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11/09/1993 Agreement� S i x K BRANCH OFFICE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 289 -6027 Asunp 1. Rotbd CLERK OF THE CIRCUIT COURT MONROE COUNTY 500 WHITEHEAD STREET KEY WEST, FLORIDA 33010 TEL. (305) 292 -3550 M E K O R A N D Q M BRANCH OFFICE 88820 OVERSEAS HIGHWAY PLANTATION KEY, FLORIDA 33070 TEL. (305) 852 -7145 To: Barry Boldissar, Director Division of Environmental Management From: Isabel C. DeSantis, Deputy Clerk A Date: December 1, 1993 On November 9, 1993, the Board granted authorization to execute a Restated Agreement between Monroe County and Waste Management, Inc., for the processing, hauling and disposal of Mbnrew,county Solid Waste. Attached hereto for return to Waste Management is duplicate originals of the subject Agreement. cc: County Attorney County Administrator w/o document Finance Director File I RESTATED MONROE COUNTY TRANSFER STATIONS OPERATIONS AND MAINTENANCE AGREEMENT between MONROE COUNTY, FLORIDA and Z WASTE MANAGEMENT INC. OF FLORIDA Dated as of October 1, 1993 ? T� w =_ rT mi CONTENTS ARTICLE I Certain Definitions Definitions ARTICLE II Operation of Facility; Delivery and Processing of Acceptable Waste 2.01. Commitment to Receive and Process Acceptable Waste 2.02. Operation of Facility 2.03. Operation Coordinators 2.04. Facility Services, Maintenance, Etc. 2.05. County Visitation and Inspection of the Facility; Recordkeeping and Reporting; Testing 2.06. Acceptable Waste Services 2.07. Deliveries of Unacceptable, Biohazardous, Hazardous, and Atomic Waste 2.08. Receiving and Operating Hours 2.09. Weighing Facilities and Recordkeeping 2.10. Storage 2.11_ Special Waste Management 2.12. Equipment Parking ARTICLE III operation Fees; Performance Guarantees and Penalties 3.01_ Operations and nimpcsal Fee 3.02. Fixed Capital Cost Component Fee 3.03. Billing Statement 3.04. Annual Adjustments and Payments 3105. Performance Guarantees 3.06. County Non - Performance 3.07. No Liability for Uncontrollable ARTICLE IV Further Agreements 4.01. Licenses, Approvals and Permits 4.02. Insurance During Operations 4.03. Equal Employment opportunity 4.04. Change in Law 4.0s. Incinerator Ash Yearly Reconciliation C.:i renimsttanr_Qs i ARTICLE V Default and Termination 5.01. Remedies for Breach 5.02. Events of Default by Operator 5.03. Events of Default by the county 5.04. Termination of Agreement by the County 5.05. Termination of Agreement by the Operator 5.06. No Liability for Uncontrollable Circumstances 5.07. Manner of Termination Payment ii ARTICLE VI Miscellaneous 6.01. Term 6.02. Assignment 6.03. Dispute Resolution 6.04. Indemnities and Releases 6.05. Further Assurances 6.06. Warranties, Machinery, Equipment and Materials 6.07. Industrial Property Rights 6.08. Representations 6.09. Relationship of the Parties 6.10. Documents Pertaining to the Facility 6.11. Notices 6.12. Waiver 6.13. Modifications 6.14. Headings 6.15. Governing Law 6.16. Venue 6.17. Counterparts 6.18. Severability 6.19_ Unless Stated Otherwise 6.20. Performance Bond 6.;)l- Public Entity Crimes Form 6.22. Schedules ii OPERATIONS AND MAINTENANCE AGREEMENT CONTENTS ARTICLE I Certain Definitions Definitions ARTICLE II Operation of Facility; Delivery and Processing of Acceptable Waste 2.01. Commitment to Receive and Process Acceptable Waste 2.02. Operation of Facility 2.03. Operation Coordinators 2.04. Facility Services, Maintenance, Etc. 2.05. County Visitation and Inspection of the Facility; Recordkeeping and Reporting; Testing 2.06. Acceptable Waste Services 2.07. Deliveries of Unacceptable, Biohazardous, Hazardous, and Atomic Waste 2.08. Receiving and Operating Hours 2.09. Weighing Facilities and Recordkeeping 2.10. Storage 2.11. Special Waste Management ARTICLE III Operation Fees; Performance Guarantees and Penalties 3.01. Operations and Disposal Fee 3.02. Operating and Disposal Fee Statement 3.03. Annual Adjustments and Payments Yearly Reconciliation 3.04. Performance Guarantees 3.05. County Non - Performance 3.06. No Liability for Uncontrollable Circumstances ARTICLE IV Further Agreements 4.01. Licenses, Approvals and Permits 4.02. Insurance During Operations 4.03. Equal Employment Opportunity 4.04. Change in Law 4.05. Incinerator Ash i ARTICLE V Default and Termination 5.01. Remedies for Breach 5.02. Events of Default by Operator 5.03. Events of Default by the County 5.04. Termination of Agreement by the County 5.05. Termination of Agreement by the Operator 5.06. No Liability for Uncontrollable Circumstances 5.07. Manner of Termination Payment ARTICLE VI Miscellaneous 6.01. Term 6.02. Assignment 6.03. Dispute Resolution 6.04. Indemnities and Releases 6.05. Further Assurances 6.06. Warranties, Machinery, Equipment and Materials 6.07. Industrial Property Rights 6.08. Representations 6.09. Buy -out Option 6.10. Relationship of the Parties 6.11. Documents Pertaining to the Facility 6.12. Notices 6.13. Waiver 6.14. Modifications 6.15. Headings 6.16. Governing Law 6.17. Venue 6.18. Counterparts 6.19. Severability 6.20. Special Condition 6.21. Unless Stated Otherwise 6.22. Schedules 6.23. Performance Bond ii OPERATIONS AND MAINTENANCE AGREEMENT THIS AGREEMENT dated as of October 1, 1993 between Waste Management Inc. of Florida (the "Operator ") , a corporation organized and existing under the laws of the State of Florida with offices at 500 Cypress Creek Road West, Suite 300, Fort Lauderdale, Florida 33309, and Monroe County (the "County ") a political subdivision organized and existing under the laws of the State of Florida, with offices at 5100 College Road, Key West, Florida 33040. RECITALS WHEREAS, the County is empowered to provide for and assume full control and responsibility for the solid waste disposal system in Monroe County; and WHEREAS, the County issued a Request for Proposals, for the disposition, outside Monroe County, of solid waste generated within Monroe County; and WHEREAS, in response to such request, the Operator and county entered into a design and construction agreement for the design and construction of three (3) transfer stations (the "Facility "); and WHEREAS, The County and Operator also entered into an Operations and Maintenance Agreement , Standby Disposal Agreement and Lease Agreement for the operation, possession and maintenance of the Facility and proper disposal of acceptable waste delivered to the Facility; and WHEREAS, the County, in seeking a long -term solution to its solid waste disposal problem desires to terminate the Operations and Maintenance Agreement and enter into a restated Operations and Maintenance Agreement which will provide for new terms and conditions of service by Operator; and WHEREAS, Operator has agreed to enter into a new Operations and Maintenance Agreement on the terms described herein. NOW THEREFORE, in consideration of the premises and of the mutual obligations undertaken herein, the parties hereby agree as follows: iii ARTICLE I CERTAIN DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below: "Acceptable Waste" or "Waste" means that portion of Solid Waste generated in Monroe County that is neither Unacceptable Waste, Hazardous Waste nor Biohazardous Waste nor Atomic Waste as those terms are defined herein. "Acceptance" means that a Facility has satisfied the Full Acceptance Standard and if such standard cannot be met, that the Operator and the County have mutually agreed that the Facility is to be accepted in accordance with the terms and conditions mutually agreed upon. "Acceptance Standard" means that level of performance of a Facility which is established by the requirements specified in Schedule H of the Design and Construction Agreement. "Acceptance Test" has the meaning set forth in the Construction Contract. "Actual Acceptance Date" has the meaning set forth in the Construction Contract. "Agreement" means this Restated Operations and Maintenance Agreement between the Operator and the County, including the Schedules and any written amendments to either. "Annual Report" means the annual report relating to the inspection and recertification of the Facility, as set forth in Section 2 . 05 (c) . "Annual Throughput" means actual Tons of Acceptable Waste accepted at the Facilities in a Fiscal Year. "Atomic Waste" means special nuclear material, by- product materials or other material, the acquisition, handling, use, transportation or disposal of which is specifically regulated under Atomic Energy Act of 1954, as amended, 42 U.S.C. Section * *2011, et. sew "Billing Period" means each calendar month in each Fiscal Year, except that the first Billing Period shall begin on October 1, 1993. " Biohazardous Waste" means any solid waste or liquid waste defined as Biohazardous or infectious under Chapter 17 -712, Florida Administrative Code, 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 I -1 human - disease - causing agents; used 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 from time to time, the Florida Department Rehabilitative Services or the Florida Department of Environmental Protection define by rule or regulation as biohazardous or infectious. "Business Day" means each Monday, Tuesday, Wednesday, Thursday, Friday and Saturday which is not a legal Holiday. "Calendar Year" means the period of time beginning on January 1 and ending on December 31. "Capital Repairs" means any repairs to the equipment listed in Schedule C or new equipment purchased pursuant to this Agreement,the useful life or benefit of which exceeds one (1) year or exceeds $1000 individually. With respect to Capital Repairs to Tub Grinders, the repair must exceed $1,500 individually and shall not include repair or replacement of the hammers /knives and tips. "Change in Law" means (a) the enactment, adoption, promulgation, modification, or effectiveness of any federal, state, county, or local law, ordinance, code, or regulation within or following the ten (10) day period preceding the contract date which materially affects the performance of the Contract. Change in Law also means (b) the imposition of any new material condition on the issuance or renewal of any official permit or license. To qualify as a Change in Law, the law, ordinance, code, rule, or regulation under (a) above, or the permit or license condition under (b) above, must materially affect the cost of construction, start -up, testing, or operating of a Facility or the Disposal Site and be more burdensome than the most stringent requirements (1) in effect on the Contract date, with respect to a Facility the Disposal Site and associated operations, (2) agreed to in any applications for official permits, licenses or approvals pending as of the Contract date, or (3) contained in any official permits, licenses, or approvals with respect to a Facility or the Disposal Site obtained as of the Contract date. Provided, however, compliance with a permit or license obtained or applied for as of the Contract date which requires compliance with future laws, ordinances, codes, rules, or regulations shall not be deemed a Change in Law. Change in Law also means (c) a change in any fee or tax, other than taxes levied on wages, salaries, or the Operator's income, imposed by a governmental taxing authority, which has material adverse financial effect on the design, construction, start -up, performance testing, or operation of the Facility or the Disposal Site. I -2 "Consulting Engineer" means the consulting engineer(s) engaged from time to time by Monroe County for the purpose of assisting Monroe County in solid waste matters. "Contract Date" means the date of this Agreement. "Construction Contract" means the Design and Construction Agreement entered into between Waste Management, Inc. of Florida and the County as of August 1, 1990. "County" means Monroe County, Florida. "County Board" means the governing Board of the County. "Daily Weight Records" means those records which are maintained on a daily basis relating to the County scales located at the entrance to the Facility Site. "Disposal Site" means a permitted disposal facility, which is not located in Monroe County, and which has been selected by the Operator for disposal of Solid Waste generated within Monroe County. "Facility" or "Facilities" means, but shall not be limited to, all building, equipment, installations and the like required for: Waste receiving, storage, handling and Processing and ancillary activities such as providing amenities for employees and visitors as set forth in Schedule A of the Construction Contract. "Facility Site" (Sites) means the real property located in Monroe County and described in Schedule D of the Construction Contract upon which the Facilities are to be constructed. "Fiscal Year" means the period of time beginning on October 1 and ending on September 30 of the subsequent year. "Hazardous Waste" means any solid waste defined under the Resource Conversation and Recovery Act, ("RCRAII) 42 U.S.C. Sec. 6901 et sea ., Chapter 403, Florida Statutes, or Chapter 27 of the Broward County Code of Regulations as hazardous waste. "Household Waste" and waste generated by "conditionally exempt small quantity generators" as those terms are defined under RCRA and Chapter 17 -730, Florida Administrative Code, shall not be considered Hazardous Waste for purposes of this Agreement for so long a such waste may lawfully be disposed of in a sanitary landfill. Changes in the federal, state or local definitions of hazardous waste shall be binding on the parties as of the effective date of such determination. "Initial Fiscal Year" means the period of time beginning on the Actual Acceptance Date and ending on the following September 30. I -3 "Legal Holidays" means holidays, observed by the County as changed from time to time. "Lease" means the agreement between the County and Operator pursuant to which the Operator occupies the Facility Sites. "Operating Plan" means an operating plan approved by the parties as provided for in Section 4.01(a) in the Design and Construction Contract, as amended from time to time. "Operation and Disposal Fee" means the fee set forth in Section 3.01. "Operation Coordinator" means those persons designated by the County and by the Operator as set forth in Section 2.03. "Operator" means Waste Management Inc. of Florida, a Florida Corporation. "Performance Guarantees" means the guarantees at which the Operator will be required to operate the Facility as set forth in Section 3.04. "Person" includes any individual, corporation, partnership, joint venture, association, joint -stock company, trust, unincorporated organization, or government or any agency or political subdivision thereof. "Index" means the Refuse Rate Index (RRI) as specified in Section 3.01 herein and in Schedule B. "Process", "Processed" or "Processing" means the unloading, compacting, loading and transporting and disposal of Acceptable Waste, excluding horticultural waste. Process of horticultural waste shall mean the unloading, chipping or other means utilized to convert horticultural waste into a mulch product, and the delivery of the mulch product to users within Monroe County. "Processed Waste" means Waste which has been Processed. "Receiving Time" means the period during which waste may be delivered to the Facility. "Recyclables" or "Recyclable Material" means those materials which are capable of being recycled and which would otherwise be processed or disposed of as solid waste. "Scales" means those weighing facilities maintained by the County located at the entrance to the Facility Site. I -4 "Solid Waste" means all materials or substances that, as of the Contract Date are generally discarded or rejected as being spent, useless or worthless to the owners at the time of such discard or rejection, including but not limited to garbage, yard trash, refuse, industrial and commercial waste, rubbish, ashes and incinerator residue which are acceptable for disposal in an ash monofill as permitted by Florida DEP regulations, and demolition and construction debris. Any testing of ash or incinerator residue for compliance with DEP regulations shall be at the expense of the Operator. "Special Waste" means those materials requiring special handling or which are prohibited from being disposed at the Disposal Site. Special waste shall be defined as these items listed in Schedule G in the Design and Construction Contract. "Ton" means 2,000 pounds avoir du pois. "Unacceptable Waste" means incinerator ash, except as provided herein at Section 4.05 sewage, sewage sludge, or its derivatives, and sludges, all of a semi -solid state which is equal to or less than 400 solids, human and animal carcasses, motor vehicles, trailers, marine vessels, white goods, tires or any other material which may present a substantial endangerment to health or to safety or having a reasonable possibility of adversely affecting the start -up, operation, or testing of the Facility or are prohibited by law, such other types of Solid Waste as listed on Schedule A, and wastes the parties mutually agree from time to time are unacceptable. "Uncontrollable Circumstance" means any act, event or condition that has had, or may reasonably be expected to have, a material adverse effect on the rights or the obligations of a party under this Agreement, or its subcontractors and suppliers or a material adverse effect on the Facility or the Disposal Site or the design, construction, start -up, testing or operation of the Facility or the Disposal Site, if such act, event or condition is beyond the reasonable control of the party relying thereon as justification for not performing an obligation or complying with any requirement of such party under this Agreement. Such acts, events or conditions shall include, but shall not be limited to, the following: (a) An act of God, landslide, lightening, earthquake, fire, explosion, flood, hurricanes, war, blockade, insurrection, riot or civil disturbance. (b) the order and /or judgment of any federal, state or local court, provided that such order or judgment shall not be the result of the willful or negligent action or inaction of the party relying thereon and 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 willful or negligent action or inaction of such party. I -5 (c) the suspension, termination, interruption, denial or failure of or delay in renewal or issuance of any permit, license, consent, authorization or approval essential to the design, construction, start -up, acceptance testing or operation or maintenance of the Facility or the Disposal Site except any permit, license, consent or authorization for the Operator's proprietary technology required for the Facility of the Disposal Site, provided that such act or event shall not be the result of the willful or negligent action or inaction of the party relying thereon and that neither the contesting in good faith of any such order nor the reasonable failure to so contest shall be construed as a willful or negligent action or inaction of such party; (d) the failure of any subcontractor or supplier to furnish labor, services, materials or equipment in accordance with its contractual obligations, provided such failure is itself due to an Uncontrollable Circumstance and the Operator cannot obtain substitute performance at an equivalent or lower price within an equivalent or shorter period of time; (e) a partial or entire delay or failure in the provision of necessary utilities or services to the Facility; (f) with respect to the Operator, any material failure of the County, its representatives or other parties retained by the County, including vendors and contractors of any tier (except the Operator), to provide information, services, or any of the other items to be furnished by the County, in a timely manner and as required by this Agreement, or material errors, omissions, changes or defects in such items. "Waste" means Acceptable Waste. I -6 ARTICLE II OPERATION OF FACILITY; DELIVERY AND PROCESSING OF ACCEPTABLE WASTE 2.01 Commitment to Receive and Process Acceptable Waste. (a) On October 1, 1993, the Operator shall commence operations under this Agreement. The Operator shall receive and process Acceptable Waste delivered to the Facility Site by or on behalf of the County. Horticultural waste shall be processed and delivered to mutually acceptable locations within Monroe County in accordance with mutually acceptable delivery procedures. Monroe County shall accept all processed horticultural waste. In the event Monroe County is unable to accept the horticultural waste and there is insufficient storage space at the Facility, Operator may transport the horticultural waste out of county on terms agreed to with the County. (b) The Operator shall receive Acceptable Waste delivered to the Facility during the Receiving Time and at such other times as may be established pursuant to Section 2.08 hereof. 2.02 Operation of Facility. The Operator shall operate and maintain the Facility consistent with the Operating Plan and with all applicable federal, state and local laws, regulations, ordinances and permits, rules, and proper operating practice and in such manner as to ensure that the Facilities are able to receive and Process Acceptable Waste in accordance with this Agreement. Operator shall have the right to occupy and possess the facility during the term of this Agreement. 2.03 Operation Coordinators. (a) The County shall designate an Operation Coordinator with respect to matters which may arise during the performance of this Agreement and such person shall have authority to transmit instructions, receive information, confer with the Operator's Operation Coordinator and make all day to day operational decisions as may be directed by the Board of County Commissioners. With respect to purchasing new equipment, the Operation Coordinator shall act in accordance with Monroe County Purchasing Policies and Procedures. (b) The Operator shall designate in writing a person to act as the Operator's Operation Coordinator with respect to matters which may arise during the performance of this Agreement, and such person shall have authority pursuant to such written designation to transmit instructions, receive information, confer with the County's Operation Coordinator and make all day to day operational decisions. The Operator's operation coordinator shall be qualified and possess any applicable certification or licenses required under Florida Law, to operate the Facility. II -1 2.04 Facility Services, Maintenance, Etc. (a) Safety of Persons and Property. At all times the Operator in conjunction with the County shall establish and maintain safety procedures for the Facility in a manner consistent with applicable law and good safety practice. (b) Facility Repair and Maintenance. At all times the Operator shall: (i) keep the Facility in good repair and maintain an adequate reserve of any and all spare and replacement parts to assure that the Facility will be operated in accordance with this Agreement; (ii) notify the County promptly if the facility should be seriously damaged with repair or replacement estimates exceeding $1,000.00, irrespective of cause. and (iii) respond to the County's reasonable requests regarding special housekeeping efforts in and around the Facilities and Facility Sites. At all times the Operator shall: (i) operate the Facility in compliance with all applicable federal, state and local laws, rules and regulations and permits; (ii) notify the County promptly if the Facility should be seriously damaged, irrespective of cause. (c) Equipment, Purchase, Repair and Maintenance. The County and Operator acknowledge and agree that at the Commencement of this Agreement, Operator has the Equipment listed on Schedule C ("Equipment") dedicated to the performance of services described in this Agreement. Operator shall perform preventative maintenance and standard operational repairs on the Equipment in consideration of the compensation described in Article III of this Agreement. The County shall be responsible for paying for any Capital Repairs to the Equipment, with the exception of the 1983 model Reino Mules. Additionally, the County shall be responsible for the replacement of any Equipment or purchase of new Equipment necessary to perform Operator's services required hereunder. The County shall also pay for the rental of any new Equipment used during the maintenance, repair or replacement of the Equipment. Operator shall notify the County in advance of making any Capital Repairs, renting replacement Equipment, or purchasing new Equipment. The notice shall include the nature of the expense and justification for the expense. County approval shall be required to make Capital Repairs, purchase new or replacement equipment, or rental of any equipment. Operator shall invoice the County for the County approved expense on the next monthly billing statement described in Section 3.03 of this Agreement. The County shall respond to a request for approval of a Capital Repair within three (3) days and request for approval of a new equipment purchase within ten (10) days and any approval shall not be unreasonably withheld if within the purchasing authority of the Operations Coordinator. If the County fails to respond within the stated time frame, the requested repair or purchase shall be deemed approved. II -2 (d) Facility Equipment Warranties. The Operator shall use such means as it deemed reasonable to pursue recovery against equipment or services for the Facility which are defective and any recovery so obtained shall be payable to the County.; provided, however, if the County or replacement operator should be the operator then recovery shall be payable to the County. (e) The County shall receive prompt notice of any permit violation or the receipt, by the Operator, of any warning notice or notice of violation from any regulatory agency which relates to the Facilities or the Disposal Site. Copies of reports required by any regulatory agency shall be furnished to the County. 2.05 County Visitation and Inspection of the Facility; Record Keeping and Reporting; Testing. (a) At any time during the term of this Agreement the County, its agents and its representatives shall have the right to inspect, visit and to take visitors through the Facility in order to inspect, observe and to permit others to observe the various services which the Operator performs, provided that such inspections and visitations shall not interfere with the performance of the Operator's obligations under this Agreement and are in compliance with Section 2.05(d). (b) (1) The Operator shall establish and maintain an information system to provide storage and ready retrieval of Facility operating data. (2) The Operator shall prepare and maintain proper, accurate, and complete books and records and accounts of all transactions related to the Facility. (3) The Operator shall provide the County with data concerning the number of tons of Acceptable Waste that is processed and landfilled, so that the County may utilize this data to prepare reports on the diversion of waste for the Florida Department of Environmental Protection. (c) (1) A quarterly and annual inspection program shall be conducted at each facility. This program shall consist of a walk- around inspection and review of all Facility operating -records with the object of verifying that the Facility is in good repair. The annual inspection shall take place within 30 days of the end of each Fiscal Year. (2) The Operator shall, in coordination with the County or its designated representative, prepare the Annual Report that will incorporate a summary of all contractually required records and data for the II -3 previous Fiscal Year, as well as a summary of the past year's operations. The County shall pay all costs associated with the services of any consultant utilized by the County and the Operator shall pay all other costs of the Annual Report. The Annual Report shall be submitted to the County by the Operator by March 1 of each year. The County shall pay all costs associated with the services of any consultant utilized by the County and the Operator shall pay all other costs of the Annual Report. (3) The County shall provide the Operator with copies of any reports prepared by or on behalf of the County. (d) In connection with all inspections or visitations, the County shall, on behalf of itself, its agents and representatives, comply and cause its agents and representatives to comply, with all reasonable rules and regulations of the Operator, including a requirement that each person, County agent, or representative inspecting or visiting the Facility hold Operator harmless in the event of injury to such person, or his or her property unless due to negligence of Operator and not to disclose or use any confidential information of the Operator other than for the purpose for which it was furnished, unless disclosure is required by applicable law. 2.06 Acceptable Waste Services. (a) Recyclable materials separately collected by or on behalf of the County shall not be subject to delivery to the Facilities. The County hereby guarantees to the Operator that it shall cause Acceptable Waste to be delivered to each completed Facility during the Receiving Time. (b) Composition of Acceptable Waste. The County shall not be required to guarantee the composition of any given shipment of Acceptable Waste, but horticultural waste which is to be processed by Operator at County's request shall be segregated by the delivering transporter. The Operator shall make all reasonable efforts to separate white goods and tires from deliveries received on the tipping floor and insure that the weight of these materials is recorded and subtracted from the total tonnage used for billing purposes. The County shall insure that sufficient area is made available at each Facility for the mulch processing activities of Operator. The Operator in conjunction with the County shall designate the area at each terminal necessary for such activity. The area shall include suitable storage capabilities. (c) Title to any waste removed from the Facilities by the Operator shall immediately, upon such removal, rest with the Operator. II -4 2.07 Deliveries of Unacceptable, Biohazardous, Hazardous, and Atomic Waste. (a) The County shall use its best efforts to cause only Acceptable Waste to be delivered to the Facility. Inadvertent deliveries of Unacceptable Waste to the Facility are to be expected and shall not constitute a breach of the County's obligations hereunder. The Operator shall be responsible for removing and transporting all Unacceptable Waste to the County's site adjacent to the Facility. In the event the Operator is requested by the County to Transport and dispose of Unacceptable Waste at the Disposal Site, the Operator shall be reimbursed by the County for such Disposal subject to verifiable Cost Substantiation. If the County directs that such waste be delivered to a location other than the approved Disposal Site, then the Operator shall deliver such waste to an alternate site, and the cost, subject to verifiable Cost Substantiation, to the Operator of such removing, transporting and disposal shall be paid by the County. Nothing contained in this Section shall limit the right of the Operator to refuse to accept any Unacceptable Waste which it discovered prior to any identifiable hauler thereof having left the Facility. The Operator shall notify the County of any hauler delivering, or attempting to deliver, Unacceptable Waste which, in the discretion of the Operator, makes it impractical to separate Acceptable Waste from the Unacceptable Waste. (b) The Operator will notify the County if any particular hauler has been found by the Operator to be responsible for delivering, or attempting to deliver, any Hazardous, Biohazardous or Atomic Waste in any quantity or form, or Unacceptable Waste in bulk or constituting a substantial and visible part of a load of Acceptable Waste. Upon receipt of such notice, the County will take appropriate action in an attempt to prevent any repeated occurrence by such hauler. The delivery of such wastes shall not constitute a breach of the County to obligations hereunder. (c) The County shall be responsible for any damage, delay or costs, subject to Cost Substantiation, incurred by the Operator, with respect to the Facility, as a result of the delivery of Hazardous, Biohazardous or Atomic Waste to the Facility and the County shall indemnify the Operator, with respect to the Facility, in accordance with Section 6.04 (b) . The Operator shall notify the County of any known Hazardous, Biohazardous or Atomic Waste delivered to the Facility. Upon receipt of notice, the County shall cause the prompt removal of such Hazardous, Biohazardous or Atomic Waste. The Operator shall have no responsibility to remove, transport or dispose of any Hazardous, Biohazardous or Atomic Waste delivered to the Facility although such removal, transport and disposal may be'negotiated between the Operator and the County. II -5 2.08 Receiving and Operating Hours. (a) The County shall designate the Receiving Time at each Facility. The Operator shall keep the Facility open for the receiving of Acceptable Waste during the Receiving Time. In no event shall the County designate a total of more than 48 hours per week or 8 hours per day receiving time without the consent of Operator. (b) The Operator may request and accept subject to County approval the delivery of Acceptable Waste at times other than the Receiving Time or in amounts greater than amounts scheduled to be delivered at no additional cost to the County. The County's approval shall not be unreasonably withheld. (c) The County may request the Operator to accept deliveries of Acceptable Waste at times other than the Receiving Time upon seven (7) days prior written notice or such shorter notice as may be practicable in the event of the occurrence of a natural disaster or other emergency condition. During such a period, the Operator shall use its best efforts to accommodate the County's request. If the Operator accepts Acceptable Waste pursuant to this Section 2.08(c) at hours other than the Receiving Time, the County shall pay all additional costs, subject to Cost Substantiation, incurred by the Operator as a result of such additional hours of operation. (d) In the event a County Franchise hauler experiences an operational emergency or equipment breakdown, the Operator shall, subject to County approval, on three (3) hours notice, extend the operating hours to accommodate the late arrival at the Facility of the County Franchise haulers. The County's approval shall not be unreasonably withheld. 2.09 Weighing Facilities and Recordkeeping. (a) The County shall maintain weighing facilities at the entrance to the Facility Site for the purpose of determining the total tonnage of Acceptable Waste delivered to the Facility. (b) The County shall maintain a weight record containing the weight, date, time and vehicle identification of each vehicle entering and exiting the Facility and provide the Operator a duplicate copy or report of each weight record issued. (c) The County shall operate and maintain the Scales in compliance with this Agreement and all applicable state and local laws. The County shall test, or cause to be tested, the Scales at least semi - annually and if necessary recalibrate such Scales accordingly. Copies of the results II -6 of such tests and any recalibration shall be provided to the Operator within fifteen (15) days of the receipt of such records by the County. The Operator hereby reserves the right to have reasonable access to the Scales and respective scale houses during all operating hours to monitor the County's compliance with the provisions of this Section 2.09. The Operator has the right to verify weight data and cause the scales to be tested at Operator expense at times other than the County's required semiannual test. If all weighing facilities are incapacitated or are being tested, the County shall estimate the quantity of material delivered on the basis of truck volumes and estimated data obtained from pertinent historical information. These estimates shall take the place of actual weighing records during the period of the Scale outage. 2.10 Storage. Acceptable Waste shall be stored in the storage area designed for that purpose. No Solid Waste delivered to the Operator may be stored outside the Facility buildings, except for loaded transfer trailers awaiting removal to the Disposal Site and yard waste which has been or is awaiting chipping. The maximum time allowed for storage of Acceptable Wastes at the facility due to equipment malfunction or breakdown shall be seventy -two (72) hours. 2.11 Special Waste Management. Operator has established a program to identify and manage wastes which require special management and handling at the Facilities or the Disposal Site. In the event Special Waste is received at a Facility in quantities which require special management and handling, Operator shall notify the generator and /or transporter of such waste that analysis and possible special handling of such waste is required. If special handling of such waste is reasonably deemed by Operator to be required under Operator's special waste management program, the generator or transporter of such waste shall be charged a handling and disposal surcharge as negotiated between the Operator and the generator and /or transporter of such waste. In the event the Operator and the generator or transporter are unable to agree on a surcharge, the matter shall be submitted to the County Administrator or his or her designee for final determination. 2.12 Equipment Parking. The County shall designate areas at each facility which the Operator can exclusively use for the parking and storage of transfer trailers, transfer tractors, and other vehicles and equipment owned or used by the Operator for the purpose of fulfilling the provisions of the Agreement. Any other vehicles Operator desires to park at a facility will be subject to the reasonable terms and conditions imposed by the County. II -7 Mu em erg ARTICLE III COMPENSATION 0-40 tj — PERFORMANCE GUARANTEES AND PENALTIES 3.01 Operations and Disposal Fee. The County shall pay to the Operator an initial Operations and Disposal Fee of $53.58 per ton effective October 1, 1993. On October 1, 1994 and each October 1 throughout the remaining term of the Agreement, the Operations and Disposal Fee shall be adjusted based on the Refuse Rate Index (Schedule B). The County shall calculate the adjustment of the Operations and Disposal Fee and notify the Operator of the change prior to October 1 of each year. The Operator shall have the right to review and agree to the calculation of the adjustment. Except as reflected in Section 2.04(c), the Operator shall be responsible for the operation and maintenance of the Facility during the term of this Agreement including all labor, material, equipment and all other costs of operation and maintenance as may be required to assure that the Facility is accepting and Processing Acceptable Waste as required by the Operating Plan and by this Agreement, and in compliance with all applicable federal, state and local laws, and rules. The fee paid the Operator pursuant to this section and section 3.02 may only be made from service charges, special assessments or non ad valorem assessments. In no event shall the fee be payable from revenue collected from ad valorem taxation. 3.02 Fixed Capital Cost Component Fee. The County shall pay to the Operator a Fixed Capital Cost Component Fee of $21,599.97 each month for 156 consecutive months as principal and interest payment compounded monthly for the purchase of the transfer station buildings, improvements, and equipment (as listed in Schedule C) . At any time during the length of this agreemen oun y shall have the option of paying the balance owed according to Schedule D. In the event of early termination, regardle ss of the cause, t e County shall pay the balance owed according to Schedule D. The Fixed Capital Cost Component Fee shall not be subject to the Refuse Rate Index adjustment. The Fixed Capital Cost Component Fee shall be renegotiated if this Agreement is renewed and the County desires that Operator make Capital Improvements to the Facility as part of the renewal. At the end of the term of this Agreement and a ent in full of the Fixed Ca ital Com onent Fee, the Opera o shall execute any an a 1 documents necessar to e ence FW s er o i e to t e trans er station building, improvements equ ipmen as fisted in Sc edu e C , an any n w equipment pu rc o r p ursuant to thi greemen . 3.03 Billing Statement. At the end of each Billing Period, the Operator shall provide a billing statement in accordance with this provision. This statement shall set forth the total tonnage received at the Facilities, according to the weight recorded and certified at the scales for the month then ended times the Operation and Disposal Fee charged per ton in accordance with this Agreement. The III -1 statement shall also separately reflect the Fixed Capital Cost Component Fee and any fees charged pursuant to Section 2.04 (c) of this Agreement. Such statement shall be provided for the County not later than the fifteenth (15th) day of the month following the provision of the service. The County shall make its best effort to make payment within fifteen (15) days following the receipt of this statement. 3.04 Annual Adjustments and Payments Yearly Reconciliation. (a) Operator's Operations and Disposal Fee is based upon an assumed tonnage of not less than 58,000 tons of Acceptable Waste processed at the Facility each fiscal year. Therefore, in the event the County has not delivered or caused to be delivered at least 58,000 tons of Acceptable Waste by the end of any Fiscal Year the County and Operator agree to negotiate an adjustment in the Operations and Disposal Fee or adjust the scope of Operator's service to account for the reduced tonnage processed at the Facility. (b) The County and Operator further acknowledge and agree that Operator's Operations and Disposal Fee is based upon the current distribution of Acceptable Waste delivered to the three respective transfer stations. In the event that the current distribution is changed to increase or decrease the amount of acceptable waste delivered to any one transfer station by more than ten percent (100) the County and Operator agree to renegotiate the Operations and Disposal Fee or the scope of Operator's service to reflect the change in distribution of Acceptable Waste. 3.05 Performance Guarantees. Operator shall operate the Facilities in a manner that they are capable of accepting and processing up to 95,000 tons of Acceptable Waste per year not including horticultural waste. Operator shall accept and Process unlimited quantities of horticultural waste. 3.06 County Non- performance. If during any Billing Period due to the fault of the County, the Facility is temporarily shut down, either partially or totally, or is otherwise unable to receive or Process Acceptable Waste, the Operator shall use its best efforts to receive, Process and /or dispose of Acceptable Waste to the extent possible, and the County shall pay such costs as shall be claimed by the Operator, subject to Cost Substantiation. During such events, the Operator shall use its best efforts to reduce expenses and mitigate losses during a period of non - operation or partial operation due to the County's fault. III -2 3.07 No Liability for Uncontrollable Circumstances. Neither the County nor the Operator shall be liable to the other for any failure or delay in performance of any obligation under this Agreement (except any obligation to pay previously owed or otherwise obligated monies) if such party is prevented or delayed in the performance of such obligation due to the occurrence of an Uncontrollable Circumstance. The party whose performance under this Agreement has been affected by an Uncontrollable Circumstance shall provide prompt written notice of the occurrence and cessation of such Uncontrollable Circumstance to the other party. Whenever an Uncontrollable Circumstance shall occur, the party claiming to be adversely affected thereby shall, as quickly as reasonably possible, eliminate or mitigate the cause therefor, reduce costs and resume performance under this Agreement. III -3 ARTICLE IV FURTHER AGREEMENTS 4.01 Licenses, Approvals and Permits. The Operator shall maintain all permits required or permitted by law to be in its name which are necessary for the operation of the Facility. The Operator and the County shall cooperate as reasonably necessary in connection with obtaining in a timely manner the licenses, approvals and permits for the operation of the Facility. 4.02 Insurance During Operations. (a) The Operator shall maintain all insurance coverage as mutually agreed to under Section 4.02(b) and any additional insurance as may be required by the County during the term of this Agreement. The costs of all such insurance, including any deductibles shall be paid by the Operator. (b) The Operator shall obtain and maintain the following insurance with respect to operation and maintenance of the Facility: (1) Broad Form Commercial General Liability Insurance Coverage which shall contain the following minimum coverage and endorsements with other coverage and endorsements to be added by mutual agreement, (i) Premises /operations; Contractual liability applicable to the indemnities in this Agreement; Products /Completed Operations Hazards; (iv) Independent Operators; (v) Environmental Impairment; (vi) Personal injury, (vii) Deletion of the Explosion, collapse and underground hazards exclusion; (ix) Cross liability clause. The applicable limit of liability shall be as agreed from time to time but shall not be less than $5, 000, 000 per occurrence. (2) Workers' Compensation in an amount as required by statute and Employers Liability in an amount no less than $1,000,000 each accident, $1,000,000 each employee for disease, and $5,000,000 policy limit. (3) Comprehensive Automobile Liability Insurance Coverage applicable to all owned, 11 non- owned" and hired vehicles used in connection with the operation and maintenance of the Facility, subject to the minimum Combined Single Limit of Primary Bodily Injury and Property Damage Liability Insurance as agreed from time to time but which shall not be less than $5, 000, 000 Combined Single IV -1 Limit. Operator will require subcontractor to provide a certificate of automobile insurance. (4) Umbrella or Excess Liability Insurance Coverage which shall follow form, with respect to all underlying coverage regardless of Umbrella or Excess Policy Conditions to the contrary. The Limits of Liability shall be at $20,000,000 per occurrence if available at a reasonable cost, but no less than $10,000,000 per occurrence and, as applicable, in the aggregate. (5) All Risk Property Insurance covering the completed Facility on an all risk basis in an amount not less than 1000 of the Facility replacement cost from the date of completion of the first Acceptance Test under the Construction Contract. Such insurance shall contain the following minimum coverage and endorsements, with the other coverage and endorsements to be added by mutual agreement: (i) Data Processing and media coverage; (ii) Flood; (iii) Demolition and Increased Cost of Reconstruction; (iv) Expediting Expense; (v) Extra Expense; (vi) Agreed Amount Endorsement; (vii) Repair and Replacement Endorsement; (viii) Sink Hole Endorsement; (ix) Earthquake coverage; and (x) Business Interruption Insurance as set forth in Section 4.02(b)(6) if not covered on a following form by separate policy. (xi) Windstorm (6) Business Interruption and Extra Expense Insurance on the Facility from the date of completion of the first Acceptance test under the Construction Contract to protect the Operator and the County, covering loss of revenues attributable to the Facility (and extra expenses incurred) by reason of the total or partial suspension of, or interruption in, the operation of the Facility caused by loss or damage to, or destruction of, any part of the Facility or Facility Site as a result of the perils insured against pursuant to Section 4.02(b)(5) and 4.02(b)(7), and covering a period of suspension or interruption of at least eighteen (18) calendar months in an amount not less than the Operation Payments during any such period. Such insurance shall exclude any loss of revenues sustained during the first seven (7) days of total or partial interruption of use of the Facility. (7) Boiler and Machinery Insurance covering all machines and apparatus subject to perils typically insured under a Boiler and Machinery Insurance Policy in an amount IV -2 equal to 1000 of the cost of repair or replacement without deduction for depreciation. Such insurance shall be made effective from the date of completion of the first Acceptance test under the Construction Contract and shall contain the following minimum coverage and endorsements with other coverage and endorsement to be added by mutual agreement: (i) Demolition and Increased Cost of Reconstruction; Expediting Expense; Extra Expense; (iv) Repair and Replacement Endorsement; (v) Additional expenses incurred for cleanup of contaminated or polluted property that is a result of a covered accident; (vi) Connected and ready for use endorsement; and (vii) Business Interruption Insurance as set forth in Section 4.02(b)(6) if not covered in a following form by separate policy. (c) Additional Named Insureds. The Operator shall name the County (including their respective board members, directors, officers, employees and agents) as additional named insured on all insurance policies required pursuant to this Section 4.02 and as loss payee on property insurance policies,as their respective interest may appear in accordance with the contracts and agreements (related to the Facility and Facility Site) to which they are a party. (d) Special Insurance Provisions. With respect to the insurances specified in this Section 4.02. (1) Such coverage shall not be cancelled or materially changed without giving the County sixty (60) days, if available, but not less than sixty (60) days prior written notification thereof. (2) Additional named insureds shall have the option of paying any insurance premium in order to prevent cancellation of insurances for nonpayment of premium and shall be entitled to receive from the Operator full reimbursement of all items so expended. (3) Neither the Operator nor any of the additional named insureds set forth in Section 4.02(c) shall have the unilateral right to make an insurance settlement under the policies of insurances set forth herein. (4) If at any time the insurances set forth in this Section 4.02 shall fail to comply with the insurance requirements specified, the Operator shall, upon notice to that effect, promptly apply for a new policy, submit such policies to the County for prior approval, and then file a certificate thereof with the same. If the Operator fails to comply with any such insurance requirements, the County may, at its option, pay a renewal premium or otherwise fulfill the particular IV -3 insurance requirements. This action on the part of the County will mandate repayment of said insurance premiums by the Operator. Failure of the operator to take out and /or maintain any required insurance shall not relieve the Operator from any liability hereunder Failure of the Operator to maintain the required insurance constitutes a breach of this Agreement. (5) The Operator shall evidence compliance with the Workers' Compensation Law by supplying the County, prior to the date of completion of the first Acceptance Test under the Construction Contract, the following attested documentation: (a) A Workers'Compensation certificate, prescribed for proof of compliance with the Workers' Compensation Law; and (b) If the Operator or any subcontractor shall be self - insured for Workers' Compensation, such entity shall present a certificate evidencing from the Workers' Compensation Commission that fact to the County. (c) The Operator shall maintain a written list of the names and addresses of all suppliers, contractors and subcontractors known as of the Actual Acceptance Date, which list shall be updated on a regular basis. (d) With respect to the interests of the additional named insureds set forth in Section 4.02 (c) , such insurance shall not be invalidated by any action or inaction of the named insured and shall insure such additional named insureds regardless any breach or violation of any warranty, declaration of condition contained in such insurance by the named insured. (e) Such liability insurance as is afforded by the insurance set forth in this Section 4.02 shall be primary without the right of contribution from any other insurances that are carried (or self - insurance) by the Operator or by any additional named insureds set forth in Section 4.02(c), with respect to their interests in the Facility or the Facility Site and, further, such liability insurances shall expressly provide that all of the provisions thereof, except the limits of liability, shall operate in the same manner as if there were a separate policy covering each insured. (f) The Operator shall arrange for appropriate certificates of insurance to be issued to each additional named insured by each provider of the insurance set forth in Section 4.02(b). IV -4 (g) With respect to the insurance referred to in Section 4.02(b)(6), any losses payable shall be paid to the County for the account of all interests. 4.03 Equal Employment Opportunity. The Operator agrees to comply with the requirements of all applicable non - discrimination and equal employment opportunity statutes. 4.04 Change in Law. In the event that a Change in Law occurs such that compliance with this Agreement by either party is rendered unlawful or is materially adversely affected, the parties shall meet immediately to agree on a modification to this Agreement that will allow continuation of this Agreement without causing such adverse affect or violation of law. The Agreement shall be deemed terminated by mutual consent of the parties if such modification is not agreed to within 30 days after the Change in Law occurs. The enactment by the Broward County, Florida Board of County Commissioners of any ordinance, code, rule, or regulation requiring disposal of Monroe County generated Solid waste in Broward County solid waste disposal facilities and /or any sur- charges or any other fees that may be levied for any such Solid Waste disposal shall be a Change in Law. However, in the event such action by Broward County is specifically and only applied to Monroe County solid waste, Operator agrees to use good faith efforts to challenge such action including the institution of administrative and legal processes. 4.05 Incinerator Ash. The parties recognize that Operator has the capability to transport and dispose of municipal solid waste incinerator ash ( "Ash ") which is not a Hazardous Waste or Hazardous Material, as defined herein and by the Broward County Environmental Quality Control Board. In the event County determines that it wishes to arrange for the transportation and disposal of Ash generated at the Key West incinerator, Operator and County shall enter into good faith negotiations for such transportation and disposal. IV -5 ARTICLE V DEFAULT AND TERMINATION 5.01 Remedies for Breach. Either party may terminate this Agreement on the occurrence of an Event of Default by the other party in accordance with this Article V. 5.02 Events of Default by Operator. The following shall constitute Events of Default on the part of the Operator: (a) Failure of the Operator to timely perform any material obligation under this Agreement, such as, but not limited to, failure to provide sufficient labor and materials to operate the Facilities as herein specified, operation of the Facilities in violation of any federal, state or local environmental rules, regulations or laws, or ordinances, refusals or failures to supply properly skilled workmen, failure to supply or cause to be supplied proper materials, failure to properly maintain the Facility, failure to make or cause to be made prompt payment to subcontractors for amounts due and owing, failure to make or cause to be made prompt payment for materials or labor for amounts due and owing, failure of the Operator to provide the insurance as required by Section 4.02, and disregard for laws, ordinances, rules, regulations or orders of any public authority having jurisdiction over the Facility, the Facility Site, or the Operator's obligations under this Agreement. However, the failure of the Facility to operate at the level of the Performance Guarantees shall not be an Event of Default if (i) no Event of Default described in paragraph (b)(1) of this Section 5.02 shall have occurred, and (ii) the Operator shall pay any costs incurred by the County because of such failure. (b) (1) After the Actual Acceptance Date in the event the Operator fails to operate the Facility at a level in accordance with the performance guarantees for a period of three (3) consecutive months provided that County has delivered or caused to be delivered, sufficient quantities of Acceptable Waste. Any such default shall be cured if the Operator shall develop a reasonable corrective plan intended to restore Facility performance to an acceptable level within a two (2) month period. This two (2) month period may be extended by mutual agreement upon the Operator's showing of good cause, which agreement shall not be unreasonably withheld by the County. (2) In the event of any extension beyond the initial two month period provided in Section 5.02(b)(1) unless the Operator can demonstrate that it has properly operated and maintained the Facility in accordance with prudent operating and maintenance practices for refuse facilities, the Operator shall be liable for costs V -1 associated with the failure to perform during the extension period. (c) The Operator being or becoming insolvent or bankrupt or ceasing to pay its debts as they mature or making an arrangement with or for the benefit of its creditors or consenting to or acquiescing in the appointment of a receiver, trustee or liquidator for a substantial part of its property, or bankruptcy, winding up, reorganization, insolvency, arrangement or similar proceeding instituted by or against the Operator under the laws of any jurisdiction, which proceeding has not been dismissed within ninety (90) days, or any action or answer by the Operator approving of, consenting to, or acquiescing in, any such proceeding, or the levy of any distress, execution or attachment upon the property of the Operator which shall substantially interfere with its performance hereunder. 5.03 Events of Default by the County. The following shall constitute Events of Default on the part of the County. (a) Failure of the County to timely perform any material obligation under this Agreement, except the obligation described in Section 5.03(b), the failure of the County to perform any material obligation under this Agreement. However, no event of default shall occur under this Section 5.03 (a) if the County shall, within 30 days of the failure to perform, prepare a reasonable corrective plan intended to cure the failure of performance within a two month period. The two month period may be extended for an additional two month period by mutual agreement upon the County's showing of good cause, which agreement shall not be unreasonably withheld by the Operator. The County shall be liable for any costs incurred by the Operator during the period of the County's failure to perform. (b) Failure of the County to pay amounts owed to the Operator under Section 3.01 or 3.03 of this Agreement within thirty (30) days of the due date, or failure of the County to pay any other amount owed to the Operator within ninety (90) days following receipt of Operator's billing statement and Cost Substantiation therefor; unless a dispute resolution is pending pursuant to Section 6.03 hereof, in which case the County shall pay to the Operator any such amount which is not in dispute, and withhold payment of any such amount in dispute in accordance with Section 6.03. V -2 5.04 Termination of Agreement by the County. (a) If within a period of thirty (30) days after the Operator shall have received notice from the County that an Event of Default has occurred under Section 5.02(a) or (b), such notice describing in reasonable detail the nature of the Event of Default, the Operator has neither remedied, nor commenced and continued to pursue with due diligence a remedy for any such Event of Default, the County may terminate this Agreement forthwith. An Event of Default of the character described in Section 5.02(b) hereof shall not require notice by the County as hereinabove provided, but shall terminate this Agreement forthwith. (b) If this Agreement is terminated by the County pursuant to Section 5.04(a) hereof, the Operator shall vacate the Facility. Further, if the Event of Default giving rise to the termination was that described in Section 5.02(b), then the Operator shall pay to the County the amount, if any, of the Performance Bond. (c) If the Agreement is terminated, the Operator shall (a) grant to the County, or any replacement operator, a paid -up, royalty -free, non - exclusive license to any patents, trademarks, copyrights and trade secrets and "shop rights" as necessary for and limited to the operation of the Facility; (b) supply at a mutually agreeable fair market value, any proprietary components needed for continuing the operation of the Facility; (c) assign, for the benefit of the County or any replacement operator, all maintenance and supply contracts: (d) assist the County or any replacement operator by providing, without charge, initial training for personnel as may be reasonably necessary to enable the new operator to continue with the operation of the Facility; (e) provide non - technical and technical design, construction and operational information, whether or not proprietary, including technological specifications, necessary for operation, maintenance and repair of the Facility; and (f) grant to the County or any replacement operator access to the Facility for the purpose of operating and maintaining the Facility. The Operator shall be entitled to payment of its Operation and Disposal Fee pursuant to Article IV until the date of termination of this Agreement. (d) This Section 5.04 shall survive the termination of this Agreement for the purpose of enforcing the County's rights herein. 5.05 Termination of Agreement by the Operator. If an Event of Default described in Section 5.03(a) or (b) hereof shall occur and if such Event of Default shall continue for a period of thirty (30) days after the County shall have received notice from the Operator describing in reasonable detail the nature of the Event of Default, and if the County has neither remedied, nor commenced and continued to pursue a remedy for any V -3 such Event of Default with due diligence, or, in the event of a failure to pay monies owed, paid in full such monies, then the Operator may commence such legal or equitable proceedings to recover damages as the Operator may deem appropriate and /or terminate this Agreement upon Thirty (30) days written notice to the County. 5.06 No Liability for Uncontrollable Circumstances. Neither the County nor the Operator shall be liable to the other for any failure or delay in performance of any obligation under this Agreement (except the obligation to pay previously owed or otherwise obligated monies) due to the occurrence of an Uncontrollable Circumstance. The party whose performance under this Agreement has been affected by an Uncontrollable Circumstance shall provide prompt written notice of the occurrence and cessation of such Uncontrollable Circumstance to the other party. Whenever an Uncontrollable Circumstance shall occur, the party claiming to be adversely affected thereby shall, as quickly as possible, eliminate or mitigate the cause thereof, reduce costs and resume performance under this Agreement. 5.07 Manner of Termination Payment. Within thirty (30) days following termination of this Agreement, the County and the operator shall reconcile all amounts then due and payable to each other under the terms of this Agreement. Upon reaching, as a result of such reconciliation, the total amount of the outstanding unpaid balance which the County and the Operator each owe the other, the County and the operator shall, within 30 days thereafter pay such amounts. If there shall be a disagreement as to the amount the Operator or the County shall be entitled to receive, there shall nevertheless be timely paid such amounts which are not in dispute. Any remaining balance shall be payable promptly by the appropriate party after resolution of said dispute, in accordance with Section 6.03. V -4 ARTICLE VI MISCELLANEOUS 6.01 Term. Unless sooner terminated in accordance with the terms hereof, this Agreement shall commence on October 1, 1993 and continue until September 30, 2006. Either party may request renewal of this Agreement for up to three (3)additional periods of five (5) years each on the terms and conditions set forth herein unless either party shall give notice of non - renewal to the other no sooner than 180 days, and no later than 90 days, prior to the end of the initial term of any renewal term. Notwithstanding the foregoing, however, in the event the ordinance referred to in the last sentence of Section 4.04 is adopted and effective the Operator shall have the option to renegotiate this Agreement after the fifth anniversary hereof upon ninety (90) days written notice. 6.02 Assignment. (a) It is expressly understood and agreed that this Agreement is personal to the County and the Operator, and that, except as expressly provided in this Section 6.02, the Operator shall have no right, power or authority to assign this Agreement or any portion thereof without prior approval of the County. (b) Upon written notification to and subject to approval by the County the Operator may subcontract or assign to or authorize performance of the Work. The Operator guarantees compliance by such subcontractors and assignees with the requirements of this Agreement, provided that the limitations on the Operator's liability set forth in the Agreement constitute the aggregate limit of liability of the Operator and its related or affiliated entities to the County, and the County agrees to hold only the Operator responsible for any failure to comply. The County shall not unreasonably withhold approval of any requested subcontract or assignment. 6.03 Dispute Resolution. (a) The parties shall use their best efforts to resolve any dispute or controversy by mutual agreement. Except as otherwise expressly provided herein, each party shall have the right to fully pursue its remedies at law in the event a dispute or controversy cannot be resolved in accordance with the foregoing. (b) Any civil proceeding or other action commenced to enforce this Agreement shall be filed in any court having jurisdiction thereof and situated in Monroe County, Florida. 6.04 Indemnities and Releases. (a) The Operator shall protect, indemnify, and hold harmless the County and its respective officers, board members, employees, and agents (the "County Indemnified Parties ") VI -1 from and against all liabilities, actions, damages, claims, demands, judgments, losses, costs, expenses, suits, or actions and reasonable attorneys fees, and shall defend the County in any suit, including administrative actions and appeals, for personal injury to, or death of, any person or persons, or loss of or damage to property including the Disposal Site, or for any fines or governmental penalties, arising out of the performance or non - performance of the Operator's obligations under this Agreement, the improper disposal of Acceptable Waste or the breach by Operator of any representation or Condition of this Agreement. The Operator is not, however, required to reimburse or indemnify County or any County Indemnified Party for loss or claim due to negligence of County or any County Indemnified Party to the extent the loss or claim was caused by the County or any County Indemnified Party. The Operator's aforesaid indemnity is for the exclusive benefit of the County and the County Indemnified Parties, and in no event shall inure the benefit of any third party. This indemnification set forth in this subsection shall survive the termination of this Agreement. (b) The Operator shall protect, indemnify and hold harmless the County and the County Indemnified Parties from and against all cost recovery or remedial actions arising under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C., Sec. 9601 et sea and Florida Statute 403, the Solid Waste Act, brought against the County or the County's Indemnified Parties and arising from Operator's transportation and disposal of Acceptable Waste at the Disposal Site pursuant to this Agreement. The indemnification set forth in this subsection shall survive the termination of this Agreement. (c) The County under the terms and provision of Florida Statute 768.28 shall protect, indemnify, and hold harmless the Operator and any substitute subcontractors, and their respective officers, directors, employees and agents (the "Operator Indemnified Parties ") from and against all liabilities, actions, fines, damages, claims, demands, judgments, losses, costs, expenses, suits, or actions and reasonable attorneys' fees, and shall defend the Operator Indemnified Parties in any suit, including appeals, for personal injury to, or death of, any person or persons, or loss of, or damage to property or any suit arising out of the negligent performance (or nonperformance) of the County's obligations under this Agreement up to the waiver amount set forth in Section 768.28 Florida Statutes. The County is not, however, required to reimburse or indemnify any Operator Indemnified Party for loss or claim due to negligence of any Operator Indemnified Party. This indemnification shall survive the termination of this Agreement. VI -2 (d) More fully described in Section 4.02 iierein, Operator and the County hereby waive any and every claim for recovery from the other and from any substitute subcontractors for any and all loss or damage to each other resulting from the performance of this Agreement, which is covered by valid and collectible insurance policies, but only to the extent to which such loss or damage is actually recovered under such insurance policies. (e) There are no warranties or guarantees of the Operator which extend beyond those expressed in this Agreement, and the Operator DISCLAIMS AND THE COUNTY WAIVES ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW, INCLUDING WARRANTIES OR MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND CUSTOM AND IMAGE. 6.05 Further Assurances. Each party agrees to execute and deliver any instruments and to perform any action that may be necessary, or reasonably requested, in order to give full effect to this Agreement. Each party shall use all reasonable efforts to provide such information, execute such further instruments and documents, and take such action as may be reasonably requested by the other party not inconsistent with the provisions of this Agreement and not involving the assumption of obligations other than those provided for in this Agreement to carry out the intent of this Agreement. 6.06 Warranties, Machinery, Equipment and Materials. The Operator shall exercise all reasonable efforts to obtain manufacturers' warranties for equipment and materials at the Facility and to assign such warranties to the County in accordance with this Agreement. The Operator hereby agrees that the County shall be subrogated to all of the Operator's rights and privileges under all suppliers' warranties and that if the Operator shall not have, within 30 days after written notice from the County, moved to enforce its rights and privileges under any of such warranties, the County may enforce such rights as the Operator would otherwise have under such warranties. This Section 6.06 shall survive the termination of this Agreement. 6.07 Industrial Property Rights. The Operator and the County agree to hold in strictest confidence and not to disclose to third parties any confidential or proprietary know -how, trade secrets, technical data or other data or information which has been identified by one party to the other as proprietary or confidential and has been or shall be furnished by one party to the other in connection with the performance of this Agreement, except that in each instance this Section shall not apply to such matters which (i) were in the receiving party's lawful possession prior to submission thereof by the disclosing party and had not been obtained by the receiving party either directly or indirectly from the disclosing party, or (ii) are hereafter lawfully made available to the receiving party by a third party, or (iii) are, or at any time became available to the public through no VI -3 act or failure to act by the receiving party, or (iv) any matters required to be disclosed or made public under the requirements of law. 6.08 Representations. (a) The County's Representations. The County represents to the Operator that: (1) The County is duly organized and existing in good standing under the laws of the State of Florida and is authorized to carry on the governmental functions and operations as contemplated by this Agreement. (2) The County has the power, authority and legal right, to enter into and perform its obligations set forth in this agreement, and the execution, delivery and performance hereof (a) have been duly authorized, (b) have the requisite approval of appropriate governmental bodies. (3) This Agreement has been duly entered into and delivered and, as of the Contract date, constitutes a legal, valid and binding obligation of the County, enforceable in accordance with its terms. (b) Operator's Representations. The Operator hereby represents to the County that: (1) The Operator is duly organized and existing in good standing under the laws of the State of Florida, and is duly qualified to do business wherever necessary to carry on the business and operations contemplated by this Agreement. (2) The Operator has the power, authority and legal right to enter into and perform its obligations set forth in this agreement, and the execution, delivery and performance hereof (i) has been duly authorized, (ii) has the requisite approval of appropriate governmental bodies, (iii) does not violate any judgment, order, law or regulation applicable to the Operator or any provisions of the Operator's certificate or incorporation or bylaws and (iv) does not constitute a default under or result in the creation of any lien, charge, encumbrance or security interest upon any assets of the Operator under any agreement or instrument to which the Operator is a party or by which the Operator or its assets may be bound or affected. (3) The Operator holds, or is expressly authorized under, the necessary patent rights, licenses and franchises to operate and maintain the Facility pursuant to the terms of this Agreement. (4) This Agreement has been duly entered into and delivered and, as of the Contract Date, constitutes a legal, valid and binding obligation of the Operator, enforceable in accordance with its terms. VI -4 (5) The Operator warrants that its consultants, sub - consultants, agents and employees have the experience, knowledge and character necessary to qualify them for the particular duties that each may perform under this Agreement and shall perform such services in accordance with the highest professional standards and free from defects in materials and workmanship. (6) The Operator has or will obtain all necessary permits required to operate the Facility. 6.09 Relationship of the Parties. Except as otherwise explicitly provided herein, no party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations assumed by any other party and nothing in this Agreement shall be deemed to constitute any party a partner, agent or legal representative of any other party or to create any fiduciary relationship between or among the parties. 6.10 Documents Pertaining to the Facility. All documents prepared by or for the Operator pertaining Facility for the purpose of operating and maintaining the Facility shall become the property of the County, upon termination of this Agreement, subject to any applicable proprietary restrictions, provided that the Operator may and use copies thereof. 6.11 Notices. to the retain Any notices or communication required or permitted hereunder shall be in writing and sufficiently given or delivered in person or sent by certified or registered mail, postage prepaid, as follows: As to the Operator: President Waste Management Inc. of Florida 500 W. Cypress Creek Road, Suite 300 Ft. Lauderdale, Fl. 33309 As to the County: County Administrator Monroe County 5100 College Road Key West, Fl. 33040 Changes in the respective addresses to which such notice may be directed may be made from time to time by any party by written VI -5 notice to the other party. 6.12 Waiver. The waiver by either party of a default or a breach of any provision of this Agreement by the other party shall not operate or be construed to operate as a waiver of any subsequent default or breach. The making or the acceptance of a payment by either party with knowledge of the existence of a default or breach shall not operate or be construed to operate as a waiver of any subsequent default or breach. 6.13 Modifications. The provisions of this Agreement, including the present and all future Schedules, together with the agreements incorporated by reference, shall (1) constitute the entire agreement between the parties for the operation of the Facility, and (2) be modified, unless provided herein to the contrary, only by written agreement duly executed by both parties. In the event of any conflict, variation or inconsistency between these general terms and conditions of this Agreement and any of the Schedules, these general terms and conditions shall control. 6.14 Headings. Captions and headings in this Agreement are for ease of reference only and do not constitute a part of this Agreement. 6.15 Governing law. This Agreement and any questions concerning its validity, construction or performance shall be governed by the laws of the State of Florida, irrespective of the place of execution or of the order in which the signatures of the parties are affixed or of the place or places of performance. 6.16 Venue. Venue for all purposes arising out of this Agreement shall be in Monroe County, Florida, unless prohibited by law. 6.17 Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed to be an original. 6.18 Severability. In the event that any provision of this Agreement shall, for any reason, be determined to be invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith and agree to such amendments, modifications, or supplements of, or to, this Agreement or such other appropriate changes as shall, to the maximum extent practicable in light of such determination, implement and give VI -6 effect to the intentions of the parties as reflected herein, and the other provisions of this Agreement shall, as so amended, modified, supplemented or otherwise affected by such action, remain in full force and effect. 6.19 Unless Stated Otherwise. Whenever this Agreement requires performance by the Operator it shall be at the Operator's expense and whenever this Agreement requires performance by the County it shall be at the County's expense. 6.20 Performance Bond. Operator shall provide a performance bond in the amount of $6,000,000 issued by a Surety or insurance company licensed to do business in the State of Florida. Notwithstanding anything herein to the contrary, in the event this Agreement is terminated due to the default of Operator under the provisions in Section 5.02 hereof, and the County, receives payment from the Surety, Operator's liability for any and all obligations hereunder shall be limited to said amount of $6,000,000. 6.21 Public Entity Crimes Form. The following document shall be attached to this Contract and shall be executed annually on January 1 each year of the Contract term: Schedule I - Public Entity Crimes Form 6.22 Schedules. The following documents shall be Schedules attached to this Contract and incorporated therein by reference: Schedule A Special Waste Schedule B Operations and Disposal Fee Adjustment Schedule C Equipment List Schedule D Fixed Capital Cost Component Fee Payment Schedule Schedule E Monroe County Transfer Stations Design and Construction Agreement dated as of August 1, 1990 Schedule F Ethics Clause Schedule G Drug -Free Workplace Form Schedule H Public Entity Crimes Form VI -7 IN WITNESS W8E1 )F, the parties have cause" this Agreement to be executed by their duly authorized officers o - representatives as of the day and year first above written. ATTEST: DANNY I, KOI AG4 C Clerk of the Circuit ourt Approved by Office of General Germs 1 as to Form and Legal C� fi ienc By 1 As To The County �� I MONROE Y, FLORIDA By: yor As To The Operator WASTE MANAGEMENT INC. OF FLORIDA E ` Y mes E. O'Connor esident Its: SCHEDULE A SPECIAL w 2,r, Any waste meeting the description which follow is a "special waste ": a. Chemical waste from a laboratory. (This is limited to discarded containers of laboratory chemicals, lab equipment, lab clothing, debris from lab spills or cleanup and floor sweepings.) b. Articles, equipment and clothing containing or contaminated with polychlorinated biphenyls (PcHs). (Examples would be: PCB capacitors or transformers, gloves or aprons frcm draining oceraticns, empty drums that formerly held PCBs, etc. C. PCB drainings and flushings re ^owed frcm PCB articles and placed directly into transport containers. d. "E=pty" containers of waste commercial products or the =icals. (This applies to a portable container which has been emptied, but which may hold residuals of the product or chemical. Examples of containers are: portable tanks, drugs, barrels, cans, bags, liners, etc. A container shall be determined RCRA "empty" according to the criteria specified at 40 C.F.R. s261.7.) e. Asbestos containing waste from building demolition or cleaning. (This applies to asbestos - bearing waste insulation materials, such as wall board, wall spray coverings, pipe insulation, etc. f. Co=ercial products or chemicals: Off- specification, outdated, contaminated or banned. (This also includes products voluntarily removed from the market place by a manufacturer or distributor, in response to allegations of adverse health effects associated with product use.) g. Residue and debris from cleanup spills or releases of a single chemical substance or commercial product or a single waste which would otherwise qualify as a special waste. h. Infectious waste. (Any waste from a hospital, medical clinic, nursing home, medical practitioner, mortuary, taxidermist, veterinarian, veterinary hospital, animal testing laboratory, university medical laboratory, etc. , that is contaminated with or may be contaminated with an infectious agent that has the potential of inducing infection.) i. Ani =al waste and parts from slaughterhouses or rendering plants. j, waste produced by the mechanical processing of fruit, vegetables or grain. (This includes such wastes as rinds, hulls, husks, pods, shells, and chaff.) k. Pu =pings from septic tanks used exclusively by dwelling units. (Single family homes, duplexes, apartment buildings, hotels or motels.) 1. Sludge fro= a publicly owned sewage treatment plant serving primarily domestic users. M. Grease trap wastes from residences, restaurants, cafeterias not located at industrial facilities. n. Washwater wastes fro= commercial car washes. o. Washwater wastes from commercial laundries or laundro =ats. p. Chemical- containing equip =ent re =cued from service. (Examples: Cathode ray tubes, batteries, fluorescent light tubes, etc.) q. Waste produced from the de =olition or disaantlinq of industrial process equipment or facilities contaminated with chemicals from the process. r. Closed cartridge filters fromm dry cleaning establish =ents. (Such filters being used to filter used dry - cleaning fluids or solids.) S. Containerized Waste. To include, but not be li =ited to, a drum, barrel, portable tank, box or pail. t. Waste transported in a bulk tanker. U. Liquid Waste. For purposes of this paragraph, liquid waste means any waste material that is determined to be or contain "free liquid" by the paint filter test (EPA Method 9095) ; V. Sludge Waste. W. Waste from an industrial process. Waste which requires special handling. X. Waste from a pollution control process. y. Residue or debris. From the cleanup of a spill or release of chemical substances, co=ercial products or wastes listed in paragraphs (s) through (x) of this definition. Z. Soil, Water, Residue, or Debris. Articles which are contaminated from the cleanup of a site or facility formerly used for the generation, storage, treatment, recycling, reclamation, or disposal of wastes listed in paragraphs (s) through (y) of this definition. aa. Residential Wastes. Only if a rule issued pursuant to Chapter 403, Florida Statutes as amended by Chapter 88 -130, Laws of Florida, or a change in law, statute, regulation, rule, code, ordinance, permit, or permit condition occurs after the _ Effective Date of this Agreement, rewiring material additional management that differs from the requ resents apZicabTe - the Effective Date of this Agreement. bb. Waste Tires. Schedule B Operations and Disposal Fee Adjustment An annual adjustment upon each anniversary date of the signing of this Agreement shall be applied to the Operations and Disposal Fee. The adjustment shall be calculated in the following manner: 1) The following indexes are used to calculate the adjustment. The change in each index shall be calculated on a August 1 through July 30 basis for the preceding twelve month. COST COMPONENT Labor 1NDEX Establishment Data- Hours and Earnings: Sanitary Services (SIC 495) Average Hourly Earnings SOURCE Employment and Earnings (E &E), Published Monthly by Bureau of Labor Statistics. (BLS) Transportation INDEX Consumer Price Index (CPI), Miami /Fort Lauderdale, All Urban Consumers, Transportation SOURCE Consumer Price Index, Published monthly by Bureau of Labor Statistics (BLS) All Other INDEX (Note 1) Consumer Price Index (CPI), Miami /Fort Lauderdale (Unadjusted), All Urban Consumers, All Items. SOURCE Consumer Price Index Detailed Report, Published Monthly by Bureau of Labor Statistics. (RLS) If any of these indices become obsolete during the term of this contract, an alternative, related index may be used, as agreed upon between the Operator and the County. 2) The percentage weight for each cost component is multiplied by the change in each appropriate index to calculate a weighted percentage change form August to July for each cost component factor. The weighted percentage changes for each cost component are added together to calculate the Refuse Rate Index (RRI), as follows: RRI Sample Cost Component weight Source %Change weighted %Change Labor 30% E &E SIC495 Avg 1.20 0.36% Hourly Earnings Transportation 50% CPI- Transporta- tion 2.30% 1.15% All Other 20% CPI - All Items 3.40% 0.68% Total 100% RRI = 2.19% NOTE 1: The "All Other" category includes the balance of revenue dollars to cover normal overhead expenses. Overhead includes: All insurance including general liability, fire, truck damage, extended coverage and employee group medical and life; rent on property, truck licenses and permits; real and personal property taxes; telephone and other utilities; employee uniforms; safety equipment; general yard repairs and maintenance expenses; office supplies; postage; trade association dues and subscriptions; employee retirement or profit sharing contributions; and miscellaneous other expenses. SCHEDULE "Cn HOURS Q^rTTmu VArLIT If -_---'- -"- -•f M.0 x rzuu" IF OF QFERATION LOCATION Peterbuilt 1988 206692KN N/A 450 N/A Tractor Ch8887 Cat Loader 1991 1KF00260 IT12 3091 Key Largo Cat Loader 1991 1KF00259 IT12 4288 Long Key Cat Loader 1991 1KF00261 IT12 2827 Cudjoe Key Cat Loader 1992 8AJO0184 936F 1188 Key Largo Delco Electric 1991 209196 4200 N/A Key Largo Pressure Washer Delco Electric 1991 261214 4200 N/A Long Key Pressure Washer )elco Electric 1991 264643 4200 N/A Cudjoe Pressure Washer Key Delco Pressure 1993 59346737 Versa N/A Long Key Washer Power Champ Electric 1991 R1508376 Key Largo Air Compressor R1583763 HRS -8 Champ Electric 1991 R15083804 HRS -8 Cudjoe Air Compressor R183804 Key RSI TubGrinder 1992 565 -112 565 1666 Champ Air 1992 R15066084 HGR6 -3 with Tub Compressor Grinder Traim- Trailer 1992 565 -112 N/A N/A Tub Grinder Trailer Marathon 1991 53344 M -1000 N/A Key Largo Compactor Marathon 1991 53345 M -1000 N/A Long Key Compactor IMarathon 1991 53346 M -1000 N/A Cudjoe 71 'ompactor Key rr - Reino Mule 1983 1H9H3681CF 027037 N/A 273 Key Largo Reino Mule 1983 1H9H36882C F027027 N/A 2940 Long Key Reino Mule 1983 1H9H36A88C N/A 7808 Cudjoe F027022 Key 3 - Lodec Scales 1991 N/A N/A N/A Key Largo Long Key Cudjoe Key Video Camera 3- VideoCamera 3- Cabinets 1991 3- Monitors For 3 -VCR Security Misc. tapes Systems Sperry 1991 VC2855L Camera and Housing Leasehold Improvements per attached 3 -250 gal. oil tanks Key Largo Long Key Cudjoe Key 3- Security Systems 1991 Key Largo Long Key Cudjoe Key 3 -Fuel Pump Monitors by Gas- Boy 1991 N/A 72 -C3 N/A Key Largo Long Key Cudjoe Key Trail Blazer Welder /Generator 250G N/A Long Key SCHEDULE I'D" Fixed Capital Cost Component Fee Page 1 Payment Schedule Pmt - - -- Principal ------ - - - - -- Interest ------ - - - - Balance -- 6.00% ------ - - - - -- 2335830.00 1 9,920.82 11,679.15 2325909.18 2 9,970.42 11,629.55 2315938.76 3 10,020.28 11,579.69 2305918.48 4 10,070.38 11,529.59 2295848.10 5 10,120.73 11,479.24 2285727.37 6 10,171.33 11,428.64 2275556.04 7 10,222.19 11,377.78 2265333.85 8 10,273.30 11,326.67 2255060.55 9 10,324.67 11,275.30 2244735.88 10 10,376.29 11,223.68 2234359.59 11 10,428.17 11,171.80 2223931.42 12 10,480.31 11,119.66 2213451.11 13 10,532.71 11,067.26 2202918.40 14 10,585.38 11,014.59 2192333.02 15 10,638.30 10,961.67 2181694.72 16 10,691.50 10,908.47 2171003.22 17 10,744.95 10,855.02 2160258.27 18 10,798.68 10,801.29 2149459.59 19 10,852.67 10,747.30 2138606.92 20 10,906.94 10,693.03 2127699.98 21 10,961.47 10,638.50 2116738.51 22 11,016.28 10,583.69 2105722.23 23 11,071.36 10,528.61 2094650.87 24 11,126.72 10,473.25 2083524.15 25 11,182.35 10,417.62 2072341.80 26 11,238.26 10,361.71 2061103.54 27 11,294.45 10,305.52 2049809.09 28 11,350.92 10,249.05 2038458.17 29 11,407.68 10,192.29 2027050.49 30 11,464.72 10,135.25 2015585.77 31 11,522.04 10,077.93 2004063.73 32 11,579.65 10,020.32 1992484.08 33 11,637.55 9,962.42 1980846.53 34 11,695.74 9,904.23 1969150.79 35 11,754.22 9,845.75 1957396.57 36 11,812.99 9,786.98 1945583.58 37 11,872.05 9,727.92 1933711.53 38 11,931.41 9,668.56 1921780.12 39 11,991.07 9,608.90 1909789.05 40 12,051.02 9,548.95 1897738.03 41 12,111.28 9,488.69 1885626.75 42 12,171.84 9,428.13 1873454.91 43 12,232.70 9,367.27 1861222.21 44 12,293.86 9,306.11 1848928.35 45 12,355.33 9,244.64 1836573.02 46 12,417.10 9,182.87 1824155.92 47 12,479.19 9,120.78 1811676.73 48 12,541.59 9,058.38 1799135.14 49 12,604.29 8,995.68 1786530.85 50 12,667.32 8,932.65 1773863.53 Page 2 Pmt - - -- Principal ------ - - - - -- Interest ------ Balance 51 12,730.65 - - - - -- 8,869.32 ------ - - - - -- 1761132.88 52 12,794.31 8,805.66 1748338.57 53 12,858.28 8,741.69 1735480.29 54 12,922.57 8,677.40 1722557.72 55 12,987.18 8,612.79 1709570.54 56 13,052.12 8,547.85 1696518.42 57 13,117.38 8,482.59 1683401.04 58 13,182.96 8,417.01 1670218.08 59 13,248.88 8,351.09 1656969.20 60 13,315.12 8,284.85 1643654.08 61 13,381.70 8,218.27 1630272.38 62 13,448.61 8,151.36 1616823.77 63 13,515.85 8,084.12 1603307.92 64 13,583.43 8,016.54 1589724.49 65 13,651.35 7,948.62 1576073.14 66 13,719.60 7,880.37 1562353.54 67 13,788.20 7,811.77 1548565.34 68 13,857.14 7,742.83 1534708.20 69 13,926.43 7,673.54 1520781.77 70 13,996.06 7,603.91 1506785.71 71 14,066.04 7,533.93 1492719.67 72 14,136.37 7,463.60 1478583.30 73 14,207.05 7,392.92 1464376.25 74 14,278.09 7,321.88 1450098.16 75 14,349.48 7,250.49 1435748.68 76 14,421.23 7,178.74 1421327.45 77 14,493.33 7,106.64 1406834.12 78 14,565.80 7,034.17 1392268.32 79 14,638.63 6,961.34 1377629.69 80 14,711.82 6,888.15 1362917.87 81 14,785.38 6,814.59 1348132.49 82 14,859.31 6,740.66 1333273.18 83 14,933.60 6,666.37 1318339.58 84 15,008.27 6,591.70 1303331.31 85 15,083.31 6,516.66 1288248.00 86 15,158.73 6,441.24 1273089.27 87 15,234.52 6,365.45 1257854.75 88 15,310.70 6,289.27 1242544.05 89 15,387.25 6,212.72 1227156.80 90 15,464.19 6,135.78 1211692.61 91 15,541.51 6,058.46 1196151.10 92 15,619.21 5,980.76 1180531.89 93 15,697.31 5,902.66 1164834.58 94 15,775.80 5,824.17 1149058.78 95 15,854.68 5,745.29 1133204.10 96 15,933.95 5,666.02 1117270.15 97 16,013.62 5,586.35 1101256.53 98 16,093.69 5,506.28 1085162.84 99 16,174.16 5,425.81 1068988.68 100 16,255.03 5,344.94 1052733.65 101 16,336.30 5,263.67 1036397.35 Page 3 Pmt - - -- Principal ------ - - - - -- Interest ------ - - - - -- Balance 102 16,417.98 5,181.99 ------ - - - - -- 1019979.37 103 16,500.07 5,099.90 1003479.30 104 16,582.57 5,017.40 986,896.73 105 16,665.49 4,934.48 970,231.24 106 16,748.81 4,851.16 953,482.43 107 16,832.56 4,767.41 936,649.87 108 16,916.72 4,683.25 919,733.15 109 17,001.30 4,598.67 902,731.85 110 17,086.31 4,513.66 885,645.54 111 17,171.74 4,428.23 868,473.80 112 17,257.60 4,342.37 851,216.20 113 17,343.89 4,256.08 833,872.31 114 17,430.61 4,169.36 816,441.70 115 17,517.76 4,082.21 798,923.94 116 17,605.35 3,994.62 781,318.59 117 17,693.38 3,906.59 763,625.21 118 17,781.84 3,818.13 745,843.37 119 17,870.75 3,729.22 727,972.62 120 17,960.11 3,639.86 710,012.51 121 :8,049.91 3,550.06 691,962.60 122 18,140.16 3,459.81 673,822.44 123 18,230.86 3,369.11 655,591.58 124 18,322.01 3,277.96 637,269.57 125 18,413.62 3,186.35 618,855.95 126 18,505.69 3,094.28 600,350.26 127 18,598.22 3,001.75 581,752.04 128 18,691.21 2,908.76 563,060.83 129 18,784.67 2,815.30 544,276.16 130 18,878.59 2,721.38 525,397.57 131 18,972.98 2,626.99 506,424.59 132 19,067.85 2,532.12 487,356.74 133 19,163.19 2,436.78 468,193.55 134 19,259.00 2,340.97 448,934.55 135 19,355.30 2,244.67 429,579.25 136 19,452.07 2,147.90 410,127.18 137 19,549.33 2,050.64 390,577.85 138 19,647.08 1,952.89 370,930.77 139 19,745.32 1,854.65 351,185.45 140 19,844.04 1,755.93 331,341.41 141 19,943.26 1,656.71 311,398.15 142 20,042.98 1,556.99 291,355.17 143 20,143.19 1,456.78 271,211.98 144 20,243.91 1,356.06 250,968.07 145 20,345.13 1,254.84 230,622.94 146 20,446.86 1,153.11 210,176.08 147 20,549.09 1,050.88 189,626.99 148 20,651.84 948.13 168,975.15 149 20,755.09 844.88 148,220.06 150 20,858.87 741.10 127,361.19 151 20,963.16 636.81 106,398.03 152 21,067.98 531.99 85,330.05 Page 4 P-mt Principal Interest ------ - - - - -- Balance ------ - - - - -- - - -- 153 ------ - - - - -- 21,173.32 426.65 64,156.73 154 21,279.19 320.78 42,877.54 155 21,385.58 214.39 21,491.96 156 21,491.96 107.46 O.CO SCHEDULE "E" MONROE COUNTY TRANSFER STATIONS DESIGN AND CONSTRUCTION AGREEMENT between MONROE COUNTY, FLORIDA and WASTE MANAGEMENT INC. OF FLORIDA Dated as of August 1, 1990 DESIGN AND CONSTRUCTION AGREEMENT CONTENTS ARTICLE I Certain Definitions D ............................... ARTICLE II Design and Construction of the Facility 2.01. Agreement to Design and Construct ......................... 2.02. Design and Construction .... ............................... 2.03. Project Management During Time of Construction............ 2.04. Interim Transfer and Disposal Services .................... 2.05. Facility Construction Price ............................... 2.06. Adjustments to Facility Construction Price ................ ARTICLE III Conditions Precedent 3.01. Conditions Precedent ....... ............................... 3.02. Conditions Precedent to the County's Obligations.......... 3.03. Conditions Precedent to the Contractor's obligations...... 3.04. Satisfaction of Conditions Precedent ..................... ARTICLE IV Start -Up, Acceptance Testing and Acceptance of the Facility; Delivery and Processing of Waste 4.01. Initial Plans and Start- Up . ............................... 4.02. Acceptance Test Phase ..................................... 4.03. Acceptance and Extension Period ........................... 4.04. Facility Services, Maintenance, Etc ....................... 4.05. County Visitation and Inspection of Facility .............. 4.06. Deliveries of Unacceptable, Biohazardous, Hazardous,...... andAtomic Waste .............. 7 ....................... 4.07. Weighing Facilities and Recordkeeping ..................... 4.08. Storage .................... ............................... 4.09. Special Waste Management ... ............................... ARTICLE V Liabilities of The Contractor 5.01. Indemnities and Releases ... ............................... 5.02. Materials and Workmanship ................................. 5.03. Limitations of the Contractor's Liabilities ............... i ARTICLE VI Further Agreements 6.01. Licenses, Approvals and Permits ------------------ 6.02. Insurance ........................... 6.03. Equal Employment Opportunity .................. 6.04. Change in Law .............................. ... .......... 6.05. Transfer of Title of Improvements and Equipment........... ARTICLE VII Default and Termination 7.01. Remedies for Breach .............. 7.02. Events of Default by the Contractor ....................... 7.03. Events of Default by the County ................ . 7.04. Termination of Agreement by the County ............. ••• . ...... 7.05. Termination of Agreement by the Contractor............ 7.06. No Liability for Uncontrollable Circumstances ............. 7.07. Manner of Termination Payment ............................. ARTICLE VIII Miscellaneous 8 .01. Assignment .. . ............................... . 8.02. Dispute Resolution ......... ......................••....•.. 8.03. County Indemnification ..... ......................•.•..•..• 8.04. Further Assurances .................. 8.05. Taxes.. ....................... 8.06. Industrial Property Rights ......................••...� 8.07. Representations .......... ............... 8.08. Confidential 111formation...... 8.09. Relationship of the Parties ................... 8.10. Time of Essence 8.11. Documents Shall Become Property �of . the �County ............. 8.12. Notices .................... 8.13. Waiver ... ................. ............................... 8.14. Modifications .............. 8.15. Headings ................... ............................... 8.16. Governing Law ......................... .................... ..................... ................. 8.17. Venue 8.18. Counterparts ............... ............................... 8.19. Severability ............... ............................... 8.20. Unless Stated Otherwise...... 8.21. Schedules .................. ............................... ii FACILITY DESIGN AND CONSTRUCTION AGREEMENT THIS AGREEMENT dated as of Aupust 1. 1990 , between Waste Management, Inc. of Florida the ( "Contractor ") with offices at 500 Cypress Creek Road, West, Suite 300, Fort Lauderdale, Florida, 33309, and Monroe County, Florida, (the "County ") a political subdivision organized and existing under laws of the State of Florida, with offices at 5825 West Jr. College Road, Key Wes t, Florida 33040. RECITALS WHEREAS, the County is empowered to provide for and assume full control and responsibility for the solid waste disposal system in Monroe County; and WHEREAS, the County issued a Request for Proposals for the disposition, outside of Monroe County, of solid waste generated within Monroe County; and WHEREAS, the Contractor, in response to such Request for Proposal, has proposed to design, construct, start up, test and operate certain transfer stations (the "Facilities" hereinafter defined) and further has proposed to transport from the Facilities a disposal site outside Monroe County, solid waste generated within Monroe County; and WHEREAS,' the County has selected the Contractor in reliance on such representations made by the Contractor in the Proposal as to the skill, expertise and experience of the Contractor to design, construct and operate such Facilities and the Contractor has the capacity to transport and dispose of solid waste generated within Monroe County; and WHEREAS, the County, in seeking a long -term solution to its solid waste disposal problems deems the proposal by the Contractor the best solution for the economical and environmental treatment of solid waste in Monroe County at this time. NOW THEREFORE, in consideration of the premises and of the mutual obligations undertaken herein, the parties hereby agree as follows: iii ARTICLE I CERTAIN DEFINITIONS As used in this Agreement, the following terms shall have the meanings set forth below: "Acceptable Wasteet or '@Waste$@ means that portion of Solid Waste generated in Monroe County that is neither Unacceptable Waste, Hazardous Waste nor Biohazardous Waste nor Atomic Waste as those terms are defined herein. "Acceptance#' means that a Facility has satisfied the Full Acceptance Standard and if such standard cannot be met, that the Contractor and the County have mutually agreed that the Facility is to be accepted in accordance with the terms and conditions mutually agreed upon. $$Acceptance Standard'# means that level of performance of a Facility which is established by the requirements specified in schedule H of this Agreement. "Acceptance Test" has the meaning set forth in Section 4.02 of this Agreement. "Actual Acceptance Dates$ means the date on which Acceptance of the last Facility to be accepted occurs under the provisions of Section 4.02(d) or 4.03(a) of this Agreement. s'Agreementfl means this Design and Construction agreement between the Contractor and the County, including the Schedules and any written amendments to either. I'Annual Throughput" means actual Tons of Acceptable Waste accepted at the Facilities in a Fiscal Year. "Annual Throughput Guarantee$$ means 75,000 Tons of Acceptable Waste per Fiscal Year that is to be delivered to the Facility by or on behalf of County, as it may be adjusted pursuant to the terms of this Agreement. "Atomic•Waste$$ means special nuclear material, by- product materials or other material, the acquisition, handling, use, transportation or disposal of which is specifically regulated under Atomic Energy Act of 1954, as amended, 42 U.S.C. Section * *2011 et. se q " Biohazardous Waste means any solid waste or liquid waste defined as Biohazardous or infectious under Chapter 17 -712, Florida Administrative Code. The term includes, but is not limited to, nonliquid human tissue and body parts; laboratory and veterinary waste which contain human - disease - causing agents; used disposable sharps; human blood, and human blood products and body fluids; and other materials which from time to time, the Florida Department Rehabilitative Services or the Florida Department of Environmental Regulation define by rule or regulation as biohazardous or infectious. I -1 "Business Day" means each Monday, Tuesday, Wednesday, Thursday, and Friday which is not a Legal Holiday. "Calendar Year" means the period of time beginning on January 1 and ending on December 31. "Change in Law" means (a) the enactment, adoption, promulgation, modification, or effectiveness of any federal, state, county, or local law, ordinance, code, or regulation within or following the ten (10) day period preceding the contract date which materially affects the performance of the Contract. Change in Law also means (b) the imposition of any new material condition on the issuance or renewal of any official permit or license. To qualify as a Change in Law, the law, ordinance, code, rule, or regulation under (a) above, or the permit or license condition under (b) above, must materially affect the cost of construction, start -up, testing, or operating of a Facility or the Disposal Site and be more burdensome than the most stringent requirements (1) in effect on the Contract date, with respect to a Facility, the Disposal Site and associated operations, (2) agreed to in any applications for official permits, licenses or approvals pending as of the Contract date, or (3) contained in any official permits, licenses, or approvals with respect to a Facility or the Disposal Site obtained as of the Contract date. Provided, however, compliance with a permit or license obtained or applied for as of the Contract date which requires compliance with future laws, ordinances, codes, rules, or regulations shall not be deemed a Change in Law. Change in Law also means (c) a change in any fee or tax, other than taxes levied on wages, salaries, or the Contractor's income, imposed by a governmental taxing authority, which has material adverse financial effect on the design, construction, start -up, performance testing, or operation of the Facility or the Disposal Site. "Construction Date" means the date on which all the Conditions Precedent set forth in Article III hereof have been met or waived as evidenced by executed acknowledgments by the County and the Contractor as provided in Section 3.04. "Contract Date" means the date of this Agreement. "Contractor" means Waste Management Inc. of Florida, a Florida corporation. "Cost Substantiation" means, with respect to any cost, a certificate signed by the Contractor's Project Manager, setting forth the amount of such cost, having attached thereto a statement from Contractor of the costs and changes incurred or copies of invoices from all third parties, if any, providing services or materials for which cost adjustment is requested, and stating that such cost (1) was properly chargeable to the work as a direct result of an event giving the County the right to Cost Substantiation, and (2) is at a competitive I -2 price, including direct and indirect costs and profit allowance for the service or materials supplied, which certificates shall be verified on an annual basis by a statement signed by the Contractor's independent auditor certifying that such costs were reflected in the Contractor's audited annual financial statements. 'lDisposal Site means a permitted disposal facility, which is not located in Monroe County, and which has been selected by the Contractor for disposal of Solid Waste generated within Monroe County. @'Effective Haste Delivery Datell means 12:01 a.m. on the day on which the Contractor specifies to the County, in the notice referred to in Section 4.01 (d), that the Facility is first capable of Processing Waste. O'Extension Period'* has the meaning specified in Section 4.03. "Facility" or •fFacilitiesel means, but shall not be limited to, all buildings, equipment, installations and the like required for; Waste receiving, storage, handling, processing and transporting; and ancillary activities such as providing amenities for employees and visitors as more fully and completely described in Schedule A. "Facility Construction Prices# means the total estimated construction price for the work as specified in Schedule F. The Facility Construction Price shall be subject to adjustment pursuant to the provisions of this Agreement. $'Fiscal Year•i,means the period of time beginning on October 1 and ending on September 30 of the subsequent years. $#Full Acceptance Standard" means full compliance with the requirements specified in Schedule H of this Agreement for Acceptance. #$Hazardous Waste means any solid waste defined under the Resource Conversation and Recovery Act, ("RCRA") 42 U.S.C. Sec. 6901 et sea ., Chapter 403, Florida Statutes, or Chapter 27 of the Broward County Code of Regulations as hazardous waste. "Household Waste" and waste generated by "conditionally exempt small quantity generators" as those terms are defined under RCRA and Chapter 17 -730, Florida Administrative Code, shall not be considered Hazardous Waste for purposes of this Agreement for so long a such waste may lawfully be disposed of in a sanitary landfill. Changes in the federal, state or local definitions of hazardous waste shall be binding on the parties as of the effective date of such determination. " Lease or "Lease Documents' means the Agreement entered into between the County and Waste Management, Inc. of Florida which conveys use of the sites for the purposes of construction and operating the Facilities, said Agreement attached hereto as Schedule D. I'Legal Holiday#• means holidays observed by the County and as changed from time to time by the Board of County Commissioners. "Notice to Proceedle means a written notice by the County advising the Contractor of the Construction Date and authorizing the Contractor to initiate all Work under this Agreement. I -3 oloperating Plan" means an operating plan approved by the County under Section 4.01(a). "Operations and Maintenance Agreement's means the Operations and Maintenance Agreement attached hereto as Schedule E. "Operator" means Waste Management, Inc. of Florida, a Florida Corporation. , $Performance Guarantees" means the guarantees as set forth in Schedule H. IlPerson" includes any individual, corporation, partnership, joint venture, association, joint -stock company, trust, unincorporated organization, or government or any agency of political subdivision thereof. "Processil, IsProcessed" or IsProcessingee means the unloading, compacting, loading and transporting and disposal of Acceptable Waste. I'Processed Waste$# means Waste which has been Processed. "Project Manager" means those persons designated by the County and Contractor respectively as set forth in Sections 2.03(c) and 2.03(f) (4). '$Receiving Timell means the period during which Waste may be delivered to the Facility in accordance with the Facility Start -Up Plan and the Acceptance Test Phase as defined in Sections 4.01 and 4.02. liscalesis means those weighing facilities maintained by the County located at the entrance to the Facility Site. IsScheduled Acceptance Date$$ means 11:59 p.m. on the date 240 days after the Construction Date, except as extended under the terms of this Agreement. togite or sites$ means three (3) sites located in Monroe County which are owned by Monroe County approximating mile markers 112,67 and 22 and which the County shall lease to the Contractor for the purpose of constructing the facilities. l'Solid Waste'@ means all materials or substances that, as of the Contract Date are generally discarded or rejected as being spent, useless or worthless to the owners at the time of such discard or rejection, including but not limited to garbage, yard trash, refuse, industrial and commercial waste, rubbish, ashes and incinerator residue which are acceptable for disposal in an ash monofill as permitted by Florida DER regulations, and demolition and construction debris. Any testing of ash or incinerator residue for compliance with DER regulations shall be at the expense of that Contractor. especial Waste means those materials requiring special handling or which are prohibited from being disposed at the Disposal Site. Special waste shall be defined as these items listed in Schedule G. vestart -Up Date@$ means the date on which start -up commences, as specified in Section 4.01. $@Toni• means 2,000 pounds avoir du pois. "Throughput Standard" means the Acceptance Standard for throughput set forth in Schedule H. I -4 "Transportation" or "Transporting's means the loading, hauling and unloading of Acceptable Waste from the Facility to the Disposal Site. '$Unacceptable Wastell means sewage, sewage sludge, or its derivatives, and sludges, all of a semi -solid state which is equal to or less than 40% solids, human and animal carcasses, motor vehicles, trailers, marine vessels, white goods, tires or any other material which may present a substantial endangerment to health or to safety or having a reasonable possibility of adversely affecting the start -up, operation, or testing of the Facility or are prohibited by law, and such other types of Solid Waste as listed on Schedule G, and waste the parties mutually agree from time to time are unacceptable. '@Uncontrollable Circumstancell means any act, event or condition that has had, or may reasonably be expected to have, a material adverse effect on the rights or the obligations of a party under this Agreement, or its subcontractors and suppliers or a material adverse effect on the Facility or the Disposal Site or the design, construction, start -up, testing or operation of the Facility or the Disposal Site, if such act, event or condition is beyond the reasonable control of the party relying thereon as justification for not performing an obligation or complying with any requirement of such party under this Agreement. Such acts, events or conditions shall include, but shall not be limited to, the following: (a) An act of God, landslide, lightning, earthquake, fire explosion, flood, hurricanes, acts of a public enemy, war, blockade, insurrection, riot or civil disturbance, sabotage or similar occurrence; (b) the order and /or judgment of any federal, state or local court, provided that such order or judgment shall not be the result of the willful or negligent action or inaction of the party relying thereon and 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 willful or negligent action or inaction of such party. (c) the suspension, termination, interruption, denial or failure of or delay in renewal or issuance of any permit, license, consent, authorization or approval essential to the design, construction, start -up, acceptance testing or operation or maintenance of the Facility or the Disposal Site except any permit, license, consent or authorization for the Contractor's proprietary technology required for the Facility or the Disposal Site, provided that such act or event shall not be the result of the willful or negligent action or inaction of the party relying thereon and that neither the contesting in good faith of any such I -5 order nor the reasonable failure to so contest shall be construed as a willful or negligent action or inaction of such party; (d) with respect to the Contractor, the failure of the County to provide the Contractor with requisite quantities of Acceptable Waste. (e) the failure of any subcontractor or supplier to furnish labor, services, materials or equipment in accordance with its contractual obligations, provided such failure is itself due to an Uncontrollable Circumstance and the Contractor cannot obtain substitute performance at an equivalent or lower price within an equivalent or shorter period of time; (f) a partial or entire delay or failure in the provision of necessary utilities or services to the Facility; (g) with respect to the Contractor, any material failure of the County, its representatives or other parties retained by the County, including vendors and contractors of any tier (except the Contractor), to provide information, services, or any of the other items to be furnished by the County, in a timely manner and as required by this Agreement, or material errors, omissions, changes or defects in such items; and (h) any subsurface or latent physical condition, existence of other conditions at the Facility Site or the requirement of a permitting authority, any of which prevents or requires a design modification or change in the construction of or adversely affects the Work, provided that the condition was unknown to the Contractor and the County, or was discovered with by the Contractor on or before the date ten (10) days preceding the Contract Date. "Wastes' means Acceptable Waste. "Work$@ means the design, construction, start -up and acceptance testing of the Facility by the Contractor in accordance with this Agreement. l#Work Change" means an adjustment to the Facility Construction Price or other provisions of this Agreement made in accordance with Section 2.05. , @Work site" or "Work Sites" means the Facility Site or Sites and any other adjacent site or sites made available to the Contractor by the County in connection with the construction of the Project. I -6 ARTICLE II DESIGN AND CONSTRUCTION OF THE FACILITY 2.01 Agreement to Design and Construct. The Contractor agrees to cause the Facilities to be designed and constructed pursuant to the terms hereof. The County agrees to cooperate with the Contractor in the construction of the Facilities, subject only to the terms of this Agreement and any other written agreements relating to the Facilities entered into between the County and the Contractor. The design and construction and all subsequent phases of Work under this Agreement shall conform to the technical specifications, descriptions and drawings contained within the Contractor's technical documents set forth in Schedule A. 2.02 Design and Construction. (a) Commencement of and Requirements for the Design and Construction Phase. The Design and Construction Phase shall begin on the Construction Date specified in the Notice to Proceed as defined in Section 3.04 and Article I. The Contractor shall supply all materials, labor and professional resources to complete this phase in accordance with the technical specifications set forth in Schedule A, the requirements of Schedule B, the terms hereof and all applicable federal, state and local statues, ordinances, regulations and codes. The Contractor may submit plans and specifications earlier than specified in this Section to help expedite the design review process. The Contractor shall assume all financial liability for submission prior to the Construction Date. (b) Scope of Design Work. (1) Preparation of Permit Applications. The County shall assist the Contractor, where possible, to identify prepare and process applications for all permits required of the Contractor that have not been previously obtained by the Contractor from state, federal or other agencies having jurisdiction over the Site and its environment. All permits shall be the responsibility of the Contractor and issued in the name of the Contractor. The Contractor shall be obligated to acquire, maintain compliance with, and timely seek the renewal of all permits necessary to design, construct, test, start -up and operate the Facilities. Contractor shall bear the costs of obtaining II -1 all permits. Penalties or actions required to be taken as a result of a permit violation shall be borne by the Contractor. (2) Milestone Summary Schedule. The Contractor's Milestone Summary Schedule attached as Schedule B to this Agreement, as such schedule may be adjusted pursuant to the provisions of this Agreement, contains a summary schedule for the Project with readily identifiable milestones. The Work performed will be monitored by the County utilizing the Milestone Summary Schedule which shall be broken down into Work activities with each activity assigned a value based on the Contractor's costs provided in Schedule F. Each project status report shall contain the status of each activity. (3) Design Review. The Contractor shall prepare and, expeditiously submit to the County for review and comment, five (5) copies of the design drawings and specifications of the Facilities, including but not limited to, those specified in Schedule A. (a) The County will expeditiously review such designs to determine whether the design documents, as certified by the Contractor are in conformance with the requirements of this Agreement. The County shall advise the Contractor in writing within fourteen ( 14) calendar days of receipt of the design documents as to its concurrence and will detail items requiring further review and modification by the Contractor. The Contractor shall proceed with requisite modifications so as to reasonably comply with the requirements of this Agreement. The Contractor shall then resubmit the modified design documents to the County for review and comment in accordance with the provisions of this paragraph: Following receipt of the modified design documents, the County shall advise the Contractor in writing within seven (7) calendar days as to the County's opinion as to any further required modifications by the Contractor. If the County and the Contractor fail to agree regarding the necessity of a modification in the design, the dispute shall be resolved in accordance with Section 8.02 hereof. If the County fails to II -2 advise the Contractor within the time frames outlined above, the County will be deemed to have approved such design documents. If the County has requested a change to the technical specifications, descriptions or drawings set forth in this agreement, such request shall be treated as a change in the design pursuant to Section 2.06(a). (b) The various design reviews and any comments made by the County on the plans, specifications, drawings, schedules and the like shall not relieve the Contractor from any of its obligations under this Agreement. (c) Scope of Construction Work. (1) Commencement of Construction. The Contractor shall commence construction expeditiously on the Construction Date specified in the Notice to Proceed. (2) Performance and Payment Bonds. Prior to commencement of construction hereunder, and upon the County's written request, the Contractor shall provide the County at the Contractor's expense, duly executed Performance and Labor and Materials Payment Bonds in an aggregate amount equal to $2,500,000 with the Contractor as obligor and the County as obligee, issued by a duly licensed surety company, licensed to do business in the State of Florida, and in a form acceptable to the County attached hereto as Schedule C. (3) General Construction Tasks. The Contractor shall Procure or furnish all services, labor, equipment and materials necessary to construct and complete the Facility in its entirety and in full working order in accordance with the final design, this Agreement, and the Work activity schedule set forth in the Milestone Summary Schedule, attached as Schedule B. (4) Site Preparation. The Contractor shall be responsible for all Site preparation. (5) Procurement of Equipment, Components and Services. The Contractor shall provide procurement management and expediting services required to maintain the Milestone Summary Schedule. II -3 The Contractor shall be responsible for assuring that the work of all of its subcontractors and suppliers is coordinated and maintained on schedule and in compliance with the approved design. The Contractor shall notify the County at least five (5) Business Days prior to the commencement of any tests on major items of equipment or sub - systems. The County's representatives shall have the right to be present as observers at such tests. (6) Final Specifications and Drawings. Within ninety (90) days after completion of start -up testing of a Facility, the Contractor shall compile and deliver to the County a complete set of record documents, consisting of corrected final detailed design documents, including corrected specifications, and reproducible record drawings (as- builts) showing the actual location of all Work at that Facility and equipment supplier information. 2.03 Project Management During the Term of Construction. (a) Scheduling Project Activities. The Contractor shall prepare and maintain detailed schedules for each Project phape as follows: Within 30 days after the Construction Date, and every two weeks time thereafter, the Contractor shall provide the County a detailed schedule and revisions thereto for the Project from initial design through the Acceptance Phase, which shall contain the milestones set forth in the Milestone Summary Schedule for the purpose of evaluating the progress of the project in accordance with the Contractor's Milestone and Project Cost Schedules. The Contractor sha i 1 pros cud Witt, a i J scheduled activities during periods of County - scheduled reviews. The Contractor shall advance or defer scheduled activities and sequencing for design, procurement and /or construction as circumstances dictate and shall prepare and submit to the County revised schedules not later than five (5) days after all major changes. In addition, the Contractor shall prepare detailed activity schedules as required for Project and reporting control. These shall include, for example, schedules for procurement anticipated shipment dates and the like and shall be made available to the County upon request. II -4 (b) Project Procedures Manual. Within Two hundred ten (210) days of the Construction Date, the Contractor shall prepare and deliver to the County a procedures manual (the "Project Procedures Manual ") designed to provide reference, guidance and clarification on administrative and procedural matters during the design, procurement and construction of the Facilities. The Project Procedures Manual shall include such information as is outlined in Schedule I. Review of the Project Procedures Manual shall be pursuant to the procedures set forth in Section 2.02(b) (3) for review of design documents. In the event of a conflict between the Project Procedures Manual and this Agreement, the terms of this Agreement shall govern. (c) Staffing the Work. The Contractor shall provide an organization staff for the work including a senior project manager and a full -time on -site Project Manager. The personnel assigned to the organization staff shall have demonstrated management experience in construction management, subcontracts, including procurement, testing, operations, contract administration,. safety, techniques for control, and reporting of the work schedule, cost and status. The Contractor's Project Manager shall have total responsibility for the conduct of all activities during the work. The Project Manager shall be directly accountable to the County's Project Manager for the Contractor's performance with respect to all contractual requirements under this Agreement and shall be the County's prime contact for all matters related to the Work. (d) Reporting Project Status. During the term of construction, the Contractor shall prepare a monthly progress report to be submitted to the County no later than ten (10) calendar days after the close of the calendar month. This report shall present the Contractor's assessment of the work's progress during the previous month, a discussion of problems identified during the month, plans for the next monthly period, and updates of the Milestone Summary Schedule. The report shall consider all facets of activity (e.g., technical, schedule, procurement and the like). The Contractor shall prepare for and attend monthly Project review meetings during the term of construction at a date and time to be set by the County, but normally occurring concurrently with the delivery of the monthly progress report. The Contractor shall orally report on the significant progress, problems and plans discussed in the monthly progress report. II -5 (e) The County and County Representatives. The County or County Representatives, shall have access to the Work Site at all times. In addition, from time to time the County may request, and Contractor shall grant, special permission for a limited number of designated staff members and /or consultants to have access during normal business hours. The County shall require its representatives while on the Work Site to comply with all safety and security rules adopted by the Contractor and not to interfere with the work of The Contractor at the Work Site. (f) Information, Items and Services to be Furnished by the County. (1) The County has provided to the Contractor as of the Contract Date the available technical and other Facility information described or contained in the Schedules attached to this Agreement. The Contractor shall be entitled to rely upon the information supplied by the County in the performance of this Agreement, except to the extent that the Contractor has or reasonably should have knowledge that would give it reason to conclude that such reliance is unjustified. (2) * The County shall furnish an adequate site, space, and suitable access for each Facility and for the Contractor's construction facilities. The Contractor hereby acknowledges that the Facility Sites described in Schedule D satisfy the Contractor's requirements with respect to space, suitable access and adequate areas for the Contractor's construction facilities. (3) Within ten (10) days of the Contract Date, the County shall appoint as its authorized representative a Project Manager authorized and empowered to act for and on behalf of the County on matters concerning the performance of this Agreement to the extent permitted by the Board of County Commissioners. The County shall notify the Contractor in writing of its Project Manager and the scope of his authority, and such appointment shall remain in full force and effect until written notice of a substitution is delivered to the Contractor. Within the scope of the authority of such Project Manager, the Contractor shall be entitled to rely upon any action or determination of the County's Project Manager as binding on the County. II -6 (5) The County shall assist the Contractor, to the extent possible, in the tie -in of the Facility to available utility systems. (6) The County shall assist to the extent possible, the Contractor, in securing of all such items as permits, governmental and regulatory approvals and authorizations, real property leases, licenses, easements and rights -of -way reasonably necessary for the engineering, procurement, construction, and acceptance of the Facilities, except licenses required to permit the Contractor to do business in the jurisdiction where the Work is to be performed, the necessary patent rights, licenses or franchises to construct the Facilities. However, the assistance by the County shall not release the Contractor from any responsibility for the securing of all licenses and permits required to be obtained by the Contractor under this Agreement. (7) The County shall furnish or cause to be furnished Acceptable Waste for testing in accordance with Article IV. (8) The County shall furnish or secure the items, personnel and services required to be furnished or secured by it pursuant to this Agreement. Where not otherwise specified, items, personnel and services shall be provided at such times and in such manner as may be reasonably required by the Contractor for the expeditious, orderly and economical performance of this Agreement and as necessary to meet the requirements of the Contractor's construction schedule; provided however, that unless a longer notice pur iva is otherwise required by this Agreement the Contractor shall have given at least five (5) Business Days written notice to the County of its requirements. Failure or delay in furnishing any items including, without limitation, Acceptable Waste as specified and as scheduled or required (provided that the County shall have been given written notice and a reasonable opportunity to furnish the items by the required time in accordance with the foregoing), shall constitute a Work Change under Section 2.05. II -7 2.04 Interim Transfer and Disposal Services. (a) The Contractor shall provide interim transfer and Disposal services commencing at each Facility at the time when construction activities prevent the County from operating its incinerator at such Facility. The Contractor shall submit to the County a plan outlining how Interim Transfer of Acceptable Waste shall be accomplished along with a schedule indicating the commencement of regular operations upon completion of the Facilities. The Contractor shall insure that normal disposal operations of the County's Franchised Collectors and /or citizens shall not be impeded at the Facilities. The Contractor shall be responsible in accordance with the provisions of Schedule E, for proper, environmentally safe transfer and Disposal of all Acceptable Wastes during the construction period in complete compliance with all permits and approvals and at the Disposal Site, local, county, and state rules and regulations. (b) The Contractor shall be compensated for the interim transfer and Disposal, during construction of the Facilities, based on the rates mutually agreed to between the County and the Contractor as set forth in Schedule E attached hereto except as otherwise provided in this Agreement. (c) The Contractor shall provide, under the Agreement set forth in Schedule J, that the County shall be guaranteed the right to deliver Acceptable Waste to a Disposal Site as defined in Schedule J for a period of six (G) years from the date of termination. 2.05 Facility Construction Price. Facility Construction Price. The Facility Construction Price shall be the total price as agreed to by the County and the Contractor, based upon appropriate cost substantiation documentation. Contractor's estimate of the Facility Construction Price is as provided in Schedule F. II -8 2.06 Adjustments to Facility Construction Price. The Facility Construction Price, as well as other provisions or this Agreement may be adjusted as provided in subparagraphs (a), (b) and (c) hereafter. Any dispute between the County and the Contractor regarding a Work Change pursuant to this Section shall be submitted to dispute resolution pursuant to Section 8.02 hereof. (a) Facility Construction Adjustments for the County's Work Change Requests. The County may request changes in the Work in the form of additions, deletions, substitutions, or other revisions. Should the County make such a request, the Contractor shall furnish a proposal as promptly as possible, describing in reasonable detail: (i) the necessary revisions to the plans, drawings and specifications; (ii) the purpose of the change; and (iii) the total effect of the Work Change, including the resulting impact, if any, on the Milestone Schedule set forth in Schedule B, the Facility Construction Price, operating costs, the Operator's operating guarantees or any other provisions of the Operations and Maintenance Agreement, the Scheduled Acceptance Date, and the requirements of Schedule H. The County shall promptly review the Contractor's proposal to implement the Work Change and notify the Contractor in writing as to whether the County wishes to proceed with such Work. The County will compensate the Contractor for all reasonable, documented, and verifiable, costs of preparing the proposal, if the County elects not to proceed with the Work Change request. Prior to the commencement of any such requested changes in the Work, the County and the Contractor shall promptly agree in writing on the amount of the increase or decrease in the Facility Construction Price and on any other consequential changes resulting from the Work Change Requests, including, without limitation, changes in operating costs, the Operator's operating guarantees or any other provisions of the Operations and Maintenance Agreement, the Milestone Summary Schedule in Schedule B, the Scheduled Acceptance Date and in the requirements of Schedule H, and adjust them accordingly. If the County and the Contractor cannot agree on the basis of the Work Change or on an adjustment to the Facility Construction Price, the matter shall be subject to dispute resolution Pursuant to the provisions of Section 8.02. 1 .c -9 (V) vaL; i l it:y Co II-.;t:► uc :t: ian 11ti j t 111C11t::; 1 () i Uncontrollable Circumstances. 11 , in the Opinion of the Contractor and the County an Uncontrollable Circumstance has occurred and by its occurrence causes a Work Change or an increase in the cost of the Facility due to such change or delay, the Contractor and the County shall proceed in accordance with Section 2.06(a) to implement a Work Change. (1) If the Contractor or the County shall determine that a Work Change is required due to an Uncontrollable Circumstance, the Contractor shall send to the County a description of (a) the necessary revisions to the plans, drawings and specifications; (b) the purpose of the change and (c) the total effect of the Work Change including, if any, the resulting impact on the Facility Construction Price, operating costs, the Operator's operating guarantees or any other provisions of the Operations and Maintenance Agreement, the Milestone Summary Schedule in Schedule B, the Scheduled Acceptance Date, and the requirements of Schedule H. The impact on the Facility Construction Price shall include the Contractor's costs in preparing each Work Change resulting from an Uncontrollable Circumstance, for which Contractor shall provide verifiable Cost Substantiation. Prior to the commencement of any such changes in the Work resulting from an Uncontrollable Circumstance, the County and the Contractor shall promptly agree, in writing, on the mount of the increase or decease in the Facility Construction Price and on any other consequential changes including, without limitation, changes in operating costs, the Operator's operating guarantees or any other provision of the operations and Maintenance Agreement, the Milestone Summary Schedule in Schedule B, the Scheduled Acceptance Date and in the requirements of Schedule H, and adjust them accordingly. If the County and the Contractor cannot agree on the occurrence of an event of Uncontrollable Circumstance and /or agree on the basis of the Work Change and /or on an adjustment to the Facility Construction Price, the matter shall be subject to dispute resolution pursuant to the provisions of Section 8.02. II -10 ARTICLE III CONDITIONS PRECEDENT 3.01 Conditions Precedent. All rights and obligations of the parties hereunder shall be subject to occurrence or performance or waiver of each of the conditions precedent set forth below on or prior to the Construction Date; provided, however, if all conditions precedent set forth in Article III have not been met, the Contractor and the County may mutually agree to commence design and construction of the Facility, upon such terms and conditions as the parties may agree upon in accordance with this Agreement. 3.02 Conditions Precedent to the County,s obligations. Each of the following conditions shall be satisfied or the Contractor shall have a written waiver of the condition(s) set forth in this Section 3.02 from the County. (a) The Contractor shall have delivered to the County certificates, by authorized officers which shall be reasonably satisfactory in form and substance to the County, each dated as of the Construction Date, to the effect that the representations of the Contractor set forth in Section 8.07 hereof are true and correct as of such date. (b) All applicable permits, licenses and authorizations necessary for the interim hauling of waste and the construction of the Facility required to be obtained on or before the Construction Date shall have been obtained. (c) The Contractor shall have submitted to the County all certificates of insurance which the Contractor is required to obtain under this Agreement. (d) If required by the County pursuant to Section 2. 02 (c) (2) , the Contractor shall have submitted to the County the executed performance and labor and material payment bonds in an amount equal to $2,500,000. (e) No change shall have occurred between the Contract Date and the Construction Date in any applicable federal, state or local law, regulation thereunder, or interpretation thereof by any applicable regulatory authority, that would make the execution or delivery of this Agreement or any related agreement, the compliance with the terms and conditions thereof or the consummation of the transactions contemplated thereby, a violation of such law, statute or regulation. III -1 (f) The Contractor shall certify to the County that provision for the Processing, Transportation and Disposal of Acceptable Waste at the Disposal Site during the period of Construction has been provided for in a satisfactory and environmentally safe manner as set forth in Section 4.03. (g) The Contractor shall have executed the lease document attached as Schedule D and the agreements attached as Schedule E and J. (h) The Contractor shall have executed the disposal agreement pursuant to Section 2.04(c). 3.03 Conditions Precedent to the Contractores obligations. Each of the following conditions shall be satisfied or the County shall obtained a written waiver of the condition(s) as set forth in this Section 3.03 from the Contractor. (a) The conditions set forth in Section 3.02 shall have been met or waived. (b) The County shall have provided proof of title to the Facility Site and shall have provided a copy thereof to the Contractor. (c) The County shall have executed the lease document attached as Schedule D and the agreement attached as Schedule E and J. (d) All easements, grants or similar rights to the Work Site shall have been given as may be necessary to perform the Work. (e) The County shall have delivered to the Contractor a certificate by an authorized officer of the County which shall be reasonably satisfactory in form and substance to the Contractor, dated as of the Construction Date, to the effect that each of the representations of the County set forth in Section 8.07(a) hereof is true and correct as of such date. (f) The County shall have executed the disposal agreement pursuant to Sections 2.04(c). III -2 3.04 Satisfaction of Conditions Precedent. Each party shall exercise good faith and due diligence in satisfying the conditions precedent. Each party shall give prompt notice to the other party when the foregoing conditions precedent to its obligation have been satisfied or have been waived in writing by the party whose obligation is conditioned thereon. If any such conditions are not so satisfied or waived by either party within ninety (90) days of the Contract Date, then either party may, by notice in writing to the other party, terminate this Agreement. Subject to the terms hereof, neither party shall be liable to the other for the termination of this Agreement pursuant to this Section 3.04. The Contractor and the County shall provide executed acknowledgment to the other that the respective conditions precedent to its obligations under this Agreement have been met within five (5) days of the date on which the last such condition is met or waived. When each party has issued such acknowledgment to the other party, the County shall immediately issue a Notice to Proceed to the Contractor, and the Construction Date shall be deemed to have occurred five (5) days after the Contractor's receipt of such Notice to Proceed. III -3 ARTICLE IV START - UP, ACCEPTANCE TESTING AND ACCEPTANCE OF THE FACILITY; DELIVERY AND PROCESSING OF WASTE 4.01 Initial Plans and start -Up. (a) Preparation of Operating Plan. Two (2) months prior to the Schedule Acceptance Date, the Contractor shall prepare and submit an Operating Plan to the County for its review and approval. The Operating Plan shall include, but not be limited to: a schedule for basic operation and maintenance activities including major repair or replacement of equipment; a procedure for scheduling deliveries of Acceptable Waste; a description of safety procedures; a description of plans for accommodating visitors; and an organization chart for this phase with job descriptions and staffing plans. The County shall, within fifteen (15) Business Days following receipt of such plans, either (i) approve the Operating Plan or (ii) submit a written list of comments to be incorporated by the Contractor. Failure by the County to approve or comment shall be deemed to be approval of the Operating Plan. (b) Preparation of Operation and Maintenance Manuals. One (1), month prior to commencement of the start -up phase, the Contractor shall submit to the County preliminary operation and maintenance manuals for review, comment and approval by the County within fifteen (15) days of receipt thereof. At least twenty (20) days prior to the scheduled start of the acceptance test, the Contractor shall submit to the County for expeditious review, comment and approval within fifteen (15) days of receipt thereof, final operation and maintenance manuals. Failure of the County to approve or comment shall be deemed to be approval of the manuals. (c) Facility Start -Up Plan. One (1) month prior to the planned beginning of the start -up phase, the Contractor shall submit to the County for review and comment a preliminary Facility start -up plan. At least fifteen (15) days prior to the planned start -up the Contractor shall submit to the County a final Facility start - up plan for County review, comment and approval. This plan shall describe the sequence of operations and tests to be performed during the start -up phase, the proposed schedule for Waste deliveries. The County shall, within fifteen (15) Business Days following receipt Of such plans either (i) approve the Facility start -up plan or (ii) IV -1 submit a written list of comments to be incorporated by the Contractor in order to conform to the technical specifications, descriptions, and drawings in this Agreement. Failure by the County to approve or comment shall be deemed to be approval of the Facility start -up plan. Any testing of equipment or any portions of a Facility, during the Facility start -up phase, shall be set forth in the Facility start -up plan. (d) Commencement of and Requirements for Start -Up Phase. The Facility start -up phase shall commence following the Contractor's issuance to the County of a written notice that start -up shall begin on portions of the Facility specified in the Notice. The Notice shall include the start -up procedure(s) for such portion or system. When, in the opinion of the Contractor, a Facility or a portion thereof is substantially mechanically and operationally ready to begin start -up, the Contractor shall schedule a walkthrough inspection of that Facility or portion thereof to ensure that all work is complete and in accordance with design drawings and specifications, and that the portion of the Facility is ready for start -up. The County shall receive five (5) Business Days' written notice of the date, time, and starting point for such walkthrough inspection. The County shall participate in the inspection, and shall notify the Contractor in writing of any deficiencies or unfinished work which, in the County's opinion, may exist in addition to the contractor's own list of deficiencies and unfinished work. The lists of deficiencies identified by the Contractor and the County shall be exchanged within ten (10) Business Days after the walkthrough inspection. Upon completion of such unfinished work and the correction of such specified deficiencies, the Contractor shall so advise the County in writing and shall promptly make personnel available to review with the County the completed work and the corrected deficiencies within five (5) Business Days of the County's receipt of such notice. Within such five (5) Business Days, the County, in writing, if applicable, shall give the Contractor notice of its failure to complete the specified unfinished work or correct the specified deficiencies. The County's failure to give written notice within the period specified shall be deemed to constitute a waiver by the County of any objection to the Contractor's beginning of start -up. The foregoing procedure will be repeated until such time as the work is complete in accordance with this Agreement. IV -2 The Contractor shall provide the personnel, service, utilities, supplies and the like, and the County shall provide the Acceptable Waste, to accomplish start -up in accordance with the Start -Up Plan. All operations during the start -up and Acceptance testing shall be conducted in conformance with federal, state and local laws, standards and regulations. (e) Supply of Acceptable Waste During Start -Up. The County shall, at no cost or expense to the Contractor, cause to be transported to the Facilities the requested quantities of Acceptable Waste at the times specified by the Contractor for commencement of start -up. Failure by the County to deliver the requisite quantities of Acceptable Waste, as set forth in this Section 4.01(e) shall constitute a Work Change pursuant to Section 2.06(a). (f) Delivery and Acceptance of Waste. (1) The Contractor shall provide the County with at least fourteen (14) days prior written notice of the initial quantity of Waste to be delivered by the County and the initial delivery schedule of such Waste to the Facilities. Such quantity may be reduced by the Contractor on at least two (2) Business Days' notice to the County. (2) On and after the Effective Waste Delivery Date and prior to the Actual Acceptance Date, the County shall deliver or cause to be delivered to the Facility Acceptable Waste, in such amounts as the Contractor shall have previously specified and has been agreed to by the County. (3) The Contractor shall accept Acceptable Waste delivered to the Facilities in such amounts as previously specified and agreed to by the Parties and delivered during the Receiving Time in accordance with a mutually agreeable - delivery schedule and at such other times as may be established pursuant to this Agreement. (g) Completion of Start -Up Phase. The start -up phase shall conclude when the Contractor initiates the Acceptance Test phase in accordance with Section 4.02(b) hereof. IV -3 4.02 Acceptance Test Phase. (a) Commencement of Acceptance Test Phase. The Acceptance Test Phase shall begin when the following conditions are satisfied: (1) All material requirements under this Agreement have been met regarding completion of Facilities start- up operations; (2) a current system configuration description has been delivered to the County and verified by the County within ten (10) Business Days of delivery; and (3) all permits required to start full scale Facilities operation have been obtained as set forth in Section 2.02(b). When in the opinion of the Contractor the foregoing conditions have been met, the Contractor shall issue ten (10) Business Days prior written notice to the County advising the County of the date on which the acceptance test will begin. Should the County disagree with the Contractor's opinion that the foregoing conditions have been met, the County shall, within five (5) Business Days after receipt of such notice, submit a list of those items it deems as incomplete. The County will be deemed to have concurred that the Facilities are ready for the Acceptance test if it does not respond to the Contractor's Completion Statement. If, upon receipt of the County's list, the Contractor determines that, in its opinion, the Acceptance test may proceed without a detrimental effect on the Facilities or on the equipment, the Contractor may proceed with the Acceptance test while performing any other work which remains to be completed. If the Contractor does not proceed, the foregoing procedure shall be repeated until such time as the Contractor may proceed with the Acceptance test. (b) Requirements during Acceptance Test Phase. (1) Supply of Acceptable Waste During Acceptance Testing. The County shall, at no cost or expense to the Contractor, cause to be transported to the Facilities the requested quantities of Acceptable Waste at the times specified by the Contractor for commencement of Acceptance testing. Failure by the County to deliver the requisite quantities of Acceptable Waste, shall constitute a Work Change pursuant to Section 2.06(a) of this Agreement. IV -4 (2) Commencement of and Requirements for Acceptance Testing. The Contractor shall provide personnel, services, utilities, supplies and the like required to operate the Facilities. (3) Cost of Acceptance Tests. Except as provided in this Agreement and the agreement of County to pay the per ton fees as set forth in Schedule E for all Solid Waste transportation and disposal during the period referenced in Section 2.04(a), the Contractor shall conduct any Acceptance tests in accordance with this Section 4.02 at no cost or expense to the County. The Contractor shall permit the designated representatives of the County to review the preparations for Acceptance tests and to be present for the conduct of Acceptance tests; provided, however, that the failure of the County to review such preparations or to be present at the Acceptance tests will not invalidate the Acceptance test results. (4) Acceptance Test Report. The Contractor shall, upon completion of any Acceptance test, furnish the County with a written report certified by a Professional Engineer, registered in the State of Florida, describing (1) the Acceptance test conducted, (2) the certified results of the Acceptance test and (3) the Contractor's estimate of the date of initiation of the next Acceptance test, if necessary, and the desired amount and delivery schedule of Acceptable Waste to the Facilities. (5) Review of Acceptance Test Report. Within five (5) Business Days of the County's receipt of the Contractor's certification as to the Acceptance Test results, the County shall notify the Contractor in writing whether the County will accept or reject the certified results. If the County, within such period, shall reject the Contractor's certification of the results of such Acceptance Test, the County shall describe in reasonable detail the basis of the County's rejection. The Contractor shall either dispute the County's determination in accordance with the provisions of Section 8.02 hereof or take corrective measures at its own expense and perform the Acceptance test again, and shall provide the County with an Acceptance test report pursuant to IV -5 Section 4.02(c)(4) above. If the County accepts the Contractor's certification of the Acceptance test or fails to respond to the Contractor's certification of the Acceptance test within five (5) Business Days, the County shall be deemed to have approved and accepted the Contractor's certification of the results of such Acceptance test. In any case, the foregoing certification procedure shall continue until Actual Acceptance of the Facilities, which shall occur at such time as: (i) the Contractor certified the results of an Acceptance test which satisfies the Full Acceptance Standard, and (ii) such certification is either approved and accepted by the County or confirmed pursuant to the provisions of Section 8.02 of this Agreement. (d) Acceptance Date. (1) Provisional Acceptance. At any time the Contractor reasonably believes that it has successfully completed the Acceptance test, the Contractor may issue to the County written notice that the Contractor has satisfied the Full Acceptance Standard. The date of such notice shall be the Provisional Acceptance Date. (2) Actual Acceptance Date. The Actual Acceptance Date shall be established as the earlier of (i) any Provisional Acceptance Date corresponding to an actual Acceptance test performed by the Contractor which subsequently is determined to have demonstrated compliance of the Facilities with the Full Acceptance Standard as set forth in Schedule H, or (ii) the date of the County's receipt of the Contractor's certification of Acceptance test results which subsequently are determined to have demonstrated compliance of the Facilities with the Full Acceptance Standard. The commencement date of the Operations and Maintenance Agreement shall be deemed to have occurred as of the Actual Acceptance Date. 4.03 Acceptance and Extension Period. Extension of Acceptance Date. If Actual Acceptance has not occurred on or before the Scheduled Acceptance Date, as adjusted pursuant to the provisions of Section 2.06 of this Agreement, the Contractor shall have the option at its sole discretion to use a period not to exceed three months ( 3 ) (such period as extended being referred to herein as the "Extension Period "), to secure Actual Acceptance of the IV -6 Facilities. During such Extension Period, the Contractor shall continue Interim Transportation of Acceptable Waste at such rate per ton as provided in Schedule E. In addition, the Contractor shall be entitled to a further extension of the Extension Period for one (1) month beyond the term provided by the foregoing, subject to the Contractor's presentation to the County of a reasonable completion plan and time schedule designed to achieve Actual Acceptance within such additional one (1) month extension. The further extension period shall be subject to mutual agreement, which shall not be unreasonably withheld by the County if the Contractor shows good cause for requiring such further extension. Failing such mutual agreement, the existence of good cause for a further extension shall be subject to dispute resolution pursuant to the provisions of Section 8.02. 4.04 Facility Services, Maintenance, Etc. (a) Safety of Persons and Property. At all times the Contractor shall establish and maintain safety procedures for the Facilities in a manner consistent with applicable law and good safety practice. (b) Repair and Maintenance. At all times after the Effective Waste Delivery Date the Contractor shall: (i) keep the Facilities in good repair and maintain an adequate reserve of any and all spare and replacement parts to assure that the Facilities will be operated in accordance with this Agreement; (ii) maintain the exterior and the interior of the Facilities in a clean and orderly fashion; and (iii) respond to the County's reasonable directives regarding special housekeeping efforts in and around the Facilities and Facility Sites. (c) Facility Equipment Services. At all times the Contractor shall: (i) operate the Facilities in compliance with all applicable federal, state and local laws, rules and regulations and permits, including those pertaining to the environment and OSHA; (ii) notify the County promptly if a Facility should be seriously damaged, irrespective of cause. (d) The parties recognize that County has conducted solid waste handling and incineration, and vehicle fueling and maintenance activities at the facilities. The Contractor shall, to the extent possible, use utmost and due care to prevent any environmental degradation of the site during the term of this Agreement. If any such degradation IV -7 to accept any Unacceptable Waste which it discovered prior to any identifiable hauler thereof having left a Facility. The Contractor shall notify the County of any hauler delivering, or attempting to deliver, Unacceptable Waste which, in the discretion of the Contractor, makes it impractical to separate Acceptable Waste from the Unacceptable Waste. (b) The Contractor will notify the County if any particular hauler has been found by the Contractor to be responsible for delivering, or attempting to deliver, any hazardous, Biohazardous or Atomic Waste in any quantity or Corm, or Unacceptable Waste in bulk constituting a substantial and visible part of a load of Acceptable Waste. Upon receipt of such notice, the County will take appropriate action in an attempt to prevent any repeated occurrence by such hauler. (c) The County shall be responsible for any damage, delay or costs arising out of the operation of the Facilities under the terms of this Agreement, subject to verifiable Cost Substantiation, incurred by the Contractor with respect to the Facilities as a result of the delivery of Hazardous, Biohazardous or Atomic Waste to a Facility, and the County shall indemnify and hold harmless the Contractor Indemnified Parties set forth in Section 8.03 therefrom, provided however, the County is not required to reimburse or indemnify any Contractor Indemnified Party for loss or claim due to the negligence of any Contractor Indemnified Party. The Contractor shall notify the County of any known Hazardous, Biohazardous or Atomic Waste delivered to a Facility. Upon receipt of such notice, the County shall cause the prompt removal of such Hazardous, Biohazardous or Atomic Waste. The Contractor shall have no responsibility to remove, transport or dispose of any Hazardous, Biohazardous or Atomic Waste delivered to a Facility. 4.07 Weighing Facilities and Recordkeeping. (a) The County shall install and maintain weighing facilities at the entrance to the Facility Sites for the purpose of determining the total tonnage of Acceptable Waste delivered to the Facilities. (b) The County shall maintain a weight record containing the weight, date, time and vehicles identification of each vehicles entering and exiting the Facility Sites and provide the Contractor a duplicate copy or report of each weight record issued. IV -9 shall have occurred, the Contractor shall at the Contractor's expense, provide all corrective measures and be responsible for all restorations, penalties, fines, or damages assessed as a result of Contractor's actions or failure to act which shall be required by the County, State or any other jurisdiction having responsibility over such occurrences. 4.05 County Visitation and Inspection of Facility. (a) At any time during the term of this Agreement and upon twelve (12) hours notice to the Contractor, the County, its agents and its representatives shall have the right to inspect the Facilities, provided that such inspections shall not interfere with the performance of the Contractor's obligations under this Agreement. (b) In connection with such inspections or visitations, the County shall, on behalf of itself, its agents and representatives, comply and cause its agents and representatives to comply with all reasonable rules and regulations adopted by the Contractor, including safety rules and procedures and including a requirement that each person inspecting a Facility sign a statement agreeing to hold Contractor harmless in the event of an injµry to such person or his or her property and not to disclose or use any confidential information of the Contractor other than for the purpose for which it was furnished, unless disclosure is required by applicable law. 4.06 Deliveries of Unacceptable, Hiohazardous, Hazardous, and Atomic Waste. (a) The County shall use its best efforts to cause only Acceptable Waste to be delivered to a Facility. However, inadvertent deliveries of Unacceptable Waste to a Facility are to be expected and shall not constitute a breach of the County's obligations hereunder. The Contractor shall be responsible for removing and transporting all Unacceptable Waste to the County's site adjacent to a Facility. In the event the Contractor is requested by the County to Transport and dispose of Unacceptable Waste at the Disposal Site, the Contractor shall be reimbursed by the County for such Disposal subject to verifiable Cost Substantiation. If the County directs that such waste be delivered to a location other than the approved Disposal Site, then the Contractor shall deliver such waste to an alternate site, and the cost, subject to verifiable Cost Substantiation, to the Contractor of such removing, transporting and disposal shall be paid by the County. Nothing contained in this Section shall limit the right of the Contractor to refuse IV -8 between the Contractor and the generator and /or transporter of such waste. In the event the Contractor and the generator or transporter are unable to agree on a surcharge, the matter shall be submitted to the County Administrator or his or her designee for final determination. IV -11 (c) The County shall operate and maintain the Scales in compliance with this Agreement and all applicable state and local laws. The County shall test, or cause to be tested, the Scales at least semi - annually and if necessary recalibrate such Scales accordingly. Copies of the results of such tests and /or recalibrations shall be provided to the Contractor within fifteen (15) days of the receipt of such records by the County. The Contractor shall have reasonable access to the Scales and respective scale houses during all operating hours to monitor the County's compliance with the provisions of this Section 4.07. The Contractor shall have the right to verify weight data and cause the Scales to be tested at times other than the County's required semi - annual tests. Any test, other than the County's required semi- annual tests, will be paid for by the party requesting such test. If all weighing facilities are incapacitated or are being tested, the County shall estimate the quantity of material delivered on the basis of truck volumes and estimated data obtained from pertinent historical information. These estimates shall take the place of actual weighing records during the period of the Scale outage. 4.08 Storage. Acceptable Waste shall be stored in the storage area designed for that purpose. No Solid Waste delivered to the Contractor may be stored outside the Facility buildings, except for loaded transfer trailers awaiting removal to the Disposal Site and yard waste which is awaiting chipping or has been chipped. The maximum time allowed for storage of Acceptable Wastes at the facility due to equipment malfunction or breakdown shall be seventy -two (72) hours. 4.09 special Waste Management. Contractor has established a program to identify and manage wastes which require special management and handling at the Facilities or the Disposal Site. In the event Special Waste is received at a Facility in quantities which require special management and handling, Contractor shall notify the generator and /or transporter of such waste that analysis and possible special handling of such waste is required. If special handling of such waste is reasonably deemed by Contractor to be required under Contractor's special waste management 1)rociram, t'hu (hint :rates ()r t *an,- .pt)rtL)1 () ::111:h wart (! ::I1.11 l I)( charged a handling died (Aisposdl surc:ltarge as nugotiatmcl IV -10 ARTICLE V LIABILITIES OF THE CONTRACTOR 5.01 Indemnities and Releases. (a) The Contractor shall protect, indemnify, and hold harmless the County and its respective officers, board members, employees, and agents (the "County Indemnified Parties ") from and against all liabilities, actions, damages, claims, demands, judgments, losses, costs, expenses, suits, or actions and reasonable attorneys fees, and shall defend the County in any suit, including administrative actions and appeals, for personal injury to, or death of, any person or persons, or loss of or damage to property including the Disposal Site, or for any fines or governmental penalties, arising out of the performance or non - performance of the Contractor's obligations under this Agreement, the improper disposal of Acceptable Waste, the breach by Contractor of any representation or Condition of this Agreement. The Contractor is not, however, required to reimburse or indemnify County or any County Indemnified Party for loss or claim due to negligence of County or any County Indemnified Party to the extent the loss or claim was caused by the County or any County Indemnified Party. The Contractor's aforesaid indemnity is for the exclusive benefit of the County and the County Indemnified Parties, and in no event shall inure the benefit of any third party. This indemnification set forth in this subsection shall survive the termination of this Agreement. (b) The Contractor shall protect, indemnify and hold harmless the County and the County Indemnified Parties from and against all cost recovery or remedial actions arising under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C., Sec. 9601 et sec and Florida Statute 403, the Solid Waste Act, brought against the County or the County's Indemnified Parties and arising from Contractor's disposal of Acceptable Waste at the Disposal Site pursuant to this Agreement. The indemnification set forth in this subsection shall survive the termination of this Agreement. V -1 5.02 Materials and Workmanship. (a) The Contractor shall perform the Work in accordance with good engineering, design and construction practices and in accordance with applicable federal, state and local laws, ordinances and regulations. All materials and equipment to be incorporated into the Facilities by the Contractor shall be new and shall conform to the technical specifications of this Agreement. The Facilities shall be constructed, erected and assembled in a workmanlike manner. (b) Where practical, the Contractor shall, for the protection of the County, procure from its supplier on behalf of the Contractor and the County, normal guarantees and warranties with respect to equipment and material procured by the Contractor. All supplier warranties and guarantees shall be assignable to the County for the benefit of the County. The Contractor hereby agrees that the County shall be subrogated to all of the Contractor's rights and privileges under all supplier's warranties and that if the Contractor shall not have, within thirty (30) days after written notice from the County, -moved to enforce its rights and privileges under any of such warranties, the County may enforce such rights as the Contractor would otherwise have under such warranties. Subsequent to Actual Acceptance, the Contractor shall have no liability with respect to such guarantees or warranties or for any costs relating to repair or replacement of such Contractor procured equipment and materials, except to the extent provided in Section 5.02(c) of this Agreement. (c) Provided the County has notified the Contractor in writing within a reasonable time, not to exceed fourteen (14) Business Days, of the discovery of any deficiencies in the Work, but in all events within one (1) year after the Actual Acceptance Date, the Contractor, subject to the limitations on the Contractor's liability set forth in Section 5.03(a) hereof, shall perform Work at the Contractor's expense to correct any deficiencies which result from the Contractor's failure to perform such Work in accordance with this Agreement and the standards described in Section 5.02(a). Notwithstanding the preceding sentence, in the event the County does not notify the Contractor within fourteen (14) Business Days of the discovery of a deficiency, the County shall not thereafter be precluded from giving notice of such deficlanc:y within thca puriud ut one (1) year al.l.ur 1.110 Actual Acceptance Date, provided the Contractor shall not V -2 be materially prejudiced by such later notice. In addition, such limitation date of one (1) year following the Actual Acceptance Date shall be extended in the case of any deficiency in repair or replacement Work performed under Section 5.02(c) to a date one (1) year following the Actual Acceptance Date or six (6) months following the original completion of such repair or replacement Work, whichever is later, solely with respect to such repair or replacement Work. Except as otherwise provided in this Agreement, the Contractor's liability for deficiencies in the Work shall be limited to repair, replacement redesign or reconstruction under this Section 5.02(c). The duties, liabilities and obligations of the Contractor under this Section 5.02(c) do not extend to any repairs, adjustments, alterations, replacements, or maintenance which may be required as a result of normal corrosion, erosion, noise level, or wear and tear in the operation of the Facilities, or as a result of the operation of the Facilities at conditions of service more severe than specified for the design of Facility materials, or as a result of any County - furnished items. 5.03 Limitations of the Contractor's Liabilities. (a) There shall be separate and mutually exclusive limits of the Contractor's liability to the County as follows: (1) Reperformance Costs. Should the County be required to reperform any work done by the Contractor to insure that the Facilities operate in compliance with all design performance, and permit standards, the Contractor shall reimburse the County for all expenses subject to Cost Substantiation or in the alternative the County shall, to the extent necessary, draw or cause to be drawn, the Performance and Payment Bond if such bond has been required pursuant to Section 202(c)(2). The County's remedies as specified in Sections 5.02(c) and 7.04(d) shall constitute the sole and exclusive remedies of the County for damages suffered by the County arising out of or in connection with failures, deficiencies or delays in the performance of the Work or for the failure of the Contractor to achieve the Full Acceptance Standard or the Scheduled Acceptance Date, and the County hereby releases the Contractor from any V -3 liability for damages for such failures, deficiencies or delays in excess thereof. However, such sole and exclusive remedies shall not limit any other rights or remedies of the County arising out of any other provisions of this Agreement with respect to matters not covered or described in the foregoing sentence. (b) The Contractor shall' have no liability for damages or payments, whether liquidated, actual or otherwise, for any delay or failure, whether in the performance of the Work, or in achieving the Scheduled Acceptance Date or the Full Acceptance Standard to the extent, but only to the extent such delay or failure is a result of: (i) the inadequacy or faulty performance of any items furnished by the County under this Agreement, (ii) any failure or delay by the County to comply with any of its obligations under this Agreement, (iii) any material inaccuracy of the information provided by the County under this Agreement, or (iv) any Uncontrollable Circumstance as provided in Section 7.06. (c) There are no warranties or guarantees of the Contractor which extend beyond those expressed in this Agreement, and the Contractor DISCLAIMS AND THE COUNTY WAIVES ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY LAW, INCLUDING WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, AND CUSTOM AND IMAGE. In recognition of the requirements of Section 725.06 of the Florida Statutes, the indemnities, releases from liability, and limitations on liability expressed in this Agreement have been agreed upon by each party hereto in express consideration of the covenants, agreements, indemnities and insurance obligations of the other party hereunder, and the Facility Construction Price is specifically based upon such indemnities, releases and limitations. Accordingly such indemnities, releases from liability, and limitations on liability expressed in this Agreement shall apply (unless otherwise expressly provided in this Agreement, specifically including, but not limited to, the provisions of Section 5.01(a) and 8.03) even in the event of the fault, negligence, or strict liability of the party indemnified, released or whose liabilities are limited, and shall extend to the partners, directors, officers and employees, agents and related or affiliated entities of such party and their partners, directors, officers, employees and agents. V -4 ARTICLE VI FURTHER AGREEMENTS 6.01 Licenses, Approvals and Permits. The Contractor shall use all reasonable efforts to obtain all permits, licenses, and approvals required to be obtained by the Contractor in an expeditious manner. The County shall provide such cooperation as reasonably requested by the Contractor in connection with obtaining in a timely manner the licenses, approval and permits. 6.02 Insurance. (a) The Contractor shall obtain all insurance coverage described hereinafter and any additional insurance as may be required by the County during the term of this Agreement. Recognizing that the Actual Acceptance Udte may be determined retroactively pursuant to Section 4.02(d)(2) and that certain of the insurance provided may not be available after completion of the first Acceptance test, the Contractor agrees to maintain all such insurance coverage in effect until a date mutually agreed upon by the County, and the Contractor, which date shall coincide with the date on which the insurance required pursuant to the Operation and Maintenance Agreement is to become effective. (b) The following insurance shall be maintained throughout the term of this Agreement: (1) Broad Form Commercial Liability Insurance Coverage (i) Premises /operations; (ii) Contractual liability applicable to the indemnities in this Agreement; (iii) Products /Completed Operations Hazard; (iv) Independent Contractors; VI -1 M Environmental Impairment; (vi) Personal injury; (vii) Deletion of the Explosion, collapse and underground hazards exclusion; (viii) Cross liability clause; and, The applicable limit of liability shall not be less than the minimum required for Umbrella or Excess Liability Insurance as set forth in Section 6.02(b)(4). (2) Workers' Compensation in an amount required by statute and Employer's Liability in an amount of $100,000 each person and $500,000 each accident or disease. (3) Comprehensive Automobile Liability Insurance Coverage applicable to all owned and hired vehicles used in connection with the Construction and testing of the Facility, with a Combined Single Limit of Primary Bodily Injury and Property Damage Liability Insurance not less than the minimum, required to support the purchase of Umbrella or Excess Liability Insurance as set forth in Section 6.02(b)(4). Contractor will require sub- contractors to provide a certificate of automobile insurance. (4) Umbrella or Excess Liability Insurance Coverage which shall follow form, with respect to all underlying coverage regardless of Umbrella or excess policy conditions to the contrary. The limits of liability shall be at least $20,000,000 per occurrence if available, but no less than $10,000,000 per occurrence and, as applicable, in the aggregate. (5) All Risk Installation and Builders Risk Floater Insurance covering all materials and equipment located at the Facility Site (including Inland Transit Coverage) which are intended to become a part of the Facility on an All Risks Basis in an amount not less than 100% of the replacement cost of the materials and equipment then at risk through completion of the first Acceptance test. Such insurance shall contain the following minimum coverage or endorsements: VI -2 (i) Data Processing and Media Coverage; Flood; Demolition and Increased Cost of Reconstruction; (iv) Expediting Expense; (v) Extra Expense; (vi) Agreed Amount Endorsement; (vii) Repair and Replacement Endorsement; (viii) Sink Hole; (ix) Earthquake and Testing Endorsement; and The deductible per occurrence shall be $15,000 except that the deductible for earthquake shall be 2.0 percent (2.0%) of the value of equipment and materials at risk at the time of loss. (c) Additional Named Insureds. The Contractor shall name, and in the event any policy is required to be issued in the name of the County, then the County shall name the following (including their respective board members, directors, officers, employees and agents) as additional named insureds on the policies required pursuant to Section 6.02(b) above, as their respective interests may appear in accordance with the contracts and agreements (related to the Facility and Facility Site) to which they are- a party: 1. None (d) Special Insurance Provisions. With respect to the insurances specified in this Section 6.02: (1) Such coverages shall not be canceled or materially changed without giving the County sixty (60) days, if available, but not less than thirty (30) days, prior written notification thereof. (2) Neither the Contractor nor any of the additional named insureds set forth in Section 6.02(c) shall have the unilateral right to make an insurance settlement under the policies of insurance set forth in Sections 6.02(b) (5) above. (3) If at any time the insurances maintained by the Contractor fail to comply with the insurance requirements specified in this Section 6.02, the Contractor shall, upon notice to that effect, promptly apply for a new policy, submit such policies the County for prior approval, and then file a certificate thereof with the same. If the Contractor fails to comply with any such insurance requirements, the County may, at its option, pay a VI -3 renewal premium or otherwise fulfill the particular insurance requirements. 'Phis action on the part of the County will mandate repayment of said insurance premiums by the Contractor. Failure of the contractor to take out and /or maintain any required insurance shall not relieve the Contractor from any liability hereunder unless such insurance is not available in the general market, in which case the County and the Contractor shall mutually agree upon how the uninsured risk will be covered, such as by the creation of a special reserve by the County. (4) The County is to be named additional insured on all insurance policies. (5) With respect to the interests of the additional named insured set forth in Section 6.02(c), such insurance shall not be invalidated by any action or inaction of the named insureds and shall insure such additional named insureds regardless of any breach or violation of any warranty, declaration or condition contained in such insurance by the named insureds. (6) Such liability insurance as is afforded by the insurance set forth in this Section 6.02 shall be primary without the right of contribution from any other insurances that are carried by the Contractor, or by any additional named insureds set forth in Section 6.02(c), and further such liability insurances shall expressly provide that all of the provisions thereof, except the limits of liability, shall operate in the same manner as if there were a separate policy covering each insured under each such policy. (e) Evidence of Insurance (1) The Contractor shall evidence compliance with the Worker's Compensation Law by supplying the County, prior to the Construction Date, the following attested documentation: (a) A Workers' Compensation certificate, prescribed for proof of compliance with the Workers' Compensation Law; and (b) If the Contractor or any subcontractor shall be self- insured for Workers' Compensation, such entity shall present a certificate evidencing that fact to the County from the Workers' Compensation Commission. VI -4 ARTICLE VII DEFAULT AND TERMINATION 7.01 Remedies for Breach. Either party may terminate this Agreement on the occurrence of an Event of Default by the other party in accordance with this Article VII. 7.02 Events of Default by Contractor. The following shall constitute Events of Default on the part of the Contractor: (a) Prior to the Actual Acceptance Date, failure of the Contractor to timely perform any material obligation under this Agreement, such as, but not limited to: failure to provide interim transfer, haul and disposal of acceptable waste; failure to provide sufficient labor and materials to construct the Facilities as herein specified; construction of the Facilities in violation of applicable environmental permits and regulations; refusals or failures to supply properly skilled workmen; failure to supply or cause to be supplied proper materials; failure to maintain the Facilities in accordance with the terms of this Agreement; failure to make or cause to be made prompt payment to subcontractors due and owing; failure to make or cause to be made prompt payment for materials or labor for amounts due and owing; and disregard for laws, ordinances, rules, regulations or orders of any public authority having jurisdiction over the Facilities, the Facility Sites, or the Contractor's obligations under this Agreement. The failure of the Facilities to achieve Acceptance by the Scheduled Acceptance Date, or to operate at the Full Acceptance Standard, shall not be an Event of Default if (i) no Event of Default described in paragraph (b) of this Section 7.02 shall have occurred, and (ii) the Contractor is complying with when due all obligations required by this Agreement. (b) The Contractor being or becoming insolvent, or bankrupt, or ceasing to pay its debts as they mature, or making an arrangement with or for the benefit of its creditors, or consenting to or acquiescing in the appointment of a receiver, trustee or liquidator for a substantial part of its property, or bankruptcy, winding up, reorganization, insolvency, arrangement or similar proceeding instituted by or against the Contractor under the laws of any jurisdiction, which proceeding has not been dismissed within ninety (90) days, or any action or answer by the Contractor approving of, consenting to, or VII -1 (2) The Contractor shall arrange for appropriate certificates of insurance to be issued to each additional named insured by each provider of the insurances set forth in Section 6.02(b) (3) A certificate that all other insurance set forth in 6.02(b) has been obtained. 6.03 Equal Employment opportunity. The Contractor agrees to comply with the requirements of all applicable non - discrimination and equal employment opportunity statutes. 6.04 Change in Law. In the event that a Change in Law occurs such that compliance with this Agreement by either party is rendered unlawful or is materially adversely affected, the parties shall meet immediately to agree on a modification to this Agreement that will allow continuation of this Agreement without causing such adverse affect or violation of law. The Agreement shall be deemed terminated by mutual consent of the parties if such modification is not agreed to within 30 days after the Change in Law occurs. Notwithstanding the foregoing, however, the enactment by the Broward County, Florida, Board of County Commissioners of any ordinance, code, rule, or regulation requiring disposal of Monroe County generated solid waste in Broward County solid waste disposal facilities and /or any surcharges or any other fees that may be levied for any such Solid Waste disposal shall not be a Change in Law. 6.05 Transfer of Title of Improvements and Equipment. The County shall have the option to purchase all of the improvements and equipment installed at the Facilities from Contractor upon the completion of the construction to be done pursuant to this Agreement at the Facilities. The County may exercise the option granted herein by notifying Contractor in writing within thirty (30) days of the Actual Acceptance Date of the last of the Facilities to be completed. Title to the improvements and equipment shall be transferred to County pursuant to a bill of sale mutually agreed to by County and Contractor. Consideration for transfer of title shall be the price set forth in Section 2.05. County shall thereafter lease back the improvements and equipment to Contractor pursuant to the terms of Schedule D. The parties acknowledge, that in the event County exercises the option granted herein, certain aspects of this Agreement may require modification. The parties shall negotiate any required modifications in good faith, however, if required modifications cannot be agreed upon, Contractor shall retain title to the improvements and equipment, subject to the terms of Schedule E. VI -5 acquiescing in, any such proceeding, or the levy of any distress, execution or attachment upon the property of the Contractor which shall substantially interfere with its performance hereunder. 7.03 Events of Default by County. Failure of the County to timely perform any material obligation under the Agreement shall constitute an Event of Default on the part of the County. 7.04 Termination of Agreement by the County. (a) If within a period of thirty (30) days after the Contractor shall have received notice from the County that an Event of Default has occurred under Section 7.02(a), such notice describing in reasonable detail the nature of the Event of Default, the Contractor has neither remedied nor commenced and continued to pursue with due diligence a remedy for any such Event of Default, the County may terminate this Agreement upon sixty (60) days prior written notice to the Contractor. An Event of Default of the character described in Section 7.02(b) hereof shall not require notice by the County as hereinabove provided, but the County may terminate this Agreement forthwith. (b) If this Agreement is terminated by the County pursuant to Section 7.04(a) hereof before the Actual Acceptance Date, in addition to any other available remedies, the Contractor shall vacate the Work Site and the County shall have the right to: (i) take possession of and use all or any part of the Contractor's materials, equipment and supplies to be incorporated in the Facility; and (ii) use such materials, equipment and supplies to complete the Facility; and (iii) transport Acceptable Waste to the Disposal Site pursuant to Section 2.04(c). (c) If the County elects to terminate this Agreement, pursuant to Section 7.04(a), the County's right of termination shall not extinguish or otherwise impair its rights or remedies against the Contractor's surety(ies) to complete or contract for completion of the Work. Notwithstanding anything in this Agreement to the contrary, upon termination and subject to the rights of third parties, the Contractor shall make available to the County and its representatives all completed design information including accurate reproducible drawings and specifications, construction and operational technical and non - technical information VII -2 whether or not proprietary and all patent, trademark and copyright licenses and permits and licenses required by the County or by a third person to complete and operate the Facilities; provided, however, that the Contractor shall have no liability for, and the County shall indemnify and hold harmless the Contractor with respect to, any use by the County or such third person of any such design information, specifications or other information obtained from the Contractor. (d) If this Agreement is terminated by the County pursuant to Section 4.03 because of the Failure of the Facilities to achieve, on or before the last day of the Extension Period, then the requirements of the Standards for Full Acceptance and Performance Guarantees, Schedule H, shall apply. In addition, should the Agreement be terminated by the County, the Standby Disposal Site Guarantee Agreement, Schedule J, shall be instituted and run for its full term as specified in Schedule J. (e) This Section 7.04 shall survive the termination of this Agreement for the purpose of enforcing the County's rights hereunder. The provisions of this Section 7.04 shall not in any way limit the County's rights or expand the Contractor's liabilities as set forth in Article V. 7.05 Termination of Agreement by the Contractor. If an Event of Default described in Section 7.03 hereof shall occur and if such Event of Default shall continue for period of thirty (30) days after the County shall have received notice from the Contractor describing in reasonable detail the nature of the Event of Default, and if the County has neither remedied, nor commenced and continued to pursue a remedy for any such event of default with due diligence, then the Contractor may terminate this Agreement upon sixty (60) days prior written notice to the County and may commence such legal or equitable proceedings to recover damages as the Contractor may deem appropriate. 7.06 No Liability for Uncontrollable circumstances. Neither the County nor the Contractor shall be liable to the other for any failure or delay in performance of any obligation under this Agreement (except any obligation to pay money) if such party is prevented or delayed in the performance of such obligation due to the occurrence of an VII -3 Uncontrollable Circumstance. The party whose performance under this Agreement has been affected by an Uncontrollable Circumstance shall provide prompt written notice of the occurrence and cessation of such Uncontrollable Circumstance to the other party. Whenever an Uncontrollable Circumstance shall occur, the party claiming to be adversely affected thereby shall, as quickly as reasonably possible, eliminate or mitigate the cause therefor, reduce costs and resume performance under this Agreement. 7.07 Manner of Termination Payment. Within thirty (30) days following termination of this Agreement, the County and the Contractor shall reconcile all amounts then due and payable to each other under the terms of this Agreement. As a result of such reconciliation, upon reaching the total amount of the outstanding unpaid balance which the County or the Contractor owes the other, the County and the Contractor shall, within thirty (30) days thereafter, make the final payments in complete discharge of their obligations under this Agreement, except those obligations which survive the termination of this Agreement. If there shall be a disagreement as to the amount the Contractor or the County shall be entitled to receive, there shall nevertheless be timely paid such amounts as are not in dispute. Any remaining balance shall be payable promptly by the appropriate party after resolution of said dispute as provided in Section 8.02. All payments outstanding after the applicable due date shall bear interest at 10% per annum. VII -4 ARTICLE VIII MISCELLANEOUS 8.01 Assignment. (a) It is expressly understood and agreed that this Agreement is personal to the County and the Contractor, and that, except as expressly provided in this Section 8.01, the Contractor shall have no right, power or authority to assign this Agreement or any portion thereof without prior approval of the County. (b) The Contractor may subcontract or assign to or authorize performance of the Work by its related or affiliated entities without the prior approval of the County. The Contractor guarantees compliance by such entities with the requirements of this Agreement, provided that the limitations on the Contractor's liability set forth in the Agreement constitute the aggregate limit of liability of the Contractor and its related or affiliated entities to the County, and the County agrees to hold only the Contractor responsible for any failure to comply. 8.02 Dispute Resolution. (a) The parties shall use their best efforts to resolve any dispute or controversy by mutual agreement. Except as otherwise expressly provided herein, each party shall have the right to fully pursue its remedies at law in the event a dispute or controversy cannot be resolved in accordance with the foregoing. (b) Any civil proceeding or other action commenced to enforce this shall be filed in any court having jurisdiction thereof and situated in Monroe County, Florida. 8.03 County Indemnification. The County agrees that it shall protect, indemnify, and hold harmless the Contractor and its respective partners, officers, directors, employees, agents, suppliers and subcontractors (the "Contractor Indemnified Parties ") from and against all liabilities, action, fines, damages, claims, demands, judgments, losses, costs, expenses, suits, or actions including reasonable attorneys' fees, and shall defend the Contractor in any suit, including appeals, for personal VIII -1 injury to or death of any person or persons, or loss of, or damage to, property or any suit arising out of the performance of nonperformance of the County's obligations under this Agreement. The County is not, however, required to reimburse or indemnify any Contractor Indemnified Party to the extent the loss or claim is due to the negligence of any Contractor Indemnified Party. This indemnification shall survive the termination of this Agreement. 8.04 Further Assurances. Each party agrees to execute and deliver any instruments and to perform any action that may be necessary, or reasonably requested, in order to give full effect to this Agreement. Each party shall use all reasonable efforts to provide such information, execute such further instruments and documents, and take such action as may be reasonably requested by the other party not inconsistent with the provisions of this Agreement and not involving the assumption of obligations other than those provided for in this Agreement to carry out the intent of this Agreement. 8.05 Taxes. With the, exception of a Gross Receipts Tax, the Contractor assumes full and exclusive responsibility and liability for withholding and /or paying, as may be required by law, all federal, state and local taxes measured by the Contractor's net income, all employee benefits taxes, and all fees for licenses or permits required by governmental authorities for the Contractor to carry on business in the jurisdiction where its services are performed pursuant to this Agreement. The contractor shall make all returns and /or reports required in connection with any and all such laws, taxes and contributions, permits, and licenses. All other federal, state or local taxes relating to the Facility w1iicli the Contractor may incur, including but not limited to tangible and intangible personal property taxes, sales and use taxes, other excise taxes and ad valorem taxes shall be at its expense. If there is an exemption available to the County for any sales taxes, property taxes or ad valorem taxes, the County shall so advise the Contractor and the parties will take whatever reasonable steps are required to take advantage of such exemption. 8.06 Industrial Property Rights. (a) The Contractor shall pay license fees relating to Acceptance testing of the all royalties and technology the design, construction and Facility. VIII -2 (b) The Contractor shall indemnify and defend the County or any of its board members, officers, employees or representatives and hold each and all harmless against the liability, judgments, decrees, damages, interest, costs, expenses, and reasonable attorneys' fees resulting from any claim or lawsuit alleging infringement of any patent, trademark or copyright relating to the design of the Facility, or the unauthorized use of trade secrets by reason of the design or construction of the Facility by the Contractor, or its subcontractors, suppliers or agents. If in any such claim or lawsuit the allegations of infringement or unauthorized use are upheld, the Contractor, at its option, may acquire a right or use under such patent, trademark or copyright; or modify or replace infringing equipment with equipment equivalent in quality, performance, useful life and technical characteristics so that such equipment does not infringe. (c) Paragraph (b) above shall not apply if the infringement results from equipment, materials or systems provided by any Person other than the Contractor, its subcontractors, or vendors of any tier providing equipment, materials or services for the Facility. (d) This Section 8.06 shall survive termination of this Agreement. 8.07 Representations. (a) The County's Representations. The County represents to the Contractor that: (1) The County is duly organized and existing under the laws of the State of Florida and is authorized to carry on the governmental functions and operations as contemplated by this Agreement. (2) The County has the power, authority and legal right, to enter into and perform its obligations set forth in this Agreement, and the execution, delivery and performance hereof (i) have been duly authorized, (ii) to the best knowledge of the County, have the requisite approval of appropriate governmental bodies, (iii) to the best knowledge of the County, do not violate any judgment, order, law or regulation applicable to the County and (iv) do not constitute a default under or result in the creation of any lien, charge, encumbrance or security interest upon any assets of the County under any agreement or instrument to which the County is a party or by which the County or its assets may be bound or affected. VIII -3 (3) This Agreement has been duly entered into and delivered and, as of the Contract Date, constitutes a legal, valid and binding obligation of the County. (b) Contractor's Representations. The Contractor hereby represents to the County that: (1) The Contractor is duly organized under the laws of the State of Florida and is duly qualified to do business wherever necessary to carry on the business and operations contemplated by this Agreement. (2) The Contractor has the power, authority and legal right to enter into and perform its obligations set forth in this Agreement, and the execution, delivery and performance hereof (i) have been duly authorized (ii) to the best knowledge of the Contractor, have the requisite approval of appropriate governmental bodies, (iii) to the best knowledge of the Contractor, do not violate any judgment, order, law or regulation applicable to the Contractor or any provisions of the Contractor's general partnership agreement and (iv) do not constitute a default under or result in the creation of any lien, charge, encumbrance or security interest upon any assets of the Contractor under any agreement or instrument to which the Contractor is a party or by which the Contractor or its assets may be bound or affected. (3) The Contractor holds, or is expressly authorized under, the necessary patent rights, licenses and franchises to construct and operate the Facility pursuant to the terms of this Agreement. (4) This Agreement has been duly entered into and delivered and, as of the Contract Date, constitutes a legal, valid and binding obligation of the Contractor. (5) The Contractor warrants that its consultants, subconsultants, agents and employees have the experience, knowledge and character necessary to qualify them for the particular duties they each may perform under this Agreement and shall perform such services in accordance with the professional standards set forth in Section 5.02(a) and the terms and conditions of this Agreement. VIII -4 8.08 Confidential Information. Except for any matters required to be disclosed or made public under the requirements of law, the Contractor and the County agree to hold in strictest confidence and not to disclose to third parties any confidential or proprietary know -how, trade secrets, technical data or other data or information which has been identified by one party to the other as proprietary or confidential and has been or shall be furnished by one party to the other in connection with the performance of this Agreement, except that in each instance this Section shall not apply to such matters which (i) were in the receiving party's lawful possession prior to submission thereof by the disclosing party and had not been obtained by the receiving party either directly or indirectly from the disclosing party, or (ii) are hereafter lawfully made available to the receiving party by a third party, or (iii) are, or at any time become, available to the public through no act or failure to act by the receiving party. 8.09 Relationship of the Parties. Except as otherwise explicitly provided herein, no party to this Agreement shall have any responsibility whatsoever with respect to services provided or contractual obligations assumed by any other party and nothing in this Agreement shall be deemed to constitute any party a partner, agent or legal representative of any other party or to create any fiduciary relationship between or among the parties. 8.10 Time of Essence. The parties each understand and acknowledge that time is of the essence of this Agreement. 8.11 Documents Shall Become Property of the County. All documents prepared by or for the Contractor, under Section 2.02(b) (3) including (without limitation) the final record as- built drawings, shall become the property of the County, subject to any applicable proprietary restrictions, provided that the Contractor may retain and use copies thereof. As soon as practical after Actual Acceptance, the Contractor shall deliver to the County copies of each and every such document pertaining to the Facility and shall continue to deliver subsequently prepared documents in the course of completion of the Facility. VIII -5 8.12 Notices. Any notices or communication required or permitted hereunder shall be in writing and sufficiently given or delivered in person or sent by certified or registered mail, postage prepaid, as follows: As to the Contractor: President Waste Management Inc., of Florida 500 W. Cypress Creek Road, Suite 300 Ft. Lauderdale, F1. 33309 As to the County: County Administrator Monroe County 5825 West Jr College Road Key West, F1. 33040 Notices shall be effective when received at the address specified above. Changes in the respective addresses to which such notice may be directed may be made from time to time by any party by written notice to the other party. 8.13 Waiver. The waiver by either party of a default or a breach of any provision of this Agreement by the other party shall not operate or be construed to operate as a waiver of any subsequent default or breach. The making or the acceptance of a payment by either party with knowledge of the existence of a default or breach shall not operate or be construed to operate as a waiver of any subsequent default or breach. 8.14 Modifications. The provisions of this Agreement, including the present and all future Schedules shall (1) constitute the entire agreement between the parties for the design and construction of the Facility, and (2) be modified, unless provided herein to the contrary, only by written agreement duly executed by both parties. In the event of any conflict, variation or inconsistency between these general terms and conditions of this Agreement and any of the Schedules, these general terms and conditions shall control. 8.15 Headings. Captions and headings in this Agreement are for ease of reference only and do not constitute a part of this Agreement. VIII -6 8.16 Governing Law. This Agreement and any questions concerning its validity, construction or performance shall be governed by the laws of the State of Florida, irrespective of the place of execution or of the order in which the signatures of the parties are affixed or of the place or places of performance. 8.17 Venue. Venue for all purposes arising out of this Agreement shall be in Monroe County, Florida, unless prohibited by law. 8.18 counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed to be an original. 8.19 Severability. In the event that any provision of this Agreement shall, for any reason, be determined to be invalid, illegal or unenforceable in any respect, the parties hereto shall negotiate in good faith and agree to such amendments, modifications, or supplements of, or to, this Agreement or such other appropriate changes as shall, to the maximum extent practicable in light of such determination, implement and give effect to the intentions of the parties as reflected herein, and the other provisions of this Agreement shall, as so amended, modified, supplemented, or otherwise affected by such action, remain in full force and effect. 8.20 Unless Stated Otherwise. Unless expressly stated to the contrary, whenever this Agreement requires performance by the Contractor it shall be at the Contractor's expense and whenever this Agreement requires performance by the County it shall be at the County's expense. 8.21 Schedules. The following documents shall be schedules attached to this Agreement and incorporated therein by reference: Schedule A - Technical Specifications Schedule B - Milestone Summary Schedule Schedule C - Performance and Payment Bond Form Schedule D - Facility Site(s) Lease Agreement Schedule E - Operations and Maintenance Agreement Schedule F - Estimated Cost Schedule VIII -7 Schedule G - Special Waste Schedule H - Standards for Full Acceptance Schedule I - Project Procedures Manual Outline Schedule J - Standby Disposal Agreement VIII -6 IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized officers or representatives as of the day and year first above written. ATTEST:D POL-11AC::, Clerk Clerk : Court and Ex- Officio Clerk to the Board County Commissioners of Monroe County, Florida Approved by Office of General Counsel as to Form and Legal Sufficiency: By: As To The County MONROE 0 L;2QT f Y., 3.oRIDA By: Mayor of Monroe County, Florida DATE: July 20, 1990 As To The Contractor WASTE INC. OF FLORIDA, ATTE :, a r'd Cor ration _ 7-1 e Cor esman Regional Operations V.P. APPROVED AS 7•j A. GAL Rl' 1,tt anr!• t � •� SIVORN STATMENT UNDER SECTION 25:.133(3)(.), FLORIDA STATUTES. ON PUBLIC ENTITY CRIMES THIS FORM MUST BE SIGNED IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICER AUTHORIZED TO ADMINISTER OATHS. 1. This sworn statement is submitted with Bid,.Proposal or Contract No. for the design, constructio and operati of th ree solid waste transfer stations. 2 'This sworn statement is submitted by Waste Management Inc. of Florida [trams of entity tubmittlag sworn statemeatg whose business address it 500 Cypress Creek Road West, Fort Lauderdale, FL 33309 (if applicable) is Federal Employer Ideatiflatlon Number (FEIN) is 59- 1094518 (If the entity has no MIN, Include the Social Security Number of the individual signing this sworn statement ) 3. My name is T. Michael O'Brien and my relationship to the [PIS print name of Individual signing] entity named above is Regional General Counsel /Secretary 4. I understand that a •public entity crime• as defined in paragraph 287.133(1)(g), Florlda Statoteg- means a violation of any state or federal law by a person with resp= to and directly related to the transact ion of business with any public entity or with an agency or political subdivision of any other state or with the United States, including, but not limited to, any bid or contract for goods or services to be provided to any public entity or an agency or political subdivision of any other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation. S. I understand that •convicted' or ' conviction' as defined In paragraph 287.133(1)(b) Florida Statutes means a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contenders. 6. I understand that an •affiliate• as defined in paragraph 287.133(1)(a), Florida Statutes. means; 1. .A predecessor or successor of a person convicted of a public entity crime; or Z An entity under the control of any natural person who is active in the maaagemen: of the entity and who has been convicted of a public entity crime. The term 'af=te' includes those officers, directors, executives, parmeM shareholder, employees, members, and agents who are active person of s In the management of an affiliate. 'The ownership by one hares constituting a controlling interest in another person, or a pooling of equipment or income among persons when not for fair market value under an arms length agreement, shall be a prima fade case that one person controls another person. A person who knowingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an afmiate. 7. I understand that a 'person' as defined in Paragraph 287.133(1)(e), Florida Statutes. mesas any natural person or entity organized under the laws of any state or of the United States with the legal power to enter into a binding contract and which bids or applies to bid on contra= for the provision of goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term 'person' includes those officers, director, executives, partners, shareholders. employees, members, and agents who are active is management of an entity. 8. Based on information and belief, the statement which I have marked below is true is relation to the entity submitting this sworn statemenL (Please indicate which statement applies.) g Neither the entity submitting this sworn statement, nor any ofacets. directors' executivesv partner:, shareholders. employes. members• or agenu who ate active is management of the entity. nor any affillate of the entity have been charged with and convicted of a public entity crone subsequent to July 1. 1989. 'Me entity submitting this sworn statement; or one or more of the officers directors. executives, partners, shareholders, empidyees, members. or agents who are active in management of the entity. or an -MI go of the entity has been charged with and convicted of a public entity crime subsequent to July 1. 1989. Alm [Please indicate which addIdDuai atatsmeat appiiea.l •Isere has been a proceeding concerning the conviction before a hearing officar of t e Late of Florida. Division of Admiasuratiw Headugs. 'Inc -rant order entered by the bearing officer did not place the pown or affiliate on the convicted vendor liu. [Please sttaeb • copy of the anal oedee'.1 ' _.... - 71C P� or affilate was placed on the convicted vendor list 'Isere bas been a subsequent proc before a b earin g O of the State of Flo rida. Dl vhti oa of was in ��public iniaa to remove the person or af131fate from tM convicted vendor 1St (Plaue.attaeh a copy of tae Gnat order .1 Zne person or affiliate has not been placed on the convicted vendor list. (Please describe any action taken by or pending with the Department of General SeniceM [signs l 1bo STATE Olt ' F drida COUNTY OF Broward PERSONALLY APPEARED BEFORE ME, the nadeudgsted authority- �'�'• M1 chap 1 0 -Brien who- after fiat bring aavtn by MC! adUCA his/her siaaature (name of lndlrlduai opdntl , in the space provided above pn this 30 th _.. day of Ju =v • 19 9O _. e:pita: j HLt� P;f My oomm':Mun Iaf Cans :i:sisif Ergb•cs /uaw 6, 1994 ' ;� Land. ilw l rq foi. • Inw.an..1n6 Form FUR 7069 (Rev. IM SCHEDULE A MONROE COUNTY TRANSFER STATIONS TECUNICAL SPECIFICATION DIVISION 1 GENERAL REQUIREMENTS 6/26/90 01010 SUMMARY OF WORK 1. The essence of this contract is to convert three existing solid waste incineration facilities into Transfer Stations equipped with compaction equipment. The work will .include repairs to the tipping floors, building walls, roofs, and paved areas. also included are all required modifications and additions for proper installation and operation of compaction equipment, as well as upgrading of site and building lighting to facilitate night time operations. 2. Prior to award of this contract, the owner, Monroe County, will clean up the existing sites. The sites will be delivered to Waste Management in clean condition, ready for the alterations as described herein and in the drawings attached. When the transfer stations are ready to be switched to the compactors, the owner will deactivate the existing incinerators. DIVISION 2 SITE WORK 02100 SITE CLEARING Remove all above'and below grade obstructions that would hinder construction in areas to be occupied by Compaction Equipment and new paving where required. �► =; Grade and dewatering,if required, is Contractor's responsibility. Fill and Backfill: Approved material placed in (6) inch layers. Max. density determined by ASTM D698 Method D - 95% modified proctor. 01545 CUTTING AND PATCHING Existing facility shall be modified as required by cutting and patching to accommodate new equipment. This shall include cutting new openings in existing concrete push walls and metal building walls as- required for the installation of compactor 1:oppers, etc. 02270 SLOPE PF AND EROSION CONTROL Ground �stabilizi.ng blankets or fabric to be used. H •� P i : \: inlets: Drop Catch basins Manholes, covers, frames Headwalls Drainage ditches Rip -rap Concrete raceways Concrete flumes Pipe: Vitrified clay pipe Concrete Reinforced concrete PVC Standing vehicle and equipment pads: 6 inch, 3000 psi reinforced on a 4 limeroek base course. Serviced areas will be 10" limerock. Curbs: Concrete curb and gutter where necessary to protect plantings, or direct water flow for proper prevention of erosion. 02710 FFN�`F$ AND GATES, CHAIN LINK Generals 6' high chainlink fence as indicated on the drawings. 1. Fabric: galvanized steel, 2 mesh, 9 gage 2. Posts: round 3. Barbed wire: if required 4. Gates: double sliding, manual operation 02720 SEWER COLLECTION SYSTEM Pipe: Cast iron soil pipe, bell and spigot Reinforced concrete pipe, modified tongue & groove compression Gasket joints Concrete pipe Vitrified clay pipe Polyvinyl chloride pipe Trench drain; polydrain or equal Manholes: precast or cast in -place at contractor's option. Collection f field as required uired p posal of water from co actor and tipping floor. • • • �.� Grassing: Locally available sod Area descriptibn: Soddings All banks and slopes subject to erosion; lawn areas as required by local ordinances. Mulching: Cypress bark mulch in all planting beds. Plantings: As required to meet the local landscape ordinances. DZ42SZON 3 CONCRETE ratTrITOU No Z • X *,.1 Formwork: construct in accordance with ACI Standard 347 -68, Recommended Practice for Concrete Forms. Reinforcement: a. Materials - conforming with ASTM A 615 -74a, grade 60 b. Detailing and fabrication - conforming with ACI Standard 315 -74, Manual of Standard Practice for Detailing Reinforced Concrete Structures. c. Placement - place bars in accordance with CRSI Standard 63. Place supports in accordance with CRSI Standard 65. 03300 CAST IN -PLACE CONCRETE Scope: New concrete equipment pads, aprons, and topping to be applied over existing tipping floors. ACI Standards: 301 -73, 318 -83 Required compressive strength in 28 days: 3000 phi /4000 psi (tipping floor) Portland Cement: ASTM C150, Type A Sand: ASTM C33, fineness modulus not less than 2.1 Coarse aggregate: ASTM C33 Admixtures: Air entraining: ASTM C260, Darex or MBVR Water reducing (when allowed): ASTM C494, types A or D, Pozzolith or WRDA 3 Reinforcement: grade 40 and 60 as noted on plans Bars: ASTM A615, Welded Wire Fabric Reinforcing. ASTM A185, galvanizing where indicated: ASTM Al23 Expansion joint tiller: asphalt impregnated fiberboard, ASTM D1751. (Upper 1/2 inch hot poured compound ASTM 01190) Isolation-joint filler: 1/8 inch wide neoprene Mixing, transport and fopr Measu:rinq conform Mxing ASTM d placing Concrete. Recommended Practice curing of finished concrete: conform to ASTM 0309 -72, using Type 1 curing compound. Finish of all exposed concrete: apply a "bridge" coating to achieve uniform color and texture. DIVISION s METALS 05100 AT$ a. Steel shapes, b. High strength o. Welding: by c 05300 mg=hr, ML METAL FRAMING bars and plates: ASTM A36 bolts: ASTM A325 3rtified welders, rod or wire feed 23§ Roof deck: corrugated, galvanized conforming with ASTM A446 with coating equivalent to class G-60 or G -90. b. Control platform: Galvanized metal floor grating. 05500 METAL FADRICATIONS a. Push walls and hopper: 1/2" steel plate and structural support system as required. b. ASCE 40 lb. crane rails to be embedded in new concrete tipping floor as shown. c. steel stairs with checkered plate treads after shown. rication/ d. Pipe handrails: steel pipe, galvanized DIVISION 7 THERMAL AND MOISTURE PROTECTION 07150 DAMP - PROOFING vapor barrier: 6 mil polyethylene film under slabs on grade. DIVISION 8 DOORS, wINDOWS AND GLASS NOT USED DIVISION 9 FINISHES 09900 RAINTING a. Clean and prepare all surfaces. b. Standard of quality: best grade by Glidden, DuPont, or Sherwin Williams. o. Exterior/ interior ferrous metals: 3 coats d. Concrete: 3 coats DIVISION 10 NOT USED SPECIALTIES DIVISION 11 EQUXYXENT 11100 COMPACTION EQUIPMENT Deliver and install one (1) Marathon M -1000 compactor unit with a- shaped extrusion tube to process dense logs of compacted solid waste. M -1000 specifications Capacity of charge box 6.48 cu yd Max. force 390,000 lbs Max. pressure 2500 psi Motor 100 hp 11200 SKID MOUNTED FUEL TANK 1 A j 0 Install 500 gallon skid mounted fuel tank with manual dispenser as indicated on the drawing. / DIVISION 12 PURNISHINQS NOT USED DIVISION 13 SPECIAL CONSTRUCTION 13602 PREFABRICATED BUILDINGS a. Construct canopies over new compaction equipment and building entrances as shown. b. Repair or replace damaged metal building components in existing tipping buildings. DIVISION 15 MECHANICAL NOT USED 5 DIVISION 16 ELECTRICAL ,.....+roar. pROVISSOHS 16010 Metering: existing meter to be used 16050 gASTC MATERTATZ AND METHODS Panelboards: Use existing panel boards, add breakers as required. Disconnects: heavy duty, NEMA 3R Fuses, UL listed as follows: Motors: K -5 ANSI Rigid steel conduit: locations exposed d wh re subject to physical concrete, damp and wet damage. Intermediate metal conduit: UL 1242 hot dipped galvanized, used interchangeably with rigid steel conduit. Electrical metallic tubing: ANSI 080.3 steel, used as permit by for rig and d applicable codes, except as limited by specifications d ima conduits. Conductors: copper, with aluminum permitted for larger sizes. Grounding. driven ground and connection to building steel. Lightning arresters will be provided at service entrance. 16175 ^T ^o CONTROL GENTFRS Front access type, provided by Marathon. 16410 r. vnms�Tr SERVIS� . Existing 277/480YV from local power company. 16500 LIGHTING TING a. General: good lighting levels imB o uiidings and on the site are required due to night t = 20 foot b. bevels: Interior s 30 foot candles (min.) Exterior candles (min.) R. I.D. lighting in the tipping area: H.I.D. C . Systems: High -bay floods in the yard areas. 6 SCHEDULE G SPECIAL WASTE Any waste meeting the description which follow is a "special waste ": a. Chemical waste ffom a laboratory. (This is limited to discarded containers of laboratory chemicals, lab equipment, lab clothing, debris from lab spills or cleanup and floor sweepings.) . b. Articles, equipment and clothing containing or contaminated with polychlorinated biphenyls (PCBs) . (Examples would be: PCB capacitors or transformers, gloves or aprons from draining operations, empty drums that formerly held PCBs, etc. C. PCB drainings and flushings removed from PCB articles and placed directly into transport containers. d. "Empty" containers of waste commercial products or chemicals. (This applies to a portable container which has been emptied, but which may hold residuals of the product or chemical. Examples of containers are: portable tanks, drums, barrels, cans, bags, liners, etc. A container shall be determined RCRA rrempty" according to the criteria specified at 40 C.F.R. s261.7*.) e. Asbestos containing waste from building demolition or cleaning. (This applies to asbestos - bearing waste insulation materials, such as wall board, wall spray coverings, pipe insulation, etc. f. Commercial products or chemicals: Off- specification, outdated, contaminated or banned. (This also includes products voluntarily removed from the market place by a manufacturer or distributor, in response to allegations of adverse health effects associated with product use.) g. Residue and debris from cleanup spills or releases of a single. chemical substance or commercial product or a single waste Which would otherwise qualify as a special waste. h. Infectious waste. (Any waste from a hospital, medical clinic, nursing home, medical practitioner, mortuary, taxidermist,. veterinarian, veterinary hospital, animal testing laboratory, university medical laboratory, etc., that is contaminated with or may be contaminated with an infectious agent that has the Potential of inducing infection.) i. Animal waste and parts from slaughterhouses or rendering plants. j. Waste produced by the mechanical processing of fruit, 16610 T.1rHTTNG 12ROTErTTON SYSTEM Installed in accordance with NFPA as required. An required by local code. 0 7 vegetables or grain. (This includes such wastes as rinds, hulls, husks, pods, shells, and chaff.) k. Pumpings from septic tanks used exclusively by dwelling units. (Single family homes duplexes, apartment buildings, hotels or motels.) 1. Sludge from a publicly owned sewage treatment plant serving primarily domestiq users. m.. Grease trap wastes from residences, restaurants, cafeterias not located at industrial facilities. n. Washwater wastes from commercial car washes. o. Washwater wastes from commercial laundries or laundromats. P_ Chemical- containing equipment removed from service. (Examples: Cathode ray tubes, batteries, fluorescent light tubes, etc.) q. Waste produced from the demolition or dismantling' of industrial process equipment or facilities contaminated with chemicals from the process. r. Closed cartridge filters from dry cleaning establishments. (Such filters being used to filter used dry - cleaning fluids or solids.) s. 'Containerized Waste. To include, but'not be limited to, a drug, barrel, portable tank, box or pail. t. Waste transported in a bulk tanker. U& Liquid Waste. For purposes of this paragraph, liquid waste means any waste material that is determined to be or contain "free liquid" by the paint filter test (EPA Method 9095)1 o f V* Sludge Waste. w. Waste from an industrial process. Waste which requires special handling. X0 Waste from a pollution control process. y. Residue or debris. From the cleanup of a spill or release of chemical substances, commercial products or wastes listed in paragraphs (a) through (x) of this definition. z. soil, Watar, Residue, or Debris. Articles which are contaminated from the cleanup of a site or facility formerly used for the generation, storage, treatment, recycling, reclamation, or disposal of wastes listed in paragraphs (s) through (y) of this definition. aa. Residential Wastes. Only if a rule issued pursuant to Chapter. 403, Florida Statutes as amended by Chapter 88 -130, Laws of Florida, or a change in law, statute, regulation, rule, code, ordinance, permit, or permit condition occurs after the Effective Date of this Agreement, requiring material additional management that differs from the requirements applicable on the Effective Date of this Agreement. bb. Waste Tires. SCHEDULE F MONROE COUNTY TRANSFER STATIONS ESTIMATED COST SCHEDULE UrwMngs Al. A2. 81,13Z C1, C2 Division One - General Requirements Prepare Construction Documents 50,000 Environmental Conaulling & Permltiing 100,000 Legal 70,000 Project Management Coordination 45,000 Division Two - Site Work Sub- audacs Investigation and Testing 17,000 Excavate and Fill 15,000 Site Drainage 21,000 Surlacing 86,000 Fences and Gates 66,000 Septic Tank/Collectlon Tank 90,000 Landscaping 50,000 Division Three - Concrete Cast to -place Concrete 162,000 Division Five - Metals Structural Steel Push Walls 105.000 Steel Stalrs, decks & rails 122.000 Division Seven - Thermal and M21sture Protection Waterproofing, Sealants 6 Caulking 30,000 elon Nine - Painting Division Ten - Soeclotties Fire Extingulshern Dlvlolon Eleven - Egulpmen t Compactors - M1000 (1 each alts) Skid Mounted Fuol Tanks (500 gaq Tractors & F.L loaders (1 each site) 01 Islon Thirteen - 82eclal Construction Building Aenovatlons Division Sixteen - Electrical Electrical Work TnTdt_ 170,000 14,000 600,000 33,000 500,000 142,000 60,000 2.500.000 g m w J W Y U z O Q H ac w LL U) z a pC F- Z O U w O x z O 2 w J v w U w O v7 w J Ci z a► ry VW +•q�r ccCC .. y � iV.• vr��•r V «,• •'n.: ..w...: .♦ '•�.. ,� ..fir 2 ..�.. : us SCHEDULE H MONROE COUNTY TRANSFER STATIONS STANDARDS FOR FULL ACCEPTANCE otice of Tes Contractor shall give County adequate notice of all testing to be conducted to enable Owner to witness such tests if so desired. Eauipment Acceptance Testing Contractor will test the function, dimensions and operation of all mechanical and electrical components and controls. The transfer stations shall he deemed to have satisfied acceptance testing criteria by demonstrating conformance to all applicable provisions of the contract. The Marathon equipment will not be accepted unless it performs as specified. Final test will include an entire system test, in which the system will be set up to simulate an average and peak demand on the compactors. Final testing will include the following: Capacity Verification Test The Marathon compactor will be loaded to peak rate for at least a four hour period. The systems must demonstrate the ability to handle this loading with no jams or failures attributable to the compactor or control system. Peak load capacities are as follows: Key Largo: 120 ton /day Long Key: 165 ton /day Cudioe Key: 65 ton /day System Reliability Test The system reliability test will be performed for a period of two (2) consecutive eight (8) hour days during which time the equipment must be able to handle 110% of peak load capacity to pass full acceptance. 10 SCHEDULE I PROJECT PROCEDURES MANUAL OUTLINE The Project Procedures Manual will be prepared and submitted to the County within ( ) days after notice -to- proceed. The purpose of the manual is to provide reference, guidance and clarification on Administrative and procedural matters concerning project implementation. The Project Procedures Manual will define, for example, correspondence procedures, project organization and reporting and the division of responsibility between the County and the Contractor, design review procedures, safety and security procedures. jobsite work rules and jobsite visitation procedures . The Project Procedures Manual will be reviewed and updated from time to time as required. In the event of a conflict between the Project Procedures Manual and the Design and Construction Agreement, the Design and Construction Agreement shall govern. 1.0 General A general section to include the purpose of this manual, definitions and miscellaneous introductory information. 2.0 Scope of Work This section will include a description of the work to be performed by and the services to he provided by the County and its consultants. if any, and by the Contractor. 3.0 Orgnni»ttion This section will include a description of the project organization and responsibilities of personnel of the County and its consultants. if any. and of the Contractor. Details of the project correspondence and communications procedures and reports will be included in this section. 4.0 Accounting and Administration A section detailing cost accounting procedures, billing procedures, cost substantiation and auditing and project reports. 5.0 Engineering and Design A section detailing engineering responsibilities, drawings and specification controls and distribution, and design review procedures. 6.0 Procurement A section detailing procurement responsibilities, purchasing procedures, formats and controls, expediting procedures. inspection procedures including factory testing, insurance and shipping procedures. 7.0 Construction A section detailing the field construction procedures including quality control procedures, field engineering controls. material handling and storage procedures, jobsite work rules, safety and security procedures and visitation procedures. 8.0 Cost and Scheduling A section detailing project cost controls and schululing proccAlures including monthly progress reporting and change order administration. 9.0 Startup and Acceptance Testing This section will include a description of the startup operations organizations and responsibilities. mechanical completion and system walkdown and punch listing procedures. startup and pre - operational testing procedures, and acceptance testing procedures. U SCHEDULE "F" TWORN STATEMEPIT UINDER ORDINANCE NO. 10 -1990 MONROE COUNTY FLORIDA ETHICS CLAUSE Waste Management Inc. of Florida warrants that he /it has not employed, retained or otherwise had act on his /its behalf any former County officer or employee in violation of Section 2 of Ordinance No. 10 -1990 or any County officer or employee in violation of Section 3 of Ordinance No. 10 -1990. For breach or violation of this provision the County may, in its discretion, terminate this contract without liability and may also, in its discretion, deduct from the contract or purchase price, or otherwise recover, the full amount of an fee, commission, percentage, gift, or consideration paid to the f r Bounty officer or employee. STATE OF Florida COUNTY OF Broward (signature) n J. Ray III,Secretary and Vice - No ember 8, 1993 Pres ident Subscribed and sworn to (or affirmed) before me on November 8, 1993 (date) by John J. Ray III (name of affiant). He /S+rt is personally known to me or has produced N/A (type of identification) as identification. Rosanne B. Odum NOTARY PUBLIC NO ROSANNE B. ODUM **= MY COMMISSION N CC 222295 EXPIRES Amato September 28, 1996 ",� q ;;h1 P ' BONDED THRU TROY FAUN INSURANCE INC. SCHEDULE 11 DRUG -FREE WORKPLACE FORM The undersigned vendor in accordance with Florida Statute 287.087 hereby certifies that: Waste Management Inc. of Florida (Name of Business) 1. Publish a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession, or use of a controlled substance is prohibited in the workplace and specifying the actions that will be taken against employees for violations of such prohibition. 2. Inform employees about the dangers of drug abuse in the workplace, the business's policy of maintaining a drug -free workplace, any available drug counseling, rehabilitation, and employee assistance programs, and the penalties that may be imposed upon employees for drug abuse violations. 3. Give each employee engaged in providing the commodities or contractual services that are under bid a copy of the statement specified in subsection (1). 4. In the statement specified in subsection (1), notify the employees that, as a condition of working on the commodities or contractual services that are under bid, the employee will abide by the terms of the statement and will notify the employer of any conviction of, or plea of guilty or nolo contendere to, any violation of Chapter 893 (Florida Statutes) or of any controlled substance law of the United States or any state, for a violation occuring in the workplace no later than five (5) days after such conviction. 5. Impose a sanction on, or require the satisfactory participation in a drug abuse assistance or rehabilitation program if such is available in the employee's community, or any employee who is so convicted. 6. Make a good faith effort to continue to maintain a drug -free workplace through implementation of this section. As the person authorized to s'gn the statement, I certify that this firm complies fully w�h#jthe above requirements. Bidders Signature Jo (n Ray III, Secretary and Vice President No mber 8, 1993 Date SCHEDULE " 1111 SWORN STATEMENT PURSUANT TO SECTION 287.133(3)(x), FLORIDA STATUTES. ON PUBLIC ENTITY CRIMES THIS FORM MUST BE SIGNED AND SWORN TO IN THE PRESENCE OF A NOTARY PUBLIC OR OTHER OFFICIAL AUTHORIZED TO ADMINISTER OATHS. This sworn statement is submitted to Monroe Crninty [print name of the public entity) by John J. Ray III [print individual's name and title) for W aste Management Inc. of Florida [print name of entity submitting sworn statement] whose business address is 500 Cypress Creek Road, West Suite 300 Ft. Lauderdale, FL 33309 and (if applicable) its Federal Employer Identification Number (FEIN) is 59- 1094518 (If the entity has no FEIN, include the Social Security Number of the individual signing this sworn statement: ,) I understand that a "public entity crime" as defined in Paragraph 287.133(1)(g), Florida Statutes, means a violation of any state or federal law by a person with respect to and directly related to the transaction of business with any public entity or with an agency or political subdivision of any other state or of the United States, including, but not limited to, any bid or contract for goods or services to he provided to any public entity or an agency or political subdivision of any other state or of the United States and involving antitrust, fraud, theft, bribery, collusion, racketeering, conspiracy, or material misrepresentation. I understand that "convicted" or "conviction" as defined in Paragraph 287.133(1)(b), Florida Statutes means a finding of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or state trial court of record relating to charges brought by indictment or information after July 1, 1989, as a result of a jury verdict, nonjury trial, or entry of a plea of guilty or nolo contenders. I understand that an "affiliate" as defined in Paragraph 287.133(1)(a), Florida Statutes means: 1. A predecessor or successor of a person convicted of a public entity crime; or 2. An entity under the control of any natural person who is active in the management of the entity and who has been convicted of a public entity crime. The term "affiliate" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or pooling of equipment or income among persons when not for fair market value under an arm's length agreement, shall be a prima facie case that one person controls another person. A person who knowingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate. I understand that a "person" as defined in Paragraph 287.133(1)(e), Florida Statutes, means any natural person or entity organized under the laws of any state or of the United States with the legal power to enter into a binding contract and which bids or applies to bid on contracts for the provision of goods or services let by a public entity, or which otherwise transacts or applies to transact business with a public entity. The term "person" includes those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in management of an entitv.1.2.3.4.5. Based on information and belief, the statement which I have marked below is true in relation te she entity submitting this sworn statement. [Indicate which statement applies.] X Neither the entity submitting this sworn statement, nor any of its officers, directors, esecatives, partners, shareholders, employees, members, or agents who active in the management of theensky, nor any affiliate of the entity has been charged with and convicted of a public entity crime subsegaemseJuly 1, 1989. The entity submitting this sworn statement, nor any of its officers, directors, executives, partners, shareholders, employees, members, or agents who are active in the management of the entity, noraaiiiate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, IM. The entity submitting this sworn statement, or one or more of its officers, directors, cumudves, partners, shareholders, employees, members, or agents who are active in the management of thee mkil r, or an affiliate of the entity has been charged with and convicted of a public entity crime subsequentoudu►y 1, 1989. However, there has been a subsequent proceeding before a Hearing Officer of the State efFherida, Division of Administrative Hearings and the Final Order entered by the Hearing Officer determid that it was not in the public interest to place the entity submitting this sworn statement on the convictdvmdor list. (Attach a copy of the final order) b. I UNDERSTAND THAT THE SUBMISSION OF THIS FORM TO THE CONTRACTING OFFICER FOR THE PUBLIC ENTITY IDENTIFIED ON PARAGRAPH I (ONE) ABOVE IS FOR THATPMLIC ENTITY ONLY AND, THATTHIS FORM IS VALID THROUGH DECEMBER 31 OF THE CALEMAR YEAR IN WHICH IT IS FILED. I ALSO UNDERSTAND THAT I AM REQUIRED TO INFORM THE PUBLIC ENTITY PRIOR TO ENTERING INTO A CONTRACT IN EXCESS OF THE THRESHOLD AMOUNT PROVIDED IN SECTION 287.017, FLORIDA &ATUTES FOR CATEGORY TWOOVANY CHANGE IN THE INFORMATION CONTAINED MI 1hkS FORM. Joy. t!asy ,gn III 1� Sec tar and Vice — President Sworn to and subscribed before me this 8 da� of vember � 9 3 Personally known OR Produced identification (Type of identification) Notary Public - State of My Commission expires (Printed typed or stamped commissioned name of notary public) Rosanne B. Odum a . ROSANNE 0.ODUM MY COMMISSION N CC 222295 EXPIRES . September 28 19% V",,PF °:' BONDED THRU TROY FAIN MURANCE. INC.