WM 03 2nd AmendmentSECOND AMENDMENT TO FRANCHISE AGREEMENT
THIS SECOND AMENDMENT TO FRANCHISE AGREEMENT is made this 7V-
day of 1i,ytu.en_ 2006 by and between the CITY OF OKEECHOBEE, FLORIDA, a
municipal corporation "City and WASTE MANAGEMENT INC. OF FLORIDA,
successor by merger to L.P. Sanitation, Inc., "Contractor
WITNESSETH
WHEREAS, the City and Contractor are parties to that certain Franchise Agreement
dated July 7, 1987, which provides for solid waste collection services with the City
boundaries (the "Franchise Agreement and
WHEREAS, the Franchise Agreement has been previously extended and modified; and
WHEREAS, the parties desire to extend the term and make additional modifications to
the Franchise Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Term of Franchise. Section 2 of the Franchise Agreement is deleted and
replaced with the following:
"Subject to the termination rights of the City, this franchise shall remain in full
force and effect until September 30, 2009; provided furthermore, this franchise may
thereafter be renewed for consecutive four (4) year periods upon the same terms,
conditions and limitations imposed hereby, Contractor shall give notice to the City of an
intent to extend this Franchise Agreement at the end of the term, which notice shall be
delivered to the City by Certified Mail, Return Receipt Requested, not later than one
hundred and eighty (180) days prior to termination. For purposes of such notification,
the City's address shall be: City Clerk, City of Okeechobee, 55 Southeast 3rd Avenue,
Okeechobee, Florida 34974."
2. Residential Bulk Pickup. Section 3(a) is amended by deleting the last two
sentences of the paragraph and replacing same with the following:
"Contractor shall collect up to 15 cubic yards of bulk items once per week on a
day scheduled by Contractor. All bulk items may include white goods, yard waste, tree
trimmings, household items and the like, and shall be of a size and weight so as to be
handled by Contractor's "clam truck but shall not include whole trees, or refuse left as
the result of commercial development or land clearing operations. Bulk materials in
excess of 15 cubic yards shall be collected by the Contractor provided that the resident
pays Contractor for collection of the excess at $11.00 per cubic yard; such payment shall
be made at the time the Contractor provides the service. The Contractor 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 City enters into a written agreement with Contractor specifying the teens and
compensation for such services.
3. Cart Program. Section 3(b) is amended by adding the following to the end
of the paragraph:
"Residents shall place all solid waste in the 96 gallon cart. Contractor will pick
up overage left next to the cart in a reasonable amount, but reserves the discretion to
require additional carts if it believes a customer is regularly abusing this policy by
leaving large amounts of items out of the cart. Residents who desire an additional cart
may obtain same at a cost of $10 per month paid one year in advance. Residents are
limited to one additional cart. Recipients of additional carts may discontinue the use of
the cart, but shall forfeit and waive any unused advanced payment. Should a recipient of
an additional cart who discontinues such service subsequently request resumption,
within a twelve (12) month period of the additional cart, in addition to the one year's
prepayment, such resident shall pay a delivery charge of $50.00."
4. Annual Review. Section 29 is deleted and replaced with the following:
"Commencing on the anniversary date of this Agreement, and each year
thereafter, the rates shall be adjusted utilizing the indexing procedures provided for
herein. This adjustment shall apply to all services, including residential,
commercial /industrial and roll -off accounts, excluding disposal fees. The rates shall be
adjusted on the basis of one hundred (100 percent of any increase or decrease in the
cost of living as reported in the Consumer Price Index for all urban consumers (U. S.
City average- 1967 100, all items, Bureau of Labor Statistics of the United States
Department of Labor), (the "Index"). The new rates shall not exceed a cap of 7.5% in
any year and shall be calculated multiplying the existing rates by a fraction, the
numerator of which shall be the index for the month of May prior to the respective
anniversary date and the denominator of which shall be the index for the month of May,
in the previous year. If the Index becomes unavailable, a reasonable substitute, as
prepared by the United States Department of Labor or comparable federal agency shall
be used. Contractor shall provide the City with prior written notice of any rate
adjustment due to the change in the Index with a detailed calculation of how the new
rates were determined together with documentation evidencing the adjustment. The
Contractor shall also identify the amount and the reason for the rate adjustment on the
next invoice sent to the customers after the rate adjustment.
Further, WMIF shall, on a quarterly basis, adjust the applicable rate charged to
reflect any change in the cost of diesel fuel as determined by reference to the Energy
Information Administration of the US Department of Energy "EIA /DOE website that
reports average prices of diesel fuel for the "Lower Atlantic" United States. This
adjustment to diesel costs shall apply only to commercial /industrial and roll -off
accounts, excluding disposal fees. The link is as follows
http: /tonto.eia.doe.gov /oog /info /wohdp /diesel.asp After determining the average
DOE
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DOE
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price of diesel fuel from the aforesaid website ("EIA/DOE f cost"), the corresponding
fuel cost modifier will be calculated pursuant to the following table:
1.41
2.30
1.93
4.90
(Ni et et et et et 111
N N N N N
7.50
2.97
10.10
1.42
2.35
1.94
4.95
7.55
2.98
10.15
1.43
2.40
1.95
5.00
7.60
2.99
10.20
1.44
2.45
1.96
5.05
7.65
3.00
10.25
1.45
2.50
1.97
5.10
7.70
1.46
2.55
1.98
5.15
7.75
In addition, the Contractor may petition the City to increase its fees based upon
unusual increases in the cost of doing business or a change in law or regulation
"Change in Law The adjustments provided for in this paragraph shall only apply to
such residential or commercial rates to the extent the increase of cost in doing business
or change in law specifically applies to such service(s). A request for increase for Change
in Law may be made at any time such change occurs. A request for change in cost of
doing business may be made not more than once each year. Any such request shall be
supported by full documentation establishing the increase in operating costs and the
reasons therefore. The City shall be entitled to audit the Contractor's financial and
operational records directly related to the Operator's request in order to verify the
increase in costs and the reasons therefore.
"Change in Law" means (I) the adoption, promulgation, or modification after the
date of this Agreement of any law, regulation, order, statute, ordinance, or rule that was
not adopted, promulgated, or modified on or before the date of this Agreement, or (ii)
the imposition of any material conditions in connection with the issuance, renewal, or
modification of any permit, license, or approval after the date of this Agreement, which
in the case of either (I) or (II) establishes requirements affecting the Contractor's
operation under this Agreement more burdensome than the requirements that are
applicable to Contractor and in effect as of the date of this Agreement. A change in any
federal, State, county, or other tax law or workers compensation law shall not be a
Change of Law. However, in the event that a federal, state or local entity imposes a fee,
charge or tax after the date of this Agreement that applies to Contractor's operations per
se, such fee, charge or tax shall be treated as a Change in Law.
The Contractor's request must be made within one hundred twenty (120) days of
the occurrence of such change or cost, and shall contain reasonable proof and
justification to support the need for the rate adjustment. The City may request from the
Contractor, and the Contractor shall provide, such further information within its
possession as may be reasonably necessary in making its determination. The City shall
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 City. The City shall make a
reasonable determination based upon the documentation provided in reaching its
decision."
5. Force Majeure. New Section 31 is added:
The performance of this Agreement may be suspended and the obligations of
either party excused in the event of and during the period that such performance is
prevented or delayed by a force majeure occurrence. "Force Majeure" shall mean:
(a) An act of God, including hurricanes, tornadoes, landslides,
lightning, earthquakes, fire, flood, explosion, sabotage or similar occurrence, acts of a
public enemy, extortion, war, blockade or insurrection, riot, or civil disturbance;
(b) The order or judgment of any federal, State, or local court,
administrative agency or governmental body (excluding decisions of federal courts
interpreting federal tax laws, and decisions of State courts interpreting State tax laws) if
it is not also the result of the willful misconduct or negligent action or inaction of the
party relying thereon or of a third party for whom the party relying thereon is
responsible; provided that neither the contesting in good faith of any such order or
judgment nor the failure to so contest shall constitute or be construed as a measure of
willful misconduct or negligent action or inaction of such party;
(c) The failure to issue, suspension, termination, interruption, denial,
or failure of renewal of any permit or approval essential to the operation of the
Contractor;
(d) A Change in Law.
(e) The failure of any appropriate federal, State, County, or local
public agency or private utility or similar entity having operational jurisdiction in the
area in which the Landfill is located, to provide and maintain utilities, services, water
and sewer lines, transportation or similar function and power transmission lines which
are required for and essential to the operation of the Landfill;
(f) The condemnation, taking, seizure, involuntary conversion, or
requisition of title to or use of the designated facility or any material portion or part
thereof taken by the action of any federal, State or local governmental agency or
authorities.
As a condition precedent to the right to claim excuse of performance, the party
experiencing a Force Majeure event shall:
(a) Promptly notify the other party verbally; and
(b) As soon as practical, but in no event more than ten (10) days
thereafter, prepare and deliver to the other party a written notice with a written
description of (1) the commencement of the Force Majeure event, (2) its estimated
duration impact on the party's obligations, under this Agreement.
Whenever a Force Majeure event shall occur, the parties shall, as quickly as possible, to
the extent reasonable, eliminate the cause and resume performance under this
Agreement. Additionally, either party shall provide prompt Notice to the other of the
cessation of a Force Majeure event.
(c) Prior to any suspension of performance by Contractor under this
agreement, and upon receipt of the written notice, the parties shall meet to discuss and
resolve the proposed force majeure event, and if unable to do so, the City Okeechobee
reserves the absolute right, without recourse, to forthwith retain other service providers
in the interim period, without relieving or releasing Contractor of each and every
obligation arising under the franchise and amendments thereto.
6. Schedule A. Schedule A (Rates) is deleted and replaced with new Schedule A
annexed hereto.
7. All provisions of the Agreement not specifically modified herein shall remain in
full force and effect.
IN WITNESS WHEREOF, the undersigned set their hands and seals this hit
day of -.9 2006.
Attest: 0 a 00) Waste Manage ent Inc. of Florida
Attest: (7) t J f 1 a._
AP
City Clerk
FOR
City Attorney
L SUFFICIENCY:
Mayor