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739-FL Recyling-Amendment 1 COMMERCIAL ff"LID WASTE COLLECTION AND IY""9OSAL AGREEMENT THIS AGREEMENT made and entered into this the ~5 4h day of December, 1998, by and between the CITY OF SANFORD, 300 North Park Avenue (c/o Post Office Box 1788), Sanford, Florida, a Florida municipal corporation, hereinafter referred to as the "CITY", and Florida Recycling Services Incorporated, 204 North Park Avenue, Sanford, Florida 32771, a Florida Corporation, hereinaf~er referred to as the "CONTRACTOR". WITNESSETlt: WItF, REAS, it is the intent of the City of Sanford to grant rights to the CONTRACTOR for the collection and removal of commercial solid waste and recycling generated by customers within the City; and WHEREAS, the CITY is duly authorized to grant rights for the collection and disposal of solid waste within the City of Sanford, Florida; and WHEREAS, said CONTRACTOR agrees to provide service at rates to the CITY as specified and required herein; and WHEREAS, said CONTRACTOR has presented satisfactory evidence to the CITY that it is in an adequate physical and financial position to provide such service under all rules and regulations of the CITY; and WItEREAS, the CITY and the CONTRACTOR anticipate entering into a five year agreement for all solid waste services within the CITY that will supersede this agreement, and the CITY has found it necessary to acquire the services described herein in the during the period of time before execution of said five year agreement; and WltE~REAS, the CITY has found that the granting of rights for the collection and disposal of said solid waste to the CONTRACTOR is in the best interest of the public; NOW THEREFORE, in consideration of the mutual covenants, agreements, end considerations contained herein, the CITY and the CONTRACTOR intending to be legally bound, hereby agree as follows: SECTION 1 - SCOPE OF CONTRACTOR'S WORK: Commercial Service: A. Commercial service customers shall be defined to include, but not be limited tu, office buildings, stores, filling stations, lodges, motels, laundries, hotels, all public buildings, food services, lodging ~ :- establishments, service establishments, light industry, schools, churches, clubs, hospitals, nursing ~: homes, apartments, condominiums, and mobile home parks using mechanically emptied containerized collection that are within the corporate limits of Sanford and are currently authorized customers of the CITY or are designated hereafter as authorized by the CITY. B. The CONTRACTOR shall provide commercial mechanical container service with the option of "' ' two, three, four, six or eight cubic yard containers that are emptied by mechanical means. The ' .~. '. choice of service option and the frequency of collection (for mechanical container service) shall c~. be a negotiated agreement between the customer, the CONTRACTOR, and the CITY, however, all service options end frequencies shall be sufficient to meet the minimum bona fide solid waste requirements of the customer and sufficient to protect the health and welfare of the CITY. No customer agreement shall be for a term extending beyond the term of this agreement and all customer agreements shall terminate with the expiration or termination, whichever occurs first, of this agreement and all remaining service rights, if any, shall revert to the CITY. The CITY reserves the right to revise the sendee option and/or frequency of collection for an individual customer if required to protect the public health or to eliminate a public nuisance. Page 1 of 9 COMMERCIAL SCr'~D WASTE COLLECTION AND DL~'QSAL AGREEMENT C. For commercial recycling customers who are currently serviced by the CITY, the CONTRACTOR shall be compensated at the CITY's current price, ten dollars ($10.00) per month for each cubic yard collected per week. D. All solid waste generated by commercial sexvice customers shall be collected by the CONTRACTOR, except for excluded materials that are prohibited from being disposed of at the Seminole County landfill, or by law. E. It is the duty of the commercial service customers to accumulate solid waste in locations mutually agreed upon by the commercial service customer and the CONTRACTOR, and which are convenient for collection by the CONTRACTOR. Where mutual agreement is not reached, the CITY shall designate the location consistent with the ordinances and requirements of the City of Sanford. F. The CONTRACTOR shall make collections with as little disturbance as possible to business and commercial establishments and neighboring residential areas. This work shall be done in a sanitary manner and any refuse spilled by the collector shall be picked up immediately by the CONTRACTOK's employees. The CITY reserves the right to adjust the time of service for individual customers to protect the public health or eliminate public nuisances. G. Commercial service customers shall use only the following types of containers: a. Cubic yard mechanical containers provided and owned by the CONTRACTOR and/or the CITY; b. Cubic yard mechanical containers previously provided by the CITY and acquired by the CONTRACTOK where applicable. H. All cubic yard mechanical containers provided after the effective date of this Agreement shall be provided by, and maintained by the CONTRACTOF.. The CONTRACTOR shall maintain all containers previously provided by the CITY regardless of ownership, except that the repair of any cubic yard container owned by a commercial customer and damaged by any third party (other than the CITY or the CONTKACTOK), or by any act of nature, shall be the responsibility of the commercial service customer or the party causing said damage. Additionally, since the nature of this agreement is temporary pending the parties antefins into a five year agreement and there are many containers in need of replacement, the CITY agrees to reimburse the CONTRACTOR for expenses incurred in replacing containers identified by the City as in need of replacement at rates stated herein should said five year agreement not be executed as anticipated and the CONTRACTOR becomes the service provider with the customer. SECTION 2 ~ CONTRACTOR'S RELATION TO THE CITY: A. CONTRACTOR As Independent Contractor It is hereby understood and agreed to by the parties that the CONTRACTOR shall be deemed to be an independent contractor and neither the CONTRACTOR nor any ofit's officers, agents or employees shall attain any rights or benefits under the civil service or pension ordinances of the City of Sanford, or any rights generally afforded to classified or unclassified employees of the CITY. Nothing contained in this subsection shall be deemed to affect vested fights, if any, of CITY employees hired by the CONTRACTOR. B. Supervision ofContract Performance The CONTRACTOK's pefform~ance of this Agreement shall be supervised by the CITY' s Public Works Department Director, or designee, herein referred to as the Director, in writing. If at any time during the term of the Agreement performance satisfactory to the Director shall not have been made, the CONTRACTOR, upon notification by the Director, shall within three days increase the force, tools and equipment as needed to properly perform this Agreement. The failure of the Director to give such notification shall not relieve the CONTRACTOR of the Page 2 of 9 COMMERCIAL St"~"~D WASTE COLLECTION AND DI~gSAL AGREEMENT obligation to perform the work at the time and in the manner specified by this Agreement. C. Inspection Of Work The CONTRACTOR shall provide the Director with every reasonable opportunity to ascertain whether or not the work, as performed, is in accordance with the requirements of this Agreement. The CONTRACTOR shall designate, in writing a person to serve as liaison between the CONTRACTOR and the CITY. The Director may appoint qualified persons to inspect the CONTRACTOR's operation and equipment at any reasonable time, and the CONTRACTOR shall admit such persons to make such inspections at any reasonable time and place. D. Billing For Commercial Accounts The CITY shall bill each commercial service customer for services rendered, in arrears, each month in accordance with the applicable provisions of the CITY's Code of Ordinances and in accordance with the rates, terms and conditions of this agreement and the attached proposal documents. E. Service Initiation, Termination Or Change Customers shall initiate, teminate, and change services through the CITY. The CONTRACTOR shall not receive payment for service rendered which has not been initiated through the CITY, nor shall payments be made for customers that have terminated service with the CITY. Notice of service initiation and termination shall be given by the CITY to the CONTRACTOR within two working days of date the customer notifies the CITY. The CONTRACTOR shall notif~ the CITY of all requests for service that involve additional charges within two working days of such request so the CITY can arrange for the invoicing of said service. F. Operation During Dispute In the event of a dispute between the CONTRACTOR and the CITY, the CONTRACTOR agrees to continue to operate and perform under the terms of this Agreement while such dispute is pending, and further agrees that, in the event a suit is filed for injunction or other relief, it will continue to operate the system until the final adjudication of such suit by the court. G. Handling Complaints The CONTRACTOR shall perform a service of high quality and shall make every effort to minimize the number of legitimate complaints. All customer complaints shall be directed to the CONTRACTOR. All complaints shall be logged to indicate the name and address of the person complaining, the nature of the complaint, and the disposition of such complaint. All complaints, whether received in person, by mail or by telephone, shall be recorded in duplicate. One ( 1 ) copy shall be retained by the CONTRACTOR and one ( 1 ) copy shall be promptly forwarded to the CITY. Complaints received before 12:00 noon shall be resolved before 6:00 p.m. on the same day; complaints afier 12:00 noon shall be resolved by 12:00 noon on the following day. For each month in which the number of unresolved legitimate complaints reaches fn°ceen (15) or more, whether for garbage, for yard waste, or for any other cause, the CITY shall be entitled to claim liquidated damages often ($10.00) dollars per unresolved complaint, ~.e. the first 15 times $10.00, plus $10.00 for each additional unresolved complaint that month). Each complaint shall be considered legitimate unless satisfactory evidence to the contrary is furnished to the Director. The decision of the Director shall be final. H. Equipment 1. Amount: The CONTRACTOR shall provide sufficient equipment, in proper operating condition, in order to maintain regular schedules and routes of collection. 2. Condition: Equipment shall be maintained in a reasonable, safe, working condition, shall be painted uniformly, with the company name and telephone number printed in letters no less than three (3") inches on each side of the vehicle, and vehicles shall be numbered with numbers at least three (3') feet (above ground level) on each side of the vehicle to which each Page 3 of 9 COMMERCIAL S("~Y!) WASTE COLLECTION AND DI~f)SAL AGREEMENT number is assigned. No advertising shall be permitted on vehicles other than the standard company logo. The CONIIL~CTOR shall keep collection vehicles in a clean and painted condition in order to present an aesthetically pleasing appearance. 3. Aesthetic Appearance of Dumpsters: The CONTRACTOR shall keep all dumpsters in a dean, neat, and painted condition, and shall prepare a schedule of malntenaneeJreplacement of them for approval by the director. Such schedule shall be sufficient to maintain their sanitmy condition and aesthetic appearance. The CONTRACTOR shall permit the property owner or the property owner's agent to paint the exterior of the dumpster for purposes of enhancing the aesthetic appearance subject to written approval of the Director. I. Employees A. Laws: The CONTRACTOR shall comply with all applicable State and Federal laws relating to wages, hours, and all other applicable laws relating to the employment or protection of employees, now or hereafter in effect. B. Federal Minimum Wage: The CONTRACTOR is required and hereby agrees by acceptance of this Agreement to pay all employees not less than the federal minimum wage and to abide by other requirements as established by the Congress of the United States in the Fair Labor Standards Act as amended and changed tom time to time. C. Employees - In General: No person convicted of a crime, crimes and/or repeated non- criminal violations of traffic laws which demonstrate a propensity to unfaithfully fulfill the duties of his employment such as, but not limited to, larcenous activity, aggravated battery, or other violence, those relating to the operation of motor vehicles, and any crime for which civil rights have been removed within two (2) years, shall be employed by the CONTRACTOR. J. Disposal of Refuse The CITY is not responsible for payment of the disposal fees charged by Seminole County, or other disposal operator, that the CONTRACTOR incurs. The CONTRACTOR shall dispose of all collected waste in accordance with State and Federal statutes and/or regulations and agrees to accept all liability for any remedial activities or fines which may arise t~om the unlawful disposal of waste. K. Compliance with Laws & Regulations The CONTRACTOR hereby agrees to abide by all applicable Federal, State, County and CITY laws and regulations including Federal, State, County and CITY laws and regulations relating to hazardous substances. The CONTRACTOR and its surety shall indemnify and save harmless the CITY, all its officers, representatives, agents and employees, both elected and appointed, against any claim or liability arising from or based on the violation of any such laws, ordinances, regulations, orders or other decrees, whether by itself, its employees or its subcontractors, or which may arise out of or resulfmg ~'om operations under this Agreement. This clause shall apply not only during the term of this Agreement, but also as to any claim, liability, or damages which are based on the CONTRACTOR's conduct during the term of this Agreement and in the event the CITY is charged with the responsibility, jointly or severally, for the aforementioned conduct as a successor to the CONTRACTOR. The CONTRACTOR, by executing this Agreement, represents that no person who is or who shares in legal or factual control of the affairs and policies of the business entity as a whole is under indictment or has been convicted within the five (5) years immediately prior to the date of this Agreement in a local, State or Federal court for an offense involving moral turpitude arising out of the person's relationship with a governmental agency. This provision shall be interpreted in a manner consistent with Mid-American Waste Systems of Florida, Inc. v. City of Jacksonville, 596 So.2d 1187 (Fla. 1st DCA 1992). If this representation is subsequently determined to be false, this Agreement shall be subject to immediate termination. Page 4 of 9 COMMERCIAL St"'~ID WASTE COLLECTION AND DI~"~JSAL AGREEMENT The CONTRACTOR may be required to prepare full cost accounting under the provisions of Florida Administrative Code, Rule 177.08, Section 403.704.9 or furnish data to reporting authority as requested by the CITY. L. Insurance The CONTRACTOR shall not commence work under this agreement until obtaining all insurance required under this Agreement and until such insurance coverage has been approved by the CITY Manager, nor shall the CONTKACTOK allow any subcontractors to commence work on subcontracts until similar insurance of the subcontractor has been obtained and approved by the CITY and the CONTRACTOR. The CONTKACTOR will have and maintain such insurance as will protect it from claims under workers Compensation Laws; disability benefit laws, or other similar employee benefit laws; from claims for damages because of bodily injury, occupational sickness or disease, or death of his employees including claims for damages because of bodily injury, sickness or disease, or death of any person other than his employees, including claims insured by usual personal injury liability coverage; and from claims for injury to or destruction of tangible property including loss of use resulting therefrom any or all of which may arise out of or restfit from the CONTKACTOK's operations under the Agreement, whether such operations be by himself or by any subcontractor or anyone directly or indirectly employed by any of them or for whose acts any of them may be legally liable. This insurance shall be written for not less than any limits of liability specified or required by law, whichever is greater. Prior to commencement of work, the CONTRACTOR will file with the CITY certificates of such insurance, acceptable to the CITY. These certificates shall contain a provision that the coverage afforded under the policies will not be canceled or materially change until at least thirty days prior written notice has been given to the CITY. The CONTRACTOR agrees that failure to maintain the required insurance will result in termination of this agreement. MINIMUM INSURANCE REOLffRED:. A. General: Before starting and until completion of the term of the Agreement, the CONTRACTOR shall procure and maintain insurance of the types and to the limits specified in Paragraphs B (1) through (3) inclusive below. All policies shall be of the "Occurrence" type, "Claims Made" type policies shall not be accepted. B. Coverage: The amounts and types of insurance shall conform to the following minimum requirements:. 1. Worker's Compensation: Coverage to apply for all employees for Statutory Limits in compliance with the applicable state and federal laws. In addition, the policy must include the following: a. Employer's liability with a limit of $100,000 each accident. b. Notice of Cancellation and/or Restriction-The policy must be endorsed to provide the CITY with thirty (30) days written notice of cancellation and/or restriction. 2. Comprehensive General Liability: Coverage must be afforded on a form no more restrictive than the latest edition of the Comprehensive General Liability Policy filed by the Insurance Services Office and must include:. a. Minimum limits of $1,000,000 per occurrence and $5,000,000 aggregate combined single limit for Bodily Injury Liability and Property Damage Liability on, b. Premises and/or Operation, c. Independent contractors, d. Additional Insured - The CITY is to be specifically named as additional insured, and e. Notice of Cancellation and/or Restriction. The policy must be endorsed to provide the CITY with thirty (30) days written notice of cancellation and/or restriction. Page 5 of 9 COMMERCIAL Sr""'TD WASTE COLLECTION AND DI?"~SAL AGREEMENT 3. Comprehensive Automobile Liability: Coverage must be afforded on a form no more restricted than the latest edition of the Comprehensive Automobile Liability Policy filed by the Insurance Services Office and must include:. a. Minimum limit orS1,000,000 per occurrence combined single limit for Bodily Injury Liability and Property Damage Liability on b. Owned Vehicles, c. Hired and Non-Ownership, and d. Employee Non~Ownership, and e. Notice of Cancellation and/or Restriction. The policy must be endorsed to provide the CITY with thirty (30) days written notice of cancellation and/or restriction. 4. Certificates of Insurance and Copies of Policies: Certificates of Insurance in triplicate evidencing the insurance coverage specified in the previous paragraphs (B) ( 1 ) through (3) inclusive, and certified copies of the bond as required shall be shall be flied with the CITY before operations are begun. The required certificates of insurance not only shall name the types of policies provided, but also shall refer specifically to this proposal and section and the above paragraphs in accordance with which insurance is being funfished, and shall state that such insurance is as required by such paragraphs of this proposal. 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 their expiration. The following cancellation clause must appear on the Certificate of Insurance. The present Cancellation Clause appearing on the Certificate must be X'd out and initialed by the Agent of the Insurer:. "Cancellation - Should any of the above described policies be canceled before the stated expiration date thereof; insurer will not cancel same until at least 30 days prior written notice (by certified mall) has been given to the City of Sanford, the below named certificate holder. This prior notice provision is a part of the above described policies. Job Location: City of Sanford.". SECTION 3 - SCHEDULES AND ROUTES: In General: A. The CONTRACTOR shall provide service in compliance with the terms and conditions contained in this agreement. The CONTRACTOR shall perform routes and meet schedules similar to those currently established by the CITY throughout the term of this agreement. The CITY will provide the CONTRACTOR with information on existing routes, schedules and customer lists to assist the CONTRACTOR in development of its own routes, schedules and customer lists; however, the CITY in no way warrants or guarantees the accuracy or completeness of the information provided. The CONTRACTOR may request modifications and, on concurrence of the CITY and the customer, change existing routes and schedules to a more efficient method. B. The CITY reserves the right to deny the CONTRACTOR's vehicles access to certain streets, alleys and public ways, inside the City or outside the City in route to the disposal facilities, where it is in the best interest of the general public to do so, due to conditions of streets or bridges. The CONTRACTOR shall not interrupt the regular schedule and quality of service because of such street closures. C. The CONTRACTOR is aware that the quantity of refuse to be disposed of is materially increased by fluctuations in the amount of materials offered for collection. The CONTRACTOR agrees to assume a reasonable amount of any increase while maintaining Page6of9 COMMERCIAL Se'~ID WASTE COLLECTION AND DI~gSAL AGREEMENT normal route and schedules. In the event of a natural disaster the CONTRACTOR shall request in writing to the CITY for assistance. SECTION 4 - TERM OF AGREEMENT - COMMENCEMENT OF WORK: The term of this Agreement shall be for a ninety (90) day period, which shall commence on the date first stated herein and terminate ninety days later unless terminated or breached at an earlier date, or until the panics enter into the anticipated five year agreement for all solid waste services, whichever occurs first. Failure to commence work as stated will result in termination of this agreement. SECTION 5 - SCHEDULE OF PAYMENTS: Schedule of Payments A. For and in consideration of the services to be performed by the CONTRACTOR pursuant to this Agreement, the CITY agrees to make monthly payments, in arrears, for service rendered and all other payments as may apply, by the fifteenth (15th) day of each month, with the first payment to be made 45 days after the commencement of service. Payments to the CONTRACTOR shall be calculated by multiplying the rate, quoted in the CONTRACTOR' s response to the CITY' s Request for Proposal, Five Year Contract Term, page 7 - Commercial Mechanical Container Service line, of $3.07 per cubic yard per week using the following formula: ((a * b) + (c * d) + e) - f -- w, where: (a) equals: the total actual commercial waste collection/disposal yardage for the week. (b) equals: rate of $3.07. © equals: the total actual recycling collection/disposal yardage for the week. (d) equals: rate of $2.50 for recycling collection for the week. (e) equals: total call-in/special work for the week. (f) equals: total any applicable liquidated damages or penalties, lease payments, and any other applicable payments as they may occur. (w) equals: total payment for one week of service. B. In the event the parties do not enter into the anticipated five year agreement for solid waste services, the CITY agrees to re'kmburse the CONTRACTOR for expenses incurred in purchasing replacement containers authorized in writing by the Director and provided to the CITY's customers by the CONTRACTOR during the term of this agreement and that are left with the customer by the CONTRACTOR. Both parties agree that the rate of reimbursement shall be: $280.00 per two cubic yard container, $365.00 per four cubic yard container, $460.00 per six cubic yard container, $560.00 per eight cubic yard container, and actual invoiced cost for lids and/or related appurtenances. Such payments shall be made within sixty (60) days of the termination of this agreement. Should the parties reach agreement and consummate the anticipated agreement, the CONTRACTORshall waive all claims for reimbursement of any and all such expenses. SECTION 6 - INDEMNIFICATION The CONTRACTOK shall indemnify and hold harmless the City of Sanford and it's agents, officers and employees, both elected and appointed, from and against all claims, damages, losses and expenses, including but not limited to attorneys' fees and judgaments, arising out of or resulting from the work provided that the claim, damage, loss and expense is caused in whole or in part by any act or omission, negligent or otherwise of the CONTRACTOR, any subcontractor, anyone directly or indirectly employed by any one of them or anyone for whose acts any of them may be liable, regardless or whether or not it is caused in part by a party indemnified hereunder. It is expressly Page 7 of 9 COMMERCIAL S~'~ID WASTE COLLECTION AND DF"~SAL AGREEMENT understood and agreed that CONTRACTOR is in all respects an independent CONTRACTOR as to all work to be performed hereunder, notwithstanding that directions with regard to CONTRACTOR performance thereunder may be issued from time to time by the CITY, its employees and/or its agents. CONTRACTOR shall pay any attorney's fees and costs incurred by the CITY plus any judgments which may be obtained against the CITY in any administrative or judicial proceedings, either alone or jointly with CONTRACTOR, its agents or employees, for injury or damages to persons or parties by mason of CONTRACTOR's performance or nonperformance of its obligations under this Agreement; provided, however, that if the CITY alone is sued for such injttty or damage, written notice shall be given to CONTRACTOR to appear and defend such action on the CITY's behalf. CONTRACTOR shall hold the CITY harmless against any damages, attorney's fees and/or any costs incurred by the CITY as a result of the CITY's award to CONTRACTOR of the franchise set forth in this Agreement and any challenges thereto. In the event of litigation between CONTRACTOR and the CITY arising out of or relating the enforcement or interpretation of the Agreement, the prevailing parcy shall be endfled to recover all of its costs and attorney's fees at the trial and all appellate levels from the other party. SECTION 7 - NOTICE: Notice, for purposes of the CONTRACTOR, as called for under this Agreement, shall be forwarded to: Sid Vihlen Jr. and Joe Briarton, 204 N. Park Avenue, Suite 100, Sanford, Florida 32771 and like notices to Frank Ward Jr., 2401 S. Latin Street, Chicago, Illinois 60608. Notice for purposes of the CITY, as called for under this Agreement, shall be forwarded to: Pnblic Works Director, City of Sanford, Post Office Box 1788, Sanford, Florida 32772-1788. SECTION 8 - PERFORMANCE REOUIREMENTS: CONTRACTOR hereby guarantees performance of all of its obligations hereunder in accordance with Florida law and any CITY ordinances now in effect or hereinaecer enacted. CONTRACTOR acknowledges that it is thoroughly familiar with Florida law and CITY ordinances and shall abide by their specific terms at all times. SECTION 13 - SEVERABILITY In the event any article or section of this Agreement or of any amendments thereto, is held invalid by operation of law or by any tribunal of competent jurisdiction, or if compliance with or enforcement of any article or section shall be restrained by such tribunal pending a final determination as to its validity, the remainder of this Agreement and of any amendments thereto, or the application of such article or section to persons or c'nceumstances other than those to which it has been held invalid or as to which compliance with or enforcement of has been restrained, shall not be affected thereby. SECTION 15 - MUTUAL AGREEMENT. CONTRACTOR 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. Page 8 of 9 COMMERCIAL SAID WASTE COLLECTION AND DI""'OSAL AGREEMENT FLO RE~ SER , INC. -, CITY OF SANFORD, FLORIDA SID VIHLEN JR., ASST. VICE PRESIDENT LARRY A. DALE, MAYOR ATTEST: ATTEST: STATE OF FLORIDA COUNTY OF SEMINOLE ~ The foregoing instrument was acknowledged Sid Vihlen Jr. as Assistant Vice President for Date &Seal Florida Recycling Services, Incorporated. ~$V PO~ D lANE CREWS Not~ Si~q~tu~e Personally Known ¢ OR Produced Identification Type of Identification Produced Page 9 of 9