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O-628-MCITY OF CLERMONT ORDINANCE No. 628-M AN ORDINANCE UNDER THE CODE OF ORDINANCES OF THE CITY OF CLERMONT, LAKE COUNTY, FLORIDA, GRANTING A GARBAGE COLLECTION FRANCHISE TO TVM, Inc., PROVIDING FOR THE TERM OF THE FRANCHISE AND FOR OTHER PURPOSES CONNECTED WITH A FRANCHISE FOR THE COLLECTION OF GARBAGE WITHIN THE CITY OF CLERMONT. THE CITY COUNCIL OF THE CITY OF CLERMONT HEREBY ORDAINS THAT: SECTION 1. The City, acting by and through its City Council, hereby grants unto TVM, In., its successors and assigns, a non- exclusive right and privilege to operate a refuse collection system in, upon, over and across the present and future streets, alleys, bridges, easements and other public places of the City, for the purpose of collecting commercial refuse, subject to certain limitations hereinafter set forth. SECTION 2. The rights granted herein shall specifically not include: A. the collection and disposal all residential refuse; B. the collection and disposal of all commercial refuse generated by establishments which: (i) utilize 12 or less refuse cans per pick up each with a capacity not exceeding 30 gallons and/or (ii) require service two or less times per week. SECTION 3. The City hereby grants anon-exclusive franchise to TVM, Inc., and TVM, Inc., will agree to collect and dispose of commercial refuse other than that described in Section 2 of this ordinance under the conditions set forth in this ordinance and in the Franchise Agreement attached hereto and incorporated herein as Exhibit "A". SECTION 4. TVM, Inc. shall be an independent contractor and shall enter into a contract with City that provides, among other things, that TVM, Inc. shall covenant to hold harmless and indemnify the City for any and all damages, including attorney fees, arising out of directly or indirectly and/or by virtue of any claim, whether actual or threatened, of whatsoever nature resulting from the activities of TVM, Inc., its agents, servants or employees, within or without the city limits. TVM, Inc. will, within five (5) days from the adoption of this ordinance, cause to be written a policy of general liability insurance, insuring it and the City against all claims made by any person or persons for personal injuries or property damage incurred in connection with the performance by TVM, Inc, its servants, agents, and employees, of the services required under this ordinance and the franchise hereby granted, which said policy shall be written within limits of $1,000,000 per person and $3,000,000 per occurrence, and for not less than $100,000 for damages to property per occurrence. SECTION 5. TVM, Inc. shall post with the City a surety bond or letter of credit in the amount of $100,000 guaranteeing the faithful performance by it of all of its obligations and covenants under said contract. 1 CITY OF CLERMONT ORDINANCE No. 628-M SECTION 6. This franchise and the contract between the City and TVM, Inc. shall be in full force and effect until November 10, 2010 commencing immediately; and this franchise and contract shall thereafter be automatically renewed from year to year unless terminated by either party upon not less than sixty (60) days written notice. SECTION 7. TVM, Inc. shall pay monthly to the City a franchise fee established by separate resolution of the City of Clermont. SECTION 8. This ordinance and the franchise granted thereby are applicable to all lands lying within the corporate limits of the City and shall be applicable with equal force to any additional lands hereinafter included within the corporate limits of the City, and no such addition of lands or to be excluded from the corporate limits as the same presently exist, shall invalidate this ordinance or the franchise granted hereunder, or constitute a basis for any adjustment to or claim under any contract which maybe executed under the authority of this ordinance. SECTION 9. All ordinances and/or parts of ordinances which are in conflict with this ordinance are hereby repealed and same shall be of no further force and effect. SECTION 10. This ordinance shall be published as provided by law, and it shall become law and take effect upon its second reading and Final passage. PASSED AND ORDAINED BY THE CITY COUNCIL OF THE CITY OF CLERMONT, LAKE COUNTY, FLORIDA, ON THIS 10`i' DAY OF NOVEMBER, 2009. arold S. Turville, Jr., Mayor CITY OF CLERMONT NON-EXCLUSIVE COMMERCIAL ROLL-OFF SOLID WASTE CONTAINER COLLECTION AND DISPOSAL AGREEMENT THIS AGREEMENT is made and entered into this 10`" day of November, 2009 by and between the CITY OF CLERMONT, FLORIDA ("City"), and TVM, Inc., whose address is 7222 Redwing Road, Groveland, Florida 34736 ("Grantee"). RECITALS: WHEREAS, City as a municipal corporation of the State of Florida has the authority and right to regulate the use of public right-of--way and related facilities in conjunction with the commercial activity of the collection and disposal of commercial waste; and WHEREAS, Grantee has requested the City grant to it anon-exclusive franchise right to operate within the incorporated municipal limits of the City of Clermont; and NOW THEREFORE THE PARTIES DO HEREBY AGREE AS FOLLOWS: SECTION 1 DEFINITION. Definitions of terms used in this Ordinance: (a) "Refuse" includes all garbage and other trash generated by citizens of the City and businesses within the City. (b) "Residential Refuse" is that refuse generated by residents of the City. (c) "Commercial Refuse" is that refuse generated by commercial and industrial establishments presently operating in the City and any such establishment which may begin operative during the term of the contract contemplated herein. Multi- family residential maybe considered commercial use. SECTION 2 GRANT OF FRANCHISE. Pursuant to City of Clermont Ordinance No. 628-M the City hereby grants to Grantee, and the Grantee hereby accepts, anon-exclusive right and privilege to operate a refuse collection system in, upon, over and across the present and future streets, alleys, bridges, easements and other public places of the City, for the purpose of collecting commercial refuse, subject to certain limitations hereinafter set forth. SECTION 3 INCORPORATION OF THE ORDINANCE. The Franchise granted hereunder is issued pursuant to and subject to the provisions of the Ordinance No. 628-M as passed on November 10, 2009, hereinafter "the Ordinance". Grantee agrees to comply with all provisions of the Ordinance, as amended from time to time by the City in the lawful exercise of its Police Powers. SECTION 4 COMPLIANCE WITH OTHER FEDERAL, STATE, AND LOCAL REQUIREMENTS. The Grantee agrees to comply with all applicable federal and state laws, rules and regulations. Failure on the part of the Grantee to comply with material requirements of this Agreement, the Ordinance or/and any other local, state or federal law, ordinance, or rule or regulation relating to the collection and disposal of solid waste will result in the cancellation of this Franchise. SECTION 5 INSURANCE, INDEMNIFICATION, HOLD HARMLESS AND DUTY TO DEFEND. (a) Grantee shall, within five (5) days from the adoption of this ordinance, cause to be written a policy of general liability insurance, insuring it and the City against all claims made by any person or persons for personal injuries or property damage incurred in connection with the performance by Grantee, its servants, agents, and employees, of the services required under this ordinance and the franchise hereby granted, which said policy shall be written within limits of $1,000,000 per person and $3,000,000 per occurrence, and for not less than $100,000 for damages to property per occurrence. In the event that said policy is ever canceled or terminated, Grantee shall notify City immediately with the name and proof of the replacement insurance carrier and policy. (b) Grantee does hereby agree to indemnify, hold harmless and defend City from any and all causes of actions or claims of any kind for damages of any kind, including attorney fees, whether actual or threatened, and related in any matter, directly or indirectly to the Grantee's exercise of any rights granted hereunder, either within or without the City limits. (c) Nothing herein shall be construed or act as a waiver of any sovereign immunity the City may enjoy in accordance with applicable law, the protection of which the City expressly reserves. SECTION 6 LIMITATION OF GRANT OF FRANCHISE. The non-exclusive franchise right granted herein is limited by the Ordinance and shall specifically not include the following to the following: (a) the collection and disposal of all residential refuse; (b) the collection and disposal of all commercial refuse generated by establishments which: (i) utilize twelve (12) or less refuse cans per pick up each, with a capacity not exceeding thirty (30) gallons and/or (ii) require service two or less times per week 2 SECTION 7 SERVICE REQUIREMENTS. Any and all services to be provided hereunder by Grantee shall be performed in accordance with applicable professional standards, this Agreement, the Ordinance, and all Local, State and Federal Laws. In addition thereto, Grantee shall act as follows: (a) All commercial waste to be picked up by Grantee will be stored in standard manufactured, mechanically serviced containers approved by the City. Grantee will supply such containers as needed by customers. Location of containers is subject to City approval. (b) Size of containers and frequency of service will be agreed upon by Grantee and each customer. Minimum container size shall be two cubic feet. Containers will be disinfected a minimum of once per week to remove all noxious and/or obnoxious odors. (c) The rates for each individual customer are to be negotiated between Grantee and each customer it serves. The City and each customer shall be notified of any proposed rate change at least sixty (60) days prior to the effective date of the rate change. (d) Grantee, its agents, servants or employees shall collect refuse collected hereunder in enclosed, standard, packer-type vehicles approved by the City, and shall perform their obligations hereunder in a courteous, workmanlike manner so as not to create a nuisance for any of the residents of the City. All such commercial refuse collected hereunder shall be disposed in a lawful manner. (e) Grantee shall have the sole responsibility for the billing and collection of charges provided hereunder. Billings shall be monthly and payable on or before the 15th day of the succeeding month. In the event bills are not paid within this time, Grantee shall have the right to discontinue service for non-payment. Nothing herein shall be construed or act as an acknowledgement or guarantee by City of any fees or billings owed to Grantee. (f) Collection shall be made during hours as set forth in a schedule approved by the City. All collection will be made as quietly as possible. SECTION 9 PAYMENT OF FRANCHISE FEE. Grantee shall pay monthly to the City a franchise fee established by separate resolution of the City of Clermont. Grantee shall provide an annual audit report to the City showing gross annual billings and receipts, if requested by the City. Fees to be assessed commencing with the first billing of any customer. In the event services have been provided prior to this agreement, all past due fees calculated from the first billing shall be paid within thirty (30) days of this Agreement. 3 SECTION 10 POSTING OF PERFORMANCE BOND. Within thirty (30) days of the execution of this Agreement, Grantee shall provide to the City, and at all times thereafter shall maintain in full force and effect for the term of this Franchise or any renewal thereof, at Grantee's sole expense, a performance bond or letter of credit with a company or financial institution and in a form approved by the City in its sole discretion, in the amount of one hundred thousand dollars ($100,000), consistent with the requirements of the Ordinance and this Agreement. SECTION 11 TERM, TERMINATION AND ASSIGNMENT. This franchise and this Agreement shall be in full force and effect until November 10, 2010, commencing immediately; and this franchise and contract shall thereafter by automatically renewed from year to year unless terminated by either party upon not less than sixty (60) days written notice sent via U.S. registered or certified mail, return receipt requested, to the other party. This franchise and the contract between the City and Grantee may be assignable to an affiliated company by Grantee after it has first obtained the consent of the City for such assignment. In the event of default of any of the terms of the Ordinance of this Agreement, City may terminate this agreement after providing to Grantee thirty (30) days written notice and an opportunity to cure. SECTION 12 NOTICE, PROPER FORM. Any notices required or allowed to be delivered hereunder or under the Ordinance shall be in writing and be deemed to be delivered when (1) hand delivered to the official hereinafter designated or (2) upon mailing of such notice when deposited in United States Mail, postage prepaid, certified mail, return receipt requested, Federal Express or courier, addressed to a party at the address set forth opposite of the party's name below, or such other address as the party shall specify by written notice to the other party delivered in accordance herewith: City: City of Clermont Attention: City Clerk 685 W. Montrose Street Clermont, FL 34711 Grantee: TVM, Inc Attention: Tim Vander Meer 7222 Redwing Road Groveland, FL 34736 SECTION 13 DISCLAIMER OF THIRD PARTY BENEFICIARIES. This agreement is solely for the benefit of and shall be binding upon the parties hereto and their respective successors in interest. No right or cause of action shall accrue upon, or by reason hereof, to or for the benefit of any person not a party to this Agreement or a successor in interest. 4 SECTION 14 SEVERABILITY. This Agreement is declared by the parties to be severable. SECTION 15 APPLICABLE LAW AND VENUE. This Agreement shall be construed, controlled, and interpreted according to the laws of the State of Florida. Venue for any cause of action hereunder shall be exclusively in Lake County, Florida. SECTION 16 ENTIRE AGREEMENT; MODIFICATION. This Agreement constitutes the entire agreement between the parties and supersedes all previous discussions, understandings and agreements. Modifications to and waivers of the provisions herein maybe only by the parties hereto and only in writing. IN WITNESS WHEREOF, the parties hereto have hereunder executed this Agreement on the date and year first above written. ATTE T: Tracy Ac oyd, City erk AT Tit CITY OF CLERMONT, FLORIDA B. ayor Harold S. Turville, Jr. GRANT / By: , Tim Vander Meer Title: President ~~~ CenterState ~ ~ Bank,x.n. November 05, 2009 City of Clermont Office of the City Clerk 685 West Montrose St. Clermont, FI. 34711 Re: TVM, Inc. To Whom It May Concern, TVM, Inc. is a client in good standing with Center State Bank, N.A. and has the ability to borrow $100,000.00 if the need should arise. Sincerely, ,r ~~' .~__ oe Reyes Groveland Br. Mgr, V.P. 1 105 WEST BROAD STREET • GROVELAND, FLORIDA 34736 352-429-2480 • FAX 352-429-2484 • www.centerstatena.com