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07/20/1990 Agreement�H COUNT►' C N .o. V:5 U O '► •P ...' O U X7" "-, �sxcr>'• BRANCH OFFICE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 743 -9036 ;Dannp 1. k0lba9e CLERK OF THE CIRCUIT COURT MONROE COUNTY 500 WHITEHEAD STREET KEY WEST, FLORIDA 33040 TEL. (305) 294 -4641 BRANCH OFFICE P.O. BOX 379 PLANTATION KEY, FLORIDA 33070 TEL. (305) 652 -9253 M E M O R A N D U M To: Tom Brown, County Administrator From: Nancy Cohen, Deputy Clerk Date: August 1, 1990 Re: Waste Management Design and Construction Agreement As you know, on July 20, 1990 the Board of County Commissioners approved the Design and Construction Agreement between Monroe County, Florida and Waste Management Inc. of Florida. Attached hereto is one duplicate original and one Xerox copy of the above mentioned agreement, both of which have now been exe- cuted on behalf of Monroe County. The original should be given to your contractor and the Xerox copy kept in your own departmental files. Nancy Coh6l, Deputy Clerk Attachments cc: Charles Aguero, MSD Director Randy Ludacer, County Attorney Taryn Medina, Finance Director File 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 Definitions...................... ............................... 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 ....... ............................... 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 Information ... ............................... 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 August 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 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 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. IlActual Acceptance Datell 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. "Agreement" means this Design and Construction agreement between the Contractor and the County, including the Schedules and any written amendments to either. "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. I'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. seq " 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. IlContract Date" means the date of this Agreement. "Contractor" means Waste Management Inc. of Florida, a Florida corporation. "Cost Substantiationil 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. "Disposal 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 Waste Delivery Date" 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. "Extension Period" has the meaning specified in Section 4.03. "Facility" or "Facilities" 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 Price" 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" 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 seq ., 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 Document" 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. "Legal Holiday" means holidays observed by the County and as changed from time to time by the Board of County Commissioners. "Notice to Proceed" 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 "operating Plane means an operating plan approved by the County under Section 4.01(a). "Operations and Maintenance Agreement" 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. "Person" includes any individual, corporation, partnership, joint venture, association, joint -stock company, trust, unincorporated organization, or government or any agency of political subdivision thereof. "Process"" "Processed" or "Processing" means the unloading compacting, loading and transporting and disposal of Acceptable Waste. "Processed Waste" means Waste which has been Processed. "Project Managers means those persons designated by the County and Contractor respectively as set forth in Sections 2.03(c) and 2.03 (f) (4) . "Receiving Time" 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. "Scales" means those weighing facilities maintained by the County located at the entrance to the Facility Site. "Scheduled 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. "Site" 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. "Solid Wastell 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 the Contractor. "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. "Start -Up Date" means the date on which start -up commences, as specified in Section 4.01. "Tonle 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" means the loading, hauling and unloading of Acceptable Waste from the Facility to the Disposal Site. "Unacceptable Waste" 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 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, 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. "Waste'$ means Acceptable Waste. "Work" means the design, construction, start -up and acceptance testing of the Facility by the Contractor in accordance with this Agreement. "Work Changell 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 phase 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 shall proceed with all 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 period 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 (6) 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 of 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. II -9 (b) Facility Construction Adjustments for Uncontrollable Circumstances. If, 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 (2) Notwithstanding the requirements of Subsection (1) hereof, if the Contractor shall reasonably determine that an Emergency Work Change is required due to an Uncontrollable Circumstance and that failure to make such Emergency Work Change promptly will materially adversely affect the Facility Construction Price, the ability of the Facilities to meet the requirements of Schedule H, the Scheduled Acceptance Date, or the operating costs, the Operator's operating guarantees or any other provisions of the Operations and Maintenance Agreement, the Contractor shall, after notifying the County's Project Manager, proceed with such Emergency Work Change. The total cost for each Emergency Work Change, including all expenses incurred or paid, on which action is taken by the Contractor prior to notification of the County, shall not exceed $50,000 for any one event. The Contractor shall immediately notify the County of the action planned or taken under this subsection and the estimated cost of such action planned or taken. Any actions requiring expenditures in excess of $50,000 for any one event must first be approved in writing by the County. The Facility Construction Price and any other applicable provisions of this Agreement or the Operations and Maintenance Agreement shall be adjusted in accordance with the procedure provided in Section 2.06(a). (c) Contractor's Work Changes. The Contractor, with the County's approval in the case of a significant Work Change and only after prior written notice to the County, may make changes to the specifications set forth in Schedule A and make a Work Change, if such changes shall not (1) adversely affect the ability of the Contractor to comply with the requirements of Schedule H or (2) impair the quality of the Facility described in Schedule A. The Contractor's Work Changes shall not increase the Facility Construction Price. (d) Cost Substantiation. The Contractor shall provide the County with fully documented, verifiable and satisfactory Cost Substantiation for all Work Changes or delays other than Contractor Work Changes for review and approval by the County. II -11 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 conditions) 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 Contractor's 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 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 injury 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, Biohazardous, 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 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 form, 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 (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 the facility due to equipment be seventy -two (72) hours. storage of Acceptable Wastes at malfunction or breakdown shall 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 program, the generator or transporter of such waste shall be charged a handling and disposal surcharge as negotiated IV -10 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 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, or 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 sea 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 deficiency within the period of one (1) year after the 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 Date 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) (iv) (v) (vi) (vii) (viii) (ix) Data Processing and Media Coverage; Flood; Demolition and Increased Cost Reconstruction; Expediting Expense; Extra Expense; Agreed Amount Endorsement; Repair and Replacement Endorsement; of Sink Hole; 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 to 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. This 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 (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 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 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 which 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, Fl. 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 -8 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. As To Th County ATTEST:D OMAGE, Clerk MONROE T RIDA .��•� By: filer_ t dCourt and Mayor of Monroe County, Florida Ex- Officio Clerk. to the Board'of, County Commissioners of Monroe DATE: July 20, 1990 County, Florida Approved by Office of General Counsel as to Form and Legal Sufficiency: By: As To The Contractor WASTE AGEMENT INC. OF FLORIDA, a r'd Co ration By. ike Cor esm an Regional Operations V.P. � APPROVE AS TO F c Ohiv! A. OAL f �, L r 6/26/90 SCHEDULE A MONROE COUNTY TRANSFER STATIONS TECHNICAL SPECIFICATION DIVISION I GENERAL REQUIREMENTS 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 CLEARTHO Remove all above'and below grade obstructions that would hinder construction in areas to be occupied by Compaction Equipment and new paving where required. 02220 gXCAVATION AND BACKFILLING 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 hoppers, etc. 02270 SLOPE P AND EROSION CON'T'ROL Ground stabil.izi.ng blankets or fabric to be used. 1 IT • 1 • u _ Inlets: Drop Catch basins Manholes, covers, frames Headwalls Drainage ditches Rip -rap Concrete raceways Concrete flumes Pipe: Vitrified clay pipe Concrete Reinforced concrete PVC 02600 PAVING AND SURFACING standing vehicle and equipment pads: 6 inch, 3000 psi reinforced on a 411 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 rENCES AND GATES CHAIN LINK General: 6 high chainlink fence as indicated on the drawings. 1. Fabric: galvanized steel, 2 11 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 System: Provide collection tank and associated drain field as required for disposal of water from compactor and tipping floor. 2 02800 LANDSCAPING Grassing: Locally available sod Area description: Sodding: 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. DIVISION 3 CONCRETE 03100 CONCREJE FORMMU 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 CONSOM 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 pti /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: Bars: ASTM A615, grade 40 and 6o as noted on plans welded Wire Fabric Reinforcing: ASTM A185, galvanizing where indicated: ASTM Al23 Expansion joint filler: asphalt impregnated fiberboard, ASTM D1751. (Upper 1/2 inch hot poured compound ASTM D1190) Isolation joint fillers 1/8 inch wide neoprene Mixing, transport and placing: conform to ASTM Standard C94 -74a, Recommended Practice for Measuring, Mixing and Placing Concrete. 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 STRUCTURAL METAL FRAMING a. Steel shapes, bars and plates: ASTM A36 b. High strength bolts: ASTM A325 c. welding: by certified welders, rod or wire feed Roof deck: corrugated, galvanized conforming with ASTM A446 with coating equivalent to class 0-60 or G -90. b. Control platform: Galvanized metal floor grating. 05500 METAL FABRICATIONS 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 as shown. d. Pipe handrails: steel pipe, galvanized after fabrication/ DIVISION 7 THERMAL AND MOISTURE PROTEC'T'ION 07150 DAMP - PROOFING Vapor barrier: 6 mil polyethylene film under slabs on grade. DIVISION 8 DOORS, WINDOWS AND GLASS NOT USED 4 DIVISION 9 09900 FINISHES PAIN TING a. Clean and prepare all surfaces. b. Standard of quality: best grade by Glidden, DuPont, or Sherwin Williams. C. Exterior /interior ferrous metals: 3 coats d. Concrete: 3 coats DIVISION 10 SPECIALTIES NOT USED DIVISION 11 BQUXPMENT 11100 - COMPACTION E52UIPME T 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 390,006 lbs Max. pressure 2500 psi Motor 100 hp 11200 SKID MOUNTED FUEL TMK Install 500 gallon skid mounted fuel tank with manual dispenser as indicated on the drawing. / DIVISION 12 FURNISHINGS 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 NOT USED MECHANICAL 5 DIVISION 16 ELECTRICAL 16010 �'FNFRAT. PROVISIONS Metering: existing meter to be used 16050 BASIC MATE I_ALS AND METHODS Panelboards: Use existing panel boards, add breakers as required. Disconnects: heavy duty, NE 3R Fuses, UL listed as follows: Motors: K -5 Rigid steel conduit: ANSI c80.1 hot dipped galvanized, used in concrete, damp and wet locations, exposed where subject to physical damage. Intermediate metal conduits UL 1242 hot dipped galvanized, used interchangeably with rigid steel conduit. Electrical metallic tubing: ANSI 080.3 steel, used as permitted by applicable codes, except as limited by specifications for rigid and imc conduits. Conductors: copper, with aluminum permitted for larger sizes. Grounding: arresters ground illnbe connection to building steel. Lightning service entrance. 16175 MOTOR CONTROL CENTERS Front access type, provided by Marathon. 16410 L A SERV E Existing 277/480YV from local power company. 16500 LIGHTING a. General: good lighting levels both in the buildings and on the site are required due to night time operations. b. Levels: Interior = 30 foot candles (min.) Exterior = 20 foot candles (min.) c. Systems: High -bay H.I.D. lighting in the tipping area; H.I.D. floods in the yard areas. L 16610 rGn'"T�'� installed in accordance with NFPA as required. As required by local code- 0 7 �p 1> 4� f J J r! r m CO -I O m 0 m 0 C m 9 O z x O m n O c z z m m �v O z 0 z m a r m co CD a :.a .,� m CD (D � cp ? c� v, A� £ . •� � N C m � m � �p 1> 4� f J J r! r m CO -I O m 0 m 0 C m 9 O z x O m n O c z z m m �v O z 0 z m a r m co SCHEDULE C Bond No. PERFORMANCE AND PAYMENT BOND KNOW ALL MEN BY THESE PRESENTS That we, (hereinafter called the Principal, as Principal, and the a corporation duly organized under the laws of the State of (hereinafter called the Surety), as Surety, are held and firmly bound into (hereinafter called the Obligee), in the sum of ($ ), for the payment of which we, the said Principal and the said Surety, bind ourselves, our heirs, executors, administrator, successors and assigns, jointly and severally, firmly by these presents. THE CONDITIONS OF THIS OBLIGATION IS SUCH, that whereas the Principal entered into a certain Contract with the Obligee, dated , 19 for in accordance with the terms and conditions of said Contract, which is hereby referred to and made a part hereof as if fully set forth herein. NOW THEREFORE, if the above bounden Principal shall well and truly keep, do and perform each and every, all and singular, the matters and things in said Contract set forth and specified to be by said Principal kept, done and performed, at the times and in the manner in said Contract specified and shall pay all lawful claims of subcontractors, materialmen qr laborers for labor performed or materials furnished directly to the Principal, in the performance of said Contract, we agreeing and assenting that this bond shall be for the benefit of the Obligee, any sub- contractor, materialmen or laborer having a just claim, subject to the Obligee's priority, then this obligation shall be void; otherwise the same shall remain in full force and effect; it being expressly understood and agreed that the liability of the surety for any and all claims hereunder shall in no event exceed the penal amount of this obligation as herein stated, subject, however, to the following conditions: No suit or action shall be commenced hereunder by any claimant supplying labor or material on the Project: (a) After the expiration of one (1) year following the date on which Principal ceased work on said Contract, it being understood, however, that if any limitation embodied in this bond is prohibited by any law controlling the construction hereof such limitation shall be deemed to be amended so as to be equal to the minimum period of limitation permitted by such law. (b) Other than in a state court of competent jurisdiction in and for the county or other political subdivision of the state in which the Project, or any part thereof, is situated, or in the United States District court for the district in which the Project, or any part thereof, is situated, and not elsewhere. Any suite under this bond by the Obligee must be instituted before the expiration of two (2) years from the date on which final Acceptance Contract occurs. Sealed with our seals and dated this day of 19 By Z q EXHIBIT D LEASE AGREEMENT Between BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA and WASTE MANAGEMENT INC. OF FLORIDA Dated as of August 1, 1990 9 TABLE OF CONTENTS Section No. Title Page 1. Term 1 2. Consideration 1 3. Use of Premises 1 4. Compliance With Law 2 5. Sales and Personal Property Taxes 2 6. Surrender of Premises 2 7. Service Furnished by County 2 8. Inspection 2 9• Indemnification and Hold Harmless 2 10. Damage by Casualty 3 11. Liens 3 12. Assignment and Leasing 3 13. Insurance 4 14. Care of Premises 4 15. Defaults 5 16. Notices 6 17. Time 6 18. Severability 7 19• Entire Agreement and Modification 7 20. Quiet Enjoyment 7 21. Construction 7 22. Successors and Assigns 7 23. Third Party Beneficiaries 7 i d 07/17/90 LEASE AGREEMENT THIS LEASE AGREEMENT ( "Lease ") is executed and entered into as of the 1st day of August, 1990, by the BOARD OF COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA ( "COUNTY "), and WASTE MANAGEMENT INC. OF FLORIDA ( "COMPANY "), concerning the "Premises" which are more particularly described in Exhibit A to this Lease. The "Agreement" referred to herein refers to the Agreement between COUNTY and COMPANY for the Operations and Maintenance of the facilities to be renovated and operated by Company, as approved by County on the 20th day of July, 1990. COMPANY'S right of possession is subject to the terms, covenants and conditions herein set forth. COMPANY agrees as a material part of the consideration for this Lease to keep and perform each and all of the terms, covenants and conditions by it to be performed. In exchange for the promises and covenants contained herein and other good and valuable consideration, COUNTY leases to COMPANY and COMPANY takes from COUNTY the Premises, upon the following terms and conditions: 1. TERM The term of the Lease (hereinafter called "Term ") commences on August 1, 1990, and ends on the termination of the Agreement, unless sooner terminated in accordance with this Lease. Taking of possession of the Premises by COMPANY shall be conclusive non - rebuttable evidence that COMPANY accepts the Premises "as is ". In the event the Agreement is renewed, then this Lease shall be automatically renewed for a period concomitant with the term of the extension of the Agreement. 2. CONSIDERATION COMPANY shall pay to the COUNTY at the place hereinafter designated by the paragraph entitled "Notices ", or at such other place as the COUNTY may from time to time designate in writing, as consideration for the COUNTY entering into this Lease an amount equal to Ten Dollars ($10.00) per year, which is due and payable in advance on the commencement date of this Lease. 3. USE OF PREMISES COMPANY shall use and occupy Premises for the purpose of constructing and operating the facilities described in the Agreement. 1 4. COMPLIANCE WITH LAW COMPANY shall not use the Premises or permit anything to be done in or about the Premises which will in any way conflict with any law, statute, ordinance or governmental rule or regulation now in force or which may hereafter be enacted or promulgated. 5. SALES AND PERSONAL PROPERTY TAXES COMPANY agrees to pay, before delinquency, any and all taxes levied or assessed and which become payable during the term upon COMPANY's equipment, furniture, fixtures and other personal property located in the Premises. COMPANY and COUNTY acknowledge that, pursuant to the terms of Florida Statute 196.199, COMPANY is obligated to make certain intangible tax payments to the State of Florida Department of Revenue as a result of this Lease with the COUNTY. COMPANY agrees that all such recurring intangible personal property taxes shall be timely paid by COMPANY. In the event real property taxes are required to be paid; the COUNTY, as owner, shall be responsible for such payment. 6. SURRENDER OF PREMISES Upon the termination of the Term, by lapse of time or otherwise, COMPANY shall surrender the Premises to the COUNTY. Upon the termination by lapse of time or default, all fixtures or items of personalty and any or all portions of the improvements constructed on the Premises shall revert with the real property to the ownership of the COUNTY. COUNTY shall be obligated to pay for such fixtures, personalty and improvements in those instances and in such manner as is provided for by the Agreement. 7. SERVICE FURNISHED BY COUNTY COUNTY shall have no obligation to provide any services whatsoever to the Premises. COUNTY shall not interfere with or hinder COMPANY in COMPANY's operation of the Premises or in its efforts and attempts to secure and maintain utility services on the Premises. COMPANY shall have the sole and exclusive duty and responsibility to maintain the Premises during the Term. 8. INSPECTION COUNTY reserves the right during business hours to enter the Premises to inspect the same. Provided, however, prior to exercising its rights to inspect, COUNTY shall give reasonable notice to COMPANY. 9. INDEMNIFICATION AND HOLD HARMLESS The parties shall indemnify and hold each other harmless as provided by the Agreement. However, in addition to any additional covenants to indemnify the COMPANY in the Agreement, the COUNTY agrees that it shall protect, indemnify, and hold harmless, to the extent permitted by law, the COMPANY and the COMPANY's respective officers, members, employees and agents or the Parent of the 2 COMPANY or Corporate Subsidiaries of the COMPANY, against all liabilities, actions, damages, claims, demands, judgments, losses, costs, expenses, suits, or actions, and reasonable attorneys' fees, (however, this shall not create any contractual right to attorney fees on the part of third -party plaintiffs); and shall defend the COMPANY in any suit, including appeals, for personal injury to, or death, of any person or persons, or loss or damage to property arising out of any past, present or future ground or water contamination or pollution ( "Pollution ") found in, or near the Premises regardless of when such pollution is alleged to have occurred provided such Pollution is not the result of the COMPANY's negligent operation of the facility. (COMPANY further covenants with COUNTY that it shall not cause any Pollution on the Premises.) Pollution shall include, but is not limited to, the presence of any substance on the Premises which is in contravention of Chapter 403, Florida Statutes or any other Florida or federal laws, all as amended from time to time. 10. DAMAGE BY CASUALTY In the event the Premises or the Building are damaged by fire or other casualty COMPANY shall repair or restore the Premises and the improvements as constructed. 11. LIENS Notice is hereby given that the COUNTY shall not be liable for any work, labor or materials furnished or to be furnished upon credit to or for COMPANY or anyone claiming under COMPANY, and that no mechanic's or other liens for any such work, labor or materials shall attach to or affect the estate or interest of the COUNTY in and to the Premises. COMPANY shall not do or suffer anything to be done whereby the Premises may be encumbered by any mechanic's lien. In any mechanic's lien or notice or claim thereof is filed against the Premises with respect to work, labor or materials furnished or to be furnished to COMPANY, or anyone claiming under COMPANY, COMPANY shall within thirty (30) days from the date of filing, cause the same to be withdrawn, discharged or removed by deposit, bonding proceedings or otherwise. If COMPANY fails to do so, COUNTY may do so and may either terminate the Lease or pay any judgments recovered by such lienor. COMPANY shall immediately reimburse the COUNTY for all amounts paid pursuant to this paragraph, which amounts shall constitute an additional obligation of COMPANY under this Lease. 12. ASSIGNMENT AND LEASING COMPANY may not, without the prior written consent of the COUNTY, assign, transfer, mortgage, pledge, hypothecate or encumber this Lease, or any interest therein, or permit the use of the Premises by any party other than COMPANY. Consistent with applicable law regarding the assignment and subleasing of commercial leases, such consent shall not be unreasonably withheld by the COUNTY. Provided, however, COMPANY may assign or transfer this Lease to an affiliate of 3 r COMPANY or to another corporation resulting from a merger or acquisition with or by COMPANY without the consent of the COUNTY, so long as COMPANY retains a majority interest and control of the newly formed corporation. In the event COMPANY does not retain a majority interest in the newly formed corporation, then the COUNTY's consent to assignment of the Lease shall be required. COMPANY assignees shall become liable to the COUNTY or all obligations of COMPANY, without relieving COMPANY's liability, which liability shall remain unabated during the term of this Lease and any renewals thereof. 13. INSURANCE COMPANY shall at all times during the Term purchase, maintain and pay for insurance of the kind and in the amounts specified below: a. General Liability Insurance for all operations, including, but not limited to, Contractual, Products /Completed Operations, and Personal Injury. Such insurance will protect COUNTY, COMPANY, subcontractors, agents, and employees from claims for damages for personal injury, including accidental or wrongful death, as well as property damage which may arise from the operations under the Agreement and the installation to be performed by COMPANY, its subcontractors, or anyone directly or indirectly employed by COMPANY. The limits of liability will be no less than $20,000,000 per occurrence, but no less than $10,000,000 per occurrence and, as applicable, in the aggregate. COUNTY will be added as an additional named insured. b. The insurance policy shall provide and require the insuror to give the COUNTY at least twenty (20) days notice prior to cancellation. COMPANY shall not do any act or allow an omission to occur which will cause the policy of insurance to be voided. C. The full cost and expenses of the described insurance shall be paid by COMPANY. d. COMPANY shall provide the COUNTY with a certificate of insurance showing compliance of COMPANY with the terms and provisions herein contained. 14. CARE OF PREMISES COMPANY shall maintain the Premises and the fixtures and appurtenances therein in a neat and orderly fashion. The extent that COMPANY desires (at its election) to make repairs to the Premises, it shall do so at its own cost. Nothing herein shall require COMPANY to make any repairs, major or minor, to the Premises, or to make any capital expenditures on or for the benefit of the Premises. n COMPANY may, consistent with its use of the Premises, maintain and provide security of the Premises. COMPANY specifically understands and agrees that COUNTY has no obligation and has made no promise to alter, remodel, improve, repair, decorate, maintain or paint the Premises or any part thereof and that no representations respecting the condition of the Premises or the Building of which the Premises are a part had been made by the COUNTY except as specifically contained in this Lease. 15. DEFAULTS In the event the consideration, or any other money amounts owed, is not paid as herein provided and such default is not cured within five (5) days of COMPANY's receipt of notice of such default, or in the event: a. The premises are abandoned, deserted or vacated; or b. COMPANY shall fail to comply with a term, provision, or covenant of this Lease or the Agreement, and such default is not cured within sixty (60) days of notice to COMPANY from COUNTY of such default (or, in the - case of a default which is not capable of being cured within sixty (60) days, if COMPANY does not commence curative efforts within the sixty (60) day period and diligently pursue curative efforts thereafter); then in either such events, COUNTY shall have the option to proceed according to one or more of the following courses of action: i. Terminate this Lease, in which event COMPANY shall immediately surrender the Premises to the COUNTY, but if COMPANY shall fail to do so, COUNTY may, without further notice and without prejudice to any other remedy the COUNTY may have for possession, enter upon the Premises and expel or remove COMPANY and its effects without being liable to prosecution or any claim for damages therefore and without said entry affecting COUNTY's right to thereafter claim and collect all monies owed and to be owed under this Lease; ii. As agent of COMPANY, do whatever COMPANY is obligated to do by provision of this Lease and enter the Premises, without being liable to prosecution or any claims for damages therefore, in order to accomplish this purpose. 5 Pursuit by COUNTY of any of the foregoing causes of actions shall not constitute an election of remedies nor shall it preclude the pursuit of any other courses of action herein provided or any other remedies provided by law. 16. NOTICES All notices and demands which may or are required to be given by either party to the other shall be in writing. Notice shall be deemed to be given: (a) if personally delivered, when delivered; (b) if mailed, five (5) days after receipted delivery in the U.S. Mail; and (c) if delivered to Federal Express, or any other nationally recognized overnight carrier, one business day after delivery to such overnight carrier. Each party, by similar written notice given five (5) days in advance to the other parties in the aforesaid manner, may change the address to which notice may be sent. If to the COUNTY by U.S. Mail: County Administrator Monroe County 5825 West Jr. College Road Key West, Florida 33040 If to the COUNTY by hand delivery or overnight carrier: County Administrator Monroe County 5825 West Jr. College Road Key West, Florida 33040 If to the COMPANY by U.S. Mail, hand delivery or overnight carrier: James E. O'Connor, President Waste Management Inc. of Florida 500 Cypress Creek Road West, Suite 300 Ft. Lauderdale, FL 33309 T. Michael O'Brien, Region General Counsel Waste Management Inc. of Florida 500 Cypress Creek Road West, Suite 300 Ft. Lauderdale, FL 33309 17. TIME Time is of the essence of this Lease and each and all of its provisions. 6 18. SEVERABILITY If any clause or provision of this Lease is illegal, invalid or unenforceable under present or future laws effective during the Term, then and in that event, it is the intention of the parties that the remainder of this Lease, and the term covered thereby, shall not be affected. All rights, powers and privileges conferred by this Lease upon the parties shall be cumulative but not restricted to those given by law. 19. ENTIRE AGREEMENT AND MODIFICATION This Lease contains the entire agreement of the parties, and no representations, inducements, promises or agreements, oral or otherwise between the parties is not embodied in this instrument shall be of any force of effect. No amendment, modification or variation of this Lease or any of its terms or provisions shall be effectual, binding or valid unless and until the same is reduced to writing and executed by the parties. No failure of the COUNTY to exercise any power given the COUNTY by this instrument, or to insist upon strict compliance by COMPANY of any obligation hereunder, and no custom or practice of the parties at variance with the terms hereof shall constitute a waiver of the COUNTY's right to demand exact compliance with the terms of this Lease. 20. QUIET ENJOYMENT So long as COMPANY shall not be in default hereunder, COMPANY's use of the Premises shall not be disturbed or interfered with by the COUNTY, or by any person claiming by through or under the COUNTY and COMPANY shall be entitled to the quiet use and enjoyment of the Premises. 21. CONSTRUCTION This Lease shall be construed under the laws of the State of Florida. 22. SUCCESSORS AND ASSIGNS The covenants and conditions herein contained shall, subject to the provisions as to assignment, apply to and bind the heirs, successors, executors, administrators and assigns of the parties hereto. 23. THIRD PARTY BENEFICIARIES The parties agree that it is not intended by any of the provisions of this Agreement (a) that any contractor, subcontractor or any other person or third - party shall be deemed to be a third -party beneficiary pursuant to this Agreement; or (b) that anyone not a party to this Agreement shall be authorized to maintain an action pursuant to the terms of this Agreement. 7 Agreement. IN WITNESS WHEREOF, COUNTY and COMPANY have executed this ATTEST: Clerk Board of County Commissioners BY: MONROE COUNTY, FLORIDA BY: Chairman, Board of County Commissioners APPROVED AS TO FORM: , 19 County Attorney DATE: Signed, sealed and delivered in the presence of: WASTE MANAGEMENT INC. OF FLORIDA STATE OF FLORIDA COUNTY OF BY: Vice President SWORN to and subscribed freely and voluntarily for the purposes therein expressed before me by I Chairman of the Board of County Commissioners, known to me to be the person described in and who executed the foregoing, this day of , 19 WITNESS my hand and official seal in the County and State last aforesaid this day of , 19 NOTARY PUBLIC My Commission Expires: 8 STATE OF FLORIDA COUNTY OF SWORN to and subscribed freely and voluntarily for the purposes therein expressed before me by the of WASTE MANAGEMENT INC. OF FLORIDA, known to me to be the person described in and who executed the foregoing, this day of , 19 WITNESS my hand and official seal in the County and State last aforesaid this day of , 19 NOTARY PUBLIC My Commission Expires: 9 EXHIBIT A FACILITY LEGAL DESCRIPTIONS The Premises shall constitute the property outlined on Figures Al, A2, and A3, which, respectively, lies within the land described at Exhibits Aa, Ab, and Ac. 10 EXHIBIT Aa Cudjoe parcel 1 A tract of land in a part of Government Lot 8 Section 19, T. 668. R.28 E, on Cudjoe Key, Monroe County, Florida and being more particularly described by metes and bounds as follows: Commencing at Southeast Corner of Government Lot 8, said Corner also to be known as the Point of Beginning of the tract of land hereinafter described, bear West along the South Line of Government Lot 8, 415 feet, thence bear North 1050 feet, more or less, to the shoreline in an easterly direction, 415 feet, more of less to a point which is bearing North from the Point of beginning; thence bear South 1050 feet more of less, back to the Point of Beginning containing 10 acres more of less. Cudjoe parcel 2 A tract of land in Government Lot 8, Section 19, Township 66 South, Range 28 East, Cudjoe Key, Monroe County, Florida: Commencing at the southeast corner of the said Lot 8 and thence west along the south boundary line of the said Lot 8 a distance of 415 feet to the Point of beginning of the parcel of land herein being described: thence continue west along the said south line of the said lot 8 a distance of 478.31 feet to a point: thence north at a right angle to the previous course 871.60 feet more or less to a point on the mean high water line of a body of water; thence northeasterly along the said mean highwater line 500 feet more or less to a point bearing north and distant 1 feet more or less from the Point of beginning; thence south 1,000 feet more or less to the Point of Beginning, continuing 10.2 acres, more or less. Be it further. 11 F r r � I I I 0 P y K A A Z O 2 w cw N urN K AK n v 0 P uz o= nu �w 0 .i co Ac rz o I J A A x % Ati 2 a ox = N w 9 zv �I 1 x C n x A n x u A Ic RCYIKOMf C7 SITE PLAN CUOJOE KEY TRANSFER WEDDING I ASSOCIATES STATION FOR ARCHITECTS, INCORPORATED WASTE MANAGEMENT INC. 0 MONROE COUNTY, FLORIDA v iur�u •w ARM OF FLORIDA LAY x w nm 2 L , F O O moo, g� a I I m z 1 \ F r r � I I I 0 P y K A A Z O 2 w cw N urN K AK n v 0 P uz o= nu �w 0 .i co Ac rz o I J A A x % Ati 2 a ox = N w 9 zv �I 1 x C n x A n x u A Ic RCYIKOMf C7 SITE PLAN CUOJOE KEY TRANSFER WEDDING I ASSOCIATES STATION FOR ARCHITECTS, INCORPORATED WASTE MANAGEMENT INC. 0 MONROE COUNTY, FLORIDA v iur�u •w ARM OF FLORIDA LAY x w nm 2 L O O 0 m o ll (Zfm •wN�V _ A c� rN xy Zy M . A EXHIBIT Ab Long Key A tract of land in a part of Government Lot 2, Section 4, T 65S R. 35 E., and a part of Government Lot 3, Section 33, T. 64N., R.35 E., on Long Key, Monroe County, Florida, and being more particularly described by metes and bounds as follows: Commencing at the intersection of the West line of Section 6 and the northerly right of way line of U.S. Highway No. 1 bearing North along the West Line of Section 4 86.24 feet to the Point of beginning of the tract of land hereinafter described from said Point of beginning bear North 35 degrees and 26 minutes East, 1600 feet to a point of curve, said Curve having a central angle of 14 degrees and 49 minutes and a radius of 2964.93 feet; thence north - easterly along said curve deflecting to the right of a distance of 766.73 feet to a point of tangent; thence North 50 degrees and 15 minutes East for a distance for 380 feet, more or less, to the Southwest corner of the Property of the U.S. Government Radar Station; thence North 39 degrees and 45 minutes West along the West Property line of the Radar Station and through a part of Government Lot 3, Section 33 for a distance of 650 feet, more or less, to a point on the shoreline of the Bay of Florida; thence meander the shoreline of the Bay of Florida in a southwesterly direction for a distance of 2100 feet, more or less, to a point where said shoreline intersects the West Line of Section 4; thence South along the West Line of Section 4 100 feet, more of less, back to the Point of Beginning, containing 29.55 acres, more or less. 12 Aa-, a 0 )RF[ Tv-!J W S M'IfIOMf LONG KEY TRANSFER STATION WEDDING t ASSOCIATES o FOR ARCHITECTS, INCORPORATED 9� WASTE MANAGEMENT INC. �tomal+n�o MONROE COUNTY, FLORIDA rt. rtrta�. ��.Qa� rust EXHIBIT Ac Key Largo A part of the Southeast Quarter (SE 1/4) of the Northwest Quarter NE 1/4) of Section Ten (10), Township Sixty (60) South, Range Forty (40) East, Monroe County, Florida described as: COMMENCING at the Northeast corner of said Southeast Quarter (SE 1/4) of the Northwest Quarter (NE 1/4) of Section Ten (10) ; thence running at right angles westerly fifteen (15) chains; thence at right angles South ten (10) chains; thence at right angles East fifteen (15) chains, thence at right angles North ten (10) chains to the place of beginning, containing fifteen (15) acres. 13 I ,4--3 RAM SITE PLAN ai T LARGO TpjL4SM STATION MOIXG & ASSOCIATES HASTE KUAZEMW INC STE FOR 0 ARCHITECTS. INCORPORATED NOMM M.M. MONROE COUNTY TRANSFER STATIONS OPERATIONS AND MAINTENANCE AGREEMENT between MONROE COUNTY, FLORIDA and WASTE MANAGEMENT INC. OF FLORIDA Dated as of August 1, 1990 SCHEDULE E 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; Record Keeping and Reporting; Testing ................... 2.06. Acceptable Waste Services ... ............................... 2.07. Deliveries of Unacceptable, Biohazardous, Hazardous,....... andAtomic 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 SCHEDULE E OPERATIONS AND MAINTENANCE AGREEMENT THIS AGREEMENT dated as of August 1, 1990 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 S t a t e o f F l o r i d a, w i t h o f f i c e s a t 5825 West Jr. 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, Operator, in response to such request, has proposed to design, construct, start -up, and performance test of certain transfer facilities (the "Facility ") for transfer and disposition of Acceptable Waste. WHEREAS, Operator, has entered into a Design and Construction agreement with the County (the "Construction Contract ") pursuant to which it will design, construct, start -up and performance test the Facility; and WHEREAS, the Operator, in response to such proposal, proposed to operate and maintain the Facility; and WHEREAS, the County has selected the Operator to operate and maintain the Facility in reliance on its skill, expertise and past successful experience with such facilities using similar technology to process, transport and dispose of Acceptable Waste in return for the amounts as set forth herein; and WHEREAS, the County, in seeking a long -term solution to its solid waste disposal problems deem the proposal by the Operator the best solution for the economical and environmental treatment of solid waste in Monroe County. 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 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 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 Operations and Maintenance Agreement between the Operator and the County, including the Schedules and any written amendments to either. "Annual Reportil 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. "Annual Throughput Guarantee" means a minimum of 75,000 Tons of Acceptable Waste per Fiscal Year that is to be accepted at the Facilities by the Contractor, as it may be adjusted pursuant to the terms of this Agreement. IlAtomic 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. sea "Billing Period" means each calendar month in each Fiscal Year, except that (a) the first Billing Period shall begin on the date Acceptable Waste is first received at a Facility and shall continue to the last day of the month in which such date is determined pursuant to the Construction Contract and (b) the last Billing Period shall begin on the first day of the last month on the last year of the Agreement and shall end concurrently with the termination of the Agreement. I -1 " 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, 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 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 Regulation define by rule or regulation as biohazardous or infectious. "Business Dayll 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. "Change in Lawil 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. I -2 "Consulting Engineer" means the consulting engineers) 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. "Contractor" means Waste Management, Inc. of Florida, a Florida corporation. "Construction Contract" means the Design and Construction Agreement entered into between Waste Management, Inc. of Florida and the County as of the date of this Agreement. "Cost Substantiation" means, with respect to any cost, a certificate signed by the Operator's Project Manager, setting forth the amount of such costs, having attached thereto a statement from Contractor of the costs and charges 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 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 Operator's independent auditor certifying that such costs were reflected in the operator's audited annual financial statements. "County" means Monroe County, Florida. "County Board" means the governing Board of the County. I'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. IlDisposal Site's 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. "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 Sitel' (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 Wastes means any solid waste defined under the Resource Conversation and Recovery Act, ("RCRA") 42 U.S.C. Sec. 6901 et sec ., 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 I -3 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. "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. "Maximum Annual Throughput" means a maximum of 95,000 tons of Acceptable Waste received at the Facilities in any Fiscal year. "Operating Plane 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. 11 0peration and Disposal Feel' 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. "Price Index" means the Consumer Price Index (CPI) for Wage Earners and Clerical Workers in the Miami, Florida area index based upon the annual average computation from January 1 through December 31 of the previous year. "Process@', IlProcessed" or "Processing" means the unloading, compacting, loading and transporting and disposal of Acceptable Waste. "Processed Wastell means Waste which has been Processed. "Receiving Time" 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 in the Design and Construction Agreement. 11 Scales 11 means those weighing facilities maintained by the County located at the entrance to the Facility Site. "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 I -4 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 the Contractor. "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 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, 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, 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 I -5 Site except any permit, license, consent or authorization for the Contractor'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) 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 operations hereunder, provided that the condition was unknown to the Contractor and the County, or was discovered by the Contractor on or before the date ten (10) days preceding the Contract Date. "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) Upon the date upon which waste is first received at a Facility, 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 in an amount no less than the Annual Throughput Guarantee, and no greater than the Maximum Annual Throughput which amounts may be adjusted from time to time by mutual agreement of the Operator and 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. 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. (b) At least thirty (30) days prior to the Scheduled Acceptance Date or thirty (30) days prior to the anticipated Actual Acceptance Date 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 Contractor'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 shall establish and maintain safety procedures for the Facility in a manner consistent with applicable law and good safety practice. (b) 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) maintain the exterior and interior of the Facility in a clean and orderly fashion; and (iii) respond to the County's reasonable requests regarding special housekeeping efforts in and around the Facilities and Facility Sites. (c) Facility Equipment Services. 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. (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 Operator; 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 and upon prior notice to the Operator, 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) . II -2 (b) (1) Prior to and after the Actual Acceptance Date, 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, other than by landfilling, so that the County may utilize this data to prepare reports on the diversion of waste for the Florida Department of Environmental Regulation. (c) (1) An annual inspection program shall take place within 30 days of the end of each Fiscal Year. This program shall consist of an annual walk - around inspection and review of all Facility operating records for the Fiscal Year with the object of verifying that the Facility is in good repair. (2) The Operator shall, in coordination with the County's Consulting Engineer, prepare the Annual Report that will incorporate a summary of all contractually required records and data for the previous Fiscal Year, as well as a summary of the past year's operations. 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 the Consulting Engineer and the Operator shall pay all other costs of the Annual Report. (3) The County shall provide the Operator with copies of the Consulting Engineer's report. (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 sign a statement II -3 agreeing to hold Operator harmless in the event of an injury to such person or his or her property 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) The County's Delivery of Acceptable Waste. The County hereby guarantees to the Operator that after the commencement of interim Transfer and Disposal Services at any Facility, 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 composted by Operator at County's request shall be segregated by the delivering transporter. (c) Title to any waste removed from the Facilities by the Operator shall immediately, upon such removal, rest with the Operator. 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 Contractor shall be responsible for removing and transporting all Unacceptable Waste to the County's site adjacent to the 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 to accept any Unacceptable Waste which it discovered prior to any identifiable hauler thereof having left the II -4 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 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 7.04(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. 2.08 Receiving and Operating Hours. (a) The Operator 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. (b) The Operator may request and accept 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. (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 II -5 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 Contractor shall, on three (3) hours notice, extend the operating hours to accommodate the late arrival at the Facility of the County Franchise haulers. 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 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 times other than the County's required semi- annual tests. 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. II -6 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. 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 program, the generator or transporter of such waste shall be charged a handling and disposal surcharge as negotiated 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. II -7 ARTICLE III OPERATION FEES; PERFORMANCE GUARANTEES AND PENALTIES 3.01 Operations and Disposal Fee. The County shall pay to the Operator the Operations and Disposal Fee attached hereto as Schedule B, adjusted as provided in Schedule B, and in accordance with Sections 3.02 and 3.03 and the Operator shall be responsible for the operation and maintenance of the Facility during the term of this Agreement including all labor, material, replacement 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. 3.02 Operating and Disposal Fee 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. 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 fifteen (15) days following the receipt of the statement. 3.03 Annual Adjustments and Payments Yearly Reconciliation. In the event the County has not delivered or caused to be delivered at least 75,000 tons of Acceptable Waste by the end of any Fiscal Year or such tonnage on a pro -rated basis at the end of any partial Fiscal Year of operations, the County shall, within 30 days of the end of such Fiscal Year or partial fiscal year, remit to Contractor a sum equal to the then - current Operation and Disposal Fees times the amount of the difference between 75,000 and the number of tons of Acceptable Waste actually delivered or caused to be delivered by County to the Facilities during the Fiscal Year just ended. 3.04 Performance Guarantees. Operator shall operate the Facilities in a manner that they are capable of accepting and Processing between 75,000 and 95,000 tons of Acceptable Waste per year 3.05 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 III -1 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. 3.06 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 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 -2 ARTICLE IV FURTHER AGREEMENTS 4.01 Licenses, Approvals and Permits. On or before the Actual Acceptance Date, the Operator shall obtain 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 obtain 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. Such insurance shall be made effective as of a date mutually agreed upon by the County and the Operator and shall coincide with the date on which the Contractor is no longer required pursuant to the Construction Contract to insure the Facility. 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 Liability Insurance Coverage which shall contain the following minimum coverages and endorsements with other coverages and endorsements to be added by mutual agreement, if available, and deemed desirable: (i) Premises /operations; (ii) Contractual liability applicable to the indemnities in this Agreement; (iii) Products /Completed Operations Hazards; (iv) Independent Contractors; (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 the minimum required for Umbrella or Excess Liability Insurance set forth in Section 4.02 (b) (4) . IV -1 (2) Workers' Compensation in an amount as required by statute and Employers Liability in an amount no less than $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 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 the minimum required to support the purchase of Umbrella or Excess Liability Insurance set forth in Section 4.02(b)(4). Contractor 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 coverages 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 100% 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 coverages and endorsements, with the other coverages and endorsements to be added by mutual agreement: (i) Data Processing (ii) Flood; (iii) Demolition and Reconstruction; and media coverage; Increased Cost of IV -2 (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. (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 which crush, grind or compact Waste at the Facility in an amount equal to 100% 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 coverages and endorsements with other coverages and endorsement to be added by mutual agreement: (i) Demolition and Increased Cost of Reconstruction; (ii) Expediting Expense; IV -3 (iii) 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 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 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) 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 Contractor 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. IV -4 (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 insurance requirements. This action on the part of the County will mandate repayment of said insurance premiums by the Contractor. Failure of the Operator to take out and /or maintain any required insurance shall not relieve the Operator from any liability hereunder unless such insurance is not available in the general market in which case the County and the Operator shall mutually agree upon how the uninsured risk will be covered. Failure of the Contractor 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 IV -5 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). (g) With respect to the insurance referred to in Section 4. 02 (b) (6) , any losses payable shall be paid to the Operator 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. Notwithstanding the foregoing, however, the enactment by the Broward County, IV -6 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 not be a Change in Law. 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, Contractor and County shall enter into good faith negotiations for such transportation and disposal. IV -7 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(b)(1), 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. V -1 (2) In the event of any extension beyond the initial two (2) months 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 or similar industrial facilities, the Operator shall be liable for damages 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) hereof; (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. 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 V -2 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 and if the County has not purchased the improvements and equipment at the Facilities from Contractor pursuant to Section 6.05 of the Construction Contract, County shall pay Operator the market value of the improvements and equipment of the Facility as mutually agreed to by the County and the Contractor, based upon appropriate cost substantiation documentation. 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 its fair market price 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. V -3 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 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 Xbe payable promptly by Xthe 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 continue in effect until the fifth (5th) anniversary of the Actual Acceptance Date. This Agreement shall automatically renew up to five (5) 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 to the County. (b) Upon written notification to the County the Operator may subcontract or assign to or authorize performance of the Work. The Contractor 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 Contractor responsible for any failure to comply. 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. VI -1 6.04 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 or 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. (c) The County 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, claim, demands, judgments, losses, costs, expenses, suits, or actions and reasonable attorneys' fees, and shall defend the Operator VI -2 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 performance (or nonperformance) of the County's obligations under this Agreement. 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. (d) More fully described in Section 4.02 herein, 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 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 OR 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 Annual Operation and Disposal Fee 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 6.04(a) and 6.04(b)) 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. VI -3 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 party either directly or indirectly or (ii) are hereafter lawfully made party by a third party, or (iii) z available to the public through nc the receiving party, or (iv) am disclosed or made public under the 6.08 Representations (a) The County's Representations. the Operator that: obtained by the receiving from the disclosing party, available to the receiving re, or at any time became act or failure to act by matters required to be requirements of law. The County represents to VI -4 (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 by -laws 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. VI -5 (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. (5) The Operator warrants that its consultants, subconsultants, 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 County Buyout. Provided that the County has not previously purchased the improvements and equipment at the Facilities as set forth in Section 6.05 of the Construction Contract, upon any termination of this Agreement the County shall pay the Operator the Operator's net book value for the improvements and equipment at the Facilities, based on a ten year life, with a capital cost equal to the Facility Construction Price as set forth in Section 2.05 in the Design and Construction Contract. Payments shall be made in accordance with Section 5.07 hereof. 6.10 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. 6.11 Documents Pertaining to the Facility. All documents prepared by or for the Operator pertaining to the 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 retain and use copies thereof. 6.12 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: VI -6 As to the Operator: 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, 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 notice to the other party. 6.13 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. 6.14 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. 6.15 Headings. Captions and headings in this Agreement are for ease of reference only and do not constitute a part of this Agreement. 6.16 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. 6.17 Venue. Venue for all purposes arising out of this Agreement shall be in Monroe County, Florida, unless prohibited by law. 6.18 Counterparts. This Agreement may be executed in more than one counterpart, each of which shall be deemed to be an original. VI -7 6.19 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. 6.20 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. 6.21 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 6.22 Performance Bond. Contractor 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. 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: As To The County MONROE COUNTY, FLORIDA County Administrator and Ex- Officio Clerk to the Board of County Commissioners of Monroe County, Florida Approved by Office of General Counsel as to Form and Legal Sufficiency: By: ATTEST: By: Mayor of Monroe County, Florida As To The Contractor WASTE MANAGEMENT INC. OF FLORIDA, a Florida Corporation By: Mike Cordesman Regional Operations V.P. SCHEDULE A SPECIAL WASTE 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 (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 "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. 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, 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 domestic 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 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, commercial 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, requiring material additional management that differs from the requirements applicable on the Effective Date of this Agreement. bb. Waste Tires. SCHEDULE B Price for Acceptable Solid Waste, per Fiscal Year ton, delivered to the Facilities: (1) (2) 10/01/90 - 09/30/91 $59.00 $54.24 10/01/91 - 09/30/92 $67.00 $62.24 10/01/92 - 09/30/93 $75.00 $70.24 10/01/93 - 09/30/94 $83.00 $78.24 10/01/94 - 09/03/95 $90.00 $85.24 10/01/95 - 09/30/21 Annual rate to be increased or decreased by the percentage charge in the Consumer Price Index (CPI) for Wage Earners and Clerical Workers in the Miami, Florida area index based upon the annual average computation from January 1 through December 31 of the previous year. (1) Price per ton delivered to the Facilities if Operator retains ownership of the improvements and equipment at the Facilities. (2) Price per ton delivered to the Facilities upon the County exercising its option to purchase the improvements and equipment pursuant to Section 6.05 of the Design and Construction Agreement. SCHEDULE F MONROE COUNTY TRANSFER STATIONS ESTIMATED COST SCHEDULE Drawings Al, A2, 81, 82, C1, C2 Division One - General Reaulrements Prepare Construction Documents Environmental Consulting & Permitting Legal Project Management Coordination Subsurface Investigation and Testing Excavate and Fill Site Drainage Surfacing Fences and Gates Septic Tank/Collection Tank Landscaping Division Three - Concrete Cast In -place Concrete Division Five - Metals Structural Steel Push Walls Steel Stairs, decks & falls Division Seven - T e mal and M21sture Protection Waterproofing, Sealants & Caulking Divlaton Nine - Finishes Painting Division Ten - Speclaltles Fire Extinguishers Iv ©ion Eleve - Equ 1 ment Compactors - M1000 (1 each she) Skid Mounted Fuel Tanks (500 980 Tractors & F.E. loaders (1 each alte) Ply lelon Thl - Special ponstruction Building Renovations Division Sixteen • Electrical Electrical Work 50,000 100,000 70,000 45,000 17,000 15,000 21,000 86,000 66 000 90,000 50,000 1.62 , 000 105,000 122,000 30,000 120 14,000 600,000 35,000 500,000 142,000 60p000 TOTAL 2,500,000 SCHEDULE G SPECIAL WASTn 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 (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 "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. 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. (Ally 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, A vegetables or grain. (This includes such wastes as rinds, hulls, husks, pods, shells, and chaff.) k. Pumpings from septic tatL used exclusively by dwelling units. (Single family hones, duplexes, apartment btuildings, 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. C. Washwater wastes front 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 (Such being f used to filter used dry-cleaning eaningfluids o r solids.) S. Containerized waste. To include, but'not be limited to, a d 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 $Pill or release of chemical substances, co=arcial products Or wastes listed in paragraphs (s) through (x) of this definition. it . v 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, requiring material additional management that differs from the requirements applicable on the Effective Date of this Agreement. bb. Waste Tires. SCHEDULE H MONROE COUNTY TRANSFER STATIONS STANDARDS FOR FULL ACCEPTANCE Notice of Testing Contractor shall give County adequate notice of all testing to be conducted to enable Owner to witness such tests if so desired. Equipment Acceptance Testing Contractor will test the function, dimensions and operation of all mechanical and electrical components and controls. The transfer stations shall be 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 Cudjoe 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. �' 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 be provided by the County and its consultants, if any, and by the Contractor. 3.0 Organization 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 proceddres, 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 scheduling procedures 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. 07/02/90 SCHEDULE J STANDBY DISPOSAL AGREEMENT THIS AGREEMENT is made as of this 1st day of August, 1990 by and between WASTE MANAGEMENT INC. OF FLORIDA, a Florida corporation (the "Company ") and MONROE COUNTY, FLORIDA, a political subdivision and body politic of the State of Florida (the "County "). RECITALS WHEREAS, County and Company have entered into an Operations and Maintenance Agreement dated the same date as this Agreement (the "O & M Agreement ") pursuant to which the Company will provide waste transfer and disposal capabilities to the County; WHEREAS, the Company owns and operates a sanitary landfill located at 3000 Northwest 48th Street, Pompano Beach, Florida (the "Central Disposal Sanitary Landfill" or the "Landfill "); and WHEREAS, the County desires to reserve space at the Central Disposal Sanitary Landfill, and the Company is willing to provide Central Disposal Sanitary Landfill as a waste disposal site for the County under the terms and conditions contained herein. THEREFORE, in consideration of the foregoing and the covenants contained herein, the parties agree as follows: 1 AGREEMENTS 1. Definitions Unless otherwise defined herein, all capitalized terms shall have the same meanings as defined in the O & M Agreement. 2. Term The term of this Agreement shall commence on the date first written above and shall remain in effect for the longer of (a) so long as the O & M Agreement is in effect between County and Company, or (b) the term set forth in Section 3.1 hereof should the Company default under Section 5.02 of the O & M Agreement; in either case, unless otherwise terminated pursuant to Section 6 of this Agreement. 3. Company Agreements 3.1 Acceptance of Waste During the term of this Agreement, in the event the O & M Agreement is terminated by County due to a default of such agreement by Company under Section 5.02 of such agreement, the Company agrees to accept for disposal up to a maximum of 95,000 tons per year of Acceptable Waste delivered to the Landfill by or on behalf of the County in accordance with the terms and conditions of this Agreement. Subject to the terms of this Agreement, Company shall accept Acceptable Waste from County for a period of four (4) years from and after the date of termination of the O & M Agreement as described in the preceding sentence. The 2 County, with the concurrence of the Company, which concurrence shall not be unreasonably withheld, shall have the option of extending this Agreement for two (2) additional one (1) year periods provided that it has made substantial efforts and progress on a comprehensive plan to dispose of its solid waste upon the termination of this Agreement. The Company may, at its sole discretion, reject for landfilling and thereby exclude from the definition of Acceptable Waste any waste materials, the acceptance of which, in the Company's sole determination, would be in violation of the Landfill's operating permits or the acceptance of which, because of size, weight, volume or content would be disruptive to the ongoing business operations and maintenance of the Landfill. 3.2 Operating Expense The Company agrees to provide at its sole expense such equipment, material and personnel sufficient to operate and maintain the Landfill in accordance with sound business practices and in compliance with its operating permits from time to time in effect. 3.3 operating Hours The Company agrees to keep the Landfill open for receiving waste during ordinary business hours and days as shall be determined by the Company which, on a monthly basis, shall average at least forty (40) hours and five (5) days per week of operations. From time to time as changes occur and as holiday schedules are set, the Company shall notify County in writing of such changes and holidays. The Company shall use its best efforts to afford County a 3 minimum of thirty (30) days notice of any such changes and of holiday schedules. In addition, and to the extent permitted by law, the Company shall exercise reasonable efforts to keep the Landfill open for extended hours to receive Acceptable Waste from the County in order to accommodate emergency conditions or in order to accommodate special County requests made by reasonable advance notice to the Landfill. During extended hours of operation, the Company shall be entitled to charge a reasonable surcharge not to exceed fifteen percent (15 %) of the then - current disposal charges, for the special service. 3.4 Permits and Licenses The Company shall use such effort as it deems reasonable to seek to obtain and maintain in effect all operating permits and approvals that are from time to time required to operate the Landfill as a sanitary waste disposal facility for the disposal of non- hazardous waste (as that term is broadly interpreted or defined from time to time by applicable laws, rules and regulations). Notwithstanding the foregoing, if in the Company's sole discretion, the Company deems it commercially unreasonable to maintain required permits in effect, the Company may allow such permits to lapse and curtail or cease its landfilling operations accordingly. In the event of such a decision by the Company, the Company will (a) immediately notify the County of its decision to allow necessary permits to lapse, and (b) use reasonable efforts to assist the County 4 in locating an alternate disposal site. 3.5 Admittance of Waste Vehicles Pursuant to Section 4.2, all vehicles operated by or for the benefit of the County and intended to be covered by this Agreement shall bear a County Identifier. The Company shall not provide any vehicle bearing a County Identifier with access to the Landfill unless the vehicle has first been weighed at the weight scale located at the Landfill. The weights on such scale tickets shall be the weight for which County shall be charged. 4. County Agreements 4.1 Delivery of Waste Company shall accept a maximum of 95,000 tons of Acceptable Waste per year. County shall not be obligated to make deliveries of any minimum quantity of Acceptable Waste. County shall assure that all waste delivered to the Landfill pursuant to this Agreement is Acceptable Waste. Company shall have the right to detain and inspect the contents of all vehicles delivering waste to the Landfill. If waste other than Acceptable Waste is delivered to the Landfill pursuant to this Agreement by or on behalf of County, Company shall have the right to refuse or reject such waste, or if not detected prior to entering the Landfill, Company shall have the right to remove such waste and assure its proper disposal, all at County's expense. To the extent any such improper waste delivery is made by or for the benefit 5 of County, and such delivery disrupts the normal operations of the Landfill, County shall be liable to Company, and upon written demand of Company shall promptly reimburse Company, for all damages which Company incurs as a result of such delivery. 4.2 County Identifier County shall cause all vehicles which are intended to be covered by this Agreement and which are operated by or for the benefit of County to display an easily identifiable number, decal, sticker or symbol (a "County Identifier ") selected by County which readily identifies the vehicle as one operating under an agreement with County. It is understood by the parties that waste in vehicles not bearing such a County Identifier shall not be covered by this Agreement. 5. Landfill Fee 5.1 Fee The fees charged by Company hereunder shall be Company's gate rate as offered to the general public on the date waste is delivered. These fees shall be subject to change, at Company's sole discretion, as Company deems commercially reasonable or desirable and such changed fees shall become effective thirty (30) days following notice thereof to County. 5.2 Billing and Payment Company shall bill County monthly for all Acceptable Waste delivered to the Landfill by vehicles bearing a County Identifier. County shall pay such 51 invoices within thirty (30) days after receipt. Past due amounts shall bear interest at one and one -half percent (1k%) per month. All payments hereunder shall be applied first against accrued interest, if any, and the remainder shall be applied against principal. In the event of a dispute as to any item(s) in the billing or as to the total amount owed, County shall nevertheless timely pay the amount of the invoice but by doing so shall not be deemed to have waived its right to object to the amount thereafter. 6. Termination This Agreement may be terminated by either party upon the breach by or the failure of the other to perform any of its obligations hereunder. Termination shall be initiated by providing written notice of the breach or failure to perform, and shall become effective thirty (30) days after receipt of such notices unless the defect or failure to perform is remedied within such thirty (30) day period. In addition, this Agreement shall terminate automatically, without action by either party, (i) when the useful life of the Landfill is exhausted; or (ii) when the Landfill is no longer permitted, by virtue of the application of Federal, State or local law, ordinance or order, to receive Acceptable Waste; or (iii) upon the termination of the O & M Agreement for reasons other than Company's default pursuant to Section 5.02. 7 7. Representations and Warranties of County County represents and warrants to the Company as follows: (a) County is duly authorized and validly existing under the constitution and laws of the State of Florida, with full legal right, power and authority to enter into and perform its obligations under this Agreement; (b) This Agreement has been duly authorized, executed and delivered by County and constitutes a legal, valid and binding obligation of County, enforceable against County in accordance with its terms; (c) Neither the execution or delivery by County of this Agreement, nor the performance by County of its obligations in connection with the transactions contemplated hereby or the fulfillment by County of the terms or conditions hereof conflicts with, violates or results in a breach of any term or condition of any order, judgment or decree, or any agreement or instrument, to which County is a party or by which County or any of its properties or assets are bound, or constitutes a default thereunder; and (d) No approval, authorization, order, consent of, declaration, registration or filing with, any governmental authority or referendum of voters is required for the valid execution and delivery by County of this Agreement or the performance by County of its payment or other obligations hereunder except such as have been disclosed to the Company or its affiliates and have been duly obtained or made. 8 8. Representations and Warranties of the Company Company represents and warrants to County as follows: (a) It is duly organized and validly existing under the laws of the State of Florida, with full legal right, power and authority to enter into and perform its obligations under this Agreement; (b) It has duly authorized, executed and delivered this Agreement and this Agreement constitutes a legal, valid and binding obligation, enforceable against it in accordance with its terms; (c) Neither the execution or delivery of this Agreement, nor the performance by it or its obligations in connection with the transactions contemplated hereby or in fulfillment of the terms and conditions hereof conflicts with, violates or results in a breach of any constitution, law, or governmental regulation applicable to it, or conflicts with, violates, or results in a breach of any term or condition of any order, judgment or decree by which it or any of its properties or assets are bound, or constitutes a default thereunder; (d) No approval, authorization, order, consent of, declaration, registration or filing with, any governmental authority is required for the valid execution and delivery of this Agreement by it, except such as have been duly obtained or made; and (e) To the knowledge of the Company, the expected useful life of the Landfill is in excess of twenty (20) years from 9 the date hereof. 9. Miscellaneous (a) Further Assurances Company and County agree to execute and deliver any instruments and to perform any acts that may be necessary or reasonably requested in order to give full effect to this Agreement. (b) Notices Any notice or communication required or permitted hereunder shall be in writing and shall be effective when received or, if sent by certified or registered mail, postage prepaid, four (4) business days after mailing addressed as follows: If to Company: Waste Management Inc. of Florida 500 Cypress Creek Road, West Suite 300 Ft. Lauderdale, FL 33309 Attn: President 10 If to County: Thomas W. Brown Public Service Building Wing 2 Stock Island Key West, FL 33040 Changes in the respective addresses to which such notices may be directed may be made from time to time by any party by notice to the other parties. (c) Assignment; Successors and Assigns This Agreement shall be binding upon and shall inure to the benefit of Company and County, together with their respective successors and assigns. This Agreement may not be assigned or encumbered by either party without the written consent of the other party hereto, such consent not to be unreasonably withheld. (d) Waiver Unless otherwise specifically provided by the terms of this Agreement, no delay or failure to exercise a right resulting from any breach of this Agreement will impair such right or shall be construed to be a waiver thereof, but such right may be exercised from time to time and as often as may be deemed expedient. Any waiver must be in writing and signed by the party granting such waiver. If any covenant or agreement contained in this Agreement is breached by one party and thereafter waived by the other party hereto, such waiver will be limited to the particular breach so waived and will not be deemed to waive any other breach under this Agreement. 11 (e) Governing Law and Jurisdiction This Agreement shall be governed by and construed in accordance with the laws of the State of Florida. Company and County hereby agree to submit to service of process in, and to the jurisdiction of the courts of, the State of Florida in connection with any claim or controversy arising out of the interpretations, application or enforcement of this Agreement, or the transactions contemplated hereby. (f) Counterparts This Agreement may be executed in counterparts, all of which when so executed and delivered will together constitute one and the same instrument. (g) Entire Agreement; Amendment or Waiver This Agreement constitutes the entire agreement between the parties with respect to the matters contained herein and contains all of the terms and conditions thereof, all prior agreements and understandings whether oral or written having been merged herein. Neither this Agreement not any provision hereof may be changed, modified, amended or waived except by a written instrument signed by the party against whom enforcement of such change, modification, amendment or waiver is sought. (h) Severability The invalidity or unenforceability of any one or more provisions of this Agreement shall not affect the validity or enforceability of the remaining provisions of this Agreement. 12 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: MONROE COUNTY, FLORIDA By: County Administrator and Mayor of Monroe County, Florida Ex- Officio Clerk to the Board of County Commissioners of Monroe County, Florida Approved by Office of General Counsel as to Form and Legal Sufficiency: By: WASTE MANAGEMENT INC. OF FLORIDA, ATTEST: a Florida Corporation By: 13 SWORN STATEMENT UNDER SECTION 257.133(3)(u), 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, constru and operation of thr solid waste transfer stations. 2 This sworn statement is submitted by Waste Management Inc. of Florida [name of entity submitting sworn statement] whose business address is 500 Cypress Creek Road West, Fo rt 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: .) 3. My name is T. Michael O'Brien and my relationship to the [please 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), 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 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 Statutm 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 contendere. 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 2. An entity under the control of any natural person who is active in the managemew 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 cpntrblUng interest in another person, or a 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 •hat 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. 7. 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, emplovees, members, and agents who are active in management of an entity. 8. Based on information and belief, the statement which I have marked below is true in relation to the entity submitting this sworn statement. [Please Indicate which statement applies.] of g Neither the entity submitting this sworn statement, nor any officers, directors, executives, partners, shareholders, employees, members, or agents who are active in management of the entity, nor any affiliate of the entity have been charged with and convicted of a public entity crime subsequent to July 1, 1989. The entity submitting this sworn statement, or one or more of the officers, directors, executives, partners, shareholders, employees, members, or agents who are active in management of the entity, or an affiliate of the entity has been charged with and convicted of a public entity crime subsequent to July 1, 1989, AM [Please Indicate which additional statement applies.] There has been a proceeding concerning the conviction before a hearing officer of the State of Florida, Division of Administrative Hearings. The final order entered by the hearing officer did not place the person or affiliate on the convicted vendor list. [Please attach a copy of the anal order.] ' The person or affiliate was placed on the convicted vendor list. There has been a subsequent proceeding before a hearing officer of the State of Florida, Division of Administrative Hearings. The final order entered by the hearing officer determined that it was in the public'- interest to remove the person or affiliate from the convicted vendor list. [Please . attach a copy of the final order.] The 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 Services.] [sue ] Date: I ) h STATE OF' Florida COUNTY OF Browar PERSONALLY APPEARED BEFORE ME, the undersigned authority, �'. Mi chap 1 O'Brie who, after first being sworn by me, affnoed his/her signature [name of individual signing] In the space provided above on this 30th da of J uly . 1 �' `ar., Fuls�ie 4;v ^� L NOTARY PUBIdt; My commission expires: cr f6or #i, f Can'-'. ss" Exn'res June 6, 1" 74 L_ 89nded Thru Troy Fain - Insurance Inc. Form- PUR 7068 (Rev. 11/89)