Exhibit 10.1
Non- Exclusive
Commercial Solid Waste
And Recyclable Materials
Collection Service Agreement
By and Between
ST. LUCIE COUNTY,
FLORIDA
And
Choice Sanitation, Inc.
TABLE OF CONTENTS
PAGE #
ARTICLE I
DEFINITIONS AND CONSTRUCTION
SECTION 1.01 DEFINITIONS............................. 2
SECTION 1.02 CONSTRUCTION........................... 9
SECTION 1.03 SECTION HEADINGS...................... 9
ARTICLE II
REPRESENTATIONS
SECTION 2.01 REPRESENTATIONS OF THE COUNTY............ 10
SECTION 2.02 REPRESENTATIONS OF CONTRACTOR......... 10
ARTICLE III
SCOPE OF SERVICES AND TERM OF AGREEMENT
SECTION 3.01 SERVICE PROVIDED BY CONTRACTOR............ 11
SECTION 3.02 HAZARDOUS WASTE............................ 14
SECTION 3.03 CHANGES IN SCOPE OF COLLECTION SERVICE... 14
SECTION 3.04 TERM OF AGREEMENT......................... 14
SECTION 3.05 POINT OF ORIGIN REPORTS.................. 14
ARTICLE IV
SOLID WASTE COLLECTION SERVICE
SECTION 4.01 SOLID WASTE COLLECTION SERVICE....... 15
SECTION 4.02 CONDITIONS AND FREQUENCY OF SERVICE....... 15
SECTION 4.03 METHOD AND HOURS FOR COLLECTION............. 17
SECTION 4.04 AGREEMENTS FOR SOLID WASTE COLLECTION
SERVICE.............................. 17
SECTION 4.05 TERMINATION OF SERVICE...................... 18
SECTION 4.06 USE OF SOLID WASTE DISPOSAL FACILITY........ 18
ARTICLE V
RECYCLABLE MATERIALS COLLECTION SERVICE
SECTION 5.01 SERVICE TO CERTAIN DWELLING UNITS.......... 20
SECTION 5.02 FREQUENCY OF SERVICE....................... 20
SECTION 5.03 ACCESSIBILITY.............................. 20
SECTION 5.04 HOURS FOR SERVICE.............................. 21
SECTION 5.05 RECYCLING BINS, MINIBINS AND CONTAINERS..... 21
SECTION 5.06 MANNER OF COLLECTION.......................... 22
SECTION 5.07 PROCESSING AND MARKETING OF RECYCLABLE
MATERIALS.......................... 23
SECTION 5.08 RECYCLING COLLECTION EQUIPMENT.............. 23
SECTION 5.09 TITLE TO RECYCLABLE MATERIALS AND REVENUE
FROM RESALE......................... 24
SECTION 5.10 RECYCLING REPORTS............................. 24
SECTION 5.11 SCAVENGING PROHIBITED....................... 25
SECTION 5.12 EXPANSION OF RECYCLING PROGRAM............... 25
ARTICLE VI
FEES, BILLING AND COLLECTION
SECTION 6.01 COMMERCIAL BILLING, COLLECTION AND
PAYMENTS.............................. 26
SECTION 6.02 FRANCHISE FEES................................. 26
ARTICLE VII
OPERATIONS
SECTION 7.01 OFFICE...................................... 27
SECTION 7.02 CONTRACTOR PERSONNEL............................. 28
SECTION 7.03 COLLECTION EQUIPMENT..............................29
SECTION 7.04 SPILLAGE..................................... 30
SECTION 7.05 COMPLAINTS...................................... 30
SECTION 7.06 QUALITY OF PERFORMANCE OF CONTRACTOR....... 33
SECTION 7.07 PERMITS AND LICENSES..............................33
SECTION 7.08 WORKER'S COMPENSATION INSURANCE................ 33
SECTION 7.09 LIABILITY INSURANCE...............................33
SECTION 7.10 REPORTING REQUIREMENTS, BOOKS AND
RECORDS.............................. 34
SECTION 7.11 USE OF RECYCLED PRODUCTS................... 35
SECTION 7.12 POINT OF CONTACT........................... 36
SECTION 7.13 PUBLIC WELFARE.............................. 37
SECTION 7.14 INDEPENDENT CONTRACTOR...................... 37
SECTION 7.15 LOCAL IMPROVEMENTS.......................... 37
SECTION 7.16 TITLE TO WASTE.............................. 37
SECTION 7.17 PROMOTIONAL REQUIREMENTS.................... 38
SECTION 7.18 CUSTOMER SERVICE AND SERVICE AREA
DISPUTES........................... 39
SECTION 7.19 OWNER-HAULERS............................... 39
ARTICLE VIII
GENERAL PROVISIONS
SECTION 8.01 NOTICE...................................... 40
SECTION 8.02 DEFAULT OF CONTRACT......................... 40
SECTION 8.03 INDEMNITY................................... 45
SECTION 8.04 CHANGE OF LAW............................... 46
SECTION 8.05 APPLICABLE LAW, JURISDICTION AND VENUE...... 47
SECTION 8.06 ATTORNEY'S FEES............................. 47
SECTION 8.07 AMENDMENTS AND WAIVERS...................... 48
SECTION 8.08 ASSIGNMENT.................................. 48
SECTION 8.09 ENTIRE AGREEMENT.... 49
NON-EXCLUSIVE COMMERCIAL
SOLID WASTE AND RECYCLABLE MATERIALS COLLECTION SERVICE AGREEMENT
THIS AGREEMENT is made and entered into as of__________, 2000
by and between St. Lucie County, a political subdivision of the State of
Florida (the "County"), and Choice Sanitation, Inc. (the
"Hauler").
WITNESSETH:
WHEREAS, County, in exercise of its powers to regulate the health,
safety and welfare of its citizens and visitors, has selected Hauler to provide
collection services for certain solid waste and recyclable materials within all
or a portion of the unincorporated area of the County and, pursuant to an
interlocal agreement with the City of Fort Xxxxxx, to provide collection
services for certain recyclable materials within the City of Fort Xxxxxx;
and
WHEREAS, the Hauler is willing to provide collection services for such
solid waste and recyclable materials; NOW THEREFORE, in consideration
of the mutual promises, covenants and agreements contained herein, the
County and Hauler
mutually undertake, promise and agree for themselves, their successors and
assigns as follows:
ARTICLE I DEFINITIONS AND CONSTRUCTION
SECTION 1.01. DEFINITIONS. As used in this Non-Exclusive Commercial
Solid Waste and Recyclable Materials Collection Service Agreement, the following
terms shall have the following meanings unless the context hereof otherwise
requires.
Biological Waste" means Solid Waste that causes or has the capability
of causing disease or infection and includes, but is not limited to, biomedical
waste, diseased or dead animals, and other wastes capable of transmitting
pathogens to humans or animals. The term does not include human remains that are
disposed of by persons licensed under Chapter 470, Florida Statutes.
"Board" means the Board of County Commissioners of St. Lucie County,
Florida.
"Building" means any structure, whether temporary or permanent, built
for the support, shelter or enclosure of persons, chattel or property of any
kind.
"Bulk Container" means any portable non-absorbent water-resistant
container equipped with or without water-resistant lid or cover and approved by
the County Administrator that is (A) used to store not less than ninety gallons
and not more than ten cubic yards of Solid Waste and (B) designed to be emptied
by mechanical means.
City Service Area" means the area located within the corporate limits
of the City of Fort Xxxxxx, Florida
"Collection" means the process whereby Solid Waste and Recyclable
Materials are removed from Improved property and transported to a Solid Waste
Disposal Facility or other solid waste management or recycling facility.
"Collection" means the process whereby Solid Waste and Recyclable
Materials are removed from Improved property and transported to a Solid Waste
Disposal Facility or other solid waste management or recycling facility.
"Commercial Property" means all Improved Property other than
Residential Property.
"Construction and Demolition Debris" means materials generally
considered to be not water soluble and non-hazardous in nature, including, but
not limited to, steel, glass, brick, concrete, asphalt roofing material, pipe,
gypsum wallboard, and lumber, from construction of structures at a site remote
from the construction or demolition project, and including rocks, soils, tree
remains, trees, and other vegetative matter which normally results from land
clearing or land development operations for a construction project. Mixing of
Construction and Demolition Debris with other types of Solid Waste, including
material from a construction or demolition site which is not from the actual
construction and demolition of a structure, will cause it to be classified as
other than Construction and Demolition Debris.
"Contractor Generated Waste" means Construction and Demolition Debris,
Rubbish, Yard Trash, Bulk Items, or any combination thereof, generated by
builders, building contractors, privately-employed tree trimmers and tree
surgeons, landscape services, and nurseries. The term "Contractor Generated
Waste" does not include Yard Trash generated by routine lawn and yard
maintenance services.
"County" means St. Lucie County, a political subdivision of the State
of Florida.
"County Administrator" means the chief executive officer of the County
or the designee or designees of the County Administrator which shall represent
the County in the administration and supervision of this Agreement.
"County Service Area" means the unincorporated area of the County.
"Duplex" shall mean a Building that contains two Dwelling Units.
"Dwelling Unit" shall mean a Building, or a portion thereof, lawfully
used for residential purposes, consisting of one or more rooms arranged,
designed, used, or intended to be used as living quarters for one family only.
"Fiscal Year" means that period beginning October 1st of each year and
ending on the 30th day of September of the subsequent year.
"Hauler" means Choice Sanitation, Inc.
Hazardous Waste" means solid waste, or a combination of solid wastes,
which, because of its quantity, concentration, or physical, chemical, or
infectious characteristics, may cause, or significantly contribute to, and
increase in mortality or an increase in serious irreversible or incapacitating
reversible illness or may pose a substantial present or potential hazard to
human health or the environment when improperly transported, disposed or,
stored, treated, or otherwise managed. The term does not include human remains
that are disposed or by persons licensed under Chapter 470, Florida Statutes.
"Improved Property" means all property within the County on which a
Building or other improvements including, but not limited to, facilities
providing retail electrical service to such property have been placed or
constructed, which improvements result in such property generating Solid Waste
or being capable of generating Solid Waste.
"Land Clearing Debris" means vegetative matter resulting from a
comprehensive land clearing operation, but does not include Yard Trash.
"Mobile Home" means manufactured homes, trailers, campers and
recreational vehicles.
"Owner-Hauler" means the Hauler, only if the Solid Waste Collection
Service and Recyclable Materials Collection Service delivered by the Hauler is
limited to property owned by the Hauler.
"Public Entity Crime" means a violation of any state or federal law by
a person with respect to and directly related to the transaction of business
with any public entity in Florida or with an agency or political subdivision of
any other state or with the United States, including, but not limited to, any
bid or contract for goods or services to be provided to any public entity or an
agency or political subdivision of any other state or of the United States and
involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy,
or material misrepresentation.
"Recovered Materials" means metal, paper, glass, plastic, textile, or
rubber materials that have known recycling potential, can be feasibly recycled,
and have been diverted and source separated or have been removed from the solid
waste stream for sale, use, or reuse as raw materials, whether or not the
materials require subsequent processing or separation from each other, but does
not include materials destined for any use that constitutes disposal.
"Recyclable Materials" means those materials designated in writing by
the County to the Hauler, other than Recovered Materials, which are capable of
being recycled and which would otherwise be processed or disposed of as Solid
Waste. The materials initially designated by the County are (A) newspapers and
all inserts, (B) #1 PET and #2 HDPE plastic bottles (all colors), (C) aluminum
cans, (D) steel cans, and (E) glass bottles and jars (green, clear, and xxxxx).
"Recyclable Materials Collection Service" means the Collection of
Recyclable Materials.
"Recycling Bin" means two twelve-gallon stackable bins suitable for
temporary storage of Recyclable Materials, the first of which shall be green for
newspapers, and the second of which shall be blue for other commingled
Recyclable Materials. "Recycling Container" means (A) a 90-gallon hinged lid
container, (B) a front end load container with a storage capacity between 1
cubic yard and 8 cubic yards, or (C) such other storage container as may be
mutually agreed upon among the County, the Hauler and any individual customer.
"Recycling Minibin" means a bin with a volume of not less than ten
gallons that is suitable for temporary storage of Recyclable Materials.
"Residential Property" means each parcel of Improved Property on which
a Single-Family Residence, Mobile Home, Duplex or Triplex is located; provided
however, that "Residential Property" does not include any parcel of property on
which a Mobile Home is located that is (A) classified as either "RMH-5" or "PUD"
under the County's zoning regulations or (B) classified as "PUD" or as a
conditional use under "R-4A" or "R-5" under the zoning regulations of the City
of Fort Xxxxxx.
"Roll-Off Container" means any non-absorbent water-resistant container
equipped with or without water-resistant lid or cover and approved by the County
Administrator that is (A) used to store not less than ten cubic yards of Solid
Waste and (B) designed to be removed from the site and emptied at a Solid Waste
Disposal Facility.
"Rural Service Area" means that portion of the unincorporated area of
the County locate outside of the Urban Service Area. "Single-Family
Residence" shall mean a Building that contains a single Dwelling Unit.
"Solid Waste" means garbage, rubbish, refuse, Special Waste or other
discarded material, including solid, liquid, semisolid,
or contained gaseous material resulting from domestic, industrial, commercial,
mining, agricultural, or governmental operations. The term does not include
Hazardous Waste or Recovered Materials.
"Solid Waste Collection Service" means the Collection of Solid Waste.
"Solid Waste Disposal Facility" means any solid waste management
facility which is the final resting place for Solid Waste, including landfills
and incineration facilities that produce ash from the process of incinerating
municipal solid waste.
"Special Waste" means Solid Waste that can require special handling and
management, including, but not limited to, White Goods, waste tires,
Construction and Demolition Debris, ash residue and Yard Trash. Special Waste
does not include Biological Waste.
"Standard Container" means any commonly available light gauge steel,
plastic, or galvanized water-resistant receptacle of a non-absorbent material,
closed at one end and open at the other, furnished with a closely fitted
water-resistant top or lid and handle(s), or a heavy duty, securely tied,
plastic bag designed for use as a garbage receptacle. A standard container,
should not exceed 32 gallons in capacity, unless the Hauler implements an
automated or semi-automated collection system, with the prior written approval
of the County, requiring the use of some other standard receptacle compatible
with the Hauler's uniform equipment.
"Triplex" shall mean a Building that contains three Dwelling Units.
"Urban Service Area" means that portion of the unincorporated area of
the County lying to the east of the following described line: begin at the point
Interstate 95 enters the County from Indian River County and run southerly along
Interstate 00 xxXxxxx Xxxx; then run westerly along Angle Road to Florida's
Turnpike; then run southerly along Florida's Turnpike to Picos Road; then run
westerly along Picos Road to Xxxxxxx Road; then run southerly along Xxxxxxx Road
to Okeechobee Road; then run easterly along Okeechobee Road to Florida's
Turnpike; then run southerly along Florida's Turnpike to Interstate 95; then run
southerly along Interstate 95 to Glades Cutoff Road; then run westerly along
Glades Cutoff Road to C-24 Canal; then run southerly along C-24 Canal to
Juliette Avenue; then run westerly along Juliette Avenue to Xxxxxxxxxxx
Boulevard; then run southerly along Xxxxxxxxxxx Boulevard to Tanforan Boulevard;
then run easterly along Tanforan Boulevard to Interstate 95; then run southerly
along Interstate 95 to the point at which it enters Xxxxxx County.
"White Goods" means inoperative and discarded refrigerators, ranges,
water heaters, freezers, and other similar domestic and commercial large
appliances.
"Yard Trash" means vegetative matter resulting from landscaping
maintenance.
SECTION 1.02. CONSTRUCTION AND INTERPRETATION.
(A) Words importing the singular number shall include the plural in
each case and vice versa, and words importing persons shall include firms and
corporations. The terms "herein," "hereunder," "hereby," "hereto," "hereof," and
any similar terms, shall refer to this Agreement; the term "heretofore" shall
mean before the date of adoption of this Agreement; and the term "hereafter"
shall mean after the initial date of adoption of this Agreement.
(B) No provision of this Agreement is to be interpreted as a penalty
upon any party to this Agreement. The parties hereby agree that the rights of
the County in the event the Hauler takes or fails to take certain actions
pursuant to this Agreement, are reasonable, and that the parties desire such
certainty with regard to such matters.
(C) This agreement shall not be construed more strongly against any
party regardless that such party, or its counsel, drafted this Agreement.
SECTION 1.03. SECTION HEADINGS. Any headings preceding the texts of
several Articles and Sections of this Agreement and any table of contents or
marginal notes appended to copies hereof, shall be solely for convenience of
reference and shall neither constitute a part of this Agreement nor affect its
meaning, construction or effect.
ARTICLE II
REPRESENTATIONS
SECTION 2.01. REPRESENTATIONS OF THE COUNTY. The County makes
the following representations as the basis for the undertakings on the
part of the Hauler herein contained: (A) The County is duly organized
and validly existing as a political subdivision of the State of
Florida. (B) The County has full power and authority to enter into the
transactions contemplated by this Agreement.
(C) The County has entered into an interlocal agreement with the City
of Fort Xxxxxx that allows the Hauler to provide Recyclable Materials Collection
Service to Commercial Property within the City Service Area.
SECTION 2.02. REPRESENTATIONS OF HAULER. Hauler makes the following
representations as the basis for the undertakings on the part of the County
herein contained:
(A) Hauler is a corporation duly organized, validly existing and in
good standing under the laws of the State of Florida, authorized to do business
in the State of Florida, and has all requisite corporate power and authority to
enter into and fully perform this Agreement. All necessary corporate action on
the part of Hauler relating to the authorization of its execution and delivery
of this Agreement and its performance of its duties and obligations contained
herein have been duly taken, and this Agreement, when executed and delivered,
will be valid and enforceable against Hauler in accordance with its terms,
except to the extent that the enforceability thereof may be limited by any
applicable bankruptcy, insolvency, moratorium, reorganization or other similar
laws affecting creditors' rights generally, or by the exercise of judicial
discretion in accordance with general principles of equity.
(B) There are no actions, suits or proceedings pending or, to the
knowledge of Hauler, threatened against or affecting Hauler, at law or in equity
or before or by any Federal, state, municipal or other governmental department,
commission, board, bureau, agency or instrumentality wherein an unfavorable
decision, ruling or finding would adversely affect the validity of this
Agreement or any agreement or instrument to which Hauler is a party and which is
used or contemplated for use in the consummation of the transactions
contemplated hereby.
(C ) The Hauler is willing, ready and able to fully perform the duties
and obligations contained herein.
ARTICLE III
SCOPE OF SERVICES AND TERM OF AGREEMENT
SECTION 3.01. SERVICE PROVIDED BY HAULER.
(A) The Hauler is hereby authorized, on a non-exclusive basis, to
provide (1) Solid Waste Collection Service and Recyclable Materials Collection
Service to Commercial Property located in the County Service Area, (2) Solid
Waste Collection Service and Recyclable Materials Collection Service to
Residential Property located in the Rural Service Area, (3) Recyclable Materials
Collection Service to Commercial Property located in the City Service Area, and
(4) Contractor Generated Waste Service to Residential Property located in the
County Exclusive Service Area. The Hauler shall offer Recyclable Materials
Collection Service to all Dwelling Units located on Commercial Property in the
County Service Area to which the Hauler provides Solid Waste Collection Service.
(B) The Hauler shall be responsible for billing and collecting
payments for all Solid Waste Collection Service, Recyclable Materials Collection
Service, and Contractor Generated Waste Services it provides pursuant to this
Agreement, including disposal costs at the Solid Waste Disposal Facility.
(C) Adjustments to County Service Area boundaries due to municipal
annexation or contraction will be as provided by Section 171.062, Florida
Statutes.
(D) The County agrees to provide or approve a Solid Waste Disposal
Facility for use by the Hauler at alt. times. All Solid Waste collected by the
Hauler may be delivered to a Solid Waste Disposal Facility operated, maintained
or approved by the County and the applicable disposal charge shall be paid by
the Hauler. The Hauler shall segregate and separately dispose of Special Waste
at designated areas of the Solid Waste at designated areas of the Solid Waste
Disposal Facility.
(E) The Hauler shall be subject to all laws, rules and regulations
applicable to Solid Waste Collection Service as adopted by the County. This
Agreement does not and shall not be construed to relieve the Hauler from any
obligation to address any permit, condition, term, approval or restriction and
shall not relieve the Hauler or its successors, of the obligation to comply with
any law, ordinance, rule or regulation governing said permitting requirements,
terms, approvals or restrictions.
(F) It is understood and agreed that no other person or entity except
the Hauler that has entered into an Exclusive Residential Solid Waste and
Recyclable Materials Collection Service Agreement with the County may offer or
provide Solid Waste Collection Service and Recyclable Materials Collection
Service to Residential property located within the Urban Service Area and
Recyclable Materials Collection Service to Residential property within the City
Service Area.
(G) In the event the Hauler, through no fault of its own, is
incapacitated by a hurricane, tornado, major storm or other natural disaster,
the County Administrator may grant the Hauler a variance from regular routes and
schedules. Such variance shall not be unreasonably withheld. Further, the County
Administrator may authorize other service providers to temporarily provide Solid
Waste Collection Service within the County Service Area after such natural
disaster. As soon as practicable after such natural disaster, the County
Administrator shall advise the Hauler when it is anticipated normal routes and
schedules can be resumed. In the event of a disaster, the Hauler agrees to use
its best efforts to assist with clean-up, upon direction of the County
Administrator, utilizing the equipment and personnel assigned to provide service
pursuant to this Agreement. In the event the County Administrator requires
services beyond what is required of Hauler hereunder, considering any reduction
of regular service during such disaster, the Hauler shall receive extra
compensation above the normal compensation contained in this Agreement to cover
documented actual costs and reasonable profit for such extra services actually
provided by the Hauler, provided the Hauler has first secured written
authorization and approval from the County Administrator. The extra compensation
shall be reasonable and if Hauler and County Administrator cannot agree on the
amount of extra compensation, the Board shall make the final determination.
Hauler agrees to provide the emergency services immediately upon request and the
fact that the extra compensation has not been determined shall not delay the
provision of service.
SECTION 3.02. HAZARDOUS WASTE. The Hauler shall not be required to
collect and dispose of Hazardous Waste under this Agreement. All such collection
and disposal of Hazardous Waste are not regulated under this Agreement, unless
and until a separate agreement therefore is entered into by and between County
and Hauler.
SECTION 3.03. CHANGES IN SCOPE OF COLLECTION SERVICE. From time to
time, at the sole option of the County, it may be necessary to modify the scope
of services to be provided hereunder. Should this occur, the County and the
Hauler agree to enter into good faith negotiations to amend this Agreement to
reflect the impact of any such modification.
SECTION 3.04. TERM OF AGREEMENT. The term of this Agreement
shall be for the period beginning October 1, 1999 and terminating
September 30, 2000.
SECTION 3.05. POINT OF ORIGIN REPORTS. Within fifteen days after the
last day of each calendar quarter, the Hauler shall submit a report to the
County specifying the total amount of Solid Waste (in tons) collected from
Commercial Property located in the County Service Area and the total amount of
Solid Waste (in tons) collected from Residential Property located in the Rural
Service Area. The Hauler shall maintain books and records of the information to
be included in these reports, which books and records shall be available for
inspection and audit by the County at all reasonable times.
ARTICLE IV
SOLID WASTE COLLECTION SERVICE
SECTION 4.01. SOLID WASTE COLLECTION SERVICE. The Hauler is hereby
authorized, on a non-exclusive basis, to provide Solid Waste Collection Service
to Commercial Property located in the County Service Area and to Residential
Property located in the Rural Service Area.
SECTION 4.02. CONDITIONS AND FREQUENCY OF SERVICE.
(A) Solid Waste Collection Service shall be delivered by Bulk Container
or Roll-Off Container; provided however, that where the customer generates less
than 1 cubic yard of Solid Waste or less per week, Standard Containers may be
utilized.
(B) Other than Roll-Off Containers, service shall be provided at least
twice a week service to all customers generating putrescible waste and at least
once a week to all customers not generating putrescible waste.
(C) Roll-Off Containers shall be emptied on an "on-call" basis and the
Hauler shall be required to provide service within twenty-four hours of the
service request (other than Sundays). Roll-Off Containers containing putrescible
waste shall be emptied not less than once per week; provided however, that
Roll-Off Containers equipped with a watertight compactor shall be emptied on an
"on-call" basis.
(D) Collection of Construction and Demolition Debris shall also be on
an "on-call" basis.
(E) The size of the Bulk Container or Roll-Off Container shall be
determined between the Hauler and the customer. Except as required by Sections
4.02(B) and (C), the frequency of collection shall be determined between the
customer and the Hauler. However, size and frequency shall be sufficient to
provide that no Solid Waste generated need be placed outside a Bulk Container,
Roll-Off Container or Standard Container. The Hauler shall provide Bulk
Containers and Roll-Off Containers as necessary; however, customers may acquire
their Bulk Container or Roll-Off Container from any source provided that the
source or customer is completely responsible for its proper maintenance. Such
Bulk Containers or Roll-Off Containers shall be of a type that can be serviced
by the Hauler's equipment.
(F) All Solid Waste shall be placed in either a Bulk Container,
Standard Container or Roll-Off Container. Where Standard Containers are used,
they shall be placed at the roadside or at such other single collection point as
may be agreed upon between the Hauler and the customer, provided that they shall
not be placed in the road right-of-way. No putrescible waste shall be collected
or stored in either a Bulk Container, Roll-Off Container or Standard Container
which is not covered. All Bulk Containers and Roll-Off Containers shall be kept
in a safe, accessible location agreed upon between the Hauler and the customer.
Any damage to Bulk Containers, Roll-Off Containers or Standard Containers or
other damage caused by the Hauler shall be promptly repaired, replaced or
reimbursed by the Hauler.
(G) The Hauler shall provide back door service to handicapped persons
upon the customer providing to the Hauler proof of handicapped status as
required by Section 320.0848(1 )(a), Florida Statutes, and certifying that no
other able-bodied person resides in the household. No additional charge shall be
made for providing back door service to handicapped persons.
SECTION 4.03. METHOD AND HOURS FOR COLLECTION. Collection shall occur
on a regular basis with a frequency of pick-up as provided herein and the size
of the Bulk Container or Roll-Off Container to be agreed upon between the Hauler
and the customer. Collection shall be permitted at any reasonable time; however,
service provided to commercial customers located adjacent to Dwelling Units
shall be collected within the same hours and days as required by the County for
Solid Waste Collection Service to Residential Property (i.e. between the hours
of 7:00 a.m. and 6:00 p.m. Monday through Saturday).
SECTION 4.04. AGREEMENTS FOR SOLID WASTE COLLECTION SERVICE. A written
agreement for Solid Waste Collection Service shall be executed by the Hauler and
provided to the customer regarding the level and type of service to be provided
and manner of collection of fees; provided however, that no agreement shall be
required for Solid Waste Collection Service provided to Residential Property in
the Rural Service Area or for Solid Waste Collection Service limited to
Construction and Demolition Debris. There shall be no free service (other than
to charitable organizations) or the exchange of goods or services or barter for
the collection provided hereunder. The customer may subscribe to a greater level
of service than that which is minimally required under this Agreement sufficient
to meet the needs of the customer in a sanitary and efficient manner. However,
upon failure of the parties to reach such an agreement, either party may apply
to the County Administrator, who shall establish the level and type of service
to be provided including the location, size of the container and number of
pick-ups per week. The Hauler will be responsible for the billing and collection
of all commercial charges.
SECTION 4.05. TERMINATION OF SERVICE. The Hauler may suspend Solid
Waste Collection Service to a customer whose payment is 45 days past due.
However, service shall not be suspended unless 2 weeks written notice of such
pending suspension has been provided customer by the Hauler. The Hauler shall
notify the County Administrator of all suspensions the next business day
following any such suspension. The Hauler may impose a charge for re-starting
service to suspended Customers.
SECTION 4.06. USE OF SOLID WASTE DISPOSAL FACILITY.
(A) All Solid Waste collected by the Hauler will be delivered to the
Solid Waste Disposal Facility described in Section 3.01(D) and the applicable
disposal charge shall be paid by the Hauler.
(B) On or before the tenth day of each month, the Hauler shall pay the
full amount of disposal fees incurred by the Hauler for the prior month.
Disposal fees shall be based upon the records maintained by the County
indicating the total weight of Solid Waste deposited at the Solid Waste Disposal
Facility by the Hauler's vehicles. Disposal fees shall be computed in accordance
with the schedule of charges approved by the board, as the same may be amended
from time to time.
(C) The Hauler shall post a bond issued by a surety acceptable to the
County or provide other security in a form acceptable to the County attorney in
the amount of $51,000, which is the Hauler's estimated total disposal fee for
two months, rounded to the nearest thousand dollars. The security shall insure
the Hauler's faithful and timely payment of all Solid Waste disposal fees. The
parties agree that this security amount is an estimate by the County and will be
reviewed in April, 2000, and semiannual^ thereafter. If there is a significant
increase in the Hauler's monthly total disposal fee, the County reserves the
right to review the security amount at any time. Based upon any such review, the
security amount shall be adjusted to the revised estimated total disposal fee
for two months, rounded to the nearest thousand dollars. Any adjustment of the
security amount may also include an adjustment for a fee increase authorized by
the Board if such increase is due to take effect prior to the next regularly
scheduled review.
(D) The Hauler agrees to comply with the provisions of all permits,
rules, regulations, law and ordinances adopted or issued by the County, State of
Florida, or United States of America and applicable to the Solid Waste Disposal
Facility.
(E) The Hauler hereby releases the County from all liability and shall
indemnify and hold the County, its agents, and employees harmless from any and
all claims and causes of action for loss of property, accident, personal injury
or death by reason of any act or omission of the Hauler, its agents, or
employees in the use of the solid Waste Disposal Facility and for all claims and
causes of action for violation of all permits, rules, regulations, laws and
ordinances adopted or issued by the county, State of Florida, or united States
of America resulting from any act or omission of the Hauler, its agents or
employees in the use of the Solid Waste Disposal Facility due to the placement
or disposal of substances classified at the time of disposal as Hazardous Waste
at the Solid Waste Disposal Facility.
ARTICLE V
RECYCLABLE MATERIALS COLLECTION SERVICE
SECTION 5.01. SERVICE TO CERTAIN DWELLING UNITS. The Hauler is hereby
authorized, on a non-exclusive basis, to provide (1) Recyclable Materials
Collection Service to Commercial Property within the County Service Area and the
City Service Area and (2) Recyclable Materials Collection Service to Residential
property located within the Rural Service Area. The Hauler shall offer
Recyclable Materials Collection Service to all Dwelling Units located on
Commercial Property in the County Service Area to which the Hauler provides
Solid Waste Collection Service. The charge for Recyclable Materials Collection
Service shall be included in the charge for Solid Waste Collection Service, if
provided, but will be separately stated on each xxxx. Notwithstanding the
foregoing, Recyclable Materials Collection Service shall not be required if the
solid Waste Collection Service is limited to the collection of Construction and
Demolition Debris.
SECTION 5.02. FREQUENCY OF SERVICE. Recyclable Materials Collection
Service shall be provided to Dwelling Units once every week on a scheduled route
basis. Other than service provided by Recycling Containers, Recyclable materials
Collection Service shall coincide with a regularly scheduled pick-up day for
Solid Waste Collection Service.
SECTION 5.03. ACCESSIBILITY. All Recyclable materials to be
collected shall be stored in an approved Recycling Bin or Recycling
Container and shall be placed in close proximity to the receptacles for Solid
Waste. If Solid Waste is collected from Standard Containers, Recycling Bins
must be placed within six feet of the curb. If Solid Waste is collected from
Bulk Containers, Recycling Containers must be placed in same area. All
Recycling Bins and Recycling Containers must be placed in a location providing
lawful, safe, and efficient access by collection crews and vehicles.
SECTION 5.04. HOURS FOR SERVICE. Recyclable materials Collection
Sen/ice to Dwelling Units shall be conducted between
7:00 a.m. and 6:00 p.m. Monday through Saturday.
SECTION 5.05. RECYCLING BINS, MINIBINS AND CONTAINERS.
(A) The Hauler at its expense shall provide and deliver Recycling Bins
to each Dwelling Unit from which Solid Waste is collected from Standard
Containers.
(B) At a minimum as a basic service, the Hauler at its expense shall
provide and deliver one or more Recycling Containers colored green for
newspapers and one or more Recycling Containers colored blue for other
commingled Recyclable materials to each parcel from which Solid Waste is
collected in Bulk Containers. At the request of the Customer, the Hauler may
provide other types of recycling service which would require the Customer to
perform additional segregation of Recyclable materials beyond that required by
the basis service. The type and quantity of Recycling Containers and their
location shall be agreed upon by between the Hauler and the customer, with a
minimum of two 90-gallon containers for every 2 yard container for Solid Waste.
Recycling Containers must be placed in a convenient location for use by
residents. The Hauler shall be required to make Recycling Minibins available for
sale to the occupant of each Dwelling Unit served by a Recycling Container.
(C) The size, shape, and color of the Recycling Bins, Recycling
Minibins and Recycling Containers, and the configuration of any printing shall
be approved by the County Administrator.
(D) The title to the Recycling Bins and Recycling Containers shall be
vested with the Hauler for the duration of this Agreement.
(E) The Hauler shall replace at its own expense any Recycling Bin or
Recycling Container that is (1) lost, (2) rendered unserviceable through normal
wear and tear of collection services, or (3) damaged through the fault or
negligence of the Hauler or its employees.
(F) The Hauler must purchase Recycling Bins and Recycling Minibins
manufactured with a minimum of 25 percent post-consumer plastic.
(G) Recycling Bins and Recycling Containers for newly constructed
Dwelling Units shall be provided and delivered by the Hauler within ten days of
the issuance of a certificate of occupancy.
SECTION 5.06. MANNER OF COLLECTION. The Hauler shall collect Recyclable
Materials with as little disturbance as possible and shall leave the Recycling
Bin or Recycling Container at the same point it was collected. To be eligible
for pick-up, Recyclable materials must be placed in Recycling Bins or, if
provided, Recycling Containers. The Recycling Bins and Recycling Containers must
be placed at the usual accessible pick-up location, If materials other than
Recyclable Materials are improperly placed in a Recycling Bin or Recycling
Container, the Hauler shall return such material to the Recycling Bin or
Recycling Container and place a neon colored "friendly" reminder sticker on the
inside of the Recycling Bin or on the lid of the Recycling Container, informing
the customer of the error.
SECTION 5.07. PROCESSING AND MARKETING OF RECYCLABLE MATERIALS.
(A) The Hauler shall not return collected Recyclable Materials to the
waste stream. If the market ceases to exist for any Recyclable Materials,
alternate disposal options for such Recyclable Materials must be approved in
advance by the County Administrator. Such approval shall not be unreasonably
withheld.
(B) The Hauler shall be responsible for processing and marketing all
Recyclable Materials collected and shall take all reasonable commercial action
to assure that the Recyclable materials are separated, processed and marketed
or otherwise disposed of in a manner that assures reuse or return to use in the
form of raw materials or products.
SECTION 5.08. RECYCLING COLLECTION EQUIPMENT.
(A) The Hauler shall have on hand at all times and in good working
order such recycling collection services equipment as to permit the Hauler to
adequately and efficiently perform the contractual duties specified in this
Agreement. Vehicles for Recyclable Materials Collection Service shall be
designed to separate various types of Recyclable Materials and shall be enclosed
or otherwise properly covered so as to prevent litter or discharge. Vehicles for
Recyclable Materials Collection Service shall be clearly distinguishable from
vehicles used for Solid Waste Collection Service by color or appropriate
signage. The method of distinguishing vehicles used for Recyclable Materials
Collection Service from vehicles used for Solid Waste Collection Service shall
be approved by the County Administrator. All equipment used for Recyclable
materials informing the customer of the error.
SECTION 5.07. PROCESSING AND MARKETING OF RECYCLABLE MATERIALS.
(A) The Hauler shall not return collected Recyclable Materials to the
waste stream. If the market ceases to exist for any Recyclable Materials,
alternate disposal options for such Recyclable Materials must be approved in
advance by the County Administrator. Such approval shall not be unreasonably
withheld.
(B) The Hauler shall be responsible for processing and marketing all Recyclable
Materials collected and shall take all reasonable commercial action to assure
that the Recyclable materials are separated, processed and marketed or otherwise
disposed of in a manner that assures reuse or return to use in the form of raw
materials or products.
SECTION 5.08. RECYCLING COLLECTION EQUIPMENT.
(A) The Hauler shall have on hand at all times and in good working
order such recycling collection services equipment as to permit the Hauler to
adequately and efficiently perform the contractual duties specified in this
Agreement. Vehicles for Recyclable Materials Collection Service shall be
designed to separate various types of Recyclable Materials and shall be enclosed
or otherwise properly covered so as to prevent litter or discharge. Vehicles for
Recyclable Materials Collection Service shall be clearly distinguishable from
vehicles used for Solid Waste Collection Service by color or appropriate
signage. The method of distinguishing vehicles used for Recyclable Materials
Collection Service from vehicles used for Solid Waste Collection Service shall
be approved by the County Administrator. All equipment used for Recyclable
materials with Recycling Bins;
(C) a discussion of problems and noteworthy experiences in the
Recyclable Materials Collection Service; (D) a discussion of highlights
and other noteworthy experiences and measures taken to resolve
problems, increase
efficiency or encourage program participation;
(E) a detailed description of the actions taken to process, market or
otherwise properly dispose of the Recyclable Materials;
(F) gross revenue received, broken down by material, for the resale of
Recyclable Materials; (G) a list of persons or firms to whom Recyclable
Materials have been sold,
including the name, address, telephone, contact person, final destination of
materials,and end product;
(H) an overall assessment of performance during the year;
(I) detailed data to allow analysis of collection equipment handling
capabilities; (J) a discussion of the public information activities and
their impact on
participation and recovered volumes; and
(K) any recommendations for improvement of the recycling program.
SECTION 5.11. SCAVENGING PROHIBITED. Any employee of the Hauler that
removes or diverts Solid Waste or Recyclable Materials without authorization
shall be prohibited from providing Solid Waste Collection Service or Recyclable
materials Collection Service under this Agreement. The Hauler shall notify the
County immediately of any scavenging activity that comes to the Hauler's
attention at any time.
ARTICLE VI
FEES, BILLING AND COLLECTION
SECTION 6.01. COMMERCIAL BILLING, COLLECTION AND PAYMENTS. The Hauler
shall be responsible for the billing and collection of payments for Solid Waste
Collection Service and Recyclable Materials Collection Service. Customers shall
be billed on a monthly basis, in advance; provided however, that (1) Residential
Property located in the Rural Service Area may be billed on a quarterly basis,
in advance, and (2) the agreement required by Section 4.05 hereof may permit
individual Dwelling Units located on Commercial Property in the County Service
Area to be billed on a quarterly basis, in advance. Fees shall be deemed
delinquent fifteen days after the service has been provided. Interest shall
accrue on delinquent fees at the same rate provided in Section 55.03, Florida
Statutes.
SECTION 6.02. FRANCHISE FEES.
(A) To compensate the County for the cost of administration,
supervision and inspection rendered for the effective performance of this
Agreement, the Hauler, if not operating as an Owner-Hauler, shall pay to the
County a franchise fee equal to four percent of all gross revenues collected or
received from its customers for Solid Waste Collection Service, Recyclable
Materials Collection Service, and Contractor Generated Waste Collection
Service. For the purposes of determining the franchise fee due the County,
gross revenues shall encompass all fees charged and collected for Solid Waste
Collection Service , Recyclable Materials Collection Service, and Contractor
Generated Waste Collection Service, including the disposal fee paid by the
Hauler at any Solid Waste Disposal Facility.
(C) Franchise fees shall be payable monthly in arrears. Any
amounts not paid when due shall earn interest at the same rate
provided in Section 55.03, Florida Statutes. Adjustments to
the franchise fees due the County, based upon additional
information on the gross revenues revealed by the reporting
requirements in Section 7.10 or otherwise, shall be made from
time to time. Any further amounts which may be due County as a
result of changes or additional information relating to the
gross revenues shall be made with the next monthly payment.
ARTICLE VII
OPERATIONS
SECTION 7.01 OFFICE.
(A) The Hauler shall maintain an office within 20 miles of the County
where complaints can be received. It shall be equipped with sufficient
telephones, and shall have responsible person in charge during collection hours
and at minimum shall be open during normal business hours, 8:00 a.m. to 5:00
P.M. Monday through Friday and at all other times that service is being
provided. However, if the Hauler is serving as an Owner-Hauler, the office hours
of the Owner-Hauler's principal business shall be deemed sufficient to comply
with the foregoing requirement. All telephone numbers used by the Hauler shall
allow for toll free use for any call originating from within the County.
(B) During normal business hours and following reasonable notice, the
Hauler shall allow the County to inspect and copy all records, papers, letters,
or other documents related to the service provided by the Hauler pursuant to
this Service Agreement.
SECTION 7.02. HAULER PERSONNEL.
(A) The Hauler shall assign qualified persons to be in charge of the
operations within the County Service Area and the City Service Area and shall
provide the name of such person to the County Administrator.
(B) The Hauler shall not discriminate against any employee or applicant
for employment to be employed in the performance of this Service Agreement with
respect to hiring, tenure, terms, conditions or privileges of employment, or any
matter directly or indirectly related to employment because of age, sex or
physical handicaps (except where based on a bonafide occupational
qualification); or because of marital status, race, color, religion, national
origin or ancestry.
(C) Hauler shall bear the responsibility for verifying the employment
status, under the Immigration Reform and Contract Act of 1986, of all persons it
employs in the performance of this Agreement.
(D) The Hauler's collection employees shall wear a uniform or shirt
bearing the name of the Hauler unless the Hauler is operating as an
Owner-Hauler.
(E) Each driver of a collection vehicle shall at all times carry a
valid Florida driver's license for the type of vehicle that is being driven.
(F) The Hauler's name and office telephone number shall be prominently
displayed on all vehicles used to collect Solid Waste and Recyclable materials.
The Hauler shall provide the County at all times with a current list of the
vehicles used for 28
Solid Waste Collection Service and Recyclable Materials Collection Service.
(G) The Hauler shall provide operating and safety training for all personnel.
(H) The Hauler's employees shall treat all customers in a polite and courteous
manner.
SECTION 7.03. COLLECTION EQUIPMENT. The Hauler shall have on hand at
all times and in good working order such equipment as shall permit the Hauler to
adequately and efficiently perform the contractual duties specified in this
Agreement. Upon execution of this Agreement and semi-annually thereafter, the
Hauler shall provide in a format specified by the County Administrator a list of
the equipment used by the Hauler to provide services relating to this Agreement.
Collection equipment shall be of the enclosed loader-xxxxxx or roll-off type
unless otherwise authorized in writing by the County Administrator. All
collection equipment shall be kept in good repair, appearance, and in a
sanitary, leak-proof, clean condition at all times. The Hauler shall have
available sufficient reserve equipment to provide the service within the hours
and days of collection required hereunder. Such reserve equipment shall
correspond in size and capacity to the equipment used by the Hauler to perform
its contractual duties. Equipment is to be painted uniformly with the name of
the Hauler, business telephone number and the number of the vehicle in letters
not less than 3 inches high on each side of the vehicle. All vehicles shall be
numbered and a record kept of the vehicle to which each number is assigned. No
advertising shall be permitted on vehicles, except for events sponsored by the
County, which shall be advertised on request.
SECTION 7.04. SPILLAGE. The Hauler shall not litter or cause any
spillage to occur upon the premises or the right-of-way wherein the collection
shall occur. The Hauler may refuse to collect any Solid Waste that has not been
properly placed in a Bulk Container, Roll-Off Container, Standard Container or
properly bundled or packaged as provided by the County from time to time. During
hauling, all Solid Waste shall be contained, tied, or enclosed so that leaking,
spilling, and blowing is prevented. In the event of any spillage caused by the
Hauler, the Hauler shall promptly clean up all spillage.
SECTION 7.05. COMPLAINTS.
All service complaints shall be directed to the Hauler unless otherwise
changed by the County Administrator from time to time. The County Administrator
shall notify the Hauler of each complaint communicated to the County. All
complaints shall be immediately recorded on a complaint log by the Hauler. The
Hauler shall provide a substantive response to each complaint within 24 hours
after it is received by the Hauler. When the complaint is received after 12:00
noon on a Saturday or the day preceding a holiday, as specified in this
Agreement, a substantive response shall be made by the Hauler no later than the
next regular working day. Each complaint shall be fully resolved within 96 hours
after it is received by the Hauler.
SECTION 7.06. QUALITY OF PERFORMANCE OF HAULER.
(A) It is the intent of the County to ensure that the Hauler provides a
high quality level of collection services for Solid Waste and Recyclable
Materials. To this end, all complaints; received by the County Administrator and
reported to the Hauler shall be promptly resolved pursuant to the provisions of
this Agreement. In the event legitimate complaints, as determined by the County
Administrator shall exceed 2% of the total customers including those billed by
the Hauler, within the County Service Area and the City Service Area served by
the Hauler during any Fiscal Year, or .5% of the total customers including those
billed by the Hauler, during any one calendar month, the County Administrator
may levy administrative charges for those complaints as set forth in paragraphs
(1) and (2) of this subsection which exceed the percentage levels specified in
this subsection.
(1) Failure to clean up spilled Solid Waste and $10.00 per incident per
location Recyclable Materials after reasonable notice;
(2) Failure or neglect to collect Solid Waste $50.00 per incident per
location or Recyclable Materials from any premises at or within the
times specified within this Agreement;
(B) For performance failures by Hauler as specified in paragraphs (1)
through (7) of this subsection, the County Administrator may levy administrative
charges as follows:
(1) Failure or neglect to complete $1,000.00 for each route not
each route on the regular completed each day
scheduled pick-up day;
(2) Failure to keep vehicles and $1,000.00 per vehicle incident
equipment in good repair and
maintained in clean, safe, and
sanitary manner;
(3) Failure to have vehicle operators $1,000.00 per day per incident
properly licensed;
(4) Failure to maintain office hours $100.00 per day per incident
in the manner specified in this
Agreement;
(5) Failure to replace or repair $25.00 per incident per
any container damaged as specified location
in this Agreement;
(6) Failure to file and keep current $100.00 per day per incident
all documents and reports required
by this Agreement;
(7) Failure to resolve any complaint $25.00 per day per incident
as specified in this Agreement;
(C) The County Administrator may assess administrative charges pursuant
to this section on a monthly basis in connection with this Agreement and shall
at the end of each month during the term of this Agreement notify the Hauler and
the Board in writing of the administrative charges assessed and the basis for
each assessment. In the event the Hauler wishes to contest such assessment it
shall provide written objections to each contested assessment or charge and,
within 5 days after receiving such monthly notice, request in writing an
opportunity to be heard and present its written defense to such administrative
assessment. If the County Administrator and the Hauler can not agree on the
contested assessment within 10 days after receipt of the Hauler's written
defense, the County Administrator shall forward the Hauler's written objection
and defense to the Board for consideration and shall notify the Hauler of the
date on which the matter will be considered by the Board. The County shall
notify the Hauler in writing of any action taken with respect to Hauler's claims
and the decision of the Board will be final administrative action.
(D) The assessment of administrative charges pursuant to this section
is a supplementary remedy and does not replace any other remedies available to
the County under this Agreement, or otherwise, for failure of the Hauler to
provide a high qualify level of service.
SECTION 7.07. PERMITS AND LICENSES. The Hauler shall obtain, at its
own expense, all permits and licenses required by law or ordinance and
maintain same in full force and effect.
SECTION 7.08. WORKER'S COMPENSATION INSURANCE. Worker's Compensation
coverage must be maintained in accordance with statutory requirements as well as
Employer's Liability Coverage in an amount not less than $500,000 per incident.
SECTION 7.09. LIABILITY INSURANCE.
(A) The Hauler shall, during the term of this Agreement and any
extensions hereof, maintain in full force and effect general and automobile
liability insurance which specifically covers all exposures incident to the
Hauler's operations under this contract. Such insurance shall be with a company
acceptable to the County, in the broadest form available, in an amount of not
less than $1,000,000.00 Combined Single Limit for personal injury, including
death, and property damage liability and shall include, but not be limited to,
coverage for premises/Operations Products/Completed Operations, Contractual to
support the Hauler's agreement or indemnity. All policies shall provide that
insurance shall not be canceled, limited or non-renewed until after 30 days
written notice has been given to the County.
(B) Current certificates of insurance evidencing required coverage
must be on file with the County at all times. (C) Hauler expressly
understands and agrees that any insurance protection furnished by
Hauler shall in no way limit its
responsibility to indemnify and save harmless County under the provisions of
this Agreement. Deductibles shall not exceed $10,000. As to the County's
interest therein, no policy shall be invalidated by any act or neglect of, or
breach or violation of any warranties, declarations or conditions by the Hauler
or its agents, and such insurance shall be primary without right of contribution
of any other insurance carried by or on behalf of the County. Hauler hereby
irrevocably waives all claims against the county for all losses of and damages
to property or injuries or death to persons resulting from risks insurable under
the insurance described above.
SECTION 7.10. REPORTING REQUIREMENTS, BOOKS AND RECORDS.
(A) In addition to any other requirements of this Agreement, the Hauler
shall be required to file pertinent statistical and aggregate cost information
pertaining to Solid Waste Collection Service and Recyclable Materials Collection
Service that is requested by the County to comply with the provisions of Chapter
403, Florida Statutes, and other pertinent laws and regulations.
(B) The County or its designee shall have the right to review all
records maintained by the Hauler on 5 days written notice.
(C) An annual audit of the Hauler's gross revenues collected or
received from its customers for Solid Waste Collection Service and Recyclable
materials Collection Service and the franchise fees paid to the County pursuant
to Section 6.02 hereof shall be performed and a special report issued by an
independent Florida certified public accounting firm acceptable to the County in
accordance with generally accepted accounting principles and shall be delivered
to the County at the Hauler's expense within 120 days of the 12 month period
ending the Hauler's fiscal year. The Hauler shall establish and maintain at its
own expense during the term of this Agreement a bookkeeping, accounting and
record keeping system to facilitate the preparation of said audit and shall
preserve for at least 6 years form the date of their preparation, full, complete
and accurate books, records and accounts in accordance with generally accepted
accounting principles consistently applied and in the form and manner prescribed
by the County from time to time. Notwithstanding the foregoing, no annual audit
or special report shall be required from any Hauler that is operating only as an
Owner-Hauler.
(D) If requested by the County Administrator, all information available
to the County under this Agreement that is maintained by the Hauler on
electronic media shall be transferred to the County on electronic media.
SECTION 7.11. USE OF RECYCLED PRODUCTS. When available, the Hauler
shall procure products or materials with recycled content with respect to work
performed or products supplied under this Agreement. A decision to not procure
such items must be based on a determination that such procurement is not
available within a reasonable period of time, fails to meet the performance
standards of the Hauler or the County. On an annual basis the Hauler shall
provide the county with a written statement indicating what recycled products
were used or supplied in its performance under this Agreement. If a decision was
made not to use recycled products, the Hauler shall provide the county with a
written statement indicating the basis for the decision using the above
criteria.
SECTION 7.12. POINT OF CONTACT. All dealings, contacts, notices, and
payments between the Hauler and the County shall be directed by the Hauler to
the County Administrator unless otherwise specifically provided for herein.
SECTION 7.13. PUBLIC WELFARE. The County shall have the power to make
changes in or to impose new and reasonable rules and regulations on the Hauler
under this Agreement relative to the method of collection and disposal of Solid
Waste and shall from time to time be necessary and desirable for the public
welfare; provided, however, that for any such rule or regulation, the County
shall give the Hauler reasonable written notice of any proposed change and an
opportunity to be heard concerning those matters. The method of collection and
disposal of Solid Waste and Recyclable Materials set out herein shall also be
liberally construed to include, but is not limited to the manner, procedures,
operations and obligations, financial or otherwise, of the Hauler. The Hauler
shall be reasonably and appropriately compensated as determined by the
negotiation and agreement between the county and the Hauler for any additional
services or other obligations required of the Hauler due to any modification in
the Agreement under this section.
SECTION 7.14. INDEPENDENT HAULER. Nothing herein contained is intended
or shall be construed as in any way establishing the relationship of copartners
between the parties hereto, or as constituting the Hauler as the agent,
representative or employee of the County for any purpose whatsoever. The Hauler
is to be and shall remain an independent Hauler with respect to all services
performed under this agreement. Hauler shall be solely responsible for the acts
and omissions of its officers, employees, agents, or any permitted subHaulers.
SECTION 7.15. LOCAL IMPROVEMENTS. County reserves the right to
construct any improvement or to permit any construction in any street or alley,
which may have the effect of temporarily preventing the Hauler from traveling
his accustomed route or routes for collection. The Hauler, however, by an
acceptable method, shall continue to collect the solid Waste and Recyclable
Materials to the same extent as though no interference existed upon the streets
or alleys formerly traversed. This shall be done without extra cost to the
customers.
SECTION 7.16. TITLE TO WASTE. The Hauler shall have title to all Solid
Waste upon its collection; provided, however, that the County reserves the right
at all times to elect to hold title and ownership to all or a portion of the
Solid Waste collected (except Recyclable Materials) by the Hauler pursuant to
this Agreement. Such election by County shall be in writing signed by the County
Administrator.
SECTION 7.17. PROMOTIONAL REQUIREMENTS.
(A) The County shall be responsible for the development and production
of promotional material, including but not limited to brochures, radio
advertisements and newspaper advertisements, to introduce the solid Waste
Collection Service and Recyclable Materials Collection Service. In addition, the
County shall develop periodic promotional programs to encourage increased
participation and enhance public awareness.
(B) The Hauler shall insert an initial package of promotional material
developed and prepared by the County in each Recycling Bin delivered to a
Dwelling Unit. Thereafter at the County's request (but not more than twice
during each calendar year), the Hauler shall insert packages of promotional
material developed and prepared by the County on the doorknob of each Dwelling
Unit then served by a Recycling Container. If the Hauler cannot obtain the
access necessary to comply with the foregoing requirement, the promotional
material must be distributed by an alternative method approved by the County
Administrator.
(C) The Hauler shall also distribute any promotional messages or
brochures developed and prepared by the County in the same envelope as the
customer bills; provided however, that such distribution shall not occur more
than one during each calendar quarter. Within 30 days of the effective date of
this Agreement, the Hauler shall provide the County with a sample of a customer
xxxx and a reasonable number of days prior to the billing date that brochures
and copy for promotional messages must be delivered to the Hauler.
SECTION 7.18. CUSTOMER SERVICE AND SERVICE AREA DISPUTES
To the extent permitted by law, the County Administrator shall be responsible
for interpreting this Agreement to resolve disputes that may arise hereunder.
The parties agree that any decision rendered by the County Administrator in
connection with such matters shall be final and binding upon the Hauler, the
customer and the County.
SECTION 7.19. OWNER-HAULERS. Notwithstanding any other provision of
this Agreement to the contrary, if the Hauler is serving as an Owner-Hauler, the
County Administrator may waive or modify any requirement of this Agreement that
is inapplicable or unnecessary due to the special relationship between an
Owner-Hauler and its customers.
ARTICLE VIII GENERAL PROVISIONS
SECTION 8.01. NOTICE. All notices, certificates or other communications
hereunder shall be sufficiently given and shall be deemed given when hand
delivered or mailed by registered or certified mail, postage prepaid, to the
parties at the following addresses:
County: St. Lucie County
0000 Xxxxxxxx Xxxxxx
Xxxx Xxxxxx, Xxxxxxx 00000
Attention:
Chairman, Board of County Commissioners
County Administrator
County Attorney
Hauler: Choice Sanitation, Inc., 0000 Xxxxxxxx Xxxx,
Xxxx Xxxxxx, XX 00000
SECTION 8.02. DEFAULT OF CONTRACT.
(A) The County may terminate this Agreement, except as otherwise
provided in this section, by giving Hauler 30 days advance written notice, upon
the happening of any one of the following events:
(1) If Hauler shall take the benefit of any present or future
insolvency statute, or shall make a general assignment for the benefit
of creditors, or file a voluntary petition in bankruptcy or a petition
or answer seeking an arrangement for its reorganization or the
readjustment of its indebtedness under the Federal bankruptcy laws or
under any other law or state of the United States or any state thereof,
or consent to the appointment of a receiver, trustee or liquidator of
all or substantially all of its property; or
(2) By order or decree of a Court, Hauler shall be adjudged
bankrupt or an order shall be made approving a petition filed by any of
its creditors or by any of the stockholders of the Hauler, seeking its
reorganization or the readjustment of its indebtedness under the
Federal bankruptcy law or under any law or statute of the United
States or of any state thereof, provided that if any such judgment or
order is stayed or vacated within 60 days after the entry thereof, any
notice of cancellation shall be and
become null, void and of no effect; unless such stayed judgment or
order is reinstated in which case, said default shall be deemed
immediate; or
(3) By or pursuant to or under authority of any legislative
act, resolution or rule or any order or decree of any Court or
governmental board, agency or officer having jurisdiction, a receiver,
trustee or liquidator shall take possession or control or all or
substantially all of the property of the Hauler, and such possession or
control shall continue in effect for a period of 60 days; of
(4) If the Hauler is convicted or found guilty of a Public
Entity Crime with or without an adjudication of guilt, in any federal
or state trial court of record as a result of a jury verdict, nonjury
trial, or entry of a plea of guilty or nolo contendere, and is placed
on the convicted vendor list pursuant to Section 287.133, Florida
Statutes; or
(5) The Hauler has defaulted, by failing or refusing to
perform or observe the terms, conditions or covenants in this Agreement
or any of the rules and regulations promulgated by the County pursuant
thereto or has wrongfully failed or refused to comply with the
instructions of the County Administrator relative thereto and said
default is not cured within 30 days of receipt of written notice by
County to do so, or if by reason of the nature of such default, and the
same cannot be remedied within 30 days following receipt by Hauler of
written demand from County do so, Hauler fails to commence the remedy
of such default within said 30 days following such written notice, or
having so commenced shall fail thereafter to continue with diligence
the curing thereof (with Hauler having the burden of proof to
demonstrate (a) that the default cannot be cured within 30 days, and
(b) that it is proceeding with diligence to cure said default, and such
default will be cured within a reasonable period of time). No notice to
cure a default shall be required if Hauler fails to perform under
subsections (A) (1), (A) (2), (A) (3), (A) (4), (B) and (C) of this
section.
(B) Notwithstanding anything contained herein to the contrary,
if the Hauler fails to provide collection service for a period of 5
consecutive scheduled working days the County may secure the Hauler's
customer list on the sixth working day in order to provide interim
collection services until such time as the matter is resolved and the
Hauler is again able to perform pursuant to this Agreement. If the
Hauler is unable for any reason or cause to resume performance at the
end of 15 working days all liability of the county under this Agreement
to the Hauler shall cease and this Agreement may be terminated by the
County.
(C) Notwithstanding anything contained herein to the contrary,
in the event the Hauler delivers Solid Waste to a facility other than
the Solid Waste Disposal Facility designated by the County, the County
may secure the Hauler's customer list and this Agreement may be
terminated by the County. (D) Notwithstanding the foregoing and as
supplemental and additional means of termination of this Agreement
under this section, in the event that Hauler's record of performance
show that Hauler has frequently, regularly or repetitively defaulted in
the performance of any of the covenants and conditions required herein
to be kept and performed by Hauler, in the opinion of County and
regardless of whether Hauler has corrected each individual condition of
default, Hauler shall be deemed a "habitual violator", shall forfeit
the right to any further notice or grace period to correct, and all of
said defaults shall be considered cumulative and collectively, shall
constitute a condition of irredeemable default. The County shall
thereupon issue Hauler a final warning citing the circumstances
therefor, and any single default by Hauler of whatever nature,
subsequent to the occurrence of the last of said cumulative defaults,
shall be grounds for immediate termination of this Agreement. In the
event of any such subsequent default, County may terminate this
Agreement upon the giving of written final notice to Hauler, such
cancellation to be effective upon the fifteenth consecutive calendar
day following the date of the final notice, and all contractual fees
due hereunder plus any and all charges and interest shall be payable to
said date, and Hauler shall have no further rights hereunder.
Immediately upon receipt of said final notice, Hauler shall proceed to
cease any further performance under this Agreement.
(E) In the event of the aforesaid events specified in
subsection (A)< (B)< (C) and (D) above and except as otherwise provided
in said subsections, termination shall be effective upon the date
specified in County's written notice to Hauler and upon said date this
Agreement shall be deemed immediately terminated and upon such
termination all liability of the County under this Agreement to the
Hauler shall cease, and the County shall have the right to collect on
the full amount of the Letter of Credit or utilize the Performance Bond
and shall be free to negotiate with other Haulers for the operation of
the herein specified services. For failure to perform, the Hauler shall
reimburse the County all direct and indirect costs of providing interim
collection service. The County shall tender to Hauler any funds drawn
on the Letter of Credit and not used as provided herein.
(F) The Hauler recognizes that the failure on the part of the
Hauler to comply with the terms of this Agreement is likely to cause
irreparable damage to the County and damages at law would be an
inadequate remedy. Therefore, the Hauler agrees that in the event of a
breach or threatened breach of any of the terms of the Agreement by the
Hauler, the County shall be entitled to an injunction restraining such
breach and/or to a decree of specific performance, without showing or
proving any actual damage, together with recovery of reasonable
attorneys' fees and costs incurred in obtaining said equitable relief
until such time as a final and binding determination is made by the
court. The foregoing equitable remedy shall be in addition to, and not
in lieu of, all remedies or rights which the County may otherwise have
by virtue of any breach of this Agreement by the Hauler. The County
shall be entitled to seek injunctive relief without the posting of any
bonds or security to obtain the entry of temporary and permanent
injunctions and order of specific performance enforcing the provisions
of this Agreement. The County shall also be able to seek injunctive
relief to prohibit any act or omission by the Hauler or its employees
that constitute a violation of any applicable law, is dishonest or
misleading. The Hauler expressly consents and agrees that the County
may, in addition to any other available remedies, obtain an injunction
to terminate or prevent the continuance of any existing default or
violation, or to prevent the occurrence of any threatened default by
the Hauler of this Agreement.
SECTION 8.03. INDEMNITY. For the additional consideration of $10 and
other good and valuable consideration, the receipt and sufficiency of which is
acknowledged by the execution of this Agreement, the Hauler hereby covenants and
agrees to defend fully, protect, indemnify and hold harmless the County from and
against each and every claim, demand or cause of action and any and all
liability, cost, expense (including but not limited to reasonable attorneys'
fees, costs and expenses incurred in defense of the County, even if incident to
appellate, post-judgment or bankruptcy proceedings), damage or loss in
connection therewith which may be made or asserted by the Hauler, the Hauler's
employees or agents, or any third parties (including but not limited to the
County) on account of personal injury, death, damage or property damage caused
by, arising out of or in any way incidental to or in connection with its
performance hereunder. At the election of the County, the Hauler shall contest
and defend the County against any such claims of liability against the County.
The County shall in any event, have the right, through counsel of its choice, to
control the defense or response to any such claim to the extent it could affect
the County financially. This indemnification shall also include any claim or
liability arising from or in any way related to actual or threatened damage to
the environment, agency costs by investigation, personal injury or death, or
damage to property, due to a release, alleged release, or improper handling by
Hauler of Hazardous Waste regardless of the merits of the claim. Only those
matters which are determined by a final, nonappealable judgment to be the result
of the negligence of the County or the negligence of a third party who is not an
agent, employee, invitee, or subHauler of the Hauler shall be excluded from the
Hauler's duty to indemnify the County, but only to the extent of negligence of
the County or such third party. For the purpose of this section, the term
"County" shall be deemed to include the Board and its agents, employees and
affiliates. For purposes of this indemnification, "claims" shall mean and
include all obligations, actual and consequential damages and costs reasonably
incurred in the defense of any claim against the County, including, but not
limited to, reasonable accountants', attorneys' and expert witness fees, costs
of investigation and proof of facts, court costs, other litigation expenses, and
travel and living expenses. The County shall have the right to defend any such
claim against it in such manner as the County deems appropriate or desirable in
its sole discretion.. This indemnity shall continue in full force and effect
subsequent to and notwithstanding the expiration or termination of this
Agreement.
SECTION 8.04. CHANGE OF LAW.
(A) The parties understand and agree that changes in law in the future,
including, but not limited to, legislative, judicial or administrative changes,
which mandate certain actions or programs for counties or municipalities may
require changes or modifications in some of the terms, conditions or obligations
under this Agreement. Nothing contained in this Agreement shall require any
party to perform any act or function contrary to law.
(B) To the extent that any current law or any law effective after
execution of this Agreement is in conflict with, or requires changes in, the
provisions of collection service or exclusive rights set out in this Agreement,
the parties agree to enter into good-faith negotiations for the resolution of
any such changes in this Agreement as a result of a change in law.
(C) Except as otherwise expressly provided herein, no remedy herein
conferred upon any party is intended to be exclusive of any other remedy. Each
and every such remedy shall be cumulative and shall be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity
or by statute or otherwise. No single or partial exercise by any party of any
right, power or remedy hereunder shall preclude any other or further exercise
thereof.
SECTION 8.05. APPLICABLE LAW, JURISDICTION AND VENUE.
(A) This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida. (B) The parties to this
Agreement expressly consent to the jurisdiction of and agree to suit in
any court of general
jurisdiction in the State of Florida, whether state, local or federal, and
further agrees that venue shall lie in St. Lucie County, Florida.
SECTION 8.06. ATTORNEY'S FEES. In the event of any dispute hereunder or
of any action by any party to this Agreement to judicially interpret or enforce
this Agreement or any provision hereof, or in any manner arising from this
Agreement, the prevailing party shall be entitled to recover its reasonable
costs, fees and expenses, including but not limited to, witness fees, expert
fees, consultant fees, attorney, paralegal and legal assistant fees, costs and
expenses and other professional fees, costs and expenses, whether suit be
brought or not, and whether any settlement shall be entered in any declaratory
action, at trial or on appeal.
SECTION 8.07. AMENDMENTS AND WAIVERS. No amendment, supplement,
modification or waiver of this Agreement shall be binding unless executed in
writing by all parties hereto. No waiver of any of the provisions of this
Agreement shall be deemed or shall constitute a waiver of any other provision of
this Agreement, whether or not similar, unless otherwise expressly provided.
Each such amendment, supplement, modification or waiver of this Agreement shall
be filed with the Clerk of the Circuit Court of St. Lucie County.
SECTION 8.08. ASSIGNMENT. No assignment or subcontract of this Agreement
or any right occurring under this Agreement shall be made in whole or in part by
the Hauler without the express written consent of the Board, which consent shall
not be unreasonably withheld. Assignment shall include any transfer of 20% or
more of stock or control in Hauler. The Board shall have full discretion to
approve or deny, with or without cause, any subcontract, any proposed assignment
or assignment by the Hauler. Any assignment or subcontract of this Agreement
made by the Hauler without the express written consent of the Board shall be
null and void and shall be grounds to the Board to declare a default of this
Agreement, and immediately terminate this Agreement by giving written notice to
the Hauler, and upon the date of such notice this Agreement shall be deemed
immediately terminated, and upon such termination all liability of the County
under this Agreement to the Hauler shall cease and the Hauler shall be deemed to
have failed to perform its obligations under this Agreement, and County shall
have the right to draw and collect on the Letter of Credit or require
performance or indemnification from any surety. In the event of any assignment
with the consent of County, the assignee shall fully assume all the liabilities
of the Hauler, provided, however, that such assignment and assumption shall not
relieve Hauler of any liability or responsibility under this Agreement.
SECTION 8.09. ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement between the parties pertaining to the subject matter hereof, and
supersedes all prior and contemporaneous agreements, understandings,
negotiations and discussions of the parties, whether oral or written, and there
are no warranties, representations or other agreements between the parties in
connection with the subject matter hereof, except as specifically set forth
herein.
IN WITNESS WHEREOF, the Board of County Commissioners of St. Lucie
County, Florida, has caused this Agreement to be executed and delivered as of
..the day and year first above written.
ST. LUCIE COUNTY, FLORIDA
By: /s/ Xxxx X. Xxxxx (sp)
Chairman
Board of County Commissioners
Approved as to form
And correctness:
/s/ X X Lancerta (sp)
--------------------------------
County Attorney
ATTEST:
/s/ Xxxxx Xxxxxxx (sp) Clerk
(SEAL)
