Item N10* REVISED BACK-UP N-10 *
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: May 21, 2014 Division: County Administrator
Bulk Item: No X Department: County Administrator
Staff Contact /Phone #: Rhonda Haag, 453-8774
AGENDA ITEM WORDING: Approval to waive competitive bidding procedures and enter into an
Amended and Restated Recyclables Disposal and Operations Agreement with Waste Management Inc. of
Florida in an amount estimated at $4.14 million over a ten year period.
ITEM BACKGROUND: The current Recyclable Operation Agreement with Waste Management (Operator)
expires on September 30, 2018. Staff has been negotiating terms and conditions with the Operator for a year for
a potential extension of various solid waste agreements in lieu of issuing a solicitation. At the December 11,
2013 meeting the BOCC approved moving forward with extending all solid waste contracts to September 30,
2024. This new Amended and Restated Recyclables Agreement replaces the existing Agreement and has an
effective term of October 1, 2014 through September 30, 2024. The County shall pay the Operator in current
annual funds for the Operator's performance of this Agreement. Funding for years 1-10 are estimated as
follows, which includes the estimated periodic CPI increases as allowed and specified herein:
5389,500 $389,500 $399,200 $399,200 $409,200 $409,200 $419,400 $429,900 $440,600 $451,700 $4.14
Million
*These numbers represent estimated numbers only, and are based on estimated quantities of materials and
allowed periodic CPI increases. Actual numbers are expected to vary, particularly when new recycle carts are
provided to the County residents. The overall tons of collected recyclables are expected to rise by 40%. 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 Franchisee.
PREVIOUS RELEVANT BOCC ACTION:
08/23/13: Briefing on two potential solid waste ordinance modifications; one extends the allowable term of
solid waste collection agreements from 5 to 10 years and the other sets forth an exemption to competitive
bidding for all solid waste services.
09/17/23: BOCC approves two solid waste ordinance modifications. One extends the allowable term of
collection agreements from 5 to 10 years and the other sets forth an exemption to competitive bidding for all
solid waste services. The ordinances will be effective upon filing with the Department of State.
10/11/13: The two ordinances (Ordinance No. 034-2013 and Ordinance No. 035-2013) are effective.
10/16/13: Presentation and discussion of the current offers from the solid waste vendors. 30 day extension to
negotiations authorized and more cost effective offers requested.
11/20/13: Presentation and discussion of the semi-final offers from the solid waste vendors. 3 week extension
to negotiations authorized and more cost effective offers requested.
12/11/13: Presentation and discussion of the final offers for solid waste and a potential incineration
demonstration project. BOCC authorized moving forward with drafting of the solid waste contracts and also
consideration of an incineration demonstration project in Ramrod.
02/19/14: Discussion on the incineration demonstration project and moving forward with a solicitation for
processing of yard waste. No formal vote taken.
03/19/14: Discussion, recommendation and direction on the County's yard waste processing. Vote to proceed
with RFP for yard waste processing.
CONTRACT/AGREEMENT CHANGES:
1. Contract terms and conditions updated and modified to the benefit of the County include:
a) Periodic CPI waivers in Years 2, 4, and 6 that will save an estimated $231,000 overall in 10 years
b) Capping CPI increases at 2.5% in Years 1, 3, 5, 7, 8, 9,and 10 when CPI's are authorized
c) County receives a $50,000/year rebate, estimated value equals $10/ton based on current recycling
tonnage of 4500 tons, total income equals $500,000 over 10 years.
d) County receives a 40% share of revenue over the average market when such average is equal to or
greater than $98/ton. Value to be determined by market conditions. Current market value is $97. Market
has ranged over the previous 10 years as follows:
$87.30 $83.41 $83.57 $117.62 $116.22 $67.43 $106.31 $129.59 $99.76 $99.89
2. Requested contract terms not agreed to by the vendors include:
a) Current rate of $73.92/ton was not reduced.
b) No termination for convenience allowance
STAFF RECOMMENDATION: Approval
TOTAL COST: $ Estimated $4.14 Million over 10 years based on current recycling tons collected
frnm rPcirlPntc
INDIRECT COST:
BUDGETED: Yes No DIFFERENTIAL OF LOCAL PREFERENCE: None
COST TO COUNTY: Est $4.14 Million over 10 years SOURCE OF FUNDS: 414 Fund
REVENUE PRODUCING: Yes No AMOUNT PER MONTH Year
APPROVED BY: County Atty OMB/Purchasing Risk Management
DOCUMENTATION: Included Not Required To be Presented X
DISPOSITION: AGENDA ITEM # CAD N-10
* REVISED BACK-UP *
See attached email dated 5/14/14.
Peters -Katherine
From: Haag -Rhonda
Sent: Wednesday, May 14, 2014 9:32 AM
To: Peters -Katherine; Limbert-Christine; Cyr -Connie
Subject: FW: Changes made to May BOCC Items N-8, N-9 and N-10
Please note the following changes were made to the solid waste contracts under the May BOCC Agenda Items N-8, N-9
and N-10:
ITEM N-8: Haul out Agreement. Signatures were added to the signature page of the Agreement and all exhibits.
ITEM N-10: Recyclables Agreement: Signatures were added to the signature page of the Agreement and all exhibits.
ITEM 9: Franchise Agreements with (1) Waste Management of FL (2) Marathon Garbage Services and (3) Keys
Sanitary Services: Signatures were added to the signature page on all three agreements and all exhibits.
In addition, Exhibit 7 "Public Outreach Tasks" for Marathon Garbage Services was replaced in its
entirety.
Finally, the following two changes were made to the Marathon Garbage Services and Keys Sanitary
Services franchisee agreements:
A. Emergency Service Provisions.
In the event of a hurricane, tornado, major storm or other natural disaster, the Contract Administrator may grant the Franchisee
a variance from regular routes and schedules. As soon as practical after such natural disaster, the Franchisee shall advise the Contract
Administrator when it is anticipated normal routes and schedules can be resumed. The Contract Administrator, in conjunction with
the Franchisee, shall make an effort through the local news media to inform the public when regular services may be resumed.
The clean-up from some natural disasters may require that the Franchisee hire additional equipment, employ additional
personnel, or work existing personnel on overtime hours to clean debris resulting from the natural disaster that is not otherwise
covered by the County's Disaster Response and Recovery Services Contract. By December I" of the year that this Agreement is in
effect, the Franchisee is requested to provide a Disaster Preparedness Plan to the Contract Administrator for review and
approval. This plan shall include provisions for additional manpower and equipment, as well as a proposed rate for collection
associated with the clean-up of natural disasters or other such occurrences. The Franchisee shall update the Disaster Preparedness
Plan by December ? of each year of this Agreement for the Contract Administrator's review and approval. The Franchisee shall
receive extra compensation above the normal compensation contained in this Agreement, after such has been approved by the Board,
based on the rate schedule submitted to the Contract Administrator. Subject to verification of documentation request by the County,
payment for these services shall be made by the Franchisor within ninety (90) days of the receipt of the billing by the Ffaaehisff
Franchisee. The Franchisee must provide documentation for verification of services as requested by the Franchisor for payment.
37. ASSIGNMENT AND SUBLETTING
A. The Franchisee shall not assign or dispose of the Franchise granted by this Agreement by sale, lease, mortgage or otherwise
transfer it in any manner whatsoever without the express written consent of the Franchisor.- The Franchisor shall have full discretion
to approve or deny, with or without cause, any proposed assignment or assignment by the Franchisee. Such approval shall not be
unreasonably withheld by the Franchisor. If such assignment is approved by the Franchisor, the Franchisee shall pay an assignment
fee, sH-b ,-aegati of no more than Fifty Thousand Dollars
($50,000.00) to the Franchisor. Any assignment of this Agreement made by the Franchisee without the express written consent of the
Franchisor shall be null and void and shall be grounds for the Franchisor to declare a default of this Agreement and immediately
terminate this Agreement by giving written notice to the Franchisee, and upon the date of such notice this Agreement shall be deemed
immediately terminated, and upon such termination all liability of the Franchisor under this Agreement to the Franchisee shall cease,
and Franchisor shall have the right to call the performance bond and shall be free to negotiate with other Franchisees or any other
person or company for the service of the Franchise area that is the subject of this Agreement. In the event of any assignment, assignee
shall fully assume all the liabilities of the Franchisee.
Thank you,
Rhonda Haag
ustainability Program Manager
Monroe County
Government and Cultural Center
1 050 Overseas Highway, Ste. 246
Key Largo, FL 33037
Bus: (5) 43- '774•
Cell: (05) 35-20
Hggg:.Rhond monroecounhl- . pry
w. onroecounh - K nv
I
s. : X0
.. ...
Contract with: 'ff- -date Mgmt Inc of FL Contract #
Effective Date: October 1, 2014
Expiration Date: _��ember.30,2024
Contract Purpose/Description:
This contract shall authorize Waste Management Inc. of Florida to proceed with
Monroe g2unt Mr.a.22!jort.of ten.y ars,from, October 1. 201±IhT Se y 2_yjtRtember 30, 3024.
Contract Manager: Rhonda Uaa& ................. 8774 CAD
(Name) (Ext.) (Department/Stop M
for BOCC meeting on 05/21/14 Agenda Deadline: 05/06/14
..............................................................................
of Dollar Value of Contract: $ $4.14 Current Year Portion: $ $389,500
Million for FYIS
Estimated
Budgeted? YesZ No F] Account Codetc — 414-40000 ..... 530- 342-_
Grant: $ no
-
Co ty Match: $
ADDITIONAL COSTS
Estimated Ongoing Costs: $Q, /yr For. NIA
L2j2L12E!o m dollar value above) ................ (e .. maintenance, utilities, janitorial, candies, etc.)
CONTRACT REVIEW
Changes Date Out
Date In Needed Reviewer
Division Director YesE] No[j,
Risk Management Yeso No��
7N A
O.M.B./Purchasing 5-,q -4 Yes[:] No[j] 54-1 y
1 V
County Attorney Yes[:] No[T C14-.0) -AgwMa4
Comments:
A: tow
RESTATED AND AMENDED
CYCLABLES DISPOSAL AND
OPERATIONS AGREEMENT
BE"I WFEa
MONROE COUNTY
AND
WASTE MANAGEMENT INC. OF FLORIDA
'PHIS AGREEMENT dated May 21, 2014 between Waste Management Inc. of Florida (the "Operator") a
corporation organized and existing under the laws of the State of Florida with offices at 2700 NW 48th Street,
Pompano Beach, FL 33073, and Monroe County (the "County") a political subdivision organized and existing
under the laws of the State of Florida, with offices located at 1100 Simonton Road, Key West, Florida 33040.
RECITALS
WHEREAS, the County Is empowered to provide for and assume full control and responsibility for the
solid waste disposal system In Monroe County; and
WHEREAS, the County, is seeking a long -tend, cost effective, solution to processing, transportation and
marketing of recyclabtes and other such operations as may be available; and
WHEREAS, the Operator has offered new financial incentives including limited CP1 increases, an annual
$50,000 rebate, and a 40"l share of revenue over average market value when such average is greater than $99 per
ton, and
WHEREAS, because of the new financial incentives offered, the County has agreed to restate and amend
and extend the Recycling Operations Agreement
WHEREAS, the parties have agreed to enter Into a Restated and Amended Recycling Operations
Agreement pursuant to the terms described herein.
NOW THEREFORE, In consideration of the premises and of the mutual obligations undertaken herein, the parties
bereby agree as follows:
ARTICLE I CERTAIN DEFINITIONS
As used in this Agreement, following terms shall have the meanings set forth below:
"Agreement" means this Recyclables Operations Agreement between the Operator and the County,
Including the Schedules and any written amendments to either.
"Board of County Commissioners" means the governing Board of the County.
"Change in Law" means (a) the enactment, adoption, promulgation, modification, or effectiveness of
any federal, state, county or local Iaw, ordinance, code, or regulation following the contract date which
materially affects the performance or cost of performance of the Contract.
Change an. Law also means (b) the Imposition of any new material condition or the Issuance or
renewalof any of perinit or license.
"County" means the Board of County Commissioners, Monroe County, Florida.
"Daily Weight Records" means those records which are maintained on a daily basis relating to the
County scales located at a Facility Site or used by Facility Site.
"Fiscal Year" means the period of time beginning on October 1 and ending on September 30 of the
subsequent year.
"Hazardous Waste" means any solid waste defined under the Resource Conversation and
Recovery Act, ("RCRA") 42 U.S.C. See. 6901 et set., Chapter 403, Florida Statutes, or Chapter 27 of the
Broward County Code of Regulations as Hazardous Waste, or any other applicable state, Federal or local law,
rule or regulation permit.
"Operation Coordinator" means those persons designated by the County and by the Operator as set
forth In Section 2.03.
"Operator" means Waste Management Inc. of Florida, a Florida corporation.
"Receiving Time" means the period during which Recyclables may be delivered to the Recyclable
Facility Site. Unless changed by mutual agreement of the County and Operator, the Receiving Tune Is Monday
through Saturday, 8:00 a.m.to 4:00pan. The Recyclable Facility Sites shall be closed on Christmas Day, New
Year's Day, Thanksgiving Day, July 4, and Labor Day.
"Recyclables" or "Recyclable Material" means those materials which are capable of being
recycled and which would otherwisebe disposed of as solid waste. Such Recyclables are:
(i) newsprint,
(ii) old corrugated containers ("OCCR)
(iii) officepaper,
(iv) mixed paper,
(v) magazines,
(vi) phone books,
(vii) mixed plastics,
(vi.ii) flint glass, amber glass, green glass,
(ix) alumi n urn c ans,
(x) steel cans,
(xi) scrap metal,
(xii) tires,
and other items that the Operator and County mutually agree In writing are Recyclables.
"Recyclables Facility Site" means each of the three recyclable receiving sites ownledby the
County and operatedby the Operatorunderthis Agreementas follows:
Key Largo Transfer Station, 1180 State Road 905 (Gulf side), Key Largo
Long Key Materials Recovery Facility, Mile marker 68
Cudjoe Key Recycling Yard, .Mile marker 21.5
"Transfer Station" means each of those facilities owned by the County at which solid waste is
brought in mid placed in transport vehicles for disposal at a solid waste disposal facility; such Transfer
Stations are located at (1) Cudjoe Key, Mile marker 21.5, Blimp Road; (ii) Long Key, Mile marker 68; and
(iii) Key Largo, 11180 State road 905.
"Unacceptable Waste" means material other than Recyclables and shall include but shall not be
limited to solid waste, garbage, trash, Hazardous Waste, Infectious waste, toxic waste, or special waste. A recycle
container that is contaminated with more than I V'Q of other materials shall be considered Unacceptable Waste.
"Uncontrollable Circumstances" means any act, event, or condition that has had, or may reasonably
be expected to have, a material adverse effect on the performance by, or the rights or the obligations of a party
under this Agreement. Such acts, events or conditions shall include, but shall not be limited to the following:
(a) An act of God, landslide, lightning, earthquake, fire, explosion, flood, hurricanes, war,
blockade, insurrection, riot or civil disturbance.
(b) The order and/or judgment of any federal, state or local court, provided that such
order or judgment shall not be the result of the willful or negligent action
of the party relying thereon and that neither the contesting in good faith of
any such order or judgment nor the failure to so contest shall constitute or be
construed as a willfulor negligent action or inaction of such party.
(c) The suspension, termination, interruption, denial or failure of or delay in renewal
or issuance of any permit, license, consent, authorization or approval essential
to performance under this Agreement, provided that such act or event shall not
be the result of the willful or negligent action of the party relying thereon and
that neitherthe contesting in good faith of same nor the failure to so contest shall
constitute or be construed as a willful or negligent action or Inaction of such
party.
(d) A partialor entire delay or failure in the provision of necessary utilities or services
to a Recyclables Facility Site.
(e) With respect to the Operator, any material failure of the County to - provide
Information, services or any other item required to be furnished Operator .In a
timely manner as required by the Agreement, or material errors, omissions,
changes or defects in such iterns,
ARTICLE 1111
AGREEMENT TFRtI�, OPERATION OF
RECYCLABLES FACILITY SITES
2.01 Commitment to Receive. Process, Transport and Market Recyclables and other Related
Materials.
(a) The teen of this Agreement shall be for the period beginning on October 1, 2014, extending for
ten (10) years, and tenninating on September 30, 2024. The County shall have the exclusive option, upon
agreement of the Operator, to extend the Agreement by formal Amendment, upon approval by the County
BOCC, upon mutually agreeable terns and conditions, for an additional five (5) year period upon one hundred
twenty (120) days written notice to the Operator prior to the expiration of the current term of this Agreement. If
such written notice and formal. amendment is not provided this Agreement shall terminate on September 30, 2024.
Monroe County shall have the right to unilaterally extend the terin for a period of ninety (90) days under the same
terms and conditions as set forth herein.
Monroe County's performance and obligation to pay under this Agreement is contingent upon an annual
appropriation by the Board of County Commissioners. The Operator shall receive and process Recyclables
delivered to the Recyclables Facility Sites by or on behalf of the County.
(b) The Operator shall receive Recyclables delivered to each of the Recyclables Facility Sites during
the Receiving Time.
(c) The Operator will provide a citizens' drop-off facility at all Recyclables Facilities Sites. The operating
hours of the citizens' drop-off will correspond to the operating hours of the Recyclables Facilities Sites.
2.02 Operation of Recyclables Facility Sites
The Operator shall operate and maintain the Recyclables Facility Sites consistent with the
Operating Plan and with all applicable federal, state and local laws, regulations, ordinances and
permits, rules, and proper operating practice and In such manner as to ensure that they are able to
receive and process Recyclables in accordance with this Agreement. Operator shall have, the right to
occupy and possess the Recyclables Facility Sites during the term of this Agreement.
2,03 Operation Coordinators,
(a) The County shall designate an Operation Coordinator with respect to matters which
may arise during the performance of this Agreement and such person shall have
authority to transmit instructions, receive Information, confer with the Operator's
Operation Coordinator and make all day to day operational decisions as may be
directed bythe Board of County Commissioners.
(b) The Operator shall designate in writing a person to act as the Operator's Operation
Coordinator with respect to matters which may arise during the performance of this
Agreement,and such person shall have authority pursuant to such written designation
to transmit instnictions, receive Information, confer with the County's Operation
Coordinator and snake all day to day operational decisions. The Operator's Operation
Coordinator shall be qualified and possess airy applicable certification or licenses
required under Florida Law, to operate the Recyclables Facility Sites.
2.04 Facility Services, Maintexlance. Etc.
(a) Safety of Persons and Property. At all tunes the Operator in coizjunction with the
County shall establish and inaintain safety procedures for the Recyclables
Facility Sites in a manner consistent with applicable law and good safety
practice.
(b) Equipment. The Operator is responsible to provide all equipment and materials
necessary to fulfill its obligations under this Agreement.
2.05 Cotrnty. Visitation and Ins ectign of the Facility: record Kegping-,
gportirig: Test.inu
(a) At airy time during terns of this Agreement, the County, its agents and its
representative-s shall have the ri=�ht to inspect, visit and to take visitors through the
Recyclables Facility Sites in order to inspect, observe and to permit others to observe
the various services which the Operator performs, provided that such inspections
and visitations shall not Interfere with the performance of the Operator's obligations
under this Agreement and are in compliance with Section 2.05(d).
(b) The Operator shall provide die County with data concerning the number of tons of
acceptable Recyclables that are processed, transported and marketed so that the County
may utilize this data to prepare reports on the diversion of waste for the Florida
Department of Environmental. Protection.
(c) The County shall provide the Operator with copies of any reports preparedby
or on behalf of the County.
(d) Iti corniection with all inspections or visitations, the County shall, on behalf of
itself, its agents and representatives, comply and cause its agentsand representatives
to comply with all reasonable rules and regulations of the Operator, including a
requirement that each person, County agent or representative inspecting or visiting the
Recyclables Facility Sites hold the Operator harmless in the event of Injury to such
person or his/her property unless due to the negligence of Operator. Such Individual shall
not disclose or use any confidential information of the Operator other than for the
purpose for which it was furnished, unless disclosure is required by applicable law.
2.06 Acceptable Recyclables.
(a) Recyclable Materials separately collected by or on behalf of the County shall be
subject to delivery to the Recyclables Facility Sites. Tlie County hereby guarantees to
the Operator that it shall cause Recyclables to be delivered each Recyclables Facility
Site during the Receiving Time.
(b) Title to any Recyclables removed from the Recyclables Facility Sites by the Operator
shall rentairr with the County until final market_
(c) Operator shall have the right to charge a processing fee (as set forth in Schedule
A) to commercial entities that deliver Recyclables and related materials to the
Recyclables Facility Sites. The County shall not be charged a processing fee
on such Recyclables f or which commercial entities have paid the fee.
2.07 Deliveries of unacceptable Waste.
(a) The County shall use its best efforts to cause only Recyclables to be delivered to
the Recyclables Facility Sites. Inadvertent deliveries of Unacceptable Waste to the
Facility shall not constitute a breach of the County's obligations hereunder.
Deliveries may contain up to ten percent (10%) of other materials and be considered
as acceptable waste. Nothing contained in this Section shall limit the right of the
Operator to reject, refuse to accept or revoke acceptance of any Unacceptable
Waste at the Recycling Facility Sites. The Operator shall use reasonable efforts to
identify the hauler that transported the Unacceptable Waste to the Recyclable
Facility Site and shall notify the County of same. The County shall remove or cause
to be removed any Unacceptable Waste or loads of Recyclables contaminated with
Unacceptable Waste or portions thereof that Operator has rejected, refused to
accept or for which it has revoked acceptance. In the event that County instlucts
Operator to remove, transport, dispose or manage such Unacceptable Waste, and
Operator agrees to do so, County shall pay Operator for the costs incurred for same.
Contaminants separated by Operator from Acceptable Waste shall be disposed
lawfully by Operator and County shall pay the applicable disposal rate for same.
(b) The Operator will notify the County if any particular hauler has been found by the
Operator to be responsible for delivering or attempting to deliver any Unacceptable
Waste in any quantity or fonn or in bulk or constituting a substantial and visible part
of a load of Recyclables. Upon receipt of such notice, the County will take
appropriate action in an attempt to prevent any repeated occurrence by such hauler.
The delivery of such waste shall not constitute a breach of the County's performance
hereunder.
(c) To the extent that the County has control or is otherwise responsible for delivery of
unacceptable waste, the County shall be responsible far any damage, delay or cosh
incurred by the Operator as a result of the delivery of Unacceptable Waste to the
Recyclables Facility Site and the County shall indemnify the Operator in accordance
with Section 6.04(c). The Operator shall notify the County of any Unacceptable Waste
delivered to the Recyclables Facility Site. Upon receipt of notice, the County or
Operator shall cause the prompt removal of such Unacceptable Waste, which shall be
processed at the cun•ent rate of disposal for solid waste. The Operator shall have no
responsibility to remove, transport or dispose of any Unacceptable Waste delivered to
the Facility although such removal, transport and disposalrnay be handled pursuant
to the provision of the Haul -out, Operation and Maintenance agreement
between the Operator and the County.
2.08 Receiving and Operating Hours.
(a) The Operator shall keep the Recyclable Facility Sites open for receiving Recyclables
during the Receiving Time.
(b) The Operator may request and accept subject to County approval the delivery
of Recyclables at times other than the Receiving Time or in amounts greater
than amounts scheduled to be delivered at no additional cost to the County. The
County's approval shall not be Luueasonably withheld. The Operator will
reimburse the County for overtime costs resulting from such extended
Receiving Time should a weigh master or other County employee be required. -
2.09 Wei;~liinu Equipment and Recordkeeping.
(a) The County shall maintain weighing scales at the entrance to or adjacent to each
Recyclables Facility Site for the purpose of determining the total tonnage of Recyclables
delivered.
(b) The County shall maintain a weight record containing the weight, date, time
and vehicle identification of each vehicle entering and exiting the
Recyclables Facility Site and provide the Operator a duplicate copy or
report of each weight record Issued.
C,• The County sh11 operate and maintair, the scales Its con',pliance wifln this
Agreement and all applicable state and local laws. The County shall test, or
cause to be tested, the scales at least serniarn-mally and if necessary recalibrate
such scales accordingly. Copies of the results of such test and any
recalibration shall be provided to the Operator within fifteen (15) days of the
receipt of such records by the County. The Operator hereby reserves the right
to have reasonable access to the scales and respective scale houses during all
operating hours to monitor the County's compliance with the provisions of
this Section 2.09. The Operator has the right to verify weight data and cause the
scales to be tested at Operator expense at tines other than the County's
required semiannual test. If all weighing equipment is incapacitated or is being
tested, the County shall estimate the quantity of material delivered on the basis
of truck volumes and estimated data obtained from pertinent historical
Infonnation. These estimates shall take the place of actual weighing records
during the period of the scale outage,
2.10 Storan-e.
Recyclables shall be placed in the storage area designed for that purpose.
2.l I RESERVED
2.12 Equipment Parking.
The County shall designate areas at each Recyclables Facility Site which the Operator can
exclusively use for the parking and storage of transfer trailers, transfer tractors, and other
vehicles and equipment owned or used by the Operator for die purpose of fulfilling the
provisions of the Agreement. Any other vehicles Operator desires to park at a facility will
be subject to the reasonable terms and conditions by the County.
ARTICLE 1111
COMPENSATION, FEES
PERFORIMAINCE GUARANTEES AND PENALTIES
3,01 Compensation and Processing Fee
A. Compensation
The COUNTY shall pay the Franchisee in
current annual
funds for the Franchisee's performance of this
Agreement. .Funding for years 1-10 are
estimated as follows, which includes the estimated CPI
increases as allowed and specified herein:
Year 1 $389,500
Year 6
$409,200
Ycar 2 $389,500
Year 7
$419,400
Year 3 $399,200
Year 8
$429,900
Ycar 4 $399,200
Year 9
$440,600
Year $409,200
Year 10
$451,700
Total Estimated Amount: $4.14 Million
Thcse numbers represent estimated nu-nibers only, and are based on estimated quantities of
materials and CPI increases. 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 Franchisee. The County anticipates the tons of recyclable materials to
substantially increase after deliver-y of the recycle carts to County resid.en.ts, and therefore the
estimates listed above may substantially increase.
13. Processing Fee
The County is currently paying the Operator a processing fee of $73.92 per ton of recyclable materials
delivered to the Facility. The $73.92 per ton fee will remain in effect through September 30, 2014. On
October 1, 2014, and each October 1 thereafter, except as specified below, throughout the remaining
term(s) of this Amended and Restated Monroe County Recyclables Agreement, the disposal fee shall he
adjusted based on the percentage change in the Miand / Ft. Lauderdale All Urban Consumers All Items
Price Index published by the United States Department of Labor, Department of labor Statistics for the
previous March 1 — February 28 time period. For years when a CPI is authorized, the Processing Fee shall
be based on the percentage change in the Urban Consumer Price Index published by the United States
Department of Labor, Department of labor Statistics for the previous March 1 — February 28 tune period.
CPI increases are authorized as follows:
Years 2, 4, and 6 No CPI Increase Authorized
Years 1, 3, 5, 7, 9, and 10 CPT Increases Authorized. Not to Exceed 2.5%
C. Rebate.
The Operator shall pay the County a lump sum of $50,000 annually on October 1.
D. Share of Revenue
The Operator shall provide 40% of the revenue from the sale of recyclable materials when the average
market value is greater than or equal to $98/ton. Such payment shall be made quarterly to the County,
and shall be based on the quarterly market average. The Operator shall provide an annual report and
statement that indicates the number of tons of recyclable materials processed, the monthly market
value, the rebate and share of revenue funds paid to the County.
3.02 Reserved
3.03 Billing Statement.
At the end of each calendar inonth, the operator shall provide a billing statement
In accordance with this provision. This statement shall set forth the total tormage
received at the Recyclables Facility Sites, according to the weight recorded and
certified at the scales for the month then ended times the Processing Fee charged per toil
in accordance with this Agreement Such statement shall be provided for the County not
later than the fifteenth (15th) day of the month following the provision of the service. The
County shall make its best effort to make payment with fifteen (15) days following the
receipt of such statement, but the County shall otherwise comply with the Local
Government Prompt Payment Act 218.70, Florida Statutes.
3. 05 Performance Guarantees.
Operator shall operate the Recyclables Facility Sites in a manner that they are capable of
accepting and processing up to an aggregate. of 20,000 torts of Recyclables per
Year-
3.06 County Non-performance.
If during any monthly billing period due to the fault of the County , a
Recyclables Facility Site is temporarily shut down, either partially or totally, or is
otherwise unable to receive or process Recyclables, the Operator shall use its reasonable
best efforts to receive, process and/or dispose of Recyclables to the extent possible, and
the County shall pay such costs, losses and damages as small be claimed by the
Operator. During such events,the Operator shall use its reasonablebest efforts to reduce
expenses and mitigate losses during a period of non -operation or partial operation due to
the County's fault.
3 .07 No liability for Uncontrollable Circumstances.
Neither the County nor the Operator shall be liable to the other for any failure or delay In
performance of any obligation under this Agreement (except any obligation to pay
previously owed or otherwise obligated monies) If such party is prevented or delayed in the
perforrance of such obligation due to the occurrence of an Uncontrollable
Circumstance. The party whose pertonnance under this Agreement has been affected by an
Uncontrollable Circumstance shall provide prompt written notice of the occurrence and
cessation of such Uncontrollable Circumstance to the other party. Whenever an
Uncontrollable , Circumstance shall occur, the party claiming to be adversely affected
thereby shall as quickly as reasonably possible, elirn-inate or mitigate the cause therefor,
reduce costs and resume perforniauce Linder this Agreement.
Article IV
FURTHER AGREEMENTS
4.01 Licenses, Approvals and Permits.
The Operator shall maintain all pemiits required or permitted by law to be in its name
which are necessary for the operation of the Recyclables Facility Sites. The Operator and the County shall
cooperate as reasonably necessary in coruiectiorn with obtaining in a timely marmer the licenses, approvals
and perm -its for the operation of the Sites.
4.02 Insurance DurinU Operations:
(a) The Operator shall maintain all insurance coverage as mutually agreed to under Section
4.02(b) during the term of this Agreement. The costs of all such insurance, including any
deductibles shall be paid bythe Operator.
(b) The Operator shall obtain and -maintain the following Insurance with respect to
operation and nnaintenance of the Facility:
() Broad Form Commercial General Ligb itv Insurance Coverage which shall contain
the following minimum coverage and endorsements with tidier coverage and
endorsements to be added by mutual agreement:
(i) PremisestonerationK,
(ii) Contractual liability applicable to the indemnities in this Agreement;
(iii) Products/Completed Operations Hazards;
(iv) Independent Operators
(v) EnvironinentalImpairrrent:
(vi) Personal injury,
(vii) Deletion of the Explosion,collapse and
underground hazards exclusion;
(viii) Cross liability clause.
The applicable limit of liability shall be as agreed from time to time but shall not he less
than $5,000,000 per occurrence.
(2) Workers' CoMpensati.on in an amount as required by statute and Employers
Liability In an amount no Tess than $1,000,000 each accident, $1,000,000 each
employee for disease, and S5,000,000 policy limit.
(3) Comprehensive Automobile Liability Insurance Coverage applicable to all owned
"non -owned" acid hired vehicles used In connection with the operation and
maintenance of the Recyclables Facility Sites, subject to the mininmm Combined
Single Limit of Primary Bodily Injury and Property Damage Liability Insurance as
agreed from time to time but �xhich shall not be less than $5,000'000 Coiubirled
Single .Limit. Operator will require subcontractor to provide a certificate of
automobile insurance.
(4) Umbrella or Excess Liability Insurance Coverage which shall follow farm, with
respect to all underlying coverage regardless of Umbrella or Excess Policy
Conditions to the contrary. The Limits of Liability shall be $10,000,000 per
occurrence and, as applicable, in the aggregate.
(5) All Risk Property Insurance covering 100% of the Recyclables Facility Sites
replacement cost.
(c) Additional Named Insured's. The Operator shall nar-ne the County (Including their
respective board members, directors, officers, employees and agents) as additional named
insured on all insurance policies required pursuant to this Section 4.02 and as loss payee
on property Insurance policies, as their respective Interestmay appear in accordance with
the contracts and agreements (related to the Recyclables Facility Sites) to which they are a
party.
(d) Special Insurance Provisions. With respect to the insurance specified in this Section
4.02.
(1) Such coverage shall not be canceled or materially changed without giving
the County thirty (30) days.
i2) Addition named Insureds shall have the option of paying any insurance
prernium in order to prevent cancellation of insurance's for nonpayment of
prerniuni and shall be entitled to receive from the Operator full
reianbursement of all iterrrs so exper-ded.
(3) Neither the Operator nor any of the additional named insured set forth In
Section 4.02(c) shall have the -unilateral right to make an insurance
settlement under the policies of insurance's set forthhereirn.
(4) If at any time the insurance's set forth in this Section 4.02 shall fail to
comply with the insurance requirements specified, the Operator shall, upon
notice to that effect, promptly apply for a new policy, submit such policies
to the County for prior approval, and then file a certificate thereof with the
same. If the Operator fails to comply with any such Insurance
requirements, the County may, at its option, pay a renewal premium or
otherwise fulfill the particular Insurance requirements. This action on the
part of the County will mandate repayment of said Insurance premiums by
the Operator. Failure of the operator to take out and/or maintain any
reqLured insurance shall not relieve the Operator fiorn any liability
hereunder Failure of the Operator to maintain the required Insurance
constitutes a breach of this Agreement
(5) The Operator shall evidence compliance with the Workers' Compensation
Law by supplying the County, prior to the first day of the term of this
Agreement, the following attested documentation:
(a) A Workers' Compensation certificate, prescribed for proof of
compliance with the Workers' Compensation law; and
(b) If the Operator or any subcontractor shall be self-- insured for
Workers' Compensation, such entity shall present a certificate
evidencing from the Workers' Compensation that fact to the
County.
(e) With respect to the interests of the additionabiamed insured as set forth in Section
4.02(c),such insurance shall not be invalidated by any action or inaction of the
named insured and shall insure such additional named insured regardless any
breach or violation of any warranty, declaration of condition contained in such
insurance by the named insured.
(fj Such liability insurance as is afforded by the insurance set forth in this Section
4.02 shall be primary without the right of contribution from any other
insurance's that are canned (or self-insurance) by the Operator or by any
additional named insured a s set forth In Section 4.02(c), with respect to their
interests in the Facility Site
4.03 E ual Employment O ortmni and Non -Discrimination.
The Operator agrees to comply with the requirements of all applicable non- discrimination and equal
employment opportunity statutes. County and Contractor agree that there will be no discrimination against
any person, and it is expressly understood that upon a detennination by a court of competent jurisdiction that
discrimination has occurred, this Agreement autornatically terminates without any further action on the part of
any party, effective the date of the court order. County or Contractor agree to comply with all Federal and
Florida statutes, and all local ordinances, as applicable, relating to nondiscrimination. 'These include but are not
limited to. 11 Title VI of the Civil Rights Act of 1964 (PL S3-352) which prohibits discrimination or the basis
of race, color or national origin; 2) Title IX of the Education Amendment of I972, as amended (20 USC
Bs. 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 o41 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 chug 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 290ce-3), as amended, relating to confidentiality of alcohol and drug
abuse patent 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; 9) The Americans with Disabilities Act of 1990
(42 USC s. 1201 Note), as maybe amended from time to time, relating to nondiscrimination on the basis of
disability; 10) Monroe County Code Ch. 13, Art. VI, prohibiting discrimination on the bases of race, color,
sex, religion, disability, national origin, ancestry, sexual orientation, gender identity or expression, familial
status or age; and 11) any other nondiscrimination pro-6sions in any Federal or state statutes which may apply
to the parties to, or the subject matter of, this Agreement.
Notwithstanding the forgoing, termination may not occur if the Operator produces and adopts a plan that on a
go -forward basis will address and seek to prevent any reoccurrence of unlawful discrimination. The County
and Operator agree to comply with all Federal and Florida Statutes, and all local ordinances, as applicable,
relating to nondiscrimination.
4.04 Chanae In Law.
In the event that a Change In Law occurs such that compliance with tlris Agreementby either part
Is rendered unlawful or is materially adversely affected, the parties shall meet Immediately to
agree on a modification to this Agreement that will allow continuation of this Agreement without
causing such adverse effect or violation of law. The Agreement shall he deemed terminated by
mutual consent of the parties If such rnodificationls not agreedto within 30 days after the Change
In Law occurs.
ARTICLE V
DEFAULT AND TERMINATION
5.01 Remedi s f r Breach,
Either party may tenninate this Agreement on the occurrence of an Event of Default by the
other party In accordance with this Article V.
5.02 Events of Default by Operator.
The following shall constitute Events of Default on the part of the Operator:
a) Failure of the Operator to timely perform any material obligation under this
Agreement, such as, but not limited to, failure to provide sufficient labor and materials to
operate the Recyclables Facility Sites as herein specified, operation of the same in violation
of any applicable and material federal, state or local environmental rules, regulations or
laws, or ordinances, refitsals or failures to supply properly skilled worlcsnen, failure to
supply or cause to be supplied proper materials, failure of the Operator to provide the
Insurance as required by S ection 4.02, and disregard for laws, ordinances, rules, regulations
or orders of any public authority havingiur-isdiction over the Recyclables Facility Sites, or
the Operator's obligations under this Agreement. However, the failure of the Facility to
operate at the level of the performance requirements of Section 3.05 shall not be an Event of
Default If (i) no Event of Default describedin paragraph (b)(1) of this Section 5.02 shall have
occurred, and (11) the Operator shall pay any costs incurred by the County because of such
failure.
(b) (1) In the event the Operator fails to operate the Recyclables Facility Sites at a level
in accordance with the performance requirements of Section. 3.05 for a period of two (2)
consecutive months, provided that County has delivered or caused to be delivered,
Recyclables materials for processing. Any such default shall be cured if the Operator shall
develop a reasonable corrective plan intended to restore performance to an acceptable
level within two (2) montliperiod. This two (2) month periodmay be extended at the option of
the County upon the Operator's showing of good cause,
(2) In the event of any extension beyond the initial two month period provided in
Section 5.02(b)(1) Curless the Operator can demonstrate that it has properly operated and
maintained the Recyclables Facility Sites in accordance with prudent operating
practices, the Operator shall be liable for costs associated with the failure to perform
during the extension period.
(c) The Operator being or becoming insalvent or bankrupt or ceasing to pay its delfts as
they mature or making an an-angement with or for the benefit of its creditors or
consenting to or acquiescing in the appointment of a receiver, trustee or liquidator for
a substantial part of Its property, or bankruptcy, winding up, reorganization,
insolvency, ar-rangerxient or similar proceeding Instituted by or against the Operator
under the laws of any jurisdiction, which proceeding has not been dismissed within
ninety (90) days, or any action or answer by the Operator approving of, consenting to, or
acquiescing In, any such proceeding, or the levy of any distress, execution or attachment
upon the property of the Operator which shall substantially interfere with its performance
hereunder.
5.03 Events of Default by the Count .
The :following shall constitute Events of Default on the part of the County.
(a) Failure of the County to timely perform any material obligation under this Agreement,
except the obligation described in Section 5.03(b). However, no event of default shall
occur under this Section 5.03(a) If the County shall, within < _: _. (60) days of the failure
to perform, prepare a reasonable corrective plan intended to cure the failure of
performance within a two month period. The two month period may be extended for an
additional two month period by mutual agreement upon the County's showing of good
cause, which agreement shall not be unreasonably withheld by the Operator. The County
shall be liable for any costs incurred by the Operator during the period of the County's
failure to pe.rfonn.
(b) failure of the County to pay amounts owed to the Operator under Section 3.01 or 3.03 of
this Agreement within thirty (30) days of the due date, or failure of the County to pay any other
amount owed to the Operator within ninety (90) days following receipt of Operator's billing;
unless a dispute resolution is pendingpursuant io Section 6.03 hereof in which case the County
shall pay to the Operator any such amount which Is not in dispute, and withholdpayrnentof any
such amount in dispute in aecordancewith Section 6.03.
5.04 Termination of Agreement by the County.
(a) If within a period of thirty (30) days after the Operator shall have received notice from
the County that an Event of Default has occurred under Section 5.02(a) or (b),suclinotice
describingin reasonable detail the nature of the Event of Default, the Operatorhas neither
remedied, nor commenced and continued to pursue with due diligence a remedy for any
such Event of Default, the County may, after dispute resolution in accordance with
Section 6,03, terminate this Agreement forthwith.
An Event of Default of the character described in Section 5.02(c) hereof shall not require
notice by the County as hereinabove provided, but shall terininate this Agreement
forthwith.
(b) If this Agreement is terninated by the County pursuant to Section 5.04(a) Hereof, the
Operator shall vacate the Recyclables Facility Sites.
(c) If the Agreement is ternunated, the Operator shall (a) grant to the County, or any
replacement operator, a paid -up, royalty -free, aon-exclusive lieense to any patents,
tradernarks,copyrights and trade secrets and "shop rights" as necessary for and hinited to
the operation of the Recyclables Facility Sites; (b) supply at a mutually agreeable fair
market value, any proprietary components needed for continuing the operation of
same, (c) assign,if not prohibited, for the benefit of the County or any replacement
operator, all maintenance and supply contracts;(d) assist the County or any
replacement operator by providing, without charge, initial training for personnel as
may be reasonably necessary to enable the new operator to continue with the
operation of the Recyclables Facility Sites; (e) provide non -technical and technical
design, construction and operational infonnation, whether or not proprietary,
including technological specifications, necessary for operation, maintenance and
repair of the Recyclables Facility Sites; and (f) grant to the County or any
replacement operator access to the Recyclables .Facility Sites for the purpose of
operating and maintaining the salve. The Operator shall be entitled to payment of its
processing fee pursuant to Article TV untilthe date of termination of this Agreement
(d) This Section 5.04 shall survive the tei-rnination of this Agreement for the purpose
of enforcing the County's rights herein.
5.05 Terininationof Agreernentby the Operator.
If an Event of Default described in Section 5.03(a) or (b) hereof shall occur and If such
Event of Default shall continue for a period of thirty (30) days after the County shall have
received notice from the Operator describing In reasonable detail the nature of the Event of
Default, and If the County has neither remedied, nor connnenced and continued to pursue a
remedy for any such Event of Default with due diligence, or,in the event of a. failure to pay
monies owed, paid In foil such monies, then the Operator, after dispute resolution in
accordance with Section 6.03, may commence such legal or equitable proceedings to
recover damages as the Operator may deem appropriate and/or terminate this Agreement
upon Tbirt y (01) d?,v.s Nm7tt--r3 not;ce k) The co,, sty. County shall be -responsible ft;r and shall
pay Operator damages, losses, costs, and expenses, relating to such Default, together with
reasonable attorneys' fees and costs.
5.06 No Liability for Uncontrollable Circumstances.
Neither the County nor the Operator shall he liable to the other for any failure or delay in
performance of any obligation under this Agreement (except the obligation to pay previously
owed or otherwise obligated monies) due to the occurrence of an Uncontrollable
Circumstance. The party whose performance under this Agreement has been affected by an
Uncontrollable Circumstance shall provide prompt written notice of the occurrence and
cessation of such Uncontrollable Circumstance to the other party. Whenever an
Uncontrollable Circumstance shall oecur,the party claiming to be adversely affected thereby
shall, as quickly as possible, eliminate or rnitigate the cause thereof, reduce costs and
resume performance under this Agreement.
5.07 Manner of Tennination Payment
Within thirty (30) days following completion of the tern, of this Agreement, the County and the
operator shall reconcile all amounts then due and payable to eachother under the provisions of this
Agreement. Upon reaching,as a result of suchh reconciliation, the total amount of the outstanding
unpaid balance which the County and the Operator each owe the other, the County and the
Operator shall, within 30 days thereafter pay such arliounts. If there shall be a disagreement as to
the amount the Operator or the County shall be entitled to receive,there shall nevertheless be timely
paid such amounts which are not in dispute. Any remah I ing balance shall be payable promptly by
the appropriate party after resolution of said dispute, in accordance with Section 6.03
ARTICLE VI
MISCELLA��EOUS
6.01 Term
Unless sootier terminated in accordance with the terms hereof, this Agreement shall commence oil,
October 1, 2014 acid continue tuitil September 30,2024. This Agreement may be renewed for up to
one additional five (5) year period on the terns and conditions set forth herein by mutual agreement of
the parties.
6.02 Assi�4nment.
(a) It is expressly understood and agreed that this Agreement is personal to the County and
the Operator, and that, except as expressly provided In this Section 6.02,the Operator shall have
no right, power or authority to assign this Agreement or any portion thereof without prior
approvalof the County.
(b) Upon written notification to and subject to written approval by the County, the
Operator may subcontract or assign performance requited hereunder. The Operator guarantees
compliance by such subcontractors and assignees with the requirements of this Agreement,
provided that the limitations on the Operator's liability set forth► in the Agreement constitutes the
aggregate limit of liability of the Operator and its related or affiliated entitles to the County. The
County shall not unreasonably witWiold approval of any requested subcontract or assi--n?Mente
This paragraph shall be incorporated by reference into any assignment or subcontract and any assignee
or subcontractor shall cor.nply with all of the provision of this agreement. Unless expressly provided for
herein, such approval shall in no rrianner or event be deemed to impose any additional obligation upon
the Board.
6.03 Dispute Resolution.
(a) The parties shall use their reasonable best efforts to resolve any dispute or controversy by
mutual agreement. Except as otherwise expressly providedherein, each party shall have the
right to fully pursue its remedies at law in the event a dispute or controversy carurot be
resolved In accordance with the foregoing.
(b) ' Adjudication of Disputes or Disagreements: The parties agree that all disputes and
disagreement 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 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
(c) Any civil proceeding or other action conuneneed to enforce this Agreement shall be
hied in any court havinb jurisdiction thereof and situated in Monroe County, Florida.
6.04 Indemnities and Releases.
(a) Notwithstanding any miniinurn insurance requirements prescribed elsewhere in this Agreement,
the Operator shall protect, indemnify, and hold harmless the County and its respective officers, board
inembers, employees and agents (the "County Indemnified Parties") from and against all liabilities, actions,
damages, claims, judgments, losses, costs, expenses, suits, or actions and reasonable attorney's fees, and
shall defend the County In any suit, including administrative actions and appeals, for personal iniury to, or
death of, any person or persons, or loss of or damage to property, or for any fines or governmental
penalties; caused by the negligence or wrongful acts or omissions of the operator arising out of the
performance or non-performance of the Operator's obligations under this Agreement, the improper disposal
of Recyclables or the breach by Operator of any representation or condition of this Agreement the Operator
Is not, however, required to reimburse or Indemnify County or any County Indemmnified Party for loss or
claim due to negligence of County or any County Indemnified Party to the extent the loss or claim was
caused by the County or any County Indemnified Party. The Operator's aforesaid Indenurity Is for the
exclusive benefit of the County and the County Indemnified Parties, and in no event shall inure the benefit
of any third, party. This indemnification set forth in this subsection shall survive the tennination of this
Agreement
(b) The Operator shall protect, indemnify and hold harzraless the County and. the County
Indemnified Parties from and against all cost recovery or remedial actions arising
under the Comprehensive Environmental Response, Compensation and Liability
Act,42 U.S.C., See.9601 et seg. and Florida Statute 403, the Solid waste Act, brought
against the Cowity or the County's lndernnifred Parties and arising from Operator's
transportation and disposal of Recyclables pursuant to this Agreement- The
indemnification set forth in this subsection shall survive the termination of this
Agreement-
(c) The County under the terms and provision of Florida Statute 768.28 shall protect,
indemnify and hold hanrxless the Operator arnd any subcontractors, and their respective
officers, directors, employees and agents (the "Operator Indemnified Parties") from and
against all liabilities, actions, fines, darnages,elairns demands, judgments, losses, costs,
expenses, suits, or actions and reasonable attorneys' fees, and shall defend the Operator
Indemnified Parties In any suit, including appeals, for personal injury to, or death of,
any person or persons, or loss of, or damage to property or any suit arising out of the
negligent performance (or nonperformance) of the County's obligations under this
Agreement up to the waiver amount set forth In Section 768.28 Florida Statutes. The
County Is not, however, required to reimburse or inden-mify any Operator Indemnified
Party for loss or claim due to negligence of any Operator Indemnified Party. This
Indemnification shall survive the termination of this Agreement.
(d) More fully described in Section 4.02 herein, Operator and the County hereby waive any
and every claim for recovery from the other and from any 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 recoveredunder such insurance policies.
(e) There are no warranties or guarantees of the Operator which extend beyond those
expressed in this Agreement, and the Operator DISCLAIMS AND THE COUNTY
WAIVES ANY IMPLIED WARRANTIES OR WARRANTIES IMPOSED BY
LAW, INCLUDING WARRANTIES OR MERCHANTABILITY,WARRANTIES OF
FITNESS FOR A PARTICULAR PURPOSE,AND CUSTOM AND IMAGE.
6.05 Further Assurances.
Each party agrees to execute and deliver any instruments and to perforn-i any action that may
be necessary,or, reasonably requested, in order to give full effect to this Agreement.
Each party shall use all reasonable efforts to providesuch Information, execute such further
instruments and documents; and take such action as may be reasonably requested by the other
parity not Inconsistent with the provisions of this Agreement and not involving the assumption
of obligations other than those provided for In this Agreement to cant' out the Intent of this
Agreement.
6.06 Warranties Machinea, E ui nnent and Mateiials.
The Operator shall exercise all reasonable efforts to obtain manufacturers' warranties for
equipment and materials at the Facility and to assign such warranties to the County in
accordance with this Agreement.The Operator hereby agrees that the County shall be subrogated
to all of the Operator's rights and privileges under all suppliers' warranties and that if the
Operator shall not have, within 30 days after written notice from the County, moved to enforce
its rights and privileges under any of such warranties, the County may enforce such rights as the
Operator would otherwise have under such warranties. This Section 6.06 shall survive the
tennination of this Agreement.
6.07 IndustrialPropei-ty Rights.
The Operator and the Coun y agree to hold in strictest confidence not to disclose to third parties
any confidential or proprietary know-how, trade secrets, technical data or other data or
information which has been Identified by one party to the other as proprietary or confidential and
has been or shall be fa ishedby one party to the other in connectioirwith the performance of this
Agreement, except that In each instance this Section shall not apply to such matters which (i) were
In the receiving party's lawful possession prior to submission thereof by the disclosing party and
had not been obtained by the receiving party either directly or indirectly from the disclosing
party, or (ii) are hereafter lawfully made available to the receiving party by a third party or (iii)
are, or at any time became available to the public through no act or failure to act by the receiving
part, or (iv) any matters required to be disclosed or made public udder the requirements of law.
6A Representations.
(a) The Courlty`s Representations. The County represents to the Operator that:
(1) The County is duly organized. and existing in good standing under the laws of the
State of Florida and is authorized to carry on the governmental functions and
operations as contemplatedby this Agreement.
(2) The County has the power, authority and legal right, to enter into and perform its
obligations set forthin this agreement, and the execution, delivery and performance
hereof (i) have been duly authorized, (i i) have the requisite approval of appropriate
goverrm7en.tal bodies.
(3) This Agreement has been duly entered into and delivered and, as of the Contract
date, constitutes a legal, valid and binding obligation of the County, enforceable In
accordance with its terms.
(b) Operator's Representations. Tile Operatorliereby represents to the County that:
(1) The Operator is duly organized and existing In good standing under the laws of the
State of Florida, and is duly qualified to do business wherever necessary to carry on
the business and operations conternplatedby this Agreement.
(2) The Operator has the power, authority and legal right to -enter into. and perform
its obligations set forth in this agreement, and the execution, delivery and
performance hereof (i) has been duly authorized,(ii) has the requisite approval of
appropriate govermnentalbodies,(iii) does not violate any judgment, order, law
or regulation applicable to the Operator of any provisions of the Operator's
certificate of incorporation or bylaws and (iv) does not constitute a default under
or result in the creation of any lien, charge, encumbrance or security interest upon
any assets of the Operator under any agreement or instrzrrnent to which the
Operator is a party or by which the Operator or Its assets may be bound or
affected.
(3) The Operator holds, or is expressly authorized under, the necessary patent
riglits, licenses and franchises to the Recyclables Facility Sites pursuant to the
tercets of this Agreement.
(4) This Agreement has been duly entered into and delivered and, as of the contract
date, constitutes a legal, valid and bidding obligation of the Operator,
enforceable it acco-dance j6th its teens.
(5) The Operator waiTants that its consultants, subconsultants, agents and employees
have the experience, kno«Fledge and character- necessary to quo ify there for the
particular duties that each may perform under this Agreement and shall perform such
services in accordance with the highest professional standards and free from defects
in materials and workmanship.
(6) The Operator has or will obtain all necessary permits required to operate the
RecyclablesFacility Sites.
6.09 Relationship of the Parties.
Except as otherwise explicitly provided herein, no party to this Agreement shall have any
responsibility whatsoever with respect to services provided or contractual obligations assumed
by any other party and nothing in this Agreement shall be deemed to constitute any pasty a
partner, agent, or legal representative of any other party or to create any fiduciary relationship
beM,een or among the parties.
6.10 Documents Pertaining to the Regyclable.Facility Sites.
All documents prepared by or for the Operator pertaining to the Recyclable Facility Sites for
the purpose of operating and maintaining the Recyclable Facility _ Sites shall become the
property of the County, upon termination of this Agreement, subject to any applicable
proprietary restrictions, provided that the Operator may retain and use copies thereof.
6.11 Notices.
Any notices or communication required or pennitted hereunder shall be in writing and
sufficiently given or deliveredhi person, or sent by certified or registered mall, postage prepaid,
as follows:
As to the Operator: President
Waste Management Inc. of Florida
2700 Wiles Road
Pompano Beach, rL 333073
As to the County: County Administrator
Monroe County
1100 Simonton St, Ste 2-205
Key West,FL 33040
Changes hi the respective addresses to which such notice may be directed may be made from
time to time by any party by written notice to the other party.
6.1.2 Waiver.
The waiver by either party of a default or a breach of any provision of this A�;reeinent by
the other party shall not operate or be construed to operate as a waiver or any subsequent
default or breach. The making or the acceptance of a payment by tidier party with
knowledge of the existencce of a default or breach shall not operate or be construed to
operate as a waiver ofany subsequent default or breach.
6.13 Modifications.
The provisions of this Agreement, including the present and all future schedules, together
with the agreements incorporated by reference, shall (1) constitute the entire agreement
between the parties for the operation of the Recyclable Facility Sites, and (2) be modified,
- uhless provided herein to the contrary, only by written agreement duly executed by both
parties. In the event of any conflict, variation or inconsistency between these general teens
and conditions of this Agreement and any of the schedules, these general terns and
conditions shall control..
6.14 Headinus.
Captions and headings In this Agreement are for ease of reference only and do not
constitute a partof this Agreement,
6.15 Governing Law,
This Agreement and any questions concerning its validity, construction or performance
shall be governed by the laws of the State of Florida, irrespective of the place of execution or
of the order- in which the signatures of the parties are affixed or of the place or places of
performance.
6.16 Venue.
Venue for all purposes arising out of this Agreement shall be in Monroe County. Florida,
unless prohibited by law.
6.17. Counterparts.
Tlus Agreementinay be executed in in ore than one counterpart, each ofwhich shall be deemed
to be an original.
6.18 Severability.
In the event that any provision of this Agreement shall, for any reason, be determined to be
invalid, illegal, or unenforceable in any respect, the parties hereto shall negotiate in good faith
and agree to such amendments, modifications, or supplements of, or to, this Agreement or such
other appropriate changes as shall, to the maximum extent practicable in light of such
determination, implement and give effect to the intentions of the parties as reflected herein,
and the other provisions of this Agreement shall, as so amended, modified, supplemented or:
otherwise affected by such action, remain in full force and effect.
6.19 mess Seated Otherwise.
Allienever this Agreement requires performance by the Operator, it shall be at the Operator's
expense and whenever this Agreenent requires performance by the County it shall be at the
u. C£ r t e' s epersb=
6.20 Performance Bond.
The Operator shall provide a performance bond in the amount of $300,000 Issued by a surety or
Insurance company licensed or authorized to do business In the State of Florida. Notwithstanding
anything herein to the contrary, in the event this .Agreement Is terminated due to the default of
Operator under the provisions of Section 5.02 hereof, and the County receives payment from the
surety, the Operator's liability for any and all obligations hereunder shall be limited to said amount
paid under the performance bond.
6.21 Forms.
The following documents areattachedto this Contract and shall be executed annually on .January 1.
each vear of the Contract terns:
Schedule A
Ethics Form
Schedule B
Drug Free Workplace Form
Schedule C
Public Entity Crimes Form
Schedule D
Non Collusion Affidavit
6.22 Maintenance of Records.
Operator shall maintain all books, records, and documents directly pertinent to performance under this
Agreement in accordance with generally accepted accounting principles consistently applied. Each party
to this Agreement or their authorized representatives, or the Florida Department of Environmental
Protection or its designee, 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 detennines that monies
paid to Contractor pursuant to this Agreement were spent for purposes not authorized by this Agreement,
the Contractor shall repay the monies together with interest calculated pursuant to Sec. 55.03; FS, running
from the date the monies were paid to Contractor,
6.23 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 infonnation.
6.24 No Solicitation/Pa. r
The County and Operator 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, couunission, 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
Agi'rel2iea:i iviihout i"a allty and, at its discretion, to offset from 11101lies owed, or Otherwise zecoven One
full amount of such fee, commission, percentage, gift, or consideration.
6.25 Public Access
The County and Operator 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 County and Contractor in conjunction with this
Agreement. Pursuant to F.S. 119.0701, Franchisee and its subcontractors shall comply with all 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 terns 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 Franchisee upon termination of the contract 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 infomlation technology systems of Monroe County.
The County shalt have the right to unilaterally cancel this Agreement upon violation of this provision by
the operator that in not timely cured.
6.26 Non Waiver of Immunity.
Notwithstanding the provisions of Section 768.28, Florida Statutes, the participation of parties in this
Agreement and the acquisition of any coanunercial liability insurance coverage, self-insurance coverage,
or local govermnent 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.
6,27 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 that apply to the activity of
officers, agents, volunteers 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.
6.28 Legal Obligations And Responsibilities; Non -Delegation Of Constitutional Or Statutory Duties.
This Agreement is not intended to, nor shall it be construed as, relieving any participating entity from any
obligation or responsibility unposed upon the entity by law except to the extent of actual and timely
performance thereof by any other participating entity, in which case the performance may be offered in
satisfaction of the obligation or responsibility, Further, this Agreement is not intended to, not 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, state statutes, case law, and, specifically, the provisions
of Chapters 125 and 163, Florida Statutes.
6.29 Non Reliance by Non -Parties
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 Franchisor and Franchisee agree that neither the Franchisor or
Franchisee, or any agent, officer or employee of either shall have the authority to inform, counselor
otherwise indicate that any particular individual or group of individuals, entity or entities, have
entitlements or benefits under this Agreement separate and apart, inferior to, or superior to, the
community in general or for the puri)oses contemplated in this Agreement.
6.30 Attestations
Operator agrees to execute such documents as the County may reasonably require, including a Public
Entity Crime Statement, and Ethics Statement, and a Drug -Free Workplace Statement.
6.31 Covenant Of No Interest
The County and Operator covenant that neither presently has any interest, and shall not acquire any
interest, that 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.
6.32 Cooperation
h1 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 Operator 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.
Cowity and Operator specifically agree that no party to this Agreement shall be required to enter into any
arbitration proceedings related to this Agreement or any Attachment or Amendment to this Agreement.
6.33 Binding Effect
1-he terms, covenants, conditions and provisions of this Agreement shalt bind and inure to the benefit of
the County and Operator and their respective legal representatives, successors and assigns.
6.34 Existing Or Prior Agreements
The terms and conditions of this Agreement supersede the terms, obligations and conditions of any
existing or prior agreement or understanding, written or verbal, between the parties regarding the work
perfonned, compensation to be paid, and all other matters contained herein.
6.35 Public Awareness Program
The Operator shall assemble a website and maintain a website in the form of a public outreach dashboard,
and regularly input infonnation, provided by the County, regarding the services, activities and tonnage of
recycle materials processed. Additionally, the Operator shall assist the County with a Public Awareness
Program by distributing door hangers, stickers, flyers or other media to residential and commercial
customers as requested by the County.
IN WITNESS WHEREOP,the parties have caused this Agreement to be executed by their duly
authorized officers or representatives as of the day and year first above written.
Clerk of the Circuit Court
Approved by Office of General Counsel
As to Form and Legal Sufficiency
ATTEST:
Co o -Seal
f
MONROE COUNTY, FLORIDA
By:
Mayor
ONROE COiJthxTY ATTORNEY
gl�F'i°°xOVED AS TO FORM'
CHRISTINE t €. III BERT-BARROWS
ASSISTANT COUNTY ATTORNEY
As to the Operator Date
I�CL_ :..
WASTE MANAGEMENT INC OF FLORIDA
By:
Timothy B. Mwkins, President
SCHEDULE "A„
SWORN STATEMENT UNDER ORDINANCE NO. 10-1990
ETHICS CLAUSE
Waste Management Inc. of Florida warrants that he/it has not employed, retained or otherwise had act on
his/its behalf any former county officer or employee in violation of Section 2 of Ordinance No. 10-1990
or any county officer or employee in violation of section 3 of Ordinance No. 10-1990. For breach or
violation of this provision the County may, in its discretion, deduct from the contract or purchase price, or
otherwise recover, the full amount of any fee, commission, percentage, gift, or consideration paid to the
former county officer or employee.
By:
ture)
Date: t�
STATE OF `
COUNTY OF
Subscribed and swam to (or affirmed before ' j i- '°
( ) ine on 2014 by 1
(naive of affiarit). He/She is personally known to me or has produced
as identification. (Type of identification)
P
NOTARY PUBLIV,
SUSANCHRISTAdOHNSON
MY COMMISSION 9 FF 065349
" * EXPIRES: January 29, 2010
N°rFOFf�,*P BandebIhMBudgetNabryServiccs
SCHEDULE "B"
DRUG -FREE WORKPLACE FORM
i ie all = 2 -^� c � hi S
�3g€ie'=Li `re€i+iC1r i.Il aC:t-i9F"€:d.ili%ti ,�tttli i�It3ii�ia. - za:tYtC; L:�r. ceC..,�y Certifies Ih,at.
Waste Management Inc. of Florida
{Name of Business)
1.Publish a statement notifying employees that the unlawful manufacture, distribution,
dispensing, possession, or use of a controlled substance is prohibited in the workplace and
specifying the actions that will be taken against employees for violations of such prohibition.
2.Inform employees about the dangers of drug abuse in the workplace, the business's policy
of €maintaining a drug -free workplace, any available drug cowiseling, rehabilitation, and
employee assistance programs, and the penalties that may be imposed upon employees for
drug abuse violations.
3. Give each employee engaged in providing the commodities or contractual services that are
under bid a copy of the statement specified in subsection (1).
4.In the statement specified in subsection (1), notify the employees that, as a condition of
working on the commodities or contractual services that are under bid, the employee will abide
by the terms of the statement and will notify the employer of any conviction of, or plea of guilty
or nolo contendere to, any violation of Chapter 893 (Florida Statutes) or of any controlled
substance law of the United States or any state, for a violation occurring in the workplace no
later than five (5) days after such conviction.
5.1mpose a sanction on, or require the satisfactory participation in a dilig abuse assistance or
rehabilitation program if such is available in the employee's conununity, or any employee who
is so convicted.
6,Make a good faith effort to continue to maintain a drug -free workplace through
implementation of this section.
As the person authorized to sign the statement, I certify that this fi€7n complies fully with the
above requirement
By: t ' __HAWKINS, PRESIDF,�ZT
SignatLit
Date: l
!Y'
STATE OF: KZT,A
COUNTY OF:
r
Subscribed d s"�.c�rn to or affirmed) before me on i a l (date) by
(name of affiant). He/She is' personally known to me or
has produced (type of identification) as iden 'fication.
NOTARY PUBLIC '4Q J
My Commission Expires:
a��_ .• •,'��� 5115AN GHRISTA JOHKS4N
EXPIRES: January 29, 2018
BondedThru Budget Notary Strviees
PUBLIC ENTITY CRIME STATEMENT
"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 a contract to provide any goods or services to a public entity, nnay
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 tlireshold amount
provided in Section 287.017, for CATEGORY TWO for a period of 36 months from the date of being
placed on the convicted vendor list."
I have read the above and state that neither Waste Management Inc. of Florida (Operators name) nor any
,kffi
Uiate has been placed on the convicted vendor list within the last 36 months.
WASTE MANAGEMENT INC. OF Ft.0 RiDA
TIMOTHY S. HAWKINS, SMEN
By:
n to }
Date:
STATE OR
COUNTY OF: t
Subscribed and sworn t (or affirined) before rue on p f
(date) by v" 4 �' °_ (name of affiant). He/She is personally known to
me or has produced
____ (type of identification) as identification.
L
NOTARY
My Commission Expires: 1�Y PUBS SUSAN CHRISTA JOHNSON
k ` * MY COMMISSION # FF 065349
EXPIRES: January 29, 2018
�'rF�FP0oc'O~ BondedThruWON OdrySeMM
CCTYIiD DULL' "D"
NON -COLLUSION AFFIDAVIT
I ,9n l - r
I, � ; t r ;L" � � 14�; F `,J" the city of r § according to law on any oath,
and under penalty of perjury, depose and say that
--P12 if > WA MANAGEMENT INC OF Fl_ €�I
a.I am t• �= (` of the firin'?" %der making the
Proposal for the described described in the Request for Proposals for
and that I executed the said proposal with full authority to do
so;
b,the prices in this bid have been arrived at independently without collusion, consultation, corm-nunication
or agreement for the purpose of restricting competition, as to any platter relating to such prices with any
other bidder or with any competitor;
e.unless otherwise required by law, the prices which have been quoted in this bid have not been
knowingly disclosed by the bidder and will not knowingly be disclosed by the bidder prior to bid
opening, directly or indirectly, to any other- bidder or to any competitor-, and
d.no attempt has been made or will be made by the bidder to induce any other person, partnership or
corporation to submit; or not to submit, a bid for the purpose of restricting competition;
e.the statements contained in this affidavit are true and correct, and made with full knowledge that
Monroe County relies upon the truth of the statements contained in this affidavit in awarding contracts
for said project. 11 OTHY E3. HAWKINS, PRESIDENT
(Signature
STATE OF:
COUNTY OF:
Subscribed and sworn to (or affinned) before me on I r ; c ` (date) by
4 %� � D 11 �?• - "�- 11 (name of affiant)i He;She is personally known to me or
has produced (type of identification) as
identification.
s
r- t
SUSANGHRISTAJOHNSON
NOTARY PUBLI�
* * MY COMMISSION 9 FF D65349
EXPIRES: January 29, 28t8
�r4rFOFF4o4,�Y Bonded ThroBit* NobryServkes
My Commission Expires: