furtherance of this need, the School District awarded a solid waste disposal agreement to WCA of Florida, LLC (WCA") on October 8, 2013 ("School Agreement"), and WHEREAS, the School Agreement became effective on November 1 2013 and has a remaining term which expires on October 31, 2018, and WHEREAS, WCA has determined that WCA the necessary equipment, personnel and experience to properly perform the services outlined in the School Agreement and as outlined in the City's solid waste regulations; and WHEREAS, the City, WCA and School District entered into that certain Settlement Agreement, dated May 29, 2015 ("Settlement Agreement"), under which the City agreed to grant WCA a non-exclusive solid waste franchise for purposes of authorizing WCA to operate within the jurisdictional limits of the City of Winter Springs in order to provide the solid waste services required under the School Agreement, and WHEREAS, it appears to be in the best interests of the City of Winter Springs and its inhabitants that WCA of Florida, LLC be awarded a non-exclusive right and franchise to provide solid waste collection services within the City limits of the City of Winter Springs upon the terms and conditions recited below for the limited purpose of collecting and disposing of solid waste materials from school facdbies located on real property within the City of Winter Springs. NOW, THEREFORE, THE CITY COMMISSION OF THE CITY OF WINTER SPRINGS HEREBY ORDAINS, AS FOLLOWS: SECTION ONE: Limited Franchise. 1 Grant of Limited Franchise,There is hereby granted to WCA of Florida, LLC(herein called the "Franchisee"), its successors and assigns, a non-exclusive right, privilege or franchise to collect garbage, refuse, trash and other solid waste materials and recyclables generated from school facilities owned and operated by the School District of Seminole County, Florida on real property located within the jurisdictional limits of the City of Winter Springs, Florida during the term of the School Agreement and subject to the following limitations and conditions as hereinafter set forth. The franchise granted hereunder is intended to be limited solely to school facilities owned and 1 operated by the School District of Seminole County, Florida on real property located within the jurisdictional limits of the City of Winter Springs. Franchisee shall not serve any other property located within the jurisdictional limits of the City of Winter Springs unless another franchise or license is granted by the City. 2. Definitions. The following terms as used herein shall have the meaning ascribed below: a. "City" shall mean the City of Winter Springs, Florida, a Florida municipal corporation b "Franchisee" shall mean WCA of Florida, LLC, a Florida limited liability company. c. "Commercial rubbish and trash" shall mean any and all accumulations of rubbish and trash including, but not limited to, 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 the school facilities by the School District. d. "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 of food materials whether attributed to residential or commercial activities Garbage shall not include special waste. e. "Solid Waste" shall mean commercial rubbish and trash, garbage, and other kinds of waste generated by school facilities by the District and required to be collected and disposed of by the Franchisee under the School Agreement. f "School Agreement" shall mean the solid waste disposal contract between the School District and Franchisee which was awarded under a competitive bid process by the School District (#13140088) and became effective November 1, 2013, and the term of which expires on October 31,2018 unless terminated by the parties. g. "School Facilities"shall mean any public school, educational facility and plant, and ancillary plant owned and operated by the School District and located within the jurisdictional limits of the City of Winter Springs. The term School Facilities does not include charter schools h. "School District'shall mean the school district of Seminole County. Florida. "Settlement Agreement" shall mean the Settlement Agreement entered Into by the City, School District, and Franchisee in case WCA of Florida, LLC. v, City of Winter Springs and School Destnct, Case No 5015-0293 dated May 29, 2015 1. "Mechanical Container" shall mean and include plastic or metal containers dumped mechanically by a collection vehicle and able to be serviced by the Franchisee including, but not limited to. dumpsters,front load and compaction type containers 3. Term a. The term of this franchise shall terminate at such time the School Agreement expires or is terminated by the parties thereto, provided, however, the City reserves the right to terminate the same prior thereto if the Franchisee defaults in any one of the terms and conditions herein specified. 4. Minimum Service. The Franchisee shall make at least one (1) weekly collection at all School Facilities subject to the terms of the School Agreement and at sufficient additional intervals necessary to protect the environment, unless otherwise approved in advance by the City. 2 5. Hours Collections shall be made between 7.00 a.m. and 7-00 p.m. unless different times are approved by the City. If Franchisee is collecting and disposing of solid waste within the City other than these times, drivers will be ticketed and this Franchise will be subject to revocation 6. tiller. The Franchisee shall not litter premises in the process of making collections and shall promptly pick up all papers, material or debris that may be scattered about the container. Franchisee shall collect all material that has been placed in or about its containers unless otherwise directed by the School Dstnct or City 7 Approved Containers. Amounts and types of solid waste placed in containers for collection shall be stored in standard manufactured-type mechanically served containers only. unless otherwise approved in writing by the City, compatible with the Franchisees servicing equipment and subject to City and other governmental regulation and whose volume is listed in cubic yards. Franchisee shall provide adequate containers for the services rendered hereunder. Such container shall be provided at Franchisee's cost and shall remain the property of Franchisee, unless the container is owned by the School District. 8 Special and Hazardous Materials. Franchisee may provide haul service for special and hazardous materials not routinely generated by the School District. Said materials shall be stored and placed in a manner approved by the City and the Franchisee No hazardous wastes will be collected by the Franchisee unless specifically required by the School District, approved by the City and agreed to by the Franchisee. 9. Collection Equipment. a. The Franchisee shall provide an adequate number of vehicles for regular collection services. They shall be kept in good repair, appearance, and in a sanitary condition at all times Each vehicle shall have clearly visible on each side the name and phone number of the Franchisee and vehicle number not less than twelve inches (12") in height on the rear and each side b Franchisee shall certify to the City upon the commencement of each franchise year the nature and quantity of vehicles and equipment on hand and available for regular collection services and backup in the event of the breakdown of any primary collection vehicle c. Each dumpster shall be systematically marked with the franchise holder's name and account type (Solid Waste or Recycling), in a manner approved by the City to identify its capacity in yardage,scheduled date of pickup and its "dumpster number" i.e.,6, MWF 452 would be a six (6) yard dumpster, to be picked up Monday, Wednesday and Friday and it would be dum ester number 452. Such markings shall be amended to provide such other information as the City may require promptly upon receipt of a notice from the City requiring a change of container markings. 10 Office The Franchisee shall establish and maintain a focal office or such other facilities through which it can be contacted and complaints can be made. It shall be equipped with sufficient telephones, shall have one(1) responsible person in charge during collection hours and shall be open during collection hours. 11. Hauling. All solid waste hauled by the Franchisee shall be so contained, or enclosed that leaking, spilling or blowing are prevented. In the event of any spillage, the Franchisee shall Immediately clean up the litter at Franchisee's sole expense Further, if the spillage causes any damage to any streets andtor any public infrastructure, the Franchisee shall be responsible for the reimbursing the City for the actual cost of repair or replacement of the streets andfor public infrastructure that is damaged by Franchisee within thirty days of receipt of an invoice itemizing the actual costs. In addition, it after receiving written notice from the City, Franchisee tails to properly clean the leak, spill or litter within twenty-four hours as required herein, the City shall have the right, but not obligation, to so clean and Franchisee shall reimburse the City for any and 3 all actual costs incurred by the City to clean the leak. spill and/or litter within thirty days of receipt of an invoice itemizing the actual costs. 12. Disposal All solid waste for disposal shall be hauled to sites or facilities legally empowered to accept it for treatment or disposal To the maximum extent permitted by law and required by any agreement between the City and Seminole County, solid waste shall be disposed of at Seminole County designated facilities. 13. Charges and Rates. All charges and rates for the commercial collection of rubbish and trash and garbage shall be set by the School Agreement. Rates and charges shall not be set by the City. 14, Location. All solid waste shall be placed in approved containers at locations that are readily accessible to the Franchisee's personnel. Containers shall be located on School District property 15. Compensation and Payment. a. Compensation shall be paid by the Franchisee to the City on a monthly basis a sum equal to ten percent (10%) of the gross revenue from all sources related to Franchisee's operations in the City related to School Facilities pursuant to the terms and conditions of the School Agreement Payment to the City shall be made monthly for the month immediately preceding payment. Such fees shalt not include fees generated directly from recycling. Supporting documentation shall be provided with payment so that the City can verify that accuracy of the payment b Franchisee, in further consideration of the Franchise, shall make its financial records available to the City in accordance with procedures established from time to time by the City. The fees paid pursuant to this section shall not be added as a separate item on the School District's collection bills unless agreed to by the School District, but rather shall be considered as an operational expense 16. Discontinued Service or Delinquent Accounts a. The Franchisee may discontinue service as set forth in this section. If the School District has not timely remitted required payments after the date of billing, the Franchisee shall notify the School District. Said notification shall contain a statement that service may be discontinued if payment is not made before that time. In the event the Franchisee intends to discontinue service to the School District, it shall so notify the City at least fifteen (15) days prior to the last day of collection. Upon payment of the delinquent fees, the Franchisee shall resume collection on the next regularly scheduled collection day, or if the School Agreement is terminated, Franchisee shall immediately discontinue service under this Franchise. b. In accordance with the City's police powers granted to by law, the City shall have the authority to direct the Franchisee to continue service notwithstanding the fact that an account may be delinquent if the City determines that garbage, refuse, trash and other solid waste materials and recyclables generated from and located upon school facilities owned and operated by the School District constitute a public nuisance 17 Complaints. All complaints received by the School District shall be resolved within twenty- four (24) hours unless the complaints cannot be reasonably resolved within said time period, in which case the complaints shall be resolved within a time period mutually agreeable to the School District and Franchisee. Upon request by the City, the Franchisee shall supply the City with copies of all complaints on a form approved by the City and indicate the disposition of each complaint, Such records shall be available for City Inspection at all times during business hours. The form shall indicate the day and hour on which the complaint was received and the day and 4 hour on which it was resolved, the name of the complainant, the nature of the complaint and the manner of resolution. When a complaint is received on the day preceding a holiday or on a Saturday, it shall be serviced on the next normal working day 18. Notification The Franchisee shall notify the School District about complaint procedures, regulation, days and hours of collection,and the terms and conditions of this Franchise. 19. Franchisee Personnel. a. The Franchisee shall assign a qualified person or persons to be in charge of operations occurring within the City and shall give the name or names to the City; information regarding experience shall also be furnished. b. Franchisees collection employees shall wear a clean uniform bearing the company's name. c. Each employee shall, at all times, carry a valid operator's license for the type of vehicle he is driving. d. The Franchisee shall provide operating and safety training for all personnel and shall certify same to the City. Such certification shall identify all employees employed in Winter Springs, their fob description and the nature and type of training given said employees. e The Franchisee shall comply with the Equal Employment Opportunity Program, the Fair Labor Standards Act and all other applicable Federal and Stale Statutes pertaining to Fair Employment practices. 20 Franchise Equipment a. Upon request by the City. all trucks or other vehicles used on the public streets and roads within the City of Winter Springs shall be required to pass an annual safety inspection conducted by the Crty of Winter Springs or its agents. b Upon successful completion of its annual inspection, the City may issue a non- transferable decal or markings which shalt be affixed to such area of the vehicle as the City may designate so as to permit rapid visual determination that the vehicle has passed the required annual safety inspection c. In conducting the required annual inspection the City shall utilize the standards previously utilized by the State of Florida in its vehicle inspection program Where the vehicle manufacturers recommend minimum requirements are more stringent than the former State of Florida requirements,the more stringent requirements shall apply d. All vehicles shall be subject to. and shall immediately submit to spot, on the road inspections and if found to be in non-compliance, said vehicle shall be immediately removed from service until rt can be repaired and is successfully re-inspected. e. The use of non-inspected vehicles or vehicles failing to meet inspection standards may be grounds for removal of the franchise if found by the City Commission, after notice to the Franchisee and an opportunity to be heard,to be flagrant or repeated in nature. 21. Compliance within Laws.The right is hereby reserved for the City to adopt, in addition to the provisions herein contained and existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power, provided that such regulations by ordinance or otherwise shall be reasonable and not in conflict with the intended purpose of this ordinance The Franchisee shall conduct operations under this ordinance in compliance with all 5 applicable taws and its failure to comply shall constitute a default hereunder. This franchise shall not be construed to repeal or revise any existing ordinance and to the extent that any provision of this franchise is inconsistent with any existing ordinance, then such existing ordinance shall prevail and control. 22 Performance Bond. Concurrent with this franchise, the Franchisee shall furnish to the City a Performance Bond executed by a surety authorized to do business in the State of Florida in the amount of$100,000, insuring the faithful performance of the terms of this ordinance and executed by a surety company licensed to do business within the State of Florida. Said Performance Bond is in an amount deemed by the City and the Franchisee to be reasonable and necessary to enable the City to ensure all franchise fees and/or reimbursements due and payable hereunder to the City are paid as and when due. 24. Liability & Insurance. The privileges herein granted are upon the express conditions that the Franchisee shall be liable for all damages or injury to persons or property caused by its neglect or mismanagement, or by the actions of any of its employees while engaged in the operations herein authorized, or for any actions or proceedings brought as a result of the award of this franchise to Franchisee, to specifically include but not be limited to Anti-trust actions or proceedings. Should the City of Winter Springs be sued therefore, the Franchisee shall be notified of such suit, and thereupon it shall be its duty to defend the suit, and should judgment go against the City in any such case, Franchisee shall forthwith pay the same. The Franchisee shall indemnify and save harmless the City. its agents, officers and employees from any judgments recovered by anyone for personal injury, death or property damage sustained by reason of any of the Franchisee's activities permitted by this franchise or for any actions or proceedings brought as a result of the award of this franchise to Franchisee, to specifically include but not limited to Anti-trust actions or proceedings, and shall pay all expenses, including costs and attorneys fees, in defending against any such claim made against the City or any of the City's agents, officers or employees. This indemnification provision shall survive the repeal of this Ordinance Franchisee further agrees to purchase Commercial General Liability insurance in the amount of five million dollars ($5,000,000) per occurrence, naming the City as an additional insured to the extent of its rights against Franchisee arising by virtue of this section. Franchisee further agrees to purchase Automobile Liability insurance in the amount of five million dollars ($5,000.000) combined single limit Franchise further agrees to purchase Worker's Compensation Insurance which meets or exceeds State of Florida Statutory Limits. A certificate of insurance shall be filed with the City Public Works Director ten (10) days prior to the effective date of this franchise. The certificate must name the City as additional insured for general liability. Furthermore, the certif icate must reflect insurance companies which are licensed to do business in the State of Florida, These insurance companies must have a Best's financial rating (or the equivalent) of B+ or better All insurance policies will provide that the City be given ten (10) days written notice prior to cancellation or modification If the initial insurance expires prior to the expiration of this agreement. renewal certificates of insurance and required copies of policies shall be furnished thirty(30) days prior to the date of expiration. 25. Licenses The Franchisee shall, at its sole expense, procure from all governmental authorities having jurisdiction over the operations of the Franchisee, including the City. all licenses,certificates, permits or other authorization which may be necessary for the conduct of its operations. The Franchisee shall pay all taxes, licenses, certification, permit and examination fees and excises which may be assessed, levied, exacted or imposed on its property, on its operations, on its gross receipts, and upon this franchise and the rights and privileges granted herein, and shall make all applications, reports and returns required in connection therewith. 26. Assignment No assignment of franchise or any right occurring under this ordinance shall be made in whole or in part by the Franchisee without the express written consent of the City and the School District; in the event of any assignment, the assignee shall assume the liability of the Franchisee 6 27 Books, Records and Audit a. The Franchisee shall keep records of wastes collected and charges therefore, and the City shall have the right to review those records which in any way pertain to the payments due it as well as the billing of all customers by the Franchisee. The Franchisee will be responsible for the monthly billing of the customer. b. Franchisee shall furnish the City with a copy of its annual audit. Said audit shall be prepared by an independent certified public accountant complete with creditor's opinion which opinion shall be acceptable to the City. The audit shall reflect the accuracy and completeness of the information provided the City by the Franchisee with special attention to the franchise fee. 28. Bankruptcy or Insolvency. If the Franchisee becomes insolvent and in any event if the Franchisee files a petition of voluntary or involuntary bankruptcy, then this franchise shall terminate in no event later than the date of filing of the bankruptcy petition. 29 Default. a. The failure on the part of the Franchisee to comply in any substantial respect with any of the provisions of this ordinance shall be grounds for a forfeiture of this franchise, but no such forfeiture shall take effect until the City has served upon the Franchisee, with a copy of the School District, written notice of default, which notice shall set forth the nature and extent thereof The Franchisee shall have thirty (30) days following the notice of default to correct the same. If the Franchisee protests the reasonableness or propriety of the City's declaration, said protest shall be served upon the City in writing within ten (10)days following receipt by the Franchisee of the City's notice b. if the City and the Franchisee cannot agree as to the reasonableness or propriety of the City's declaration of default, then the issue shall be promptly submitted to mediation before a mediator that is mutually agreed upon. The mediation shall occur as soon as practicable in order to expeditiously resolve the declaration of default The School District may attend the mediation. c. The purpose of this section is to enable the City and the Franchisee to resolve by mediation such differences as they may be unable to resolve by mutual agreement on their own. Nothing contained herein shall be construed to limit or restrict the legal nghts and powers of the City or the Franchisee to bring a legal action in a court of competent Jurisdiction if mediation is unsuccessful in resolving the default. 30 Flight to Require Performance. The failure of the City at any time to require performance by the Franchisee of any provisions hereof shall in no way affect the right of the City thereafter to enforce same Nor shall waiver by the City of any breach of any provisions hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself 31. Modification This franchise constitutes the entire agreement and understanding between the parties hereto, and it shall not be considered modified, altered, changed or amended in any respect unless in writing and signed by the parties hereto, and adopted as an amending franchise ordinance. 32 Notice As required for any purpose in this franchise, notice shall be addressed and sent by certified United States mail to the City and the Franchisee as follows- CITY City Manager City of Winter Springs 7 1126 E. State Road 434 Winter Springs, Florida 32708 FRANCHISEE WCA of Florida, LLC 1378-A South Volusia Avenue Orange City, FL 32763 33, Remedies, Attorney's Fees and Costs All remedies provided in this franchise shall be deemed cumulative and additional and not in lieu of or exclusive of each other or of any other remedy available to the City at law or in equity In the event the City shall prevail in any action arising hereunder, Franchisee shall pay to the City its costs, referable thereto, including attorney's fees 34, Headings. The headings of the sections of this franchise are for purposes of convenience only and shall not be deemed to expand or limit the provisions contained in such sections. 35. Warranty of Franchisee The Franchisee represents and warrants unto the City that no officer,employee, or agent of the City has any interest, either directly or indirectly, in the business of Franchisee to be conducted hereunder 36 Compliance with Winter Springs Code of Ordinances: School Agreement. Franchisee agrees to comply with Chapter 9 of the City of Winter Springs Code of Ordinances, all other applicable City codes, ordinances, rules and regulations, and the School Agreement. 37 Amendment The City reserves the right to amend this Ordinance in any manner necessary for the health, safety or welfare of the public, and the City reserves the right, in the public interest from time to time, to prescribe reasonable rules and regulations governing Franchisee's operations hereunder. SECTION TWO: Severabitity: The provisions of this Ordinance are declared to be severable and if any section, sentence,clause or phrase of this ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses and phrases of this ordinance but they shall remain in effect,it being the legislative intent that this ordinance shall stand notwithstanding the invalidity of any part SECTION THREE: Effective Date; Termination. This Ordinance shall take effect immediately upon adoption and acceptance by the Franchisee and shall be contingent upon the School Agreement remaining in effect concurrently with this Ordinance in the event the School Agreement is terminated or expires, this Ordinance shall be deemed repealed in its entirety and the Franchisee shall no longer have the right to operate within the Jurisdictional limits of the City of Winter Springs unless a subsequent license or franchise is granted by the City Commission in accordance with the City Code. Repeal of this Ordinance shall release both parties from their obligation to effect and to receive future performance hereunder. However, in addition to provisions of this Franchise that expressly survive the termination of this Ordinance, termination of this Ordinance does not preclude a claim for breach of this Franchise for non-performance including, but not limited to, Franchisee's failure to pay all franchise fees and reimbursements owned to the City under this Franchise. 8 ADOPTED by the City Commission of the City of Winter Springs. Florida in a regular meeting assembled on this 14th day of December, 2015. Charles Lacey, Mayo ATTEST f ttrm rea Lorenzo-Luaces, City Clerk _ Approved as to legal form and sufficiency for the City of Wrote nly. ANTHONY A. GARGANESE, City Attorney ACCEPTANCE BY FRANCHISEE The foregoing ordinance and the franchise provided for therein and all the terms and conditions thereof are hereby accepted, approved and agreed to this A day of -722.2,,,a22. FRANCHISEE: WCA of Ronda,LLC,,// By: 51144 x/ D Print Name/Title: Qk', Ha .�7.. PS..../1 gio,,,ed Sale. {,PC First Reading: November 16, 2015 J Legal Ad. December 3, 2015 Second Reading: December 14,2015 9