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19-2155 Granting a Non-Exclusive Franchise to JJ's Waste & Recycling, LLCORDINANCE NO. 19-2155 AN ORDINANCE OF THE CITY OF LONGWOOD, FLORIDA, PROVIDING FOR THE GRANTING OF A NON-EXCLUSIVE FRANCHISE TO JJ'S WASTE & RECYCLING, LLC. FOR THE COLLECTION AND DISPOSAL OF COMMERCIAL SOLID WASTE AND/OR RECOVERED MATERIALS WITHIN THE CITY OF LONGWOOD; OUTLINING FRANCHISE DUTIES; IMPOSING REQUIREMENTS UNDER WHICH FRANCHISE SHALL OPERATE; PROVIDING FOR CONFLICTS, SEVERABILITY, AND AN EFFECTIVE DATE. WHEREAS, there is an immediate and continuing need for the collection and disposal of garbage, industrial waste, refuse, rubbish, trash and other solid waste materials from organizations, firms or entities within the City of Longwood; and WHEREAS, JJ's Waste & Recycling, LLC. has the necessary equipment, personnel and experience to properly perform the services outlined herein; and WHEREAS, it appears to be in the best interests of the City of Longwood and its inhabitants, property owners and merchants that As Waste & Recycling, LLC. be awarded a non-exclusive right and franchise to provide solid waste collection services within the City limits of the City of Longwood upon the terms and conditions recited below. NOW, THEREFORE, BE IT ENACTED BY THE CITY OF LONGWOOD, FLORIDA AS FOLLOWS: SECTION ONE: Franchise. 1. Grant of Franchise. There is hereby granted to A's Waste & Recycling, LLC. (herein called the "Franchisee"), its successors and assigns, a non-exclusive right, privilege or franchise to collect solid waste materials and recyclables from commercial establishments within the City of Longwood, Seminole County, Florida, during the term and subject to the following limitations and conditions as hereinafter set forth. 2. Definitions. a. "City" shall mean the City of Longwood, Florida, a municipal corporation. b. "Franchisee" shall mean the individual, partnership or corporation who/which agrees, as hereinafter provided to perform the work or service, orto furnish materials or equipment, or both as set forth in this franchise. ORDINANCE NO. 19-2155 Page 2 of 13 C. "Recovered materials" means metal, paper, glass, plastic, textile, or rubber materials that have known recycling potential, can be feasibly recycled, and have been diverted and source separated or have been removed from the solid waste stream for sale, use, or reuse as raw materials, whether or not the materials require subsequent processing or separation from each other, but does not include materials destined for any use that constitutes disposal. Recovered materials as described above are not solid waste. d. "Solid waste management" shall mean the process by which solid waste is collected, transported, stored, separated, processed, or disposed of in any other way, according to an orderly, purposeful, and planned program which includes closure and long-term maintenance. e. "Solid waste management facility" shall mean a solid waste disposal area, volume reduction plant, transfer station, materials recovery facility, or other facility, designated by the City, the purpose of which is resource recovery or the disposal, recycling, processing, or storage of solid waste. The term does not include recovered materials processing facilities which meet the requirements of FS s. 403.7046(4) except the portion of facilities, if any, that is used for the management of [are managing sic.] solid waste. f. "Solid waste" shall mean sludge unregulated under the federal clean water act or clean air act, sludge from a waste treatment works, water supply treatment plant, or air pollution control facility, or includes garbage, rubbish, refuse, special waste, or other discarded material, including solid, liquid, semisolid, of contained gaseous material resulting from domestic, industrial, commercial, mining, agricultural, or governmental operations. Recovered materials as defined in FS s.403.703 (7) are not solid waste. g. "Commercial establishment" means a property or properties zoned or used for commercial or industrial uses, or used by an entity exempt from taxation under s. 501(c)(3) of the Internal Revenue Code, and excludes property or properties zoned or used for single-family residential or multifamily residential uses. h. "Construction and demolition debris" means materials generally considered to be not water soluble and non -hazardous in nature, including, but not limited to, steel glass, brick, concrete, asphalt roofing material, pipe, gypsum wallboard, and lumber, from the construction or destruction of a structure as part of a construction of demolition project, and including rocks, soils, tree remains, trees, and other vegetative matter which normally results from land clearing or land development operations for a construction project including such debris from construction of structures at a site remote from the construction or demolition project site. Mixing of construction and demolition debris with other types of solid waste, including material from a construction of demolition site which is not from the actual construction or destruction of a structure, will cause it to be classified as other than construction and demolition debris. i. "Container" shall mean any portable, nonabsorbent enclosed container with a close fitting cover, or doors, approved by the Health Department and the City, which is used to store large volumes of refuse. It must be capable of being ORDINANCE NO. 19-2155 Page 3 of 13 serviced by mechanical equipment. j. "Special Waste" means solid wastes that can require special handling and management, including, but not limited to, white goods, waste tires, used oil, lead -acid batteries, construction and demolition debris, ash residue, yard trash, and biological wastes. k. "Biomedical waste" means any solid waste or liquid waste which may present a threat of infection to humans. The term includes, but is not limited to, non -liquid human tissue and body parts; laboratory and veterinary waste which contain human -disease -causing agents; discarded disposable sharps; human blood, and human blood products and body fluids; and other materials which in the opinion of the department of Health and Rehabilitative Services represent a significant risk of infection to persons outside the generating facility. The term does not include human remains that are disposed of by persons licensed under chapter 470. I. "Biomedical waste generator" means a facility or person that produces or generates biomedical waste. The term includes, but is not limited to, hospitals, skilled. nursing or convalescent hospitals, intermediate care facilities, clinics, dialysis clinics, dental offices, health maintenance organizations, surgical clinics, medical buildings, physicians' offices, laboratories, veterinary clinics, and funeral homes. M. "Biological waste" means solid waste that causes or has the capability of causing disease or infection and includes, but is not limited to, biomedical waste, diseased or dead animals, and other wastes capable of transmitting pathogens to humans or animals. The term does not include human remains that are disposed of by persons licensed under Chapter 470. n. "Materials recovery facility" means a solid waste management facility that provides for the extraction from solid waste of recyclable materials, materials suitable for use as a fuel of soil amendment, or any combination of such materials. o. "Recovered materials processing facility" means a facility engaged solely in the storage, processing, resale, or reuse of recovered materials. Such a facility is not a solid waste management facility if it meets the conditions of FS s. 403.7045(1) (f). P. "Ash Residue" has the same meaning as the term is defined in the department rule on solid waste combustors which defines such term. q. "Pelletized paper waste" means pellets produced exclusively from discarded paper which is derived from a solid waste management facility or a recovered materials processing facility and which is shredded, extruded, or formulated into compact pellets of various sizes for the use as a supplemental fuel in permitted boilers other than waste -to -energy facilities. The use of such pellets as a supplemental fuel in permitted boilers other than waste -to -energy facilities may be used by local governments as credits toward the goals for reduction of solid waste pursuant to FS s. 403.706(4)(B). 3. Term. a. The term of this franchise shall terminate on September 30th, ORDINANCE NO. 19-2155 Page 4of13 following the effective date hereof provided; however, the City or Franchisee may terminate this Non -Exclusive Commercial Franchise, with or without cause, by a thirty (30) day written notice sent by Certified United States Mail. b. On October 1st, this Franchise will be extended for an additional twelve (12) months expiring the following September 30th, provided the Franchisee shall make application for said extension within sixty (60) days prior to its termination and the City Commission approves such extension. c. Without limiting the forgoing, the City does not waive the requirements of, or Franchisee's duty to obtain all applicable permits and to comply with the conditions thereof, unless precluded by the application of this ordinance; to comply with land use regulations laws; or to comply with codes, ordinances and regulations governing waste removal; or to pay fees associated with same. 4. Services Provided by Franchisee. a. Franchisee(s) shall provide Commercial Solid Waste Collection Services in the City of Longwood, which shall be a non-exclusive right to the Franchisee(s). The Contractor shall be responsible for billing and collection of Commercial Solid Waste Collection services and disposal costs. b. No other person or entity except the Franchisee(s) may offer or provide Commercial Solid Waste Collection Service in the City of Longwood. No commercial establishment within the City shall utilize the services of a collector not holding a franchise from the City. Violations of this section shall be enforced by the City by legal action seeking injunctive relief and damages. C. Minimum Service: The Franchisee shall make collections at all commercial establishments subject to the terms of this ordinance and at sufficient intervals necessary to perform adequate services and to protect the environment. 5. Hours. Collections shall be made between 7:00 a.m. and 7:00 p.m. unless different times are approved by the City. 6. Litter. The Franchisee shall not litter premises in the process of making collections and shall promptly pick up all papers, material or debris that may be scattered about the container. Franchisee shall collect all material that has been placed in or about the containers during the process. 7. Use and Location of Approved Containers. Containers used for collection of solid waste from commercial establishments shall be standard manufactured -type mechanically served containers, compatible with the private commercial collector's servicing equipment. Containers shall be placed at locations readily accessible to franchisee's personnel. Containers shall be located upon private property unless the use of public property is approved by the City. Violations of this section shall constitute a breach and default of this Non -Exclusive Commercial Franchise. The type of container used, or the location thereof, may vary from the provisions of this section if approved in writing by the City of Longwood. ORDINANCE NO. 19-2155 Page 5 of 13 8. Hazardous Materials. Collection of special and hazardous materials shall be in strict compliance with all federal, state, and local laws and regulations. Said materials shall be stored and placed in a manner approved by the appropriate regulatory agency, i.e., FDER, U.S. EPA, etc., and the City of Longwood. 9. Collection Equipment. a. The Franchisee shall provide an adequate number of vehicles for regular collection services. They shall be kept in good repair, appearance, and in a sanitary condition at all times. Each vehicle shall have clearly visible on each side the name and phone number of the Franchisee and vehicle number not less than twelve inches (12") in height on the rear and each side. b. Franchisee shall certify to the City upon the commencement of each franchise year the nature and quantity of vehicles and equipment on hand and available for regular collection services and backup in the event of the breakdown of any primary collection vehicle. 10. Office. The Franchisee shall establish and maintain a local office orsuch other facilities through which it can be contacted, where service may be applied for, and complaints can be made. It shall be equipped with sufficient telephones, shall have one (1) responsible person in charge during collection hours and shall be open during collection hours. 11. Hauling. All solid waste hauled by the Franchisee shall be so contained, or enclosed that leaking, spilling or blowing are prevented. In the event of any spillage, the Franchisee shall immediately clean up the waste upon observance or witness by Franchisee or its employees or public notification or in any such manner upon which notice of leakage, spilling or blowing is provided to Franchisee. 12. Disposal. All solid waste for disposal shall be hauled to FDER approved sites or facilities legally empowered to accept it for treatment or disposal. All recovered materials shall be hauled to a FDEP permitted recovery materials processing facility. 13. Charges and Rates. All charges and rates for the commercial collection of garbage shall be set by the Franchisee in negotiation with the commercial establishment requiring the service. Rates and charges shall not be set by the City. 14. Compensation and Payment. a. For the privilege of collecting solid waste from commercial establishments within the City, securing a franchise from the City and for the use of the City streets, the franchised collector shall pay to the City, a sum equal to twenty percent (20%) of the gross revenue from all sources related to the franchisee's operations in the City, including fees, charges, rental of equipment, and funds paid outside the City for hauling materials from the City. Payment to the City shall be made four (4) times per ORDINANCE NO.19-2155 Page 6 of 13 year, on March 15, June 15, September 15, and December 15, for three (3) full months immediately preceding payment, except the first payment if the first period is less than three months, in which case payment shall be prorated. Payment shall be directed to the City Finance Division. Such fees shall not include fees generated from the collection of recovered materials. b. - Franchisee, in further consideration of the franchise, shall make its financial records available to the City in accordance with procedures established from time to time by the City. The fees paid pursuant to this Section shall not be added as a separate item on the customer's collection bills, but rather.shall be considered as an operational expense. 15. Discontinued Service or Delinquent Accounts. a. The Franchisee may discontinue service as set forth in this section. Persons who have not remitted required payments within fifteen (15) days after the date of billing shall be notified. Said notification shall contain a statement that service may be discontinued fifteen (15) days from the date of notice if payment is not made before that time. In the event the Franchisee intends to discontinue a delinquent account, it shall so notify the City at least fifteen (15) days prior to the last day of collection. Upon payment of the delinquent fees, the Franchisee shall resume collection on the next regularly scheduled collection day. b. The City shall have the authority to direct the Franchisee to continue service, notwithstanding the fact that an account may be delinquent upon written assumption by the City of fees accruing by virtue of Franchisee's continued service. If the City elects to instruct the Franchisee to continue service, the City shall be entitled to reimbursement from the commercial establishment served, plus all costs of collection to include attorney's fees. 16. Reports. On the twenty fifth (25th) day of the month following the month of service hereunder the Franchisee shall provide the City with a report. Said report shall be in a form, either hard copy, computer disk (compatible with the City's computers) or otherwise satisfactory to the City. The report shall include such information as the City may reasonably require so as to ensure proper refuse service by all commercial establishments within the City and so as to ensure Franchisee's compliance with the terms and conditions of this report. Unless otherwise directed by the City's Director of Financial Services, each report shall contain as a minimum: (1) Customer's Business Name (2) Customer's Business Address (3) Customer's Telephone Number (4) Container(s) Number (s) (5) Container(s) Capacity (6) Compactor(s) (7) Pick-up Schedule for Containers and Compactors (8) Number of Pick-ups for all Containers and Compactors (9) Franchisee Fee ORDINANCE NO. 19-2155 Page 7 of 13 (10) Total tonnage of solid waste from all customers disposed at a Seminole County designated disposal facility. This report shall be submitted no later than the twenty fifth (25th) of the month following the month of service covering all activities during the month of service, to the Director of Financial Services. 17. Notification. The Franchisee shall notify all customers about complaint procedures, regulation, and days of collection. 18. Franchisee Personnel. a. The Franchisee shall assign a qualified person or persons to be in charge of his operations in the City and shall give the name or names to the City; information regarding experience shall also be furnished. b. Franchisee's collection employees shall wear a clean uniform bearing the company's name. c. Each employee shall, at all times, carry a valid operator's license for the type of vehicle they are driving. d. The City may request the dismissal or appropriate discipline of any employee of the Franchisee who violates any provision hereof or who is wanton, negligent, or discourteous in the performance of his duties. e. The Franchisee shall provide operating and safety training for all personnel and shall certify same to the City annually upon renewal of this Franchise. f. The Franchisee shall comply with the Equal Employment Opportunity Program, the Fair Labor Standards Act and all other applicable Federal and State Statutes pertaining to Fair Employment practices. 19. Franchise Equipment. a. All trucks or other vehicles operated by the Franchisee in the City shall be subject to, and shall immediately submit to spot, on the road inspections by the City or its agent and if found to be unsafe, said vehicle shall be immediately removed from service until it can be repaired and is successfully re -inspected. b. The use of vehicles failing to meet standards after inspections may be grounds for cancellation of the franchise by the City Commission, if found after notice to the Franchisee and an opportunity to be heard, to be flagrant or repeated in nature. 20. Compliance within Laws. The right is hereby reserved for the City to adopt, in addition to the provisions herein contained and existing applicable ordinances, such additional regulations as it shall find necessary in the exercise of the police power, provided that such regulations by ordinance or otherwise shall be reasonable and not in conflict with the intended purpose of this ordinance. This shall include requiring the Franchisee to dispose and deliver solid waste to a designated facility. The Franchisee shall conduct operations under this ordinance in compliance with all applicable laws and interlocal agreements between the City and Seminole County for solid waste ORDINANCE NO.19-2155 Page 8 of 13 management and its failure to comply shall constitute a default hereunder. This franchise shall not be construed to repeal or revise any existing ordinance and to the extent that any provision of this franchise is inconsistent with any existing ordinance, then such existing ordinance shall prevail and control. 21. Payment Bond. The Franchisee shall furnish to the City a Payment Bond executed by a surety licensed and authorized to do business in the State of Florida in the amount of $100,000.00 insuring the faithful payment and performance of the terms of this ordinance and executed by a surety company. Said Payment Bond is in an amount deemed by the City and the Franchisee to be reasonable and necessary to enable the City to ensure all franchise fees due and payable hereunder and paid as and when due. 22. Liability. The privileges herein granted are upon the express conditions that the Franchisee shall be liable for all damages or injury to persons or property caused by its neglect or mismanagement, or by the actions of any of its employees while engaged in the operations herein authorized, or for any actions or proceedings brought as a result of the award of this franchise to Franchisee, to specifically include but not be limited to Anti-trust actions or proceedings. The Franchisee shall be responsible and liable for any and all damages to personal or real property, whether owned by the City, private individuals or other business entities. Said damages shall include, but not be limited to damages to City rights -of -ways, curbing, signs, roadways and other property. Should the City of Longwood be sued therefore, the Franchisee shall be notified of such suit, and thereupon it shall be its duty to defend the suit or at the City's option to pay the legal fees of the City's attorney to defend the suit and should judgment go against the City in any such case, Franchisee shall forthwith pay the same. The Franchisee shall indemnify and save harmless the City, its agents, officers and employees from any judgments recovered by anyone for personal injury, death or property damage sustained by reason of any of the Franchisee's activities permitted by this franchise or for any actions or proceedings brought as a result of the award of this franchise to Franchisee, to specifically include but not limited to anti-trust actions or proceedings, and shall pay all expenses, including costs and attorney's fees, in defending against any such claim made against the City or any of the City's agents, officers or employees. Franchisee further agree to purchase comprehensive public liability and property damage insurance in the amount of $5,000,000 per accident, event or occurrence, naming the City as an additional insured to the extent of its rights against Franchisee arising by virtue of this section. The insurance policy will provide that the City shall be given thirty (30) days written notice prior to cancellation or modification. A copy of said policy of insurance shall be filed with the City Clerk on or before the effective date of this franchise. 23. Licenses. The Franchisee shall, at its sole expense, procure from all governmental authorities having jurisdiction over the operations of the Franchisee, including the City, all licenses, certificates, permits or other authorization which may be ORDINANCE NO.19-2155 Page 9 of 13 necessary for the conduct of its operations. The Franchisee shall pay all taxes, licenses, certification, permit and examination fees and excises which may be assessed, levied, exacted or imposed on its property, on its operations, on its gross receipts, and upon this franchise and the rights and privileges granted herein, and shall make all applications, reports and returns required in connection therewith. 24. Worker's Compensation. The Franchise shall carry, with an insurance company authorized to transact business in the State of Florida, a policy that fulfills all the requirements of the Worker's Compensation Act of said State, including all legal requirements for occupational diseases. 25. Assignment. No assignment of franchise or any right occurring under this ordinance shall be made in whole or in part by the Franchisee without the express written consent of the City and the customer; in the event of any assignment, the assignee shall assume the liability of the Franchisee. 26. Books. Records and Audit. a. The Franchisee shall keep records of wastes collected and charges therefore, and the City shall have the right to review those records which in any way pertain to the payments due it as well as the billing of all customers by the Franchisee. If disposal facilities are operated by the City, records of incoming wastes shall be maintained by the City. The Franchisee will be responsible for the monthly billing of the customer. b. Franchisee shall furnish the City with an annual audit, due on November 15th of each calendar year, for the service year or portion thereof ending the previous September 30t". Said audit shall be prepared by an independent certified public accountant complete with auditor's opinion which opinion shall be acceptable to the City. The audit shall reflect the accuracy and completeness of the information provided the City by the Franchisee with special attention to the franchise fee. 27. Bankruptcy or Insolvency. If the Franchisee becomes insolvent and in any event if the Franchisee files a petition of voluntary or involuntary bankruptcy, then this franchise shall terminate in no event later than the date of filing of the bankruptcy petition. 28. Default. a. The failure on the part of the Franchisee to comply in any substantial respect with any of the provisions of this ordinance shall be grounds for a forfeiture of this franchise, but no such forfeiture shall take effect until the City has served upon the Franchisee written notice of default, which notice shall set forth the nature and extent thereof. If a default can be corrected, the Franchisee shall have thirty (30) days following the notice of default to correct the same. If the Franchisee protests the reasonableness or propriety of the City's declaration, said protest shall be served upon the City in writing within ten (10) days following receipt by the Franchisee of the ORDINANCE NO.19-2155 Page 10 of 13 City's notice. The protest shall be scheduled before the Longwood City Commission at the next available Commission meeting. b. If the City Commission, after hearing the protest upholds the reasonableness or propriety of the City's declaration of default, then the Franchisee, within thirty (30) days of said decision, may challenge the decision in the Circuit Court of the Eighteenth Judicial Circuit in and for Seminole County, Florida. 29. Right to Require Performance. The failure of the City at any time to require performance by the Franchisee of any provisions hereof shall in no way affect the right of the City thereafter to enforce same. Nor shall waiver by the City of any breach of any provisions hereof be taken or held to be a waiver of any succeeding breach of such provision or as a waiver of any provision itself. 30. Independent Contractor. It is hereby understood and agreed that the Franchisee is an independent contractor and not an agent of the City. 31. Modification. This franchise constitutes the entire agreement and understanding between the parties hereto, and it shall not be considered modified, altered, changed or amended in any respect unless in writing and signed by the parties hereto, and adopted as an amending franchise ordinance. 32. Notice. As required for any purpose in this franchise, notice shall be addressed and sent by certified United States mail to the City and the Franchisee as follows: CITY City Clerk City of Longwood 175 West Warren Avenue Longwood, Florida 32750 FRANCHISEE Darrell Corbett, Vice President JJ's Waste & Recycling, LLC 3905 El Rey Road Orlando, FL 32808 (407) 298-3032 33. Remedies, Attorney's Fees and Costs. All remedies provided in this franchise shall be deemed cumulative and additional and not in lieu of or exclusive of each other or of any other remedy available to the City at law or in equity. In the event the City shall prevail in any action arising hereunder, Franchisee shall pay to the City its costs, referable thereto, including attorney's fees. 34. Governing Law and Venue. This franchise agreement shall be governed by the laws of the State of Florida. Any and all legal action necessary to enforce the Agreement will be held in Seminole County and the Agreement will be interpreted ORDINANCE NO. 19-2155 Page 11 of 13 according to the laws of Florida. 35. Headings. The headings of the sections of this franchise are for purposes of convenience only and shall not be deemed to expand or limit the provisions contained in such sections. 36. Warranty of Franchisee. The Franchisee represents and warrants unto the City that no officer, employee, or agent of the City has any interest, either directly or indirectly, in the business of Franchisee to be conducted hereunder. 37. Compliance with Longwood Code of Ordinances. Franchisee agrees to comply with Chapter 70 of the Longwood Code of Ordinances, and all other City codes, ordinances, rules and regulations. By accepting the non-exclusive franchise granted by this Ordinance, franchisee agrees that the provisions of Section 403.70605(3), Florida Statutes do not apply, and that if such provisions are ever deemed to apply then to the fullest extent allowed by law franchisee hereby waives and releases the City of Longwood from the requirements of Section 403.70605(3), Florida Statutes, concerning this franchise or any extensions thereof. The franchisee shall be deemed to have accepted this franchise and the provisions of this Ordinance by operating within the City of Longwood during any portion of the term of the non-exclusive franchise granted herein or any extension thereof. 38. Amendment. The City reserves the right to amend this ordinance in any manner necessary for the health, safety or welfare of the public and the City reserves the right, in the public interest from time to time, to prescribe reasonable rules and regulations governing Franchisee's operations hereunder. SECTION TWO: Severability: The provisions of this ordinance are declared to be severable and if any section, sentence, clause or phrase of this ordinance shall for any reason be held to be invalid or unconstitutional, such decision shall not affect the validity of the remaining sections, sentences, clauses and phrases of this ordinance but they shall remain in effect, it being the legislative intent that this ordinance shall stand notwithstanding the invalidity of any part. SECTION THREE: Effective Date. This ordinance shall take effect immediately upon adoption and acceptance by the Franchisee. FIRST READING: March 18, 2019 SECOND READING: April 1, 2019 PASSED AND ADOPTED THIS 1st DAY OF April, 2019. ORDINANCE NO.19-2155 Page 12 of 13 Ben Paris, Mayor ATTEST: Miche71/Co4d/A4&,'FCMA, City Clerk Approved as to form and legality for use and reliance by the City of Longwood, Florida, only. el DaniLangley, t r y ORDINANCE NO.19-2166 Page 13 of 13 ACCEPTANCE BY FRANCHISEE The foregoing ordinance and the franchise provided for therein and all the terms and conditions thereof are hereby accepted, approved and agreed to this 'A" day of r i 2019. FRANCHISEE: JJ's Waste & Recycling, LLC. By: Darrell Corbett, Vice President