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08/20/2014 Agreement
• AMY NEAVILIN CPA CLERK OF CIRCUIT COURT & COMPTROLLER MONROE COUNTY,FLORIDA DATE: September 30, 2014 TO: Roman Gastesi County Administrator ATTN: Connie Cyr FROM: Lindsey Ballard, D.C .. At the August 20, 2014, Board of County Commissioner's meeting the Board granted approval and authorized execution of Item L5 Enter into an Amended and Restated Solid Waste and Recycling Collection Franchise Agreement with the Ocean Reef Club, Inc. for residential and commercial solid waste, yard waste and recycling collection services pursuant to Sec. 2-347(e)(5)(f) of the Monroe County Code. Enclosed is a duplicate original of the above-mentioned for your handling. Should you have any questions,please feel free to contact my office. cc: County Attorney (electronic copy) Finance(electronic copy) File 500 Whitehead Street Suite 101,PO Box 1980,Key West,FL 33040 Phone:305-295-3130 Fax:305-295-3663 3117 Overseas Highway,Marathon,FL 33050 Phone:305-289-6027 Fox:305-289-6025 _� ww.� 88820 Overseas Highway,Plantation Key,FL 33070 Phone:852-7145 Fox:305-857-7146 c AMENDED AND RESTATED SOLID WASTE AND RECYCLING COLLECTION FRANCHISE AGREEMENT BETWEEN THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY AND THE OCEAN REEF CLUB, INC. dba OCEAN REEF CLUB Dated AUGUST 20 , 2014 r 1 L • TABLE OF CONTENTS Page COVER........................ ............................... .......1...111................. 1 TABLEOF CONTENTS ...................................... ............................... 2 1. TERM ............... ................................ ............................... ............... 7 2 DEFINITIONS ................................................... ............................... 7 3. SERVICES PROVIDED BY FRANCHISEE ............ ............................... 15 A. Exclusive Franchise Granted ........................... ............................... 15 B. Responsibility for Service Billing and Collection ............................. 15 C. Emergency Service Provisions ......................... ............................... 15 D. Service to Selected County Agencies .......... ............................... 16 4. SOLID WASTE COLLECTION SERVICES ............. ............................... 17 A. Curbside Residential Solid Waste, Vegetative Waste, and Bulk Trash Collection Services ........................... ............................... 17 (1) Conditions and Frequency of Service ... ............................... 17 (2) Accessibility ................................. ............................... 17 B. Containerized Residential Solid Waste Collection Service .................. 18 (1) Conditions and Frequency of Service .. ............................... 18 C. Commercial Solid Waste Collection Service .... ............................... 19 (1) Conditions and Frequency of Service .. ............................... 20 (2) Method of Collecting ...................... ............................... 20 (3) Level, Type and Disclosure of Rates for Commercial Collection And Other Service .......................... ............................... 20 D Hours of Collection .................................. ............................... 20 E. Routes and Schedules ............................... ............................... 21 5. RECYCLING COLLECTION SERVICE .................. ............................... 21 A. Curbside Residential Recycling Collection Services .......................... 22 (1) Conditions and Frequency of Service ... ............................... 22 (2) Accessibility for Curbside Recycling Collection ..................... 22 L A B. Containerized Residential Recycling Collection Service ..................... 22 (1) Conditions and Frequency of Service ... ............................... 23 (2) Accessibility and Schedule for Containerized Residential Recycling Collection ...................... ............................... 23 C. Commercial Recycling Collection Service ....... ............................... 23 (1) Conditions and Frequency of Service ... ............................... 23 (2) Level, Type and Disclosure of Rates for Commercial Recycling 27 B. Collection and Other Services ........... ............................... 24 C. (3) Ownership ................................... ............................... 24 D. Method of Payment ................................. ............................... 25 E . Hours of Collection .................................. ............................... 25 F. Routes and Schedules ............................... ............................... 25 G. Purchase, Delivery, and Replacement of Recycling Carts and Containers for 29 H. Residential Dwelling Units ..................... ............................... 25 H. Manner of Collection .............................. ............................... 26 I. Material Recycling Facility ....................... ............................... 26 J. Change in Scope of Recycling Collection Service ........................... 26 6. CHARGES, RATES, AGREEMENT AMOUNT AND LEVEL OF SERVICES......... 27 A. Obligation of Franchisor for Billing, Collection and Payments .............. 27 (1) Specific Responsibilities ................... ............................... 27 (2) Units Omitted from Annual Roll ........ ............................... 27 B. Solid Waste and Recycling Collection Rate Adjustments ..................... 28 C. Compiled Statement of Activities and Franchisee Fee Audit ............... 29 D. Agreement Amount ................................. ............................... 29 E. Solid Waste Disposal and Recycling Processing Costs ....................... 29 F. Extraordinary Rate Adjustment .................. ............................... 29 G . Franchise Fee ......................................... ............................... 29 H. Diesel Fuel Surcharge ............................... ............................... 31 I . Convenience Fee ........................................ ............................... 31 7 HOLIDAYS .................................................... ............................... 31 31 a . Service Fee ............................................ ............................... 3 8 . SPECIAL SERVICES ...................................... ............................... 31 9. PUBLIC AWARENESS PROGRAM ...................... ............................... 32 10. MANNER OF COLLECTION ............................ ............................... 32 11. PERSONNEL OF THE FRANCHISEE .................. ............................... 33 12 SPILLAGE ..................................................... ............................... 33 13. SOLID WASTE AND RECYCLING FACILITIES ...... ............................... 34 14. COLLECTION EQUIPMENT ............................... ............................... 34 15 VEGETATIVE WASTE ...................................... ............................... 35 16. SPECIAL WASTE, HAZARDOUS WASTE, BIOHAZARDOUS OR BIOMEDICAL WASTE AND SLUDGE ....................... ............................... 35 17 OFFICE .......................................................... ............................... 35 18 COMPLAINTS ................................................ ............................... 36 19. QUALITY OF SERVICE .................................... ............................... 36 20. FILING OF REQUESTED INFORMATION AND DOCUMENTS ................. 39 21. UNCONTROLLABLE CIRCUMSTANCES ............. ............................... 39 22. PERMITS AND LICENSES ................................. ............................... 40 23 PERFORMANCE BOND ..................................... ............................... 40 24. WORKERS' COMPENSATION INSURANCE ......... ............................... 40 25. LIABILITY INSURANCE ................................... ............................... 40 26 INDEMNITY .................................................. ............................... 41 27. ACCESS TO FRANCHISEE'S BOOKS AND RECORDS .......................... 42 28 POINT OF CONTACT ........................................ ............................... 43 29 NOTICE ........................................................ ............................... 43 30. DEFAULT OF CONTRACT ............................... ............................... 43 31. MODIFICATIONS TO AGREEMENT DUE TO PUBLIC WELFARE OR CHANGEIN LAW ................................................. ............................... 45 32. RIGHT TO REQUIRE PERFORMANCE ................. ............................... 46 4 c A 33 TITLE TO WASTE ............................................ ............................... 46 34. GOVERNING LAW AND VENUE ....................... ............................... 46 35. COMPLIANCE WITH LAWS .............................. ............................... 47 36 SEVERABILITY .............................................. ............................... 47 37. ASSIGNMENT AND SUBLETTING ..................... ............................... 47 38 MODIFICATIONS ......................................... ............................... 48 39. INDEPENDENCE OF AGREEMENT ................... ............................... 49 40. MUNICIPALITY'S OPTION TO BE COVERED BY AGREEMENT .............. 49 41. OTHER RATE ADJUSTMENTS ........................... ............................... 49 42. EXISTING OR PRIOR AGREEMENT .................... ............................... 49 43. ATTORNEY'S FEES AND COSTS ........................ ............................... 49 44 BINDING EFFECT ............................................ ............................... 50 45 AUTHORITY ................................................ ............................... 50 46. CLAIMS FOR FEDERAL OR STATE AID .............. ............................... 50 47. ADJUDICATION OF DISPUTES OR AGREEMENTS ............................. 50 48. NON - DISCRIMINATION ................................. ............................... 50 49 COOPERATION .............................................. ............................... 51 50. COVENANT OF NO INTEREST .......................... ............................... 51 51 CODE OF ETHICS .......................................... ............................... 52 52. NO SOLICITATION / PAYMENT ....................... ............................... 52 53 PUBLIC ACCESS ............................................ ............................... 52 54. NON -WAIVER OF IMMUNITY ........................... ............................... 53 55. PRIVILEGES AND IMMUNITIES ........................ ............................... 53 56. LEGAL OBLIGATIONS AND RESPONSIBILITIES; NON - DELEGATION OF CONSTITUTIONAL OR STATUTORY DUTIES .. ............................... 53 57. NON - RELIANCE BY NON - PARTIES ................... ............................... 54 5 h a 58. ATTESTATIONS ............................................. ............................... 54 59. NO PERSONAL LIABILITY ............................... ............................... 54 60. EXECUTION IN COUNTERPARTS .................... ............................... 54 61. SECTION HEADINGS .................................... ............................... 54 EXHIBIT I - DESCRIPTION OF BOUNDARIES OF SERVICE AREA ............. 56 EXHIBIT II - APPROVED RATE SCHEDULE ............ ............................... 57 EXHIBIT III - DISCLOSURE OF SERVICE RATES ..... ............................... 58 EXHIBIT IV - ANNUAL FINANCIAL REPORTING FORMAT ...................... 60 EXHIBIT V - SPECIAL SERVICES .......................... ............................... 61 EXHIBIT VI - PERFORMANCE BOND SLIDING SCALE ............................. 62 EXHIBIT VII - PUBLIC OUTREACH TASKS ............. ............................... 63 EXHIBIT VIII - INSURANCE REQUIREMENTS ......... ............................... 66 EXHIBIT IX- PUBLIC ENTITY CRIME STATEMENT ............. ............................... 67 EXHIBIT X - LOBBYING AND CONFLICT OF INTEREST CLAUSE - SWORN STATEMENT UNDER ORDINANCE NO. 010 -1990, MONROECOUNTY, FLORIDA ..................................................... ............................... 68 EXHIBIT XI - NON - COLLUSION AFFIDAVIT ................... ............................... 69 EXHIBIT XII - DRUG FREE WORKPLACE FORM ................ ............................... 70 6 SOLID WASTE AND RECYCLING COLLECTION FRANCHISE AGREEMENT FOR THE FOR THE OCEAN REEF CLUB, INC. dba OCEAN REEF, KEY LARGO, FL. THIS AMENDED AND RESTATED SOLID WASTE AND RECYCLING COLLECTION FRANCHISE AGREEMENT (hereinafter referred to as "Agreement ") is made and entered into this 2-PA 16 day of Mff July 2014 by and between THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, 1100 Simonton Street, Key West, Florida, 33040, a political subdivision of the State of Florida (hereinafter referred to as "COUNTY" or "Franchisor "), and THE OCEAN REEF CLUB, INC. dba OCEAN REEF CLUB, 35 Ocean Reef Drive, Key Largo, Florida 33037, a Florida not for profit corporation (hereinafter referred to as "Ocean Reef Club" or "Franchisee "). WITNESSETH WHEREAS, the parties entered into a Solid Waste and Recycling Collection Franchise Agreement on or about May 19, 2004, as amended on August 17, 2005, January 28, 2009, and renewed and amended on May 20, 2009, which is scheduled to terminate on September 30, 2014; and WHEREAS, the parties have negotiated new terms and conditions under this agreement; and WHEREAS, the terms and conditions improve cost effectiveness and maintain the levels of service currently provided by the Franchisee; and WHEREAS, the Franchisor desires the yard waste to continue to be separated from the solid waste to allow a separate yard waste processing program to be implemented; and WHEREAS, the County pursuant to Section 2- 347(e)(5), Monroe County Code hereby exercises its option to waive competitive bidding for this solid waste service; and WHEREAS, the parties desire to amend and restate the agreement. In consideration of the mutual benefits, the parties herein agree as follows: 1. TERM The term of this Agreement shall be for the period beginning on October 1, 2014, extending for ten (10) years, and terminating on September 30, 2024. Franchisor shall have the exclusive option to extend the Agreement by formal Amendment, upon mutually agreeable terms and conditions, for an additional five (5) year period upon one hundred twenty (120) days written notice to the Franchisee prior to the expiration of the current term of this Agreement. If such written notice and formal renewal amendment is not provided this Agreement shall terminate on September 30, 2024. Monroe County shall have the right to unilaterally extend the term for a period of ninety (90) days under the same terms and conditions as set forth herein. Monroe County's performance and obligation to pay under this Agreement is contingent upon an annual appropriation by the Board of County Commissioners. 2. DEFINITIONS A. Biological Wastes causes or has the capability of causing disease or infection and which includes biomedical waste, diseased or dead animals, and other wastes capable of transmitting pathogens to humans or animals. B. Board shall mean the Board of County Commissioners of Monroe County, Florida. C. Bulk (or Bulky) Trash shall mean any non - vegetative item that cannot be containerized or bundled; including, but not limited to, inoperative and discarded refrigerators, ranges, toilets, clothes dryers, bath tubs, water heaters, sinks, bicycles and other similar domestic appliances; household goods, furniture and carpeting. Carpeting will be picked up by the Franchisee if cut to lengths of six (6) feet or less, no more than 6 bundles of carpet for one pickup, and bundled items must be generated from the property of a Dwelling Unit. "Home Improvements ", which include, but are not limited to, cabinets, drywall, lumber, paneling and other such construction- related materials, are not considered bulk trash. "Bulky trash or waste" does not include large items such as car bodies, camper shells, mobile homes, trailers, Jacuzzi tubs or spas, or any other items that cannot be safely lifted and collected by one person. In addition, bulky wastes do not include any hazardous or special waste as well as any other item or items that in the future may be land banned by regulation. D. Collection shall mean the process whereby Residential Solid Waste, Commercial Solid Waste and Recyclable Material are removed and transported to a designated facility. E. Collection Agreement or Agreement shall include this document. All amendments and exhibits thereto shall be made in writing and shall be the written document between the Franchisor and the Franchisee governing the provision of services as contained herein. F. Commercial Solid Waste shall mean Garbage, Vegetative Waste and Rubbish that is not Residential Solid Waste. G. Commercial Recycling Collection Service shall mean the collection of recyclable materials by the Franchisee from business entities and any or all collection services not covered in Section JJ within the Service Area. 8 H. Commercial Solid Waste Collection Service shall mean the collection of Commercial Solid Waste within the service area. Such service includes Containers and Compactors, but does not include Specialty Hauler Roll -Off Collection Service. I. Compactor shall mean any container that has compactor mechanism(s), whether stationary or mobile, all- inclusive. J. Construction and Demolition Debris (C &D) shall mean materials generally considered to be non- water soluble and non - hazardous in nature, including, but not limited to, steel, glass, brick, concrete, roofing material, pipe, gypsum wallboard and lumber from the construction or destruction of a structure as part of a construction or demolition project. Mixing of a very small amount of waste other than C &D from the construction site will not automatically cause it to be classified as other than C &D. K. Container shall mean and include any container designed or intended to be mechanically dumped into a loader /packer type garbage truck. L. Containerized Residential Recycling Collection Service shall mean the collection of recyclable materials by the Franchisee from Dwelling Units in the service area that require the use of containers for the collection of recyclable materials and the delivery of those recyclable materials to the Materials Recycling Facility. M. Containerized Residential Solid Waste Collection Service shall mean solid waste collection service of all Dwelling Units whose Garbage, Rubbish, Bulk Trash or Vegetative Waste are collected by means of a central or shared Container and not by means of a Garbage Receptacle. Vegetative Waste shall not be commingled with Garbage, Rubbish or Bulk Trash. N. Contract Administrator shall mean the person designated by the Franchisor who shall act as the representative of the Franchisor during the term of this Agreement. O. County shall mean Monroe County, Florida. P. Curbside Residential Recycling Collection Service shall mean the collection of recyclable materials by the Franchisee from all Dwelling Units in the service area that also receive curbside Residential Solid Waste Collection Service for solid waste and other Dwelling Units as are designated by the 9 County, and the delivery of those recyclable materials to the Monroe County Materials Recycling Facility or other designated transfer station. Residential materials shall not include recycling materials generated from a commercial business. Q. Curbside Residential Solid Waste Collection Service shall mean Residential Solid Waste Collection Service for all Dwelling Units whose garbage is collected by means of a garbage receptacle at curbside or roadway. R. Designated Facility shall mean a processing, recycling or transfer facility designated by Monroe County. S. Dwelling Unit shall mean any residential living type of structure or building with kitchen facilities intended for or capable of being utilized for residential living other than a hotel or motel unit. T. Fiscal Year shall mean, during the term of this Agreement, the period October 1 of a given year through September 30 of the following year. U. Franchisee shall mean that person or entity that has obtained from the Franchisor a franchise, contract or permit to provide Residential Solid Waste Collection Service, Commercial Solid Waste Collection Service, and Recycling Collection Service. V. Franchisor shall mean the Board of County Commissioners of Monroe County, Florida. W. Garbage shall mean all putrescible waste, generally including, but not limited to, kitchen and table food waste, animal, vegetative, food or any organic waste that is attendant with or results from the storage, preparation, cooking or handling of food materials, whether attributable to residential or commercial activities. X. Garbage Receptacle shall mean any commonly available light gauge steel, plastic or galvanized receptacle of non - absorbent material, closed at one end and open at the other, furnished with a closely fitted top or lid, handle(s) and without any jagged or sharp edges. A garbage receptacle is also defined as a heavy duty, securely tied plastic bag designed for use as a garbage receptacle. Any receptacle made from plastic drums with rope handles, or slots cut into the sides for handles, is not an acceptable garbage receptacle. Any receptacle including waste materials shall not exceed thirty -two (32) gallons 10 in capacity or fifty (50) pounds in weight, unless a Franchisee implements (with written authorization from the Contract Administrator or his or her Designee) an automated or semi - automated collection system requiring the use of some other standard receptacle compatible with the Franchisee's equipment. Y. Hazardous Waste means solid waste as defined by the State of Florida Department of Environmental Protection as a hazardous waste in the State of Florida Administrative Code, Chapter 62 -730, or by any future legislative actions, or by Federal, state or local law. Z. Hotel or Motel shall mean a structure or building unit(s) with kitchen facilities capable of being utilized for residential living where such unit or a group of such units is utilized at least fifty percent (50 %) of the time for "Transient Occupancy" as such term is defined in Chapter 509, Florida Statutes, or its successor law. AA. Industrial Waste shall mean any solid waste accumulations of metal, metal products, minerals, chemicals, rock, cement, asphalt, tar, oil, grease, glass, crockery, rubber, tires, bottles, cans, lumber, sawdust, waste from animal packing or slaughterhouses, or other materials usually created by an industrial enterprise. BB.Materials Recycling Facility (MRF) shall mean any facilities operated or managed by, for or on behalf of the Franchisor for the purpose of receiving, sorting, processing, storing and/or preparing Recyclable Materials for sale. CC.Mobile Home shall mean the manufactured homes, trailers, campers and recreational vehicles. DD. Multi- Family Dwelling Unit shall mean and include any building or structure containing two (2) or more Dwelling Units under one roof. EE. Office Paper shall be defined as a mixture of paper products including letter paper, notebook paper, computer and green bar paper, and other clean paper products. FF. Non - collection notice shall mean a form used by the Franchisee to notify customers of the reason for non - collection of materials set out by the customer for collection by the Franchisee pursuant to the Contract, developed by the Franchisee and approved by the Franchisor. 11 GG. Permitted Disposal Facility shall mean the place or places specifically designated by the Franchisor for the disposal of solid waste, and that are properly permitted by the appropriate state and local agencies. HH. Public Awareness Program shall mean that program developed by the Franchisor to inform and encourage residential and commercial solid waste collection customers to use all solid waste collection services offered by the Franchisor through the Agreement. It shall also mean information concerning levels of service and changes in scope of service. II. Recyclable Materials shall mean newspapers (including inserts); aluminum, #1 - #7 plastic containers; clear, green and brown glass bottles and jars; corrugated cardboard; kraft paper bags; office paper; tin and ferrous cans; automobile tires; and other materials added upon agreement between the Franchisor and Franchisee. JJ. Recycling Cart shall mean a rigid, covered 65 gallon wheeled cart. Recycling container shall mean a rigid container that holds 18 gallons. Both shall be made of plastic or other suitable substance that is used for the storage of commingled recyclable materials. KK. Residential Property shall mean all improved property, or any portion thereof, used as a dwelling unit and shall include single family dwelling units, apartments, mobile homes and condominiums. LL. Residential Solid Waste shall mean Garbage, Rubbish, Bulk Trash and Vegetative Waste resulting from the normal housekeeping activities of a Dwelling Unit. Vegetative Waste shall not be commingled with Garbage, Rubbish or Bulk Trash. MM.Residential Recycling Collection Service shall mean Curbside Recycling Collection Service and Containerized Residential Recycling Collection Service. NN. Residential Solid Waste Collection Service shall mean service to all Dwelling Units, including, but not limited to, single - family dwelling units, each living unit in a multi - family dwelling unit, condominium or cooperative association, each mobile home, whether located in a mobile home park or on an individual parcel of property whether or not the lot is owned by the mobile home owner and whether or not the unit has an RV tag, and each timesharing unit. 12 00. Roll -off Collection Service shall mean Specialty Hauler Service as described in the Monroe County Code Section 21 -46, and is the collections of C &D only roll -off containers within temporary locations in the service area, limited to new construction sites and remodeling or refurbishment sites. Roll -off Collection Service shall also mean the collection of horticultural, agricultural or vegetative waste from permitted land clearing sites. Roll -off Collection Service does not include Special Wastes, Garbage or Recyclable Materials, and is not covered under this Agreement. PP. Rubbish shall mean all refuse, accumulation of paper, excelsior, rags, wooden or paper boxes and containers, sweepings, and all other accumulations of a similar nature other than garbage, that are usual to housekeeping and to the operation of stores, offices and other business places, but shall not include Vegetative Waste. Also, rubbish shall include any bottles, cans or other containers what, due to their ability to retain water, may serve as breeding places for mosquitos or other water - breeding insects. QQ. Service Area shall mean that portion of the unincorporated area of the County as described in Exhibit I, for which the Franchisee has an executed Collection Agreement. RR. Single Family Dwelling Unit means a building, mobile home, or portion thereof, designed for residential occupancy that is arranged, designed or used as living quarters for only one family. SS. Sludge shall mean a solid or semi -solid or liquid generated from any wastewater treatment plant, water supply treatment plant, air pollution control facility, septic tanks, grease traps, portable toilets, or related operations, or any other such waste having similar characteristics or effects. TT. Special Services shall mean any services requested or required by the customer that are in addition to, or a change in, Residential Solid Waste Collection Service, Residential Recycling Collection Service, Commercial Recycling Collection Service and Commercial Solid Waste Collection Service as set out or similar to those listed in Exhibit V. UU. Special Waste shall mean those wastes that require extraordinary management. They include, but are not limited to, automobiles or automobile parts, abandoned automobiles, boats or boat parts, waste oil, sludge, dead animals, agricultural and industrial waste, septic tank pumpings and Biohazardous and Hazardous wastes. 13 VV. Vegetative Waste — Regular shall mean any vegetative matter generated from the yard and landscaping maintenance of the property of a Dwelling Unit and shall include materials such as tree and shrub trimmings, grass clippings, palm fronds, small tree branches and other matter usually produced as refuse in the care of lawns, landscaping and yards, that shall not exceed four feet (4') in length and/or four inches (4 ") in diameter, and shall include Christmas trees. Such waste shall be tied in bundles or placed in containers that are susceptible to normal loading and collection as other Residential Solid Waste. If containers are used, they shall meet or exceed the Franchisor's specification for such containers. No bundle or filled container shall exceed fifty (50) pounds in weight. The materials shall not exceed 12" above the top of the container. Regular Vegetative Waste shall not be commingled with Garbage, Rubbish or Bulk Trash, unless approved in writing by the County. "Vegetative, Green or Yard Waste" means leaves, grass, clippings, brush and branches generated from landscapes or gardens at Residential or Commercial Premises, separated from other Residential Solid Waste. Green Waste includes Holiday Trees but does not include stumps or branches exceeding four inches (4 ") in diameter or four feet (4') in length. WW. Vegetative Waste — Oversize shall mean large cuttings of vegetative matter that are part of the normal yard maintenance of a Dwelling Unit, and that cannot be cut for placement in a container or bundled due to the material exceeding the weight and size restrictions for regular vegetative waste. Oversize vegetative waste shall be placed neatly at the curb and shall be of a type as to be readily handled by mechanical collection equipment of the Franchisee and shall not exceed six feet (6') in length. Oversize Vegetative Waste shall not be commingled with Garbage, Rubbish or Bulk Trash. Oversize Vegetative Waste does not include any form of matter or debris resulting from commercial tree removal, land clearing or land development. In the case of a dispute between the Franchisee and a customer as to what constitutes Oversize Vegetative Waste, the situation will be reviewed and decided by the Contract Administrator, whose decision will be final. 14 3. SERVICES PROVIDED BY FRANCHISEE A. Exclusive Franchise Granted. The Franchisee is herein granted an exclusive franchise to provide Residential Solid Waste Collection Service, Commercial Solid Waste Collection Service and Residential Recycling Collection Service in the Service Area, as described in Exhibit I. Adjustments to the Service Area boundaries due to municipal annexation or contraction will be provided by law. No entity except the Franchisee may offer or provide Residential Solid Waste Collection Service, Commercial Solid Waste Collection Service or Residential Recycling Collection Service in the Service Area. The Franchisor agrees to assist the Franchisee in taking timely action against any entity violating the provisions of this Section. The Franchisee shall be the agent to the Franchisor to provide Commercial Recycling Collection Services in the Service Area, where that service is requested by a commercial entity. The Franchisee shall be responsible for billing and collection of Commercial Recycling Collection services not being billed and collected by the Franchisor. B. Responsibility for Service Billing and Collection. The Franchisor shall be responsible for the billing and payments for Residential Solid Waste Collection Service. The Franchisee shall provide billing and collection services for Commercial Solid Waste Collection Services. Billing for Commercial Solid Waste Collection Services shall be reported in the format designated by the Franchisor's Contract Administrator. C. Emergency Service Provisions. In the event of a hurricane, tornado, major storm or other natural disaster, the Contract Administrator may grant the Franchisee a variance from regular routes and schedules. As soon as practical after such natural disaster, the Franchisee shall advise the Contract Administrator when it is anticipated normal routes and schedules can be resumed. The Contract Administrator, in conjunction with the Franchisee, shall make an effort through the local news media to inform the public when regular services may be resumed. The clean-up from some natural disasters may require that the Franchisee hire additional equipment, employ additional personnel, or work existing personnel on overtime hours to clean debris resulting from the natural disaster that is not otherwise covered by the County's Disaster Response and Recovery Services Contract. By December I` of the year that this Agreement is in effect, the Franchisee is requested to provide a Disaster Preparedness Plan to the Contract Administrator for review and approval. This plan shall include 15 provisions for additional manpower and equipment, as well as a proposed rate for collection associated with the clean-up of natural disasters or other such occurrences. The Franchisee shall update the Disaster Preparedness Plan by December 1" of each year of this Agreement for the Contract Administrator's review and approval. The Franchisee shall receive extra compensation above the normal compensation contained in this Agreement, after such has been approved by the Board, based on the rate schedule submitted to the Contract Administrator. Subject to verification of documentation request by the County, payment for these services shall be made by the Franchisor within ninety (90) days of the receipt of the billing by the Franchisee. The Franchisee must provide documentation for verification of services as requested by the Franchisor for payment. The Franchisee shall not be responsible for nor have an obligation to collect, transport or dispose of debris or other waste material from a hurricane, severe storm or other natural or man-made disaster unless the County enters into a written agreement with Franchisee specifying the terms and compensation for such services. Should the parties enter into a written agreement and in the event the storm is declared a disaster such that FEMA is authorized to participate in managing the cleanup, the Franchisee shall be responsible for the preparation of all documents and forms and support information required by FEMA. Such documents, forms and information shall be submitted to the County by the Franchisee within the time limits established by FEMA for such filings. D. Service to Select County Agencies. The Franchisee must collect the solid waste and recyclables normally generated by the County's Fire, EMS, Monroe County Sheriff's Department, Growth Management and Library facilities located within the franchise area at no charge or cost to the County for collection. In addition, the Franchisee shall be required to provide collection service for up to twelve (12) community events (e.g. community clean -ups, parades, and other special events) per operating year, at no cost to the Franchisor, if such collection service is requested by or approved by the Franchisor. The Franchisee shall provide each event with roll -off containers and/or recycling carts as appropriate to successfully manage the solid waste and recycling generated by the specific event. The Franchisor shall be responsible only for the cost of disposal. In addition, the Franchisee shall collect illegal trash piles designated by the County at no charge to the Franchisor, not to exceed four (4) piles per month. The Franchisor shall be responsible only for the cost of disposal for these piles. Franchisee shall also provide an aggregate of five (5) roll -off pulls for Franchisor facilities per month. The Franchisor will pay for the disposal cost of such pulls but there shall be no charge for 16 the hauling of the rolloff containers. Such direction shall come from the County's solid waste administrator or designee. The Franchisee shall include the summary of these activities in the monthly reports to the County. Services set forth in this paragraph D shall not be applicable to hauling materials resulting from storm events. 4. SOLID WASTE COLLECTION SERVICES A. Curbside Residential Solid Waste, Vegetative Waste and Bulk Trash Collection Services (1) Conditions and Frequency of Service All Curbside Residential Solid Waste and Regular vegetative waste shall be properly containerized in Garbage Receptacles or otherwise prepared for collection. Vegetative waste shall be separated from Residential Solid Waste. No filled receptacle or bundle shall exceed fifty (50) pounds in weight. (Regular vegetative waste will be as defined in Section 2.RR). Curbside Residential Solid Waste Collection Service, except for permitted holidays, shall be provided twice per week with not less than forty -eight (48) hours or more than seventy -two (72) hours between regularly scheduled pick -up days. Regular vegetative waste shall be picked up by the Franchisee not less than once every seven (7) days on a scheduled route basis. Oversize vegetative waste and bulk trash as defined in Section 2.SS and 2.0 of this Agreement shall be picked up by the Franchisee within five (5) business days of notification by the resident of the Dwelling Unit. Oversize vegetative waste and bulk trash must be placed at the usual accessible pick -up location. There may be a charge to the resident for oversize vegetative waste, as specified in Exhibit H. The resident will be required to call the Franchisee for the removal of oversize vegetative waste and Franchisee will inspect the material and provide a quote for such service. The resident may utilize the service at the quoted rate or utilize another lawful means or entity to manage the material. Franchisee agrees not to combine or comingle vegetative waste with solid waste. The Franchisor is contemplating a separate yard waste processing program and therefore requires the separate collection of yard waste. The Franchisee shall provide for a twice a week collection of solid waste, once a week collection of yard waste and once a week collection of recyclables from residents unless otherwise approved in writing by the County. The separate day of collection of yard waste shall be provided at no additional cost to the Franchisor. In the event that a yard waste processing program is not implemented by the County, the Franchisee shall not reject combined or commingled vegetative and solid waste. 17 (2) Accessibility All Residential Solid Waste to be collected shall be placed within six (6) feet of the curb, paved surface of the roadway, closest accessible right -of -way, or other such location agreed to by the Franchisee, that will provide safe and efficient accessibility to the Franchisee's collection personnel and vehicle. Enclosures for garbage receptacles shall be within six (6) feet of paved surface or right -of -way. Fixed or permanent enclosures shall have a street -side opening for the removal of the garbage receptacle. Enclosures that do not have a street -side opening shall be limited to thirty -six (36) inches in height. For purposes of this Agreement, roadway or right -of -way means a road owned and maintained by the County, or a road on private property for which an easement has been granted to the public and such road is constructed and maintained to County road standards. Where the resident of a Dwelling Unit is physically disabled and unable to deliver Residential Solid Waste or vegetative waste to curbside and this is certified by the Contract Administrator, or the residential structure is located in such a manner as to provide non- accessibility to the Franchisee's personnel or vehicle, an alternative location may be arranged between the customer and the Franchisee at no extra cost to the customer. In the event an appropriate location cannot be agreed upon, the Contract Administrator shall mediate the dispute and designate the location for pick -up. If the resident requests special services, these services shall be billed directly to the customer by the Franchisee in accordance with Exhibit V. Billing for these services shall be reported in a format prescribed by the Contract Administrator. In the event a special service request is not listed in Exhibit V, charges for such services shall then be established through negotiations between the Franchisee and the customer. In the event the customer and the Franchisee cannot reach an agreement on the cost, the Contract Administrator will determine the cost. B. Containerized Residential Solid Waste Collection Service (1) Conditions and Frequency of Service The Franchisee shall provide Containerized Residential Solid Waste Collection Service to Multi- Family Dwelling Units of four (4) or more in the Service Area that are suitable to receive such service and request such service. The size and location of the container and the frequency of collection shall be determined by the Franchisee and the residential complex, in accordance with this Agreement. The level of service shall be sufficient to meet customer needs in a safe and sanitary manner. In the event of an unresolved dispute involving the level and type of service to be provided, the location and size of Containers or the frequency of service, the Contract Administrator shall make the final determination. The Franchisee shall be paid the appropriate container maintenance 1 fee in accordance with Exhibit H. A minimum of once per week service is required of 18 all customers, or such other minimum frequency as provided by law. Service shall not exceed a maximum of twice per week. Such service shall be provided by mechanical container as defined herein.' C. Commercial Solid Waste Collection Service (1) Conditions and Frequency of Service The Franchisee shall collect and dispose of all Commercial Solid Waste in the Service Area, except Special Waste. A minimum of once per week service is required of all customers, or such other minimum frequency as provided for by law. Such service shall be provided by mechanical Container as defined herein. However, where a customer generates less than one (1) one cubic yard of waste per week, Garbage Receptacles provided by the customer may be utilized The size of the Container and the frequency of collection shall be determined between the customer and the Franchisee. However, size and frequency shall be sufficient to provide that no Commercial Solid Waste need be placed outside or above lid level of the Container. Storage capacity shall be suitable for the amount of waste generated by the customer. In the event the customer and the Franchisee cannot reach an agreement as to the level and type of service to be provided, the Contract Administrator shall make a decision binding on both parties, including the location and size of Containers and the required number of pickups per week. Putrescible waste shall be picked up a minimum of two times per week. All Commercial Solid Waste shall be placed in a Container, Compactor or Garbage Receptacle. Vegetative Waste shall not ne commingled with Garbage. Where Garbage Receptacles are used, they shall be placed at the roadside or at such other single collection point as may be agreed upon between the Franchisee and the customer. All Containers or Compactors shall be kept in a safe, accessible location agreed upon between the Franchisee and the customer. Any Container or Compactor damaged by the Franchisee shall be repaired or replaced by the Franchisee within seven (7) days. Compactors may be obtained by customers from any source, provided that such Compactors are of a type that can be serviced by the Franchisee's equipment. The customer shall be completely responsible for its proper maintenance. Compactor collection frequency shall be a minimum of once per week and shall be sufficient to contain waste without spillage. (2) Method of Collecting Collection shall occur on a regular basis with a frequency of pick -up as provided herein and the size of the Container to be agreed upon between the Franchisee and the customer. 19 (3) Level, Type and Disclosure of Rates for Commercial Collection and Other Services a. Commercial Collection: The Franchisee shall only charge rates as set forth in Exhibit H or as otherwise allowed by this Agreement. A written agreement between the Franchisee and the customer shall be entered into regarding the level and type of service to be provided and manner of collection of fees. The fees charged to the customer by the Franchisee may vary in accordance with the rate schedule in Exhibit II based on changes in size of Containers and/or changes in frequency of collection. The terms and conditions of such agreement shall be in compliance with all provisions of this Agreement. The customer shall subscribe to a level of service sufficient to meet the needs of the customer in a sanitary and efficient manner. However, upon failure of the parties to reach such as agreement, the Contract Administrator or his or her designee 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, and the "total rate" to be charged within the approved rate limits contained in Exhibit II. The Franchisee will be responsible for the billing and collection of Commercial Collections Service except as otherwise provided in this Agreement. b. Disclosure: The written Agreement between the Franchisee and the customer shall be in a separate document as specified in Exhibit III. C. Hours of Collection Curbside Residential Solid Waste Collection Service shall be provided between the hours of 5:00 a.m. and 6:00 p.m. Monday through Saturday. Dwelling Units receiving Containerized Residential Solid Waste Collection Service and non - residential collection sites located adjacent to residential units shall be considered residential collection and shall only be collected between the hours of 5:00 a.m. and 6:00 p.m. Monday through Saturday. Other non - residential locations may be collected at any time. The hours of collection may be extended due to extraordinary circumstances or conditions with the prior consent of the Contract Administrator. d. Routes and Schedules For Residential Solid Waste Collections Service, the Franchisee shall provide the Contract Administrator, in a format acceptable to the Contract Administrator, the schedules for all Collection routes and keep such information current at all times. If any changes in the Collection routes occur, then the Contract Administrator shall be immediately notified in writing not less than four (4) weeks prior to the change. In the event of a permanent change in routes or schedules that will alter the day of pick -up, the Franchisee shall 20 immediately notify the customer(s) affected, in writing or other manner approved by the Contract Administrator, prior to the change, at no cost to the Franchisor. 5. RECYCLING COLLECTION SERVICE The Franchisee shall provide Residential Recycling Service and where requested by the customer, Commercial Recycling Collection Service in the Service Area. The Franchisor shall be responsible for the billing and collection of payments for Residential Recycling Collection Service. The Franchisee shall be responsible for billing and collection of Commercial Recycling Collection Service costs and recyclables to be collected. The following Recyclables shall be collected in the Residential recycling collection program: • Newspaper • High Density Polyethylene (HDPE)/Polyethylene Terephthalate (PETE) Colored & Clear Plastic • Plastics # 1— #7 — Plastic lids and caps • Office and Mixed (junk mail/magazines) Paper • Chipboard, Cardboard and Phone Books • Rigid Containers, defined as Aluminum Cans, HDPE and Pet Plastics, Glass (No Blue Glass), Containers and Bi -Metal Cans The Recyclables items listed may be amended by approval of the Contract Administrator, and the parties agree to negotiate with respect to an adjustment of the rates to reflect any increased or decreased costs. A. Curbside Residential Recycling Collection Services will be governed by the following terms and conditions: (1) Conditions and Frequency of Service The Franchisee shall provide Curbside Residential Recycling Collection Service to all Dwelling Units receiving Curbside Residential Solid Waste Collection Service located in the designated Service Area and to other such Dwelling Units as determined appropriate by the Contract Administrator. This service shall be provided once every week, unless otherwise specified by the Franchisor on a scheduled route basis that shall coincide with one of the three regularly scheduled solid waste collection pick -up days. 21 (2) Accessibility for Curbside Recycling Collection All Recyclable Materials to be collected shall be in a Recycling Cart and/or Recycling Container, marked for Recyclable Materials identified with embossment or stickers provided by Franchisee and shall be placed within six feet (6') of the curb; on a paved surface of the road, in the closest accessible right -of- way, or other such location agreed to by the Franchisee, that will provide safe and efficient accessibility to the Franchisee's collection personnel and vehicle. The Franchisee must collect as many Recycling Carts and Containers as the customer may request. Where the customer is physically unable to deliver Recyclable Materials to curbside, or the Dwelling Unit is located in such a manner as to provide non - accessibility to the Franchisee's personnel or vehicle, an alternative location may be arranged between the customer and the Franchisee. B. Containerized Residential Recycling Collection Service will be governed by the following terms and conditions: (1) Conditions and Frequency of Service The Franchisee shall provide this service to Dwelling Units as are designated by the Franchisor that are located in the Service Area. This service shall be provided at least once every week on a scheduled route basis as set forth in Paragraph 2, below. (2) Accessibility and Schedule for Containerized Residential Recycling Collection All Recyclable Materials to be collected shall be in a Recycling Cart or Container designated for Recyclable Materials that shall be located in such location and shall be collected on a schedule by the Franchisee that will provide safe and efficient accessibility to the Franchisee's collection personnel and vehicle. In the event an appropriate location cannot be agreed upon, the Contract Administrator shall mediate the dispute and designate the location for pick -up. (3) Multi- Family Premises Franchisee shall provide recycling cart or bin service for all recyclable materials generated at all Multi- Family Premises. C. Commercial Recycling Collection Service The Franchisee shall perform Commercial Recycling Collection Services on behalf of the Franchisor for any business in the Service Area where the Franchisee has arranged, negotiated, or contracted for such service, and 22 Franchisee shall have the right to solicit Commercial Recycling Collection Service agreements with any business in the Service Area upon terms and conditions consistent with this Agreement, and Franchisee shall provide loading, collection, transporting and removal services for recovered materials in the Service Area. (1) Conditions and Frequency of Service The Franchisee shall provide Commercial Recycling Collection Service to all business or commercial entities located in the designated Service Area. The size and frequency of the Container designated for Recyclable Materials shall be determined between the customer and the Franchisee. If the customer and Franchisee cannot agree, the Contract Administrator shall make the decision. However, size and frequency shall be sufficient to provide that no Recyclable Materials need be placed outside the Container. Storage capacity shall be suitable for the amount of recyclables generated by the customer. The Franchisee shall provide Containers as necessary. Containers may be obtained by customers from the Franchisee. The customer shall be completely responsible for the container's proper maintenance. Container frequency of collection shall be sufficient to contain the waste without spillage. Compactors may be obtained by customers from any source provided that such compactor must be of a type that can be serviced by the Franchisee's equipment. The customer shall be completely responsible for the compactor's maintenance. All Commercial Recyclable Materials shall be placed in a Container, Compactor or other acceptable Recycling Container. Recyclable Material shall not be commingled with other solid waste. Where Recycling Carts or Containers are used, they shall be placed at an accessible location or at such other single collection point as may be agreed upon between the Franchisee and the customer. All Containers shall be kept in a safe, accessible location agreed upon between the Franchisee and the customer. Any Container, Recycling Cart or Recycling Container damaged by the Franchisee shall be repaired or replaced by the Franchisee within seven (7) days. (2) Level, Type and Disclosure of Rates for Commercial Recycling Collection and Other Services A written Agreement between the Franchisee and the customer shall be entered into regarding the level and type of service to be provided and manner of collection of fees. The terms and conditions of such Agreement shall be in compliance with all provisions of this Franchise Agreement and the term shall not extend beyond the term of this Agreement, as stated in Section 1. The customer shall subscribe to a level of service 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, the Contract Administrator, or his or her designee, at the election of the customer and Franchisee, may establish the level and type of service to be provided, including the location, size of the Container and number of pick -ups per week and the "total rate" to be charged within the approved rate limits contained in Exhibit II. The Franchisee will be responsible for the billing and collection of Commercial 23 Recycling Collection charges except as otherwise provided in this Agreement. The written Agreement between the Franchisee and the customer shall be as specified in Exhibit III. (3) Ownership Notwithstanding any other provision of this Agreement, a commercial generator of Recyclable Materials retains ownership of those materials until it donates or sells, or contracts for the donation or sale of, those materials to another person or entity. Nothing in this Agreement shall prevent a person or entity engaged in the business of recycling, whether for profit or non - profit, from accepting and transporting Recyclable Materials, under contract with a commercial generator, from such commercial generator when such Recyclable Materials have been purchased from or donated by the commercial generator, and no charge is made to or paid by the commercial generator for the loading, collection, transporting or removal of such Recyclable Materials. Provided, however, that such activities are subject to applicable state and local public health and safety laws, and provided that the transporter must report such information to the Franchisor as may be necessary for the documentation of state - mandated recycling or reduction goals. D. Method of Payment The Franchisor will be responsible for the billing and collection of payments for Residential Recycling Collection Service. Payments from the Franchisor to the Franchisee will be due and paid no later than the tenth (I O day of the month following service. The initial collection rate per unit per month shall be as set forth in Exhibit II. This rate shall be adjusted in subsequent years in accordance with Section 6. The Franchisee shall be responsible for billing and collection of payments for Commercial Recycling Collection Service, at the rates as set forth in Exhibit II. The rates set forth in Exhibit H shall be adjusted in subsequent years in accordance with Exhibit IV. E. Hours of Collection Residential Recycling Collection Service shall be conducted between the hours of 5:00 a.m. and 6:00 p.m., Monday through Saturday. Dwelling Units receiving Containerized Residential Recycling Collection Service and non - residential collection sites located adjacent to residential units shall be considered residential collection and shall only be collected between the hours of 5:00 a.m. and 6:00 p.m., Monday through Saturday. In the event of a dispute, the Contract Administrator shall determine the hours of collection. F. Routes and Schedules The Franchisee shall provide and keep current with the Contract Administrator, or his or her designee, in a format acceptable to the Contract Administrator, an up -to -date route schedule map for all 24 Residential Recycling Collection Service routes. The Franchisee shall notify the Contract Administrator in writing of any change in any route schedule four (4) weeks prior to such change G. Replacement of Recycling Containers for Residential Dwelling Units (1) Throughout the term of this agreement and any renewal period, the Franchisee will continue to provide, at its expense, and at residential customers' request, one or more Recycling Carts or containers per Residential Unit for use within the Service Area. The Franchisee shall purchase and provide two (2) Recycling Containers per Residential Unit for areas where the carts cannot be used, as directed by the Franchisor. H. Manner of Collection The Franchisee shall collect Recyclable Materials with as little disturbance as possible and shall leave the Recycling Cart, Recycling Containers or Container housing Recyclable Materials at the same point it was collected. To be eligible for Curbside Residential Recycling Collection Service, Recyclable Materials must be put in a Recycling Cart or Container. All Recyclable Materials set out by the customer that meet these criteria shall be collected. I. Material Recycling Facility The Franchisee shall deliver all Recyclable Materials collected from the Service Area to the facility designated, in writing, by the Contract Administrator. The Franchisee is responsible for the delivery of clean, non - contaminated Recyclable Materials. Contaminated materials are defined as those materials that require extensive sorting and/or disposal as determined by the supervisor of the County's recycling facility. J. Change in Scope of Recycling Collection Service From time to time, at the sole option of the Franchisor, it may be necessary to modify the scope of Recyclable Materials that will be included in Recycling Collection Service. Should this occur, the Franchisor and the Franchisee agree to enter into good faith negotiations to amend this Agreement to reflect the impact of any such modification. 5. CHARGES, RATES, AGREEMENT AMOUNT AND LEVELS OF SERVICE A. Obligation of Franchisor for Billing, Collection and Payments (1) Specific Responsibilities 25 The Franchisor or its designee will be responsible for the billing and collection of payments for Residential Solid Waste Collection Services with the exception of any Special Services provided by the Franchisee. Billing and collection of these services will be the responsibility of the Franchisee. The Franchisor shall make monthly payments in arrears to the Franchisee for the Residential Solid Waste Collection Service provided pursuant to this Agreement. The Franchisee shall be entitled to payment for services rendered irrespective of whether the Franchisor collects from customers for such services. Payments from the Franchisor will be due and paid to the Franchisee no later than the tenth (10 day of the month following the month during which services were rendered. Franchisee shall service all residential units. If Franchisee is in doubt as whether units are being billed, Franchisee will contact the Contract Administrator. On or before October 1S and before commencement of work by the Franchisee under the terms of this Agreement, the Franchisor shall provide to the Franchisee the estimated total number of units to be serviced. By November 1S of each Fiscal Year, the Franchisor shall provide to the Franchisee a copy of the annual assessment roll providing a detailed listing of all the units to receive these services. Thereafter, and for the duration of this Agreement, the Franchisor shall promptly notify the Franchisee of new residential units to be served and/or deleted and payment will be adjusted accordingly. New Dwelling Units that are added for service during the Franchisor's Fiscal Year will be added to the customer service list and payment will be paid by the Franchisor to the Franchisee in the Franchisee's monthly payment. Payment will be prorated based upon the date of the Certificate of Occupancy. (2) Units Omitted from Annual Roll In the event the Franchisee provides service to Dwelling Units whose parcel was not included on the annual assessment roll provided by the Franchisor, the Franchisee must provide a written list of such Dwelling Units to the Contract Administrator as soon as possible after receipt of the assessment role. Upon receipt of such written list by the Franchisor, the Contract Administrator will, within thirty (30) days, verify the customer address and that service to the unit is proper, and, if proper, shall remit monthly payments to the Franchisee for such service effective as of October 1S of the Fiscal Year or the date service began, whichever is later. The Franchisor reserves the right to correct any errors of omission or commission per the laws and rules that govern the Franchisor. In the event the Franchisor pays the Franchisee for a residential unit in error, for any reason, the Franchisee shall notify the Contract Administrator. Upon determination of any overpayment, the Contract Administrator will verify the error and make an appropriate adjustment to the Franchisee's payment to correct the error. 26 B. Solid Waste and Recycling Collection Rate Adjustments (1) For all Collection services, the charges shall be initially based on the rates established in Exhibit II, and as subsequently adjusted pursuant to this Agreement. The Franchisee shall receive periodic adjustments in the Residential Solid Waste and Recycling Collection Service, and annual adjustments to the Commercial Recycling Collection Service, and Commercial Solid Waste Collection Service s as specified herein. The Franchisee shall provide Commercial customers written notice of a potential rate change in its annual September billing period. The periodic adjustment shall be made to the combined category of Residential Solid Waste Collection Service and Residential Recycling Collection Service. The annual adjustment shall be made to the combined category of Commercial Solid Waste Collection Service and Commercial Recycling Collection Service, and the CPIU for such shall not exceed 5% annually. CPIU increases beyond 5% shall require BOCC approval and an amendment to the Agreement. (2) The adjustment to Residential collection shall be made in accordance with the percentage change in the Consumer Price Index for all urban consumers ( "CPIU ") for the most recent twelve (12) months available, ending in February, but shall not exceed 2.5 %. Effective October 1, 2014, contingent upon Board of County Commission approval of the annual rate adjustments, the Franchisee will receive the specified CPI adjustment. D. Agreement Amount (1) Residential: The COUNTY shall pay the Franchisee in current annual funds for the Franchisee's performance of this Agreement for residential collection services. Funding for years 1 -10 of the residential collection services are estimated as follows, which includes the estimated periodic CPI increases as allowed and specified herein: Year 1 - $355,261 Year 2 - $364,142 Year 3 - $373,246 Year 4 - $382,577 Year 5 - $392,141 Year 6 - $401,945 Year 7 - $411,999 Year 8 - $422,288 Year 9 - $432,851 Year 10- $443,672 Total Estimated Amount Paid To Franchisee For Residential Services: $3.98 Million These numbers represent estimated numbers only, and are based on estimated quantities of materials and allowed annual CPI increases. Actual numbers are expected to vary. These estimates are not meant 2? as a minimum or maximum amount to be guaranteed under this Agreement on behalf of either the County or the Franchisee. E. Compiled Statement of Activities and Certified Annual Audits. (1) The Franchisee shall deliver to the Franchisor, in a format shown in Exhibit N, (as may be further revised by the Contract Administrator from time to time), a complied Statement of Activities (income statement) including, at a minimum, the results of operations of the Franchisee for each Service Area. Additionally, an annual audit report shall be prepared by a Florida Certified Public Accountant (Auditor) who maintains malpractice insurance, and is a member of the American Institution of Certified Public Accountants (AICPA). The Auditor shall conduct an audit of the Franchisee's books and records that relate to the Franchise Fee paid to the Franchisor in accordance with generally accepted accounting standards. Franchisee' Audit reports shall be submitted to the Franchisor within one - hundred and twenty (120) days of the end of the Franchisee's fiscal year. (2) The Franchisor and Franchisee understand and agree that time is of the essence regarding receipt of the compiled financial statement and audit reports. Therefore, if the franchisee fails to provide the Franchisor with the financial statement on or prior to the date prescribed herein, the Franchisee shall pay the Franchisor the sum of two hundred fifty dollars ($250.00) per day for each calendar day the submittal is late. No extension will be C ranted except for uncontrollable circumstances as referred to in Section 21. No rate adjustments of any type will be granted to the Franchisee unless all required financial statements have been filed in a timely manner. E. Solid Waste Disposal and Recycling Processing Costs Residential solid waste disposal and residential recycling processing costs will be part of the special assessment billed by the Franchisor. Commercial costs and commercial recycling processing charges will be billed by the Franchisee and submitted on a monthly basis to the Franchisor in a format proscribed by the Contract Administrator. This monthly billing statement shall be due by noon on the tenth (10) day of each month, or the first business day thereafter, and shall contain information pertaining to the preceding month. Information provided on the monthly billing statement shall be complete and accurate, and falsification of same shall be a criminal offense and shall be considered as a cause for Default under this Agreement as specified in Article 30 of this Agreement. F. Extraordinary Rate Adjustment The Franchisee may petition the Franchisor at any time for an addition rate adjustment on the basis of extraordinary and unusual changes in the cost of operations that could not reasonably be foreseen by a prudent 28 operator. The Franchisee's request shall contain substantial proof and justification, as determined by the Contract Administrator, to support the need for such rate adjustment. The Franchisor may request from the Franchisee such further information as may be reasonably necessary in making its determination. The Franchisor shall, at its sole option, approve or deny the request, in whole or in part, within sixty (60) days of receipt of the request and all other additional information required by the Franchisor. G. Franchise Fee To compensate for the cost of administration, supervision, inspection, and to fund a Countywide recycling program, consisting of County staff (labor, benefit and operating cost), public education materials, brochures, and premiums, rendered for the effective performance of this Agreement, the Franchisee shall pay to the Franchisor a fee of five percent (5 %) of all gross revenues charged, collected or received arising out of any services or operations conducted in the Service Area. Commercial solid waste disposal costs, commercial recycling collection costs, commercial recycling processing costs, any revenue paid to the Franchisee as a results of the diesel fuel surcharge adjustment per section 6(F), and any credit card convenience fee received by the Franchisee from customers using credit cards, shall be deducted from the gross revenue total prior to applying the 5% for calculation of the franchise fee due to the Franchisor. Fees shall be payable within forty -five (45) days of the last day of each calendar quarter. H. Diesel Fuel Surcharge The Franchisor, at its sole discretion, may authorize the Franchisee to collect a diesel fuel surcharge adjustment from commercial customers for commercial collection activities to reflect any significant changes in the cost of diesel fuel as determined by reference to the Energy Informant Administration of the US Department of Energy ( "ELVDOE") website that - reports average prices of diesel fuel for the "Lower Atlantic" United States. The link is as follows: http• / /tonto.eia.doe. og v/oog info /wohdp /diesel.asp The Franchisee must petition the County BOCC to make this request, and must provide sufficient documentation to demonstrate that increases in the price of diesel fuel have occurred. Such petition may not be made unless the price of diesel has raised a minimum of 10% over that price for diesel fuel existing on the EIA / DOE website for the Lower Atlantic United States as of the date of the execution of the Agreement ( "the base fuel price "). An amendment to this Contract, if approved by the County BOCC, shall be executed to authorize any such annual or periodic surcharge adjustment before it is implemented. Such adjustment shall not be requested by the Franchisee prior to year three (3) of the Agreement. If approved, the Franchisee shall submit to the Franchisor, no later than the 10' of the following month, a report listing the total number of gallons and cost of diesel fuel purchased in the previous month and includes copies of diesel fuel supplier invoices and individual service area truck fueling tickets. 29 I. Convenience Fee: In addition to the Special Service Rates charged pursuant to Article 8 and Exhibit V, Franchisee may include a convenience fee charge on customers using a credit card to pay special service charges. The convenience fee shall be a "pass through" fee and will not exceed the fee charge by the customer's credit card company to the Franchisee for the use and processing of the charge. 7. HOLIDAYS The Monroe County Transfer Stations will be closed on Thanksgiving Day, Christmas Day and New Year's Day. The Franchisee shall not be required to collect Solid Waste, Vegetative Waste, and Recyclable Material or maintain office hours only on these designated holidays. Services not provided on the designated holidays shall resume on the next scheduled service day. A. Service Fee If requiring a designate facility to remain open outside its regular business hours the Franchisee shall be charged a Service Fee of Hundred Fifty Dollars ($150.00) per hour for every hour (or portion thereof) the site remains open. If the roads are closed due to an act of God or a known accident, such fee shall not apply. The Franchisee shall notify the Franchisor's Solid Waste Administrator or designee as soon as identified, about any event such as a disabled, truck, accident, or shortage of staff that will cause delays in the Franchisee's normal collection schedule and cause the need for the transfer station(s) to remain open past the regular stated closing time. Franchisee shall provide documentation regarding such event for Franchisor's approval before Franchisor determines if a charge is in order. SPECIAL SERVICES Rates charged for Special Services may not exceed the special services rates as listed in Exhibit V, and as subsequently adjusted pursuant to this Agreement. The Franchisee shall receive an annual adjustment to the Special Services Rates in accordance with the percentage change in the Consumer Price Index for all urban consumers (CPI -U) for the most recent 12 months available, ending in February. In the event the requested special service is not included within Exhibit V, the Franchisee may negotiate with the customer for the rate. Upon failure of the parties to reach an agreement on the rate, the Contract Administrator shall establish the rate. The Franchisee shall be responsible for billing and collection of payment for all Special Services. 30 Disabled Service. Upon authorization from Franchisor, Franchisee shall provide Disabled Service, which includes rolling out of containers from the front/side yard, at no additional cost, for accounts associated with physically disabled individuals who provide a doctor's statement certifying their disabled status and expected duration, along with a signed, sworn statement in a form provided by Franchisee stating that no able- bodied person is available at the residential premises to bring carts to the collection location. 9. PUBLIC AWARENESS PROGRAM The Franchisee shall provide the services or activities as set forth in Exhibit VII. The Franchisee shall assist the Franchisor with the Public Awareness Program by distributing door hangers, stickers, flyers or other media to residential and commercial customers as requested by the Franchisor. Additionally, it is the Franchisee's responsibility to provide information to the Franchisor about those customers who repeatedly do not prepare or set out their Recyclable Material or solid waste as specified within this Agreement. The Commercial Recycling customers will also be notified, by the Franchisor through the Franchisee, about special commercial recycling events, workshops, educational forums and symposiums and other activities, as needed. 10. MANNER OF COLLECTION The Franchisee shall collect Residential Solid Waste, Vegetative Waste and Recyclable Materials and Commercial Solid Waste and Recyclable Materials with as little disturbance as possible and shall leave any receptacle at the same point it was collected. Any cart or container damaged by the Franchisee will be replaced by the Franchisee within seven (7) days, at no cost to the customer, unless otherwise provided within this Agreement. The replacement must be similar in style, material, quality and capacity. Throwing of any garbage receptacle, container or recycling Cart or container is prohibited. To be eligible for pick -up, Residential Solid Waste and Vegetative Waste — Regular must be placed in a Garbage Receptacle. Vegetative Waste — Oversize and Bulk Trash as defined in Sections 2.SS and 2.0 of this Agreement shall be properly bundled and picked up by the Franchisee within five (5) business days of notification by the resident of the Dwelling Unit. Vegetative Waste — Oversize and Bulk Trash must be placed at 311 an accessible pick -up location. Oversize Vegetative Waste will be subject to additional charge as set forth herein, according to Exhibit II 11. PERSONNEL OF THE FRANCHISEE A. The Franchisee shall assign a qualified person or person to be in charge of the operations within the Service Area and shall give the name(s) of the person(s) to the Contract Administrator. B. The Franchisee's solid waste collection employees shall wear a uniform or shirt bearing the Franchisee's name during operations. C. Each driver of a collection vehicle shall at all times carry a valid Florida driver's license for the type of vehicle being driven. D. The Franchisee's name and office telephone number shall be properly displayed on all solid waste and recycling collection vehicles and containers provided by the Franchisee. E. The Franchisee shall provide operating and safety training for all personnel. F. The Franchisee's employees shall treat all customers in a polite and courteous manner. 12. SPILLAGE The Franchisee shall not litter or cause any spillage to occur upon the premises or the right -of -way wherein the collection shall occur. During hauling, all solid waste, vegetative waste and recyclable material shall be contained, tied, or enclosed so that leaking, spilling and blowing are prevented. In the event of any spillage or leakage caused by the Franchisee, the Franchisee shall promptly clean up all spillage and leakage at no cost to the Franchisor. 13. SOLID WASTE AND RECYCLING FACILITIES All Residential Solid Waste, Commercial Solid Waste, Vegetative Waste and Recyclable Material shall be delivered to a site or facility designated in writing to the Franchisee by the Contract Administrator. If the Franchisor should request the Franchisee to deliver to a site or facility that is a greater distance than the nearest site or facility, the Franchisor shall compensate the Franchisee for such additional directly - related costs based on 32 a "cost per truck mile" annually agreed upon by the Franchisor and the Franchisee. The Franchisee shall provide to the Franchisor by August 1 of each year written notice indicating the estimated cost of operation per truck mile that shall be in effect for the twelve (12) month period beginning October 1 S'. The Franchisor shall provide the Franchisee written notice of approval or denial of the proposed cost by August 15' If denied, the Franchisor and Franchisee agree to negotiate in good faith and reach agreement regarding the estimated cost per truck mile. Such agreement shall not be unreasonably withheld by the Franchisor or Franchisee. If an agreement cannot be reached, the Franchisee may petition the Board of County Commissioners for a final hearing on the denial. Such decision by the Board shall be final. In the event a load of Recyclable Materials delivered to the designated facility contains more than ten percent (10 %) by weight of the total load, material that is not Recyclable Material, or there is more than ten percent (10 %) the Franchisee has the right to reject the load and charge the customer the full disposal fee for each ton within the load. The Franchisee may pass this cost through to a commercial customer in the event the Franchisee can prove the customer caused the contamination to the satisfaction of the customer. In the event of a dispute, the Contract Administrator will determine whether the Franchisee or the customer will absorb the disposal fee. It is the responsibility of the Franchisee to notify the Franchisor of any customer who has on more than three (3) occasions contaminated the Recyclable Materials. 14. COLLECTION EQUIPMENT The Franchisee shall have on hand at all times and in good working order such equipment as shall permit the Franchisee to adequately and efficiently perform the contractual duties specified in this Agreement. Upon execution of this Agreement and annually thereafter, the Franchisee shall provide, in a format specified by the Contract Administrator, a list of the equipment to be used by the Franchisee to provide services relating to this Agreement. Solid Waste collection equipment shall be of the enclosed loader packer type, or other equipment that meets industry standards and is approved by the Contract Administrator. All equipment shall be kept in good repair and appearance and in a sanitary, clean condition at all times. Recycling Materials collection equipment shall meet industry standards, be reasonably approved by the Contract Administrator and be compatible for unloading at the designated facility. Equipment utilized for the collection of Recyclable Materials shall be clearly identified for that purpose. The Franchisee shall have available reserve equipment that can be put into service the same day as the occurrence of any breakdown. Such reserve equipment shall correspond in size and capacity to the equipment used by the Franchisee to perform the duties of this Agreement. 33 15. VEGETATIVE WASTE All Vegetative Waste shall be collected separately from Residential Solid Waste, Commercial Solid Waste and Recyclable Materials. All tree and shrub trimmings, grass clippings, palm fronds and all tree branches or other similar loose waste shall be tied in bundles or placed in containers. Oversize Vegetative Waste must be no more than six feet (6') in length and placed neatly at the curb. 16. SPECIAL WASTE, HAZARD WASTE, BIOLOGICAL WASTE, BIOMEDICAL WASTE AND SLUDGE The Franchisee shall not be required to collect and dispose of Special Waste, Hazardous Waste, Biohazardous Waste, Biomedical Waste or Sludge, but may offer such service in the Service Area. All such collection and disposal for those types of wastes in this Section are not regulated or exclusive under this Agreement, but if provided by the Franchisee shall be in strict compliance with all Federal, state and local laws and regulations. 17. OFFICE The Franchisee shall maintain an office within Monroe County. It shall be equipped with sufficient telephones, and shall have responsible persons in charge during collection hours, and shall open during normal business hours, 8:00 a.m. to 2:00p.m., Monday through Friday. Franchisee shall maintain a local telephone number during both normal office hours and after - hours. The Franchisee shall provide an answering machine or service during non - office hours for the receipt and forwarding of customer inquiries and shall daily check for messages received during the 2:00 - 5:00 p.m. period and promptly respond by the next morning. The Franchisee shall provide a contact person for the Franchisor to reach during all non - office hours. The contact person must have the ability to authorize Franchisee operations in the case of Franchisor direction of situations requiring immediate attention. Franchisee shall provide a local office for response to all customer inquiries. "Local" shall be defined as an office within the Franchisee's service area. 18. COMPLAINTS All service complaints shall be directed to the Contract Administrator or the Franchisee. All complaints received by the Contract Administrator will be forwarded daily to the Franchisee by telephone or other electronic means. All complaints received by the Franchisee shall be recorded on a form approved by the Contract Administrator. All complaints shall be resolved within twenty -four (24) hours after receipt by the Franchisee. When a complaint is received on a Saturday or the day preceding a holiday, as specified in this Agreement, it 34 shall be resolved by the Franchisee no later than the next regular working day. If a complaint cannot be resolved within twenty -four (24) hours, the Contract Administrator shall be notified. Upon resolution, the Franchisee shall notify the Contract Administrator or his or her designee of the action taken to resolve the complaint on the approved form. The Franchisee shall provide the Contract Administrator a full written explanation of the disposition of any complaint involving a claim of damage to private or public property as a result of actions of the Franchisee's employee, agent or subcontractor. 19. QUALITY OF SERVICE A. It is the intent of this Agreement to ensure that the Franchisee provides a quality level of solid waste and recycling collection services. (1) To this end, all complaints received by and/or referred to the Franchisee shall be promptly resolved pursuant to the provisions of Section 18 of this Agreement. (2) An excess of legitimate complaints shall be a determining factor in the Franchisor's decision to exercise the renewal option as specified in Section 1. An excess of legitimate complaints shall be defined as an amount that exceeds two percent (2 %) of the total customers served by the Franchisee within the Service Area during any Franchisor fiscal year. The legitimacy of a complaint shall be determined by the Contract Administrator or his or her designee. (3) Any occurrence of the following actions on the part of the Franchisee shall result in an assessment of liquidated damages with the designated amount deducted from payments due or to become due to the Franchisee: TL Lieuidated Damaees 35 a. Failure to collect missed customers by 6:00 p.m. the same day when $25.00 per incident to a given notice before noon, or by 12:00 noon the following day when maximum of $150.00 per given notice between 12:00 noon and 5:00 p.m. truck per day b. Legitimate complaints over ten (10) per month $150.00 per incident C. Collection of Residential Solid Waste and /or Recyclables before 5:00 $150.00 per incident a.m. or after 6:00 p.m. d. Commingling Solid Waste with Vegetative Waste, Recyclable Materials, $150.00per incident C &D Materials, or other waste material e. Failure to clean spillage $150.00per incident f. Failure to replace damaged container within seven days (two days for $150.00per incident 35 36 residential) g. Failure to return containers or garbage receptacles to original location $150.00 per incident h. Failure to repair damage to customer property $150.00 per incident i. Reserved for future use J. Failure to comply with designated facility regulations $150.00per incident k. Failure to provide clean, safe and sanitary equipment $150.00 per incident 1. Failure to maintain office hours as required $150.00 per incident m. Operator not licensed $150.00 per incident n. Failure to provide documents and reports in a timely and accurate manner $150.00 per incident o. Failure to cover materials, if appropriate, on collection vehicle(s) $150.00 per incident p. Name and phone number not displayed on equipment or containers $150.00 per incident q. Providing exclusively prohibited service in another Franchisee's area, without prior authorization by the Contract Administrator $150.00 per incident r. Not providing schedule and route maps $150.00 per incident s. Excessive noise generated by service equipment and /or personnel $150.00 per incident t. Using improper truck to service commercial or residential customer $150.00 per incident u. Failure to submit disclosure notice to customer or Contract Administrator $150.00 per incident v. Failure to report recycling activity monthly (on or before the 10` day of the following month) in the format determined by the Franchisor, for the purpose of tracking and verifying County -wide recycling activity $150.00 per incident w. Failure to offer a corresponding reduction in the level of solid waste service with the implementation of commercial recycling $150.00 per incident x. Failure to submit the financial statements, reports and other information as required under this Agreement by the prescribed date $1000.00 per calendar day y. Failure to respond to complaints and customer calls, including commercial recycling customers, in a timely and appropriate manner $150.00 per incident 36 The Contract Administrator may assess charges pursuant to this Section. The Franchisee will be notified in writing of the administrative charges assessed and the basis for each assessment. In the event the Franchisee wishes to contest any such assessment, it shall within five (5) days after receiving such notice, request in writing an opportunity to be heard by the Contract Administrator and present its defense to such assessment. The assessment will only be deducted following a determination by the Contract Administrator. The decision of the Contract Administrator will be final. 20. FILING OF REQUESTED INFORMATION AND DOCUMENTS A. In addition to any other requirements of this Agreement, the Franchisee shall be required to file pertinent statistical and aggregate cost information pertaining to solid waste, yard waste and recycling collection services that is requested by the Franchisor to comply with the provisions of Chapter 403, F.S., as amended, and any other pertinent laws and regulations. The Franchisee will also be required to submit a monthly operations report in a format prescribed by the Contract Administrator. The results of all solid waste, yard waste and recycling activity conducted by the Franchisee in the Service Area during each month, residential or commercial, shall be reported accurately to the Franchisor in a format and such dates as specified by the Franchisor, on or before the 10' day of the following month. B. The Franchisee shall file and keep current with the Franchisor documents and reports required by this Agreement. By September 1 S ` of each year this Agreement is in effect, the Franchisee shall ensure and certify to the Franchisor that all required documents such as, but not limited to, certificates of insurance, audits, performance bonds or letter of credit, route schedules and maps, driver's license certifications, and lists of collection equipment vehicles are current and on file with the Franchisor. Failure to file any document or report 37 within five (5) working days of the required filing date, except where granted an extension by the Contract Administrator, may result in the levy of liquidated damages as provided in Section 19. 21. UNCONTROLLABLE CIRCUMSTANCES Neither the Franchisor nor Franchisee shall be considered to be in default of this Agreement if delays in or failure of performance shall be due to Uncontrollable Forces, the effect of which, by the exercise of reasonable diligence, the non - performing party could not avoid. Neither party shall, however, be excused from performance if non - performance is due to forces that are preventable, removable, or remediable and that the non - performing party could have, with the exercise of reasonable diligence, prevented, removed or remedied with reasonable dispatch. The non - performing party shall, within a reasonable time of being prevented or delayed from performance by an uncontrollable force, give written notice to the other party describing the circumstances and uncontrollable forces preventing continued performance of the obligations of this Agreement. 22. PERMITS AND LICENSES The Franchisee shall obtain, at its own expense, all permits and licenses required by law for the Franchisee's operation under this Agreement and maintain the same in full force and effect. 23. PERFORMANCE BOND The Franchisee shall furnish to the Franchisor a performance bond executed by a surety company licensed to do business in the State of Florida and/or a clean irrevocable letter of credit issued by a bank within Monroe County to ensure the faithful performance of this Agreement and all obligations arising hereunder in the appropriate amount determined in accordance with Exhibit VI. As to the clean irrevocable letter of credit or bond provided hereunder, each may be substituted for the other upon approval by the Franchisor. The form of this bond or letter of credit, and the Surety Company, shall be acceptable to the Franchisor's attorney, and shall be maintained during the term of this Agreement. The bond shall be endorsed to show the Franchisor, a political subdivision of the State of Florida; and shall also provide that bonds shall not be canceled, limited or non - renewed until after thirty (30) days written notice have been given to the Franchisor. Current performance bonds evidencing required coverage must be on file at all times. 38 24. WORKERS' COMPENSATION INSURANCE Workers' Compensation Insurance coverage must be maintained in accordance with statutory requirements, as must be Employer's Liability Coverage in an amount not less than $1,000,000.00 per incident. The full Workers' Compensation requirements are specified in Exhibit VIII. 25. GENERAL, AUTOMOBILE LIABILITY INSURANCE A. The Franchisee shall, during the term of this Agreement and any extensions hereof, maintain in full force and effect General and Automobile liability insurance that specifically covers all exposures incident to the Franchisee's operation under this Agreement. Such insurance shall be with a company rated "A" or better by Best Rating Service. The amount for General Liability shall be 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 Franchisee's agreement or indemnity), and Fire Legal Liability. B. The amount for Automobile Liability shall be $500,000 per person, $1,000,000 per occurrence. The General Liability and Automobile Liability full coverages are specified in Exhibit VIII. C. Policies shall be endorsed to show the Franchisor, a political subdivision of the State of Florida, as an additional insured as its interests may appear, and shall also provide that insurance shall not be canceled, limited or non - renewed until after thirty (30) days written notice have been given to the Franchisor. Current certificates of insurance evidencing required coverage must be on file with the Franchisor at all times. Franchisee expressly understands and agrees that any insurance protection furnished by Franchisee shall in no way limit its responsibility to indemnify and save harmless Franchisor under the provisions of Section 26 of this Agreement. 26. INDEMNITY A. GENERAL INDEMNIFICATION: Franchisee shall indemnify, defend, save and hold harmless the Franchisor, its officers, agents and employees, harmless from any and all claims, damages, losses, liabilities and expenses, direct, indirect or consequential arising out of or in consequential arising out of or alleged to have arisen out of or in consequence of the products, goods or services furnished by or operations of Franchisee or his Subcontractors, agents, officers, employees or independent contractors pursuant to the Contract, specifically including but not limited to those caused by or arising out of (a) any negligent or wrongful act, omission or default of Franchisee and/or his subcontractors, agents, servants or employees in the provision of the goods 39 and/or services under the Contract; (b) any and all bodily injuries, sickness, disease or death; (c)injury to or destruction of tangible property, including the loss of use resulting therefrom; (d) the use of any improper materials; (e) a defective condition in any goods provided pursuant to the Contract, whether patent or latent; (f) the violation of any federal, state, County or municipal laws, ordinances or regulations by Franchisee, his subcontractors, agents, servants, independent contractors or employees; (g) the breach or alleged breach by Franchisee of any term, warranty or guarantee of the Contract. This indemnification shall not apply to the negligent or wrongful acts, omissions or defaults caused by the Franchisor, its employees, or agents. Franchisor shall give prompt notice of any claim for which Franchisee may be obligated to provide indemnification. Franchisee shall pay all claims, losses, liens, settlements or judgments of an y nature whatsoever in connection with the foregoing indemnifications including, but not limited to, reasonable attorney's fees (including appellate attorney's fees), paralegal expenses, and costs. Franchisee shall determine the acceptability or non - acceptability of any offer, proposal or settlement in any matter for which it is obligated to provide indemnity to the Franchisor under this Section. Franchisee shall select its own legal counsel to conduct any defense in any such proceeding, subject to the reasonable approval of Franchisor, and all costs and fees associated therewith shall be the responsibility of Franchisee under the indemnification agreement. Nothing contained herein is intended nor shall it be construed to waive Franchisor's rights and immunities under the common law or Florida Statute 768.28, as amended from time to time. 27. ACCESS TO FRANCHISEE'S BOOKS AND RECORDS The Franchisee shall maintain within Monroe County adequate records of all Solid Waste collection and recycling services. The Franchisor or its designees shall have the right to review all records maintained by the Franchisee upon twenty -four (24) hours written notice. If the Franchisor shall determine a need for same and upon 120 days' written notice by the Franchisor in the year following the Franchisee's fiscal year, hereby defined as January 1 through December 31 financial statements will be prepared by the Florida independent certified public accounting firm prepared in accordance with generally accepted account principles, pertaining only to each individual Collection Agreement and Service Area, shall be delivered to the Franchisor no later than April 30 of the year following the Franchisee's fiscal year, hereby defined as January I through December 31. No extensions will be granted, excqpt for uncontrollable circumstances as referred to in Section 21. No rate adjustments of any type will be granted to the Franchisee unless all required financial statements have been filed in a timely manner. Franchisee shall maintain all books, records and documents directly pertinent to !III performance under this Agreement in accordance with generally accepted accounting principles consistently applied. Each party of this Agreement or their authorized representatives shall have reasonable and timely access to such records of each other part to this Agreement for public records purposes during the term of the Agreement and for four years following the termination of this Agreement. If an auditor employed by the County or Clerk determines that monies to be paid to the Franchisor were insufficient or incorrect, then the Franchisee shall pay the deficient or correct amount to the Franchisor together with interest calculated pursuant to Sec. 55.03, FS, running from the date the monies were to be paid to the Franchisor. 28. POINT OF CONTACT All dealings, contacts, notices and payments between the Franchisee and the Franchisor shall be directed by the Franchisee to the Contract Administrator. 29. NOTICE Except where otherwise noted herein, any communication required for any purpose in this Agreement shall be in writing and delivered with a signed receipt, as follows: As to the Franchisor: Monroe County Solid Waste Management Department 1100 Simonton Street, Room 2 -231 Key West, FL 33040 Attention: Contract Administrator As to the Franchisee: THE OCEAN REEF CLUB, INC. dba OCEAN REEF CLUB 35 Ocean Reef Drive, #200 Key Largo, FL 33037 30. DEFAULT OF CONTRACT A. The Franchisor may cancel this Franchise Agreement, except as otherwise provided below in this Section, by giving Franchisee thirty (30) days advance written notice, to be served as hereafter provided, upon the happening of any one of the following events: 41 (1) Franchisee 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 statute 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, Franchisee 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 Franchisee, seeking its reorganization or the readjustment of its indebtedness under the Federal bankruptcy laws 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 sixty (60) days after the entry thereof, any notice of cancellation shall 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 office having jurisdiction, a receiver, trustee or liquidator shall take possession or control of all or substantially all of the property of the Franchisee, and such possession or control shall continue in effect for a period of sixty (60) days; or (4) The Franchisee has defaulted, by failing or refusing to perform or observe the terms, conditions of or covenants in this Agreement or any of the rules and regulations promulgated by the Franchisor pursuant thereto, or has wrongfully failed or refused to comply with the instructions of the Contract Administrator relative thereto, and said default is not cured within thirty (30) days of receipt of written notice by Franchisor to do so, or if by reason of the nature of such default, the same cannot be remedied within thirty (30) days following receipt by Franchisee of written demand from Franchisor to do so, Franchisee fails to commence the remedy of such default within said thirty (30) days following such written notice, or having so commenced shall fail thereafter to continue with diligence the curing thereof (with Franchisee having the burden of proof to demonstrate [a] that the default cannot be cured within thirty (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. B. However, notwithstanding anything contained herein to the contrary, for the failure of Franchisee to provide Collection Service for a period of three (3) consecutive scheduled working days, the Franchisor may secure the Franchisee's billing records on the fourth (0) working day in order to provide interim collection services until such time as the matter is resolved and the Franchisee is again able to perform pursuant to this Franchise Agreement; provided, however, if the Franchisee is unable for any reason or cause to resume M performance at the end of thirty (30) working days all liability of the Franchisor under this Agreement to the Franchisee shall cease and this Agreement may be deemed immediately terminated by the Franchisor. C. Notwithstanding the foregoing and as supplemental and additional means of termination of this Agreement under this Section, in the event that Franchisee's record of performance shows that Franchisee has frequently, regularly or repetitively defaulted in the performance of any of the covenants and conditions required herein to be kept and performed by Franchisee, in the opinion of Franchisor and regardless whether Franchisee has corrected each individual condition of default, Franchisee 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 Franchisor shall thereupon issue Franchisee final warning citing the circumstances therefore, and any single default by Franchisee 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, Franchisor may terminate this Franchise Agreement upon the giving of written Final Notice to Franchisee, such cancellation to be effective upon the fifteenth (15`'') consecutive calendar day following the date of Final Notice, and all contractual fees due hereunder plus any and all charges and interest shall be payable to said date, and Franchisee shall have no further rights hereunder. Immediately upon receipt of said Final Notice, Franchisee shall proceed to cease any further performance under this Franchise Agreement. D. In the event of the aforesaid events specified in Paragraphs A, B and C, above, and except as otherwise provided in said paragraphs, termination shall be effective upon the date specified in Franchisor's written notice to Franchisee and upon said date this Agreement shall be deemed immediately terminated and upon such termination all liability of the Franchisor to the Franchisee under this Agreement shall cease, and the Franchisor shall have the right to call the performance bond and shall be free to negotiate with other contractors for the operation of the herein - specified services. The Franchisee for failure to perform shall reimburse the Franchisor all direct and indirect costs of providing interim collection service. 31. MODIFICATIONS TO AGREEMENT DUE TO PUBLIC WELFARE OR CHANGE IN LAW The Franchisor shall have the power to make changes to this Agreement as the result of changes in law and to impose new and reasonable rules and regulations on the Franchisee under this Franchise Agreement relative to the method of collection and disposal of Garbage, Rubbish, Bulk Trash, Vegetative Waste, or Recyclable Materials as shall from time to time be necessary and desirable for the public welfare. The Franchisor shall give the Franchisee reasonable notice of any proposed change and an opportunity to be heard 43 concerning those matters. The method of collection and disposal of Solid Waste and Recyclables, as referenced herein, shall also be liberally construed to include, but not be limited to, the manner, procedures, operations and obligations, financial or otherwise, of the Franchisee. The Franchisor and Franchisee understand and agree that the Florida Legislature from time to time has made comprehensive changes in Solid Waste Management legislation and that these and other changes in law in the future, whether Federal, state or local, mandating 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. The Franchisor and Franchisee agree to enter into good faith negotiations regarding modifications to this Agreement that may be required in order to implement changes in the interest of the public welfare or due to change in law. 32. RIGHT TO REQUIRE PERFORMANCE The failure of the Franchisor at any time to require performance by the Franchisee of any provisions hereof shall in no way affect the right of the Franchisor thereafter to enforce the same. Nor shall waiver by the Franchisor of any breach of any provisions hereof be held to be waiver of any succeeding breach of such provisions or as a waiver of any provision itself. 33. TITLE TO WASTE The Franchisor shall at all times hold title and ownership to all Residential and Commercial Solid Waste, Vegetative Waste, Rubbish, Recyclable Material and all other waste collected by the Franchisee pursuant to this Agreement. 34. GOVERNING LAW, VENUE, INTERPRETATION, COSTS AND FEES This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contract made and to be performed entirely in the State. In the event any cause of action or administrative proceeding is instituted for the enforcement or interpretation of this Agreement, the Franchisor and Franchisee agree that venue will lie in the appropriate court or before the appropriate administrative body in Monroe County, Florida. 44 The Franchisor and Franchisee agree that, in the event of conflicting interpretations of the terms or a term of this Agreement by or between them, the issue shall be submitted to mediation prior to the institution of any other administrative or legal proceeding. This Agreement shall not be subject to arbitration. 35. COMPLIANCE WITH LAWS The Franchisee shall conduct operations under this Agreement in compliance with all applicable laws, rules and regulations. 36. SEVERABILITY If any term, covenant condition or provision of this Agreement (or the application thereof to any circumstance or person) shall be declared invalid or unenforceable to any extent by a court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this Agreement shall not be affected thereby; and each remaining term, covenant, condition and provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law unless the enforcement of the remaining terms, covenants, conditions and provisions of this Agreement would prevent the accomplishment of the original intent of this Agreement. The Franchisor and Franchisee agree to reform the Agreement to replace any stricken provision with a valid provision that comes as close as possible to the intent of the stricken provision. 37. ASSIGNMENT AND SUBLETTING A. The Franchisee shall not assign or dispose of the Franchise granted by this Agreement by sale, lease, mortgage or otherwise transfer it in any manner whatsoever without the express written consent of the Franchisor. - The Franchisor shall have full discretion to approve or deny, with or without cause, any proposed assignment or assignment by the Franchisee. Such approval shall not be unreasonably withheld by the Franchisor. If such assignment is approved by the Franchisor, the Franchisee shall pay an assignment fee to the Franchisor. Any assignment of this Agreement made by the Franchisee without the express written consent of the Franchisor shall be null and void and shall be grounds for the Franchisor to declare a default of this Agreement and immediately terminate this Agreement by giving written notice to the Franchisee, and upon the date of such notice this Agreement shall be deemed immediately terminated, and upon such termination all liability of the Franchisor under this Agreement to the Franchisee shall cease, and Franchisor shall have the right to call the performance bond and shall be free to negotiate with other Franchisees or any other person or company for the service of the Franchise area that is the subject of this Agreement. In the event of any assignment, assignee shall fully assume all the liabilities of the Franchisee. 45 B. It is the intent of the parties that no Franchisee, by itself or through its parent(s) or holding companies, shall at any time holds or have control of more than two (2) Solid Waste and Recycling Collection Franchise Agreements with the Franchisor. C. Upon written notification to and subject to written approval by the County, the Franchisee may subcontract or authorize performance of the Work. Such written request shall include the name(s) and work history of the subcontractor(s) and the desired length of the work period for which they will be providing services. The Franchisee guarantees compliance by such subcontractors and assignees with the requirements of this Agreement, including insurance, copies of which shall be provided by the subcontractors or assignees to the Franchisor. The Franchisor shall not unreasonably withhold approval of any requested subcontract. This paragraph shall also be incorporated by reference into any assignment or subcontract and the assignee or subcontractor shall comply with any and all of the provisions of this Agreement. Unless expressly provided for herein, such approval shall in no manner or event be deemed to impose any obligation upon the Franchisor. D. For purposes of this Section, a parent or holding company shall mean any person, corporation or company holding, owning or in control of more than ten percent (10 %) of the stock or the financial interest in the Franchisee. 38. MODIFICATIONS This Agreement constitutes the entire contract 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. 39. INDEPENDENCE OF AGREEMENT Except as otherwise noted in Section 3.A, it is understood and agreed that nothing herein contained is intended or should be construed as in any way establishing the relationship of co- partners between the parties hereto, or as constituting the Franchisee as the agent, representative or employee of the Franchisor for any purpose whatsoever. The Franchisee is to be and shall remain an independent Franchisee with respect to all service performed under this Agreement. The Franchisee, its agents and employees are strictly considered to be independent contractors s in their performance of the work contemplated hereunder. As such, the Franchisee, its agents and employees shall not be entitled to any of the benefits, rights or privileges of County employees. The 46 provider shall at all times exercise independent, professional judgment and shall assume professional responsibility for the services to be provided. 40. MUNICIPALITIES' OPTION TO BE COVERED BY CONTRACT The Franchisee shall have the right of first refusal to provide Residential Solid Waste Collection Services to any municipality in the County located adjacent to and contiguous with its Service Area boundaries under the same terms, conditions and rates of compensation as provided for under the terms of this Franchise Agreement. The County and a municipality that elects to be covered by this Franchise Agreement shall enter into an interlocal agreement regarding the participation of the municipality. Municipalities currently being served by a Franchisee under the terms and conditions of the prior franchise agreement shall continue to be served by those franchisees under the provisions of this Franchise Agreement. 41. OTHER RATE ADJUSTMENTS Non - performance of this Franchise Agreement or a request for a rate increase, either of which are attributed to the Franchisee accepting the Franchise Agreement award at an insufficiently low rate, shall result in cancellation of all solid waste and recycling collection Franchise Agreements for all service areas entered into with the Franchisee. 42. EXISTING OR PRIOR AGREEMENTS The terms and conditions of this Agreement supersede the terms, obligations and conditions of any existing or prior agreement or understanding, written or verbal, between the parties regarding the work performed, compensation to be paid, and all other matters contained herein, 43. ATTORNEY'S FEES AND COSTS The Franchisor and Franchisee agree that in the event any cause of action or administrative proceeding is initiated or defended by any party relative to the enforcement or interpretation of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court costs, investigative and out -of- pocket expenses, as an award against the non - prevailing party, and shall include attorney's fees, court costs, investigative and out -of- pocket expenses in appellate proceedings. Mediation proceedings initiated and conducted pursuant to this Agreement shall be in accordance with Florida Rules of Civil Procedure and usual and customary procedures required by the Circuit Court of Monroe County. 47 44. BINDING EFFECT The terms, covenants, conditions a nd provisions of this Agreement shall bind and inure to the benefit of the Franchisor and Franchisee and their respective legal representatives, successors and assigns. 45. AUTHORITY Each party represents and warrants to the other that the execution, delivery and performance of this Agreement have been duly authorized by all necessary County and corporate actions, as required by law. 46. CLAIMS FOR FEDERAL OR STATE AID Franchisor and Franchisee agree that each shall be, and is, empowered to apply for, seek and obtain Federal and state funds to further the purpose of this Agreement, provided that all applications, requests, grant proposals and funding solicitations shall be approved by each party prior to submission. 47. ADJUDICATION OF DISPUTES OR DISAGREEMENTS Franchisor and Franchisee agree that all disputes and disagreements shall be attempted to be resolved by meet and confer sessions between representatives of the parties. If no resolution can be agreed upon within thirty (30) days after the first meet and confer session, the issue or issues shall be discussed at a public meeting of the Board of County Commissioners. If the issue or issues are still not resolved to the satisfaction of the parties, then any party shall have the right to seek such relief or remedy as may be provided by this Agreement or by Florida law. 48. NONDISCRIMINATION The Franchisee agrees to comply with the requirements of all applicable non - discrimination and equal employment opportunity statutes, ordinances and laws. The Franchisor and Franchisee agree that there will be no unlawful discrimination against any person, and it is expressly understood that upon a determination by a court of competent jurisdiction that unlawful discrimination has occurred and has not been cured or resolved by way of settlement or other resolution, this Agreement automatically terminates without any further action on the part of any party, effective the date of the final and non - appealable court order. 48 The Franchisor or Franchisee agrees to comply with all Federal and Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. These include but are not limited to: (1) Title VI of the Civil Rights Act of 1964 (P.L. 88 -352) which prohibits discrimination on the basis of race, color and national origin; (2) Section 504 of the Rehabilitation Act of 1973, as amended (20 U.S.C. s. 794), which prohibits discrimination on the basis of handicap; (3) The Age Discrimination Act of 1975, as amended (42 U.S.C. ss. 6101- 6107), which prohibits discrimination on the basis of age; (4) The Drug Abuse Office and Treatment Act of 1972 (P.L. 92 -255), as amended, relating to nondiscrimination on the basis of drug abuse; (5) The Comprehensive Alcohol Abuse And Alcoholism Prevention, Treatment and Rehabilitation Act of 1970 (P.L. 91- 616), as amended, relating to nondiscrimination on the basis of alcohol abuse or alcoholism; (6) The Public Health Service Act of 1912, ss. 523 and 527, (42 U.S.C. 290 dd -3 and 290 ee -3), as amended, relating to confidentiality of alcohol and drug abuse patient records; (7) The American with Disabilities Act of 1990 (42 U.S.C. s. 1201 Note), as may be amended from time to time, relating to nondiscrimination on the basis of disability; (8) The Florida Civil Rights Act of 1992, (Chapter 760, Florida Statuses, and Section 509.092, Florida Statutes), as may be amended from time to time, relating to nondiscrimination; (9) The Monroe County Human Rights Ordinance (Chapter 13, Article VI, Sections 13 -101 through 13 -130), as may be amended from time to time, relating to nondiscrimination; and (10) any other nondiscrimination provisions in any Federal or state statues or local ordinances that may apply to the parties to, or the subject matter of, this Agreement. 49. COOPERATION In the event any administrative or legal proceeding is instituted against either party relating to the formation, execution, performance or breach of this Agreement, Franchisor and Franchisee agree to participate, to the extent required by the other party, in all proceedings, hearings, processes, meetings and other activities related to the substance of this Agreement or provision of the services under this Agreement. Franchisor and Franchisee specifically agree that no party to this Agreement shall be required to enter into any arbitration proceedings related to this Agreement or any Attachment or Amendment to this Agreement. 50. COVENANT OF NO INTEREST Franchisor and Franchisee covenant that neither presently has any interest, and shall not acquire any interest, that would conflict in any manner or degree with its performance under this Agreement, and that the only interest of each is to perform and receive benefits as recited in this Agreement. 49 51. CODE OF ETHICS The Franchisor agrees that the officers and employees of the Franchisor recognize and will be required to comply with the standards of conduct relating to public officers and employees as delineated in Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts, doing business with one's agency, unauthorized compensation, misuse of public position, conflicting employment or contractual relationship, and disclosure or use of certain information. 52. NO SOLICITATION OR PAYMENT Each of Franchisor and Franchisee warrants that, in respect to itself, it has neither employed nor retained any company or person, other than a bona fide employee working solely for it, to solicit or secure this Agreement and that it has not paid or agreed to pay any person, company, corporation, individual or firm, other than a bona fide employee working solely for it, any fee, commission, percentage, gift, or other consideration contingent upon or resulting from the award or making of this Agreement. For the breach or violation of this provision, the Franchisee agrees that the Franchisor shall have the right to terminate this Agreement without liability and, at its discretion, to offset from monies owed, or to otherwise recover, the full amount of such fee, commission, percentage, gift or consideration. 53. PUBLIC ACCESS Franchisor and Franchisee shall allow and permit reasonable access to, and inspection of, all documents, papers, letters or other materials subject to the provisions of Chapter 119, Florida Statutes, and made or received by Franchisor and Franchisee in conjunction with this Agreement. Pursuant to F.S. 119.070 1, Franchisee and its subcontractors shall comply with all public records laws of the State of Florida, including but not limited to: (a) Keep and maintain public records that ordinarily and necessarily would be required by Monroe County in order to perform the service. (b) Provide the public with access to public records on the terms and conditions that Monroe County would provide the records and at a cost that does not exceed the cost provided in Florida Statutes, Chapter 119 or as otherwise provided by law. (c) Ensure that public records that are exempt or confidential and exempt from public records disclosure requirements are not disclosed except as authorized by law. 50 (d) Meet all requirements for retaining public records and transfer, at no cost, to Monroe County all public records in possession of the Franchisee upon termination of the contract and destroy any duplicate public records that are exempt or confidential and exempt from public records disclosure requirements. All records stored electronically must be provided to Monroe County in a format that is compatible with the information technology systems of Monroe County. Violation of this subsection is considered a default under this Agreement and shall be addressed as set forth in paragraph 30 above. 54. NON - WAIVER OF IMMUNITY Notwithstanding the provisions of Section 768.28, Florida Statutes, the participation of the Franchisor and Franchisee in this Agreement and the acquisition of any commercial liability insurance coverage, self - insurance coverage, or local government liability insurance pool coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall any contract entered into by the Franchisor be required to contain any provision for waiver. 55. PRIVILEGES AND IMMUNITIES All of the privileges and immunities from liability, exemptions from laws, ordinances and rules, and pensions and relief, disability, workers' compensation and other benefits that apply to the activity of officers, agents, volunteers or employees of the Franchisor, when performing their respective functions under this Agreement within the territorial limits of the County shall apply to the same degree and extent to the performance of such functions and duties of such officers, agents, volunteers or employees outside the territorial limits of the County. 56. LEGAL OBLIGATIONS AND RESPONSIBILITIES; NON - DELEGATION OF CONSTITUTIONAL OR STATUTORY DUTIES This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any obligation or responsibility imposed upon the entity by law except to the extent of actual and timely performance thereof by any other participating entity, in which case the performance may be offered in satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, not shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the Franchisor, except to the 51 extent permitted by the Florida Constitution, state statutes, case law, and, specifically, the provisions of Chapters 125 and 163, Florida Statutes. 57. NON - RELIANCE BY NON - PARTIES No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service or program contemplated hereunder, and the Franchisor and Franchisee agree that neither the Franchisor or Franchisee, or any agent, officer or employee of either shall have the authority to inform, counselor otherwise indicate that any particular individual or group of individuals, entity or entities, have entitlements or benefits under this Agreement separate and apart, inferior to, or superior to, the community in general or for the purposes contemplated in this Agreement. 58. ATTESTATIONS Franchisee agrees to execute such documents as the Franchisor may reasonably require, including a Public Entity Crime Statement, and Ethics Statement, and a Drug -Free Workplace Statement. 59. NO PERSONAL LIABILITY No covenant or agreement contained herein shall be deemed to be a covenant or agreement of any member, officer, agent or employee of Monroe County in his or her individual capacity, and no member, officer, agent or employee of Monroe County shall be liable personally on this Agreement or be subject to any personal liability or accountability by reason of the execution of this Agreement. 60. EXECUTION IN COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be regarded as an original, all of which taken together shall constitute one and the same instrument and any of the parties hereto may execute this Agreement by signing any such counterpart. 61. SECTION HEADINGS Section headings have been inserted in this Agreement as a matter of convenience of reference only, and it is agreed that such section headings are not a part of this Agreement and will not be used in the interpretation of any provision of this Agreement. 52 IN WITNESS WHEREOF, the parties hereto have caused this Franchise Agreement to be executed by their respective authorized representatives as of the date first above written. BOARD OF COUNTY COMMISSIONERS OF HEAVILIN, CLERK MONROE COUNTY FLORIDA :i Deputy Clerk (SEAL) CLUB ATTEST Mayor /Chairperson NUMOO VASOJEZ, JR. MY COMMISSION # EE 054134 EXPIRES: May 10. 2016 Bonded Tfwu Notary PUw UrMervakn t` THE OCEAN REEF CLUB, INC. dba OCEAN REEF RM Tit] MONROE COUNTY ATTORNEY APPROVED AS T• FORM: HRISTIN M. l.it�16ERT BARROWS ASSIST � O,I�NTY ATTORNEY Date = 53 EXHIBIT I DESCRIPTION OF BOUNDARIES OF SERVICE AREA Unincorporated Monroe area known as Ocean Reef. 54 Exhibit II - APPROVED RATE SCHEDULE 55 EXHIBIT II APPROVED RATE SCHEDULE Ocean Reef Club Inc. FY 2014 -2015 Approved Rates Residential Col lection Rates Services Solid Waste Commercial Sol W $13.83 $3.34 Commercial Solid Waste Collection Rate Recycling Container Collection Rat Compactor Collection Rate (12 cub yards or less Compactor Collection Rate (greater than 12 cubic Roll -Off Collection Rate $7.43 per cubic yard $7.43per cubic yard $21.98 per cubic yard $222.05 per pull $222.05 per pull 1v1V1vInLI a.vl.ir&ulq ._ .u—_L_.__ -- CONTAINERS ON- COMPACTING SIZE cubic yards) RATE w /out locking mechanism IYD $17.77 2YD $20.19 $22.70 3YD 4YD $23.07 6YD $25.57 8YD $28.07 RECYCLING CONTAINERS 32 gal. $1.66 90 gal. $4.60 Capacities in between tnese values can uG uu -111— uy ... =.. =�..�••• Capacities outside of these values can be obtained by extrapolation. Curbside Service ix/wk and Roll -Off C ollection Rates Above prices include FY 15 CPI -U 1.1 %. Page 1 Franchise Area 4 Ocean Reef Club, Inc. 2014115 CAN PICKUP RATE SCHEDULE RATE INCREASE: 1.1% No. of a) cans" Number of Pickups Per Week 2 Rate 2 3 4 5 6 Element 19.74 29.46 39.26 49.13 58.94 COLLECTION 20.13 30.05 40.05 50.11 60.12 Collection wAncrease 24.30 36.38 48.52 60.68 72.82 DISPOSAL 0.00 0.00 0.00 0.00 0.00 3 RECYCLING" 44.43 66.43 88.57 110.79 132.94 TOTAL 29.46 44.09 58.94 73.64 88.46 COLLECTION 30.05 44.97 60.12 75.11 �• Collection w/increase 36.38 54.57 72.82 91.00 1 0 DISPOSAL 0.00 0.00 0.00 0.00 0.00 4 RECYCLING"' 66.43 99.54 132.94 166.11 199.43 TOTAL 39.26 58.93 78.62 98.26 117.76 COLLECTION 40.05 60.11 80.19 100.23 120.12 Collection w/Increm 48.52 72.82 97.05 121.35 145.59 DISPOSAL 0.00 0.00 0.00 0.00 0.00 5 RECYCLING" 88.57 132.93 177.24 221.58 265.71 TOTAL 49.13 73.64 98.26 122.75 147.24 COLLECTION 50.11 75.11 100.23 125.21 177.72 Collection wAncraase 60.68 91.00 121.35 151.63 181.96 DISPOSAL 0.00 0.00 0.00 0.00 0.00 6 RECYCLING" 110.79 166.11 221.58 276.84 359.68 TOTAL 58.93 88.46 117.76 147.24 176.76 COLLECTION 60.11 90.23 120.12 150.18 180.30 Collection wAncrease 72.82 109.20 145.59 181.96 210.00 DISPOSAL 0.00 0.00 0.00 0.00 RECYCLING""' 132.93 199.43 265.71 332.14 398.71 'Based on TOTAL Page 1 Page 2 Franchise Area 4 Ocean Reef Club, Inc. CONTAINERIZED PICKUP RATE SCHEDULE Container b) Size Number of Pickups Per Week 1 Rate 2 3 4 5 6 7 Element 1 COLLECTION 48.80 82.02 115.75 147.32 179.55 212.03 248.52 Collection 49.78 83.66 118.07 150.27 183.14 216.27 263. wlincrease 38.39 76.79 115.17 153.57 191.96 230.36 268.75 DISPOSAL 0.00 0.00 0.00 0.00 0.00 0.00 0.00 2 RECYCLING" 88.17 160.45 233.24 303.84 37510 446.63 522.24 TOTAL COLLECTION 82.23 147.32 212.03 276.51 338.76 400.91 463.07 Collection 83.87 150.27 216.27 282.04 345.54 408.93 472.3 wnncrease 76.79 153.57 230.36 307.13 3830: 460.71 53 0 DISPOSAL 0.00 0.00 0.00 0.00 0.00 00 3 RECYCLING" 160.66 303.84 446.63 589.17 729.46 869.64 1009.82 TOTAL COLLECTION 115.75 212.03 307.76 400.91 494.11 587.43 680.55 Collection 118.07 216.27 313.92 408.93 503.99 599.18 694.16 wlincrease 115.17 230.36 345.53 460.71 575 691 806.24 DISPOSAL 0.00 0•� 0.00 0.00 .00 4 RECYCLING" 233.24 446.63 659.45 869.64 1079.88 1290.24 1500.40 TOTAL COLLECTION 147.32 276.51 400.91 525.28 649.64 773.86 898.30 Collection 150.27 282.04 408.93 535.79 662.63 789.34 916.27 w/Increase 153.57 307.13 460.71 614.28 767.85 92� 8 1074 DISPOSAL 6 RECYCLING" 303.84 589 869.64 1150.07 1430.8 1710.75 1991.25 TOTAL COLLECTION 212.03 400.91 587.43 773.86 960.38 1146.89 1333.33 Collection 216.27 408.93 599.18 789.34 979.59 1168.83 1360.00 w/Increase 230.36 460.71 691.06 921.41 1151.77 1382.13 1612.48 8 DISPOSAL RECYCLING`* 0.00 0.00 0.00 0.00 1710.75 0.00 2131.36 0.00 2551.96 0.00 2972.48 TOTAL 446.63 869.64 1290.24 COLLECTION 276.51 525.28 773.86 1022.61 1271.28 1488.66 1732.14 Collection 282.04 535.79 789.34 1043.06 1296.71 1518.43 1766.78 wAncrease 307.13 616.34 921.41 1228.56 1535.69 1842.84 2149.97 DISPOSAL RECYCLING" 1152 3 1710.75 2271.62 2832.40 3361.27 3916.75 TOTAL 58917 Page 2 EXHIBIT III DISCLOSURE OF SERVICE RATES -- COMMERCIAL REGULATION BY MONROE COUNTY The terms and conditions of this Amended and Restated Solid Waste and Recycling Collection Franchise Agreement are regulated by a Franchise granted by Monroe County. Should the customer have any questions relating to the terms and conditions of this Franchise Agreement, the customer may call the Contract Administrator at 305- 292 -4432. COLLECTION CONTAINERS The customer shall be provided the Container from the Franchisee at the maintenance fee approved by the Board. If the customer chooses to use a Compactor, the customer may rent, lease or own the Compactor from any source, provided the Compactor can be serviced by the Franchisee's collection equipment. Containers and Compactors shall be maintained in a serviceable, safe and sanitary condition by the customer. In the event of damage to a Container, the incident will be investigated by the Contract Administrator, including a determination of any compensation due the affected party. SPECIAL SERVICES If a customer requests, the Franchisee may provide special services for the collection of Commercial Solid Waste such as rolling Containers out of storage areas, opening doors or gates for access, or other such special services. However, such special services may be provided by the customer, through its own or other personnel. If the Franchisee provides special services, such charges must be separately stated under the "RATES FOR SERVICES" Disclosure Statement. The maximum for these special service rates are fixed by the Board. A copy of these rates can be obtained from the Franchisee or the Contract Administrator. A convenience fee imposed pursuant to Article 6(G) may be included in the cost of the special services. "RATES FOR SERVICES" DISCLOSURE A "Rates for Services" disclosure statement shall be completed and issued to each customer receiving Solid Waste Collection Service, or special services. Upon the initial signing of a contract for these services, a copy of this disclosure statement shall be provided the customer and the Contract Administrator. The Rates for Services disclosure statement shall have attached a rate schedule that specifies the Collection Rate and the Disposal Rate based on size of Container and frequency of service; the Container Rental rate, expressed as a monthly flat fee based on the size of the Container; and the cost per month for each special service required by the customer. M EXHIBIT III DISCLOSURE OF SERVICE RATES (Page 2) "RATES FOR SERVICES" DISCLOSURE STATEMENT Franchise Name: Customer Name: Customer Address: Customer Phone #: Level of Service: Date of Agreement: Service Date: Begin: End: Item Cost of Collection of Solid Waste Cost of Disposal of Solid Waste Cost of Container Maintenance for Solid Waste Itemized Charges for Special Services Convenience Fee Total Monthly Cost THESE SERVICES ARE PROVIDED UNDER A FRANCHISE AGREEMENT REGULATED BY THE BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY. SHOULD YOU HAVE ANY QUESTIONS RELATING TO THESE RATES, PLEASE CALL THE SOLID WASTE MANAGEMENT DEPARTMENT AT 305- 292 -4432. 57 EXHIBIT IV ANNUAL FINANCIAL REPORTING FORMAT The Franchisee shall submit to the Franchisor a complied Statement of Activities related to the services provided pursuant to this agreement. The Statement of Activities shall be prepared in accordance with generally accepted accounting standards. The Franchisee shall disclose as part of the Statement of Activities income and expenses and all methods of allocations used to distribute costs between commercial and residential operations. The disclosure shall be in narrative form and include the basis for the allocation method. The Franchisee shall provide a description of the expenses classified as Other Operating Costs and Other General and Administration. Additionally, an annual audited statement related to the Franchisee Fee shall be provided as set forth in this Franchisee Agreement. Any allocations made must be disclosed in a narrative format, along with the basis for those allocations. Additionally, it is understood that each Franchisee shall utilize the accrual basis of accounting for income and expenses. 58 EXHIBIT V SPECIAL SERVICES 59 EXHIBIT V Special Services - Ocean Reef FY 2014 -2015 Approved Rates RATES DETERMINED BY FRANCHISOR (CPI 1.1 - 0514) Rolling Out Container (and returning it to .. 11 - -- $3.80 Back Door Service (Residential Curbside O Opening (and closing) Doors or Gates W $1.25 Locks for Containers $25.00 (one time) Charge for Replacement based on Cost + 10% Unlocking, Containers $1.71 Supplying (and retrofitting) locking $76.23 Mechanism on container* Adding wheels to or changing wheels No Charge on 1,2, and 3 yard Containers onl Moving Container Location (if $31.76 r Customer Request to or changing lids on No Char e eturn Fees $38.11 7it Convenience Fee Not to exceed fee charged b customer 's credit card com an id Service To be charged by the yard at the current collection and disposal rate. *There will be no charge for those residents medically unable to bring solid waste or recyclables to curbside as delineated in Section 4. Back door service to all other customers may be offered by the Franchisee. * *Determination of necessity of locking mechanisms is based on customer requirements." 05.21.14 EXHIBIT VI PERFORMANCE BOND SLIDING SCALE Gross Revenue (Minus Disposal Fees paid to the Franchisor) in Millions of Dollars 2.5 — Above 1.5-2.5 .5-1.5 .0-.5 Performance Bond Required $400,000 $300,000 $200,000 $100,000 , Exhibit VII Public Outreach Tasks 1. America Recycles Day November 15 Special Events I Earth Day / America Recycles Day There may be awards and or recognitions available from local, regional, state or national associations that bring praise for Monroe County's efforts. For example, SWANA (Solid Waste Association of North America) honors communities of all sizes for their efforts for marketing, communications, and outreach. SWANA also presents industry recognition for recycling, solid waste and organics programs. The special events held in Monroe County, the public outreach efforts and /or the increasing diversion numbers might be of award - winning caliber for organizations. 2. Monroe County and Southeast Florida Sustainability Sustainability is an important concept in Monroe County and the State of Florida. We are here to provide Monroe County to help implement programs to become a more sustainable community, at the request of the Franchisor. 3. School Recycling and Refuse Education The Franchisee shall participate in school recycling and effuse education programs through school events in the Franchisee's franchisee area. The Franchisee shall work with school principals and staff, and shall also provide recycle bins at no charge to the classrooms and various forms of promotional gifts for the students. 4. Community Events The Franchisee shall donate collection services to a variety of events in the community, . 5. Community Information The Franchisee shall provide recycling and refuse service information to local customers via electronic means, and provide news of community events to local customers. The Franchisee shall also provide a residential services packet with every residential recycling container and cart delivered, which shall describe how to properly dispose of all types of debris, including recycling, yard waste and hazardous waste. 61 EXHIBIT VIII INSURANCE REQUIREMENTS 62 2011 l:dut m GENERAL LIABILITY INSURANCE REQUIREMENTS FOR CONTRACT BETWEEN MONROE COUNTY, FLORIDA Prior to the commenuanccet °Co o�ge°shall bbe ma�tained thh the life of the contract General Liability I con ct and ns include, as a minimum: • premises Operations • products and Completed Operations • Blanket Contractual Liability • personal Injury Liability Damage • Expanded Definition of Property The minimum limits acceptable shall be: $1,000,000 Combined Single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: $ 500,000 per person $ 1,000,000 per Occurrence $ 100,000 property Damage its provisions should include Form policy u ve coverage claims filed on p rovided r after the ffective date of this lcontract. prudc g In addition, the period for which claims may be reported should extend for a minimum of twelve (12) months following the acceptance of work by the County. The Monroe County Board of County C shall be named as Additional Insured on all policies issued to satisfy the above req GL3 Administration instruction 55 2011 Edidon POLLUTION LIABILITY INSURANCE REQUIREMENTS FOR CONTRACT BETWEEN MONROE COUNTY, FLORIDA AND Recognizing that the work governed by this contract involves tha storage, treatment, processing, or transporting of hazardous materials (as defined by the Federal Environmental Protection Agency), the Contractor shall purchase and maintain, throughout the life of the contract, Pollution Liability Insurance which will respond to bodily injury, property damage, and environmental damage caused by a pollution incident. The minimum limits of liability shall be: $1,000,00U per Occurrence/$2,000, Aggregate If coverage is provided on a claims made basis, an extended claims reporting period of four (4) years will be required. POL2 Administration Insttuctica 72 t 2011 Wiuon VEMCLE LIABILITY INSURANCE REQUIREMENTS FOR CONTRACT BETWEEN MONROE COUNTY, FLORIDA AND Recognizing that the work governed by this contract requires the use of vehicles, the Contractor, prior to the commencement of work, shall obtain Vehicle Liability insurance. Coverage shall be maintained throughout the life of the contract and include, as a minimum, liability coverage for~ Owned, Non - Owned, and Hired Vehicles The minimum limits acceptable shall be: $1,00o,o©o Combined single Limit (CSL) If split limits are provided, the minimum limits acceptable shall be: $ 500,000 per Person $1,000,000 per Occurrence $ loopo0 Property Damage The Monroe County Board of County Commissioners shall be named as Additional Insured on all policies issued to satisfy the above requirements. Administration tnsttuclioa 82 2011 Edition WORKERS' COMPENSATION INSURANCE OQRURENtENTS CONTRACT BETWEEN MONR.OB COUNTY, FLORIDA obtain Prior to the commencement o f wor governed sufficient to contract, pond to the applicable Workers' Compensation Ins e state statutes. In addition, the Contractor shall obtain Employers' Liability Insurance with limits of not less than: $ 1,000,000 Bodily Injury by Accident $1,000,000 Bodily Injury by Disease, policy limits $1,000,000 Bodily Injury by Disease, each employee Coverage shall be maintained throughout the entire term of the contract. Coverage shall be provided by a company or companies authorized to transact business in the state of Florida. if the Contractor has been approved�b d honor Department of Labor, as an s status The Contractor may instuer, the County shall recognize of required to submit a setter of Authorization o uth� C Excess Ins aneenPrdg;atn. r and Certificate of Insurance, providing detail the Contractor participates i be self-insurance t submit updated financial statements from the fund i trfund n ad the Contractor may upon request from the County. WC3 Administration Instruction 89 S ' EXHIBIT IN PUBLIC ENTITY CRIME STATEMENT "A person or affiliate who has been placed on the convicted vendor list following a conviction for a public entity crime may not submit a bid on a contract to provide any goods or services to a public entity, may not submit a bid on a contract with a public entity for the construction or repair of a public building or public work, may not submit bids on leases of real property to a public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or consultant under a contract with any public entity, and may not transact business with any public entity in excess of the threshold amount provided in Section 287.017, Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the convicted vendor list." I have read the above and state that neither U� V ,(Respondent's name) nor any Affiliate has been placed on the convicted vendor list within the last 36 rjon hs. �f Date: ; ' -°30 - // STATE OF: V\ oc: �o_. COUNTY OF: Cnorc� - Subscribed and sworn to (or affirmed) before me on �7 3 0 (date) by A a ! /l ! • G u� (name of affiant). He /She is personall known to me or has produced (type of identification) as identification. NOTARY PUBLIC a► Notary Public Stab of Fbrida . LuAnn V Lowen My commil EE MOSS My Commission Expires: q Expires 06*312016 63 % ETHICS CLAUSE: LOBBYING AND CONFLICT OF INTEREST CLAUSE SWORN STATEMENT UNDER ORDINANCE NO. 10-1990 MONROE COUNTY, FLORIDA Ocean Reef Club warrants that it has not employed, retained or otherwise had act on its behalf any former County officer or employee in violation of Section 2 of Ordinance No. 10 -1990 or any County officer or employee in violation of Section 3 of Ordinance 10 -1990. For breach or violations of this provision the County may, in its discretion, terminate this Agreement without liability and may also, in its discretion, deduct from the Agreement or purchase price, or otherwise recover, the full amount of any fee, commission, percentage, gift or consideration paid to the former County officer or employee. Ocl STATE OF FLORIDA COUNTY OF (\N0nIz . EXHIBIT X M. PERSONALLY APgn B FARE ME, the undersigned authority, as of ©ce h - ho, after being first duly sworn by me, affixed his signature in the —Txtsi space provided above, this 90 day of 2014. +&N Notary public State of Florida LuAnn V Lomn y My commission EE 201055 TV Expiros 0612312016 Notary Public, State of Florida My Commission: 64 of the city of ose and say that under penalty L ofpe&ry, a d of the firm of I am ' the bidder making the Proposal for the p ject es ribed i e Request for Qposals� r that I executed the said proposal with full L 0 0 '► authority to do so; the prices in this bid have been arrived at independently without collusion, consultation, ose of restricting competition, as to any matter relating communication or agreement for the pure competitor; to such prices with any other bidder or with any the prices which have been quoted in this bid have not been unless otherwise required by law, be disclosed by the bidder prior to bid knowingly disclosed by the bidder and will not knowingly competitor; and opening, directly or indirectly, to any other bidder or to any other person, partnership o no attempt has been made or will be made by the bidder to ose of restricting competition; corporation to submit, or not to submit, a bid for the pure statements contained in this affidavit are true and corr d nthis affda fu t in awardu�g the Monroe County relie e ent s upon the truth of the stats con contracts for said project. (11 a. C. 4" e. EXHIBIT XI according to law on my oath, and Date: 7 36 — /S� STATE OF: V COUNTY OF: � _ tea / y (date) by Subscribed an d sworn to (or affirmed) before me on to me or has � a 1 / � � � (name of affiant). produced identification. Notary Public Stated Ronda LuAnn V Lower My 'Commission EE 201055 OF Expires O612312016 He /She is personally known (type of identification) as NOTARY PUBLIC My Commission Expires: 65 i+ EXIBIT XII DRUG-FREE WORKPLACE F O R M The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies that: Ocean Reef Club, Inc- (INSTA Bu smess 1 Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controllem to ee for violations f such prohibition' and specifying the actions that will be taken against e P Y the business's Inform employees about the dangers of drug abuse in the workplace, 2 ' free workplace, any available drug counseling, rehab employ ilitation, and policy a maintaining a drug - employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. 3, Give each employee engaged in providing the commodities or contractual services that are under bid a copy of the statement specified in subsection (1). In the statement specified in subsection (1), notify the employees that, as a condition of 4• gu ilty or nolo wor king on the com modities or contractual services o f f any convicttion of, or plea of lgu b e by t the terms of the statement and will notify the employ controlled substance law of contendere to, any violation of Chapter 893 (Florida Stan the workplace no later than five (5 days the United States or any state, for a violation occurring after such conviction. ire the satisfactory participation in a drug abuse assistance or t , availab 5 Impose a sanction on, or requle in the employee's community, or any employee who is so rehabilitation program such convicted. continue to maintain adrug -free workplace through 6. Make a good faith effort to implementation of this section. As the person authorized to sign the statement, I certify that this firm complies fully with the above requirement S A Date: 7 - 3 0 ^ �y Signature STATE OF: 9 t COUNTY OF: �� 30 (date) by f to (or affirmed) before me on Su bs 'bed and sw (name of affiant). He /She is ersonall known to me or has [ (type of identification) as identification. produced n c M � X134 12 ld 10, 2p NOTARY PUBLIC My Commission Expi 1AES:IdaY 7� 1 '� 0 � 66