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07/20/1990 Agreement0 �. l v t 1 ' 4` GpUNT� CO �� yJUM curo�f .G9a �•�q�'••.......... iZ�y E co." �Dannp I. Rotbage BRANCH OFFICE 3117 OVERSEAS HIGHWAY MARATHON, FLORIDA 33050 TEL. (305) 743 -9036 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) 852 -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 Operations and Maintenance Agreement As you know, on July 20, 1990 the Board of County Commissioners approved the Operations and Maintenance 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 departmen- tal files. i Nancy C n, Deputy Clerk Attachments cc: Charles Aguero, MSD Director Randy Ludacer, County Attorney Taryn Medina, Finance Director File MONROE COUNTY TRANSFER STATIONS OPERATIONS AND MAINTENANCE AGREEMENT between MONROE COUNTY, FLORIDA and WASTE MANAGEMENT INC. OF FLORIDA Dated as of August 1, 1990 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 ............ ............................... 1 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 ..................... a. ............................... 6.18. Counterparts ..............,. ............................... 6.19. Severability ................. ............................... 6.20. Special Condition ........... ............................... 6.21. Unless Stated Otherwise.... .............................. 6.22. Schedules----------------- __---------- - - - - -_ 6.23. Performance Bond .. ............................... ii OPERATIONS AND MAINTENANCE AGREEMENT THIS AGREEMENT dated as of 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: 1 . "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. IlAcceptance 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 Report' means the annual report relating to the inspection and recertification of the Facility, as set forth in Section 2.05(c). "Annual Throughput" means actual Tons of Acceptable Waste accepted at the Facilities in a Fiscal Year. "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. "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. sect "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 IlBiohazardous 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 Day" means each Monday, Tuesday, Wednesday, Thursday, Friday and Saturday which is not a legal Holiday. "Calendar Year" means the period of time beginning on January 1 and ending on December 31. "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. 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. "Daily Weight Records" means those records which are maintained on a daily basis relating to the County scales located at the entrance to the Facility Site. "Disposal Site" means a permitted disposal facility, which is not located in Monroe County, and which has been selected by the 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 Site (Sites) means the real property located in Monroe County and described in Schedule D of the Construction Contract upon which the Facilities are to be constructed. "Fiscal Year" means the period of time beginning on October 1 and ending on September 30 of the subsequent year. "Hazardous Waste" means any solid waste defined under the Resource Conversation and Recovery Act, ("RCRA") 42 U.S.C. Sec. 6901 et sea ., Chapter 403, Florida Statutes, or Chapter 27 of the Broward County Code of Regulations as hazardous waste. "Household Waste" and waste generated by "conditionally exempt small quantity generators" as those terms are defined under RCRA and Chapter 17 -730, Florida Administrative Code, shall not be considered Hazardous Waste for purposes of this 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. IfInitial 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. "Operation 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. 11 0perator" 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. IlPrice 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. "ProcessIl, "Processed$' or "Processing" means the unloading, compacting, loading and transporting and disposal of Acceptable Waste. "Processed Waste" 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. "Scales" 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. IlSpecial Wastell 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's 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 and media coverage; (ii) Flood; (iii) Demolition and Increased Cost of Reconstruction; 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 additional named Section 4.02(c), the interests of the insureds set forth in 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 seq 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) a available to the public through no the receiving party, or (iv) any 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, F1. 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. VI -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. ATTEST .'D ANNYU KOIEAGE, L 1,1,4,,,,,, -Y, U,- .� . C er _ of - t Circuit urt an3 Ex -Offic a Clerk to the Board of County Commissioners of Monroe County, Florida As To The County Clerk MONROE C Y F ORIDA By: Mayor of Monroe County, Florida DATE : July 20. 1990 Approved by Office of General Counsel as to Form and Legal Sufficiency: By: As To The Contractor WASTE MANAGEMENT INC. OF FLORIDA,. ATTE / a F o 4cor ration '4- By. i e sma n Regional Operations V.P. APPROVED AS TO F0fiW AND LEGAL SUFFICIENCI: Rv Attarney' ffrce 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. ' r 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 Fiscal Year 10/01/90 - 09/30/91 10/01/91 - 09/30/92 10/01/92 - 09/30/93 10/01/93 - 09/30/94 10/01/94 - 09/03/95 10/01/95 - 09/30/21 Price for Acceptable Solid Waste, per ton, delivered t o the Facilities: (1) (2) $59.00 $54.24 $67.00 $62.24 $75.00 $70.24 $83.00 $90.00 $78.24 $85.24 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. a i SWORN STATEMENT UNDER SECTION 287.133(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, construction and operation of t hree 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, Fort Lauderdale, FL 33309 and (if applicable) its Federal Employer Identification Number (FEIN) is 5 9 -10 9 4 518 (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 Coun sel /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, racketeerin& conspiracy, or material misrepresentation. S. I understand that "convicted' or 'conviction- as defined in Paragraph 287.133(1)(b) Florida Sraw — t _ 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 management of the entity and who has been convicted of a public entity crime. The term 'affiliate' in those officers, directors, executives, partners, shareholders, employees, members, and agents who are active in the management of an affiliate. The ownership by one person of shares constituting a controlling interest in another person, or 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 that one person controls another person. A person who knowingly enters into a joint venture with a person who has been convicted of a public entity crime in Florida during the preceding 36 months shall be considered an affiliate. 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, employees, members, and agents who are active in management of an entity. & 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.] _ZZ& 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. 7"he 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, gulp [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 final 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 Serrices.) [sue ] 'Date: IL &n STATE OF Florida COUNTY OF Bro ward PERSONALLY APPEARED BEFORE ME, the undersigned authority, ''t'. Michael O'Bri who after first being sworn by me, afflaed hislher signature [name of individual signing) in the space provided above ion this 30th day O July . 19 90 . My commission expir. es: l� drv� Pumc, v3te b FE or'�fzraj NOTARY PUBLIC; 16"3 Cor3sn c, L"..:75 June 6 a 1 y1 banded Thru Troy Fain - Insurance Inc. Fora PUR 7068 (Rev. 11/89)