Item D3M
C ounty of f Monroe
ELj » °o
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BOARD OF COUNTY COMMISSIONERS
/� r i � ��
Mayor George Neugent, District 2
The Florida. Ke Se
y
I
Mayor Pro Tern David Rice, District 4
Danny L. Kolhage, District I
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
County Commission Meeting
May 10, 2017
Agenda Item Number: D.3
Agenda Item Summary #2910
BULK ITEM: No DEPARTMENT: Solid Waste
TIME APPROXIMATE: STAFF CONTACT: Will Thompson (305) 292 -4432
No
AGENDA ITEM WORDING: Discussion and Direction on Status of Energy3 Waste Supply
Agreement
ITEM BACKGROUND: This agenda item is placeholder in the event that E3 does not cure the
events of default as described below. County staff will provide the Board with a current update at the
meeting and will seek direction from the Board on how to proceed with securing an interim
contractor in the event that the default is not cured.
The County entered into a Waste Supply and Processing Agreement (Agreement) with Energy3,
LLC (E3) on March 23, 2016. The Agreement provides for progress reports to be provided to the
County on a monthly basis and sets forth a scheduled date for completion of certain milestones. On
March 31, 2017, the "Construction Financing Close" Milestone was to be completed by E3. Upon
review of the documentation by county staff and the County's outside consultant, it was determined
that the documents provided by E3 were deficient. It was also been brought to the County's
attention, through the monthly progress reports, that the Chinook/Rodecs® technology was no
longer going to be used by E3 and rather an alternative technology that had not been vetted by the
County was to be used. In response to this information, the County, through the Solid Waste
Director, issued a letter of default to E3 on April 6, 2017 setting forth the Events of Default
(attached). The default letter was delivered and received by E3 on April 7 2017. As per the
contract, E3 has 30 days to cure the Event(s) of default. If E3 fails to cure the Events of default
within 30 days, the County may terminate the Agreement by notifying E3 in writing of its decision
to terminate and the effective date of the termination. On April 21, 2017, E3 provided a response
letter (attached) addressing their failure to supply the Chinook/Rodecs® technology as an event of
default and also requesting that a Meet and Confer session be scheduled as per the contract. In
response to E3's April 21, 2017 letter, the County Attorney issued the letter attached and also set a
Meet and Confer session on May 4 2017, which has been reschedule to May 15th.
PREVIOUS RELEVANT BOCC ACTION:
2/19/14: presented options for yard waste incineration demonstration. BOCC directed Staff to
proceed with Request for Proposals (RFP) for processing of yard waste.
5/21/14: Presented Climate Change Advisory Committee recommendations as to evaluation criteria
for the RFP
6/11/14: Approval to issue an RFP for processing of the County's Yard Waste
10/17/14: Approval to conduct further research and enter into negotiations with E3 for a proposed
gasification project.
12/10/14: Update on research of gasification technology and E3. BOCC directed staff to expedite a
contract for the interim processing of the yard waste.
2/18/15: Approval of an interim yard waste processing contract, to allow continuation of the due
diligence process
10/17/15: Brief update of status of the work being performed under the interim contract and ongoing
gasification project negotiations.
1/20/16: Presentation on progress status by E3, and staff update on the technical and financial due
diligence process for Energy3 gasification facility project. BOCC directed staff to prepare a no -risk
contract
2/23/17: Approval of Waste Supply and Processing Agreement with E3
CONTRACT /AGREEMENT CHANGES:
N/A
STAFF RECOMMENDATION:
DOCUMENTATION:
Default letter to E3
E3 response letter dated 4 21 17
E3 response letter 4 28 17
E3 Contract
FINANCIAL IMPACT:
Effective Date: N/A
Expiration Date:
Total Dollar Value of Contract:
Total Cost to County:
Current Year Portion:
Budgeted:
Source of Funds:
CPI:
Indirect Costs:
Estimated Ongoing Costs Not Included in above dollar amounts:
Revenue Producing: If yes, amount:
Grant:
County Match:
Insurance Required:
Additional Details:
N/A
REVIEWED BY:
Will Thompson
Completed
04/21/2017 8:56 AM
Christine Limbert
Completed
04/21/2017 5:08 PM
Budget and Finance
Completed
04/24/2017 8:35 AM
Maria Slavik
Completed
04/24/2017 9:18 AM
Kathy Peters
Completed
04/24/2017 12:53 PM
Board of County Commissioners
Pending
05/10/2017 10:00 AM
Will Thompson
Completed
05/04/2017 9:07 AM
County of Monroe
The Florida Ke 4 4
BOARD OF COUNTY COMMISSIONERS
April 6. 201 7
Fred Deluca
Encr�y 3, LLC
1997 Annapolis Exchange ParkNka %. Suite 300
Annapolis. MD ? 1401
fdelLlea i.:etler�y- three. corn
Sent via Certified Mail /Return Receipt
Requested X70160750{ 00083 1 1 73bj
7(} 160750000073 ; 2
- 1 - his letter shall coit stitute official notice to you. pursuant to Article 14, 1 (e) o1 the Waslc Supply
Agreement [Agreement, plat lNw EVents of ) Cfal -dt have occurred Within the meaning of the Agreement. file
1 gents of Default are described Ili ore specifically beIo\y.
First, Energy 3 has substjtLited ail alternative techit oIogy instead of the RodccsC': l ethnology specifically
regitired under The Agreement. 1 lie Agr'eemetit neither ctnitempIated nor perlltitted a substitution for the
Rodecs:, technoIou)v. Failure to deliver the Rodecs system constitutes an Event of Det lLIII w ithi11 the IlWalli11
ofthe :Agreement for yyhich the County nlav terminate the Agreement in accordance A %ith the requirements o
Article 143.
Next, Energy3 leas failed tw3 achieve coitstruction Finaticina Close b the deadline prescrihed in the
Milestone Schedule contained in ;Article 1 - (a) ofthe Agreement. T hat deadline was M arch 3 1. 201 Although
documents ywre provided by I-ncrgy3 in a purported attempt to establish Construction Finattcing Close. the
docultleltts were tar front SaLISlactory in accordance with indtlstnv' standards and comnu }n usage of the terns
financial close for this type of ltarisaction. - 1 - 11C docLlrtlentS submitted and reviewed included:
1. FquIpm p Llrehase and Installation Agreement executed on March 30. 2 0 1 7 between Energy 3. l.l.0
-- Ow n c I - ) and 1F.0 HoIdino Company. I.LC, an Ioyya limited liability cornpany [Installation A L?reement]_
'This document is a desium - build aueenlctlt and not a document custorrlarily used to establish that a closing
for project [construction] financ1ng has been achieved. Tile i III pet r"l attempt in lire recituls section of the
0
Installation Agreement to impose all obli4Imtion on 1 F C to tinancc construction ofthe Agreement docs not
�
substantiate that pro I InancInS has been Secured for the corlStruction.
?. March 17, 201 7 Letter to Al r. Robert Weerts of Green Energy cr Development [tic. from Joe Anderson of
F.nergy3 LLC. Thi; letter is clot a commitment for project finance but is simply an apparent agreetllent for
the sale of residual product [bit} -chard from the process. Such a letter. "hile it nlay be relied Llpoll b
l' Ina tic lers loo kIit for an II1coillC Str'eaIII io ioverage debt or eq uity fInancc is not Ill a11d oI rtseIf. a &C
tllstCllnarll�' Used to establish prolecl finance closing
3. Letter. dusted 1 {aril ? . ?017 mote: this date is in the future j_ to Joe Anderson and Fred DeLuca of E=.nergy3
from Mr. Ryatt Jepson. CF0 of I hurston Manufacturing. In Unaudited statelllcnts of his cill11 any's financial
vaIuallon and llet asset.. Mr. Jenson states. -- Illis letter 1s w coitrirm that we plun on inanciun the egwinnenI
required by' independence Encrg, being (ISed of] the i 0I1r0C COLIltty gasifica plant. .. his, letter is not
a dOclll lie lit %N filch substan are s that Coil structIon FInancItlg C Iose has occur red. F 1rst. it stales 111 at the
21LIt110Q)h.PIS bUt has ]lot Coltt III Iti to IInarlc'ino the equipment. Ttiext, despite the fact that construction
project finance will encompass mare than simply' "equipment' [such as design, site wort;. foundation,
tltilities and other infrastructure to coil, pletc the pl (j ect1. a non- ctlnlmittal plait to finuac•c only a portion of
the overall construction costs [equipment] does not satisfy the requirements of the Waste Supply Agreement
for Construction 1 inancing C lose.
4. Electronic Mail. dated February 3, 1 -f }17. from Suzanne Boroff of Florida Department of Livy ironm Packet Pg. 24
ProteCti(lll to Patrick E. Saty. 1 I 1111, dOCLI111CIlt is not it project finance document. Like the Docunlcil
described in parm,raph 1. above_ while this email message w hich calculated Renewable Elie run Credit
[RECs] and Recycling Credits, may be relied upon by f=inanciers looking 10r all income stream to iewratyte
debt or equity finance. it is not in al of itself a document customarily relied upon to establish pro Iecl
finance clo "11W.
In sum mar\. none of the document; produced by Lner+_y: Lame Close to sat isf ing appropriate industry Standards
for doc1,1111cmary evidence of construction finallce close for tills t\ pe of pro'ect. Accordingly. Lneray_3, has tailed
to satisfy a iii andatory MIIestone contained in the A,reement.
Accordin,Iy. vote are herehv notified that the County is invoking its right to terminate the Agreement it' knern
is not able to conclusively establish by the end of the Cure Period prov ided for in Article 14.1 that it has achieved
C onstructIon ], 1nane1 ng Ciose alid llas secured tIte Rodecs ( technoloun for installation at the Facility. The
County reserves all rights to claims and actions for damages for your breach oft Aorecmclll.
Res'ards.
Will 1 hompson
Director, Solid Waste and Recycling Services
ylnnroe County. Florida
Cc: Chuck Work {same address as ::l' . �2 [ I ,
Jeffrey C Paulson (Paulson Law Oft Ltd.. 4445 West ' 77` I ' Street. Suite 224 Fdina. %IN
.1 ; i. efl.:l
Rolliall [.jastesl. Monroe Comity' Administrator
Bob 5hillinger. Monwe Cooney Attol-ney
Rhonda f Monroe County
Paulson Law Office, Ltd.
4445 W. 77` Street
Suite 224
Edina, MN 55435 -5135
Telephone (952)835 -0055
Facsimile (952)835 -2984
e -mail jeffjcplaw @comcast.net
April 21, 2017
Mr. Will Thompson
Solid Waste Department
Monroe County
100 Simonton Street, Room 2 -216
Key West, FL 33040
Re: Energy 3, LLC
Waste Supply and Processing Agreement
Dear Mr. Thompson:
Energy 3, LLC ("E3 ") received the notice of default dated April 6, 2017 from
Monroe County with respect to the Waste Supply and Processing Agreement dated
March 23, 2016 between E3 and Monroe County ( "WSA "). Two reasons were given as a
basis for the alleged default: a change in the gasification equipment to be used for the
Facility, and a claim that E3 missed the March 31, 2017 Construction Financing
milestone. This letter addresses the first of those claims, and a separate response will be
provided with respect to the financing issue.
As previously explained, the WSA explicitly allows E3 to use gasification
equipment equivalent in capability to the equipment proposed by Chinook Sciences.
While E3's original bid was premised on the expectation that the Chinook equipment
would be available at economical cost and within the schedule contemplated by the
WSA, the bid documents are not incorporated into the WSA and have no independent
legal effect. They are superseded by the WSA itself. There is no provision of the WSA
which requires E3 to specifically and exclusively use Chinook equipment and it would
have been unwise for the County to include such a provision. In fact, E3 is only required
to build the "Facility", which in turn is defined to include only gasification technology,
not Chinook's technology. Section 5.5(a) requires only that the Facility be designed to
process the County's Yard Waste as required by the WSA, and Section 5.5(c) explicitly
provides that the County shall have "no right to approve the design, development,
construction or operation of the Facility ". Moreover, E3 is clearly an independent
Page 2
contractor with respect to County, as set forth in Section 5.20.3; the hallmark of an
independent contractor relationship is that the County has no authority to dictate the
means or methods by which the contractor is to accomplish the specific objects for which
it is hired. E3 was retained here to gasify the County's Yard Waste and other Acceptable
Waste and obtain a minimum amount of recycling credits in doing so. As long as E3
accomplishes this objective, the specific equipment, design and other Facility details are
not for the County to dictate.
As a result, the County's refusal to accept E3's substitution of IEC gasification
technology for the Chinook technology is in itself unjustified by the WSA and, by now
issuing an unjustified notice of default on that basis, the County has interfered with E3's
ability to complete financing and related development efforts, with attendant delays, in
violation of County's obligations under the WSA and its obligation to act in good faith.
By creating ambiguity about E3's ability to use the IEC technology, the County has also
prevented E3 from finalizing many of the agreements needed to make progress in
development.
In addition to the discussion above, E3 is also notifying the County that E3 is
declaring the unavailability of the Chinook equipment to be an Uncontrollable
Circumstance pursuant to Sections 5.15.1(a), 5.15.2 and 5.15.3 of the WSA. Section
5.15.1(a) defines an Uncontrollable Circumstance as a condition, including one affecting
subcontractors, that materially and adversely affects the ability of E3 to perform any
obligation under the WSA, which is beyond the reasonable control of E3.
E3 has been negotiating with Chinook since before the WSA was signed to
specifically define the terms and schedule for acquisition of the Pennsylvania facility and
its transport, modification and installation in Florida. The economics of the transaction
were a challenge, but the true barrier was Chinook's inability to perform its obligations
within the milestone schedule of the WSA. Sustained efforts by E3 to overcome these
barriers by narrowing Chinook's scope, among other things, were not sufficient to move
the scheduling to where it needed to be. When the County indicated its unwillingness to
accept a substitute technology, we returned to Chinook to again assess whether a suitable
schedule and cost could be arranged. As of about April 14, those efforts failed, and
Chinook remains unable to participate going forward on a schedule that is shorter than
18 -21 months at best, which is simply not acceptable under the WSA, and E3 has now
concluded that it simply will not be able to move forward with Chinook on any viable
terms, due to no fault or lack of effort on E3's part.
As a result, E3's proposal to substitute equivalent gasification technology is an
appropriate remedial action under Section 5.15.2; E3 notified the County months ago
about the difficulties with Chinook and our intention to mitigate the problem. Much like
the last sentence of Section 5.15.2 with respect to labor issues, we do not believe our
obligation to use due diligence in response to this Uncontrollable Circumstance requires
I' a J
us to pay Chinook exorbitant amounts or accept an unworkable schedule. Instead. we arc
soh the situation by acquisition of'a substitute equivalent technology. as permitted by
the WSA.
The Chinook issues, as multiplied by the County's unjustified actions in refusing
to accept an equivalent technology, have led to as much as 90-120 days ill delay in
meeting other milestones, including, difficulties in obtaining unconditional financing
commitments; no one makes unconditional commitments for financing when the contract
counterparty has indicated an unwillingncss to accept the proposed technology, or, worse,
as tlow undertaken by the County, a declaration of breach, however LinjIustified. As a
result. pursuant to Section 5.15.3 we are notif }ring the County that we will need an
exteIlsion of milestones of at least ninety (90) days to resolve those issues, commeIlcing
once the County withdraws its opposition to the technology change and confirms E3's
ability to move forward Nvith IEC to the satisfaction of financiers. Fven if' the County
adheres to its position as to 1'3's breach of' the WSA. E3 submits it is entitled to an
extended cure period pursuant to Scction 11.3.4. E3 believes it has not breached the
WSA, and the County's notice to the contrary is ineffective.
Tile WSA provides that in the case of disputes of this nature, the Parties shall first
meet and confer pursuant to Section 24. If no resolution occurs, then further relief may
be sought under the WSA or applicable law. Each Party is to per#orm its obligation
pending resolution. In the absence of resolution following the required meet -and- confer
amon4o the Parties, 133 suggests the parties engage in pre -suit mediation to resolve the
platter. In the absence of a resolution at that point, E3 will pursue its remedies in court to
recover the damages it has suffered and continues to Suffer.
Please ,Nithdraiv the County's notice of` default and confirm in writing that
substitution of the IEC technology is permitted either under the WSA directly or as a
result of Uncontrollable Circumstances. l'alling that, please identify representatives of
the County with «whom E3 can meet pursuant to Section 24 of the WSA.
Yours truly,
.lef'frcv Paulson
cc: C. LiEribert- Barrows
R. Haas
K. Wilson
R. Gastesi
13. Shillinger
* * Board Certified in City, County & Local Govt. Law
omlm��
Jeff Paulson
Paulson Law Office, Ltd.
4445 W. 77"'Street Suite 224
w iE
Mayor George Neugent, District 2
Mayor Pro Tern David Rice, District 4
Danny L. Kolhage, District I
Heather Carruthers, District 3
Sylvia J. Murphy, District 5
1,111 12' Street, Suite 408
Key West, FIL 33040
1305) 292-3470 — Phone
(305) 292-3516 — Fax
Re: Energy 3, LLC (E3): Waste Supply Agreement
- AnJ J J
YT WIRROW-
9 J 7 M.
Date shall occur when all • the following, enumerated items have been satisfied
• +Mw
For purposes of this Section,.... 50% Construction Progress" shall mean either (i) delivery of the
RODEC5@ equipment and electric generators to the Facility Site or (ii) payment by Contractor
of at least 50% of progress payments or consideration due, in the aggregate, under the
engineering, procurement and construction/general contract and equipment purchase
agreements for the RODEC50 equipment.
3MM=_,
[VOK i T IRT.W.UMOMM
terms intended to have no effeCt. Therefore, E3 is hard pressed to argue that the term "RODECSO"
appearing at three separate dispositive points in the Agreement, was just a "placeholder" for any
technology E3 would elect to install post-execution of the Agreement.
I See Dobbs v. Sea Hotel 56 So. 2d 341.
2 Excelsior Ins. Co. v. Ponoma Park Bar & Packa;e Store, 369 So- 2d 938.
N
management of the facility.
V 17
piping, separate combustion engines for the gas produced, transmission infrastructure etc. The earlier
contract specifications that name RODECS(D equipment as having to be delivered on site and that start
the RODECS I processing equipment are not in material conflict with the Contractor' rights under
Section 5.5(c) above. It is industry standard to spec particular equipment into bid specification or
Request for Proposals and such requirement often lives in consonance with the Design-builder's
exclusive control over design and the means and methods of construction.
Supporting this conclusion are two established principles of law. The first of these holds that in
interpreting competing contract provisions that appear to be in material conflict, specific language
always controls general language Accordingly, a specified technology platform [i.e. RODECS@]
earlier
t sta rt
r
�
included in the Agreement supersedes a contractor's general right of design and construction. Next,
where, as here, two separate provisions appear to be in conflict, a court willfavor an interpretation
5
that reads the provisions together, giving each its effect as a harmonious whole, PermittingE3to
design and construct the entire Facility utilizing only RODECS@ equipment satisfies this standard.
to complete financing and related development efforts
This assertion is incorrect. The Notice of Default was in two parts and both were contained
contemporaneously in the same document. For E3 to assert that the Notice ■ Default also caused its
a classic non sequitur. More so, to the extent E3 will alternatively assert that the Notice of Default will
impact its ability to satisfy the Construction Project Finance condition going forward, is a hardship of
E3's own making and no relief or excusable conduct is recognized under the Agreement-
4 SOUTH FLORIDA BEVERAGE CORPORATION A elignt - FfRAW r1r 409 So, So 490 . See eke STATE FARM FLORIDA
INSURANCE COMPANY, Appellant, v. FRED PHILLIPS AND CAROL PHILLIPS, Appellees, 134 So. 3d 505
5 336 the court reasoned that every
provision in a contract should be given meaning and effect and apparent inconsistent inconsistencies reconciled if possible.
r ■ N a �• I'l• .
[JER M i
r t i r. t ■ a r r r r ■ ■ ■ ■' ■...
/� ■ ■/ ■ r.
As /.... ■ `■ above definition of r / ■ ` Circumstances specifically exclude
situation where E3 does not obtain the license or patent to the technology. E3 cannot argue that they
are excused from the contractual obligation to use RODECS@ exclusively, even if failure to obtain the
license or a ut h ority t ■ use RCIDECS@ was through no fault of ■
Additionally, E3 has failed to comply with 5.15.3, which requires that in the event of any delay or
nonperformance resulting from Uncontrollable Circumstances, the Party suffering the event of
r ■ r - - a/ / r ` r ■ ■ + ■
notify the other Party in writing of the nature, cause, date of commencement thereof, and thz
2nticipated extent of any delay or interruption in performance.
EMM
Sincerel
R rt
a ert B. ShWillinger
Monroe County Attorney
AMY REAVILIN, CPA
CLERK OF CIRCUIT COURT &COMPTROLLER
MONROE couxrr, Fauna RECEMD
DATE: June 9, 2016
JUN 2 4 2016
MONROE COUNTY ATf®INl
TO: Rhonda Haag
Sustainability Program Manager
FROM: Cheryl Robertson Executive Aide to the Clerk of Court & Comptroller Ck
At the March 23, 2016 Board of County Commissioner's meeting the Board granted approval and
authorized execution of Item N8 Approval to enter into yard waste processing agreement with Energy 3,
LLC, for the County's Yard Waste to be processed at a gasification facility at a rate of $67.20 per ton.
Enclosed is a duplicate original of the above - mentioned for your handling. Should you have any questions,
please feel free to contact my office.
cc: County Attorney
Finance
File
500 Whitehead Street Suite 101, PO Box 1980, Key West, FL 33040 Phone: 305- 295 -3130 Fax: 305 - 295 -3663
3117 Overseas Highway, Marathon, FL 33050 Phone: 305 - 289 -6027 Fax: 305- 289 -6025
88820 Overseas Highway, Plantation Key, FL 33070 Phone: 852 -7145 Fax:
Packet Pg. 34
WASTE SUPPLY AND
PROCESSING AGREEMENT
This Waste Supply and Processing Agreement is entered into and effective the 23d day of
March, 2016 ( "Effective Date ") by and between Monroe County, a political subdivision of the
State of Florida whose address is 1100 Simonton Street, Key West, FL 33040 (as defined below,
"County ") through the Monroe County Board of County Commissioners and Energy3, LLC, a
Delaware limited liability company, whose corporate address is 1997 Annapolis Exchange
Parkway, Suite 300, Annapolis, MD 21401 (as defined below, "Contractor ").
RFCTTAT.0
WHEREAS, County collects Yard Waste and other waste materials from residents,
businesses and government properties within the County; and
WHEREAS, County and Contractor are party to an Interim Yard Waste Processing
Service Agreement dated February 18, 2015 pursuant to which Contractor receives Yard Waste
from County and transports and processes such Yard Waste (the "Interim Agreement "). The
Interim Agreement has a term of thirty (30) months, subject to extension by the Parties, and is
scheduled to expire November 18, 2017; and
WHEREAS, Contractor at its sole cost intends to develop and install a waste gasification
facility (the "Facility ") at a location outside Monroe County which will be used to process the
County's Yard Waste; and
WHEREAS, the County's only principal obligations under this agreement are to supply
all of its residential Yard Waste to the Contractor and pay for services as set forth in this
Agreement. The Parties agree that the County shall bear no financial responsibility for
development or installation of the Facility and all permitting and other services needed for
development and installation of the Facility will be solely the responsibility of the Contractor;
and
WHEREAS, County and Contractor wish to enter into this Agreement for delivery of
Yard Waste and other waste materials as agreed to by the Parties for Contractor to process.
NOW, THEREFORE, in consideration of the mutual promises, covenants and
agreements set forth below, and for other good and valuable consideration, the adequacy and
receipt of which are hereby acknowledged, County and Contractor agree as follows.
AGREEMENT
ARTICLE 1— DEFINITIONS; INTERPRETATION
1.1 Definitions Capitalized terms used in this Agreement shall have the meanings
given to them in this Section, unless otherwise expressly defined herein.
1.1.1 Acceptable Waste Yard Waste and Canal Waste. Other types of wastes
may be added as agreed to by the Contractor and the County as acceptable for
processing by the Contractor at the Facility and meeting the applicable specifications
of Exhibit F.
1.1.2 Acceptance or Accept. The receipt of physical custody by Contractor of
Acceptable Waste delivered by County at the applicable Point of Delivery.
1.1.3 Additional Performance Data The additional performance data
described in Exhibit I to this Agreement.
t.1.4 Administrator The administrator of the Solid Waste Department of the
County or any other Person designated by County to perform similar responsibilities.
1.1.5 Affiliate Means any person, corporation or other entity directly or
indirectly controlling or controlled by another person, corporation or other entity or
under direct or indirect common control with such person, corporation or other entity.
1.1.6 Agreement This written document and all exhibits, attachments, and
amendments hereto between County and Contractor, as it may be amended in
accordance with its terms.
1.1.7 Applicable Law Any law, rule, code, standard, regulation, requirement,
policy, consent decree, consent order, consent agreement, permit, guideline, action,
determination or order of, or legal entitlement issued by any Governmental Authority
having jurisdiction or the requirements of any professional or industry organization or
society in an applicable discipline which have been codified or incorporated by a
Governmental Authority, applicable from time to time to any activities associated
with the subject matter of this Agreement, including but not limited to design,
construction, permitting and operation of the Facility or any other transaction or
matter contemplated or services required under this Agreement, (including any of the
foregoing which concern health, safety, fire environmental protection, labor relations,
mitigation monitoring plans, building codes, non - discrimination and the payment of
prevailing wages). Applicable Law shall include Environmental Laws.
1.1.8 Approved Product Any substance resulting from the processing of the
Acceptable Waste and approved by County, including, but not limited to, all
substances listed in Exhibit D.
1.1.9 Back -Up Facility. A facility other than the Facility capable of
processing Acceptable Waste by composting, anaerobic digestion or other approved
means, which shall not include a landfill or incinerator, and which is first approved
by the County. To be approved, the Back -Up Facility shall produce substantially the
same type and amount of Recycling Credits as the Facility.
1.l.to Biological Waste Any substance that causes or has the capability of
causing disease or infection and which includes biomedical waste, diseased or dead
animals, and other wastes capable of transmitting pathogens to humans or animals,
including, but not limited to, substances regulated pursuant to the U. S. Solid Waste
7
Act, as amended by the Medical Waste Tracking Act of 1988, and related regulations
at 40 C.F.R. parts 22 and 259, and Fla. Stat. Section 381.0098 and related regulations
at F. A. C. Section 64E -16, and any similar federal, state or local laws.
1.1.11 Biomass Trees, tree parts (including limbs, tops, branches, bark and
stumps), woody residues, untreated lumber and wood scraps, sawdust, sanderdust,
chips, millings, shavings, silvicultural materials such as logging residues or slash and
overhead prunings and other plant matter or woody materials.
1.1.12 BOCC. Monroe County Board of County Commissioners.
1.1.13 Business Day Any day other than a Saturday or Sunday on which banks
in Florida are open for business.
1.1.14 C & D Waste Waste from construction and demolition of buildings and
other improvements and meeting the specifications of Exhibit F.
1.1.15 Canal Waste Biomass and other vegetative material dredged or collected
from canals or other waterways in the County, dewatered and otherwise meeting the
requirements set forth in Exhibit F.
1.1.16 Change in Law. Any of the following events or conditions which has a
material and adverse effect on the performance by the Parties of their respective
obligations under this Agreement (except for payment obligations): (i) the enactment,
adoption, promulgation, issuance, modification or written change in administrative or
judicial interpretation on or after the Commercial Operation Date of any federal, state
or local law, regulation, rule, requirement, guideline, ruling or ordinance, unless such
law, regulation, rule, requirement, ruling or ordinance was, on or prior to the
Commercial Operation Date, proposed and published in the federal or Florida
register; (ii) the order or judgment of any federal, state or local court, administrative
agency or other Governmental Authority, on or after the Commercial Operation Date,
to the extent such order or judgment is not the result of willful or negligent action,
error or omission or lack of reasonable diligence of the Contractor or of the County,
whichever is asserting the occurrence of a Change in Law; (iii) the denial of an
application for, delay in the review, issuance or renewal of, or suspension,
termination, interruption, imposition of a term, condition or requirement which is
more stringent or burdensome than prior precedent or practice in connection with the
issuance, renewal or failure of issuance or renewal on or after the Commercial
Operation Date of any Legal Entitlement to the extent that such denial, delay,
suspension, termination, interruption or imposition materially and adversely affects
the performance of this Agreement, if and to the extent that such denial, delay,
suspension, termination, interruption or imposition is not the result of willful or
negligent action, error or omission or a lack of reasonable diligence of the Contractor
or of the County, whichever is asserting the occurrence of a Change in Law.
A "Change in Law" shall not include (1) a change in any Applicable Law pertaining
to taxes, (2) a change in the law of any foreign country, (3) any change in law
3
(including the issuance of any Legal Entitlement, the enactment of any statute, or the
promulgation of any regulation) the terms and conditions of which do not impose
more stringent or burdensome requirements on the Facility or the Contractor than
those set forth in the obligations contained herein, or (4) any change in interpretation,
however stringent, by the DEP of the meaning of the terms and conditions of any
applicable Legal Entitlement issued by the DEP and in force as of the Commercial
Operation Date.
Only a change in law which renders the Contractor's performance under the contract
impossible as described in Section 15.1 shall excuse the Contractor from performance
under the terms of this Agreement.
1.1.17 Commercial Operation Date The date on which the Facility becomes
fully operational for the purposes of processing Yard Waste. For purposes of this
Agreement, the Commercial Operation Date shall occur when all of the following,
enumerated items have been satisfied (i) the Facility has received all Legal
Entitlements necessary for it to Process the Yard Waste in accordance with this
Agreement; (ii) the Facility is installed (subject to punch list items, which are only
nonmaterial items of construction of the Facility) and can demonstrate that it can
process Yard Waste and other wastes associated with no less than 90% of its design
capacity; (iii) the Facility has satisfactorily completed commissioning and
performance testing in accordance with the requirements of the equipment supply
agreements for the RODECSO processing equipment and electric generators, the
engineering, procurement and construction /general contract, and the requirements of
any engineer representing the Financiers or related warranty provider and any
Additional Performance Data are provided; (iv) Contractor has secured an obligation
through a contract or under Applicable Laws for the purchase of all of the excess
electric energy generated at the Facility ( "Power Purchase Agreement ") for a period
of time not less than five years from the Commercial Operation Date; (v) Contractor
has provided written notice to County of the satisfaction of these requirements and
copies of any commissioning or testing certificates; and (vi) County confirms the
Commercial Operation Date in writing. County shall have twenty (20) Business Days
to review Contractor's written notice and related documentation for compliance with
this Agreement and to issue a notice accepting Contractor's designation of the
proposed Commercial Operation Date; County shall not unreasonably withhold,
delay, or condition its confirmation, and failure of the County to provide a written
response either approving or disapproving the Contractor's designation of the
Commercial Operations Date within the twenty (20) Business Day period shall be
deemed an acceptance of the Contractor's designated Commercial Operation Date. If
the County disagrees with Contractor's designation, County shall provide written
notice of the reasons for its disagreement within the twenty (20) Business Day period.
A good faith dispute between the Parties as to whether Commercial Operation has
occurred, which extends beyond the COD Deadline (as defined in Section 2.4(a)),
shall not, in and of itself, constitute a failure by Contractor to achieve the COD
Deadline, as long as Contractor (i) Processes the Yard Waste at the Facility or a
Back -up Facility and the Facility or Back -up Facility is producing Recycling Credits
12
for Yard Waste being Processed of 75% or greater and (ii) the Contract Price is
adjusted as set forth in Section 3.1.1 commencing on the date that is 30 months after
the Effective Date.
The Parties agree that the Commercial Operation Date shall be reached within 30
months of execution of this Agreement, unless extended for Uncontrollable
Circumstances or by agreement of the Parties pursuant to Section 2.4(c).
1.1.18 Contract Year A period of time one calendar year in length and
commencing on October 1, except the first Contract Year and last Contract Year may
be a partial calendar year depending upon the Commercial Operation Date.
1.1.19 Contractor Energy3, LLC, a Delaware limited liability company, and its
successors and permitted assignees.
1.1.20 County Monroe County, a political subdivision of the State of Florida,
and its successors and permitted assignees.
1.1.21 County Representative The Person who is designated by the
Administrator to administer and monitor Contractor's performance under this
Agreement.
1.1.22 Delivery or Deliver The physical delivery by the County or its vendors
or agents of Acceptable Waste to the Point of Delivery and Contractor's Acceptance
of such Acceptable Waste.
1.1.23 DEP. The Florida Department of Environmental Protection and any
successor agency.
1.1.24 Disposal The final disposition of Residue by the Contractor, at the
Contractor's sole expense.
1.1.25 Electronic Waste Computer components such as monitors, keyboards,
drives and similar parts, televisions, and other consumer electronic waste as specified
in Exhibit F.
1.1.26 Encumbrance Any lien, mortgage, deed of trust, claim, caption, right to
purchase, use or possession, right of first offer or first refusal, lease, easement, right -
of -way, license, reservation, change, pledge, security, interest, hypothecation,
assignment, restriction or other encumbrance of any kind or nature whatsoever,
whether voluntary or involuntary, including any agreement to give any of the
foregoing, any conditional sale or other title retention agreement.
1.1.27 Environmental Attributes All current and future attributes of an
environmental or other nature (i) that are created or otherwise arise from the
Facility's generation of energy or fuels using any Acceptable Waste, or the product of
Acceptable Waste, as a source of energy or fuels, either in its own right or by
displacement of or contrast to generation of energy or fuels using other sources or
E
fuels, including but not limited to, tags, certificates, or similar products or rights
associated with "green" or "renewable" energy resources, or (ii) that are intended to
provide a means of complying with any environmental, pollution reduction, or
pollution mitigation statute, regulation, decree, judgment, order, program, agreement,
compact, or treaty, whether known or unknown at the time of this Agreement,
including allowances, certificates, emission credits, emission reduction credits,
effluent discharge reduction credits, mitigation credits, and all other credits, offsets,
green tags and all other tags, and all similar rights issued, recognized, created or
otherwise arising from, the processing or disposal of Yard Waste or other Acceptable
Waste by means other than incineration or landfill; the Facility; the use of Yard
Waste or other Acceptable Waste as a fuel or source of fuel created from the Yard
Waste or other Acceptable Waste; including all rights to report ownership of the
Environmental Attributes to any person or entity under Section 1605(b) of the Energy
Policy Act of 1992, Section 111 of the Clean Air Act, Section 165 of the Clean Air
Act, any state law or regulatory program, or otherwise. Environmental Attributes
include but shall not be limited to those that are created by regulations, statutes, or
other governmental action or voluntary agreement enacted before, on, or after the
Effective Date of this Agreement. Environmental Attributes include but shall not be
limited to those that can be used to (1) claim responsibility for the reduction or offset
of emissions or pollutants, (2) claim ownership of emission or pollutant reduction
rights, and (3) claim reduction or avoidance of emissions or pollutants. Emissions
and pollutants include, but are not limited to, acid rain precursors, carbon monoxide,
chlorinated hydrocarbons, greenhouse gases including but not limited to carbon
dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons, and sulfur
hexafluoride, mercury, metals, nitrogen oxides, nitrogen- oxygen compounds, ozone
precursors, particulate matter, sulfur dioxide, toxic air pollutants, other carbon and
sulfur compounds, and similar pollutants or contaminants of air, water or soil, as
defined or regulated under any governmental, regulatory or voluntary program,
including but not limited to any federal or state environmental law or regulation as it
now exists or as it may be amended, the Montreal Protocol on Substances that
Deplete the Ozone Layer, and the United Nations Framework Convention on Climate
Change and related Kyoto Protocol or other program, or any other international treaty
or agreement relating to protection of public health or welfare, the environment, or
natural resources. Notwithstanding, the requirements above, Recycling Credits issued
by the State of Florida shall inure solely to the benefit of the County.
1.1.28 Environmental Laws Any federal, state and local laws,
including statutes, regulations, rulings, orders, administrative interpretations, and
other governmental restrictions and requirements, relating to the production,
handling, release, discharge, treatment or disposal of air pollutants, process waste
water, Hazardous Substances, toxic substances or otherwise relating to the natural
environmental or natural resources (including soil, land surface waters, ground water,
ambient air, and plant and animal life), each as amended from time to time, including,
but not limited to: (i) the Clean Air Act, as amended, 42 U.S.C. § §7401 et seq.; (ii)
the Federal Water Pollution Control Act, as amended, 33 U.S.C. § §1251 et sec.; (iii)
the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. § §6901
et seq.; (iv) the Comprehensive Environmental Response, Compensation, and
C7
Liability Act of 1980, as amended, 15 U.S.C. § §2601 et seq.; (vi) Occupational
Safety and Health Act of 1970; (vii) the Emergency Planning and Community Right -
to -Know Act 42 U.S.C. § §11001 et sue.; (viii) the Superfund Amendment and
Reauthorization Act; and (viii) any other similar applicable federal, state or local law.
1.1.29 Environmental Liability Any costs, damages, liabilities, expenses,
obligations or other responsibility under Environmental Laws including those arising
from or relating to (i) any alleged violation of any Environmental Laws; (ii) fines,
penalties, judgments, awards, settlements, damages, losses and investigative, remedial
and inspection costs and expenses; (iii) financial responsibility for cleanup costs,
corrective action, removal, remediation or other response actions; and (iv) and any
other compliance, corrective or other remedial action necessary to comply with
Environmental Laws.
1.1.30 Facility The gasification facility to be designed, constructed and
operated by Contractor or its Affiliates, including waste receiving and handling
equipment, gasification chambers and equipment and related control equipment,
synthetic gas piping and combustion equipment, pollution control and processing
equipment, electrical generators and transmission facilities and related switches and
safety equipment, and all other related or incidental facilities and improvements at the
Facility Site.
1.1.31 Facility Site The real property owned or controlled by Contractor on
which the Facility is located, including any necessary access or transmission
easements.
1.1.32 Financier Any Person providing money or extending credit (including
any capital lease, sale, or sale - leaseback) directly (or through one of its subsidiaries)
to Contractor for (i) the construction, term or permanent financing of the Facility; or
(ii) working capital or other ordinary business requirements of Contractor or the
Facility. "Financier" shall not include common trade creditors of Contractor.
1.1.33 Food Waste Scraps and residue from food preparation and
consumption, including oils, greases and fats, meeting the specifications set forth in
Exhibit F.
1.1.34 Governmental Authority Any nation, government, state or other
political subdivision thereof, whether foreign or domestic, including, without
limitation, any municipality, township and county, and any entity exercising
executive, legislative, judicial, regulatory, or administrative functions of or pertaining
to government, including, without limitation, any corporation or any entity owned or
controlled by any of the foregoing
1.1.35 Interim Agreement The Interim Yard Waste Processing Agreement by
and between the Parties dated February 18, 2015, as amended from time to time, the
current version of which is attached herein as Exhibit H.
7
1.1.36 Legal Entitlements or Permits All material permits, licenses, approvals,
authorizations, consents, order, registration, and entitlements required under
Applicable Law to be obtained or maintained with respect to Contractor's operation
of the Facility, or for its performance of the other services set forth herein.
1.1.37 MSW Municipal solid waste, including paper, plastics, metals, organics,
and other materials generally found in residential and commercial garbage and waste,
excluding the items and materials listed in Exhibit F.
1.1.38 Organics Organic material including food scraps, food processing
residue, vegetative materials and soiled or unrecyclable paper.
1.1.39 Parties Contractor and County and their respective agents, authorized
representatives, successors and permitted assignees.
1.1.40 Party Either Contractor or County, and their respective agents,
authorized representatives, successors and permitted assignees.
1.1.41 Person Any individual, firm, company, association, organization,
partnership, corporation, trust, Governmental Authority, limited liability company or
other entity or organization.
1.1.42 Point of Delivery The location at any Transfer Station or other site
agreed to among the Parties for delivery of Acceptable Waste, at which Acceptable
Waste is physically delivered to Contractor, and Contractor accepts title and risk of
loss for such Acceptable Waste.
1.1.43 Process or Processing. The act of utilizing gasifying technology at the
Facility to convert Acceptable Waste into Approved Products.
1.1.44 Prohibited Material Any substance or material which (i) does not
constitute Acceptable Waste; (ii) constitutes Atomic Waste, Biological Waste or
Hazardous Waste; (iii) contains Hazardous Materials of a nature or in amounts that
exceed permissible levels for handling, transport or processing by Contractor under
any Environmental Laws; or (iv) the possession of which creates Environmental
Liability.
For purposes of this Agreement:
Atomic Waste shall mean any special nuclear or radioactive material, by- product
materials or other material, the acquisition, handling, use, transportation or disposal
of which is specifically regulated under the Atomic Energy Act of 1954, as
amended, 42 U.S.C. Sections 2011, et. seq. or other Environmental Laws.
Hazardous Substance shall mean collectively (i) any "hazardous substance" or
"pollutant or contaminant" as defined in Sections 101(14) and 101(33) of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Sec. 9601(4) & 9601(33); (ii) any element, compound, mixture, solution or substance
9
designated pursuant to Section 102 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. 9602; (iii) petroleum, including crude oil
or any fraction thereof; (iv) any hazardous waste having the characteristics identified
under or listed pursuant to the Solid Waste Disposal Act, as amended, 42 U.S.C. Sec.
6921 et seq.; (v) any material defined as "hazardous waste" pursuant to 40 C.F.R.
Parts 260 or 261; (vi) any solid waste defined as "hazardous waste" under the
Resource Conservation and Recovery Act, 42 U.S.C. Sections 6901, et "se (vii) any
materials, substances, or wastes regulated under, and any imminently hazardous
chemical substance or mixture for which the Administrator of the Environmental
Protection Agency has taken action pursuant to Section 7 of, the Toxic Substances
Control Act, 15 U.S.C. §2606 et seq.; (viii) Urea - formaldehyde Foam Insulation (ix)
asbestos and asbestos containing materials (whether friable or non - friable); (x) any
asbestos, polychlorinated biphenyl, radium or isomer of dioxin, or any material or
thing containing or composed of such substance or substances; or (xi) any material
now defined as "hazardous material" pursuant to 49 C.F.R. §171.8, (xii) any
substances or material regulated by the Hazardous Materials Transportation Act, 49
U.S.C. § §136, et sue., the Federal Insecticide, Fungicide and Rodenticide Act, 7
U.S.C. §§ 136, et se2., or the Emergency Planning and Community Right -to -Know
Act, 42 U.S.C. § §1001 et seq.; and (xiii) any material or substance defined as
"hazardous waste" pursuant to Applicable Laws in Florida; in each case as amended,
enforced or interpreted; provided, however, that any quantities of such materials in an
amount equal to or less than the amount otherwise permitted by Applicable Law to
be in wastes delivered to the Facility shall not constitute Hazardous Substances, and
that arsenic or copper contained within Canal Waste delivered to Contractor for
Processing shall not constitute Prohibited Materials.
1.1.45 Recycling Credits Credits issued or acknowledged by the DEP toward
County's recycling obligations pursuant to Fla. Stat. Section 403.706 (2013), and
related laws and implementing regulations of the DEP. "Recycling Credits" shall not
include sales tax exemptions or incentives pursuant to F. A. C. Section 62 -704 and
related statutes and laws.
1.1.46 Residue Ash, residue or other materials or substances remaining after
Processing of Acceptable Waste which is not an Approved Product, which shall be
disposed by the Contractor.
1.1.47 Service Area At any time during the Term, the geographic area in which
County collects residential Yard Waste or other applicable Acceptable Waste, as
amended. The service area as of the Effective Date includes unincorporated Monroe
County, the City of Marathon, the City of Key Colony, and the City of Layton. The
County will employ its best efforts to continue to maintain this service area, but it is
understood that the participation by any current City has the possibility of changing
during the Term of this Agreement.
1.1.48 Sewage Solids Sludge and other biological waste which has been treated
at waste water treatment or other similar facilities in the County and which complies
with all applicable requirements of the U.S. Environmental Protection Agency's
0
sewage solids resource recovery criteria for materials set forth in 40 C.F.R. Part 503,
as amended, and the other specifications set forth in Exhibit F.
1.1.49 Station Operator Any Person who operates or manages any of the
Transfer Stations for County.
1.1.50 Third -Party Waste Acceptable Waste originating within the County and
delivered to Contractor by a Person other than the County for Processing at the
Facility.
1.1.51 Transfer Stations The waste transfer facilities owned by County
including the current facilities at Cudjoe Key, Long Key and Key Largo, and any
additional locations as may be designated by County during the Term and acceptable
to Contractor.
1.1.52 Uncontrollable Circumstances An event or circumstances as described
in Section 5.15.
1.1.53 Yard Waste Horticultural waste, Biomass and other vegetative matter
including but not limited to, materials such as tree and shrub trimmings and pruning,
grass clippings, mulch, palm fronds, tree parts (including stumps, logs, branches,
bark, tree trunks, tree limbs), brush, landscaping, or silvicultural materials (including
logging or woody residues, slash, overhead prunings) wood, wood products
(including untreated lumber and wood scraps, sawdust, sanderdust, chips, millings,
shavings), and any other woody or plant material and otherwise meeting the
specifications in Exhibit F.
1.2 Interpretation
1.2.1 A reference to an exhibit, schedule, article, section or other provision shall be,
unless otherwise specified, a reference to exhibits, schedules, articles, sections or other
provisions of this Agreement, which exhibits and schedules are incorporated herein by reference.
1.2.2 Any reference in this Agreement to another agreement or document shall be
construed as a reference to that other agreement or document as the same may have been, or may
from time to time be, varied, amended, supplemented, substituted, novated, assigned or
otherwise transferred.
1.2.3 Any reference in this Agreement to "this Agreement," "herein," "hereof' or
"hereunder" shall be deemed to be a reference to this Agreement as a whole and not limited to
the particular article, section, exhibit, schedule, or provision in which the relevant reference
appears and to this Agreement as varied, amended, supplemented, substituted, novated, assigned
or otherwise transferred from time to time in accordance with the terms of this Agreement.
1.2.4 References to any Person shall, where appropriate, include any successors,
transferees and permitted assigns of such Person.
10
1.2.5 References to the term "includes" or "including" shall be deemed to mean
"includes, without limitation" or "including, without limitation ".
1.2.6 Unless the context of this Agreement otherwise requires, (i) words of any gender
include each other gender and (ii) words using the singular or plural number also include the
plural or singular number, respectively.
1.2.7 Whenever this Agreement refers to a number of days, such number shall refer to
calendar days unless Business Days are specified. In the event any action or payment is required
to be made by either Party upon a day which is not a Business Day, such action or payment shall
be deemed to fall due on the next following Business Day.
1.2.8 Unless the context otherwise requires, a reference to any Applicable Laws
includes any amendment, modification or successor thereto.
1.2.9 In the event of a conflict between the body of this Agreement and any exhibit or
schedule hereto, the body of this Agreement shall prevail.
1.2.10 Conflicts or discrepancies, errors or omissions in this Agreement or the various
documents delivered in connection with this Agreement will not be strictly construed against the
drafter; rather, they shall be resolved by applying the most reasonable interpretation under the
circumstances, giving full consideration to the intentions of the Parties at the time of contracting.
ARTICLE 2 — TERM
2.1 Term This Agreement shall be effective upon execution and delivery by
authorized representatives of both Parties and shall continue for a period ending upon the earlier
of the date that is (i) seventeen years and six months from the Effective Date; or (ii) fifteen (15)
years after the Commercial Operation Date, unless earlier terminated or extended in accordance
with its terms.
2.2 Non - Occurrence of Commercial Operation Date If the Commercial Operation
Date does not occur by the COD Deadline, and Contractor does not at that time demonstrate to
County that the Commercial Operation Date will occur within (3) three additional months,
County may elect to terminate this Agreement upon three (3) months' written notice to
Contractor.
2.3 Option to Extend Either Party shall have the option to propose to extend the
Term for an additional five (5) years provided that the proposing Party is not in default under the
provisions of this Agreement at the end of the initial Term. Written notice of the proposing
Party's intent to extend the Agreement shall be given no less than one year prior to the scheduled
expiration of the initial Term. The other Party shall have up to ninety (90) days to accept or
reject the extension. The Parties shall execute an amendment to this Agreement necessary to
reflect the extension. If the proposal is rejected, the Parties shall negotiate for up to another
ninety (90) days in good faith and if an agreement is reached shall execute any necessary
11
amendment to this Agreement. If the Parties cannot agree on an extension of the Term prior to its
expiration, then the initial Term shall expire.
2.4 Milestone Schedule and Interim Agreement
(a) The schedule for development and construction of the Facility is set forth below
( "Milestone Schedule "). The Contractor agrees to meet the Milestone Schedule, subject to
Uncontrollable Circumstances. Failure to meet any milestone in the Milestone Schedule may be
considered an Event of Default, which will give the County a right of termination in accordance
with Article 14. As between the Parties, Contractor is solely responsible for compliance with the
Milestone Schedule. Contractor's only remedy in the event that County interferes with
Contractor's ability to achieve one or more milestones is an equitable extension of time for
completion of the milestone. The Contractor may claim an equitable extension of time for
completing of a milestone under this provision if it provides timely notice to the County of the
occurrence of the event or circumstances giving rise to the delay in the same format provided in
Section 5.15.3 of this Agreement. Except as set forth in the preceding sentences, County will
incur no liability if the dates for completion of a milestone are not met by Contractor. Contractor
shall provide the County with a master project schedule using Microsoft Project, Primavera or
other similar scheduling software that includes the milestones below, permitting schedules,
purchase of major equipment, and other key development and construction dates (as amended
from time to time, the "Project Schedule "). Contractor agrees to provide documentation to
demonstrate to the County that the milestones set forth below have been achieved. If the
documentation includes confidential or proprietary information, the Contractor will provide
documentation with redacted information or other documentation as agreed to by the Parties.
The following are the dates by which the described Milestones are to be completed by
Contractor, in each case as they may be extended for the effect of any Uncontrollable
Circumstances or an applicable event of default by County.
Milestone
Approval /execution of Agreement
Facility Site Acquisition
Construction Financing Close
50% Construction Progress
Commercial Operation Date
Scheduled Date for Completion
March 23, 2016
October 1, 2016
March 31, 2017
May 30, 2018
September 23, 2018 or 30 months after
Effective Date if Effective Date is later than
March 23, 2016 (as it may be extended, the
"COD Deadline ")
For purposes of this Section, "Site Acquisition" shall mean the (i) closing by Contractor on a
purchase of the Facility Site, or (ii) execution by Contractor of a Lease or similar agreement
permitting Contractor to use the Facility Site for the Facility and exercise of any option in such
12
an agreement by Contractor or expiration of any provision that allows Contractor to withdraw
from such agreement. "50% Construction Progress" shall mean either (i) delivery of the
RODECs equipment and electric generators to the Facility Site or (ii) payment by Contractor of
at least 50% of progress payments or consideration due, in the aggregate, under the engineering,
procurement and construction /general contract and equipment purchase agreements for the
RODECs equipment.
(b) Contractor shall meet each Milestone scheduled prior to the Commercial
Operation Date. In the event Contractor fails to meet the date set for Site Acquisition or
Construction Financing Close, in each case as they may be extended, the failure shall be
considered a default under this Agreement by Contractor, and County may provide notice and
proceed as permitted under Article 14, subject to Contractor's and Financier's rights to cure. If
Contractor fails to meet the Construction Progress milestone, Contractor shall demonstrate to
County actual construction progress to date and Contractor's schedule for completing
construction and commissioning of the Facility by the COD Deadline.
(c) If at any time after the commencement of construction, Contractor believes it may
not be able to meet the COD Deadline, as extended, Contractor may request an extension of the
COD Deadline from County, providing documentation as to the status of completion to date, a
schedule for completion and commissioning of the Facility by the new proposed COD Deadline,
and such other assurances and information as County may reasonably request, including
assurances from any Financiers that Contractor is not in default under its obligations to
Financiers. County may elect to grant the requested extension, or any portion of the requested
extension, up to a maximum of 90 days.
(d) If Contractor fails to achieve the Commercial Operation Date by the COD
Deadline, as it may be extended, it shall be a default under this Agreement and County may
proceed in accordance with Article 14, subject only to the rights of Financiers or Section 2.2 Non-
occurrence of commercial operation date.
(e) County acknowledges that Contractor may use Acceptable Waste it receives pursuant
to the Interim Agreement for purposes of testing and commissioning the Facility prior to the
Commercial Operation Date. Upon the Commercial Operation Date, the Interim Agreement will
be terminated, except for obligations arising or accruing prior to the date of termination and
provisions expressly surviving termination, and this Agreement shall govern the obligations of
the Parties with respect to Acceptable Waste and other subjects covered by the Interim
Agreement.
ARTICLE 3 - COMPENSATION
3.1 Contractor Fees
3. 1.1 The County shall pay Contractor $67.20 for each ton of Yard Waste delivered
to and accepted by Contractor at the Points of Delivery starting Thirty (30) months
after execution of this Agreement or upon the Commercial Operation Date, whichever
occurs first. If the Commercial Operation Date does not occur before the date that is
13
30 months after the Effective Date, Contractor agrees that the rate per ton of Yard
Waste Accepted by Contractor under the Interim Agreement shall decrease to $67.20
per ton until the Commercial Operation Date. County and Contractor may by
agreement elect to Process other waste.
3.1.2 Funding for Contract Years 1 -15 after the Commercial Operation Date is
estimated as follows, which includes adjustments for estimated indexed increases as
set forth in Section 3.1.3 and Exhibit C:
Year 8
Year 1
Year 2
Year 3
° Year 4
Year 5 -
Year 6
Year 7
Yard Waste
$ 1,344,000
$ 1,377,600
$1,412,040
$1,447,341
$1,483,525
$1,520,613
$ 1,558,628
Haul out
13,378,873
15,057,345
16,777,779
18,541,223
20,348,754
$ 22,201,473
$ 24,100,509
Cumulative
$1,344,000
$2,721,600
$4,133,640
$5,580,981
$7,064,506
$8,585,118
10,143,746
Fee
Year 8
Year 9
Year 10
Year 11
Year 12
Year 13
Year 14
Year 15
$1,597,594
$1,637,533
$1,678,472
$1,720,434
$1,763,444
$1,807,531
$1,852,719
$ 1,899,037
11,741,340
13,378,873
15,057,345
16,777,779
18,541,223
20,348,754
$ 22,201,473
$ 24,100,509
These numbers represent estimated numbers only, and are based on estimated quantities
of Yard Waste materials and CPI maximum increases of 2.5% or 1.5 %, as applicable.
Actual numbers are expected to vary dependent on amounts of Acceptable Waste
Processed and CPI increases. Additional waste streams that may be provided by
agreement of the Parties, such as Canal Waste, will increase the amounts and fees beyond
those estimated above. These estimates are not meant as a minimum or maximum
amount to be guaranteed under this Agreement on behalf of either County or Contractor.
3.1.3 Beginning on the first date set forth in Exhibit C, the rate set forth in
Section 3.1.1 shall be adjusted each Contract Year thereafter to reflect (i) any annual
change in the U.S. Consumer Price Index (Unadjusted) All Urban Consumers; All
Items) for the 12 month period ending in December or (ii) 2.5% in Contract Years 1-
12 and 1.5% in Contract Years 13, 14, and 15, whichever is less.
3.3 Payment Sum The County shall pay the Contractor in current funds for the
Contractor's performance of this Agreement based on rates shown in Exhibit A as
adjusted pursuant to Section 3.1.3, and the payments shall, in the aggregate, along with
County's performance of its other obligations under this Agreement, be full consideration
for Contractor's performance of its obligations hereunder.
3.3.1 Payments Contractor shall be paid monthly. As a condition precedent for any
payment due under this Agreement, the Contractor shall submit on the 1st of each
month or the next Business Day if the 1st is not a Business Day, unless otherwise
agreed in writing by the County, an invoice to County requesting payment for
services rendered and reimbursable expenses due hereunder. The Contractor's invoice
shall describe with reasonable particularity the services rendered. The Contractor's
invoice shall be accompanied by such documentation or data in support of expenses
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for which payment is sought as the County may reasonably require. The form of
invoice and list of documentation set forth in Exhibit G is agreed to be acceptable in
this respect, if submitted in this form by Contractor, and complies with Florida
Statutes Section 218.72(8) as a "proper invoice ". County shall pay each invoice no
later than thirty (30) days after County's receipt of the invoice and in any event no
later than forty -five (45) days after Contractor provides waste removal services for
the applicable billing period, as provided by Fl. Stat. Section 218.73 (2)(b).
3.3.2 The Parties agree that Contractor is a "vendor" and the services provided by
Contractor under this Agreement represent a "purchase" by County in each case as
defined in Fl. Stat. Section 218.72 (10) and (9) (2014), respectively, and that the
services provided by Contractor are non - construction services subject to Fl. Stat.
Sections 218.73 and 218.74(4) (2014). The Parties agree that the rate of interest as
set forth in Fl. Stat. Section 218.74(4) will apply to late payments.
3.4 Fire Transfer At the time of execution of this Agreement, the County does not
use wire transfer, but if the County implements the use of wire transfer in the future,
County shall make payment of bills via wire transfer of funds or ACH if timely requested
in writing by Contractor, at Contractor's sole expense, and if the request contains
adequate payment information. County shall be entitled to conclusively presume,
without any liability whatsoever, that the payment information furnished by Contractor
(for example, name, financial institution, account numbers, and payee) is accurate. In no
event will County be required to pay any bill more than once when the invoice was first
paid in accordance with Contractor's instructions.
3.5 Budget
3.5.1 Prior to each Contract Year, County will seek approval in its annual budget
request from the BOCC for funds in an amount sufficient to pay Contractor in full for
services associated with the delivery of Yard Waste in estimated quantities plus
amounts contemplated for any other Additional Services or other expenses due or to
be due under this Agreement during the applicable fiscal year. Contractor
acknowledges that County's ability to pay Contractor amounts due under this
Agreement is subject to receipt of an approved appropriation by the BOCC of
amounts sufficient to make all such payments in the applicable fiscal year.
3.5.2 Although County's obligation to pay amounts to Contractor arising under this
Agreement may be subject to annual budget and appropriation approvals, the Parties
acknowledge and agree that the intent of this Agreement is for a longer term than one
year in accordance with Section 2.1, and that Contractor is relying on County's
performance of its payment and other obligations to construct the Facility and enter
into obligations with Financiers to fund development, construction and operation of
the Facility.
3.5.3 In the event County fails to budget or appropriate funds in any fiscal year
sufficient to pay Contractor under this Agreement, the failure shall be an immediate
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breach of this Agreement by County pursuant to Section 14.2(d), entitling Contractor
to remedies as provided in this Agreement, including termination of this Agreement.
3.5.4 In the event County appropriates funds to pay Contractor in any fiscal year
which is less than the amount described in Section 3.5.1, Contractor shall continue to
perform services under this Agreement until the appropriated funds are exhausted
provided County makes payments when due. Upon exhaustion of appropriated funds,
in the absence of other payment arrangements by County acceptable to Contractor,
Contractor shall be entitled to (i) suspend performance of any further services under
this Agreement, without terminating this Agreement, and without being deemed in
breach of this Agreement, until such time as additional funds are appropriated by
County or otherwise become available, as demonstrated to Contractor, sufficient to
pay for additional Contractor services or the Parties reach another agreement for
payment acceptable to Contractor and its Financiers, in their sole discretion; (ii)
terminate this Agreement; and, in either case, (iii) pursue any other rights and
remedies Contractor may have. In the event Contractor suspends performance under
this Agreement due to unavailability of funds for County to pay Contractor,
Contractor shall be entitled, as a condition precedent to its resumption of performance
hereunder, to receive compensation for (i) actual and reasonable costs incurred to
demobilize and remobilize, including costs incurred by subcontractors, and (ii)
incremental costs to handle any Yard Waste or other Acceptable Waste which
accumulated at the Transfer Stations or elsewhere during the period of suspension.
Contractor shall also be entitled during any period of suspension to acquire and use
waste materials at the Facility from other Persons to mitigate its damages, and, to the
extent such materials can only be obtained pursuant to longer term agreements which
affect the ability to subsequently take the full amount of Acceptable Waste required
of County, the Parties will negotiate an amendment or temporary modification of this
Agreement to accommodate such agreements prior to resumption of services.
3.5.5 In the event that sufficient funds are not appropriated to pay Contractor for
services to be performed in any fiscal year, and appropriated funds are exhausted
prior to the end of the applicable fiscal year, Contractor may also elect to continue to
perform its services hereunder for such period as it may determine, in its sole
discretion, and shall remain entitled to continue to receive delivery of all [Yard Waste
or other] Acceptable Waste from County pursuant to this Agreement. County agrees
to include in its next budget request to the BOCC an amount sufficient to pay
Contractor for all unpaid services provided by Contractor, plus applicable interest, in
addition to other amounts required by Section 3.5.1, but the County is not required to
increase taxes to meet this obligation.
3.5.6 County maintains a dedicated enterprise fund funded, in part, by a solid waste
assessment fee intended to cover all solid waste disposal costs of County. The special
assessment fee is set by the BOCC each year. The enterprise fund carries a balance
intended for use to meet County obligations in the event of emergencies or other
deficiencies between appropriated amounts and actual County solid waste obligations.
County agrees the enterprise fund will be available to pay Contractor in the event any
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appropriation by the BOCC for obligations to Contractor under this Agreement in a
Contract Year is insufficient, and County agrees to amend the budget using sufficient
fund balance as long as it does not conflict with fund balance policy. Any
appropriation will be subject to a budget amendment by the County in accordance
with F.S. 129.06. Contractor agrees that payments from the enterprise fund, if and to
the extent made by County, will be deemed by Contractor to be a cure of any default
resulting from a failure to otherwise appropriate sufficient funds for obligations to
Contractor in any Contract Year.
3.6 County Pricing Provisions
(a) In any Contract Year after the first three full Contract Years in which (i)
Contractor has sufficient income to meet operating expenses plus debt service and
coverage ratios, including required reserves, and (ii) Contractor's cumulative net
income during the Term is sufficient to provide its equity Financiers with a before -tax
rate of return in excess of 17%, and (iii) County's Delivery of Accepted Waste
exceeds 30,000 tons, County shall be entitled to receive a payment of up to $2.50 per
ton of Acceptable Waste delivered by County during the next Contract Year
(including Third -Party Waste), provided that the payment to County does not cause
either of the conditions in clauses (i) and (ii) to become untrue.
(b) Within 90 days after the end of the fourth full Contract Year and each Contract
Year thereafter in which , the amount of Acceptable Waste Accepted and Processed
by Contractor at the Facility during the prior Contract Year exceeded 30,000 tons,
Contractor shall provide County with a sworn certificate from an officer of Contractor
(i) attesting to whether Contractor had sufficient income to meet expenses and other
costs as set forth in clause (a)(i) above and, if so, (ii) identifying the before -tax equity
rate of return calculated in accordance with clause (a)(iii). The attestation and
accounting results and related calculations underlying the certificate shall be prepared
in accordance with Generally Accepted Accounting Principles, (GAAP) and similar
requirements set forth in Section 11.2.5.2. The certificate may be designated as
confidential and proprietary in accordance with this Agreement. County shall have
the right to review, but not to copy or otherwise take, the documents and information
underlying Contractor's calculation of rate of return at Contractor's offices subject to
the confidentiality requirements of this Agreement.
(c) After the fifth and tenth Contract Years, Contractor and County shall review the
rates paid to Contractor as set forth in Exhibit A for purposes of determining whether
adjustments to decrease the rates are possible within the investment and operating
constraints set forth in Section 3.6(a). No such adjustment shall be made without the
agreement of Contractor and its Financiers. If an adjustment to rates is made which
reduces the rates paid by County, a corresponding adjustment to the payment
described in Section 3.6(a) shall also be made.
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ARTICLE 4 — COUNTY SERVICES
4.1
County Collection, Delivery and Handling
4. 1.1 Collection of Yard Waste County will collect, or cause its agents and
contractors to collect, all residential Yard Waste created or generated within the
County Service Area at County's expense. While the County has no obligation to
provide a minimum amount of Yard Waste, the County shall not allow the diversion
of residential Yard Waste by its agents and contractors. County acknowledges that
Contractor's rights to receive all residential Yard Waste generated within the
County's Service Area during the Term is exclusive, subject only to interruption or
reduction as a result of a storm event as described in Section 5.14.
4.1.2 Collection/Delivery of other Acceptable Waste. Parties may, in
accordance with the terms of this Agreement, amend the Agreement to include other
forms of Acceptable Waste.
4.1.3 Third -Party Waste Contractor may contract with other Persons to
acquire and process Third -Party Waste and other waste streams on such terms as are
acceptable to Contractor, in its sole discretion, subject to Contractor's compliance
with all Applicable Laws and performance of its obligations to County under this
Agreement. Contractor shall weigh and document all such deliveries for reporting to
the County, DEP, and other applicable Governmental Authorities. Third -Party Waste
acquired and processed by Contractor in any Contract Year shall be credited toward
County's Delivery amounts for purposes of receiving a payment credit as set forth in
Section 3.6(a) for that Contract Year. County may also report and receive credit, as
applicable, for all such Third -Party Waste for purposes of its obligations pursuant to
Fl. Stat. Chapter 403.706 (2013) and related laws.
4.2
Delivery Obligations
(a) After the Commercial Operation Date, County shall be obligated to Deliver
residential Yard Waste and the Contractor shall be obligated to Accept all Yard
Waste collected from the Service Area to Contractor at the Points of Delivery for
Processing.
(b) County shall have the option to provide additional amounts of Acceptable Waste
to Contractor for processing at the Facility during the Term. Acceptable C &D Waste
may be offered at any time subject only to availability of capacity at the Facility to
process such materials. MSW may be offered subject to agreement of the Parties and
the ability of the Facility to Process such waste. Canal Waste may be offered only if
Contractor's analysis of the composition of the Canal Waste, including any arsenic or
copper in the Canal Waste, demonstrates that the Canal Waste can be processed
efficiently by the Facility without any incremental cost for compliance with
Environmental Laws which County is not willing to reimburse or increased risk of
Environmental Liability for Contractor.
(c) To exercise its option to provide Delivery of additional Acceptable Waste,
County shall provide written notice to Contractor of (i) the proposed type of waste
and proposed Delivery Point(s); (ii) amounts per Contract Year expected to be
Delivered of each type of waste; and (iii) the length of time during which County is
willing to commit to Deliver the waste. Subject to Facility capacity and design,
including any existing contracts which Contractor may have with other waste
suppliers for use of the Facility, the Parties will use commercially reasonable efforts
to negotiate amendments to this Agreement reflecting County's request.
(d) Fees for Acceptance by Contractor of other Acceptable Waste in addition to Yard
Waste shall be as set forth in this Agreement or as negotiated by the Parties at the
time of acceptance of other waste if not provided for in this Agreement.
(e) Canal Waste, Food Waste and Sewage Solids may be better suited to processing
in an anaerobic digester or similar facilities located in the County to minimize
transportation costs and because of inefficiencies in processing some of such waste in
the Facility. The Parties agree to discuss the means for disposal and pricing of such
waste at the lowest cost to the County. If a digester or other facility is proposed for
use to process some or all of such waste, this Agreement may be amended to treat
such a facility as Additional Services pursuant to Article 8, but the County is under no
obligation to contract with Contractor for these services.
4.3 Delivery; Acceptance County or its agents and contractors will transport and
deliver Acceptable Waste to a Point of Delivery at any Transfer Station at County's
expense for Delivery to Contractor. Except for the components of Canal Waste described
in Section 4.2(b) or to the extent permitted by Applicable Law, Acceptable Waste shall
contain no Hazardous Substances and no material amounts of other Prohibited Material.
Contractor shall have the right to inspect all Acceptable Waste prior to Acceptance for
the presence of Hazardous Substances or excessive amounts of Prohibited Materials. All
Acceptable Waste shall meet the applicable specifications set forth in Exhibit F. In the
event Hazardous Substances or excessive amounts of Prohibited Materials are detected in
any portion of Acceptable Waste delivered by County, Contractor may reject such
Acceptable Waste. County shall be obligated, at its expense, to (i) segregate and remove
all Hazardous Materials, at its expense, in accordance with Applicable Laws, and (ii)
remove such Prohibited Materials as are necessary for the applicable Acceptable Waste to
contain less than three (3%) percent of Prohibited Materials measured by weight and
meet other Applicable Law. If County successfully removes all Hazardous Materials and
sufficient Prohibited Materials to allow the Acceptable Waste to meet the standards for
Prohibited Materials set forth in this Section 4.3, Contractor shall accept the Acceptable
Waste. The County may request that Contractor remove and dispose of Hazardous
Materials (either at the Transfer Stations or at the Facility if discovered at the Facility) or
excess Prohibited Materials (to the extent allowed by Contractor's Permits) and if
Contractor agrees, County will reimburse Contractor its actual and reasonable expenses
incurred for such disposal, as documented to County, plus 15 percent. Contractor shall
remove all Accepted Acceptable Waste in the time periods required by DEP regulations
and prior to removal, handling and storage of such Acceptable Waste shall comply with
all applicable DEP regulations and other Applicable Laws.
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4.4 Weighing
(a) County shall weigh and register County's trucks and transport vehicles and the
vehicles of any other Persons delivering Acceptable Waste for which County will receive
credit and pay Contractor hereunder arriving at any Transfer Station before unloading
Acceptable Waste. Once unloaded, County shall weigh each vehicle again and record the
difference, with all such amounts, empty and loaded, for each vehicle provided to
Contractor. County shall calibrate and maintain all scales at the Transfer Stations
periodically as required by Applicable Laws or the original manufacturer, and shall
provide copies to Contractor of all inspection reports or certificates attesting to the
accuracy of each scale. Scales shall be accurate within one (1) percent. If either
Contractor or County believes that any scale is registering inaccurately, it may request an
inspection or test of the scale by an independent Person; if no inaccuracy greater than one
percent is detected, the Party requesting the test shall be responsible for the costs of the
test. If the test detects an inaccuracy greater than one (1) percent, the scale shall be
recalibrated at County's expense, and the cost of the test shall be the responsibility of the
County. No adjustments to previously recorded weights shall be made unless it appears
from any test that the inaccuracy affected measurement of empty vehicles differently than
loaded vehicles, or unless the detected inaccuracy was greater than three (3) percent. In
the event of either such circumstance, the Parties shall use the best available information
to adjust weights for loads during the period of inaccuracy (not to exceed 180 days),
including historical weights of empty vehicles and weights for loaded vehicles taken at
the Facility, if any.
(b) For Acceptable Waste delivered at Points of Delivery other than a Transfer Station,
the Parties will devise mutually agreeable processes for determining accurately the
amount of Acceptable Waste being delivered and accepted, and corresponding
documentation.
(c) With respect to Third -Party Waste, Contractor shall use commercially reasonable
efforts to accurately measure the Acceptable Waste at the location it is delivered or at the
Facility and to document the volume, weight or other measure in a manner necessary for
the County to obtain credit as set forth in Section 4.1.3.
4.5 Station Operator County contracts with one or more third parties for collection
and delivery, and/or hauling of waste at the Transfer Stations. County, as the Station Operator,
will cooperate with Contractor's requirements for access to the Transfer Stations and use of the
Transfer Station sites for the performance of Contractor's obligations under this Agreement.
Contractor shall promptly notify County of any interference with Contractor's activities or access
by any third parties which adversely affects Contractor's performance of its obligations
hereunder. At other Points of Delivery controlled by County, County will provide Contractor
with necessary access, and instruct any agents or contractors of County to cooperate with
Contractor.
4.6 Contractor's Use of Other Waste County acknowledges that Contractor will
accept and process waste materials at the Facility from Persons other than County, and that
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Contractor has the right to do so, in its discretion, subject only to performance of its obligations
to County pursuant to this Agreement.
4.7 Information The County shall provide all information upon request regarding
requirements for the Contractor's performance of its obligations under this Agreement.
4.8 County Representative The County shall designate a representative to act
on the County's behalf with respect to the Agreement. The County or its representative shall
render decisions in a timely manner pertaining to requests submitted by the Contractor in order
to avoid unreasonable delay in the orderly and sequential performance of the Contractor's
services.
4.9 Prompt Action The County shall furnish the required information and
services and shall render approvals and decisions as expeditiously as necessary for the orderly
performance of the Contractor's services.
4.10 Cooperation County agrees to reasonably cooperate with Contractor in any
applications that Contractor is making for tax credits, grants or financial assistance as described
in Section 5.16, at Contractor's expense. County's obligation shall consist only of providing
nonproprietary information in its possession, custody or control necessary to complete any such
applications, responding to requests from the relevant Government Authorities, and similar
activities. Notwithstanding the provisions of this section, Contractor's provision or disclosure
of any such information or documents provided by the County to third parties and the reliance
of third parties upon any such information or documents shall be at the risk of Contractor, and
County makes no guaranty of the accuracy or completeness of information provided or its
suitability for further use by Contractor or third parties, and County shall not be held liable for
any loss claimed by the Contractor or any third party as a result of their reliance on information
or documents provided by the County under this Agreement.
4.11 Financiers
4.11. l County shall, upon written request by Contractor, negotiate an commercially
reasonable consent and agreement with respect to a collateral assignment hereof in
favor of any Financier in a form acceptable to County; provided that (i) Contractor
shall reimburse County for all reasonable expenses incurred by County in connection
therewith, including reasonable attorneys' fees, and (ii) County's duty to make factual
statements or representations in such consent and agreement shall be contingent upon
the truthfulness and accuracy of such statements or representations at the time the
consent and agreement is delivered.
4.11.2 County further acknowledges that Financiers may have other or further
requests with respect to a collateral assignment of this Agreement (such as requests
for legal opinions or certificates from County) and may request that certain terms be
incorporated into a collateral assignment agreement to be executed by County.
County will consider any such requests and will reasonably cooperate and negotiate
any such consent and agreement related to a collateral assignment in good faith.
County shall not be required to agree to an amendment of this Agreement, including
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any revision to increase fees or compensation, as a part of any consent or assignment
relating to a collateral assignment.
ARTICLE 5 — CONTRACTOR'S SERVICES AND OBLIGATIONS
5.1 Acceptance of Acceptable Waste
(a) Contractor shall accept all Yard Waste and other Acceptable Waste, (in each case if,
and to the extent approved in accordance with Section 4.2(b)), delivered by County at the
designated Delivery Point at each Transfer Station, subject to the requirements of Section
4.3. Contractor may elect to grind, chip or process Yard Waste or C &D Waste or
otherwise process Acceptable Waste at the Transfer Stations after Acceptance by
Contractor to reduce volume or ease handling for transport, at Contractor's expense.
County shall make available, or cause any Station Operator to make available, sufficient
area at each Transfer Station for Contractor to accept Delivery of Acceptable Waste and
handle and process such Acceptable Waste for loading and further transport.
(b) For other forms of Acceptable Waste not deliverable to Transfer Stations, County
and Contractor shall identify applicable Points of Delivery owned or controlled by
County, and necessary areas at each such Point of Delivery for County to deliver and
Contractor to accept such Acceptable Waste. Sewage Solids are expected to be delivered
at each treatment site identified by County and accepted by Contractor upon loading at
each treatment site.
5.2 Loading
(a) Loading of Acceptable Waste delivered to Contractor for further transport shall be
the responsibility of Contractor. Contractor may contract separately for loading services
with a third party, or perform the loading services itself, in its discretion. If Contractor
elects to have a third -party provide loading services, County agrees to allow such Person
necessary access to the applicable Transfer Station or other Point of Delivery to perform
such services, subject to all Applicable Laws and County safety and security
requirements for the Transfer Station or other Point of Delivery. County shall make
available, or cause any Station Operator to make available, sufficient room and access to
each Transfer Station or other Point of Delivery necessary for Contractor to load its
transport vehicles.
(b) Contractor will have access to the Transfer Stations to perform its handling and
loading of Acceptable Waste during the hours of 8:00 a. m. to 4:00 p. m. Monday through
Saturday, except on Holidays. Transfer Stations are closed Sundays, Thanksgiving Day,
Christmas Day and New Year's Day. The Parties may agree to adjust handling and
loading hours.
5.3 Transport Contractor shall be responsible for transporting, or arranging for
transport of, all delivered Acceptable Waste for each Point of Delivery to the Facility at
Contractor's expense. Contractor shall use commercially reasonable efforts to transport
Acceptable Waste from each Transport Station or other Point of Delivery as sufficient volumes
accumulate for efficient and economical processing and transport, and shall not allow the
22
accumulation of Acceptable Waste at any Transfer Station in a manner or amounts so as to
interfere with Transfer Station operations or cause any substantial impact upon public health,
safety or the environment, create a cause of action for nuisance or which creates any liability,
penalty, or cause of action against the County for violation of any Applicable Law, including
DEP regulations and any Environmental Law.
5.4 Processing and Recycling Credits
(a) Contractor shall process all Acceptable Waste at the Facility, subject only to use
of the Back -Up Facility as a result of an event of Uncontrollable Circumstances or operation or
maintenance which renders the Facility unavailable for any period of time, and subject to any
decision by County and Contractor to process Food Waste, Canal Waste, and/or Sewage Solids
at any digester or other facility provided by Contractor as set forth in Section 4.2(e). In the event
Contractor elects to use a Back -Up Facility, it shall maintain all necessary records of the
Acceptable Waste processed so as to allow County to obtain the related Recycling Credits.
(b) Contractor shall generate electricity from the Processing of the Acceptable Waste
and use the electricity to operate the Facility and sell the balance to a utility or other purchaser.
Contractor shall qualify the Facility and its operations with DEP and any other applicable
Governmental Authority to maximize creation of Recycling Credits under Applicable Law with
respect to Acceptable Waste processed at the Facility and receipt of such Recycling Credits
associated with the Acceptable Waste by County, but shall not be required to incur substantial
expenditures solely for that purpose, if the Facility is otherwise producing Recycling Credits
associated with Yard Waste of at least 75% for the County. Subject to any Change in Law which
affects the calculation of Recycling Credits for Yard Waste disposal Contractor shall produce a
minimum of 75% Recycling Credits for the County from processing Yard Waste under this
Agreement. To the extent that a Change in Law prevents the Contractor from producing 75%
Recycling Credits for processing Yard Waste in accordance with this section and, thereafter the
County is unable to meet any requirement of Applicable Law with respect to recycling mandates;
the Parties agree to meet in good faith for the purpose of negotiating an appropriate modification
to this Agreement. In the event that the Parties are unable to reach an agreed upon modification
to this Agreement after good faith negotiations, the County, at its sole and exclusive option, may
elect to reallocate all or a portion of the Yard Waste required to be delivered under this
Agreement to other entities to the extent necessary for County to continue to meet its recycling
requirements under Applicable Laws, upon ninety (90) days prior notice to Contractor, without
violating its exclusivity obligations under Section 4.1.1. County agrees to cooperate with
Contractor to develop suitable testing and calculation methodologies to meet DEP requirements
for analyzing and granting Recycling Credits for Processing of the Yard Waste and other
Acceptable Waste.
(c) Contractor will keep records of all waste processed by the Facility in the manner
and at the level of detail required by the DEP and any other Governmental Authority involved in
the issuance, grant or reporting of Recycling Credits. In particular, Contractor shall separately
identify and measure the volumes of Acceptable Waste and Third -Party Waste received and
Processed by the Facility. Because Contractor is also Processing other types of waste and waste
from suppliers other than County, DEP may require a specific methodology for use for allocation
of Recycling Credits created by the Facility between the County's Acceptable Waste, Third -
Party Waste, and other waste processed by the Facility. To the extent the Facility creates
Recycling Credits from Third -Party Waste or other waste streams which are allocable or
23
transferrable to County, Contractor will cooperate with DEP and County to allocate or transfer
such Recycling Credits to County, and if any administrative fees from DEP are accessed the
County will pay or reimburse Contractor for those administrative fees.
5.5 Facility Design and Construction
(a) Contractor shall design the Facility with the capability to process all Yard Waste and
other Acceptable Waste designated by County in accordance with Section 4.2(b). The Facility
shall be designed, constructed and operated in accordance with all Applicable Laws and Permits
and generally accepted waste processing and power generation facility industry practices.
Contractor shall complete design, construction and installation of the Facility so that the
Commercial Operation Date occurs no later than the COD Deadline.
(b) Contractor shall provide County with reports every month as to its progress in the
design and implementation of the Facility, an update on the Project Schedule and achievement
of the milestones set forth in Section 2.4 prior to the start of construction, and every month
thereafter until the Commercial Operation Date. The reports shall describe tangible activities in
progress and identify any material adverse effects on the milestone schedule or achievement of
the COD Deadline that may arise. Contractor shall promptly notify County of any non-
compliance with Applicable Law as set forth in Section 5.9. Contractor shall not be obligated to
provide County with any contracts, design documents, technology, financing pro - formas or
statements, or other proprietary information regarding the development, financing or
construction or operation of the Facility, except as needed for pricing provisions, including 3.6(a)
or as otherwise specifically provided herein.
(c) County shall have no right to approve the design, development, construction or
operation of the Facility. Contractor shall at a minimum provide the County with copies of
Facility general arrangement drawings and equipment layouts and all other design documents
and descriptions required by the applicable Government Authorities when submitted as part of
the approval and permitting for the Facility. County's agreement to allow Contractor to use the
Facility to process Yard Waste or other Acceptable Waste shall not be considered an
endorsement by the County of the design, construction, development or operation of the Facility.
Contractor shall operate the Facility in accordance with Applicable Law and Environmental
Law. County and its designated representatives shall have the right to visit and observe the
Facility and progress with construction upon reasonable notice to Contractor, provided that while
on the Facility Site any employees, contractors, agents, or invitees of County shall abide by the
safety and security requirements of Contractor, Applicable Law and requirements of any lease or
other contract with the owner of the Facility Site.
5.6 Approved Products; Residue Contractor shall be responsible for the marketing,
sale or disposal of all Approved Products or Residue from processing activities, at Contractor's
expense, and shall be entitled to all revenues or income received from the sale of any such
Approved Products or Residue.
5.7 Vehicle Registration, Licensing and Inspection All vehicles used by
Contractor and its Affiliates or subcontractors in the performance of services under this
Agreement shall be in compliance with all registration, licensing and inspection requirements of
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the Florida Highway Patrol, the Florida Department of Motor Vehicles, and any other
Applicable Laws or regulations. Contractor may be subject to administrative charges for not
complying with all Applicable Laws for vehicle registration, licensing and inspection.
Contractor and its Affiliates shall maintain copies of all certificates and reports
evidencing compliance with this Section 5.7, and shall make such certificates and reports
available for inspection upon request by the County Representative. Contractor shall not use
any vehicle to perform services under this Agreement that is not in compliance with Applicable
Laws.
5.8 Personnel Requirements
5.8.1 General Manager Oualifications Contractor shall have a qualified
general manager or other individual with direct responsibility for performance of its
services under this Agreement. Upon County request, Contractor shall provide a
written description of its general manager's duties, responsibilities, and
commitments to Parties other than the County, including duties and
responsibilities related to Contractor management activities, and other collection,
processing or disposal operations. The written description shall be provided within
fifteen (15) calendar days of the County's request.
5.8.2 Access to General Manager The general manager shall be readily
available to the County Representative and the Administrator through the
use of telecommunications equipment at all times that Contractor is providing
services pursuant to this Agreement.
5.8.3 Emergency Contact. Contractor shall provide the County
Representative with emergency phone number(s) at which the general manager, and
any other Contractor representative authorized to act on Contractor's behalf, can be
reached outside of normal Contractor office hours. The emergency representative
shall respond to any call from the County within one (1) hour.
5.8.4 Other Personnel Qualifications. Contractor shall employ and assign
qualified, properly licensed personnel to perform all services set forth herein.
Contractor shall be responsible for ensuring that its employees comply with all
federal, state, and local laws applicable to their employment, responsibility, and
position.
5.8.5 Management and Supervision. Contractor shall at all times maintain a
level of management and supervisory staffing sufficient to perform the services
required by this Agreement. Upon County request, Contractor shall provide written
identification of key management and supervisory personnel, and such additional
related information as may reasonably be requested by the County, including but
not limited to, organization chart(s), resumes, job descriptions, identification of
current responsibilities, and allocation of time to responsibilities.
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5.8.6 Training. Contractor shall provide the initial and ongoing personnel
training necessary or required to perform the requirements of this Agreement.
Training shall include, but may not be limited to, operational training, safety training
programs; and compliance with Applicable Law.
5.8.7 Office Hours Contractor and staff shall be available to County staff
Monday through Friday from 8:30 AM to 5:00 PM, or as otherwise approved by the
County Representative except for legal holidays.
5.9 Permits and Access.
5.9.1 Facility Permits and Licenses. Contractor shall be solely responsible for
obtaining, at its own expense, any and all Permits necessary for the transportation,
handling, processing and transfer of Applicable Waste Delivered to Contractor by
County or third parties, and maintain same in full force and effect throughout the
Term. Contractor shall be solely responsible for obtaining, at its own expense, any
and all Permits necessary for the development, design, construction and operation of
the Facility and maintaining same in full force and effect. Contractor shall notify
County as soon as practicable after becoming aware of any non - compliance with
Applicable Law by Contractor or Affiliate with respect to the performance of the
obligations of this Agreement and promptly provide County with copies of any
notices received from any Governmental Authority having jurisdiction to the effect
that Contractor, its Affiliate or the Facility are in violation of Applicable Law with
respect to the Facility or Contractor's and its Affiliates' obligations under this
Agreement.
5.9.2 Proof of Permits. Contractor shall provide proof of receipt of necessary
Permits, and shall demonstrate compliance with the terms and conditions of such
Permits, upon the request of the County Representative.
5.9.3 Compliance. Contractor shall at all times ensure that it is in compliance
with all other Applicable Laws with respect to performance of its obligations
hereunder.
5.9.4 Facility Access. Contractor shall at all times, with reasonable verbal
notice, provide the County Representative with access to the Facility subject only to
reasonable notice and safety and security requirements of Contractor or its Affiliates.
5.9.5 Holiday Service County observes Thanksgiving Day, December 25th,
and January 1st as legal holidays. Contractor shall not be required to provide
Acceptable Waste handling services, nor to maintain office hours, on these
designated holidays at the Transfer Stations.
5.10 Ownership of Material Title to and risk of loss for Acceptable Waste shall
pass to Contractor when the Contractor accepts the Acceptable Waste at any Transfer
Station or other Point of Delivery pursuant to Section 4.3.
26
5.11 Litter Abatement Contractor shall not litter in the process of providing the
services required by this Agreement. Contractor shall transport or cause the transport of
all Acceptable Waste and Residue in such a manner as to reasonably prevent the spilling
or blowing of such waste from Contractor's vehicles. Contractor agrees to clean up litter
at the Transfer Stations or any other County Point of Delivery within two (2) days of
County inspection and sending notice to the Contractor. Notice may be given by
telephone or electronic mail ( "email ").
5.12 Disposal of Residue Contractor shall properly dispose of any and all Residue
from Acceptable Waste created at the Facility at the sole expense of Contractor.
5.13 Approved Products
5.13.1 Contractor shall ensure that all Acceptable Waste accepted pursuant to this
Agreement is processed only into the Approved Products listed in Exhibit D. In the
event additional products of the Facility are identified by Contractor, Contractor may
make written request to add such additional products as "Approved Products" to the
Administrator. However, Contractor may not process, or allow processing of
Acceptable Waste into any such additional products unless these products are
approved by the Administrator in writing.
5.13.2 Approved Products Records. Contractor shall maintain such records as
are necessary and sufficient to verify that Acceptable Waste processed pursuant to
this Agreement is processed into Approved Products.
5.14 Emergency Service
(a) The Contractor will establish a program to identify and manage Yard Waste
which requires emergency management and handling, such as larger than normal
amounts received during a storm event other than storm events subject to FEMA
jurisdiction which are described in Section 5.14(b). In the event Yard Waste from storms
or similar events is received at a Transfer Station in quantities which require special
management and handling, the County shall notify the Contractor that possible
emergency handling of such waste is required. If emergency handling of such waste is
reasonably and mutually deemed necessary by the County and the Contractor, the
generator or transporter of such waste may be charged a handling and disposal fee
negotiated between the County and the Contractor, if mutually agreed by the Parties. In
the event the County and the Contractor are unable to agree on fees, the matter shall be
submitted to the County Administrator or his or her designee for final determination. If
Contractor is unable to handle emergency storm waste or an agreement is not reached
between the Parties on any fee associated with such handling, the County may elect to
use other contractors for the removal, transport and processing of emergency storm
waste.
(b) In the event of a declaration of an emergency by FEMA pursuant to the
Stafford Act, 42 U.S.C. Sections 5121 -5207 and 44 CFR Part 206, in each case as
amended, due to a severe storm, management of disposal of Yard Waste may be assumed
by the Federal Emergency Management Agency ( "FEMA "), in which case a FEMA-
approved contractor will be responsible for removal and disposal of Yard Waste during
27
the period of FEMA's jurisdiction. To the extent FEMA asserts control of such Yard
Waste, the County shall not be deemed in violation of its exclusivity obligation to
Contractor set forth in Section 4.1.1. Contractor may, at Contractor's expense, seek
certification by FEMA as an approved disposal contractor and may negotiate any contract
or subcontract with FEMA or any FEMA- approved contractor to receive and process
Yard Waste during any period of FEMA jurisdiction.
5.15. Uncontrollable Circumstances
5.15.1 Defined.
(a) An Uncontrollable Circumstance shall mean any act, event or condition, whether
affecting the Facility, the County, the Contractor, or any of the Parties' subcontractors, and only
to the extent that it materially and adversely affects the ability of either Party to perform any
obligation under this Agreement (except for payment obligations), if such act, event or condition
is beyond the reasonable control of the Party affected and is not also the result of the willful or
negligent act, error or omission or failure to exercise reasonable diligence on the part of the Party
relying thereon as justification for not performing an obligation or complying with any condition
required of such Party under this Agreement, which may include, but is not limited to, any of the
following:
(1) an act of God (but not including ordinary inclement weather experienced in the
geographic area of the Facility, a Transfer Station or other applicable location),
landslide, lightning, earthquake, fire, explosion, flood, sabotage or similar
occurrence, acts of a public enemy or terrorism, hurricane, war, blockade or
insurrection, riot or civil disturbance;
(2) the failure of any applicable Government Authority or private utility having
operational jurisdiction in the area of the Facility Site to provide and maintain
utilities, services, water and sewer lines and power transmission lines to the Facility
Site, or the failure or delay of any such agency to issue any Permits, which are
required for the performance of Contractor's obligations, provided the delay or
failure is not the result of any delay or failure on the part of Contractor to seek such
utilities or Permits;
(3) the discovery of Hazardous Waste prior to or during the construction phase of the
Facility at the Facility Site.
(b) It is specifically understood that none of the following acts or conditions shall
constitute Uncontrollable Circumstances, and shall not entitle the Contractor to any price, fee,
schedule or other adjustments or relief hereunder:
(1) changes in general economic conditions, interest or inflation rates, or currency
fluctuation, or in other underlying costs, that affect the cost of any Party's
performance, except as otherwise set forth herein;
28
(2) changes in the financial condition of a Party or any of its Affiliates or any
subcontractor affecting their respective ability to perform their respective
obligations;
(3) the consequences of error, neglect or omissions by a Party or any of its employees,
agents, subcontractors of any tier, suppliers or Affiliates in the performance of the
applicable obligations;
(4) the failure of a Party to secure patents or licenses or similar authorizations in
connection with any technology or intellectual property necessary to perform its
obligations hereunder;
(5) the failure of any subcontractor or supplier to furnish labor, services, material,
supplies or equipment on the dates agreed to or otherwise perform their obligations,
except where such failure is due to Uncontrollable Circumstances;
(6) strikes, work stoppages, or other labor disputes or disturbances, or union or labor
work rules, requirements or demands which have the effect of increasing the
number of employees employed at the Facility or otherwise increasing the cost or
burden to a Party of performing its obligations;
(7) the availability or lack of availability of markets for the sale or disposal of the
Approved Products.
5.15.2 Remedial Action A Party shall not be liable to the other Party in the
event it is prevented from performing its obligations hereunder in whole or in part due
to an event of Uncontrollable Circumstances. The Party rendered unable to fulfill any
obligation by reason of an Uncontrollable Circumstances shall take all action
necessary to remove such inability with all due speed and diligence. The
nonperforming Party shall be prompt and diligent in attempting to remove the cause
of its failure to perform, and nothing herein shall be construed as permitting that Party
to continue to fail to perform after said cause has been removed. However, the
obligation to use due diligence shall not be interpreted to require resolution of labor
disputes by acceding to demands of the opposition when such course is inadvisable in
the discretion of the Party having such difficulty.
5.15.3 Notice In the event of any delay or nonperformance resulting from
Uncontrollable Circumstances, the Party suffering the event of Uncontrollable
Circumstances shall, as soon as practicable, but no later than twenty -four (24) hours
after the occurrence or the Party's knowledge of the occurrence of the Uncontrollable
Circumstances event, notify the other Party in writing of the nature, cause, date of
commencement thereof, and the anticipated extent of any delay or interruption in
performance.
5.16 Tax Credits Contractor shall be responsible to apply for any tax credits, grants,
financial assistance, subsidized loans or other tax treatment or credit support available to
Contractor or its Affiliates or the Facility, and the compensation terms of this Agreement
WE
shall not be modified based on Contractor's success or failure in receiving any such
support or assistance. County shall have no right to receive or benefit from any such tax
or cash benefits.
5.17 Subcontractors.
(a) Contractor shall be entitled to use qualified subcontractors to perform any of its
obligations under this Agreement, provided that the use of subcontractors shall not
relieve Contractor of its liability for such obligations.
(b) Contractor shall identify all subcontractors to County with which it will contract to
perform any portion of its services under this Agreement after the Commercial Operation
Date and whose contract is valued at greater than $200,000 annually or $500,000 in the
aggregate. Contractor shall not use any subcontractor which has been formally charged
with or committed a "public entity crime" as described in Article 17.
5.18 Permits Contractor shall procure and maintain all Permits necessary for the
performance of Contractor's obligations hereunder. Contractor agrees to comply with the
applicable requirements of County Permits related to the Transfer Station and their
operation and any other Point of Delivery controlled by County, as communicated by
County to Contractor.
5.19 Compliance with Law Contractor shall comply with all Applicable Laws
currently in effect or subsequently enacted which affect or relate to Contractor, the
Facility or Contractor's performance of its obligations under this Agreement. Contractor
shall also perform its services in accordance with the skill and care required of similarly
situated service providers.
5.20 Representations and Warranties By executing this Agreement, Contractor
makes the following representations and warranties to the County as of the date this
Agreement is executed:
5.20.1 Contractor is a limited liability company duly organized and validly
existing under the laws of Delaware and in good standing under the laws of the State
of Florida. It is qualified to transact business in the State of Florida and has the
power to own its properties and to carry on its business as now owned and operated
and as required by this Agreement. Contractor has the authority to enter into and
perform its obligations under this Agreement. The members of Contractor have taken
all actions required by Applicable Law and its organizational documents, to authorize
the execution of this Agreement. The Person signing this Agreement on behalf of
Contractor has authority to do so.
5.20.2 Contractor has the expertise and professional and technical capability to
perform all of its obligations under this Agreement and is ready, willing and able to
so perform. Contractor holds, or shall hold, through its dully licensed sub-
contractors, all requisites licenses, certifications and other authorizations to perform
each and any of its obligations under the Contract Documents.
30
5.20.3 At all times and for all purposes under this Agreement, Contractor is an
independent contractor and not an employee of the BOCC. No statement contained in
this agreement shall be construed so as to find the Contractor or any of its employees,
contractors, servants or agents to be employees of the BOCC for Monroe County.
5.20.4 Except as expressly set forth herein, Contractor makes no other
representations or warranties to County, express or implied, with respect to the
Facility, Facility Site, Contractor, or the Contractor's performance of its obligations
hereunder, and disclaims any other such warranty, including, but not limited to, any
warranty of suitability or of fitness for a particular purpose, or of performance of any
sort.
ARTICLE 6 — ENVIRONMENTAL LIABILITY
6.1 No Environmental Liability - Contractor
6.1.1 Contractor shall have no Environmental Liability or other legal responsibility
for any violation of any Environmental Laws arising from or related to any Transfer
Station or any other Point of Delivery controlled or owned by County or County's
collection and handling of Acceptable Waste prior to its Acceptance by Contractor,
including, but not limited to (i) any existing Hazardous Substances at any Transfer
Station or any other Point of Delivery controlled or owned by County, or the future
use, release, handling or disposal of Hazardous Substances by Station Operator or any
Person other than Contractor and its agents and subcontractors at any Transfer Station
or any other Point of Delivery controlled or owned by County; (ii) any Hazardous
Substances present in any Yard Waste or Acceptable Waste or their handling, release
or disposal except as assumed by Contractor pursuant to Section 4.3; or (iii)
compliance of any Transfer Station or any other Point of Delivery controlled or
owned by County with any other Environmental Laws.
6.1.2 Contractor shall have no Environmental Liability for Hazardous Substances or
Prohibited Materials present in any Applicable Waste, even if the amount of such
Prohibited Materials or Hazardous Substances is less than the threshold for rejection
by Contractor as set forth in Section 4.3.
6.1.3 In the event that Contractor does not discover Hazardous Substances in any
Acceptable Waste until after Acceptance and transport to the Facility, County shall
remain responsible for Environmental Liability associated with or arising from such
Hazardous Substances and Contractor's disposal or other handling of such Hazardous
Substances in compliance with Environmental Laws, except where Contractor fails to
dispose or handle such Hazardous Substances in compliance with Environmental
Laws.
6.2 No Environmental Liability — County Except as set forth in Sections 4.3 and
6.1.3, County shall have no Environmental Liability or other legal responsibility arising
from or related to Contractor's performance of its obligations under this Agreement or
the Facility or Facility Site or any Back -Up Facility.
31
6.3 Compliance Contractor agrees to perform its obligations under this Agreement
in compliance with all Applicable Law.
6.4 No Marketing of Environmental Attributes County acknowledges that
Contractor retains the rights to any Environmental Attributes arising from the Facility,
the processing of Acceptable Waste by Contractor, and the electricity or fuels or other
Approved Products produced by the Facility and that County is not acquiring any rights
or interests in any Environmental Attributes pursuant to this Agreement. Contractor's
Environmental Attributes include all rights to report, market and otherwise receive credit
for the creation of electricity using the Facility. County agrees not to publicize, report,
market or otherwise take credit for the creation of the Environmental Attributes or
electricity from the Facility in any manner which would interfere with the Contractor's
rights to such Environmental Attributes or diminish the value of Contractor's
Environmental Attributes. Contractor shall have the right to sell any or all such
Environmental Attributes to another Person in its sole discretion.
ARTICLE 7 - NOTICES
All written correspondence to the County shall be dated and signed by an authorized
representative of the Contractor. Any notice required or permitted under this Agreement shall
be in writing and hand delivered or mailed, postage pre -paid, to the other Party by certified
mail, return receipt requested or sent by telecopier or email with receipt acknowledgment, to
the following:
Mr. Will Thompson
Solid Waste Department
Monroe County
1100 Simonton Street, Room 2 -216
Key West, Florida 33040
Thompson-will@monroecounty-fl.gov
And: Mr. Roman Gastesi
Monroe County Administrator
1100 Simonton Street, Room 2 -205
Key West, Florida 33040
6astesi- roinaii( monroccouno,11.< \
And: Ms. Rhonda Haag
Monroe County
102050 Overseas Highway, Suite 2 -240
Key Largo, FL 33037
Haag- Rhonda @monroecounty -fl.gov
With a copy to:
Mr. Bob Shillinger
32
Monroe County Attorney
1111 12 Street, Suite 408
Key West, FL 33040
Shillinger-bob@monroecounty-fl.gov
For the Contractor:
Fred Deluca
Energy 3, LLC
1997 Annapolis Exchange Parkway
Suite 300
Annapolis, MD 21401
fdelticacc ;nerg ��
With a copy to:
Chuck Work
Energy 3, LLC
1997 Annapolis Exchange Parkway
Suite 300
Annapolis, MD 21401
charles.r.work@gmail.com
With a copy to:
Jeffrey C. Paulson
Paulson Law Office, Ltd.
4445 West 77 Street
Suite 224
Edina, MN 55435
jeff.jcplaw@comcast.net
The designation and titles of any person to be notified or the address of any person may be
changed at any time by written notice. Delivery of any notice shall be deemed to have
occurred upon receipt.
ARTICLE 8 - ADDITIONAL SERVICES
"Additional Services" are services not included in the scope of Contractor's services under this
Agreement. Should the County require Additional Services they shall be paid for by the
County at rates or fees as set forth in Exhibit A or as negotiated at the time when services are
required, but only if approved by the County and Contractor before commencement. County
shall request the proposed services from Contractor and Contractor shall respond with a fee
proposal to perform the requested services. Only after an amendment to the Agreement is
executed by both Parties reflecting the Additional Services and a notice to proceed is received
by Contractor from the County, shall the Contractor proceed with the Additional Services.
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ARTICLE 9 - INDEMNIFICATION AND HOLD HARMLESS
9.1 Indemnification Contractor and, to the extent allowed by Fla. Stat. Section
768.28, County, agree to defend, indemnify, and hold each other, and their respective
officers, directors, employees, and agents, harmless from and against all losses, damages
and liabilities for personal injury or death to Persons and damage to each other's physical
property or facilities or the property of any other Person to the extent arising out of,
resulting from, or caused by the negligent or intentional acts, errors, or omissions of the
indemnifying Party. Furthermore, each Party shall defend, indemnify, and hold the other
harmless from and against all such losses, damages and liabilities that were incurred or
suffered by the indemnified Party and that relate to the indemnifying Party's breach or
failure to perform any of the covenants, agreements, obligations, representations, or
warranties contained in this Agreement. Nothing in this Section 9.1 shall relieve
Contractor or County of any liability to the other for any breach of this Agreement. This
indemnification obligation shall apply notwithstanding any negligent or intentional acts,
errors or omissions of the indemnitees but the indemnifying Party's liability to pay
damages to the indemnified Party shall be reduced in proportion to the percentage by
which the indemnitees' negligent or intentional acts, errors or omissions caused the
damages. Neither Party shall be indemnified for damages resulting from its sole
negligence or willful misconduct. These indemnity provisions shall not be construed to
relieve any insurer of its obligation to pay claims consistent with the provisions of a valid
insurance policy.
9.2 Intellectual Property Contractor shall be responsible to acquire any intellectual
property necessary to perform its obligations under this Agreement and agrees to
indemnify and hold County and its officers and employees harmless from and against any
claim by any Person alleging that Contractor's performance of this Agreement, including,
but not limited to, development and operation of the Gasification Plant, infringes on the
intellectual property rights of such Person.
9.3 Consideration The first ten dollars ($10.00) of remuneration paid to the
Contractor is consideration for the indemnifications provided by Contractor above. The
extent of liability is in no way limited to, reduced, or lessened by the insurance
requirements contained elsewhere within this Agreement.
9.4 Delay in Insurance In the event the performance of Contractor's services is
delayed or suspended as a result of the Contractor's failure to purchase or maintain the
insurance required by this Agreement, the Contractor shall indemnify County from any
and all increased expenses resulting from such delays.
9.5 No Waiver The availability of any insurance policy or coverage shall not
relieve the Contractor of any of its obligations under the terms of this Agreement.
9.6 Survival The indemnification provisions shall survive the expiration or early
termination of the Agreement.
01
ARTICLE 10 - INSURANCE
10.1 The Contractor shall obtain insurance as specified and maintain the insurance
required by this Agreement at all times during the Term.
10.2 The coverage provided herein shall be provided by an insurer with an A.M. Best
rating of VI or better, that is licensed to conduct business in the State of Florida and that
has an agent for service of process within the State of Florida. To the extent available, the
coverage shall contain an endorsement providing sixty (60) days' notice to the County
prior to any cancellation of said coverage.
10.3 Contractor shall obtain and maintain the following policies:
A. Workers' Compensation insurance as required by the State of Florida, sufficient to
satisfy the requirements of Florida Statutes Chapter 440.
B. Employers Liability Insurance with limits of $1,000,000 per accident, $1,000,000
disease, policy limits, $1,000,000 Disease each employee.
C. Comprehensive business automobile and vehicle liability insurance covering
claims for injuries to members of the public and/or damages to property of others
arising from use of motor vehicles, including onsite and offsite operations, and
owned, hired or non -owned vehicles, with One Million Dollars ($1,000,000.00)
combined single limit and One Million Dollars ($1,000,000.00) annual aggregate.
D. Commercial general liability, including Personal Injury Liability, covering claims
for injuries to members of the public or damage to property of others arising out of
any covered act or omission of the Contractor or any of its employees, agents or
Affiliates or subcontractors, including Premises and /or Operations, Products and
Completed Operations, Independent Contractors; Broad Form Property Damage and
a Blanket Contractual Liability Endorsement with One Million Dollars
($1,000,000) per occurrence and annual aggregate.
An Occurrence Form policy is preferred. If coverage is changed to or provided on a
Claims Made policy, its provisions should include coverage for claims filed on or
after the effective date of this Agreement. In addition, the period for which claims
may be reported must extend for a minimum of 48 months following the termination
or expiration of this Agreement.
E Pollution Liability Insurance: $1,000,000 per occurrence.
F. Commercial Umbrella/Excess Liability Insurance: $5,000,000 per occurrence.
G. County shall be named as an additional insured with respect to Contractor's
liabilities hereunder in insurance coverages identified in Sections 10.3 (C) and (D).
35
H. Contractor shall require its subcontractors (including Affiliates) to be insured at least
to the limits prescribed above, and to any increased limits of Contractor if so agreed
during the term of this Agreement. County will not pay for increased limits of
insurance for Affiliates.
I. Contractor shall provide to the County certificates of insurance or a copy of all
insurance policies including those naming the County as an additional insured. The
County reserves the right to require a certified copy of such policies upon request.
10.4 County Insurance. County is self- insured. Evidence of County's self- insurance
capabilities will be provided to Contractor upon request.
ARTICLE 11— REPORTING REOUIREMENTS
11.1 Transition and Implementation Reports
11.1.1 General.
In addition to the reporting requirement as set forth in 5.5(b), Contractor shall
provide, at a minimum, a report each month following the Commercial Operation
Date. The contents of these reports shall be mutually agreed by Contractor
and the County Representative.
11.2 Summary of Monthly, Quarterly, and Annual Reporting Requirements
11.2.1 Operational Data.
The following table identifies the operational data the Contractor shall routinely
submit.
Operational Data
Monthly
uarterl
Annual
Tons Delivered
X
X
Tons Re'ected
X
X
Tons Accepted
X
X
Tons Processed
X
X
Tons of Residue Disposed and
Name of Disposal Facility(ies)
Used
X
X
Tons of Recovered By- Products
Sold (if any, by type)
X
X
Processing Unit/Facility
Downtime
X
X
Significant Events
X
X
Tons Processed from third -party
waste suppliers
X
Recycling credits generated as
per DEP
X as
available
36
DEP Emissions data reporting-
stack tests, etc.
Monthly
X
X
Energy Generated
X
X
Energy Sold
X
X
Tonnage reporting shall (i)) reflect tonnages for different categories of Acceptable Waste,
and (ii) include Third -Party Waste. It need not include waste other than Acceptable
Waste and Third Party Waste.
11.2.2 Financial Information
The following table identifies the financial information the Contractor shall
routinely submit.
Financial Information
Monthly
uarterl
Annual
Amount billed to County*
X
Fees or payments due to Count
(if any)*
X
Countv Dast due amount
X
Audited Financial Statements **
X
*Invoices will be presented to and paid by the County once monthly
* *Trade Secret or Proprietary Confidential business information will be redacted at the
Contractor's direction and shall be shown to County Administrator or his or her designee for
verification purposes only, except as needed for Section 3.6(a) or as otherwise specifically
provided herein.
11.2.3 Monthly Reports.
11.2.3.1 Tons Delivered, Rejected, Accepted, and Processed The tons
Delivered, Accepted, and Processed shall be calculated using daily Tonnage
reports from the scale house data management system for Acceptable Waste
delivered at Transfer Stations. Tons Accepted shall be calculated as the tons
Delivered less Tons Rejected. Tons Accepted shall separately treated as tons
Accepted on a conditional basis subject to reduction for any Hazardous
Substances or Prohibited Materials. Reports shall reflect tonnage separately for
(i) Yard Waste, and Biomass (ii) C &D Waste; (iii) Electronic Waste; (iv) Canal
Waste; (v) Sewage Solids; (vi) Food Waste; (vii) MSW; and (vii) Third -Party
Waste (including type of waste processed).
11.2.3.2 Tons of Residue Disposed The tons of Residue disposed shall be the
tonnage determined in accordance with procedures described in Exhibit F.
11.2.3.3 County fees or payments (if any) due to County If the Contractor
owes the County fees or administrative charges, the Contractor shall itemize each
fee or payment due for the most - recently completed month.
37
11.2.3.4 Energy Generated and Energy Sold The gross production of the
Facility and the net energy sold to any third party.
11.2.3.5 Processing Unit/Facility Shutdown Information A brief summary or
table of the cause, total duration and resolution (or work performed to resolve) for
any material planned and /or forced shutdowns.
11.2.3.6 Recovered Material or By- Products Sold (if any) The tons of
materials recovered from the Processing of Acceptable Waste or Third Party
Waste that were sold or reused.
11.2.4 Quarterly Reports
11.2.4.1 Significant Events Contractor shall discuss any significant events that
have impacted or will impact Contractor's performance hereunder and/or the
Facility including, but not limited to, operational changes related to receipt,
Acceptance, Processing, Residue disposal, Hazardous Materials, and notices of
violations. Contractor shall describe the potential consequences of such
events and plans to mitigate such consequences.
11.2.4.2 Emissions reporting DEP data quarterly reporting, such as
Continuous Emission Monitoring System (CEMS) data or reports that are
required by the DEP or Facility permits shall be provided to the County on an
annual basis.
11.2.5 Annual Reports
11.2.5.1 Summary of Monthly Data Annual reports shall include a summary
report that presents all monthly data required by the monthly reporting
requirements and shall include an annual total for each item reported.
11.2.5.2 Audited Financial Statements. Within one hundred twenty
calendar days after
to the County two
and profit and los
the close of Contractor's
(2) copies of the audited
fiscal year, Contractor shall
(120)
deliver
consolidated financial statements
s statements of Contractor for the preceding fiscal year.
Financial statements shall include a supplemental combining schedule showing
Contractor's results of operations, including the specific revenues and expenses in
connection with the operations provided for in this Agreement from others
included in such financial statements. The County at the Contractor's direction will
redact trade secret or proprietary confidential business information in accordance with
F.S. 812.081 and F.S. 946.517. The financial statements and footnotes shall be
prepared in accordance with Generally Accepted Accounting Principles
(GAAP) consistently applied and fairly reflecting the results of operation and
Contractor's financial condition. Annual financial statements shall be audited,
in accordance with Generally Accepted Auditing Standards (GAAS) by a
Certified Public Accountant (CPA) who is a member of the American institute of
Certified Public Accountants (AICPA) licensed (in good standing) to practice
public accounting, and provide that the CPA opinion on Contractor's annual
financial statements shall be unqualified, and shall contain the CPA's
W.
conclusions regarding the Contractor's accounting policies and procedures,
internal controls, and operating policies. The CPA shall perform an evaluation
and, if necessary, shall cite recommendations for improvement.
11.2.5.3 Recycling Credits. Recycling Credits issued or provided by DEP to be
provided to County as and when available from DEP.
11.3 Report Format Contractor shall provide records to the County using an
electronic format approved by the County Representative. The reports may be sent by
electronic mail ("e-mail"), or if e -mail is not feasible, through an alternate
electronic medium that is compatible with the County's software and computer
systems.
11.4 Report Submittal
Contractor shall submit the following reports in accordance with the deadlines set forth
below.
11.4.1 Monthly Report Contractor shall submit monthly reports to the County on or
before the last day of the calendar month immediately following the monthly period
covered by the report.
11.4.2 Ouarterly Report Contractor shall submit quarterly reports within thirty (30)
days of the end of the previous calendar quarter.
11.4.3 Annual Report Contractor shall submit annual reports within ninety (90)
days after the end of the applicable year for the services provided in the previous
calendar year. A final annual report covering any period less than a full year shall be
submitted within thirty (30) days following expiration or termination of the
Agreement.
11.4.4 Submittal Day Exceptions If the last day of the month falls on a Saturday,
Sunday or a day not a Business Day under this Agreement, the report is due on the
next Business Day.
11.4.5 Submittal to County. All reports shall be submitted to the County
Representative.
11.4.6 Late, Inaccurate, Incomplete Reports Reports that are not filed by the due
date or are incomplete or inaccurate are delinquent. Contractor shall submit a
complete or corrected report within thirty (30) calendar days of written notice from
the County.
11.4.7 On- Request Reports. Contractor shall maintain current information
regarding key personnel; vehicle inventory; all applicable Permits; and tonnage for
materials Delivered, rejected, Processed, and disposed and provide such data to
County within a reasonable time after request by County.
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11.5 Copies of Public Reports. Upon request by County, Contractor shall provide
County with copies of the public, nonproprietary portions of any reports with respect to
the Facility or performance of Contractor's obligations hereunder which Contractor has
filed with any other Governmental Authority.
ARTICLE 12 - FINANCIAL ASSURANCE OF PERFORMANCE
12.1 Performance Bond Contractor shall furnish to the County Clerk, and keep
current, a Performance Bond substantially similar to the form as set forth in Exhibit E,
Form of Performance Bond, for the performance of this Agreement and all of
Contractor's obligations arising hereunder ( "Performance Bond ") as follows:
The Contractor shall provide to the Clerk and keep current the Performance Bond in
effect under the Interim Agreement from the Commercial Operation Date through sixty
(60) days after the expiration of the Term or until County issues a written release,
whichever is earlier, for a minimum amount of $795,000.00. If the term of any
Performance Bond or any alternative security is less than the Term of this Agreement,
Contractor shall provide a renewed, extended or new Performance Bond or alternative
security with a term commencing upon the expiration of the term of any prior
Performance Bond or alternative security no less than sixty (60) days prior to the
scheduled expiration date of the Performance Bond or alternative security.
12.2 Licensed Surety. The Performance Bond shall be issued by a surety
company licensed to do business in the State of Florida; having an "A -" or better rating
by A. M. Best or Standard and Poor's and included on the list of surety companies
approved by the Treasurer of the United States. If the Performance Bond is shorter than
the term of this Agreement, Contractor shall submit proof of renewal or extension at least
thirty (30) calendar days prior to the Performance Bond expiration date.
12.3 Alternative Security. Contractor may request, and County may in its sole
discretion allow Contractor to provide the following alternative security for the
performance of this Agreement in the same amount specified for the Performance
Bond in the form of: (a) a prepaid irrevocable standby letter of credit from a financial
institution satisfactory to the Administrator, which authorizes the County to withdraw
funds in the event of a default under this Agreement and approved as to form by the
County Attorney; or (b) a certificate of deposit or other escrowed funds subject to an
escrow agreement in favor of the County with a financial institution satisfactory to the
Administrator.
In the event alternative security is approved by the County, Contractor shall notify the
County Representative within three (3) calendar days of any change in status. County
may periodically request verification from the financial institution that issued the letter of
credit regarding the status of the letter of credit. If the letter of credit is no longer in full
effect, Contractor must cure the defect within fifteen (15) Business Days.
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12.4 Use of Security
12.4.1 In addition to any other remedy available to it, County may, without
waiving any other right or remedy, draw against the Performance Bond or alternative
security to satisfy any undisputed obligations of Contractor to County arising under
this Agreement that Contractor has not otherwise paid when due, after any required
notice and opportunity to cure. Any failure to draw upon the Performance Bond or
alternative security for amounts due to County shall not prejudice County's rights to
recover such amounts in any other manner or at any other time. In the event the
amount of the Performance Bond or alternative security shall be insufficient to pay
any amount due to County in full (and Contractor has not otherwise paid such
amount), Contractor shall replenish the Performance Bond or alternative security to
its full amount within thirty (30) days. In the event Contractor fails to replenish the
Performance Bond or alternative security and pay the applicable amount promptly
when due, County shall have the right to terminate the Agreement in accordance with
Section 14.3.
12.4.2 Neither County's draw on the Performance Bond or alternative security,
nor Contractor's or any Financier's provision or replenishment of the Performance
Bond or alternative security, nor any other payment of Contractor or Financier to
County, is a waiver of any rights Contractor or any Financier otherwise has to dispute
County's entitlement to any such funds, and Contractor and Financier shall retain all
rights and remedies either may have in that respect under this Agreement or at law to
dispute any such underlying claim by County and to seek the return of any such funds
from County if Contractor or any Financier prevails in the dispute. To the extent any
of the events that provide County the right to draw on the Performance Bond or
alternative security might also constitute an Event of Default by Contractor and
entitle County to terminate this Agreement, and County draws against the
Performance Bond or alternative security to satisfy the full amount of Contractor's
unpaid obligations related to the asserted Event of Default, and Contractor replenishes
the Performance Bond or alternative security as required by this Agreement, the
asserted Event of Default shall be deemed cured and any right on the part of County
to terminate this Agreement related to the asserted specific Event of Default shall be
waived and extinguished.
ARTICLE 13 - MISCELLANEOUS
13.1 Section Headings. Section headings have been inserted in this Agreement as
a matter of convenience of reference only, and it is agreed that such section headings
are not a part of this Agreement and will not be used in the interpretation of any provision
of this Agreement.
13.2 Ownership of Documents Any documents prepared by the Contractor for this
Agreement belong to the Contractor and, with the exception of proprietary documents,
may be reproduced and copied by the County for internal use only without
acknowledgement or permission of the Contractor.
13.3 Successors and Assigns. The Contractor shall not assign its obligations under this
agreement, except in writing and with the prior written approval of the BOCC and the
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Contractor, which approval shall be subject to such conditions and provisions as the
BOCC may deem reasonably necessary. This paragraph shall be incorporated by
reference into any assignment and any assignee shall comply with all of the provisions of
this Agreement. Subject to the provisions of the immediately preceding sentence, each
Party hereto binds itself, its successors, assigns and legal representatives to the other and
to the successors, assigns and legal representatives of such other Party. Notwithstanding
the foregoing, Contractor may assign this Agreement to a Financier as security for
Contractor's obligations to Financier without the consent of County, but Contractor shall
provide County with notice of any such assignment. County may assign its interest in this
contract to any successor in interest that assumes, by operation of the law, the County's
corporate functions or leaseholds in realty.
13.4 No Third -Party Beneficiaries Except for rights provided to Financiers, nothing
contained herein shall create any relationship, contractual or otherwise, with, or any
rights in favor of, any third party. No provision of this Agreement is intended to nor shall
it in any way inure to the benefit of any other Person not a Party or give rise to a cause of
action in favor of any Person not a Party.
ARTICLE 14 - EVENTS OF DEFAULT
14.1 The following shall each constitute an Event of Default by Contractor.
a. Contractor shall take the benefit of any present or future insolvency statute,
or shall make a general assignment for the benefit of creditors, or file a
voluntary petition in bankruptcy (court) or a petition or answer seeking an
arrangement, for its liquidation under the Federal bankruptcy laws or under
any other law or statute of the United States or any state thereof; or
b. By order or decree of a Court, Contractor shall be adjudged bankrupt or an order
shall be made approving a petition filed by any of its creditors seeking its
liquidation under Federal bankruptcy laws or under any law or statute of the
United States or of any state thereof, provided that if any such judgment or order
is stayed or vacated within ninety (90) calendar days after the entry thereof, any
notice of default shall be and become null, void and of no effect; or
C. Contractor has defaulted, by failing or refusing to pay in a timely manner any
undisputed administrative charges, or other monies due County under this
Agreement, and said default cannot be cured by County using the Performance
Bond or alternative security or by Contractor or a Financier within thirty (30)
calendar days of receipt of written notice by County to do so; or
d. Factual and material information provided by Contractor to County on which
County has relied in taking any material action or making any payment to
Contractor is discovered to be materially inaccurate, and Contractor fails to
correct the inaccuracy and refund or credit any payment made in reliance thereon
within thirty (30) calendar days of receipt of written notice by County; or
e. Contractor has breached or failed to perform a material term, condition or
covenant in this Agreement and said breach is not cured within thirty (30)
calendar days of receipt of written notice from County to do so, or if by reason
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of the nature of such breach, the same cannot be remedied within thirty (30)
calendar days following receipt by Contractor of written demand from County
to do so, Contractor fails to commence the remedy of such breach within said
thirty (30) calendar days following such written notice or having so
commenced shall fail thereafter to continue with diligence the cure thereof (with
Contractor having the burden of proof to demonstrate (a) that the breach cannot
be cured within thirty (30) calendar days, and (b) that it is proceeding with
diligence to cure said breach, and such breach will be cured within a reasonable
period of time).
14.2 The following shall each be an Event of Default by County:
(a) County directs any material amount of Yard Waste, or other Acceptable Waste
dedicated to Contractor exclusively, to any other Person during the Term, or fails to
deliver Yard Waste or other Acceptable Waste to Contractor as required hereunder.
(b) County fails to make any payment due to Contractor under this Agreement within
Fifteen (15) Business Days after such amount is due.
(c) County breaches any curable, non - monetary, material obligation under this
Agreement, and fails to cure such breach within thirty (30) days after receiving written
notification from Contractor of the breach.
(d) County fails to budget or appropriate sufficient funds to pay Contractor as
described in Section 3.5.1.
(e) Any other material breach of this Agreement not specifically enumerated, that is not
cured within thirty (30) days after County received written notification of default from
Contractor.
14.3 Termination
14.3.1 In the event the defaulting Party fails to cure the Event of Default within
the period for curative action under Sections 14.1 or 14.2, as applicable, or upon the
occurrence of an incurable Event of Default, the non - defaulting Party may terminate
this Agreement by notifying the defaulting Party in writing of its decision to
terminate and the effective date of the termination.
14.3.2 Upon termination of this Agreement by County due to an Event of Default
by Contractor pursuant to Section 14.3.1, County shall have no future or further
obligation to provide Acceptable Waste to Contractor or to make any payment
whatsoever under this Agreement, except for payments for obligations arising or
accruing prior to the effective date of termination. Upon termination of this
Agreement by Contractor due to an Event of Default by County pursuant to Section
14.3.1, Contractor shall have no future or further obligation to accept or process
Acceptable Waste from County or to satisfy any other obligation of this Agreement,
except for payments or other obligations arising or accruing prior to the effective date
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of termination. After the effective date of termination, this Agreement shall not be
construed to provide any residual value to either Party or any successor or any other
Person, for rights to, use of, or benefits from the Acceptable Waste or Facility.
14.3.3 Notwithstanding any provisions in this Agreement to the contrary, upon the
occurrence of an Event of Default by Contractor, County shall provide notice of the
Event of Default to each Financier for which an address or other contact information
has been provided to County by Contractor. Each Financier shall have the right to
cure the Event of Default on behalf of Contractor within the cure periods set forth in
Section 14. 1, and County agrees to accept any such cure to the same extent as if made
by Contractor. If Financier needs to foreclose on the Facility, Facility Site or other
assets of Contractor or otherwise take legal action to gain possession of the Facility,
Facility Site or other assets of Contractor in order to cure the applicable Event of
Default, the applicable cure period shall be extended by the amount of time necessary
for the Financier, using all reasonable due diligence, to obtain possession of the
Facility, Facility Site, or other applicable assets. Under no circumstances, however,
may the extension of time granted by the County under this Section 14.3.3 exceed 90
calendar days. If a Financier, or its designee, obtains possession of the Facility,
Facility Site or other applicable assets of Contractor and assumes all of the
obligations of Contractor under this Agreement, and cures any Event of Default,
subject to and in accordance with Section 14.3, the County agrees to recognize the
Financier, or its designee, as Contractor under this Agreement and to perform
County's obligations to Financier or its designee.
14.3.4 If an Event of Default by Contractor will require more than the prescribed
cure period to cure, and Contractor is diligently pursuing a cure, as reasonably
demonstrated to County, then the applicable cure period shall be extended up to an
additional ninety (90) days as long as Contractor is diligently pursuing the cure. This
provision shall not apply to payment defaults. After Commercial Operation Date, if
Contractor's default is due to a casualty event or other physical breakdown at the
Facility which requires more time than otherwise allowed under this Article 14 to
cure, as long as Contractor or its Financier are diligently pursuing the repair or
reconstruction of the Facility, including necessary procurement and design, the cure
period shall be extended to include such time as is reasonably necessary for
Contractor or its Financier to complete the work using commercially reasonable
efforts, as demonstrated to County.
14.3.5 The Contractor shall continue to accept and process County's waste during
any period in which County is in default for any reason other than nonpayment.
14.4 Other Damages
(a) For all claims, causes of action and damages the Parties shall be entitled to the
recovery of actual damages allowed by law unless otherwise limited by this
Agreement. Neither the enumeration of Events of Default in Sections 14.1 and
14.2, nor the termination of this Agreement by a non - defaulting Party pursuant to
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Section 14.3. 1, shall limit the right of a non - defaulting Party to rights and
remedies available at law, including, but not limited to, claims for breach of
contract or failure to perform by the other Party and for direct damages incurred
by the non - defaulting Party as a result of the termination of this Agreement.
(b) Except as otherwise specifically and expressly provided in this Agreement, no
Party shall be liable to the other Party under this Agreement for any indirect,
special, punitive, exemplary, incidental or consequential damages, including,
without limitation, loss of use, loss of revenues, loss of profit, interest charges,
cost of capital, or claims of customers to which service is made, whether arising
under statute or in tort or contract. Notwithstanding the foregoing, in the event
that County breaches this Agreement by failing to deliver Yard Waste or
diverting such Yard Waste to third Parties as set forth in 4.1.1, Contractor shall be
entitled to seek damages measured by (i) the costs incurred by Contractor to
acquire suitable replacement of Acceptable Waste to meet Contractor's
contractual obligations less any savings experienced by Contractor or (ii) the
difference between the amount per ton which Contractor would have been paid by
County to process the Acceptable Waste and the price per ton received by
Contractor from alternative suppliers of waste, multiplied by the number of
applicable tons, whichever is less.
(c) While the County is not obligated to provide a minimum amount of Yard Waste,
County acknowledges that Contractor is relying on County's Delivery of Yard
Waste as required under 4.1.1 of this Agreement to operate the Facility and meet
Contractor's obligations to generate electricity for sale to third parties, and the
failure by County to deliver Yard Waste or its diversion to other Persons in
violation of Section 4.1.1, may cause Contractor to breach its other contracts. In
the event County violates its exclusivity obligation to Contractor by diverting
Yard Waste to other Persons or failing to Deliver Yard Waste, County agrees
Contractor shall have the right to specific enforcement of County's exclusivity
and delivery obligations.
14.5 Termination Cumulative Each Party's right to terminate this Agreement is in
addition to any other rights and remedies provided by Applicable Laws or by this
Agreement.
14.6 Transition
(a) In the event of a termination of this Agreement by Contractor for default by County
or due to a Change in Law making performance impossible as described in Section 15.2,
Contractor shall be entitled to cease performing services under the Agreement upon the
effective date of termination, including termination of subcontracts, and may recover its
equipment from Transfer Stations without interference by County or its contractors or
agents. Contractor shall cooperate with County in any transition to a new services
provider, but shall not be obligated to incur any material costs in assisting such a
transition.
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(b) In the event of a termination of this Agreement by County, Contractor shall complete
any work necessary to facilitate the transfer of Contractor's responsibilities to another
contractor and cooperate with County's establishment of a new contract or other means
of performing the services previously performed by Contractor. County shall have the
right to separately contract with any subcontractor of Contractor for services, or may
request that Contractor assign one or more subcontracts to County. Any such assignment
will be subject to approval by the applicable subcontractor.
ARTICLE 15 - CHANGE IN LAW
15.1 County and Contractor understand and agree that the Florida Legislature has the
authority to make changes in solid waste management legislation and other laws and that
changes in law in the future may require County to change the manner in which it collects
or disposes of Acceptable Waste in a way that conflicts with the terms and obligations of
this Agreement. In the event any such legislation or change in law is proposed by any
Governmental Authority which, if enacted, would adversely affect County's ability to
perform its obligations to Contractor or Contractor's ability to perform its obligations to
County, the Parties agree to cooperate to oppose such proposed change or seek
modifications to the proposed change to permit the Agreement to be unaffected. Nothing
contained in this Agreement shall require any Party to perform any act or function
contrary to law. Subject to Section 15.2, in the event that a change in Applicable Law is
enacted which materially affects either Party's ability to perform its obligations
hereunder, County and Contractor agree to enter into good faith negotiations regarding
modifications to this Agreement to reflect the minimum changes in the performance of
the applicable obligations necessary to comply with the Change in Law. Such
modifications may include a reasonable and appropriate compensation adjustment for
any increase or decrease in the services or other obligations required of Contractor.
Neither County nor Contractor shall unreasonably withhold agreement to any such
amendment to this Agreement, including any compensation adjustment, but the County is
not required to increase taxes to meet any compensation adjustment. If the modification
includes a compensation increase, County shall promptly seek any approval of BOCC to
the modifications and increase as well as a corresponding appropriation of funds
sufficient to pay for the new levels of compensation.
15.2 If a Change in Law makes Contractor's performance of any material portion of
this Agreement impossible, or will cause Contactor to default on its financing (without
violating Applicable Law), and the Parties fail to negotiate an amendment which resolves
the legal barriers to Contractor's continued performance, Contractor may, upon thirty
(30) days' notice to County, terminate this Agreement. only a Change in Law which
renders the Contractor's performance under the Agreement impossible in this manner
shall otherwise excuse the Contractor from performance under the terms of this
Agreement unless otherwise agreed to by the County.
ARTICLE 16 - AMENDMENTS TO CODE
County shall not propose any amendment to the Monroe County Code for the purpose of
adversely affecting County's or Contractor's obligations, or their respective ability to perform
their obligations, under this Agreement without first negotiating acceptable amendments to this
Agreement with Contractor which addresses the adverse effects. County shall provide written
.,
notice to Contractor of any planned amendment to Chapter 21, or to other applicable chapters of
the Monroe County Code that would materially affect the performance of Contractor's services
pursuant to the Agreement. Except in the case of an amendment determined by the BOCC to be
an emergency measure, such notice shall be provided at least thirty (30) calendar days prior to
the BOCC's consideration of such an amendment. If such an amendment is approved without
prior agreement by the Parties to amendments to this Agreement necessary to hold Contractor
harmless from the adverse effects of the amendment, then the change in law shall be treated as a
change in law pursuant to Article 15.
ARTICLE 17 - PUBLIC ENTITIES CRIMES
A Person or its Affiliate who has been placed on the convicted vendor list following a
conviction for public entity crime may not submit a bid on contracts to provide any goods or
services to a public entity, may not submit a bid on a contract with a public entity for the
construction or repair of a public building or public work, may not submit bids on leases of real
property to a public entity, may not be awarded or perform work as a contractor, supplier,
subcontractor, or contractor under a contract with any public entity, and may not transact
business with any public entity in excess of the threshold amount provided in Section 287.017
of the Florida Statutes, for CATEGORY TWO for a period of 36 months from the date of being
placed on the convicted vendor list.
By signing this Agreement, Contractor represents that the execution of this Agreement will not
violate the Public Entity Crimes Act (Section 287.133, Florida Statutes). Violation of this
section shall be considered a default by Contractor and permit County to terminate this
Agreement, and may result in debarment from County's future competitive procurement
activities. County may also be able to recover amounts previously paid to the extent allowed by
Applicable Law.
In addition to the foregoing, Contractor further represents that there has been no determination,
based on an audit, that it or any subcontractor has committed an act defined by Section 287.133,
Florida Statutes, as a "public entity crime" and that it has not been formally charged with
committing an act defined as a "public entity crime" regardless of the amount of money
involved or whether Contractor has been placed on the convicted vendor list.
Contractor will promptly notify the County if it or any subcontractor or subcontractor of
Contractor is formally charged with an act defined as a "public entity crime" or has been placed
on the convicted vendor list.
ARTICLE 18 - MAINTENANCE OF RECORDS
Contractor shall maintain, and cause any applicable Affiliate to maintain, all books, records,
and documents directly pertinent to its performance under this Agreement in accordance with
generally accepted accounting principles consistently applied. Records shall be retained for a
period of five years from the expiration or termination of this Agreement. Subject to the
provisions of Article 30, each Party to this Agreement or its authorized representatives shall
have reasonable and timely access to such records of the other Party to this Agreement for
47
public records purposes during the term of the Agreement and for four years following the
expiration or termination of this Agreement. If an auditor employed by the County determines
that monies paid to Contractor pursuant to this Agreement were spent for purposes not
authorized by this Agreement, or were wrongfully retained by the Contractor, County shall
notify Contractor of the audit findings, providing all documentation supporting the
determination and the amounts involved. Contractor shall have the right to review the findings
and related documentation for up to thirty (30) days and to provide a written response accepting
or disagreeing with the findings. To the extent Contractor accepts the audit conclusions,
Contractor shall, within thirty (30) days, remit to County any amounts due including, where
required by law, interest calculated pursuant to Fl. Stat. Section 55.03. To the extent Contractor
disagrees with the audit findings, the Parties shall engage in discussion and negotiation for a
period of thirty (30) days, as extended by agreement of the Parties in an effort to reach a
resolution of the disagreements. If and to the extent after such negotiations the disagreements
are not resolved in their entirety, either Party shall have the right to seek further remedies
pursuant to Article 24.
ARTICLE 19 - GOVERNING LAW.
VENUE. INTERPRETATION. COSTS, AND FEES
This Agreement shall be governed by and construed in accordance with the laws of the State of
Florida applicable to contracts made and to be performed entirely in the State. In the event that
any cause of action or administrative proceeding is instituted for the enforcement or
interpretation of this Agreement, County and Contractor agree that any action shall be filed,
tried and remain in the state courts of the state of Florida, specifically the 16 Judicial Circuit,
Monroe County, Florida, in the appropriate court or before any appropriate state administrative
body with jurisdiction. Each party knowingly and voluntarily waives any right the Party may
have under state or federal law for removal of any action filed in state courts to any federal
court. This agreement shall not be subject to arbitration. Mediation proceedings initiated and
conducted pursuant to this Agreement shall be in accordance with the Florida Rules of Civil
Procedure and usual and customary procedures required by the circuit court of Monroe County.
ARTICLE 20 - SEVERABILITY
If any term, covenant, condition or provision of this Agreement (or the application thereof to
any circumstance or Person) shall be declared invalid or unenforceable to any extent by a court
of competent jurisdiction, the remaining terms, covenants, conditions and provisions of this
Agreement, shall not be affected thereby; and each remaining term, covenant, condition and
provision of this Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law unless the enforcement of the remaining terms, covenants, conditions and
provisions of this Agreement would prevent the accomplishment of the original intent of this
Agreement. The County and Contractor agree to negotiate an amendment to the Agreement to
replace any stricken provision with a valid provision that comes as close as possible to the
intent and effect of the stricken provision.
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ARTICLE 21 - BINDING EFFECT
The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the
benefit of the County and Contractor and their respective legal representatives, successors, and
assigns.
ARTICLE 22 - AUTHORITY
Each Party represents and warrants to the other that the execution, delivery and performance of
this Agreement have been duly authorized by all necessary County and company action, as
required by law.
ARTICLE 23 - CLAIMS FOR FEDERAL OR STATE AID
Contractor and County agree that each shall be, and is, empowered to apply for, seek, and
obtain federal and state funds to further the purpose of this Agreement.
ARTICLE 24 - ADJUDICATION OF DISPUTES OR DISAGREEMENTS
County and Contractor agree that all disputes and disagreements shall be attempted to be
resolved by meet and confer sessions between authorized representatives of each of the Parties.
If no resolution can be agreed upon within 30 days after the first meet and confer session, then
any Party shall have the right to seek such relief or remedy as may be provided by this
Agreement or by Florida law. Each Party agrees to continue to perform its obligations under the
Agreement during the pendency of any dispute or related dispute resolution proceeding.
ARTICLE 25 - COOPERATION
In the event any administrative or legal proceeding is instituted against either Party by another
Person relating to the formation, execution, performance, or breach of this Agreement, County
and Contractor agree to participate, to the extent required by the other Party, in all proceedings,
hearings, processes, meetings, and other activities related to the substance of this Agreement or
provision of the services under this Agreement. County and Contractor specifically agree that
no Party to this Agreement shall be required to enter into any arbitration proceedings related to
this Agreement.
ARTICLE 26 - NONDISCRIMINATION
Contractor or County agrees to comply with all applicable Federal and Florida statutes, and all
local ordinances, as applicable, relating to nondiscrimination in employment. These include but
are not limited to: 1) Title VI of the Civil Rights Act of 1964 (PL 88 -352) which prohibits
discrimination on the basis of race, color or national origin; 2) Title IX of the Education
Amendment of 1972, as amended (20 USC ss. 1681 -1683, and 1685- 1686), which prohibits
discrimination on the basis of sex; 3) Section 504 of the Rehabilitation Act of 1973, as amended
(20 USC s. 794), which prohibits discrimination on the basis of handicaps; 4) The Age
Discrimination Act of 1975, as amended (42 USC ss. 6101 -6107) which prohibits
discrimination on the basis of age; 5) The Drug Abuse Office and Treatment Act of 1972 (PL
92 -255), as amended, relating to nondiscrimination on the basis of drug abuse; 6) The
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and Rehabilitation Act
of 1970 (PL 91 -616), as amended, relating to nondiscrimination on the basis of alcohol abuse or
alcoholism; 7) The Public Health Service Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3
and 290ee -3), as amended, relating to confidentiality of alcohol and drug abuse patient records;
8) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note), as may be amended
from time to time, relating to nondiscrimination on the basis of disability; 9) Monroe County
Code Chapter 13, Article VI, which prohibits discrimination on the basis of race, color, sex,
religion, national origin, ancestry, sexual orientation, gender identity or expression, familial
status or age; 11) Any other nondiscrimination provisions in any Federal or state statutes which
may apply to the Parties to, or the subject matter of, this Agreement.
ARTICLE 27 - COVENANT OF NO INTEREST
Contractor and County covenant that neither presently has any interest, and shall not acquire
any interest, which would conflict in any manner or degree with its performance under this
Agreement, and that the only interest of each is to perform and receive benefits as recited in this
Agreement.
ARTICLE 28 - CODE OF ETHICS
County agrees that officers and employees of the County recognize and will be required to
comply with the standards of conduct for public officers and employees as delineated in Section
112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of gifts; doing
business with one's agency; unauthorized compensation; misuse of public position, conflicting
employment or contractual relationship; and disclosure or use of certain information.
ARTICLE 29 - NO SOLICITATION/PAYMENT
The Contractor and County warrant that, in respect to itself, it has neither employed nor
retained any company or person, other than a bona fide employee working solely for it, to
solicit or secure this Agreement and that it has not paid or agreed to pay any Person, company,
corporation, individual, or firm, other than a bona fide employee working solely for it, any fee,
commission, percentage, gift, or other consideration contingent upon or resulting from the
award or making of this Agreement.
ARTICLE 30 - PUBLIC ACCESS
30.1 Public Records
The Contractor and County shall allow and permit reasonable access to, and inspection
of, all documents, papers, letters or other materials in its possession or under its control subject
to the provisions of Chapter 119, Florida Statutes, and made or received by the Contractor and
County in connection with this Agreement.
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Pursuant to F.S. 119.0701, Contractor shall comply with all applicable public records laws of
the State of Florida, including but not limited to:
(a) Keep and maintain public records that ordinarily and necessarily would be required by
Monroe County in order to perform the service. County shall cooperate with Contractor to
identify these records.
(b) Provide the public with access to non - proprietary public records on the terms and
conditions that Monroe County would provide the records and at a cost that does not exceed the
cost provided in Florida Statutes, Chapter 119 or as otherwise provided by law.
(c) Ensure that public records that are exempt or confidential and exempt from public records
disclosure requirements are not disclosed except as authorized by law.
(d) Meet all requirements for retaining public records and transfer, at no cost, to
Monroe County all public records in possession of the Contractor upon expiration or
termination of the Agreement and destroy any duplicate public records that are exempt or
confidential and exempt from public records disclosure requirements. All records stored
electronically must be provided to Monroe County in a format that is compatible with the
information technology systems of Monroe County.
30.2 Proprietary Materials. Contractor considers certain data and information related to the
performance of the Facility and its obligations under this Agreement, trade secret, confidential
and proprietary, either because (i) Contractor has confidentiality and non - disclosure agreements
with third parties from which the information was received, or (ii) the nature of the information
involved is sensitive and uniquely valuable to Contractor or its subcontractors or suppliers or its
disclosure would adversely affect Contractor's ability to compete in the marketplace, such as
protected intellectual property or special techniques, methods, or financial information
( "Contractor Proprietary Information "). Contractor Proprietary Information is agreed to
include, but not limited to:
(i) financial and cost information provided by Persons other than Contractor;
(ii) investment and financial data and information provided by equity Financiers in
Contractor or its Affiliates, and estimates, pro formas and other such financial data or
projections provided by Contractor to prospective Financiers;
(iii) all technical information, software, and other design and operational specifications,
procedures, and characteristics of the Facility, whether protected by Applicable Laws as
intellectual property or not;
(iv) non - public data and information with respect to contracts with other Persons
providing waste or services to Contractor at the Facility;
(v) information with respect to financial performance of Contractor or its Affiliates or the
Facility;
51
(vi) terms of any power purchase agreement or other contracts for sale of electricity or
Environmental Attributes.
Subject to Applicable Laws, and specific requirements of this Agreement to the contrary,
Contractor shall not be required to disclose or make public Contractor Proprietary Information.
ARTICLE 31- NON - WAIVER OF IMMUNITY
Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the
Contractor and the County in this Agreement and the acquisition of any commercial liability
insurance coverage, self- insurance coverage, or local government liability insurance pool
coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall
any contract entered into by the County be required to contain any provision for waiver.
ARTICLE 32 - PRIVILEGES AND IMMUNITIES
All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules
and pensions and relief, disability, workers' compensation, and other benefits which apply to
the activity of officers, agents, or employees of any public agents or employees of the County,
when performing their respective functions under this Agreement within the territorial limits of
the County, shall apply to the same degree and extent to the performance of such functions and
duties of such officers, agents, volunteers, or employees outside the territorial limits of the
County.
ARTICLE 33 - LEGAL OBLIGATIONS AND RESPONSIBILITIES
This Agreement is not intended to, nor shall it be construed as, relieving any Party from any
obligation or responsibility imposed upon the Party by law except to the extent of actual and
timely performance thereof by Party, in which case the performance may be offered in
satisfaction of the obligation or responsibility. Further, this Agreement is not intended to, nor
shall it be construed as, authorizing the delegation of the constitutional or statutory duties of the
County, except to the extent permitted by the Florida constitution, and other Applicable Laws.
ARTICLE 34 - NON - RELIANCE BY NON - PARTIES
Except expressly set forth in this Agreement with respect to the rights of Financiers, no
provision of this Agreement is intended to nor shall it in any way inure to the benefit of, any
customer, County resident or business, property owner or any other third -party so as to
constitute any such Person a third -party beneficiary under the Agreement, or of any one or more
of the terms hereof, or otherwise give rise to a case of action in any Person not a Party hereto.
No Person shall be entitled to rely upon the terms, or any of them, of this Agreement to enforce
or attempt to enforce any third -party claim or entitlement to or benefit of any service or
program contemplated hereunder. Neither County nor Contractor shall have any right, power or
authority to enter into any agreement or undertaking for, or act on behalf of, or to act as an
agent or representative or otherwise bind the other Party.
52
ARTICLE 35 - ATTESTATIONS AND TRUTH IN NEGOTIATION
Contractor agrees to execute such documents as County may reasonably require for the
administration of this Agreement, including a Public Entity Crime Statement, an Ethics
Statement, and a Drug -Free Workplace Statement.
ARTICLE 36 - NO PERSONAL LIABILITY
No covenant or agreement contained herein shall be deemed to be a covenant or agreement of
any member, officer, agent or employee of Monroe County or Contractor in his or her
individual capacity, and no member, officer, agent or employee of Monroe County or
Contractor shall be liable personally on this Agreement or be subject to any personal liability or
accountability by reason of the execution of this Agreement.
ARTICLE 37 - EXECUTION IN COUNTERPARTS
This Agreement maybe executed in any number of counterparts, each of which shall be
regarded as an original, all of which taken together shall constitute one and the same instrument
and any of the Parties hereto may execute this Agreement by signing any such counterpart.
INTENTIONALLY LEFT BLANK
(Signature pages to follow)
53
IN WITNESS WHEREOF, each Party has caused this Agreement to be executed by its duly
authorized representative on the day and year first above written.
in. Clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
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END OF AGREEMENT
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54
F,XHIRIT A
COMPENSATION RATES
Beginning on the Commercial Operation Date or the date that is 30 months after the
Effective Date, whichever is earlier, County shall compensate Contractor for services performed
in accordance with this Agreement according to the following rates:
Services
Fee
Load /transport from Transfer Stations and process at
$67.20 /ton
Facility — Yard Waste, Biomass
Load and transport Electronic Waste from applicable Points
To be negotiated
of Delivery to Facility and process
Load and transport Canal Waste from applicable Points of
$67.20 /ton
Delivery to Facility or alternative site and process
Processing fee for Canal Waste (excludes transportation)
$35 /ton
Load and transport C &D Waste from Transfer Stations to
$67.20 /ton
Facility and process
Emergency transport and processing of Yard Waste, C &D
$67.20 /ton, unless otherwise
Waste and Biomass after storm event
mutually agreed by Parties (and
FEMA if applicable)
Handling /disposal of Hazardous Substances or Prohibited
To be agreed by Parties; if no
Materials
agreement is needed, actual cost
of removal and disposal in
compliance with Environmental
Laws plus 15 percent
A -1
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ADMINISTRATIVE CHARGES
1. Failure to attain scheduled Commercial Operation Date by COD
$500 per day
Deadline, as extended under the Agreement.
2. Material non - compliance of vehicles used for transporting
$100 per
Acceptable Waste with Applicable Laws
incident
3. Submittal of required reports to County more than three days after
$150 per day
due date
4. Failure to provide County with access to Facility as required by
$500 per
this Agreement
incident
5. Failure to transport or handle waste properly
$500 per day
6. Failure to repair damage to County property
$150.00 per
incident
7. Failure to comply with designated facility regulations
$150.00 per
incident
8. Failure to maintain office hours as required
$150.00 per
incident
9. Operator not licensed
$150.00 per
incident
10. Failure to submit the financial statements, reports and other
$1000.00 per
information as required under this Agreement by the prescribed date
calendar day
For purposes of Item 5, a failure to handle or transport waste properly shall mean that Contractor
has not handled or stored Accepted Acceptable Waste at the Points of Delivery in accordance
with Applicable Laws or has failed to remove such materials from the Transfer Stations within
the time frame required by Applicable Laws.
B -1
EXHIBIT C
FEE ADJUSTMENTS
Beginning October 1, 2018 if the Commercial Operation Date occurs before April 1,
2018, or October 1, 2019 if the Commercial Operation Date occurs on or after April 1, 2018, the
then applicable rates set forth in Exhibit A shall be adjusted October 1 of each Contract Year as
follows:
The rates shall each be adjusted to reflect the change in the U.S. Consumer Price Index (CPI) for
the US (unadjusted) for all urban consumers, all items, published monthly by the US Bureau of
Labor and Statistics, relative to the CPI Index for the 12 month period ending in December or
2.5% and 1.5% in Contract Year 13, 14, and 15, whichever is less. If the CPI is discontinued
during the Term, an alternative equivalent index shall be used as agreed by the Parties.
C -1
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APPROVED PRODUCTS
The following substances resulting from processing of Acceptable Waste at the Facility
or other agreed sites are "Approved Products" for purposes of this Agreement.
Ash/Rock/Dirt
The inorganic residue from Acceptable Waste remaining after processing at the Facility
or otherwise screened or segregated during processing.
Metals
reused.
Any metals remaining after processing of Acceptable Waste which can be recycled or
Compost/Soil Amendment
Solid waste which has undergone biological decomposition of organic matter, has been
disinfected using composting, anaerobic digestion, or similar technologies, and has been
stabilized or processed to a degree that is potentially beneficial to plant growth and that is used
or sold for use as a soil amendment, artificial top soil, growing medium amendment or other
similar uses.
Synthetic Gas
Natural or synthetic gases produced by the Facility and which are used to generate
electricity or make fuels.
Methane
Methane gas created by an anaerobic digestion process which is used to generate
electricity.
Electricity
Electricity generated by the Facility or any approved digester or similar facility.
Environmental Attributes
All Environmental Attributes arising from the Facility, Back -Up Facility, or other
approved facilities, or Contractor's processing of Acceptable Waste, or electricity produced by
the Facility.
D -1
EXHIBIT E
FORM OF PERFORMANCE BOND
WASTE PROCESSING SERVICES
FOR MONROE COUNTY, FLORIDA
KNOW ALL MEN BY THESE PRESENTS: that as
Principal, hereinafter called Contractor, and, as Surety,
hereinafter called Surety, are held firmly bound unto the County of Monroe, Florida, as Obligee,
and hereinafter called the County, in the amount of Thousand Dollars
($ ) for the payment whereof Contractor and Surety bind themselves, their heirs,
executors, administrators, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, Contractor has by written agreement dated , 2016,
entered into an Agreement with the County for providing Waste Processing Services in
accordance with the Agreement of Monroe County, FL, which Agreement is by reference made a
part hereof, and is hereinafter referred to as the Agreement. The term of this bond is from
to . Renewal must be provided to the County sixty (60) days prior to
the expiration of the term.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if
Contractor shall promptly and faithfully perform said Agreement, then this obligation shall be
null and void; otherwise it shall remain in full force and effect.
The Surety hereby waives notice of any alteration or extension of time made by the
County.
Whenever Contractor shall be, and declared by the County to be in default under the
Agreement, the County having performed the County's obligations thereunder, the Surety may
promptly remedy the default, or shall promptly perform one of the following:
1. Complete the Agreement in accordance with its terms and conditions.
2. Obtain a bid or bids for completing the Agreement in accordance with the terms and
conditions, and upon determination by the Surety of the lowest responsible bidder, or if
the County elects, upon determination by the County and the Surety jointly obtain a bid
or bids for completing the Agreement in accordance with the terms and conditions, and
upon determination by the Surety of the lowest responsible bidder, or if the County
elects, upon determination by the County and the Surety jointly of the lowest responsible
bidder, arrange for an agreement between such bidder and the County, and make
available as work progresses (even though there should be a default or a succession of
defaults under the Agreement or Agreement of completion arranged under this
paragraph) sufficient funds to pay the cost of completion less the balance of the
Agreement price; but not exceeding, including costs and damages for which the Surety
may be liable hereunder, the amount set forth in the first paragraph hereof. The term
E -1
"balance of the Agreement price ", as used in this paragraph, shall mean the total amount
payable by the County to Contractor under the Agreement and any amendments thereto,
less the amount properly paid by the County to Contractor.
Any suit under this bond must be instituted before the expiration date of the Agreement or if
extended for an additional term by the County, the expiration of the extended term.
No right of action shall accrue on this bond to or for the use of any person or corporation other
than the County named herein or the executor, administrator or successors of the County of.
Signed and sealed this day of , 201_.
PRINCIPAL
(Witness)
(Witness)
Title
SURETY (Name of Insurer)
(Attorney -in -Fact
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SPECIFICATIONS FOR ACCEPTABLE AND OTHER WASTE STREAMS
The criteria set forth below define the Prohibited Materials and other minimum quality
characteristics for each type of Acceptable Waste or additional waste streams subject to, or
potentially subject to, this Agreement. In addition to Section 4.3, all Acceptable Waste delivered
by County to Contractor shall meet these specifications.
Yard Waste and Biomass
Prohibited Materials: Rock, dirt, metal and other inorganic materials; Hazardous
Substances; wood that is treated with creosote or arsenic or other chemical treatments.
Other Requirements: N/A
2. C &D Waste C &D Waste may include wood products, including products containing
resins, glues, paints, varnishes, and stains; paper, cardboard and similar products; and organic
landscaping waste.
Prohibited Materials: Rock, dirt, metals and other inorganic materials; Hazardous
Substances, including formaldehyde; cement, gypsum, bricks or similar stone materials;
Atomic Waste.
3. Canal Waste Canal Waste shall be dewatered to a moisture content no greater than 30%
by weight.
Prohibited Materials: Rock, dirt, metal and other inorganic materials; Hazardous
Substances other than naturally occurring levels of arsenic and copper.
4. Electronic Waste
Prohibited Materials: Atomic Waste; Hazardous Substances
Other Requirements:
5. Food Waste
Prohibited Materials: Biological Waste; Inorganic materials; Hazardous Substances
F -1
6. Sewage Solids Sewage Solids shall meet the US Environmental Protection Agency's
criteria for sewage solid resource recovery criteria in 40 CFR Part 503 and related
regulations, and corresponding state regulations.
Prohibited Materials: Hazardous Substances; inorganic materials
7. MSW
Prohibited Materials: Atomic Waste; Biological Waste; Hazardous Substances;
explosives
Other Requirements: Other requirements may be added based on design limitation of the
Facility.
F -2
EXHIBIT G
FORM OF INVOICE AND
REQUIRED PAYMENT DOCUMENTATION
Bill To: Monroe County Solid Waste Management
1100 Simonton Street
Key West, FL 33040
Invoice # Date Total Due Terms
Activity
Enclosed
Yard Waste Hauling Date Range Qty. Rate Amount
Key Largo Yard Waste Hauling
Long Key Yard Waste Hauling
Cudjoe Key Yard Waste Hauling
Key Largo Yard Waste to Garbage
Long Key Yard Waste to Garbage
Cudjoe Key Yard Waste to Garbage
Balance Due $
MATERIAL ANALYSIS REPORT BY MATERIAL
Key Largo
Material # of Trips Total Tons Adjustments Total Inbound
YW
YWTG
TOTAL
Long Key
Material # of Trips Total Tons Adjustments Total Inbound
YW
YWTG
TOTAL
Cudjoe Key
Material # of Trips Total Tons Adjustments Total Inbound
YW
YWTG
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TOTAL
ALL SITES
Material # of Trips
YW
YWTG
TOTAL
KEY LARGO
LONG KEY
CUDJOE
TOTAL
Total Tons
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Adjustments Total Inbound
EXHIBIT H
INTERIM YARD WASTE PROCESSING AGREEMENT
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INTERIM YARD WASTE PROCESSING SERVICES AGREEMENT
BETWEEN
MONROE COUNTY
AND
ENERGY3, LLC.
This Agreement ( "Agreement ") made and entered into this 18` day of February 2015 by and
between Monroe County, a political subdivision of the State of Florida, whose address is
1100 Simonton Street, Key West, Florida, 33040, (hereinafter referred to as
"County, ") through the Monroe County Board of County Commissioners ( "BOCC "),
AND
Energy3, LLC, a Delaware limited liability company, whose corporate headquarters address
is; 1997 Annapolis Exchange Parkway, Suite #300, Annapolis, MD 21401 (hereinafter
referred to as "Contractor ").
WITNESSETH:
WHEREAS, the County currently collects Yard Waste from residents, businesses and
government properties within the County for incineration and other disposal; and
WHEREAS, the County desires that its Yard Waste be processed for improved
sustainability and for cost effectiveness reasons; and
WHEREAS, on July 29, 2014, the County issued a Request for Proposals ( "RFP ") for Yard
Waste Processing Services for its Yard Waste; and
WHEREAS, on August 14, 2014, Contractor submitted a response to the RFP; and
WHEREAS, after evaluation of Contractor's proposal and other proposals, the selection
committee unanimously ranked the Contractor's proposal as the highest scoring proposal;
and
WHEREAS, on October 17, 2014, the BOCC authorized County staff to negotiate with
Contractor for Yard Waste processing services, and continue to evaluate the Contractor's
gasification proposal, and perform other due diligence duties on behalf of the County as part
of the negotiation process;
WHEREAS, on December 10, 2014, the BOCC directed County staff to prepare an
interim Agreement for interim Yard Waste processing services while the County continues
its due diligence into the feasibility of the gasification services offered by the Contractor on a
long term basis; and
WHEREAS, upon the completion of the County's due diligence process, if the County
desires, the parties may enter into an Agreement for long term yard waste processing
services at the proposed Gasification Plant; and
Page 1 of 47
WHEREAS, the terms and conditions of this Agreement constitute an interim agreement
between the County and the Contractor and provides for the Contractor to process the
County's Yard Waste;
NOW, THEREFORE, in consideration of the above premises and the mutual
promises, covenants and agreements stated herein, and for other good and valuable
consideration, the sufficiency and receipt of which are hereby acknowledged, County and
Contractor agree as follows:
For the purpose of this Agreement, the definitions contained in this Article shall apply unless
otherwise specifically stated. If a word or phrase is not defined in this Article, the definition
of such word or phrase as contained in Chapter 21 of the Monroe County Code shall
control. When not inconsistent with the context, words used in the present tense include the
future, words in the plural include the singular, and words in the singular include the plural.
Use of the masculine gender shall include the feminine gender.
1.1 Acceptable Waste
All Yard Waste.
1.2 Acceptance
The receipt of physical custody by Contractor of Yard Waste delivered by County at the
applicable Point of Delivery at any Transfer Station.
1.3 Administrator
The administrator of the Public Works Department of the County or any other Person
designated by County to perform similar responsibilities.
1.4
With respect to any Person, any Person directly or indirectly controlling, controlled by or
under common control with such Person.
1.5
This written document and all exhibits, attachments, and amendments hereto, between
County and Contractor, as it may be amended in accordance with its terms.
1.6 Applicable Law
All applicable laws, statutes, treaties, codes, ordinances, regulations, certificates, orders,
licenses and permits of any Government Authority, now in effect or hereafter enacted,
amendments to any of the foregoing, interpretations of any of the foregoing of a
Governmental Authority having jurisdiction, and all applicable judicial, administrative,
arbitration and regulatory decrees, judgments, injunctions, writs, orders, awards or like
actions.
Page 2 of 47
1.7 Approved Product
Any substance resulting from the processing of the Yard Waste and approved by
County, including, but not limited to, all substances listed in Exhibit D.
1.8 Atomic Waste.
Any special nuclear material, by- product materials or other material, the acquisition,
handling, use, transportation or disposal of which is specifically regulated under the
Atomic Energy Act of 1954, as amended, 42 U.S.C. Sections 2011, et. seq.
Any facility used by Contractor for processing of the Yard Waste other than the initial
Processing Facility or Gasification Plant, the use of which produces only Approved
Products.
1.10 Bioloaical Waste.
Any substance that causes or has the capability of causing disease or infection and
which includes biomedical waste, diseased or dead animals, and other wastes capable
of transmitting pathogens to humans or animals_
1.11 Business Day Any day other than a Saturday or Sunday on which banks in
Florida are open for business.
1.12 Commencement Date.
The date on which Contractor's must commence performance of its obligations under
this Agreement. The date of commencement shall be the date specified in the Notice to
Proceed to the Contractor.
1.13 Contract Year
A period of time one calendar year in length and commencing on the Commencement
Date and each anniversary of the Commencement Date during the Term.
1.14 Contamination
Waste material that does not meet the definition of Yard Waste.
1.15 County Representative
The Person who is designated by the County Administrator to administer and monitor
Contractor's performance under this Agreement.
1.16 Delivery.
The physical delivery by the County or its vendors or agents of Yard Waste to the Point
of Delivery at any Transfer Station and Contractor's Acceptance of such Yard Waste.
Page 3 of 47
1.17 Msoosal
The final disposition of Residue by the Contractor, at the Contractor's sole
expense.
1.18 Force Maieure
An event or circumstances as described in Section 5.
1,19 Gasification Plant.
The facility proposed to be developed, constructed and operated by Contractor or an
Affiliate of Contractor, which will be capable of processing Yard Waste and other waste
materials into synthetic gas, electricity, fertilizer, fuels or other Approved Products, as
described in Exhibit D.
1.20 Governmental Authority.
Any nation, government, state or other political subdivision thereof, whether foreign or
domestic, including, without limitation, any municipality, township and county, and any
entity exercising executive, legislative, judicial, regulatory, or administrative functions
of or pertaining to government, including, without limitation, any corporation or any
entity owned or controlled by any of the foregoing.
1.21 Interim Processing Facility(s)
The site(s) where the County has authorized the Contractor to process the County's
yard waste for the term of the Interim Agreement. Such sites could include the New
Hope waste -to- energy facility, the New Castle mulch and composting facility or other
waste disposal facilities as mutually agreed to by the County and the Contractor.
1.22 Hazardous Substance.
Collectively (i) any "hazardous substance" or "pollutant or contaminant" as defined in
Sections 101(14) and 101(33) of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Sec. 9601(4) & 9601(33); (ii) any element,
compound, mixture, solution or substance designated pursuant to Section 102 of the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
9602; (iii) petroleum, including crude oil or any fraction thereof; (iv) any hazardous
waste having the characteristics identified under or listed pursuant to the Solid Waste
Disposal Act, as amended, 42 U.S.C. Sec. 6921 et seq.; (v) any material defined as
"hazardous waste" pursuant to 40 C.F.R. Parts 260 or 261; (vi) any solid waste defined
as "hazardous waste" under the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6901, et sea .; (vii) any imminently hazardous chemical substance or mixture
for which the Administrator of the Environmental Protection Agency has taken action
pursuant to Section 7 of the Toxic Substances Control Act, 15 U.S.C. 2606; (viii) any
substance, the presence of which causes or threatens to cause a nuisance at any real
property (ix) unreaformaldehyde foam insulation; (x) asbestos and asbestos containing
materials (whether friable or non - friable); (xi) any asbestos, polychlorinated biphenyl,
radium or isomer of dioxin, or any material or thing containing or composed of such
Page 4 of 47
substance or substances; or (xii) any material now defined as "hazardous material"
pursuant to 49 C.F.R. §171.8, and (xiii) any material or substance defined as
"hazardous waste" pursuant to Applicable Laws in Florida; in each case as amended or
interpreted.
1.23 Operator.
The contracted operator of the County's transfer stations located at Cudjoe, Long Key
and Key Largo.
1.24 Party
Either Contractor or County, and their respective agents, authorized representatives,
successors and permitted assignees.
1.25 Parties
Contractor and County and their respective agents, authorized representatives,
successors and permitted assignees.
1.26 Permits
Any permit, license, consent, authorization, certificate, order, registration, or approval
required from any Governmental Authority for the Contractor to perform its obligations
under this Agreement.
1.27 P.ersg
Any individual, firm, company, association, organization, partnership, corporation, trust,
Governmental Authority, limited liability company or other entity or organization.
1.28 Point of Delivery
The Point of Delivery will be set forth in the Notice To Proceed. The location at any
Transfer Station at which Yard Waste or other Acceptable Waste is physically delivered
to Contractor and Contractor accepts title and risk of loss for such Yard Waste or
Acceptable Waste.
1.29 Processina
The act of composting, mulching, grinding, or otherwise loading and separating and
converting Yard Waste into Approved Products.
MELIA a il l mzml ,1. Mn
Any substance or material which (i) does not constitute Yard Waste or Acceptable
Waste, or (ii) Contamination.
Page 5 of 47
1.31 Receivina Hours at Transfer Stations
The Operator's operating hours at the County's transfer stations are 8:00 a.m. — 4:00
p.m. Monday through Saturday. The transfer stations are closed on Sundays,
Thanksgiving Day, Christmas Day and New Year's Day.
1.32 Residue
Ash, residue or other materials or substances remaining after Processing of Yard
Waste or Acceptable Waste which is not an Approved Product.
1.33 Site.
One or more locations at which any Processing Facility is located.
1.34 Solid Waste.
Garbage, rubbish, refuse, special solid waste, bulk waste, yard waste or horticultural
waste, industrial or commercial waste, or other discarded materials.
1.35 Transfer Stations
The current waste transfer facilities owned by the County at Cudjoe Key, Long Key, and
Key Largo and any additional locations designated by County and acceptable to
Contractor.
1.36
Horticultural waste and other vegetative matter including, but not limited to, materials
such as tree and shrub trimmings and prunings, grass clippings, mulch, palm fronds,
tree stumps, logs, tree trunks, tree limbs, brush, right -of -way trimmings, landscaping or
logging residues, slash, wood, wood products and any other woody or plant material.
1.37 Processina Facility.
Any facility at which Contractor provides or contracts for processing of Yard Waste or
other Acceptable Waste as identified to County.
2 ARTICLE 2 TERM OF AGREEMENT
2.1 Tgrm
(a) The Term of this Interim Yard Waste Processing Services Agreement is anticipated
to commence on April 1, 2015, but the date of commencement shall be the date
specified in the Notice To Proceed issued by the County and shall continue for a period
of thirty (30) months, unless earlier terminated or extended in accordance with its terms.
(b) If County approval for long term Yard Waste Processing at the proposed
Gasification Plant does not occur within the thirty (30) month term of this Agreement, the
Page 6 of 47
County may elect to terminate this Interim Services Agreement upon six (6) months'
written notice to Contractor.
(c) If the County approves a long term Yard Waste processing within the thirty (30)
month term of this Agreement, it is understood that the Contractor will need
approximately thirty (30) months to obtain permits and construct the Gasification Plant
and thus the County agrees to extend this Interim Agreement for the period of time
necessary for the completion of the proposed Gasification Plant.
(d) The County shall have the right to continue to conduct such due diligence with
respect to the Gasification Plant as it deems necessary to assess the suitability of the
Gasification Plant for processing of the Yard Waste and Acceptable Waste in
accordance with the County's environmental objectives and statutory obligations of the
County with respect to handling and disposal of solid wastes. Contractor will cooperate
with the County's due diligence process. At the end of the due diligence period, County
shall determine whether the Gasification Plant is acceptable for long term processing
Yard Waste and Acceptable Waste. If the County decides that it does not approve the
use of the Gasification Plant, this Agreement shall continue in effect for the Term,
unless the County exercises its option to termination as set forth above.
3.1 Representations and Warranties
By executing this Agreement, Contractor makes the following express representations
and warranties to the County as of the date the Agreement is executed. Contractor is a
limited liability company duly organized, and validly existing under the laws of Delaware
and in good standing under the laws of the State of Florida. It is qualified to transact
business in the State of Florida and has the power to own its properties and to carry on
its business as now owned and operated and as required by this Agreement. Contractor
has the authority to enter into and perform its obligations under this Agreement. The
members of Contractor have taken all actions required by Applicable Law and its
organizational documents, to authorize the execution of this Agreement. The Person
signing this Agreement on behalf of Contractor has authority to do so.
3.2
The Contractor, shall maintain all necessary licenses, permits or other authorizations
necessary to act as Contractor for the performance of Contractor's obligations
hereunder until the Contractor's duties hereunder have been fully satisfied. The
Contractor agrees to comply with all permit requirements as it relates to the Contractor's
use of the County owned Transfer Stations.
3.3 Documentation
The Contractor shall prepare all documents required by this Agreement in such a
manner that they are accurate and adequate for use in verifying work completed
and shall be in conformity and comply with all Applicable Laws.
Page 7 of 47
The Contractor warrants that the documents prepared pursuant to this Agreement will
be adequate and sufficient to document costs in a manner that is acceptable for
payment by County. The Contractor warrants that the documents provided to the County
will be in conformity and comply with all Department of Environmental Protection
requirements.
3.4 Compliance with Law
The Contractor's services shall be performed in accordance with the professional skill
and care required of similarly situated service providers. Contractor represents that it
has the expertise and professional and technical capability to perform all of its
obligations under this Agreement and is ready, willing and able to so perform. In
providing all services pursuant to this Agreement, the Contractor shall abide by all
Applicable Laws including those now in effect and hereinafter adopted subject to the
provisions of Section 17.
3.5 lndenendent Contractor
At all times and for all purposes under this agreement the Contractor is an independent
contractor and not an employee of the Board of County Commissioners for Monroe
County. No statement contained in this agreement shall be construed so as to find the
Contractor or any of its employees, contractors, servants, or agents to be employees of
the Board of County Commissioners for Monroe County.
•1T •i
Contractor has made available to County certain information on its financial condition,
and that of its Affiliates or Agents. Contractor recognizes that the County has relied on
this information in evaluating the sufficiency of Contractor's financial resources to
perform this Agreement. To the best of Contractor's knowledge, this information is
complete and accurate, does not contain any material misstatement of fact and does not
omit any fact necessary to prevent the information provided from being materially
misleading.
The Contractor and /or its Affiliates will provide Yard Waste Processing Services during
the Term of this Agreement including Yard Waste transfer, loading, processing,
materials marketing services, and residue disposal (if necessary) for Yard Waste
materials generated in the County and delivered to the three existing County-owned
Transfer Stations. Other Transfer Stations may be added or substituted by the mutual
agreement of the County and the Contractor.
The Contractor will be responsible for transferring the yard waste from each of the
various Transfer Stations located throughout the County to the Contractor's Site(s).
These services do not involve the initial collection of yard waste. The County's waste
collectors will collect the yard waste and deliver it to the Transfer Stations, at the
direction of the County. The Contractor according to its approved plan will haul Yard
Waste (and other acceptable materials) from the Transfer Stations to the Contractor's
Page 8 of 47
Site(s). The County's Operator who occupies the Transfer Station may offer to load the
yard waste onto the Contractor's trucks for transport to the Contractor's site — for a fee to
be negotiated by the Contractor. The Contractor may upon its sole discretion, choose to
load the yard waste itself at the Transfer Stations. The County in collaboration with the
transfer station Operator will provide all reasonable space and access at the County
owned transfer stations necessary for the Contractor to process, load, and transfer the
waste materials to the Contractor's processing and loading equipment and vehicles.
The County may permit, with prior approval, the use of technologies including
composting, mulching, incineration (only outside of Monroe County) and gasification of
the yard waste and any residues. The Contractor and its affiliates will also be responsible
for the production and sales or disposal of its by- products such as mulch, compost,
biogas, aggregate, recycled metals, renewable or nonrenewable energy, and residuals
during the Interim Yard Waste Processing Services Agreement.
4.1 County Collection, Delivery and Handling
4.1.1 Collection.
(a) Collection. County will collect, or cause its agents and collection contractors to
collect, all Yard Waste created or generated within the County, at County's expense.
County shall not allow the diversion of material amounts of Yard Waste by County or
County residents or businesses to other Persons for disposal, and County
acknowledges that Contractor's rights to receive all Yard Waste during the Term is
exclusive, except in the instance the Contractor does not comply with the terms of
this Interim Agreement or in an emergency.
(b) Tonnage. County shall use commercially reasonable efforts to provide a
reasonably equivalent amount of Yard Waste to Transfer Stations each month,
averaging, in the aggregate, 3500 tons per month by the end of this Interim
Agreement. Contractor acknowledges that there may be more than slight variations
in the amounts in years 1 and 2, seasonal variations in delivery amounts as well as
additional volumes caused by storms or other unusual events, and it will work with
County to address such circumstances. The County shall make every effort to
provide the Contractor with 40,000 tons of yard waste per year, but is not bound to
provide a minimum of 40,000 tons under this Interim Agreement.
4.1.2 Delivery; Acceptance County or its agents and contractors will
transport and deliver the Yard Waste to a Point of Delivery at any Transfer Station at
County's expense for Delivery to Contractor. Yard Waste shall contain no
Hazardous Materials and no more than three (3) percent of Prohibited Material or
Contamination measured by weight. Contractor shall have the right to inspect all
delivered Yard Waste prior to Acceptance for the presence of Hazardous Substances
or excessive amounts of Prohibited Materials or Contamination. In the event
Hazardous Substances or excessive amounts of Prohibited Materials or
Contamination are detected in any portion of Yard Waste delivered by County,
Contractor may redirect such contaminated Yard Waste and notify the County of
such redirection and the location of disposal within 24 hours. The Contractor shall
Page 9 of 47
provide documentation of the disposal of contaminated yard waste.
4.1.3 Weighing
County shall weigh and register the Contractor's empty trucks and transport vehicles
or shall weigh trucks or transport vehicles of Contractor arriving at any Transfer
Station before loading with Yard Waste as appropriate. Once loaded, the County
shall weigh each vehicle again and record the difference between the weights of
empty and loaded vehicles.
4.1.4 Transfer Station Operator.
The County in collaboration with its Operator, and upon adjusting the use of the
leased areas of the sites, shall make available sufficient room at the County owned
Transfer Station for Contractor to perform such on -site processing, which may
include grinding and loading of Yard Waste. The County acknowledges that it
contracts for the operation of the Transfer Stations and will make modifications to the
Operator's agreement as needed to ensure that Contractor has access to and use of
the transfer stations for the performance of the Contractor's obligations under this
Agreement. Contractor shall promptly notify County of any interference with
Contractor's activities or access by a Transfer Station operator which adversely
affects Contractor's performance of its obligations hereunder.
4.2 Contractor's Processing Services
4.2.1 Handling at Transfer Station The Contractor will provide Yard Waste
Processing Services during this Interim Agreement for Yard Waste materials
generated in the County and delivered to the three existing County -owned waste
transfer stations by the County's collection vendors. Other Transfer Stations or sites
may be added or substituted by the mutual agreement of the County and the
Contractor. Contractor may, at its option, elect to grind or otherwise chip or process
woody Yard Waste at the Transfer Station after Acceptance by Contractor to reduce
volume for transport. The costs for use of grinders and similar equipment shall be
the responsibility of Contractor.
4.2.2 Loading. Loading of Yard Waste Delivered to Contractor shall be the
responsibility of Contractor. Contractor may contract separately for loading services,
contract with a third parry, or perform the loading services itself, in its discretion, if
Contractor elects to have a third -party provide loading services, County shall not
unreasonably withhold approval to allow such Person necessary access to the
applicable Transfer Station to perform such services, subject to all - County approved
transfer station operating hours, applicable laws and County safety and security
requirements for the transfer stations. If the Contractor contracts with a third party,
the third party will be considered the Contractor's agent, and Contractor is
responsible for all acts or omissions of its agents. County shall make available, or
cause any contractor of County operating the Transfer Station to make available,
sufficient room and access to each Transfer Station necessary for Contractor to load
Page 20 of 47
its transport vehicles as stated above in Section 4.1.4. Regardless of the method the
Contractor selects for loading, the fee for interim processing to the County remains
unchanged and as specified herein.
4.2.3 Transport Contractor shall be responsible for transporting, or arranging
for transport of, all Delivered Yard Waste to a Processing Facility during this Interim
Agreement to a Processing Facility after the Commencement Date, at Contractor's
expense. Subject to the provisions of Section 4.1.1 (b) and 4.1.2, Contractor shall
use commercially reasonable efforts to transport Yard Waste from each Transport
Station as sufficient volumes accumulate for efficient and economical processing and
transport, and shall not allow the accumulation of Yard Waste at any Transfer Station
in amounts that interfere with Transfer Station operations or cause safety concerns.
4.2.4 Processing Contractor shall be responsible for processing of all Yard
Waste at any Interim Processing Facility. Acceptable Processing Facilities shall
include in or out of County composting or, mulching facilities and out of County
gasification and incineration waste to energy facilities. The Contractor shall ensure
that the recycling credits received for processing at these sites, as provided by
Department of Environmental Protection, are acceptable to the County. The interim
processing facilities include, but are not limited to:
New Hope biomass processing facility
(next to the Okeelanta Sugar Mill and Refinery)
8501 US HWY 27 South, South Bay, Florida
Oldcastle Lawn & Garden mulch processing facility
30075 Us Highway 27, Moore Haven, FL 33471
4.2.5 Emergency Processing The Contractor may only use air curtain
incinerators or landfills as a last option when needed to process larger volumes of
Yard Waste delivered during peak seasons or as a result of storm events or
infestations, and shall be approved by the County in advance at the request of the
Contractor. The Contractor shall ensure that the recycling credits received for
processing, as provided by the Department of Environmental Protection, are
acceptable to the County.
4.2.6 Approved Production; Residue Contractor shall be responsible for the
marketing, sale or disposal of all Approved Products or Residue from processing
activities, at Contractor's expense, and shall be entitled to all revenues or income
received from the sale of any such Approved Products or Residue.
..• 31- . • u - t
Contractor shall provide and maintain all labor, equipment, tools, facilities, and
personnel supervision required for the performance of Contractor's obligations under
this Agreement. Contractor shall at all times have sufficient backup equipment and labor
to fulfill Contractor's obligations. The enumeration of, and specification of requirements
Page 11 of 47
for, particular items of labor or equipment shall not relieve Contractor of the duty to
furnish all others that may be required, whether enumerated or not. No compensation
for Contractor's services or for Contractor's supply of labor, equipment, tools, facilities,
or supervision shall be provided or paid to Contractor by County or by any service
recipient except as expressly provided by this Agreement.
ITIETTIM. :1 MOM ROTIN,
All vehicles used by Contractor and its Affiliates or subcontractors in the performance of
services under this Agreement shall be in compliance with all registration, licensing and
inspection requirements of the Florida Highway Patrol, the Florida Department of Motor
Vehicles, and any other Applicable Laws or regulations. Contractor may be subject to
administrative charges for not complying with all Applicable Laws for vehicle registration,
licensing and inspection.
Contractor and its Affiliates shall maintain copies of all certificates and reports
evidencing compliance with this Section 4.4, and shall make such certificates and
reports available for inspection upon request by the County Representative. Contractor
shall not use any vehicle to perform services under this Agreement that is not in
compliance with Applicable Laws.
Contractor shall have available to it, at all times, reserve Yard Waste processing
equipment which can be put into service and operation as soon as practicable after
any breakdown of primary equipment. Such reserve equipment shall be of sufficient
size and capacity to perform the services required by this Agreement.
Pers onnel Reau
Ge neral Manaaer Qual
Contractor shall have a qualified general manager or other individual with direct
responsibility for performance of its services under this Agreement. Upon County
request, Contractor shall provide a written description of its general
manager's duties, responsibilities, and commitments to parties other than the
County, including duties and responsibilities related to Contractor management
activities, and other collection, processing or disposal operations. The written
description shall be provided within fifteen (15) calendar days of the County's
request.
The general manager shall be readily available to the County Representative
and the Administrator through the use of telecommunications equipment at
all times that Contractor is providing services pursuant to this Agreement.
Page 12 of 47
4.6.3 Emergency Contact.
Contractor shall provide the County Representative with emergency phone
number(s) at which the general manager, and any other Contractor representative
authorized to act on Contractor's behalf, can be reached outside of normal
Contractor office hours. The emergency representative shall respond to any call
from the County within one (1) hour.
Contractor shall employ and assign qualified personnel to perform all services set
forth herein. Contractor shall be responsible for ensuring that its employees
comply with all federal, state, and local laws applicable to their employment,
responsibility, and position.
1.1,1•.!'11 � ..It •'A • �
Contractor shall at all times maintain a level of management and supervisory
staffing sufficient to perform the services required by this Agreement. Upon County
request, Contractor shall provide written identification of key management and
supervisory personnel, and such additional related information as may reasonably
be requested by the County, including but not limited to, organization
chart(s), resumes, job descriptions, identification of current responsibilities, and
allocation of time to responsibilities.
4.6.6 Trainina
Contractor shall provide the initial and ongoing personnel training
necessary or required to perform the requirements of this Agreement. Training
includes, but may not be limited to, operational training, safety training programs,
compliance with Applicable Laws, and other training.
4.6.7 Office Hours
Contractor and staff shall be available to County staff Monday through Friday from
8:30 AM to 5:00 PM, or as otherwise approved by the County Representative,
except for legal holidays.
4.7 Permits and Accels.
r t tl •. t. ?.l ..
Contractor shall be solely responsible for obtaining, at its own expense, any and all
Permits, necessary for the transportation, processing, and transfer of materials
Delivered to Contractor by County, and maintain same in full force and effect
throughout the term of the Agreement.
Page 13 of 47
4.7.2
Contractor shall provide proof of such Permits, and shall demonstrate compliance
with the terms and conditions of such Permits, upon the request of the County
Representative.
4.7.3 Compliance.
Contractor shall at all times ensure that it is in compliance with all other Applicable
Laws with respect to performance of its obligations hereunder.
4.7.4 Facility Access
Contractor shall at all times, with reasonable verbal notice, provide the County
Representative with access to any facilities engaged in providing Yard Waste
processing services subject only to reasonable notice, safety and security
requirements of any third party owner or operator of any such facility. Contractor
may be subject to administrative charges for failing to provide access under this
Section.
4.7.5 Contractor's Loading Hours
The Contractor will have access to the Transfer Stations and perform its Yard Waste
processing and loading responsibilities during the hours of: 4:00 AM to 8:00 AM
Monday through Saturday, except on Holidays. This Schedule is being used to
mitigate interference with the Operator's operations at the County's Transfer
Stations, whose operating hours are 8:00 a.m. — 4:00 p.m. Monday through
Saturday. The transfer stations are closed on Sundays, Thanksgiving Day,
Christmas Day and New Year's Day. Actual hours of Yard Waste pick up and
transport operations will be detailed and agreed to mutually by the Administrator and
Contractor based on availability of County staff and dependent upon anticipated
volumes of Yard Waste presented to the various Transfer Stations. The
Administrator shall be able to adjust the loading hours by mutual agreement of the
parties.
4.7.5 Processing Facility Capacity
Contractor shall provide, at one or more Processing Facilities, capacity adequate for
processing all Yard Waste Accepted by Contractor pursuant to this Agreement.
4.7.6 Holiday Service
The County Transfer Stations observe Thanksgiving, Christmas and New Year's.
Contractor shall not be required to provide Yard Waste processing services
on these designated holidays.
4.8 Ownership of Material
Title to and risk of loss for Yard Waste shall pass to Contractor when the Contractor
Page 14 of 47
accepts the conforming Yard Waste at any Transfer Station pursuant to Section 4.1.2
4.9 Litter Abatement
Contractor shall not litter in the process of providing the services required by this
Agreement. Contractor shall transport or cause the transport of all Yard Waste and
Residue in such a manner as to reasonably prevent the spilling or blowing of such
waste from Contractor's vehicles. Contractor agrees to clean up litter at the Transfer
Stations within two (2) days of County inspection and sending notice to the Contractor.
Notice may be given by telephone or electronic mail ( "email ").
4.10
Contractor shall properly dispose of any and all Residue created at any Processing
Facility at the sole expense of the Contractor. If Contractor disposes of Hazardous
Materials or Prohibited Materials for County, the material handling and disposal will be
subject to reimbursement by County in accordance with a schedule of fees as agreed
by the County and Contractor.
4.11 Angroved Products
4.11.1 Contractor shall ensure that all Yard Waste Accepted pursuant to this
Agreement is processed only into the Approved Products listed in Exhibit D. In the
event additional products of the Processing Facility are identified by Contractor,
Contractor may make written request to add such additional products as "Approved
Products" to the Administrator. However, Contractor may not process, or allow
processing of, Yard Waste into any such additional products unless these products
are approved by the Administrator in writing.
4.11.2 Approved Products Records
Contractor shall maintain such records as are necessary and sufficient to verify that
Yard Waste processed pursuant to this Agreement is processed into Approved
Products.
4.12 Emeraencv Service
The Contractor has established a program to identify and manage yard waste which
requires emergency management and handling, such as larger than normal amounts
received during a storm event. In the event emergency waste is received at a Transfer
Station in quantities which require special management and handling, the County shall
notify the Contractor that possible emergency handling of such waste is required. If
emergency handling of such waste is reasonably and mutually deemed by the County
and the Contractor, the generator or transporter of such waste may be charged a
handling and disposal fee negotiated between the County and the Contractor, if mutually
agreed by the parties. In the event the County and the Contractor are unable to agree on
fees, the matter shall be submitted to the County Administrator or his or her designee for
final determination. The County may elect to use other contractors for the removal,
transport and processing of emergency storm waste.
Page 25 of 47
Article 5 Force Maieure
5.1 The term "Force Majeure" shall mean an event or circumstance beyond the control of
the Party claiming Force Majeure, that, by exercise of due diligence and foresight, could
not reasonably have been avoided, including, but not limited to flood, earthquake,
hurricane, tropical storm, fire, lightning, epidemic, war, riot, civil disturbance, sabotage,
terrorism, strike, and act of God or any other cause beyond the control of the Party
claiming Force Majeure. However, the obligation to use due diligence shall not be
interpreted to require resolution of labor disputes by acceding to demands of the
opposition when such course is inadvisable in the discretion of the Party having such
difficulty. The performance of each Party under this Agreement may be subject to
interruptions or reductions due to an event of Force Majeure. In this instance this will
include the suspension, termination, interruption, denial or failure of or delay in
renewal or issuance of any permit, license, consent, authorization, services, access
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 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, a partial or
entire delay or failure in the provision of necessary utilities or services to the facility.
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.
5.2 Remedial Action
A Party shall not be liable to the other Party in the event it is prevented from
performing its obligations hereunder in whole or in part due to an event of Force
Majeure. The Party rendered unable to fulfill any obligation by reason of a Force
Majeure shall take all action necessary to remove such inability with all due speed
and diligence. The nonperforming Party shall be prompt and diligent in attempting to
remove the cause of its failure to perform, and nothing herein shall be construed as
permitting that Party to continue to fail to perform after said cause has been
removed.
5.3 Exclusions from Definition of Force Maieure. Notwithstanding anything in this
Agreement to the contrary, "Force Majeure" shall not mean:
(a) General inclement weather normally experienced within the County or in the
vicinity of the transfer station or processing facility and affecting operation of a
Transfer Station or Processing Facility.
(b) Changes in market conditions, governmental action, or weather conditions that
affect the cost of any Party's performance, except as expressly set forth herein.
Page 16 of 47
(c) Unavailability of equipment, repairs or spare parts, except to the extent due to a
qualifying event of Force Majeure.
(d) Any mechanical or equipment breakdown or other or events or conditions
attributable to normal wear and tear or flaws or failure to operate or maintain such
component in accordance with manufacturer's requirements, unless such event is
caused by a qualifying event of Force Majeure.
5.4 Notice.
In the event of any delay or nonperformance resulting from Force Majeure, the Party
suffering the event of Force Majeure shall, within forty eight (48) hours or as soon as
practical after the occurrence or the Party's knowledge of the occurrence of the Force
Majeure event, notify the other Party in writing of the nature, cause, date of
commencement thereof, and the anticipated extent of any delay or interruption in
performance.
5.5 Subcontractors
Contractor shall be entitled to use qualified subcontractors listed herein to perform
any of its obligations under this Agreement, provided that the use of subcontractors
shall not relieve Contractor of its liability for such obligations. The Contractor may
submit future subcontractors for approval to the County, and such approval shall not
be unreasonably withheld by the County.
5.6 Existina Environmental Liability
Contractor shall have no liability or responsibility for any existing violation of any
Applicable Laws with respect to any Transfer Station or County's collection and
handling of Yard Waste or Acceptable Waste prior to its Delivery to Contractor,
including, but not limited to (i) any existing Hazardous Substances at any Transfer
Station, or the future use, release, handling or disposal of Hazardous Substances by
any Person other than Contractor and its agents and subcontractors at any Transfer
Station; (ii) any Hazardous Substances present in the Yard Waste or Acceptable
Waste or their handling, release or disposal; or (iv) compliance of any Transfer
Station with any other Applicable Laws relating to the natural environment or human
health or safety.
All written correspondence to the County shall be dated and signed by an authorized
representative of the Contractor. Any notice required or permitted under this Agreement shall
be in writing and hand delivered or mailed, postage pre -paid, to the County by certified mail,
return receipt requested, to the following:
Mr. Kevin Wilson
Solid Waste Department
Monroe County
1100 Simonton Street, Room 2 -216
Key West, Florida 33040
Wilson- kevin(a fl.gov
Page 17 of 47
And: Mr. Roman Gastesi
Monroe County Administrator
1100 Simonton Street, Room 2 -205
Key West, Florida 33040
Gastesi-roman(a
Ms. Rhonda Haag
Monroe County
102050 Overseas Highway, Ste. 2 -240
Key Largo, FL 33037
Haag- rhonda(a7monroecounty- fl.gov
With a copy to:
Mr. Bob Shillinger
Monroe County Attorney
1111 12th Street, Suite 408
Key West, Florida, 33040
Shillinger -Bob(@ Mon roeCounty- FL. Gov
For the Contractor:
Mike Lent
Energy 3, LLC
1997 Annapolis Exchange Pkwy
Suite #300
Annapolis, MD 21401
MJLent(u7energy- three.com
With a copy to:
Chuck Work
Energy3, LLC
1997 Annapolis Exchange Pkwy
Suite #300
Annapolis, MD 21401
charles.r.work(ftmail.com
Jeffrey C. Paulson
Paulson Law Office, Ltd.
7301 Ohms Lane
Suite 325
Edina, MN 55439
7.1 "Additional Services" are services not included in the scope of Contractor's
services under this Agreement. Should the County require Additional Services they shall
be paid for by the County at rates or fees negotiated at the time when services are
required, but only if approved by the County and Contractor before commencement.
County shall request the proposed services from Contractor and the Contractor shall
Page 18 of 47
respond with a fee proposal to perform the requested services. Only after an
amendment to the Agreement is executed by both Parties reflecting the Additional
Services and a notice to proceed is received by Contractor from the County, shall the
Contractor proceed with the Additional Services.
8 ARTICLE 8 COUNTY'S RESPONSIBILITIES
8.1 The County shall provide information upon request regarding requirements for the
Contractor's performance of its obligations under this Agreement.
8.2 The County shall designate a representative to act on the County's behalf
with respect to the Agreement. The County or its representative shall render decisions in
a timely manner pertaining to requests submitted by the Contractor in order to avoid
unreasonable delay in the orderly and sequential performance of the Contractor's
services.
8.3 Prompt written notice shall be given by the County through its
representative to the Contractor if it becomes aware of any fault or defect in the
Contractor's performance of the Agreement. Written notice shall be deemed to have
been duly served if sent pursuant to Article 6.
8.4 The County shall furnish the required information and services and shall
render approvals and decisions as expeditiously as necessary for the orderly
performance of the Contractor's services.
8.5 County agrees to reasonably cooperate with Contractor in any applications that
Contractor is making for tax credits, grants or financial assistance as described in
Section 4.16, at Contractor's expense. County's obligation shall consist only of providing
nonproprietary information in its possession, custody or control necessary to complete
any such applications, responding to requests from the relevant Government Authorities,
and similar activities.
9 ARTICLE 9 INDEMNIFICATION AND HOLD HARMLESS
9.1 The Contractor covenants and agrees to indemnify and hold harmless
County /Monroe County and Monroe County Board of County Commissioners, its officers
and employees from liabilities, damages, losses and costs, including but not limited to,
reasonable attorneys' fees, to the extent caused by the negligence, recklessness, or
intentional wrongful conduct of the Contractor, subcontractor(s) and other persons
employed or utilized by the Contractor in the performance of the contract.
9.2 The first ten dollars ($10.00) of remuneration paid to the Contractor is for
the indemnification provided for above. The extent of liability is in no way limited to,
reduced, or lessened by the insurance requirements contained elsewhere within this
agreement. Should any claims be asserted against the County by virtue of any
deficiency or ambiguity in the plans and specifications provided by the Contractor, the
Contractor agrees and warrants that he shall hold the County harmless and shall
indemnify him from all losses occurring thereby and shall further defend any claim
or action on the County's behalf.
Page 19 of 47
9.3 In the event the completion of the project (to include the work of others) is
delayed or suspended as a result of the Contractor's failure to purchase or maintain the
required insurance, the Contractor shall indemnify County from any and all increased
expenses resulting from such delays. Should any claims be asserted against County by
Contractor the Contractor agrees and warrants that Contractor hold the County
harmless and shall indemnify it from all losses occurring thereby and shall further
defend any claims or action on the county's behalf.
9.4 Contractor 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.
9.5 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.
9.6 This indemnification shall survive the expiration or early termination of the
Agreement.
10 ARTICLE 10 PERSONNEL
The Contractor shall assign only qualified personnel to perform any obligations under this
Agreement and as set forth in Section 4.6.
11 ARTICLE 11 COMPENSATION
11.1 Interim Processing Rate
During the Interim Processing Term, the County shall pay Contractor $79.50 per ton of
Yard Waste Accepted by Contractor for processing at the Points of Delivery. This rate
shall be adjusted to reflect annual changes in the U.S. Consumer Price Index as
specified in Exhibit C, effective beginning October 1, 2016. Payments may also include
additional services as directed by the County and agreed to by the Contractor.
11.2 Agreement Amount
The COUNTY shall pay the Contractor in current annual funds for the Contractor's
performance of this Agreement. Funding for years 1 -2.5 are estimated as follows, which
includes the estimated CPI (2.5 %) as allowed and specified herein:
Year 1 $2,385 Million - $3.180 Million
Year 2 $2,444 Million - $3,259 Million
Year 3 (half year) $1.252 Million — $1.670 Million
Total Estimated Amount: $6.081 Million - $8.109 Million
Page 20 of 47
These numbers represent estimated numbers only, and are based on estimated
quantities of materials and CPI increases. Actual annual CPI increases will be
determined as described in Exhibit C. Actual numbers are expected to vary.
These estimates are not meant as a minimum or maximum amount to be
guaranteed under this Agreement on behalf of either the County or the
Contractor.
11.3 Adiustment for Volume Distribution.
The rate set forth in Section 11.1 is based on the estimates that (i) Yard Waste delivered
each Contract Year will range approximately 30,000 to 40,000 tons in the aggregate and
(ii) the distribution of Yard Waste will be approximately 50% tons from the Lower Keys, -
20% tons from the Middle Keys and 30 %from the Upper Keys. In the event that the
amount of Yard Waste delivered to Contractor from the Middle or Lower Keys in any
given Contract Year exceeds 25% each respectively, the price per ton for all such Yard
Waste in excess of the 25% shall be adjusted based on the additional transportation
Contractor's expenses, as mutually agreed by both Parties.
11.4 Payment Sum
The County shall pay the Contractor in current funds for the Contractor's performance of
this Agreement based on rates shown in Exhibit as adjusted pursuant to Section 11. 1,
and the payments shall, in the aggregate, along with County's performance of its other
obligations under this Agreement, be full consideration for Contractor's performance of
its obligations hereunder.
11.5 Payer
Contractor shall be paid twice monthly. Payment will be made in accordance with the
Local Government Prompt Payment Act, Florida Statutes Section 218.70, unless
otherwise expressly provided herein.
As a condition precedent for any payment due under this Agreement, the Contractor
shall submit on the 1 and 15` of each month, unless otherwise agreed in writing by the
County, an invoice to County requesting payment for services rendered and
reimbursable expenses due hereunder. The Contractor's invoice shall describe with
reasonable particularity the services rendered. The Contractor's invoice shall be
accompanied by such documentation or data in support of expenses for which payment
is sought as the County may reasonably require.
11.6 Budaet
11.6.1 The County will seek approval in its annual budget request from the BOCC,
funding sufficient to cover the anticipated Interim Yard Waste Disposal Services
Agreement fees.
11.6.2 The Contractor may not be entitled to receive, and the County is not
obligated to pay, any fees or expenses in excess of the amount budgeted for this
contract in each fiscal year (October 1 - September 30) by County's Board of County
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Commissioners. The budgeted amount may only be modified by an affirmative act
of the County's Board of County Commissioners.
1 1.6.3 The County's performance and obligation to pay under this Agreement is
contingent upon an annual appropriation by the Board of County Commissioners and
the approval of the Board members at the time of contract initiation and its duration.
11.6.4 Payments shall be due to Contractor within thirty (30) days after County's
receipt of each required invoice from Contractor.
11.6.5 Overdue Payments shall be made according to the Prompt Payment Act
Provisions
11.7 Wire Transfer County shall attempt to make payment of bills via wire transfer
of funds or ACH if timely requested in writing by Contractor, at Contractor's sole
expense, if the request contains adequate payment information. County shall be entitled
to conclusively presume, without any liability whatsoever, that the payment information
furnished by Contractor (for example, name, financial institution, account numbers, and
payee) is accurate. In no event will County be required to pay any bill more than once
when the invoice was first paid in accordance with Contractor's instructions.
11.8 County Non - performance.
If during any Billing Period due to the fault of the County, the Facility is temporarily shut
down, either partially or totally, or is otherwise unable to receive or Process Acceptable
Waste, the Contractor 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 operationdue to the County's fault.
12 ARTICLE 12 INSURANCE
12.1 The Contractor shall obtain insurance as specified and maintain the
required insurance at all times that this Agreement is in effect. In the event the
completion of the project (to include the work of others) is delayed or suspended as a
result of the Contractor's failure to purchase or maintain the required insurance, the
Contractor shall indemnify the County from any and all increased expenses
resulting from such delay.
12.2 The coverage provided herein shall be provided by an insurer with an A.M. Best
rating of VI or better, that is licensed to conduct business in the State of Florida and that
has an agent for service of process within the State of Florida. The coverage shall
contain an endorsement providing sixty (60) days' notice to the County prior to any
cancellation of said coverage
12.3 Contractor shall obtain and maintain the following policies:
A. Workers' Compensation insurance as required by the State of Florida, sufficient
to satisfy the requirements of Florida Statutes Chapter 440.
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B. Employers Liability Insurance with limits of $1,000,000 per Accident, $1,000,000
Disease, policy limits, $1,000,000 Disease each employee.
C. Comprehensive business automobile and vehicle liability insurance covering
claims for injuries to members of the public and /or damages to property of others
arising from use of motor vehicles, including onsite and offsite operations, and
owned, hired or non -owned vehicles, with One Million Dollars ($1,000,000.00)
combined single limit and One Million Dollars ($1,000,000.00) annual aggregate.
D. Commercial general liability, including Personal Injury Liability, covering claims
for injuries to members of the public or damage to property of others arising out of
any covered act or omission of the Contractor or any of its employees, agents or
Affiliates or subcontractors, including Premises and /or Operations, Products and
Completed Operations, Independent Contractors; Broad Form Property Damage
and a Blanket Contractual Liability Endorsement with One Million
Dollars ($1,000,000) per occurrence and annual aggregate.
An Occurrence Form policy is preferred. If coverage is changed to or provided on a
Claims Made policy, its provisions should include coverage for claims filed on or
after the effective date of this contract. In addition, the period for which claims may
be reported must extend for a minimum of 48 months following the termination or
expiration of this contract.
E. Professional Liability Insurance of One Million Dollars ($1,000,000) per
occurrence and Two Million dollars ($2,000,000) annual aggregate. If the policy is
a "claims made" policy, the Contractor shall maintain coverage or purchase a "tail"
to cover claims made after completion of the project to cover the statutory time
limits in chapter 95 of the Florida Statutes.
F. County shall be named as an additional insured with respect to Contractor's liabilities
hereunder in insurance coverages identified in Paragraphs C and D.
G. Contractor shall require its subcontractors (including Affiliates) to be insured at least
to the limits prescribed above, and to any increased limits of Contractor if so
agreed during the term of this Agreement. County will not pay for increased limits
of insurance for Affiliates.
H. Contractor shall provide to the County certificates of insurance or a copy of all
insurance policies including those naming the County as an additional insured. The
County reserves the right to require a certified copy of such policies upon request.
I. If the CONTRACTOR participates in a self- insurance fund, a Certificate of
Insurance will be required. In addition, the CONTRACTOR may be required to
submit updated financial statements from the fund upon request from the COUNTY.
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13 ARTICLE 13 REPORTING REQUIREMENTS,
13.1 Reports
13.1.1 General.
Contractor shall provide, at a minimum, a monthly report following the
Commencement Date. The contents of these reports shall be mutually agreed
by Contractor and the County Representative.
13.2 Summary of Monthly, Quarterly, and Annual Reporting Requirements
13.2.1 Operational Data.
The following table identifies the operational data the Contractor shall
routinely submit.
Operational Data
Monthly
Quarterly
Annual
Tons Delivered
X
Tons Redirected
X
Tons Accepted
X
X
Tons Processed
X
X
Tons of Residue Disposed and
Name of Disposal Facility(ies)
Used
X
o of Tonnage Allocation Used
X
Significant Events
X
13.2.2 Financial Information
The following table identifies the financial information the Contractor shall routinely
submit.
Financial Information
Monthly
Quarterly
Annual
Amount billed to County*
X
County fees or payments (if any)*
due
X
County past due amount
X
Audited Financial Statements **
X
*Invoices will be presented to and paid by the County twice monthly
** Excluding proprietary information. Proprietary information shall be
visually shown to Contractor Administrator for verification purposes only.
13.2.3 Monthly Reports.
13.2.3.1 Tons Delivered, Redirected, Accepted, and Processed The tons
Delivered, Accepted, and Processed shall be calculated using daily Tonnage
reports from the scale house data management system. Tons Accepted shall be
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calculated as the tons Delivered less tons Redirected. Tons Accepted shall be
separately treated as Tons Accepted on a conditional basis subject to redirection
if Contamination is above three percent (3 %).
13.2.3.2 Tons of Residue Disposed The tons of Residue disposed shall be
the tonnage determined in accordance with procedures described in Article 7.
13.2.3.3 County fees or payments (if any) due to County If the Contractor
owes the County fees or administrative charges, the Contractor shall itemize
each fee or payment due for the most - recently completed month.
13.2.4 Quarterly Reports
13.2.4.1 Significant Events Contractor shall discuss any significant events
that have impacted or will impact Contractor and/or any Processing Facility
currently being utilized, including, but not limited to, operational changes related
to receipt, Acceptance, Processing, Residue disposal, Hazardous Materials,
and notices of violations. Contractor shall describe the potential
consequences of such events and plans to mitigate such consequences. Notice
of violations shall be immediately reported to the County.
13.2.5 Annual Reports
13.2.5.1 Summary of Monthly Data Annual reports shall include a summary
report that presents all monthly data required by the monthly reporting
requirements and shall include an annual total for each item reported.
13.2.5.2 Audited Financial Statements Within one hundred twenty (120)
calendar days after the close of Contractor's fiscal year, Contractor shall
deliver to the County two (2) copies of the audited consolidated financial
statements and profit and loss statements of Contractor for the preceding
fiscal year. Financial statements shall include a supplemental combining
schedule showing Contractor's non- proprietary results of operations, including
the specific revenues and expenses in connection with the operations provided
for in this Agreement from others included in such financial statements. The
financial statements and footnotes shall be prepared in accordance with
Generally Accepted Accounting Principles (GAAP) consistently applied and
fairly reflecting the results of operation and Contractor's financial condition.
Annual financial statements shall be audited, in accordance with Generally
Accepted Auditing Standards (GAAS) by a Certified Public Accountant (CPA)
who is a member of the American institute of Certified Public Accountants
(AICPA) licensed (in good standing) to practice public accounting, and provide
that the CPA opinion on Contractor's annual financial statements shall be
unqualified, and shall contain the CPA's conclusions regarding the
Contractor's accounting policies and procedures, internal controls, and
operating policies. The CPA shall perform an evaluation and, if necessary, shall
cite recommendations for improvement.
13.3 Report Format
Contractor shall provide records to the County using an electronic format approved by
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the County Representative. The reports may be sent electronic mail ( "e- mail "), or if
e-mail is not feasible, through an alternate electronic medium that is compatible
with the County's software and computer systems.
13.4 Report Submittal
Contractor shall submit the following reports in accordance with the deadlines set
forth below.
WE VM MrA ..1
Contractor shall submit monthly reports to the County on or before the last day of
the calendar month immediately following the monthly period covered by the report.
13.4.2 Quarterly Report
Contractor shall submit quarterly reports within thirty (30) days of the end of the
previous calendar quarter.
13.4.3 Annual Report
Contractor shall submit annual reports on or before 1 year after the commencement
date for the services provided in the previous calendar year. The final annual report
covering the last six months of service shall be submitted Thirty (30) days
following termination of the Agreement.
13.4.4 Submittal Day Exceptions
If the last day of the month falls on a Saturday, Sunday or a designated holiday
under this Agreement, the report is due on the next calendar day.
13.4.5 Submittal to County.
All reports shall be submitted to the County Representative.
13.4.6 Late, Inaccurate, Incomplete Reports
Reports that are not filed by the due date or are incomplete or inaccurate are
delinquent. Contractor shall submit a corrected report within thirty (30)
calendar days of written notice from the County. Administrative charges may be
imposed on Contractor for a late report, or failure to correct an inaccurate or
incomplete report.
13.4.7 On- Request Reports.
Contractor shall maintain current information regarding key personnel; vehicle
inventory; composting data; all applicable Permits; and tonnage for materials
Delivered, Redirected, Processed, and Disposed.
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14 ARTICLE 14 FINANCIAL ASSURANCE OF PERFORMANCE
Contractor shall furnish to the County Clerk, and keep current, a Performance Bond
substantially in a form substantially as set forth in Exhibit E, Form of Performance
Bond, for the performance of this Agreement and all of Contractor's obligations
arising hereunder in an amount and term as follows:
From ten (10) calendar days from the Effective Date through sixty (60) days after the
expiration of the Term or until County issues a written release, whichever is earlier, in an
amount of $795,000, which is an amount equal to 25% of the CONTRACTOR's
estimated annual processing fee.
14.2 Licensed Surety.
The Performance Bond shall be issued by a surety company licensed to do
business in the State of Florida; having an "A or better rating by A. M. Best or
Standard and Poor's and included on the list of surety companies approved by the
Treasurer of the United States. If the Performance Bond is shorter than the term of this
Agreement, Contractor shall submit proof of renewal or extension at least thirty (30)
calendar days prior to the Performance Bond expiration date.
14.3 Alternative Security.
Contractor may request, and County may allow Contractor to provide the following
alternative security for the performance of this Agreement in the same amount
and term as specified for the Performance Bond in the form of: (a) a prepaid
irrevocable standby letter of credit from a financial institution satisfactory to the
Administrator, which authorizes the County to withdraw funds in the event of a default
under this Agreement and approved as to form by the County Attorney; or (b) a
certificate of deposit or other escrowed funds subject to an escrow agreement in favor
of the County with a financial institution satisfactory to the Administrator.
In the event alternative security is approved by the County, Contractor shall notify the
County Representative within three (3) calendar days of any change in status. County
may periodically request verification from the financial institution that issued the letter of
credit regarding the status of the letter of credit. If the letter of credit is no longer in full
effect, Contractor must cure the defect within five (5) Business Days. Failure to cure
within this period may subject the Contractor to administrative charges.
14.4 Use of Security
In addition to any other remedy available to it, County may draw against the
Performance Bond or alternative security to satisfy any undisputed obligations of
Contractor to County arising under this Agreement that Contractor has not otherwise
paid when due, after any required notice and opportunity to cure. Any failure to draw
upon the Performance Bond or alternative security for amounts due to County shall not
prejudice County's rights to recover such amounts in any other manner or at any other
time. In the event the amount of the Performance Bond or alternative security shall be
insufficient to pay any amount due to County in full (and Contractor has not otherwise
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paid such amount), Contractor shall replenish the Performance Bond or alternative
security to its full amount within thirty (30) days. In the event Contractor fails to replenish
the Performance Bond or alternative security and pay the applicable amount promptly
when due, County shall have the right to terminate the Agreement in accordance with
Section 16.3.
15 ARTICLE 15 MISCELLANEOUS
15.1 Section Headings
Section headings have been inserted in this Agreement as a matter of
convenience of reference only, and it is agreed that such section headings are not a
part of this Agreement and will not be used in the interpretation of any provision of this
Agreement.
15.2 Ownership Of Documents
Any documents prepared by the Contractor for this Agreement belong to the Contractor
and, with the exception of proprietary documents, may be reproduced and copied by
the County for internal use only without acknowledgement or permission of the
Contractor.
15.3 Successors And Assians
The Contractor shall not assign its obligations under this agreement, except in writing
and with the prior written approval of the BOCC and the Contractor, which approval
shall be subject to such conditions and provisions as the BOCC may deem reasonably
necessary. This paragraph shall be incorporated by reference into any assignment and
any assignee shall comply with all of the provisions of this Agreement. Subject to the
provisions of the immediately preceding sentence, each Party hereto binds itself, its
successors, assigns and legal representatives to the other and to the successors,
assigns and legal representatives of such other Party.
15.4 No Third Party Beneficiaries
Nothing contained herein shall create any relationship, contractual or otherwise, with,
or any rights in favor of, any third party. No provision of this Agreement is intended to
nor shall it in any way inure to the benefit of any other Person not a Party or give rise to
a cause of action in favor of any Person not a Party.
16 TERMINATION FOR DEFAULT
16.1 The following shall each constitute an Event of Default by Contractor:
a. Contractor shall take the benefit of any present or future insolvency statute,
or shall make a general assignment for the benefit of creditors, or file a voluntary
petition in bankruptcy (court) or a petition or answer seeking an arrangement for
its reorganization or the readjustment of its indebtedness under the Federal
bankruptcy laws or under any other law or statute of the United States or any
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state thereof, or consent to the appointment of a receiver, trustee or liquidator
of all or substantially all of its property.
b. By order or decree of a Court, Contractor shall be adjudged bankrupt or an
order shall be made approving a petition filed by any of its creditors or by any of
the stockholders of Contractor, seeking its reorganization or the readjustment of
its indebtedness under Federal bankruptcy laws or under any law or statute of
the United States or of any state thereof, provided that if any such judgment or
order is stayed or vacated within sixty (60) calendar days after the entry thereof,
any notice of default shall be and become null, void and of no effect; unless such
stayed judgment or order is reinstated in which case, said default shall be
deemed immediate; or
C. By, or pursuant to, or under the authority of any legislative act, resolution or
rule or any order or decree of any Court or governmental board, agency or
officer having jurisdiction, a receiver, trustee or liquidator shall take
possession or control of all or substantially all of the property of contractor, and
such possession or control shall continue in effect for a period of sixty (60)
calendar days; or
d. Contractor has defaulted, by failing or refusing to pay in a timely manner the
administrative charges, or other monies due county, and said default is not cured
within thirty (30) calendar days of receipt of written notice by County to do so, or
e. Contractor has defaulted by allowing any final judgment for the payment of
substantial money to stand against it unsatisfied and said default is not cured
within thirty (30) calendar days of receipt of written notice by County to do so.
f. In the event that the monies due County under Section 17.1.1.4 above or
an unsatisfied final judgment under Section 17.1.1.5 above is the subject of a
judicial proceeding, Contractor shall not be in default if the sum of money is
bonded. All bonds s h a I I be in a form acceptable to the County Attorney; or
g. Contractor has defaulted, by failing or refusing to perform or observe the
terms, conditions or covenants in this Agreement or any of the rules and
regulations promulgated by County pursuant thereto or has wrongfully failed
or refused to comply with the instructions of the County Representative
relative thereto and said default is not cured within thirty (30) calendar days of
receipt of written notice from County to do so, or if by reason of the nature of
such default, the same cannot be remedied within thirty (30) calendar days
following receipt by Contractor of written demand from County to do so,
Contractor fails to commence the remedy of such default within said thirty (30)
calendar days following such written notice or having so commenced shall fail
thereafter to continue with diligence the curing thereof (with Contractor having the
burden of proof to demonstrate (a) that the default cannot be cured within thirty
(30) calendar days, and (b) that it is proceeding with diligence to cure said
default, and such default will be cured within a reasonable period of time.
i. Contractor has failed or refused to perform Yard Waste Processing
Services for a period of more than two (2) calendar days, and Contractor has
not cured the default within ten (10) calendar days from written notification by
County. The County is not required to provide Contractor with an opportunity to
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cure if the Contractor had 4 incidents within the previous twelve (12) months of
failing or refusing to perform Yard Waste Processing Services for a period of
more than two (2) calendar days.
16.2 The following shall each be an Event of Default by County:
(a) County directs any material amount of Yard Waste, or Acceptable Waste
dedicated to Contractor exclusively, except when the Contractor not in compliance with
the terms of this agreement or in an emergency to any other Person during the Term, or
fails to deliver Yard Waste to Contractor as required hereunder.
(b) County fails to make any payment due to Contractor under this Agreement within
ten (10) Business Days after such amount is due.
(c) County breaches any curable, non - monetary, material obligation under this
Agreement, and fails to cure such breach within thirty (30) days after receiving written
notification from Contractor of the breach.
(d) Any other material breach of this Agreement not specifically enumerated, that is not
cured within thirty (30) days after County received written notification of default from
Contractor.
16.3 Termination Upon Default
16.3.1 In the event the defaulting Party fails to cure the Event of Default within
the period for curative action under Sections 16.1 or 16.2, as applicable, or upon the
occurrence of an incurable Event of Default, the non - defaulting Party may terminate
this Agreement by notifying the defaulting Party in writing of its decision to terminate
and the effective date of the termination.
16.3.2 Upon termination of this Agreement by County due to an Event of Default
by Contractor pursuant to Section 16.3.1, County shall have no future or further
obligation to provide Yard Waste or Acceptable Waste to Contractor or to make any
payment whatsoever under this Agreement, except for payments for obligations
arising or accruing prior to the effective date of termination. Upon termination of this
Agreement by Contractor due to an Event of Default by County pursuant to Section
16.3.1, Contractor shall have no future or further obligation to accept or process Yard
Waste or Acceptable Waste from County or to satisfy any other obligation of this
Agreement, except for payments or other obligations arising or accruing prior to the
effective date of termination. After the effective date of termination, this Agreement
shall not be construed to provide any residual value to either Party or any successor
or any other Person, for rights to, use of, or benefits from the Yard Waste, Acceptable
Waste or Gasification Plant.
16.3.3 Notwithstanding any provisions in this Agreement to the contrary, upon the
occurrence of an Event of Default by Contractor, County shall provide notice of the
Event of Default to each Financier for which an address or other contact information
has been provided to County by Contractor.
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16.3.4 If an Event of Default by Contractor will require more than the prescribed
cure period to cure, and Contractor is diligently pursuing a cure, as reasonably
demonstrated to County, then the applicable cure period shall be extended up to an
additional ninety (90) days as long as Contractor is diligently pursuing the cure. This
provision shall not apply to payment defaults.
16.3.5 If the Parties are engaged in a dispute as to whether an Event of Default
has occurred or whether a Party has the right to terminate this Agreement, and the
Parties are handling the dispute through the procedures established in this
Agreement, the Party claiming the Event of Default or the right to terminate shall not
be entitled to terminate this Agreement until a final ruling is received from the
applicable court or unless agreed to by the Parties.
16.4 Other Damages
(a) For all claims, causes of action and damages the Parties shall be entitled to the
recovery of actual damages allowed by law unless otherwise limited by this
Agreement. Neither the enumeration of Events of Default in Sections 16.1 and
16.2, nor the termination of this Agreement by a non - defaulting Party pursuant to
Section 16.3.1, shall limit the right of a non - defaulting Party to rights and
remedies available at law, including, but not limited to, claims for breach of
contract or failure to perform by the other Party and for direct damages incurred
by the non - defaulting Party as a result of the termination of this Agreement.
(b) Except as otherwise specifically and expressly provided in this Agreement, no
Party shall be liable to the other Party under this Agreement for any indirect,
special, punitive, exemplary, incidental or consequential damages, including,
without limitation, loss of use, loss of revenues, loss of profit, interest charges,
cost of capital, or claims of customers to which service is made, whether arising
under statute or in tort or contract.
16.5 Termination Cumulative
Each Party's right to terminate this Agreement is in addition to any other rights and
remedies provided by Applicable Laws or by this Agreement.
16.6 Transition
(a) In the event of a termination of this Agreement by Contractor for default by County or
due to a change of law making performance impossible or uneconomic as described in
Section 17.3, Contractor shall be entitled to cease performing services under the
Agreement upon the effective date of termination, including termination of subcontracts,
and may recover its equipment from Transfer Stations without interference by County or
its contractors or agents. Contractor shall cooperate with County in any transition to a
new services provider, but shall not be obligated to incur any material costs in assisting
such a transition.
(b) In the event of a termination of this Agreement by the County due to an Event of
Default by the Contractor that is not cured by the Performance Bond or alternative
security, Contractor shall complete any work necessary to facilitate the transfer of
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Contractor's responsibilities to another contractor and cooperate with County's
establishment of a new contract or other means of performing the services previously
performed by Contractor. County shall have the right to separately contract with any
subcontractor of Contractor for services, or may request that Contractor assign one or
more subcontracts to County. Any such assignment will be subject to approval by the
applicable subcontractor and County's assumption of all Contractors' obligations of the
applicable subcontract.
16.7 Violations.
Notwithstanding the foregoing and as supplemental and additional means of
termination of this Agreement under this Article, in the event that
Contractor's record of performance show that Contractor has frequently, regularly,
or repetitively defaulted in the performance of any of the covenants and
conditions required herein to be kept and performed by Contractor, in the opinion
of the County Administrator and regardless of whether CONTRACTOR has
corrected each individual condition of default, Contractor shall be deemed a
"habitual violator ", shall be deemed to have waived the right to any further notice
or grace period to correct, and all of said defaults shall be considered
cumulative and collectively shall constitute a condition of irredeemable
default. The County Manager shall thereupon issue Contractor a final warning
citing the circumstances therefore, and any single default by contractor of
whatever nature, subsequent to the occurrence of the last of said cumulative
defaults, shall be grounds for immediate termination of the Agreement. In
the event of any such subsequent default, the County Manager may
terminate this Agreement upon giving of written final notice to Contractor, such
termination to be effective upon the date specified in the County Manager's
written notice to Contractor. Upon such termination, all contractual fees due
hereunder plus any and all charges and interest, if any, shall be payable to
the date of termination, and Contractor shall have no further rights
hereunder. Immediately upon the specified date in such final notice, Contractor
shall cease any further performance of services under this Agreement.
16.8 Effective Date of Termination.
In the event of the aforesaid events specified in Sections 16.1 and 16.2
above, and except as otherwise provided in said Sections, termination shall be
effective upon the date specified in the County's written notice to Contractor and
upon said date, this Agreement shall be deemed immediately terminated
and upon such termination, all liability of County under this Agreement to
Contractor, other than the payment of moneys due, shall cease and County shall
have the right to call the performance bond or other form of financial assurances
and shall be free to negotiate with other contractors for the performance of the
services specified in this Agreement. In the event of Contractor's failure to
perform, Contractor shall reimburse County for all direct and indirect costs
incurred by County in providing interim services.
16.9 Immediate Termination.
The County may terminate this Agreement immediately upon written notice to
Contractor in the event Contractor fails to provide and maintain the
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Performance Bond or other form of financial assurances as required
by this Agreement, CONTRACTOR fails to obtain or maintain insurance policies
endorsements as required by this Agreement, Contractor fails to provide the
proof of insurance as required by this Agreement, or Contractor offers or gives
any gift prohibited by law.
16.10 Termination Cumulative.
County's right to terminate this Agreement is cumulative to any other rights and
remedies provided by law or by this Agreement.
17 ARTICLE 17 CHANGE IN LAW.
17.1 County shall provide written notice to Contractor of any planned amendment
to Chapter 21, or to other applicable chapters of the Monroe C o u n ty Code
that would substantially affect the performance of Contractor's services pursuant
to the Agreement. Except in the case of an amendment determined by the
County BOCC to be an urgency measure, such notice shall be provided at least
sixty (60) calendar days prior to the County BOCC's approval of such an
amendment.
17.2 County and Contractor understand and agree that the Florida Legislature has
the authority to make comprehensive changes in Solid Waste Management legislation
and that these and other changes in law in the future which mandate certain actions or
programs for counties or municipalities may require changes or modifications in some
of the terms, conditions or obligations under this Agreement. Nothing contained in this
Agreement shall require any party to perform any act or function contrary to law. County
and Contractor agree to enter into good faith negotiations regarding modifications to
this Agreement which may be required in order to implement changes in the
performance of their obligations due to change in law. When such modifications are
made to this Agreement, County and Contractor shall negotiate in good faith, a
reasonable and appropriate compensation adjustment for any increase or decrease in
the services or other obligations required of Contractor due to any modification in the
Agreement under this Article. Neither County nor Contractor shall unreasonably withhold
agreement to such compensation adjustment.
17.3 If a change in law makes Contractor's performance of any material portion of this
Agreement impossible (without violating the law) or uneconomic, and the Parties fail to
negotiate an amendment which resolves the legal or economic barriers to Contractor's
continued performance, Contractor may, upon thirty (30) days' notice to County,
terminate this Agreement.
18 ARTICLE 18 CONTRACT DOCUMENTS.
This contract consists of the Request for Proposals, any addenda, this Form of Agreement,
the CONTRACTOR'S response to the RFP, the documents referred to in the Form of
Agreement as a part of this Agreement, and Exhibits, and modifications made after execution
by written amendment. In the event of any conflict between any of the Contract documents,
the one imposing the greater burden on the CONTRACTOR will control.
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19 ARTICLE 19 OWNERSHIP OF WRITTEN MATERIALS.
Subject to Chapter 119, Florida Statutes, all reports, documents, or other materials
developed by Contractor or any other person engaged by Contractor in connection with the
services to be performed under this Agreement shall be and shall remain the property of the
Contractor and with the exception of materials proprietary to County without limitation or
restrictions on the use of such materials.
20 ARTICLE 20 PUBLIC ENTITIES CRIMES.
A person or affiliate who has been placed on the convicted vendor list following a conviction
for public entity crime may not submit a bid on contracts to provide any goods or services to a
public entity, may not submit a bid on a contract with a public entity for the construction or
repair of a public building or public work, may not submit bids on leases of real property to
public entity, may not be awarded or perform work as a contractor, supplier, subcontractor, or
contractor under a contract with any public entity, and may not transact business with any
public entity in excess of the threshold amount provided in Section 287.017 of the Florida
Statutes, for CATEGORY TWO for a period of 36 months from the date of being placed on the
convicted vendor list.
By signing this Agreement, Contractor represents that the execution of this Agreement will not
violate the Public Entity Crimes Act (Section 287.133, Florida Statutes). Violation of this
section shall result in termination of this Agreement and recovery of all monies paid hereto,
and may result in debarment from County's competitive procurement activities.
In addition to the foregoing, Contractor further represents that there has been no
determination, based on an audit, that it or any subcontractor has committed an act defined by
Section 287.133, Florida Statutes, as a "public entity crime" and that it has not been formally
charged with committing an act defined as a "public entity crime" regardless of the amount of
money involved or whether Contractor has been placed on the convicted vendor list.
Contractor will promptly notify the County if it or any subcontractor or subcontractor is formally
charged with an act defined as a "public entity crime" or has been placed on the convicted
vendor list.
21 ARTICLE 21 MAINTENANCE OF RECORDS.
Contractor shall maintain all books, records, and documents directly pertinent to performance
under this Agreement in accordance with generally accepted accounting principles
consistently applied. Records shall be retained for a period of five years from the termination
of this Agreement. Each Party to this Agreement or its authorized representatives shall have
reasonable and timely access to such records of each other Party to this Agreement for public
records purposes during the term of the Agreement and for four years following the
termination of this Agreement. If an auditor employed by the County or Clerk determines that
monies paid to Contractor pursuant to this Agreement were spent for purposes not authorized
by this Agreement, or were wrongfully retained by the Contractor, the Contractor, shall repay
the applicable monies together with interest calculated pursuant to Sec. 55.03 of the Florida
Statutes, running from the date the monies were paid by the County.
Page 34 of 47
This Agreement shall be governed by and construed in accordance with the laws of the State
of Florida applicable to contracts made and to be performed entirely in the State. In the event
that any cause of action or administrative proceeding is instituted for the enforcement or
interpretation of this Agreement, County and Contractor agree that venue shall lie in the 16
Judicial Circuit, Monroe County, Florida, in the appropriate court or before the appropriate
administrative body. This agreement shall not be subject to arbitration. Mediation proceedings
initiated and conducted pursuant to this Agreement shall be in accordance with the Florida
Rules of Civil Procedure and usual and customary procedures required by the circuit court of
Monroe County.
23 ARTICLE 23 SEVERABILITY.
If any term, covenant, condition or provision of this Agreement (or the application thereof to
any circumstance or person) shall be declared invalid or unenforceable to any extent by a
court of competent jurisdiction, the remaining terms, covenants, conditions and provisions of
this Agreement, shall not be affected thereby; and each remaining term, covenant, condition
and provision of this Agreement shall be valid and shall be enforceable to the fullest extent
permitted by law unless the enforcement of the remaining terms, covenants, conditions and
provisions of this Agreement would prevent the accomplishment of the original intent of this
Agreement. The County and Contractor agree to negotiate an amendment to the Agreement
to replace any stricken provision with a valid provision that comes as close as possible to the
intent of the stricken provision.
24 ATTORNEY'
The County and Contractor agree that in the event any cause of action or administrative
proceeding is initiated or defended by any party relative to the enforcement or interpretation
of this Agreement, the prevailing party shall be entitled to reasonable attorney's fees, court
costs, investigative, and out -of- pocket expenses, as an award against the non - prevailing
party, and shall include attorney's fees, courts costs, investigative, and out -of- pocket
expenses in appellate proceedings.
25 ARTICLE 25 §INDING EFFECT.
The terms, covenants, conditions, and provisions of this Agreement shall bind and inure to the
benefit of the County and Contractor and their respective legal representatives, successors,
and assigns.
26 ARTICLE 26 AUTHORITY.
Each party represents and warrants to the other that the execution, delivery and performance
of this Agreement have been duly authorized by all necessary County and company action, as
required by law.
27 ARTICLE 27 CLAIMS FOR FEDERAL OR STATE AID.
CONTRACTOR and COUNTY agree that each shall be, and is, empowered to apply for, seek,
Page 35 of 47
and obtain federal and state funds to further the purpose of this Agreement; provided that
all applications, requests, grant proposals, and funding solicitations shall be approved by each
party prior to submission.
28 ARTICLE 28 ADJUDICATION OF DISPUTES OR DISAGREEMENTS.
County and Contractor agree that all disputes and disagreements shall be attempted to be
resolved by meet and confer sessions between representatives of each of the parties. If no
resolution can be agreed upon within 30 days after the first meet and confer session, the issue
or issues shall be discussed at a public meeting of the Board of County Commissioners. If the
issue or issues are still not resolved to the satisfaction of the parties, then any party shall have
the right to seek such relief or remedy as may be provided by this Agreement or by Florida
law. This provision does not negate or waive the provisions of paragraph 16.3 concerning
termination or cancellation. Each Party agrees to continue to perform its obligations under the
Agreement during the pendency of any dispute or related dispute resolution proceeding.
29 ARTICLE 29 COOPERATION.
In the event any administrative or legal proceeding is instituted against either party relating to
the formation, execution, performance, or breach of this Agreement, County and Contractor
agree to participate, to the extent required by the other party, in all proceedings, hearings,
processes, meetings, and other activities related to the substance of this Agreement or
provision of the services under this Agreement. County and Contractor specifically agree that
no party to this Agreement shall be required to enter into any arbitration proceedings related to
this Agreement.
30 ARTICLE 30 NONDISCRIMINATION.
Contractor and County agree that there will be no discrimination against any person, and it is
expressly understood that upon a determination by a court of competent jurisdiction that
discrimination has occurred, this Agreement automatically terminates without any further
action on the part of any party, effective the date of the court order. Contractor or County
agrees to comply with all Federal and Florida statutes, and all local ordinances, as applicable,
relating to nondiscrimination in employment. These include but are not limited to: 1) Title VI of
the Civil Rights Act of 1964 (PL 88 -352) which prohibits discrimination on the basis of race,
color or national origin; 2) Title IX of the Education Amendment of 1972, as amended (20 USC
ss. 1681 -1683, and 1685- 1686), which prohibits discrimination on the basis of sex; 3) Section
504 of the Rehabilitation Act of 1973, as amended (20 USC s. 794), which prohibits
discrimination on the basis of handicaps; 4) The Age Discrimination Act of 1975, as amended
(42 USC ss. 6101 -6107) which prohibits discrimination on the basis of age; 5) The Drug Abuse
Office and Treatment Act of 1972 (PL 92 -255), as amended, relating to nondiscrimination on
the basis of drug abuse; 6) The Comprehensive Alcohol Abuse and Alcoholism Prevention,
Treatment and Rehabilitation Act of 1970 (PL 91 -616), as amended, relating to
nondiscrimination on the basis of alcohol abuse or alcoholism; 7) The Public Health Service
Act of 1912, ss. 523 and 527 (42 USC ss. 690dd -3 and 290ee -3), as amended, relating to
confidentiality of alcohol and drug abuse patient records; 8) Title VIII of the Civil Rights Act of
1968 (42 USC s. et seq.), as amended, relating to nondiscrimination in the sale, rental or
financing of housing; 8) The Americans with Disabilities Act of 1990 (42 USC s. 1201 Note),
as may be amended from time to time, relating to nondiscrimination on the basis of disability;
Page 36 of 47
9) Monroe County Code Chapter 13, Article VI, which prohibits discrimination on the basis of
race, color, sex, religion, national origin, ancestry, sexual orientation, gender identity or
expression, familial status or age; 11) Any other nondiscrimination provisions in any Federal or
state statutes which may apply to the Parties to, or the subject matter of, this Agreement.
31 ARTICLE 31 COVENANT OF NO INTEREST.
Contractor and County covenant that neither presently has any interest, and shall not acquire
any interest, which would conflict in any manner or degree with its performance under this
Agreement, and that the only interest of each is to perform and receive benefits as recited in
this Agreement.
32 ARTICLE 32 CODE OF ETHICS.
County agrees that officers and employees of the County recognize and will be required to
comply with the standards of conduct for public officers and employees as delineated in
Section 112.313, Florida Statutes, regarding, but not limited to, solicitation or acceptance of
gifts; doing business with one's agency; unauthorized compensation; misuse of public
position, conflicting employment or contractual relationship; and disclosure or use of certain
information.
33 ARTICLE 33
The Contractor and County warrant that, in respect to itself, it has neither employed nor
retained any company or person, other than a bona fide employee working solely for it, to
solicit or secure this Agreement and that it has not paid or agreed to pay any Person,
company, corporation, individual, or firm, other than a bona fide employee working solely for it,
any fee, commission, percentage, gift, or other consideration contingent upon or resulting from
the award or making of this Agreement. For the breach or violation of the provision, the
Contractor agrees that the County shall have the right to terminate this Agreement without
liability and, at its discretion, to offset from monies owed, or otherwise recover, the full amount
of such fee, commission, percentage, gift, or consideration.
34 ARTICLE 34 PUBLIC ACCESS,
The Contractor and County shall allow and permit reasonable access to, and inspection of, all
documents, papers, letters or other materials in its possession or under its control subject to
the provisions of Chapter 119, Florida Statutes, and made or received by the Contractor and
County in connection with this Agreement; and the County shall have the right to unilaterally
cancel this Agreement upon violation of this provision by Contractor.
Pursuant to F.S. 119.0701, Contractor and its subcontractors shall comply with all applicable
public records laws of the State of Florida, including but not limited to:
(a) Keep and maintain public records that ordinarily and necessarily would be required by
Monroe County in order to perform the service.
(b) Provide the public with access to public records on the terms and conditions that
Monroe County would provide the records and at a cost that does not exceed the cost
provided in Florida Statutes, Chapter 119 or as otherwise provided by law.
Page 37 of 47
(c) Ensure that public records that are exempt or confidential and exempt from public
records disclosure requirements are not disclosed except as authorized by law.
(d) Meet all requirements for retaining public records and transfer, at no cost, to
Monroe County all public records in possession of the Contractor upon termination of the
Agreement and destroy any duplicate public records that are exempt or confidential and
exempt from public records disclosure requirements. All records stored electronically must
be provided to Monroe County in a format that is compatible with the information technology
systems of Monroe County.
35 ARTICLE 35
Notwithstanding the provisions of Sec. 768.28, Florida Statutes, the participation of the
Contractor and the County in this Agreement and the acquisition of any commercial liability
insurance coverage, self - insurance coverage, or local government liability insurance pool
coverage shall not be deemed a waiver of immunity to the extent of liability coverage, nor shall
any contract entered into by the County be required to contain any provision for waiver.
36 ARTICLE 36 PRIVILEGES AND IMMUNITIES,
All of the privileges and immunities from liability, exemptions from laws, ordinances, and rules
and pensions and relief, disability, workers' compensation, and other benefits which apply to
the activity of officers, agents, or employees of any public agents or employees of the County,
when performing their respective functions under this Agreement within the territorial limits of
the County shall apply to the same degree and extent to the performance of such functions
and duties of such officers, agents, volunteers, or employees outside the territorial limits of the
County.
37 ARTICLE 37 LEGAL OBLIGATIONS AND RESPONSIBILITIES,
This Agreement is not intended to, nor shall it be construed as, relieving any participating
entity from any obligation or responsibility imposed upon the entity by law except to the extent
of actual and timely performance thereof by any participating entity, in which case the
performance may be offered in satisfaction of the obligation or responsibility. Further, this
Agreement is not intended to, nor shall it be construed as, authorizing the delegation of the
constitutional or statutory duties of the County, except to the extent permitted by the Florida
constitution, and other Applicable Laws.
No person or entity shall be entitled to rely upon the terms, or any of them, of this Agreement
to enforce or attempt to enforce any third -party claim or entitlement to or benefit of any service
or program contemplated hereunder. , and the Contractor and the County agree that neither
the Contractor nor the County or any agent, officer, or employee of either shall have the
authority to inform, counsel, or otherwise indicate that any particular individual or group of
individuals, entity or entities, have entitlements or benefits under this Agreement separate and
Page 38 of 47
apart, inferior to, or superior to the community in general or for the purposes contemplated in
this Agreement.
39 ARTICLE 39
Contractor agrees to execute such documents as County may reasonably require, including a
Public Entity Crime Statement, an Ethics Statement, and a Drug -Free Workplace Statement.
Signature of this Agreement by Contractor shall act as the execution of a truth in negotiation
certificate stating that wage rates and other factual unit costs supporting the compensation
pursuant to the Agreement are accurate, complete, and current at the time of contracting. The
original contract price and any additions thereto shall be adjusted to exclude any significant
sums by which the agency determines the contract price was increased due to inaccurate,
incomplete, or concurrent wage rates and other factual unit costs. All such adjustments must
be made within one year following the end of the Agreement.
40 ARTICLE 40 NO PERSONAL LIABILITY.
No covenant or agreement contained herein shall be deemed to be a covenant or agreement
of any member, officer, agent or employee of Monroe County in his or her individual capacity,
and no member, officer, agent or employee of Monroe County shall be liable personally on this
Agreement or be subject to any personal liability or accountability by reason of the execution
of this Agreement.
41 ARTICLE 41 EXECUTION IN COUNTERPARTS.
This Agreement may be executed in any number of counterparts, each of which shall
be regarded as an original, all of which taken together shall constitute one and the same
instrument and any of the parties hereto may execute this Agreement by signing any such
counterpart.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
Page 39 of 47
IN WITNESS WHEREOF, each party has caused this Agreement to be executed by its duly
74Mftwd representative on the day and year first above written.
W . avilin, Clerk
✓r
Deputy Clerk
Date: �awt Gz� ����
(Seal)
Attest:
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
B Y
Mayor /Chairma
z MY �a
COMMISSION '
EXPIRES
•. FEB. 13, 2017 ;
BY:
r it
Title: �jn
STATE OF FLORfDA fy)b
COUNTY OF
ENERGY 3, LLC,
a Delaware limited liability company
By:
Title: G
On this L day of �b 2015, before me ,the undersigned notary public,
Personally appeared E rerj �SC-.[U , known to me to be the
Person whose name is subscribed above or who produced v.--Ls Uc.ense
As identification, and acknowledged that he /she is the person who executed the
above contract with Monroe County for the processing of the County's yard waste,
Monroe County Florida for the purposes therein contained.
By: 4L-t.�
Notary PAic
I�'1SC1�C� 'r,_S
Print Name
My commission expires: Fcc 6, 13 Z01-1
MCgi ;- „ .� END OF AGREEMENT
t rat:'
Dt�. _.__ _...__......
M I I S
'= MY b 10
COMMISSION
seal: EXPIRES
FEB. 13, 2017 ,
Page 40 of 47
EXHIBIT A
COMPENSATION RATES
Beginning April 1, 2015, or upon the Commencement Date when the Contractor begins work
County shall compensate Contractor for services performed in accordance with this
Agreement according to the following rates:
Fees ($/Ton)
Task
Fee
Load /transfer and transport from existing or alternative Transfer
79.50 /ton
Stations. Process Yard Waste and Alternative Waste inclusive of
marketing and sales of by- products /commodities, residue
transport and disposal, capital and operations, fees, taxes,
license's, etc.
Emergency: Process yard waste from a storm event
$79.50 /ton, unless
otherwise mutually
agreed upon between
the parties
Other: Any handling of Hazardous Substances or excess
These special handling
Prohibited Materials as mutually agreed between the County and
fees will be mutually
he Contractor will be subject to additional fees.
agreed to by both Parties.
Redirected Waste due to Contamination or Prohibited Material of
No more than current
three percent (3 %) or more
Haul -out rate
AGREEMENT 00500 -Page 41 of 47
++ y P
EXHIBIT B ADMINISTRATIVE CHARGES
12.
Description
Amount
OPERATING STANDARDS
1.
Implementation Delay. Failure to meet transition timeline
$500 per milestone per
milestones as specified in Exhibit G1, Transition and
day.
13.
Implementation Plan.
$500 per incident
2.
Inadequate Capacity. Failure to provide adequate primary
$1,000 per business day.
and alternate processing capacity during the term of the
Agreement.
3.
Failure to Process. Shipping, selling, or disposing of
$1,000 per incident per
Yard Waste that is not Processed as required by this
business day.
Agreement.
4.
Commingling of C o u n t y Mater with O thers.
$500 per incident.
Commingling of Yard Waste Materials collected inside and
outside of Monroe County prior to weighing.
5.
Failure to Notice County about Facility Concerns.
$50 per incident.
Failure to provide immediate notice to County of any issue
or problem related to use of Processing, Transfer, or
Disposal Facilities.
6.
Unauthorized Use of Facilities. Use of Processing
$1,000 per incident per
Facilities that are not approved by the County.
business day.
VEHICLE STANDARDS
7.
Vehicle Noncompliance. Failure to license, register, and
$100 per incident per
inspect the vehicles in accordance with all applicable laws
business day.
and regulations.
8.
Litter Abatement. Failure to prevent the spilling of Yard
$250 per incident.
Waste and Residue and blowing of such waste from the
vehicle.
REPORTING
9.
Late Submittals. Failure to maintain or timely submit to the
$250 per incident.
County any documents or reports required under Article 13.
10.
Inaccurate Submittals. Failure to correct any inaccurate or
$250 per incident.
incomplete reports as required by the County.
OTHER
11.
Obtain and Maintain Permits, Licenses, and Approvals.
$250 per incident per
Failure to obtain and maintain any and all Permits, licenses,
business day in which
and approvals necessary for the performance of its
obliaations-
performance is affected
12.
Notice of Violations. For each notice of violation of
$1,000 for each violation.
Applicable Laws received from a local enforcement agency,
the Department of Environmental Protection, or other
regulatory agency with jurisdiction.
13.
Denial of Site Access. Failure to provide facility access to
$500 per incident
the County.
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Packet Pg.141
EXHIBIT C
OPERATIONS AND DISPOSAL FEE ADJUSTMENT
An annual adjustment, except as specified herein in paragraph 11.2, shall be applied on October of
every year after 2015 to the Operations and Disposal Fee.
The adjustment shall be calculated in the following manner:
1) The following index is used to calculate the adjustment. The change in the index shall be
calculated on a March 1 — February 28 basis for the preceding twelve month.
INDEX
Consumer Price Index (CPI), Miami /Fort Lauderdale
(Unadjusted), All Urban Consumers, All Items.
SOURCE
Consumer Price Index Detailed Report, Published Monthly by Bureau of Labor Statistics.
(BLS)
If the index becomes obsolete during the term of this contract, an alternative, related index
may be used, as mutually agreed upon between the Operator and the County.
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EXHIBIT D
APPROVED PRODUCTS
Contractor shall ensure that all products produced from Yard Waste processed pursuant to
this Agreement meet the requirements specified below.
Ash
Ash formed by incineration of the inorganic constituents of the Yard Waste or Acceptable
Waste, and may take the form of solid lumps or ash flakes
Co- Generation Fuel
Co- Generation Fuel:
Any waste material that can be used as a feedstock or fuel source and which can be
processed to create energy, steam and /or electricity.
Compost
Solid waste which has undergone biological decomposition of organic matter, has been
disinfected using composting or similar technologies, and has been stabilized to a degree that
is potentially beneficial to plant growth and that is used or sold for use as a soil amendment,
artificial top soil, growing medium amendment or other similar uses
Composting is the process by which biological decomposition of organic solid waste is carried
out under controlled aerobic conditions, and that stabilizes the organic fraction into a material
which can easily and safely be stored, handled and used in an environmentally acceptable
manner. The presence of anaerobic zones within the composting material will not cause the
process to be classified as other than composting.
Wood and Fiber Mulch
Products generated from the carbon fraction of Yard Waste by composting the Yard Waste to
eliminate weed seeds, and processing the Yard Waste into a material that can be used by
contractors and landscapers to mulch areas for the control
of weeds or erosion.
Green Soil Amendment
Material produced from the immature unders from the initial Yard Waste pre - screening or
grinding process that are not placed into windrows for composting but can be used as a weed
control product, or as an amendment to soil via disking or land application. Land application
does not include use as a cover material for a landfill operation.
Top Soil Additive
A material made from fines blended with soils where the fines are generated from stockpiled
overs from the composting process (e.g., tree trimmings) that are placed in windrows and
periodically turned and screened to produce the fines.
Page 44 of 47
Packet 'Pg.143
+ l
t
Fuel for Gasification or Eneray production
Yard Waste or Acceptable Waste may be used in an energy generation or gasification facility,
and the energy, Environmental Attributes, or other products produced as a result of use as a
fuel are each approved.
Animal Bedding
"Animal bedding" means material that is generated from the carbon fraction of Yard Waste by
composting the material to eliminate weed seeds and then producing a material suitable for
use as bedding in horse stables, dairies, or other livestock facilities.
Waste to Energy
Fuel for energy production: Yard waste or acceptable waste may be used in an energy
generation facility, and the energy or other products produced as a result of use as a fuel are
each approved.
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ti.
EXHIBIT E
FORM OF PERFORMANCE BOND
YARD WASTE PROCESSING SERVICES
FOR MONROE COUNTY, FLORIDA
KNOW ALL MEN BY THESE PRESENTS: that
(insert full name and address or legal title of Contractor)
as Principal, hereinafter called Contractor, and,
(Name of Insurer)
as Surety, hereinafter called Surety, are held firmly bound unto the COUNTY OF MONROE,
FLORIDA as Obligee, and hereinafter called the County, in the amount of Seven Hundred
Ninety Five Thousand Dollars ($795,000), for the payment whereof Contractor and Surety bind
themselves, their heirs, executors, administrators, successors and assigns, jointly and
severally, firmly by these presents.
WHEREAS, Contractor has by written agreement dated , 20_, entered into an
Agreement with the County for providing Yard Waste Processing Services in accordance with
the Agreement of MONROE COUNTY, FL, which Agreement is by reference made a part
hereof, and is hereinafter referred to as the Agreement.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor
shall promptly and faithfully perform said Agreement, then this obligation shall be null and
void; otherwise it shall remain in full force and effect.
The Surety hereby waives notice of any alteration or extension of time made by the County.
Whenever Contractor shall be, and declared by the County to be in default under the
Agreement, the County having performed the County's obligations thereunder, the Surety
may promptly remedy the default, or shall promptly perform one of the following:
Complete the Agreement in accordance with its terms and conditions.
2. Obtain a bid or bids for completing the Agreement in accordance with the terms
and conditions, and upon determination by the Surety of the lowest responsible
bidder, or if the County elects, upon determination by the County and the Surety
jointly obtain a bid or bids for completing the Agreement in accordance with the terms
and conditions, and upon determination by the Surety of the lowest responsible
bidder, or if the County elects, upon determination by the County and the
Surety jointly of the lowest responsible bidder, arrange for an agreement between such
bidder and the County, and make available as work progresses (even though there
should be a default or a succession of defaults under the Agreement or Agreement of
completion arranged under this paragraph) sufficient funds to pay the cost of
completion less the balance of the Agreement price; but not exceeding, including
costs and damages for which the Surety may be liable hereunder, the amount set
Page 46 of
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forth in the first paragraph hereof. The term "balance of the Agreement price," as used
in this paragraph, shall mean the total amount payable by the County to Contractor
under the Agreement and any amendments thereto, less the amount properly paid
by the County to Contractor.
Any suit under this bond must be instituted before the expiration date of the Agreement or if
extended for an additional term by the County, the expiration of the extended term.
No right of action shall accrue on this bond to or for the use of any person or corporation other
than the County named herein or the executor, administrator or successors of the County of.
Signed and sealed this day of 20_.
(Principal)
(Seal)
(Witness) (Title)
Surety (Seal)
(Witness) (Name of Insurer)
(Attorney -in -Fact)
0
La
0
0
0
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0
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E
Page 47 of
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EXHIBIT I
ADDITIONAL PERFORMANCE DATA
The Parties shall establish a process pursuant to which the County can review the
commissioning, startup and performance testing protocols during the development period. The
Contractor will provide copies of the following to the County:
Performance Testing Report describing in summary the testing standards required in
Contractor's financing, warranty, construction and equipment contracts for the gasification
equipment in the Facility.
The Performance Testing Report shall demonstrate that the Facility has been tested as required
and provide evidence confirming that the Facility has met the applicable performance
requirements in these contracts. The report shall include a summary of process inputs and
outputs, including tons received, tons processed, tons of process residues by type, and quantity of
electricity generated.
Contractor may provide any of the information or documentation required by the definition of
Commercial Operation Date or this Exhibit I as it becomes available prior to any final
Performance Testing Report for earlier review by County.
The County shall have 20 Business Days to review the completed Performance Testing Report as
part of its determination of whether the Commercial Operation Date has occurred.
The County's representative shall have the right to witness key portions of the commissioning
and performance testing.
In addition to those criteria already set forth in the definition of Commercial Operation Date, the
following shall apply:
1. The criterion that the Facility meet 90% of its design capability shall mean that it
Processes waste at no less than 90 % of its rated capacity for no less than seven (7) days,
subject only to minimal outages for adjustments and modifications which shall not
exceed 8 hours in total.
2. The conversion ratio of gross energy from Yard Waste shall equal or exceed .75 MWh
per ton of Yard Waste.
-1
BOND N0: 81002469 1
EXHIBIT E
FORM OF PERFORMANCE BOND
YARD WASTE PROCESSING SERVICES
FOR MONROE COUNTY, FLORIDA
KNOW ALL MEN BY THESE PRESENTS: that Energy Three. LLC -1997 Annapolis Exchange
Parkway, Suite #300. Annapolis. MD 21401 as Principal, hereinafter called Contractor, and
Aegis Security Insurance Company as Surety, hereinafter called Surety, are held firmly bound
unto the COUNTY OF MONROE, FLORIDA as Obligee, hereinafter called the County, in the
amount of not less than, $795.000.00 Seven hundred ninety five thousand and no cents /dollars
for the payment whereof Contractor and Surety bind themselves, their heirs, executors,
administrators, successors and assigns, jointly and severally, firmly by these presents.
WHEREAS, Contractor has by written agreement dated _, 20�, entered into an Agreement
with the County for providing Yard Waste Processing Services in accordance with the Agreement
of MONROE COUNTY, FL, which Agreement is by reference made a part hereof, and is
hereinafter referred to as the Agreement. "The term of this bond is from April 30, 2016 to April
29, 2017. Subsequent renewals solely at the discretion of the Surety must be provided sixty (60)
days prior to the expiration of the term."
(1) Surety shall furnish a performance bond in the amount as noted above unless an otherwise
lesser amount is specified by Obligee. This Performance bond shall be reviewed annually b
Surety and subsequent renewals are approved solely at the discretion of the Surety. It is further
expressly understood and agreed that the aggregate liability of the Surety regardless of the
number of years the bond is continued and the number of premiums paid, is limited solely to the
penal sum of said bond as stated above.
(2) Neither non - renewal by Surety in such case or the inability of Principal to file a replacement
bond shall constitute a loss to the Obligee recoverable under this bond.
NOW, THEREFORE, THE CONDITION OF THIS OBLIGATION is such that, if Contractor
shall promptly and faithfully perform said Agreement, then this obligation shall be null and
void; otherwise it shall remain in full force and effect.
The Surety hereby waives notice of any alteration or extension of time made by the County.
Whenever Contractor shall be, and declared by the County to be in default under the
Agreement, the County having performed the County's obligations thereunder, the Surety
may promptly remedy the default, or shall promptly perform one of the following:
Page 1
BOND NO: 810024691
1.Complete the Agreement in accordance with its terms and conditions.
2. Obtain a bid or bids for completing the Agreement in accordance with the terms and
conditions, and upon determination by the Surety of the lowest responsible bidder,
or if the County elects, upon determination by the County and the Surety jointly
obtain a bid or bids for completing the Agreement in accordance with the terms and
conditions, and upon determination by the Surety of the lowest responsible bidder, or
if the County elects, upon determination by the County and the Surety jointly of
the lowest responsible bidder, arrange for an agreement between such bidder and the
County, and make available as work progresses (even though there should be a
default or a succession of defaults under the Agreement or Agreement of completion
arranged under this paragraph) sufficient funds to pay the cost of completion less
the balance of the Agreement price; but not exceeding, including costs and damages
for which the Surety may be liable hereunder, the amount set forth in the first
paragraph hereof. The term "balance of the Agreement price," as used in this
paragraph, shall mean the total amount payable by the County to Contractor under the
Agreement and any amendments thereto, less the amount properly paid by the
County to Contractor.
Any suit under this bond must be instituted before the expiration date of the Agreement or if
extended for an additional term by the County, the expiration of the extended term.
No right of action shall accrue on this bond to or for the use of any person or corporation other
than the County named herein or the executor, administrator or successors of the County of.
Signed and sealed this 30th day of April 2016.
Ener yq 3, LLC (Seal)
(Principal)
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(Witness)
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(Title)
(Witness) Aegis Security Insurance Company (Seal)
(Surety)
—7 /
Patrick J. Lync , of., Attorney -in -Fact
Page 2
SURETY ACKNOWLEDGEMENT
State of New Jersey
County of Morris
ss:
On this 30th day of April 2016 , before me personally comes
Patrick J. Lynch, Jr. to me known; who, being by me duly sworn, deposes and says
that he /she resides in Landing, that he /she is the Attorney -in -Fact of the
Aegis Security Insurance Company the Corporation described
in and which executed the foregoing instrument; that he /she knows the seal of the
said Corporation; that the seal affixed to the said instrument is such Corporate seal; that
it was so affixed by the order of the Board of Directors of the said Corporation, and that
he /she signed his/her name thereto by like order.
U4W'A:6 mob h�a�
(Signature & Title o Official Taking Acknowledgment)
AILEEN G. MACDONALD
Notary Public
State of New Jersey
My Commission Expires Dec. 18, 2019
THIS POWER NULL AND VOID IF NUMBER 1S NOT IN RED
POWER CERTIFICATE NO. NJ 129
AEGIS SECURITY INSURANCE COMPANY
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, THAT AEGIS SECURITY INSURANCE COMPANY does hereby make, constitute and
appoint: PATRICK J. LYNCH, BRENDAN A. GETHINS, JR., MICHELE CHARETTE, PATRICK J. LYNCH, JR.
its true and lawful Attorney -in -Fact, to make, execute and deliver on its behalf surety bonds, undertaking and other instruments of similar
nature as follows: $5 MILLION
This Power of Attorney is granted and sealed under and by the authority of the following Resolution adopted by the Board of Directors of
the Company on the 4th day of February 1993.
"Resolved, That the President, any Vice President, the Secretary and any Assistant Secretary appointed for that purpose by the officer in
charge of surety operations shall each have authority to appoint individuals as Attorney -in -Fact or under other appropriate titles with
authority to execute on behalf of the Company, fidelity and surety bonds and other documents of similar character issued by the Company
the course of its business. On any instrument making or evidencing such an appointment, the signatures may be affixed by facsimile. On
any instrument conferring such authority or on any bond or undertaking of the Company, the seal or facsimile thereof may by imposed or
fixed or in any other manner reproduced; provided, however, that the seal shall not be necessary to the validity of any such instrument or
undertaking."
"Resolved, That the signature of each of the following officers; President, Vice President, any Assistant Vice President, any Secretary or
Assistant Secretary and the seal of the Company may be affixed by facsimile to any Power of Attorney or to any Certificate relating thereto,
appointing Resident Vice Presidents, Resident Assistant Secretaries or Attorneys -in -Fact for the purpose only of executing and attesting
bonds and undertaking and other writings upon the Company and any such power required and certified by such facsimile signature and
facsimile seal shall be valid and binding on the Company in the future with respect to any bond or undertaking to which it is attached"
IN WITNESS WHEREOF, AEGIS SECURITY INSURANCE COMPANY has caused its official seal to be hereunto affixed, and these
presents to be signed by its President this 12A day of November, 2015.
Commonwealth of Pennsylvania }
} s.s.: Harrisburg
County of Dauphin }
AEGIS SECURITY INSURANCE COMPANY
8Y, ��y,NSU�o
DARLEEN J. FRITZ W w A
President N 1�� / o
On this 12' day of November, 2015, before me personally came Darleen J. Fritz to me known, who being by me duly sworn, did depose and
say that she is President of AEGIS SECURITY INSURANCE COMPANY, the corporation described herein and which executed the
above instrument; that she knows the seal of the said corporation, that the seal affixed to the said instrument is such corporate seal; that it
was so affixed by order of the Board of Directors of said corporation and that she signed her name thereto by like order.
ajAtb; �ZL
o Ir
REBECCA LIDDICK y
Notary Public r �RY P
My Commission Expires July 25, 2017
1, the undersigned, Secretary of AEGIS SECURITY INSURANCE COMPANY, a Pennsylvania corporation, DO HEREBY CERTIFY
that the foregoing and attached Power of Attorney remains in full force and has not been revoked: and furthermore that the Resolution of the
Board of Directors, set forth in the said Power of Attorney, is now in force.
Signed and seated at the City of Harrisburg, in the Commonwealth of Pennsylvania, dated this 30THday of APRIL, 2015
Imo.!
DEBORAH A. GOOD
Secretary
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AEGIS SECURITY INSURANCE COMPANY
STATUTORY STATEMENTS OF ADMITTED ASSETS, LIABILITIES AND CAPITAL AND SURPLUS
DECEMBER 31, 2014 AND 2013
LIABILITIES AND CAPITAL AND SURPLUS
Liabilities:
Losses
2014
2013
ADMITTED ASSETS
3,677,363
2,932,293
Bonds
$ 42,472,807 $
16,702,092
Preferred stacks
600,815
665,128
Common stocks - non - affiliate
8,503,670
12,911,897
Common stocks - affiliate
15,656,804
15,417,481
Mortgage loans on real estate
-
366,447
Real estate occupied by the company, net
2,218,922
2,284,797
Real estate held for sale, net
-
209,000
Cash and short-term investments
13,968,422
33,187,670
Other invested assets
1,198,468
2,072,454
Amounts withheld for account of others
Total cash and invested assets
84,619,908
83,816,966
Accrued investment income
454,351
233,990
Premium receivable
10,015,497
9,455,707
Reinsurance recoverable on paid losses
2,864,564
1,488,869
Contract surety - funds administration receivable
-
1,130,348
Net admitted deferred tax asset
2,055,946
1,679,200
Other assets
53,875
54,120
Receivable from parent, subsidiaries and affiliates
402 ,358
-
Total assets
$ 100,466 $
97,859,200
LIABILITIES AND CAPITAL AND SURPLUS
Liabilities:
Losses
$ 13,422,255
$ 13,870,615
Loss adjustment expenses
3,677,363
2,932,293
Reinsurance payable on paid loss and loss adjustment expense
837,825
935,564
Commissions payable
1,782,604
408,592
Accounts payable and accrued expenses
645,466
540,676
Accrued:
Taxes, licenses and fees
520,901
394,999
Federal income taxes
28,329
262,694
Unearned premiums
21,100,270
20,036,359
Advance premiums
7,900
240,207
Ceded reinsurance premiums payable
1,823,329
2,811,785
Amounts withheld for account of others
3,882,418
3,790,081
Payable for securities
141,567
-
Payable to affiliate
-
150,300
Total liabilities
47,870,227
46,374,165
Capital and surplus:
Common stock, par value $1.40 per share; 5,000,000 shares
authorized, 3,000,000 issued and outstanding
4,200,000
4,200,000
Paid -in surplus
5,266,827
5,266,827
Unassigned surplus
43,129,445
42,018,208
Total capital and surplus
52,596,272
51,485,035
Total liabilities, capital and surplus
$ 100,466,499
$ 97,859,200