HomeMy WebLinkAbout2008-3200 /a 3 !J
Third Amendment
to
Franchise Agreement
Indian River County Solid Waste Disposal District
And
Waste Management Inc. of Florida
Date of SWDD Public Hearing to Approve: September 23, 2008
Effective Date: October 1, 2008
1
This Third Amendment ("Third Amendment") is hereby made and entered into this
23rd day of September, 2008, with an Effective Date of October 1, 2008, between Indian
River County Solid Waste Disposal District, a dependent special district of Indian River
County, Florida, whose address is c/o Indian River County Utilities Department, 1801 27th
Street, Vero Beach, Florida 32960, ("District") and Waste Management Inc. of Florida, a
Florida corporation, whose address is 2700 NW 48th Street Pompano Beach,
FI 33073 ("Franchisee").
Background Recitals
1. The District and the Franchisee entered in a franchise agreement ("Agreement") on
September 3, 2002, wherein the Franchisee was authorized to provide residential solid waste
collection service, residential recycling collection service, commercial collection service, and
certain construction and demolition debris service, as set forth therein.
2. Effective September 6, 2004, the District and the Franchisee entered in an Emergency
Contract Memorandum Of Understanding Supplemental to Franchise Agreement ("Frances
Memorandum of Understanding") in connection with Hurricane Frances Generated Debris
(as therein defined) to supplement the existing provisions of Sections 13.17; 13.17.1;
13.17.2 and 13.18 of the Agreement. The Frances Memorandum of Understanding was
deemed to be the First Amendment to the Agreement.
3. Effective September 26, 2004, the District and the Franchisee entered in an Emergency
Contract Memorandum Of Understanding Supplemental to Franchise Agreement ("Jeanne
Memorandum of Understanding") in connection with Hurricane Jeanne Generated Debris (as
therein defined) to supplement the existing provisions of Sections 13.17; 13.17.1; 13.17.2
and 13.18 of the Agreement. The Jeanne Memorandum of Understanding was deemed to be
the Second Amendment to the Agreement.
4. As required by section 12.3, of the Agreement, where the Franchisee seeks an
adjustment of any charges established and approved by the Board, a public hearing shall
be held on the request.
5. The required supporting data were submitted to the Board for review and presentation
prim to the duly -noticed public hearing held on September 23. 2008.
6. This Third Amendment was approved by the Board following the close of the
September 23, 2008 public hearing.
7. The District and the Franchisee desire to amend certain of the terms of the Agreement as
set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and agreements
contained herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the District and the Franchisee agree as follows:
1. From and after the effective date of this Third Amendment, the existing Article 2
of the Agreement is deleted in its entirety and replaced with the following:
2
2. 0. The term of this Agreement shall be seven (7) years, commencing October 1, 2008,
and ending September 30, 2015,
2. From and after the effective date of this Third Amendment, the existing Article 3
of the Agreement is amended by deleting sections 3.31 and 3.32 in their entirety.
3. From and after the effective date of this Third Amendment, the existing Article 8
of the Agreement is amended by deleting section 8.7 in its entirety and replacing it with the
following:
8.7. Residential Recyclables Collection Service Containers. The District shall
provide two (2) Recyclable Containers to each Residential Unit receiving Residential
Recyclables Collection Service. Each Recyclable Container shall have a capacity of
approximately 18 gallons. The cost of the initial two (2) Recyclable Containers will be
borne by the District. The title to these Recyclable Containers shall be vested with the
District. The District shall maintain an adequate supply of Recyclable Containers to
provide for distribution to new residents and for the replacement of lost or damaged
Recyclable Containers.
4. From and after the effective date of this Third Amendment, the existing Article 8
of the Agreement is amended by adding the following sentence to the end of the existing
section 8.7.1:
8.7.1. Any Recyclable Containers distributed pursuant to the provisions of this section
shall be provided by the District at no cost to the Franchisee.
5. From and after the effective date of this Third Amendment, the existing Article 8
of the Agreement is amended by deleting section 8.7.2 in its entirety and replacing it with
the following:
8.7.2. Additional Recyclable Containers for Customers. The District will provide the
Customer at no cost to the Customer. with additional Recyclable Containers whenever.
(a) a Customer requests a replacement Recyclable Container because its Recyclable
Container was lost, damaged or destroyed by the Customer or someone other than the
Franchisee; (b) a Customer requests additional Recyclable Containers because the
Customer needs more Recyclable Containers to hold the Recyclable Materials it
generates; or (c) a new Customer requests Residential Recyclables Collection Service.
6. From and after the effective date of this Third Amendment, the existing Article 8
of the Agreement is amended by deleting section 8.10 in its entirety and replacing it with the
following:
8.10. Franchisee Obligations - Method of Collection of Recyclable Materials: The
Franchisee shall only be required to Collect the below -listed Recyclable Materials that
are placed in Recyclable Containers or toters at the Curbside Collection Point. The
Customer shall separate the Recyclable Materials into paper/fiber and all other Recyclable
Materials prior to placing them at the Collection Point. At the Curbside Collection Point,
the Franchise, if possible, shall separate the Recyclable Materials and place them into two
3
(2) different sections of the Collection vehicle. One section shall contain: plastics #1
through #7, clear, brown and green glass, metal cans (both ferrous and non-ferrous
aluminum), aerosol cans, aluminum foil, aluminum pie plates, aluminum trays, and aseptic
packaging (milk and juice cartons). The other section shall contain: paper products,
including newspaper/inserts, magazines, catalogs, books, telephone books, office paper,
mail, junk mail, and shredded paper, cereal boxes; food boxes; pizza, soda, and beer
boxes; and corrugated cardboard.
7. From and after the effective date of this Third Amendment, the existing Article 8
of the Agreement is amended by adding a new section 8.10.1 to read as follows:
8.10.1. Franchisee retains the obligation to collect White Goods.
8. From and after the effective date of this Third Amendment, the existing Article 8
of the Agreement is amended by deleting section 8.12 in its entirety and replacing it with the
following:
8.12. No Co -mingling or Disposal of Source Separated Recyclable Materials. The
Franchisee shall not mix or co -mingle source separated Recyclable Materials with Solid
Waste. Except as provided herein, the Franchisee shall not dispose of source separated
Recyclable Materials at the District Landfill or otherwise.
9. From and after the effective date of this Third Amendment, the existing Article 8
of the Agreement is amended by deleting section 8.13 in its entirety and replacing it with the
following:
8.13. Obligations Of Franchisee To Residential Customers - General. For Residential Units,
the Curbside Collection Point shall be located within five (5) feet of the curb, the paved
surface of a public roadway, the closest accessible public right-of-way, or other location
agreed to by the Franchisee and Customer that provides safe and efficient access for the
Collection crew and vehicle. If a Customer is physically unable to deliver their Residential
Solid Waste or Recyclable Materials to the Curbside Collection Point, as documented to the
Franchisee by a note from a medical practitioner, or the Residential Unit is not readily
accessible to the Collection crew or vehicle, an alternative location shall be designated by the
Ct istomsr and Franchisee, at no extra cost to the Customer.
10. From and after the effective date of this Third Amendment„ the existing Article 8
of the Agreement is amended by adding a new section 8.13.3 to read as follows:
8.13.3. Cardboard Obligations. All cardboard placed in Recyclable Containers or toters at
the Curbside Collection Point shall be flattened to a 2 -foot by 3 -foot size.
11. From and after the effective date of this Third Amendment, the existing Article 8
of the Agreement is amended by adding the following sentence to the end of the existing
section 8.15:
8.15. Routes and Schedules. On or before March 31, 2009, the Franchisee shall provide
the updated routes and maps information in a GIS compatible format to the SWDD
F11
Contract Manager and all updates during the term of this Agreement shall be provided in a
GIS compatible format.
12. From and after the effective date of this Third Amendment, the existing Article 8
of the Agreement is amended by deleting section 8.16 in its entirety and replacing it with the
following:
8.16. Annual Customer Verification. Franchisee shall, during the month of March of each
year of the term of this Agreement, conduct a complete survey of its Residential
Recyclables Franchise Area and physically verify the number of customers receiving
Residential Recyclables Collection and Recyclable Toter Service. In addition, the survey
shall attempt to identify the address of each Customer that does not have Recyclable
Containers. The District shall have the right to accompany Franchisee and participate in
the survey. Franchisee shall by the end of March of each year provide a report to the
District verifying and documenting the total number of Customers by type and service.
13. From and after the effective date of this Third Amendment, the existing Article 9
of the Agreement is amended by deleting section 9.0 in its entirety and replacing it with the
following:
9.0. Residential Solid Waste Collection Service Rates. The total rate charged by
Franchisee per Residential Unit for Residential Solid Waste Collection Service shall be
$14.32 (Fourteen Dollars and thirty-two cents) per month. The foregoing rate is the total
rate that may be charged by the Franchisee for Residential Solid Waste Collection Service
and includes all franchise fees, collection costs, disposal costs, and other fees and
expenses. The Franchisee and the District acknowledge and agree that the total rate for
Residential Solid Waste Collection Service shall be in effect from October 1, 2007 through
and including September 30, 2009 The Franchisee and the District acknowledge and
agree that the total rate for Residential Solid Waste Collection Service is subject to the
Collection Rate Adjustment as set forth in Article 12 of this Agreement, the first Collection
Rate Adjustment to be effective October 1, 2009. The Franchisee shall not separately
state the amount of the franchise fee on any bill to any residential Customer.
14. From and after the effective date of this Third Amendment, the existing Article 9
of the Agreement is amended by deleting section 9.2 in its entirety and replacing it with the
lollowilig:
9.2. Residential Recyclables Collection Service Rates. The maximum monthly rates for
Residential Recyclables Collection Service per Residential Unit shall be as follows:
Residential Units: ................................. $1.70
Multiple Dwelling Units receiving Recyclable Toter Service:.. $1.34
Mobile Home Park Units receiving Recyclable Toter Service: $1.15
Mobile Home Park Units receiving Residential
Recyclables Collection Service ...... $1.51
Residential Unit/Indian River Shores- $1.34
(based upon every other week collection)
»�
15. From and after the effective date of this Third Amendment, the existing Article
10 of the Agreement is amended by deleting section 10.1 in its entirety and replacing it with
the following:
10.1. Commercial Recycling. The Franchisee shall encourage all Customers to recycle
and shall provide for the collection and dual sorting of the following Recyclable Materials
:(I) plastics #1 through #7, clear, brown, and green glass, metal cans (both ferrous and
non-ferrous aluminum), aerosol cans, aluminum foil, aluminum pie plates, aluminum trays,
and aseptic packaging (milk and juice cartons); and (11) ; paper products, including
newspaper/inserts, magazines, catalogs, books, telephone books, office paper, mail, junk
mail, and shredded paper; cereal boxes; food boxes; pizza, soda, and beer boxes; and
corrugated cardboard.
16. From and after the effective date of this Third Amendment, the existing Article
10 of the Agreement is amended by deleting sections 10.4; 10.5; and 10.6 in their entirety.
17. From and after the effective date of this Third Amendment„ the existing Article
11 of the Agreement is amended by deleting section 11.0 in its entirety and replacing it with
the following:
11.0. Rates — General. The rates for Commercial Collection Service set forth in this
Agreement are fixed rates to be charged to all Customers receiving Commercial Collection
Service for Commercial Container Rates and Loose Pickup Rates. The rates for
Construction and Demolition Debris Service (all Roll -Off charges) set forth in this
Agreement are maximums and actual rates or volume discounts may be negotiated
between Franchisee and Customer. Notwithstanding the foregoing, the Franchisee and
the District acknowledge and agree that the Commercial Collection Service and
Construction and Demolition Debris Service rates are exclusive to the Franchisee and are
subject to the Collection Rate Adjustment as set forth in Article 12 of this Agreement.
18. From and after the effective date of this Third Amendment, the existing Article
11 of the Agreement is amended by deleting section 11.1 in its entirety and replacing it with
the following:
11.1. Rates. All Customers receiving Commercial Collection Service and Construction
and Demolition Debris Service will be charged on a per cubic yard bads. Commercial
Collection Service charges will be billed monthly in advance by the Franchisee and
Construction and Demolition Debris Service charges will be billed monthly in arrears by the
Franchisee as follows:
11.1. Commercial Container Rate per cubic yard Per pick up -- $4.90.
[Commercial Container Rate applies to Commercial Collection Service where the
Franchisee provides a Commercial Container of 2-8 yard capacity.]
11.1.2. Loose Pick-up Rate per cubic yard per pick up -- $7.15.
[Loose Pick-up service applies to Commercial Collection Service where the
Commercial Customer provides its own Commercial Container or Garbage
Receptacle. There is a minimum monthly service charge of $30.90.]
101
11.1.3. Roll -Off Charges Per Pull - Open Toa Type:
a) 15 cubic yards
b) 20 cubic yards
c) 30 cubic yards
d) 40 cubic yards
$154.66 per pull
$170.15 per pull
$201.09 per pull
$232.00 per pull
11.1.4. Roll -Off Charges Per Pull - Enclosed Compactor Type
a) 20 cubic yards or less $182.98 per pull
b) 21-40 cubic yards $243.90 per pull
19. From and after the effective date of this Third Amendment, the existing Article
12 of the Agreement is amended by deleting all sections in their entireties and replacing
with the following:
12.0. Fixed Collection Rates Through September 30, 2009. The District and the
Franchisee acknowledge and agree that: (A) the rate for each Residential Unit for
Residential Solid Waste Collection Service set forth in section 9.0 of this Agreement, (B)
the rates for Residential Recyclables Collection Service per Residential Unit set forth in
section 9.2 of this Agreement, (C) the rates for Commercial Collection Service are fixed
from October 1, 2007 through and including September 30, 2009, and (D) the Construction
and Demolition Debris Service rates are maximum rates as set forth in this Agreement
that will not increase from October 1, 2008 through and including September 30, 2009 (all
of the foregoing collectively referenced herein as the "FY 2008-2009 Rates'),
12.1. Adjustments to Collection Rates, The District and the Franchisee acknowledge and
agree that, effective October 1, 2009 (Fiscal Year 2009-2010), and on each October 1
thereafter during the term of this Agreement, any and all of the FY 2008-2009 Rates may
be adjusted as calculated herein, subject, however, to an aggregate maximum of seven
percent (7%) per annum. Each such adjustment shall consist of the aggregate of the two
(2) Collection Rate components [CPI and Fuel and Oil] as set forth herein, and, for the
purposes of this Agreement are collectively referenced as "Collection Rate Adjustment').
The Collection Rate Adjustment shall be determined by the weight factors allocated to the
two (2) Collection Rate comrponents (CPI and Fuel and Oil] as follows:
(A) CPI Collection Rate Component. 90% (Ninety percent) of the change (herein "CPI
Collection Rate Component') in the consumer price index for all urban consumers for the
South, all items, 1982-84 equals 100, as published by the U.S. Department of Labor,
Bureau of Labor Statistics ("CPI'). Should the CPI be discontinued or substantially
modified, then an alternate index shall be chosen by mutual agreement of the District and
the Franchisee. Effective October 1, 2009, and on each October 1 thereafter during the
term of this Agreement, the change in the CPI shall be calculated as the percentage
change from July of the immediately preceding year to July of the current year; and
(B) _Fuel and Oil Collection Rate Component. 10% (ten percent) of the percentage change
in the average price of diesel fuel for the Lower Atlantic No 2 Ultra Low Sulfur Diesel Retail
7
Sales by All Sellers (as reported by the Energy Information Association r'EIA'j) as
compared to the baseline cost of $4.69 per gallon will be used to adjust the fuel and oil
cost component. The fuel and oil component shall be adjusted effective October 1, 2009,
calculated based on the average of the EIA index over the 12 -month period beginning July
of the preceding year and ending June of the current year as compared to the baseline
$4.69 price. The first calculation period shall be July 2008 through and including June
2009. The percentage change will be used for the adjustment.
(C) All references in this Agreement to Collection Rate Adjustment shall mean the
aggregate of the two Collection Rate Components set forth herein, except as specifically
contemplated in Section 12.3 of this Agreement.
12.2. Notice of Adiustments to Collection Rates, The Franchisee shall notify the District
in writing of Collection Rate Adjustment increases, as provided in this Article 12, no later
than August 20 of each year during the term of this Agreement, commencing August 20,
2009.
12.3. Maximum and Minimum Collection Rates Adiustments. The maximum Collection
Rate Adjustment for any one year shall be 7%. However, should the total Collection Rate
Adjustment exceed 7%, the exceedance shall be carried over and applied to the next
adjustment. Should that adjustment together with the carryover then exceed 7%, the
exceedance is then carried over to the next adjustment and so on. Notwithstanding
anything contained herein, at a minimum, the Franchisee shall receive 90% of the change
in the CPI Collection Rate Component. However, should the total Collection Rate
Adjustment equal less than 90% of the change in the CPI Collection Rate Component, the
shortfall shall be carried over and applied to the next adjustment. Should that adjustment
with the carryover then equal less than 90% of the change in the CPI Collection Rate
Component, the shortfall is then carried over to the next adjustment and so on.
12.4. Examples of Collection Rate Adiustments. The percentage weight for each
Collection Rate Component is multiplied times the existing Collection Rate to calculate the
cost associated with each Collection Rate Component, t, as shown in the "Weight Applied
to Collection Rate" column in the table below. This computation will be performed only
once, in order to establish the baseline Collection Rate Component values. , The
percentage change in each index is multiplied times the Collection Rate Component to
calculate the Collection Rate Adjustme►it for each respective portion of the Collection Rate
Adjustment. The table below is intended for demonstration purposes only, and should not
be interpreted as actual Collection Rate Adiustments.
COST COMPONENT
INDEX
SOURCE
CPI
CPI (Unadjusted), AFI Urban
CPI detailed report,
Change
I
Consumers for the South, All
published by BLS.
I applied to
Items
I Chane
Fuel and oil
(Average), Lower Atlantic No. 2
EIA, published monthly.
Ultra Low Sulfur Diesel Retail
Sales by All Sellers
Collection Rate
Weight
Weight
Source
%
Adjusted
Change
I
Component
I
I applied to
I
I Chane
I Rate
Effective
New rate $14.88. The following example shows the adjustment if the Fuel component
would be significantly negative.
Collection Rate
Component
Actual
Rate
Collection
Rate
$14.32
Source
of Index
Adjusted
Rate
Change
effective
CPI
90%
$12.89
CPI -All Items
4.00%
$13.41
Oct.1
Fuel and Oil
10%
$1.43
(Average), Lower
3.00%
$ 1.47
Oct. 1
Atlantic No, 2 Ultra
Low Sulfur Diesel
Retail Sales by All
Sellers
New rate $14.88. The following example shows the adjustment if the Fuel component
would be significantly negative.
Collection Rate
Component
Actual
Rate
Source
% Change
of Index
Adjusted
Rate
Change
effective
CPI
$13.41
Same
4.0%
$13.95
Oct.1
Fuel and Oil
$1.47
Same
-8.0%
$1.35
Oct.1
New rate $15.30, however, the CPI Collection Rate Component guarantee set forth in
section 12.3 results in a new rate of $15.36.
12.5. Change of Law. The parties understand and agree that: (a) the Florida Legislature
from time to time has made comprehensive changes in Solid Waste management
legislation; and (b) changes in law in the future, whether federal, state or local, that
mandate certain actions or programs 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. To the
extent that any law effective after October 1, 2008 is in conflict with, or requires changes
in, the provision of services under this Agreement, the parties agree to enter into
good -faith negotiations to determine whether the Franchisee's rates should be adjusted as
a result of a change in law.
12.6. Limitation on Rate Changes. The Franchisee shall not be allowed a rate increase
for any reason other than those expressly specified in this Agreement. Notwithstanding
the foregoing, in the event that a federal, state or local entity imposes a fee, charge or tax
after October 1, 2008 the{ applies to Franchisee's operations per se, such fee, charge, c
tax shall be treated as a change in law and shall be passed through as a separate billed
item after notice to, and confirmation by, the District.
12.7. Requirement for Public Hearing for Rate Adiustment. Section 12.3 of the
Agreement contained a procedure for the Franchisee to seek an adjustment of any
charges established and approved by the Board, other than the CPI Changes in Rates set
forth in former section 12.0 of the Agreement. The procedure involved: (a) written notice
by Franchisee to the District, setting forth the schedule of rates and charges which it
proposes and a written justification for the request; (b) a request for a public hearing
submitted to the District with supporting data for review and presentation to the Board, (c)
.a public hearing held by the Board on the request, and (d) a determination by the Board
whether the adjustment in charges was necessary and justified under the circumstances
E
set forth in Franchisee's justification for rate adjustment. The Franchisee and the Board
acknowledge and agree that: (i) this Third Amendment shall be approved following a duly -
noticed public hearing, as required by the former section 12.3 of the Agreement; (ii) the
public hearing was required by the adjustment in calculation of the CPI and Fuel charge;
and (iii) due to the changes made to the Agreement by this Third Amendment, no public
hearing is required for any future Collection Rate Adjustments as contemplated in this
Third Amendment.
20. From and after the effective date of this Third Amendment, the existing
Sections 13.17.2 and 13.18 of the Agreement deleted in their entirety and replaced with
the following:
13.17.2. Rapid Recovery from Disaster. 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.
The Franchisee acknowledges that the County has entered into one or more stand-by
contracts for debris removal in the event of a natural disaster or Uncontrollable Force.
Therefore, there is no guarantee that Franchisee will be authorized to provide such clean-up
services. The Franchisee shall not receive any extra compensation (ie., above the normal
compensation provided in this Agreement) to recover the costs of rental equipment,
additional personnel, overtime hours, or other expenses unless the Franrhisee has received
written authorization and approval from the County Administrator acting as the Indian River
County Emergency Services District Director, or designee, prior to such work being
performed, and promptly thereafter entered into a written Emergency Contract Memorandum
Of Understanding Supplemental to Franchise Agreement signed by the Indian River County
Administrator, acting as the Indian River County Emergency Services District Director and the
Franchisee. Any and all such costs shall be audited by the County or the District prior to
payment.
13.18. Disaster Response Plan. The Franchisee shall develop and provide to the County
a written disaster preparedness and response plan by March 31 of each year ("Disaster
Plan'). This Disaster Plan shall include provisions for additional personnel and equipment,
and shall establish a reasonable, verifiable basis for any charges associated therewith.
The District shall coordinate with Franchisee if a disaster should require, temporary closure,
or modification to the hours of operation of the District Landfill. In the event that excess
work resulting from a natural disaster ("Disaster Work') is compensable by the Federal
Emergency Management Agency ("FEMA'), any such compensation to the Franchisee
shall be subject to FEMA's prior approval pursuant to FEMA requirements. In the event
that excess work resulting from a natural disaster ("Disaster Work') is compensable by
any other local, state, or federal agency, any such compensation to the Franchisee shall
be subject to such agency's prior approval, as set forth in section 13.17.2. The Franchisee
shall be familiar with FEMA documentation requirements, including, without limiting the
generality of the foregoing, rules, regulations, and guidelines applicable to FEMA's Public
Assistance Program for Debris Removal, as such requirements change from time to time.
Franchisee shall maintain complete and accurate records of any and all such Disaster
Work and provide all required and necessary documentation for submission of cost
reimbursement requests. The Franchisee shall be required to submit its FEMA
documentation of costs to the District as a condition of payment for additional personnel
and equipment pursuant to this section.
ILI
21. Notices. Pursuant to section 16.11
the Franchisee that the new address of the
Street, Vero Beach, FL 32960,
of the Agreement, the District hereby notifies
County Administration building is: 1801 27th
22. All terms and conditions of the Agreement not amended herein remain in full
force and effect. All terms used herein and not otherwise defined shall have the meanings
ascribed thereto in the Agreement.
23. The Background recitals are true and correct and form a material part of this
Amendment.
IN WITNESS WHEREOF, the parties hereto have executed this Third Amendment
effective as of October 1, 2008,
Attest: J. K. Barton Clerk
=Deputy C-
Attest:
By:
Name: 3eorf
INDIAN RIVER COUNTY SOLID-,
WASTE POSAL DISTRICT
Wesley S. Davis, Vice-'ebbirman
Date of SWDD Public hearing: Sept: 23; 2008
Appr a as to form and legal sufficiency:
By
Ma an E. Fell, Senior sistant County Attorney
FRANCHISEE:
WASTE MANAGEMENT INC. OF FLORIDA
Title: Qi C �e �rc aZ �>°%;:7
Title:
(AFFIX CORPORATE SEAL)
11