Exhibit 10.2
NON-EXCLUSIVE FRANCHISE AGREEMENT FOR CONSTRUCTION AND DEMOLITION
DEBRIS
This Non-Exclusive Franchise Agreement For Construction And Demolition
Debris ("Agreement") is made between ▇▇▇▇▇▇ County ("County"), a political
subdivision of the State of Florida, and CHOICE SANITATION, its successors and
assigns, hereinafter referred to as the Contractor.
WHEREAS, Contractor wishes to collect and transport construction and
demolition debris in the unincorporated areas of ▇▇▇▇▇▇ County; and
WHEREAS, the County wishes to ensure that the Contractor's activities
are performed in accordance with all applicable laws and is consistent with the
public interest.
NOW, THEREFORE, in consideration of the mutual covenants hereinafter
contained and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the County and Contractor agree as follows:
ARTICLE I: DEFINITIONS
1.0 The words and terms used in this Agreement shall have the meaning
set forth in Section 1.01 of County Ordinance 529, unless otherwise indicated
herein.
ARTICLE II: CONTRACTOR'S GENERAL WARRANTY
2.0 By executing this Agreement, Contractor acknowledges that he has
read the provisions of County Ordinance 529 and this Agreement, and Contractor
agrees to comply at all times with the applicable provisions of Ordinance 529
and this Agreement.
ARTICLE III: NON-EXCLUSIVE FRANCHISE
3.0 The County hereby grants a non-exclusive franchise to Contractor
for the collection of construction and demolition debris in the unincorporated
areas of ▇▇▇▇▇▇ County, subject to the terms and conditions of this Agreement
and all applicable laws. This franchise only authorizes the Contractor to
collect construction and demolition debris in roll-off containers or other
commercial containers that are equal to or less than ten (10) cubic yards in
size. This franchise does not grant the Contractor the right to collect
construction and demolition debris in larger containers or the right to provide
commercial collection service or any residential service.
ARTICLE IV: TERM
4.0 This Agreement shall be effective when signed by the County's duly
authorized representative. This Agreement shall expire one year after the
effective date, unless the Contractor applies for a renewal of this Agreement
and the application is approved by the County.
ARTICLE V: CONTRACTOR'S OPERATIONS
5.0 The Contractor shall take all necessary steps to ensure that its
operations are performed in compliance with all applicable provisions of the
▇▇▇▇▇▇ County Code and any other applicable local, state, or federal laws.
5.1 The Contractor's employees shall be properly trained and qualified
to perform the tasks assigned to them.
5.2 Contractor may collect and transport construction and demolition
debris between 7 AM and 8 PM, Monday through Saturday Contractor shall not
collect or transport construction and demolition debris at other times, unless
the Contractor has received the prior approval of the Director of the ▇▇▇▇▇▇
County Environmental Services Department.
5.3 When collecting or transporting construction and demolition debris.
Contractor's employees shall wear a company shirt or uniform, which shall have
the Contractor's logo in a conspicuous place.
5.4 All of the trucks used by the Contractor for the collection of
construction and demolition debris shall be marked with the name and phone name
of the Contractor in letters that are plainly visible and at least four inches
high. Each commercial container used by the Contractor for the collection of
construction and demolition debris shall be labeled by the Contractor on each
side in the same manner.
5.5 The Contractor's commercial containers shall be securely covered
when transporting construction and demolition debris in the unincorporated areas
of ▇▇▇▇▇▇ County.
5.6 All of the vehicles used by the Contractor for
transporting construction and demolition debris in ▇▇▇▇▇▇ County shall be
maintained in a good, clean, and safe operating condition.
5.7 Contractor shall provide the County with a list of the vehicles
used by the Contractor and the license plate number for each vehicle.
5.8 The Contractor shall immediately pick up and properly process or
dispose of any solid waste, recovered material, or other material that is
spilled by the Contractor.
5.9 This Agreement authorizes the use of roll-off containers or other
containers that are equal to or less than ten (10) cubic yards in size. This
size limitation applies to the total volume of all containers provided by the
Contractor at one site. The Contractor may provide an unlimited number of
containers for construction and demolition debris, but the Contractor shall not
use multiple containers at one site to provide more than ten cubic yards of
capacity.
5.10 Containers holding recovered materials only are not subject to the
ten cubic yard limitation set forth in Section 5.9, above. However, any
container holding more than a de minimis amount of solid waste will be regulated
as though the container were filled with solid waste.
ARTICLE VI: DISPOSAL SITES
All of the solid waste collected by the Contractor shall be processed
or disposed of at a duly licensed and permitted solid waste management facility.
ARTICLE VII: FRANCHISE FEES
7.0 The Contractor shall pay a franchise fee to the County for the
privilege of using the public streets, roads, alleys and other thoroughfares of
the County for the collection and transportation of construction and demolition
debris that originates in the unincorporated areas of the County. The franchise
fee also may be used to pay the cost of implementing, administering and
enforcing the County's regulations for the safe handling of construction and
demolition debris generated in the unincorporated areas of ▇▇▇▇▇▇ County.
7.1 The franchise fee shall be equal to five percent (5%) of the total
gross revenues collected by the Contractor for the services provided pursuant to
this Agreement, including the collection, transportation, processing and
disposing of construction and demolition debris originating in the
unincorporated areas of ▇▇▇▇▇▇ County.
7.2 Franchise fees shall be paid to the County at least once each
quarter. If paid quarterly, franchise fees shall be delivered to the County no
later than January 15, April 15, July 15, and October 15 of each year. Each
quarterly payment shall be based on the gross revenues earned by the Contractor
for the services provided pursuant to this Agreement for the preceding calendar
quarter.
7.3 At least once each year, the Contractor shall provide the County
with an audited financial statement to demonstrate that the Contractor has fully
paid the applicable franchise fee. The financial statement shall be prepared by
an independent accounting firm in accordance with generally accepted accounting
principles. Unless the County instructs the Contractor otherwise, the Contractor
shall deliver the audited financial statement to the County within 45 days after
the anniversary of the effective date of this Agreement.
7.4 Each month the Contractor shall deliver to the County a true and
correct report identifying the gross revenues collected by the Contractor during
the previous month for the services provided by the Contractor pursuant to this
Agreement. The first monthly report shall be submitted within 15 days after the
end of the first month following the effective date of this Agreement. Each
monthly report thereafter shall be submitted on the 15th day of the following
month.
7.5 Each quarterly payment of the franchise fee shall be accompanied by
a true and accurate report demonstrating that the franchise fee has been paid in
full for the preceding calendar quarter.
7.6 The Contractor shall allow the County's auditors to inspect and
examine the Contractor's financial books and records to confirm the Contractor's
compliance with this Agreement. The inspections shall be allowed by the
Contractor at any time following a reasonable notice, which shall not be
construed to exceed seven days. Additionally, the County's auditors may
communicate directly with customers of the Contractor for the purpose of
confirming the Contractor's compliance with this Agreement. To the extent
authorized by Section 119.165, Florida Statutes, or other applicable laws, the
information obtained by the County shall remain confidential.
7.7 If the Contractor fails to pay the full amount of the franchise fee
in a timely manner, the County may suspend the franchise until payment is made
or may revoke the franchise. The Contractor shall pay any and all of the
County's expenses for the collection of the franchise fees, including but not
limited to court costs and reasonable attorneys' fees. Interest shall accrue on
any unpaid franchise fee at the maximum rate allowed by law.
ARTICLE VIII: INSURANCE
8.0 The Contractor shall not begin collecting construction and
demolition debris under this Agreement until appropriate certificates of
insurance are provided to the County to demonstrate compliance with the
requirements of this Agreement. The Contractor must maintain the insurance in
full force and effect at all times throughout the term of this Agreement. The
County shall be named as an additional insured on all of the insurance policies,
except for workers' compensation.
8.1 The Contractor shall provide workers' compensation and employer's
liability insurance of not less than $500,000 for each person/accident and each
person/disease, or the minimum amount required under Florida law, whichever is
greater.
8.2 The Contractor shall provide commercial general liability insurance
in the amount of $1,000,000 per occurrence, and shall include coverage for
bodily injury, death, property damage and other liabilities arising from or
related to Contractor's premises, operations, independent contractors, and
contracts. The contractual coverage must specify that it covers the hold
harmless provisions of this Agreement.
8.3 The Contractor shall provide vehicle liability insurance with
minimum combined single limits of $1,000,000 for all owned, hired, and non-owned
vehicles.
8.4 The Contractor shall provide umbrella liability insurance with a
limit of not less than $2,000,000. The umbrella coverage shall be form-following
and shall mirror the underlying coverage.
8.5 All of the companies providing insurance must be authorized to do
business in the State of Florida. All of the insurance companies providing
coverage must be rated A-, IX or higher in the most recent edition of Best's Key
Rating Guide.
8.6 No change or cancellation of any insurance required under this
Agreement may be made unless thirty (30) days prior written notice is provided
to the County. Each insurance certificate must name the County as an additional
insured and contain a clause stating substantially as follows: "If any of the
above-described policies are to be cancelled or undergo material change before
the expiration date, the issuing insurance company will mail written notice to
the ▇▇▇▇▇▇ County Attorney at least 30 days before the effective date of the
cancellation or change.
ARTICLE IX: INDEMNIFICATION
9.0 The Contractor agrees that it will indemnify, hold harmless and
defend the County, its officials, officers, employees and agents, against, and
assume all liability for, any and all claims, suits, causes of action, damages,
liabilities, expenditures, or proceedings of any kind (collectively "claims")
arising from or related to any of the Contractor's activities or operations
pursuant to this Agreement, including but not limited to claims based on bodily
injury, loss of life or limb, damage to property, pollution or other
environmental damages.
ARTICLE X: TERMINATION BY COUNTY
10.0 If there is a material breach of any term of this Agreement by the
Contractor, the County shall notify the Contractor in writing of the breach and
provide the Contractor with a reasonable opportunity to correct the breach. If
the breach is not corrected in a timely manner, the County may terminate the
Contract at any time at the County's discretion. Among other things, a material
breach of this Agreement shall be deemed to have occurred if: (a) the Contractor
fails to pay franchise fees at the times and in the amounts required by this
Agreement; (b) the Contractor fails to file complete, accurate, and timely
reports, as required by this Agreement; (c) the Contractor disposes of solid
waste at a site other than a properly permitted and authorized solid waste
management facility; (d) the Contractor collects or transports solid waste in a
manner that is not authorized under this Agreement; (e) the Contractor fails to
continuously maintain the types and amounts of insurance required under this
Agreement; (f) the Contractor declares bankruptcy; or (g) the Contractor fails
to comply with the applicable provisions of Ordinance 529 or this Agreement.
10.1 If the Contractor has frequently, regularly or repetitively
defaulted in the performance of any of the requirements in this Agreement or the
▇▇▇▇▇▇ County Code, the County may in its sole discretion deem the Contractor to
be a "habitual violator", regardless of whether the Contractor has corrected
each individual condition of default. Under such circumstances, the Contractor
shall forfeit its right to any further grace period to correct or cure future
defaults. All of the Contractor's prior defaults shall be considered cumulative
and collectively shall constitute a condition of irredeemable default. The
County shall issue the Contractor a notice that the Contractor has been deemed a
"habitual violator." Thereafter, any single default by the Contractor of
whatever nature shall be grounds for immediate termination of this Agreement. In
the event of any such default, the County may terminate this Agreement by giving
a written notice to the Contractor, which shall be effective upon the date
specified in the notice. The Contractor shall immediately cease all activities
under this Agreement. This section creates a supplemental and additional means
of terminating this Agreement and it shall not be deemed to be in lieu of any
other remedy available at law or equity.
ARTICLE XI: MISCELLANEOUS PROVISIONS
11.0 Representatives of the Parties
For the purposes of this Agreement, the authorized representative of
the County shall be the Director of the ▇▇▇▇▇▇ County Environmental Services
Department or the Director's designee. The authorized representative of the
Contractor for purposes of this Agreement shall be ▇▇▇▇ ▇▇▇▇▇▇▇▇▇. Either party
may change its representative upon five (5) days' prior Notice to the other
party.
11.1 Notices
All notices and consents required or permitted by this Agreement shall
be in writing and transmitted in person or by registered or certified mail,
return receipt requested, with notice deemed to be given upon receipt, as
follows:
If to the County:
Director
▇▇▇▇▇▇ County Environmental Services Department
▇▇▇▇ ▇.▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇▇▇ County Attorney
▇▇▇▇ ▇.▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
If to the Contractor:
With a copy to:
Changes in the respective addresses to which such notices may be
directed may be made from time to time by either party by notice to the other
party.
11.2 Waiver
No delay or failure to exercise a right under this Agreement shall
impair such right or shall be construed to be a waiver thereof, but such right
may be exercised from time to time and as often as deemed expedient. The failure
of the County or Contractor at any time to require performance by the other
party of any term in this Agreement shall in no way affect the right of the
County or Contractor thereafter to enforce same; nor shall waiver by the County
or Contractor of any breach of any term of this Agreement be taken or held to be
a waiver of any succeeding breach of such term or as a waiver of any term
itself. To be effective, any waiver shall be in writing and signed by the party
granting such waiver. Any such waiver shall be limited to the particular right
so waived and shall not be deemed to waive any other right under this Agreement.
11.3 Agreement Governed by Florida Law
This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, and it shall be binding upon, and inure to the
benefit of, the parties, their successors, and assigns. The Contractor shall
submit to service of process and the jurisdiction of the State of Florida for
any controversy or claim arising out of or relating to the Agreement. Any action
to interpret and/or enforce the Agreement shall be brought and maintained in the
State of Florida. Venue shall be in ▇▇▇▇▇▇ County, Florida. 11.4 Assignment
This Agreement may not be sold, assigned or transferred by the
Contractor without the County's prior written consent. As a condition precedent
to receiving the County's consent, the Contractor or the potential transferee
must demonstrate that the transferee has the ability to comply with all of the
applicable requirements set forth in this Agreement and the ▇▇▇▇▇▇ County Code.
At its sole option, the County may assign this Agreement at any time without the
consent of the Contractor.
11.5 Representations of the Contractor
The Contractor represents that (a) it is a corporation duly organized
under the laws of the State of Florida or a person or an entity qualified to do
business in the State of Florida, (b) this Agreement has been duly authorized,
executed, and delivered in the State of Florida, and (c) it has the required
power and authority to perform this Agreement.
11.6 Headings
Captions and headings in this Agreement are for ease of reference only
and do not constitute a part of this Agreement.
11.7 Severabilitv
If any term, condition, covenant or obligation of this Agreement is
declared illegal, void or unenforceable, the remaining terms will not be
affected but will remain in full force and effect, and this Agreement shall be
construed as if such illegal, void or unenforceable provision had never been
contained herein. 11.8 Survivabilitv
Any term, condition, covenant, or obligation which requires
performance by a party subsequent to termination of this Agreement shall remain
enforceable against such party subsequent to such termination.
11.9 Third Party Beneficiaries
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It is agreed between the parties hereto that no provision of this
Agreement is intended to create any third-party beneficiaries hereunder, or to
authorize anyone not a party to this Agreement to maintain an action pursuant to
the terms or provisions of this Agreement.
11.10 Personal Liability
Nothing in this Agreement shall be construed as creating any personal
liability on the part of any official, officer, employee, agent or
representative of the County.
11.11 Independent Contractor
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When performing the activities required by this Agreement, the
Contractor will be acting in the capacity of an independent contractor and not
as an agent, employee, partner, joint venturer or associate of the County. The
Contractor shall be solely responsible for the means, methods and procedures
used by the Contractor to perform under this Agreement. Neither the Contractor
nor any of its employees, officers, agents or subcontractors shall represent,
act, purport to act, or be deemed to be the agent, representative, employee, or
servant of the County. The Contractor shall have no authority to bind the County
to any agreement or contract. No person performing any work or services for the
Contractor under this Agreement shall be entitled to any benefits available or
granted to employees of the County.
11.12 Merger Clause
This Agreement constitutes the entire agreement and understanding of
the parties as to all matters addressed or referred to herein. This Agreement
supersedes all prior and contemporaneous agreements and understandings,
representations and warranties, whether oral or written, relating to such
matters.
11.13 Fair Dealing
The Contractor declares and warrants that the Contractor enters into
the Agreement without reliance on or engaging in any collusion, bribery or
fraud, that all of the Contractor's representations in this Agreement are made
fairly and in good faith, and that no County Commissioner, County officer, or
County employee, directly or indirectly owns more than 5% of the total assets or
capital stock of the Contractor, nor will any such person directly or indirectly
benefit by more than 5% from the profits or emoluments of this Agreement. The
Contractor warrants that it has not employed or retained any company or person,
other than a bona fide employee working solely for the Contractor, to solicit or
secure this contract and the Contractor has not paid or agreed to pay any
person, company, corporation, individual or firm, other than a bona fide
employee working solely for the Contractor, any fee, commission, percentage,
gift or any other compensation contingent upon or resulting from the award or
making of this contract. Further, the Contractor declares and warrants that the
Contractor is not subject to the restrictions in Section 287.017, Florida
Statutes, for a public entity crime.
11.14 Sovereign Immunity
Nothing in this Agreement shall be interpreted or construed to mean
that the County waives its common law sovereign immunity under Section 768.28,
Florida Statutes. 11.15 Amendment
Except as otherwise specifically provided herein, this Agreement may be
amended only by written instrument specifically referring to this Agreement and
executed by both parties with the same formalities as this Agreement.
11.16 Terms Generally
Whenever the context may require, any pronoun which is used in this
Agreement shall include the corresponding masculine, feminine and neuter forms
and the singular shall include the plural and vice versa. Unless otherwise
specifically noted, the words "include," and "including" as used herein shall be
deemed to be followed by the following phrase "without limitation." The words
"agree," "agreement," "consent," "establish," "impose" as used herein shall be
deemed to be followed by the phrase "which shall not be unreasonably withheld or
delayed" except as specifically noted. Words or phrases which are defined herein
by reference to a statute, rule or regulation shall have the meaning ascribed to
such word or phrases as of the Effective Date, without regard to subsequent
changes in such statutes, rules or regulations.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the dates noted below.
▇▇▇▇▇▇ COUNTY, FLORIDA
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇
County Administrator
ATTEST:
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Clerk APPROVED AS TO FORM
-------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Clerk AND CORRECTNESS
(SEAL)
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
County Attorney
CHOICE SANITATION
Constractor
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
