The URL can be used to link to this page

1039-WSI/Sanford Termination Agrmnt To: From: Date: Re: xc: MEMORANDUM 6~ Stenstrom, MCIntosh, Colbert; whigham & partlow, P.A. IOOI Heatbrow parlz Lane, Suite 400I Lake Ma~, Flori~a 32746 (407) 322-2171 i.: t[ Jan Dougherty, City Clerk (via hand delivery) vJtI N10 Kenneth W. Mcintosh, Assistant City Attorneq/V . ~ . January 16, 2007 WSI/Sanford Termination Agreement Emily McCabe, Solid Waste Coordinator (via hand delivery) Tom George, Public Works Director (via hand delivery) Sherman Yehl, City Manager (via hand delivery) William L. Colbert, City Attorney I have tried to track down the status of the fully executed copy. The attached documents are self explanatory. Please validate, insert and initial the execution date at the top of page 4 as attesting City Clerk. Please then remit to me a final copy for return to Attorney Chipok. o Should there be additional needs, please advise, \ 0 ') \ ., /0 I ~ ~\g 1/t7 1,G rJ .. Aie b/ ~<:~cR .' i~ /J.- J;i f>2A ~ (d--d-dot'~ f;j ,putt<. ) /-11-01 ~: '1b K .(UR '4 1:\Danielle\KWMc\Cities\SANFORD\Waste Services, Inc\Memo to J Dougherty re fully executed agr.wpd Danielle LaVerde From: Sent: To: Cc: Subject: Paul Chipok [PChipok@gray-robinson.com] Monday, January 15. 20072:17 PM Ken W. Mcintosh dpantano@wasteservicesinc.com WSl/Sanford Termination Agreement City of Sanford early terminat... Ken Per your recent correspondence, attached is a copy of the fully executed Termination Agreement I received from my client. WSI met with the City Manager a few days after the City Commision approved the Termination Agreement and executed two duplicate originals. I have been told the City Manager retained one fully executed original. If I may be of further assistance, please do not hestitate to contact me. Paul Paul H. Chipok GrayRobinson, P.A. 301 E. Pine Street Suite 1400 Orlando, Florida 32801 (407) 244-5683 Phone (407) 244-5690 Facsimile Disclaimer Under Circular 230: Any statements regarding tax matters made herein, including any attachments, cannot be relied upon or used by any person to avoid tax penalties and are not intended to be used or referred to in any marketing or promotional materials. This e-mail contains legally privileged and confidential information intended only for the individual or entity named within the message. Should the intended recipient forward this message to another person or party, that action could constitute a waiver of the attorney/client privilege. If the reader of this message is not the intended recipient, or the agent responsible to deliver it to the intended recipient, you are hereby notified that any review, dissemination, distribution or copying of this communication is prohibited. If this communication was received in error, please notify us by reply e-mail and delete the original message. 1 " '. ,FIRST AMENDMENT AND TERMINATION AGREEMENT TO FRANCHISE AGREEMENT THIS FIRST AMENDMENT and TERMINATION AGREEMENT to a FRANCHISE AGREEMENTrnade and entered. into the 271h day of September, 2004 by and between the CITY OF SANFORD, a Florida municipal corporation whose address is 300 North Park Avenue, Sanford, Florida 32771, hereinafter referred to as the "City" and WASTE SER\l1CES OF FLORIDA, INC.. a Delaware corporation authorized to do business in the State of Florida and the successor corporation to FLORIDA RECYCLING SERVICES, INC., a Delaware corporation by merger in February, 2004. whose address is 1099 Miller Drive, Altamonte Springs. Florida 32701, and whose mailing address is 11221ntemational Blvd" Suite 601, Burlington, Ontario l7L 6Z8, hereinafter referred to as the "Contractor". WITNESSETH: WHEREAS, the City and the Contractor are parties to the above-described Franchise Agreement (the "Franchise Agreement") providing for the. collection , transport and disposal by the Contractor of residential and commercial solid waste, recyclables and related material in the City; and WHEREAS, the City and the Contractor have agreed to terminate the Franchise Agreement effective May 31, 2007 and to amend certain terms of the Franchise Agreement in the period between the date hereof and the Termination Date. NOW THEREFORE, in consideration ofthe promises and mutual covenants herein contained, the parties hereto intending to be legally bound, hereby agree as follows: Section 1 - Termination 1.01 RecitalsJOefinitions. The above recitals (whereas clauses) are true and correct and provide a material part of the consioeratlon or tnlS Agreement upon wnlcn me parties have relied. 1.02 Termination of Franchise Aoreement. The City and the Contractor agree to terminate the Franchise Agreement effective May 31, 2007 ( the "Termination Date".) Accordingly, the first sentence of Section 2 of the Franchise Agreement. is deleted and replaced with the following: "The term of this Contract shan commence on October 1. 2004 and expire on May 31, 2007," In the sixty (60) days prior to the Termination Date (the "Transition Period"), the Contractor will assist the City in the transition of the contracted services to one or more new contractors designated by the City. In particular. in the Transition Period, in adcfltion to any obligations of the Contractor set out in the Franchise Agreement, the Contractor will: (a) provide the City with a listing of commercial customers, the number and size of containers per customer and the number of pick-ups per week for each customer, . (b) provide such other documentation and other information as may be required for a smooth transition to the new contractor(s). 1.03 Containers and Compactor Containers. The City will require the. new contractor to either purchase from Contractor at their then market value or swap all roll-off and roll-o{f compactor containers, and all front-load and front-load compactor containers provided by the Contractor with roll-off and front-load containers and rol1-off and , front toad compactor containers provided by the new contractor within sixty (60) days of the Termination Date. The Contractor acknowledges that title to all recycling bins provided by the Contractor and in the possession of any residential unit or commercial unit at the Termination Date vests in the City at the Termination Date. Section 2 -Interim Period Operation 2.01 Interim Period Ooeration. Throughout the period between the date of this Agreement and the Termination Date (the "Interim Periodj, the Contractor will continue to provide the collection, transport and disposal services set out in and in compliance with the terms of the Franchise Agreement. The City will pay the Contractor for all services performed by the Contractor in accordance with the tenns oftha Franchise Agreement. During the term of this Agreement all current charges to customers of the City of Sanford shall remain the same as of the date of this Agreement and will not be subject to increase. The final payment to the Contractor for services rendered through the Termination Date will be made no later than June 20, 2007. Final adjustments for fuel cost increases pursuant to Section 10.10 of the Franchise Agreement for the Interim Period shan be submitted to the City no later than . June 30, 2007 and will be considered by the City Commission no later than August 31,2007 contingent upon submittal by June 30, 2007 in the existing format as approved by the City . 2.02 Repayment of Prior liQuidated DamaQes Assessments. The City agrees that it will pay to the Co.ntractor no later than June 20, 2007, up to fifty percent (50%) reimbursement of liquidated damages assessed against the Contractor in the period from October 1, 2004 through May 31, 2007, representing the liquidated damages assessed against the Contractor in the period October 1, 2004 to May 31, 2007 provided the rate of acceptable failures as set forth in Exhibit 1, which is attached hereto and incorporated herein, is not exceeded during the Interim Period. The rate of acceptable failures and the reimbursement amount of each category are to be calculated independently for each category. Payment for successful completion and reimbursement is to be calculated on a category by category basis and not cumulatively. 2.03 Designated Facility. Effective the date of execution of this Agreement through the Termination Date, the City designates the Sanford Recycling and Transfer Station (the "Sanford Facility") at 563 North White Cedar Road, Sanford as a Designated Materials Recycling Facility pursuant to Section 15.1 of the Franchise Agreement. Page 2 of 4 .' The Sanford Facility shall operate in accordance wjth the conditions and commitm~nts contained in the City of Sanford Development Order No. 03-0058 and Florida Department of Environmental Regulation Permit/Certification Number 5059- 0203666-001. The Contractor may process and .recycle all source separated recyclable materials and commercial cardboard coOected within the City of.Sanford at the. Sanford Facility. Contractor will pay the City for commercial recyclabtes delivered to the Sanford Facility in accordance with the Official. Board Markets for 'recyclable commodities (''YellowSheetstl) less a$30.00/ton processing fee Whidl is deemed to be the normal and appropriate recyclable processing fee. Section 3. General Matters 3.01 Contractor will supply monthly volume activity reports for the Sanford Transfer and Recycling Facility to the City in addition to the quarterly reports as presently required by the Florida Department of Environmental Protection. 3.02 Remainder of Agreement. Except as specifically modified by this First Amendment and Termination Agreement, the remainder of the Franchise Agreement shall remain in full force and effect. SIGNATURE PAGE FOLLOWS Page 3 of 4 IN WITNESS WHREOF I the parties have duly executed this Agreement this [ ] day of December, 2006. (Corporate Seal) Waste Services of Florida, Inc., a Delaware corporation and successor to Florida Recycling Services, Inc. A- Slgnatu J 2Jb,c.J1k1J ~~~ Printed Name . // '7) /- () ,A/l~Jtk t';.~ I\t:= (;/c)/J (;)eA ~ Title Attest: ,~\ ....../~~ Ivan. R:.Cairns, Secretary Attest: City of Sanford, Florida A municipal corporation 9!.u.d1\. ^~!~ . anal Dougherty, C'. Clerk · Robert (Sh an) Yehl (As approved by the City Commission) Approved as to form: /';~&z.2 ~ William L Colbert. City Attorney Page 4 of 4 MEMORANDtJ Stenstrom, MClntosh,colher; wbigbam & Partlow, P.A. 1001 Heatbrow park. Lane, Suite 4001 Lake MaT>>, Florioo 32-746 (407) 32-2-2I71 Date: Sherman Yehl, City Manager (via hand delivery) . 'tJr ./ Kenneth w. Mctntosh, Assistant City Atlo~'t~ December 13, 2006 To: From: Re: City of Sanford I Waste Services, Inc. - First Amendment and Termination Agreement to Franchise Agreement xc: Kristl Aday. Deputy City Manager (via hand delivery) Tom George, Public Works Director (via hand delivery) James Poulalion, Finance Director (via hand delivery) Emily McCabe, Solid Waste Coordinator (via hand delivery) Paul Chipok, Esquire (via facsimile 407-244-5690) William L. Colbert, City Attorney Waste Services, Inc.'s First Amendment and Termination Agreement to Franchise Agreement is now ready for execution in duplicate by the City. Mr. CHipok indicates that Don Groseclose will come to your site to sig.n if you will call him. Monthly reporting has been added pursuanUo instructions from the Commission as Section 3.01 under General Matters. The Agreement is ready for final action. Please call if there are any questions. 1:\Oanielle\KWMc\Cities\SANFORD\Wut8 Services, 1nc'oMemo to CM Fe mal agr.2.wpd Paul H. Chiptik SUlU 1400 301 EAST PINE STREET (32801) P.O. Box 3068 ORLANDO, FL 32802-3068 TEl. 4-07-8+3.8880 ux 4-07.244-5690 gray-robinsoll.COIJ1 ClUMONT FOllT LAUDEP.IMH jACK.SQNYlll.E. KIT WE.ST UnLAND ME.LJOUIlNE. NAPLE.S DIlUNDO TALlAHASSE.E. TAMPA GRAY\ROBINSON ATTORNEYS AT LAW 407-244-5683 PCHIPOIC@GRAY-ROBlNSON.<::oM , Decemb.er 11, 2006 EMAIL AND U.S. MAIL Kenneth M.Mclntosh, Esquire :Jt~nstromJ ~lcIntoshJ Colb~rt, "\Vhigham 1001 Heatbrow Park Lane, Ste 4001 Lake Mary, Florida 32746 Re: Waste Services, Inc. Client-Matter No. 230560-1 Dear Mr. McIntosh: We are deeply appreciative of the efforts that the City of Sanford has made to terminate the solid waste contract authorized in Mr. Yehl's August 31 letter. Th fth Fir Am. , . .... . ... . 11 e use 0 e st ellUllJ.Clil. C:1llU J.. cU.uJ.UUI.J.uu - ...b.L........:.:..::.~~ ~.: ::: -..:~...::-u_~' beneficial to both parties. The Sanford Transfer and Recycling facility will prove to be an asset to both Waste Services and the City of Sanford in the future. Since the county owned transfer station presently servicing Seminole County does not provide services for C&D this facility will supplement an already successful city program. We do not believe that a modification to the D.O. is in order. We agree that the word "primarily"should be defined as mostly, principally, or greater than. We would like not to be too restrictive in our interpretation. The present operational plan confirms that the Sanford Facility will be operated primarily as a recycling facility to comply with our FDEP permit and D.O. Recycling products can be measured in both weight and/or volume. As a practical matter concrete, which is part of construction and demolition debris (C & D material) is heavier than cardboard, a recyclable material. Thus, a mixed load carrying both concrete and cardboard will severely limit the opportunity to recycle if measured solely by weight. A more practical approach is to calculate the operation of the Sanford Facility by volume. In other words, more than fifty percent (50%) of material by volume (i.e. yards) passing through the Sanford Facility will be recyclable materials. With this one change Waste Services of Florida agrees with . GRAyROBJNSON PROFESSIONAl. AsSoCIATION Kenneth M. McIntosh, Esquire December 11. 2006 . Page 2 Mr. Yebl's letWr of December 8,2006. We would expect that the Sanford Facility will act accordingly to process as much recyclable material as possible, thus . generating a consistently acceptable rate of recovery. Waste Services will supply reports to the City on a quarterly basis as presently required by the Florida Department of Environmental Protection. Thank you for yoUr efforts in resolving these matters. Sincerely, , 6JJ/ff~ Paul H. Chipok cc: Don Groseclose Sherman Yehl, City Manager Kristi Aday, Deputy City Manager James Poula1ion, City Finance Manager Thomas George, Public Works Director PHC/:kst \230660'.1 - # 569853 vl .' MAILING ADDREss CITY Of SANfORD PoST OFFICE BoX 1188 iANF()RD. FLORIDA 32772.1788 PHvsICA1AooRESS CITY HALl 300. NORTH PARKAVENVE 3ANFORD. FlORIDA 32771-1244 . TElEPHONE 407.330.5602 FACSIMILE 407.330.5616 WeeSITE WWW.CI.SANFOflO.FLUS . Crrv CoMMISSION lJNbA KUHN MA\'OfI ARt WOODRUFF DISTRICT 1 DR. VELMA H. WIWAMS D1STRlCT2. VIcE MAYOR RANOY JONES Dt$TRtCT 3 JACKT. bRIDGEs DIsTRIct 4 . Crrv MANAGaI ROBERt (StliRMANl YEHL OFFICE OF THE Crrv MANAGER December 8. 2006 Mr. Don Groseclose District Manager Waste Services of Florida, Inc. 1099 Miller Drive Altamonte Springs, Florida 32701 Dear Mr. Groseclose: I understand we have made some progress terminating the contract and franchise as authorized in my letter to you of August 31. 2006. In recommending the execution of the termination agreement, I want to clarify a couple of issues: . The City has no objection to WSI using the Sanford site for the disposal of construction and demolition debris as long as it does not violate DO 03-0058 which requires that the site be operated primarily as a recycling/acility 0/ solid waste... . The City is interpreting primarily in a common dictionary definitio~ i.e. mostly, principally, which means that the site will be used for recycling putpOSes for more than 50%. by weight, of material deposited and recycled. . Detennination of compliance with the DO will be determined by City review of the periodic reports required by Chapter 62~ 701.9 (Florida Statutes) for the Florida Department of Environmental Protection. We are requesting that such reports be provided to the City. While I recognize that my August 31 letter outlined no conditions regarding termination. the fact of the matter is that the franchise agreement provides no mechanism for early termination. The use of the Pirst Amendment is a mU!'.l2Hy be-neficial method of achieving this terminMion but has to be done in accordance with the existing DO for operation of the Sanford site. In addition, we are offering WSI a sizeable financial benefit to the early exit as well as the recovering of prior liquidated damages. However, should you believe that the DO needs to be modified to allow for certain waste to be taken to the site, you should submit an amended DO to the Planning and Development Services Department. An amendment will require a review by both the Planning and Zoning Commission and the City Commission. "1_ ,,_ ,~.. JI.. /,I""n ,~,,- , ..~.,-.."...-, ..,......., December 8, 2006 Page 2 of2 Mr. McIntosh will be in contact with Mr. Chipok with a final agreement today, which includes the suggested modification to ~2.03. We will present the matter tothe Commission on Monday with a full briefing scheduled for the workshop beginning at 4:00 PM and action on the tennination agreement scheduled for the regular session beginning at 7:00 PM. I appreciate your willingness to resolve this matter. Please feel free to contact me at 407.330.5604 if you have any questions. Sincerely, C: Public Works Director Solid Waste Coordinator Finance Director Assistant City Attorney (McIntosh) Deputy City Manager