NON-EXCLUSIVE FRANCHISE AGREEMENT BETWEEN THE CITY OF OVIEDO, FLORIDA AND NRC CONSTRUCTION, INC. FOR THE COLLECTION OF COMMERCIAL SOLID WASTE THIS NON-EXCLUSIVE FRANCHISE AGREEMENT is made and entered into the day of, 2016, by and between the City of Oviedo, Florida, whose address is 400 Alexandria Boulevard, Oviedo, Florida 32765, a municipal corporation of the State of Florida, holding tax exempt status, hereinafter referred to as the "City" and NRC Construction, Inc., whose principal and local address is 2913 East Waco Drive, Deltona, Florida 32738-1532, hereinafter referred to as to as the Franchisee. The City and the Franchisee are collectively referred to herein as the Parties. WITNESSETH: WHEREAS, in accordance with Chapter 38 of the Code of Ordinances of the City of Oviedo the City may grant, pursuant to written agreement, authorization to private waste collectors to collect, convey and dispose of solid waste from designated areas and premises within the City; and WHEREAS, such grants for the collection of commercial solid waste are non-exclusive rights affording qualified private waste collectors to compete with one another in contracting with designated premises and areas within the City; and WHEREAS, all private waste collectors desiring to provide service for designated areas and premises within the City shall, prior to contracting with any person within the designated areas or any person in charge of designated premises, enter into an agreement in accordance with the terms and conditions as set forth in this Agreement and Chapter 38 of the Code of Ordinances of the City of Oviedo. NOW, THEREFORE, in consideration of the mutual covenants and agreements hereinafter contained and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed by and between the parties hereto as follows: SECTION. 1. GRANT OF FRANCHISE. There is hereby granted to NRC Construction, Inc., (herein called the Franchisee ), its successors and assigns, a non-exclusive right, privilege or franchise to collect solid waste from commercial establishments within the City of Oviedo, Florida, during the term and subject to the following limitations and conditions as hereinafter set forth. SECTION. 2. DEFINITIONS. a. "City" shall mean the City of Oviedo, Florida, a municipal corporation. b. "Franchisee" shall mean NRC Construction, Inc., and its successors and assigns serving Page 1 of 12
solid waste customers pursuant to the terms of this Agreement. c. "Solid waste" shall include all waste defined herein, to wit, garbage, refuse, rubbish and trash, special material, hazardous materials and any other waste not specifically defined. d. "Garbage" shall mean every waste accumulation and animal and vegetable matter which attend the preparation, use, cooking, processing, handling or storage of meats, fish, fowl, fruits, vegetables or other matter which is subject to decomposition, decay, putrefaction and the generation of offensive and noxious gases or odors, or which during or after decay may serve as breeding or feeding materials for flies, insects or animals. e. "Commercial establishments" shall mean any public or private place, building, and/or enterprise devoted in whole or in part to a business enterprise whether non-profit or profit making in nature; except where such place, building, and/or enterprise devoted in whole or in part to a business enterprise whether non-profit or profit making in nature; except where such place, building, and/or enterprise constitutes a single family residence or multiple dwelling of four (4) units or less. Condominiums, patio houses and other such facilities where the individual units are privately owned and used for residential purposes are not commercial establishments unless bulk collection for such facilities is used rather than individual residential unit collection. f. "Special material" shall mean bulky materials or other special wastes that are not stored in standard storage containers and cannot be picked up by a normally used collection vehicle. Wastes not to be collected are major appliances, furniture, building materials, tree limbs, non-containerized trash piles or any abnormal amount of refuse not suitable for containerization which will be picked up by calling office of franchisee and arranging by special service to be billed on basis of labor, truck costs and dumping charges. g. "Hazardous materials" shall mean wastes that are hazardous by reason of their pathological, explosive, radiological or toxic characteristics. h. Recovered materials shall mean 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. Recovered materials as described above are not solid waste. i. Commercial container" shall mean any portable, nonabsorbent enclosed container with a close fitting cover, or doors, approved by the Health Department and the City, which is used to store large volumes of refuse. SECTION. 3. TERM. The term of this franchise shall terminate on September 30 each calendar year, following the effective date hereof provided, however, the City reserves the right Page 2 of 12
to terminate the same prior thereto if the Franchisee defaults in any one of the terms and conditions herein specified. SECTION. 4. MINIMUM SERVICE. The Franchisee shall make at least two (2) weekly collections at all commercial establishments subject to the terms of this Agreement and at sufficient additional intervals necessary to protect the environment, unless otherwise approved in advance by the City; provided, however, that where the refuse is exclusively nonputrescible in nature, once weekly collections, or as required to support construction activity, are permitted. The Franchisee shall offer recovered material services to commercial customers within the City of Oviedo, where economically viable, as determined by the City, to encourage recycling in support of the State of Florida s recycling goal. SECTION. 5. HOURS. Collections shall be made between 6:00 a.m. and 6:00 p.m. unless the City approves different times. SECTION. 6. LITTER. The Franchisee shall not litter the premises, roads, streets or rights-of-way in the process of making collections and shall promptly pick up all papers, material or debris that may be scattered about the container and after collection. The Franchisee shall collect all material that has been placed in or about its containers and within a 500-foot radius of its facilities, unless otherwise directed by the City. SECTION. 7. APPROVED CONTAINERS. Amounts and types of solid waste placed in containers for collection shall be stored in standard manufactured-type mechanically served containers only, unless otherwise approved by the City, compatible with the Franchisee's servicing equipment and subject to City and other governmental regulation and whose volume is listed in cubic yards. The Franchisee shall provide adequate containers for the services rendered hereunder. Such container shall be provided at the Franchisee's cost and shall remain the property of the Franchisee, unless the customer owns the container. SECTION. 8. SPECIAL AND HAZARDOUS MATERIALS. The Franchisee may provide haul service for special and hazardous materials not routinely generated in business or commercial areas. Said materials shall be stored and placed in a manner approved by the City and the Franchisee. It is unlawful to collect hazardous wastes unless specifically required by the generator, approved by the City and agreed to by the Franchisee. Page 3 of 12
SECTION. 9. RECOVERED MATERIALS. Recovered materials are not solid waste and are therefore exempt from this agreement; however, in accordance with Section 403.7032 (3), Florida Statutes, private businesses, other than certified recovered materials dealers, that recycle paper, metals, glass, plastics, textiles, rubber materials, and mulch are encouraged to report the amount of materials they recycle to Seminole County annually beginning January 1, 2011, using the Florida Department of Environmental Protection (FDEP) designated reporting format. SECTION. 10. COLLECTION EQUIPMENT. a. The Franchisee shall provide an adequate number of vehicles for regular collection services. Vehicles shall be kept in good repair, appearance, and in a sanitary condition at all times. Each vehicle shall have clearly visible on each side the name and phone number of the Franchisee and vehicle number not less than twelve inches (12") in height on the rear and each side. b. The Franchisee shall certify to the City upon the commencement of each franchise year the nature and quantity of vehicles and equipment on hand and available for regular collection services and back-up in the event of any break-downs. c. All collection boxes, carts and roll-off containers shall be made of steel or suitable material. Food waste containers shall have lids in good working order to reduce odors and vector all as determined by the City. SECTION. 11. OFFICE. The Franchisee shall establish and maintain a local office or such other facilities through which it can be contacted, where service may be applied for, and complaints can be made. It shall be equipped with sufficient telephones, shall have one (1) responsible person in charge during collection hours and shall be open during collection hours. SECTION. 12. HAULING/PROCESSING. All solid waste hauled or processed by the Franchisee shall be so contained, or enclosed in order that leaking, spilling or blowing are prevented. In the event of any spillage, the Franchisee shall immediately clean up the litter. SECTION. 13. DISPOSAL. All solid waste collected for disposal shall be hauled to sites or facilities legally Page 4 of 12
permitted to accept solid waste for treatment or disposal. The City shall always have the right to approve or disapprove solid waste disposal sites taking into account the costs, routes within the City and the rules and regulations of the governmental body having jurisdiction over said sites or facilities. The City shall always have the right to require disposal at City owned or operated facilities. SECTION. 14. CHARGES AND RATES. All charges and rates for the commercial collection of garbage shall be subject to review and approval by the City. The Franchisee shall annually submit to the City a proposed schedule of rates for approval. SECTION. 15. LOCATION. All solid waste shall be placed in approved containers at locations that are readily accessible to the Franchisee's personnel. Containers shall be located on private property. The City may approve the use of City property for the siting of containers if an appropriate application is filed, appropriate investigation occurs, and a permit is issued. SECTION. 16. COMPENSATION AND PAYMENT. a. Compensation shall be paid by the Franchisee to the City in accordance with the fees established and set forth in the City s Fee Schedule. b. Monthly scheduled payments shall be due on the twenty-fifth (25th) day of the month following the month of service. Any and all payments not paid by said date shall bear interest at the rate of eighteen per cent (18%) per annum or the highest interest rate allowed by State law, whichever is less, from the first of the month following the month of service. SECTION. 17. DISCONTINUED SERVICE OR DELINQUENT ACCOUNTS. a. The Franchisee may discontinue service to a customer as set forth in this Section. Customers who have not remitted required payments to the Franchisee within fifteen (15) days after the date of billing shall be notified by the Franchisee by means of a statement that service may be discontinued fifteen (15) days from the date of notice if payment is not made before that time. In the event the Franchisee intends to discontinue a delinquent account, it shall so notify the City at least fifteen (15) days prior to the last day of collection. Upon payment of the delinquent fees by the customer, the Franchisee shall resume collection on the next regularly scheduled collection day. b. The City shall have the authority to direct the Franchisee to continue service notwithstanding the fact that an account may be delinquent upon Page 5 of 12
SECTION. 18. REPORTS. written assumption by the City of fees accruing by virtue of Franchisee's continued service. If the City elects to instruct the Franchisee to continue service, the City shall be entitled to reimbursement from the customer served, plus all costs of collection to include attorney's fees. On the tenth (10th) day of the month following each month of service hereunder the Franchisee shall provide the City s Director of Finance with a report in a form either hard copy, computer disk (compatible with the City's computers) or otherwise satisfactory to the City that shall include, at a minimum, the following information relating to the period since the last report provided to the City: SECTION. 19. NOTIFICATION. (1) Customer's Business Name. (2) Customer's Business Address. (3) Customer's Telephone Number. (4) Container(s) Number(s). (5) Container's Capacity. (6) Compactor(s). (7) Pick-up Schedule for Containers and Compactors. (8) Number of Pick-ups for All Containers and Compactors. (9) Franchise Fee. The Franchisee shall notify all customers in writing about complaint procedures, regulations, and days of collection. SECTION. 20. FRANCHISEE PERSONNEL. a. The Franchisee shall assign a qualified person or persons to be in charge of his operations in the City and shall provide the name or names of the person(s) to the City together with information regarding the experience of the person(s). b. The Franchisee's collection employees shall wear a clean uniform bearing the company's name. c. Each employee shall, at all times, carry a valid operator's license for the type of vehicle he or she is driving. d. The City may request the dismissal or appropriate discipline of any employee of the Franchisee who violates any provision of this Agreement or who is wanton, negligent, or discourteous in the performance of his or her duties. Page 6 of 12
e. The Franchisee shall provide operating and safety training for all personnel and shall certify same to the City annually upon renewal of this Franchise. Such certification shall identify all employees employed in the City, their job descriptions and the nature and type of training provided. f. The Franchisee shall comply with the Equal Employment Opportunity Program, the Fair Labor Standards Act and all other applicable Federal and State laws, rules and regulations pertaining to Fair Employment practices. SECTION. 21. FRANCHISEE EQUIPMENT. a. All trucks, vehicles, or equipment used on the public streets and roads within the City shall be required to pass an annual safety inspection conducted by an independent certified mechanic. This inspection will be paid for by the franchisee. Each year, a copy of the inspection report will available for review by the City upon request. b. All vehicles shall be subject to and shall immediately submit to spot or on the road inspections by the City. If found to be in non-compliance with this Agreement, said vehicle shall be immediately removed from service until it can be corrected and is successfully re-inspected. c. The use of non-inspected vehicles or vehicles failing to meet inspection standards shall be grounds for removal of the franchise if found by the City Council, after notice to the franchisee and an opportunity to be heard, to be flagrant or repeated in nature. SECTION. 22. COMPLIANCE WITH LAWS. The City shall always have the right to adopt, in addition to the provisions herein contained and existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power. The Franchisee shall conduct operations under this Agreement in compliance with all applicable laws and its failure to comply shall constitute violation of this Agreement. This franchise shall not be construed to repeal or revise any existing ordinance and to the extent that any provision of this franchise is inconsistent with any existing ordinance, then such existing ordinance shall prevail and control. SECTION. 23. PERFORMANCE BOND. The Franchisee shall furnish to the City a Performance Bond executed by a surety company authorized to do business in the State of Florida in the amount of ten thousand and no/100ths dollars ($10,000.00) insuring the faithful performance under the terms of this Agreement to include, but not be limited to, the payment of franchise fees to the City. Page 7 of 12
SECTION. 24. LIABILITY. The privileges herein granted are upon the express conditions that the Franchisee shall be liable for all damages or injury to persons or property caused by its actions, errors, omissions, neglect or mismanagement, or by the actions of any of its employees while engaged in the operations herein authorized, or for any actions or proceedings brought as a result of the award of the franchise to Franchisee, to specifically include, but not be limited to, Anti-trust actions or proceedings. Should the City be sued therefore, the Franchisee shall be notified of such suit and, thereupon, the Franchisee shall have the duty to defend the suit. Should judgment be awarded against the City in any such case, the Franchisee shall forthwith pay the same and relieve the City of any and all obligations relating thereto. The Franchisee shall indemnify and save harmless the City, its agents, officers and employees from any and all judgments recovered by anyone for personal injury, death or property damage, or any other theory of liability sustained by reason of any of the Franchisee's activities permitted by this franchise or for any actions or proceedings brought as a result of the award of this franchise to Franchisee to specifically include, but not limited to, Anti-trust actions or proceedings. The Franchisee shall pay all expenses including, but not limited to, defense and legal costs and attorney's fees, in defending against any such claim made against the City or any of the City's agents, officers or employees. The Franchisee shall purchase comprehensive public liability and property damage insurance in the minimum amount of one million and no/100ths dollars ($1,000,000.00) per accident, event or occurrence, naming the City as an additional insured to the extent of its rights against Franchisee arising by virtue of this Section. The insurance policy will provide that the City shall be given fifteen (15) days written notice prior to cancellation or modification. A copy of said policy of insurance shall be filed with the Purchasing Coordinator on or before the effective date of this franchise. Nothing set forth in this Agreement shall be deemed or construed as a waiver of sovereign immunity by the City and the City shall have all rights and protections provided under Section 768.28, Florida Statutes, and other applicable law. SECTION. 25. LICENSES. The Franchisee shall at its sole expense, procure from any and all governmental authorities having jurisdiction over the operations of the Franchisee including, but not limited to, the City, all licenses, certificates, permits or other authorization which may be necessary for the conduct of its operations. The Franchisee shall pay all taxes, licenses, certification, permit and examination fees and excises which may be assessed, levied, exacted or imposed on its property, on its operations, on its franchise and the rights and privileges granted herein, and shall make all applications, reports and returns required in connection therewith to include, but not be limited to, those imposed by the City. Page 8 of 12
SECTION. 26. WORKERS COMPENSATION. The Franchisee shall carry, with an insurance company authorized to transact business in the State of Florida, a policy that fulfills all the requirements of the Workers Compensation Act including, but not limited to, all legal requirements for occupational diseases. SECTION. 27. ASSIGNMENT. No assignment of this franchise or any right occurring under this Agreement may be made in whole or in part by the Franchisee without the express written consent of the City and subject to any terms and conditions imposed by the City to include, but not be limited to, the assumption of all liability. SECTION. 28. BOOKS, RECORDS AND AUDIT. a. The Franchisee shall keep records of all solid waste collected and charges therefore. The City shall have the right to review those records that in any way pertain to the payments due it as well as the billing of all customers by the Franchisee. If the City operates disposal facilities, the City shall maintain records of incoming wastes. The Franchisee will be responsible for the monthly billing of the customer. b. The Franchisee shall furnish to the City an annual audit, due on November 15 of each calendar year, for the service year or portion thereof ending the previous September. Said audit shall be prepared by an independent certified public accountant complete with creator's opinion which opinion shall be acceptable to the City. The audit shall reflect the accuracy and completeness of the information provided the City by the Franchisee with special attention to the franchise fee. SECTION. 29. BANKRUPTCY OR INSOLVENCY. If the Franchisee becomes insolvent and in any event if the Franchisee files a petition of voluntary or involuntary bankruptcy, then this franchise shall terminate in no event later than the date of filing of the bankruptcy petition. SECTION. 30. DEFAULT. The failure on the part of the Franchisee to comply in any substantial respect with any of the provisions of this Agreement shall be grounds for a forfeiture of this franchise. No forfeiture shall take effect until the City has served upon the Franchisee written notice of default that sets forth the nature and extent thereof. The Franchisee shall have thirty (30) days following the notice of default to correct the same for any separate and not identical or virtually identical default. If the Franchisee protests the reasonableness or propriety of the City's declaration, Page 9 of 12
said protest shall be served upon the City in writing within ten (10) days following receipt by the Franchisee of the City's notice of default. SECTION. 31. RIGHT TO REQUIRE PERFORMANCE. The failure of the City at any time to require performance by the Franchisee of any provisions hereof shall in no way affect the right of the City thereafter to enforce same. Nor shall waiver by the City of any breach of any provisions hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself. SECTION. 32. MODIFICATION. This franchise constitutes the entire agreement and understanding between the parties hereto, and it shall not be considered modified, altered, changed or amended in any respect unless in writing and signed by the parties hereto. SECTION. 33. NOTICES. As required for any purpose in this franchise, notice shall be addressed and sent by certified United States Mail to the City and the Franchisee as follows: CITY: City Manager City of Oviedo 400 Alexandria Blvd Oviedo, FL 32765 FRANCHISEE: Nathan Carr, President NRC Construction, Inc. 2913 East Waco Drive Deltona, Florida 32738-1532 SECTION. 34. REMEDIES, ATTORNEY'S FEES AND COSTS. All remedies provided in this franchise shall be deemed cumulative and in addition and not in lieu of or exclusive of each other or of any other remedy available to the City at law or in equity. In the event the City shall prevail in any action arising hereunder, the Franchisee shall pay to the City all of its costs including, but not limited to, attorney s fees and all other legal and related costs. SECTION. 35. HEADINGS. The headings of the sections of this Agreement are for purposes of convenience only and shall not be deemed to expand or limit the provisions contained in such Page 10 of 12
sections. SECTION. 36. WARRANTY OF FRANCHISEE. The Franchisee represents and warrants unto the City that no officer, employee, or agent of the City has any interest, either directly or indirectly, in the business of Franchisee to be conducted hereunder. SECTION. 37. AMENDMENT. The City reserves the right to amend this Agreement in any manner necessary to protect the health, safety or welfare of the public. The City reserves the right, in the public interest from time to time, to prescribe reasonable rules and regulations governing Franchisee's operations hereunder. IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each signature: the City through its City Council taking action on the day of, 2016, and the Franchisee signing by and through its duly authorized corporate officer having the full and complete authority to execute same. ATTEST: (print name) NRC CONSTRUCTION, INC. By: Nathan Carr Date: CITY OF OVIEDO ATTEST: Barbara J. Barbour, Clerk By: Bryan Cobb, City Manager Date: Page 11 of 12
For the use and reliance of the City of Oviedo only. Approved as to form and legal sufficiency. Lonnie Groot, City Attorney Page 12 of 12