Item C07
BOARD OF COUNTY COMMISSIONERS
AGENDA ITEM SUMMARY
Meeting Date: 9/17/2003
Division: Public Safety
Bulk Item: Yes X No
Department: Solid Waste Management
AGENDA ITEM WORDING: Approval to renew the Recyclables Operation Agreement, with
changes, in accordance with Section 6.01 of the agreement for a period of five (5) years.
ITEM BACKGROUND: Following the outsourcing of the Recycling Operations Department in
1998, a contract was negotiated with Waste Management for the processing, transportation,
and marketing of the County's recyclables. This action seeks to continue that arrangement
with certain changes.
PREVIOUS RELEVANT BOCC ACTION: Approval to advertise for bids on 1/14/98; approval to
negotiate an agreement with Waste Management Incorporated on 6/10/98; approval of the
Recyclables Operation Agreement on 8/12/98; approval of an amendment to the contract on
9/811999 for office space; authorization to exercise the option to renew given on 7/15/03.
CONTRACT I AGREEMENT CHANGES: 1.) Glass is removed from the list of recyclables
contracted and will be handled by County personnel under an agreement with the Florida
Department of Environmental Protection for the reclamation of wetlands at the Long Key
Landf"1ll. 2.) Mixed loads are allowed, as all categories will now have the same rate. 3.)
Rebates are discontinued in favor of no minimums required and an averaged rate. 4.)
Automatic five year renewals unless notice given by either party.
STAFF RECOMMENDATIONS: Approval
TOTAL COST: $350,000.00
COST TO COUNTY: $350,000.00
BUDGETED: Yes -L No
SOURCE OF FUNDS: Residential rate
assessment
REVENUE PRODUCING: Yes
No X
AMOUNT PER MONTH_ Year NIA
APPROVED BY:
County Atty YES IOMBIPurchasing YES IRisk Management YES
DIVISION DIRECTOR APPROVAL:
a/a (!~ %4
Carol A. Cobb, CPM, Sr. ;Administrator Solid Waste Management
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/ //"/-. /
,/' A::.-- t' / / "'/ VL ~ '~/z...:; (, 5'
// James R. "Reggie" Paros
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ITEM PREPARED BY:
DOCUMENTATION: Included
X To Follow
Not Required
AGENDAITEM#~
DISPOSITION:
Revised 1/03
MONROE COUNTY BOARD OF COUNTY COMMISSIONERS
CONTRACT SUMMARY
Contract with: Waste Management Inc. Contract #
Effective Date: 10/01/03
Expiration Date: 09/30/08
Contract Purpose/Description:
To process, transport, and market recyclables
Contract Manager: Carol A. Cobb 4432 Solid Waste Management/Stop 1
(Name) (Ext. ) (Department/Stop #)
for BOCC meeting on 09/17/03 Agenda Deadline: 09/02/03
CONTRACT COSTS
Total Dollar Value of Contract: $ 350,000.00 Current Year Portion: $ 0.00
Budgeted? Yesrg] No 0 Account Codes: 414-41002-530-340-
Grant: $ N/A _-_-_-_
CountyMatch:$ N/A _-_-_-_
- - -
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ADDITIONAL COSTS
Estimated Ongoing Costs: $N/Alyr For:
(Not included in dollar value above) (eg. maintenance, utilities, janitorial, salaries, etc.)
CONTRACT REVIEW
Changes
DJ;~In Needed
Division Director 7/3; 'C-e-03 YesD No ,
Risk Management ~ 0u'50 Y eS~Nod
.//; . 7 ..;.( ~
O.M.B./Purchasing YesD No~ ~UA..-LA'- ~~,
County Attorney Sf$103 YesO NO% ~
Comments:
Date Out
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OMB Form Revised 2/27/01 MCP #2
SECOND AMENDMENT TO RECYCLABLES OPERATION AGREEMENT
THIS SECOND AMENDMENT TO RECYCLABLES OPERATION AGREEMENT is entered
into this _ day of , 2003, by and between Monroe County, a political
subdivision of the State of Florida, ("County"), and Waste Management Inc. of Florida,
a Florida corporation, ("Operator").
WHEREAS, on October 1, 1998, the parties entered into that certain
Recyclables Operation Agreement (the "Agreement") for the processing, _,
transportation and marketing of recyclables; and
WHEREAS, on September 8, 1999, the parties entered into that certain
Amendment to Recycling Agreement which granted a license to Operator for certain
office space; and
WHEREAS, the parties have determined that it is to their mutual benefit and
interest that the term of the Agreement be modified and extended and that other
modifications be made;
NOW, THEREFORE, in consideration of the mutual promises and covenants set
forth herein and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties agree as follows:
1. All capitalized terms shall have the meanings given them in the
Agreement unless specifically noted or the context of usage requires otherwise.
2. The definition of "Recyclables" and "Recyclable Material" set forth in
Article I is deleted and replaced with the following:
"Recyclables" or "Recyclable Material" means those materials which are
capable of being recycled and which would otherwise be disposed of as solie;
waste. Such Recyclables are OJ newsprint, (ii) old corrugated containers
("OCC"), (Hi) office paper, (iv) mixed paper, (v) magazines, (vi) phone bool(s,
(vii) mixed plastics, (ix) aluminum cans, (x) steel cans, (xi) scrap metal, (xU
tires, and other items that the Operator and County mutually agree in writIng
are Recyclables.
3. Sec. 2.01 (c) is deleted and replaced with the following:
Glass (green, amber, flint and other types) is not a Recyclable for purposes of
this Agreement and Operator shall have no obligation to load, transport, sort
or dispose of same or perform other functions or activities connected
therewith. However, the County may choose to utilize the Recyclable Facility
Sites for handling glass at its sole cost and expense.
4. Sec. 2.06 (c) is deleted and replaced with the following:
Transfer of Materials. Transfer of Recyclables from Recyclables
Facility Sites is not required to be "material specific".
5. See. 2.06 (d) is deleted and replaced with the following:
Rebates for Sale of Materials. No rebates for sale of materials shall be
paid by Operator to County. Operator shall retain all revenues.
6. Sec. 3.01 is deleted and replaced with the following:
Effective October 1, 2003, The County shall pay to the Operator a
Processing Fee per ton of Recyclables as set forth in Schedule A. On October
1, 2004, and each October 1 throughout the term of this Agreement, the
Processing Fee shall be adjusted based on the percentage change in the
Consumer Price Index for Miami-Ft. Lauderdale - All Items- All Urban Wage
Earners and Clerical Workers, published by the United States Department of
Labor, Department of Labor Statistics for the previous August 31 - July 1
period.
7. The last paragraph of Sec. 3.03 is deleted.
8. See. 3.04 is deleted.
9. See. 6.01 is deleted and replaced with the following:
Term. Unless sooner terminated in accordance with the terms
hereof, this Agreement shall commence on October 1, 1998, and continue until
September 30, 2008. This Agreement shall automatically renew on the same
terms and conditions for consecutive five year periods unless enher party shall
give notice of non-renewal to the other no sooner than 180 days and no later
than 90 days prior to the end of the then current or any renewal term.
10. Schedule A is deleted and replaced with the Schedule A annexed hereto
and made a part hereof.
11. Except as provided in this extension agreement, in all other respects
the terms and conditions of the original Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
(SEAL)
ATTEST: DANNY L. KOLHAGE, CLERK
By:
Deputy clerk
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
By:
Mayor / Chairperson
(SEAL)
ATTEST:
By:
Title:
WASTE MANAGEMENT INC. OF FLORIDA
By:
Title:
SCHEDULE A
The Processing Fee for all Recyctables is $56.00 per ton commencing October 1, 2003.
The Processing Fee is subject to adjustment for CPt changes as set forth in Sec. 3,01,
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RECYCLABLES OPERATION AGREEMENT
THIS AGREEMENT dated October 1, 1998 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 at 5100 College Road, Key West, Florida 33040.
RECITALS
WHEREAS, the County Is empowered to provide for and assume full control and
responsibility for the solid waste disposal system in Monroe County; and
WHEREAS, the County issued a Request for Proposals for the processing,
transportation and marketing of recyclables and such other related operations as may
be available for materials collected within Monroe County; and
WHEREAS, the County, is seeking a long-term solution to processing,
transportation and marketing of recyclables and other such operations as may be
available; and
WHEREAS, Operator has agreed to enter Into an Operations Agreement
pursuant to the terms described herein.
NOW THEREFORE, in consideration of the premises and of the mutual obligations
undertaken herein, the parties hereby agree as follows:
ART! CLE 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,lncluding 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 law, ordinance,
.'
code, or regulation following the contract date which materially affects the
performance or cost of performance of the Contract.
Change in Law also means (b) the imposition of any new material condition or
the issuance or renewal of any of permit or license.
"County" means the Board of County Commissioners, Monroe County, Florida.
"Daily Weight Records" means those records which are maintained an a daily
basis relating to the County scales located at a Facility Site or used b~ a 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. Sec. 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
or 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.
: "Prohibited Waste" means waste materials that are prohibited at the
Recyclable Facility Sites, Including but not limited to Hazardous Waste, asbestos,
biomedical waste, biological waste, radioactive waste, sludge and liquid waste.
"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 Time is Monday through Saturday, 8:00 a.m. to
4:00 p.m. 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 otherwise be disposed of as solid waste. Such
Recyclables are (i) newsprint, (i1) old corrugated containers ("OCC"), (ill) office paper.
(iv) mixed paper. (v)magazines. (vi) phone books, (vii) mixed plastics. (viii) .flint glass,
amber glass, green glass. (ix) aluminum cans. (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
owned by the County and operated by the Operator under this Agreement as follows:
Key largo Recycling Yard, 300 Magnolia Street
long Key Materials Recovery Facility, Milemarker 68
Cudjoe Key Recycling Yard. Milemarker 21.5
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It is contemplated that the Recyclable Facility Sites will be transferred to the Transfer
Stations and Operator will then operate same from the Transfer stations pursuant to
this Agreement as may be equitably modified.
"Transfer Station" means each of those facilities owned by the County at which
solid waste is brought in and placed in transport vehicles for disposal at a solid waste
disposal facility; such Transfer Stations are located at (i) Cudjoe Key, Milemarker 21.5,
Blimp Road; (ii) Long Key, Milemarker 68; and (iii) Key Largo, 11180 State Road 905.
C(Unacceptable Waste" means material other than ~ecyclables and shall include
but shall not be limited to solid waste, garbage, trash, Hazardous Waste, infectious
waste, toxic waste, Prohibited Waste or special 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 willful or negligent action
or inaction of such party.
(c) The suspension, termination, interruption, denial or failure of or delay in
renewal or issuance of any permit, license, consent,' authorization or
approval essential to 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 neither the 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 partial or 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 items.
ARTICLE II
OPERATION OF RECYCLABLES FACILITY SITES
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2.01 Commitment to Receive. Process. Transport and Market Recvclables
and other Related Materials.
(a)
(b)
(c)
(d)
2.02
On October 1,1998, the Operator shall commence operations
under this Agreement. The Operator shall receive and process
Recyclables delivered to the Recyclables Facility Sites by or on behalf of
the County.
The Operator shall receive Recyclables delivered to each of the
Recyclables Facility Sites during the Receiving Time.
The Operator shall conduct all operations pertaining to-this Agreement,
except management of scrap metal and tires, at the current recycling
sites until such time as sites now occupied by incinerators are made
available by the County to Operator. At such time as Operator moves
operations to these sites, processing fees as set forth in Schedule A for
Recyclables, except scrap metal and tires, will be reduced by two (~Io)
percent. County will take all reasonable steps necessary to remove the
Incinerators and prepare the sites for acceptance of materials on or
before January 1,1999.
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.
Operation of Recvclables Facilitv 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 by the 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 instructions, receive
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information, confer with the County's Operation Coordinator and make
all day to day operational decisions. The Operator's Operation
Coordinator shall be qualified and possess any applicable certification or
licenses required under Florida law, to operate the Recyclables Facility
Sites.
2.04 Facility Services. Maintenance. Etc.
(a) Safety of Persons and Property. At all times the Operator in conjunction
with the County shall establish and maintain safety procedures for tile
Recyclables Facility Sites in a manner consistent witil applicable law and
good safety practice.
(b) Equipment. The Operator is responsible to provide all equipment and
materials necessary to fulfill its obligations under tilis Agreement. It is
understood tile County owned, leased or rented equipment currently
provided for the operation of the Transfer Stations will not be used by the
Operator to perform its obligations hereunder unless expressly
authorized by the County in writing. Notwitilstanding tile above, the
County shall be responsible for utilities at Key Largo and Cudjoe
Recyclables Facility Sites. Operator shall assume the responsibility for
such cost at such time tile activities performed under tilis Agreement at
such Cudjoe and Key Largo Recyclable Facility Sites are moved to the
Transfer Stations. Further, County authorizes Operator to utilize the
Recyclaples Facility Site at Cudjoe Key until such time as the operations
at such site are moved to the Transfer Station. Operator shall pay
County $900.00 per month for such authorization. There shall be no
penalty or other payment required by Operator for such authorization.
The Operator shall have purchased all the equipment set forth In
Schedule C on or before October 1,1998.
(c) During the term of this Agreement, The Operator agrees to hire six (6)
displaced County employees to conduct operations. County employees
who are not offered other positions with the County, who are not retiring,
and who are qualified shall be given preference for such positions. This
section shall not obligate Operator to utilize any minimum number of
employees nor shall it restrict or modify Operator's discretion in hiring
and firing. Compensation to hired employees shall be pursuant to
Operator's compensation program. Current County, solid waste
employees that work at Recyclables Facility Sites who are' not selected by
Operator, who are not offered other County positions, and who are not
retiring and are thereby displaced on October 1, 1998, shall receive a
one-time $1000 compensatory payment from Operator. Operator may
require such employees to execute appropriate release documents
aCknOWledging receipt of such payment. Employees hired by Operator
shall be entitled to healtil and life benefits provided by Operator to its other
employees.
2.Q5 County Visitation and Inspection of the Facility: Record Keepinq:
Reportinq: Testing
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(a) At any time during term of this Agreement, the County, its agents and its
representatives shall have the right 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 the 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
prepared by or on behalf of the County.
(d) In connection with all inspections or visitations, the County shall, on
behalf of itself, its agents and representatives, comply and cause its
agents and representatives to comply with all reasonable rules and
regulations of the Operator, including a requirement that each person,
County agent or representative inspecting or visiting the 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 Recvclables.
(a) Recyclable Materials separately collected by or on behalf of the County
shall be subject to delivery to the Recyclables Facility Sites. The 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 remain with the County until final market.
(c) Transfer of Materials. Transfer of Recyclables from Recyclables
Facility Sites mayor may not be "material specific". For those loads
that are not material specific, the County and Operator shall establish
reasonable percentages of each Recyclable within the load. The
percentages will be used to' determine the processing fees and
rebates. Each quarter the Operator and County will review incoming
loads and revise the percentages as necessary.
(d) Rebates for Sale of Materials. All rebates from the sale of
commodities shall be calculated using the low end price identified in
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the second issue of "Recycling Times" published in the month of the
rebate.
(f) 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 for 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. Nothing contained in this Section shall
limit the right of the Operator to reject, refuse to accept or revoke
acceptance of any Unacceptable Waste. 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 instructs 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; provided,
however, that Operator shall pay for the disposal of up to 1% (by weight)
per load of such contaminants other than Prohibited Waste (Prohibited
Waste shallbe disposed of at the County's expense).
(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 form 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) The County shall be responsible for any damage, delay or costs Incurred
by the Operator as a result of the delivery of Unacceptable Waste to the
Recyclables Facility Site a'nd 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 shall cause the prompt removal of such
Unacceptable Waste. The Operator shall have no responsibility to
remove, transport or dispose of any Unacceptable Waste delivered to the
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Facility although such removal, transport and disposal may be negotiated
between the Operator and the County.
2.08 Receivinq and Operatinq 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 Coy,nty 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 unreasonably
withheld. The Operator will reimburse the County for overtime costs
resulting from such extended Receiving Time should a weighmaster or
other County employee be required.
2.09 Weiahina Eauipment and Recordkeepina.
(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 shall operate and maintain the scales in compliance with this
Agreement and all applicable state and local laws. The County shall test,
or cause to be tested, the scales at least semiannually 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 Cot.(nty's
compliance with the provisions of this Section 2.09. The Operator hasithe
right to verify weight data and cause the scales to be test~d at Operator
expense at times 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 information. These
estimates shall take the place of actual weighing records during the
period of the scale outage.
2.10 StoraQe.
Recyclables shall be placed in the storage area designed for that purpose.
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2.11 [THIS INTENTIONALLY LEFT BLANK]
2.12 Equipment Parkinq.
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 the purpose of fulfilling the provisions of the Agreement. Any other
vehicles Operator desires to park at a facility will be subject to_the reasonable
terms and conditions by the County.
ARTICLE III
COMPENSA nON
PERFORMANCE GUARANTEES AND PENALTIES
3.01 Operations and Processing Fee.
The County shall pay to the Operator an initial Processing Fee per ton of
Recyclables as set forth in Schedule A effective October i. 1998. On October i.
1999. and each October 1 throughout the term of the Agreement. the various
components of the Processing Fee shall be adjusted based on the percentage
change in the indexes listed below for the previous August 31- July 1 period:
Labor
30%
Establishment Data-Hours & earnings: Sanitary Services
(SIC 495) Average Hourly Earnings
Source: Employment & Earnings (E&E) published monthly
by the Bureau of Labor Statistics '
Transportation
50%
Consumer Price Index (CPI) National. All Urban
Consumers. Transportation
Source: Consumer Price Index. published monthly by the
Bureau of Labor statistics
All Other
20%
Consumer Price Index National (Unadjusted) All Urban
Consumers, All Items
Source: Consumer Price Index Detailed Report, published
monthly by Bureau of Labor statistics '
.
The Operator shall have the right to review and agree or object to the
calculation. Should the Operator so object to the calculation. it may be
appealed to the Board of County Commissioners for final determination. the
Board's decision based upon a review of all the reasonable and credible
evidence. Except as reflected in Section 2.04{c). the Operator shall be
responsible for the operation of the Recyclables Facility Sites during the term
of this Agreement inclUding all labor, material and equipment and all other
C?sts of operation as may be required to assure that the Recyclables Faci~ity
Sites are accepting and processing Recyclables as required by the operating
Plan and by this Agreement, and In compliance with all applicable Federal,
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state and local laws. The fee paid to the Operator pursuant to this Section may
only be made from service charges, special assessments and non-ad valorem
assessments. In no event shall the fee be payable from revenue collected from
ad valorem taxation.
3.02 [THIS INTENTIONALLY LEFT BLANK]
3.03 BilUna Statement.
At the end of each calendar monUt, the operator shall provide a billing
statement in accordance with Utis provision. This statement shall set forth the
total tonnage 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 ton in accordance with this Agreement. Such
statement shall be provided for the County not later than the fifteenth (15Ut) 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.
At the end of each month, the Operator shall separately submit a rebate to the
County in accordance wiUt Ute rebate calculation provided in Schedule A.
Operator shall provide documentation setting forth Ute quantity and amount of
each commodity.
3 . 04 Annual Adiustments and Payments Yearly Reconciliation.
(a) Operator's Processing Fee set forth in Schedule A is based upon an
assumed total tonnage of not less than 6,500 tons of Recyclables by
category and in the quantities set forth below to be processed at the
Recyclables Facility Sites each Fiscal Year as follows:
Cateqory
(i)
(Ii)
Recvclable
Newsprint
Required Tons
1400
Old corrugated containers,
office paper, mixed paper,
magazines, phone books
1150
(Iii)
Flint, amber, green glass
1725
(iv)
Aluminum cans, steel cans,
mixed plastics
450
(v)
Scrap metal
1500
(vi)
Tires
275
6500
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Therefore, in the event the County has not delivered or caused to be
delivered an aggregate of at least 6,500 tons of Recyclables, by category
and in the quantities set forth above by the end of any Fiscal Year, the
rebates otherwise required to be paid by Operator and the Processing
Fee that the County shall pay Operator shall be affected as set forth in the
table below:
Category i No Rebate ! No Rebate 50% Rebate I Full Rebate
1 & Payment of -
i Processing Fee on I
i Required Tons
(i) Newsprint i <1271 tons i 1271 to 1334 1335 to 1400 I >1400
(ii) OCC,office. i <1044 tons ! 1044 to 1096 1097 to 1150 i >1150
mixed paper ~
(iii) Plastics. i <408 tons 1408 to 428 429 to 450 1>450
steel cans i i
aluminum cans j i
i I
..{!:1 Glass ! <1566 tons ! 1566 to 1644 1645 to 1725 j >1725
_{~t~crap'_ metal I <1362 tons j 1362 to 1430 1431 to 1500 ! >1500
(vi) Tires i <250 to,;-s-----t 250 to 261 262 to 275 ! >275
Therefore. by way of example. if the number of tons delivered for processing by
the County of acceptable newsprint is less than 1271 tons. the County will pay
the Processing Fee on 1400 tons of newsprint and shall not receive a rebate on
newsprint.
(b) The County and Operator further acknowledge and agree that Operator's
Processing Fee is based upon the current distribution of Recyclable
Materials delivered to the three respective Transfer stations. Such
distribution by weight is currently as follows:
Key Largo 38%
Long Key 38%
Cudjoe Key 24%
In the event that the current distribution is changed to increase or
decrease the amount of Acceptable Material delivered to anyone transfer
station by more than ten percent (10%) the County and Operator agree
that the Processing Fee shall be Increased by ten (10%). Consequently,
the allowable fluctuation at the Transfer Stations is as follows:
Key Largo
Long Key
34.2% to 41.8%
34.2% to 41.8%
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Cudjoe Key 21.6% to 26.4%
Recyclables brought to the Transfer Stations by Operator (not caused to
be so delivered by County or on behalf of County) shall not be used to
calculate the above percentages.
(c) The County is currently seeking approval from applicable governmental
agencies for alternative use of recycled mixed glass. Should the County
receive approval for this alternative use which is mutually acceptable to
both County and Operator, the Processing Fee for such glass shall be
reduced by $7.00 per ton from the then applicable Processing Fee for
such Recyclable. Operator shall have no liability for such alternative use
and County shall Indemnify Operator against all claims, demands, fines,
costs, and suits relating to same. Mixed glass shall only be accepted by
Operator if utilized for such mutually acceptable alternative use.
3. 05 Performance Guarantees.
3.06
3.07
Operator shall operate the Recyclables Facility Sites in a manner that they are
capable of accepting and processing up to an aggregate of 10,000 tons of
Recyclables per year.
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 shall be claimed by the Operator. During such events. the Operator shall
use Its reasonable best efforts to reduce expenses and mitigate losses during
a period of non-operation or partial operation due to the County's fault.
No liabilitv 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 1110nles) If such party is
prevented or delayed in the performance of such obligation due to the
occurrence of an Uncontrollable Circumstance. The party whose perf~nnance
under this Agreement has been affected by an Uncontrollable Circumstance
shall provide prompt written notice of the occurrence and cessation of such
Uncontrollable Circumstance to the other party. Whenever an Uncontrollable
Circumstance shall occur. the party claiming to be adversely affected thereby
shall as quickly as reasonably possible, eliminate or mitigate the cause therefor,
reduce costs and resume performance under this Agreement.
Article IV
FURTHER AGREEMENTS
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4.01 Licenses. Approvals and Permits.
The Operator shall maintain all permits required or permitted by law to be in its
name which are necessary for the operation of the Recyclables Facility Sites.
The Operator and the County shall cooperate as reasonably necessary in
connection with obtaining in a timely manner the licenses. approvals and permits
for the operation of the Sites.
4.02 Insurance DurinQ 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 by the Operator.
(b) The Operator shall obtain and maintain the following insurance with
respect to operation and maintenance of the Facility:
(1) Broad Form Commercial General Liability Insurance Coverage
which shall contain the following minimum coverage and
endorsements with other coverage and endorsements to be added
by mutual agreement,
(i) Premises/operations;
(i1) Contractual liability applicable to the
indemnities in this Agreement;
(iii) Products/Completed Operations Hazards;
(iv) Independent Operators;
(v) Environmental Impairment;
(vi) Personal injury,
(vii) Deletion of the Explosion. collapse and
underground hazards exclusion;
(ix) Cross liability clause.
The applicable limit of liability shall be as agreed from time to time
but shall not be less than $5,000,000 per occurrence.
(2) Workers' Compensation In an amount as required by statute and
Employers UabUity In an amount no less than $1,000,000 each
accident. $1,000,000 each employee for disease, and $5,000,000
policy limit.
(3) Comprehensive Automobile Liability Insurance Coverage
applicable to all owned "non-owned" and hired vehicles used in
connection with the operation and maintenance of the Recyclables
Facility Sites. subject to the minimum Combined Single Limit of
Primary Bodily Injury and Property Damage Liability Insurance as
agreed from time to time but which shall not be less than
$5,000,000 Combined Single Limil Operator will require
subcontractor to provide a certificate of automobile insurance.
13
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(4) Umbrella or Excess Liability Insurance Coverage which shall follow
form, with respect to all underlying coverage regardless of
Umbrella or Excess Policy Conditions to the contrary. The Limits of
Liability shall be $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 Insureds. The Operator shall name the County
(including their respective board members, directors, officers, employees
and agents) as additional named insured on all insurance policies
required pursuant to this Section 4.02 and as loss payee on property
insurance policies, as their respective interest may appear in accordance
with the contracts and agreements (related to the 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.
(2) Addition named insureds shall have the option of paying any
insurance premium in order to prevent cancellation of
insurance's for nonpayment of premium and shall be entitled
to receive from the Operator full reimbursement of all items
so expended.
(3) Neither the Operator nor any of the additional named
insureds set forth in Section 4.02(c) shall have the unilateral
right to make an insurance settlement under the policies of
insurance's set forth herein.
(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 falls 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 required insurance shall not relieve the Operator from
any liability hereunder Failure of the Operator to maintain
the required insurance constitutes a breach of this
Agreement.
14
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(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 additional named insureds set
forth in Section 4.02(c), such insurance shall not be invalidated by
any action or inaction of the named insured and shall insure such
additional named insureds regardless any breach or violation of
any warranty, declaration of condition contained in such insurance
by the named insured.
(f) 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 carried (or self-insurance) by
the Operator or by any additional named insureds set forth in
Section 4.02(c), with respect to their interests in the Facility Site.
4.03 Equal Emplovment Opportunitv.
The Operator agrees to comply with the requirements of all applicable non-
discrimination and equal employment opportunity statutes.
4.04 Chanae in Law.
In the event that a Change in Law occurs such that compliance With this
Agreement by 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 affect or violation of law. The Agreement shall be deemed terminated
by mutual consent of the parties if such modification is not agreed to within 30
days after the Change in Law occurs.
ARTICLE V
DEFAULT AND TERMINATION
15
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5.01 Remedies for Breach.
Either party may terminate this Agreement on the occurrence of an Event of
Default by the other party in accordance with this Article V.
5.02 Events of Default bv Operator.
The following shall constitute Events of Default on the part of the Operator:
(a) Failure of the Operator to timely perform any material ob!igation 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, refusals or failures to supply properly skilled workmen,
failure to supply or cause to be supplied proper materials, failure of the
Operator to provide the insurance as required by Section 4.02, and
disregard for laws, ordinances, rules, regulations or orders of any public
authority having jurisdiction over the 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 described in
paragraph (b)(1) of this Section 5.02 shall have occurred, and (ii) the
Operator shall pay any costs incurred by the County because of such
failure.
(b)
(1)
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 three (3) consecutive months,
provided that County has delivered or caused to be delivered,
sufficient quantities of Recyclables. Any such default shall be
cured if the Operator shall develop a reasonable corrective plan
intended to restore performance to an acceptable level within a
two (2) month period. This two (2) month period may be extended
by mutual agreement upon the Operator's showing of good cause,
which agreement shall not be unreasonably withheld by tile
County .
(2) In the event of any extension beyond the Initial two ino'nth period
provided In Section 5.02(b)(1) unless 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 insolvent or bankrupt or ceasing to pay
its debts as they mature or making an arrangement with or for the benefit
of its creditors or consenting to or acquiescing in the appointment of a
receiver, trustee or liquidator for a substantial part of its property, or
bankruptcy, winding up, reorganization, insolvency, arrangement or
16
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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 bv the County.
The following shall constitute Events of Default on the part of the County.
(a) Failure of the County to timely perform any material obligation under this
Agreement, except the obligation described in Section 5.03(b). However,
no event of default shall occur under this Section 5.03(a) if the County
shall, within 30 days of the failure to perform, prepare a reasonable
corrective plan intended to cure the failure of performance within a two
month period. The two month period may be extended for an additional
two month period by mutual agreement upon the County's showing of
good cause, which agreement shall not be unreasonably withheld. by the
Operator. The County shall be liable for any costs incurred by the
Operator during the period of the County's failure to perform.
(b) Failure of the County to pay amounts owed to the Operator under Section
3.01 or 3.03 of this Agreement within thirty (30) days of the due date, or
failure of the County to pay any other amount owed to the Operator within
ninety (90) days following receipt of Operator's billing; unless a dispute
resolution is pending pursuant to Section 6.03 hereof, in which case the
County shall pay to the Operator any such amount which is not in dispute,
and withhold payment of any such amount in dispute in accordance with
Section 6.03.
5.04 Termination of Aqreement by the County.
(a) If within a period of thirty (30) days after the Operator shall have received
notice from the County that an Event of Default has occurred under
Section 5.02(a) or (b). such notice describing In reasonable detail the
nature of the Event of Default, the Operator has neither remedied, nor
commenced and continued to pursue with due diligence a remedy for any
such Event of Default, the County may terminate this Agreement
forthwith.
An Event of Default of the character described in Section 5.02(b) hereof
shall not require notice by the County as hereinabove provided, but shall
terminate this Agreement forthwith.
(b) If this Agreement is terminated by the County pursuant to Section 5.04(a)
hereof, the Operator shall vacate the Recyclables Facility Sites and (eave
same in the condition in which it originally found them, ordinary wear and
tear excepted.
17
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(c) If the Agreement is terminated, the Operator shall (a) grant to the County,
or any replacement operator, a paid-up, royalty-free, non-exclusive
license to any patents, trademarks, copyrights and trade secrets and
"shop rights" as necessary for and limited to the operation of the
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 neces_sary 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 Information, whether or not proprietary,lncluding
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 same. The Operator shall be
entitled to payment of its processing fee pursuant to Article IV until the
date of termination of this Agreement.
(d) This Section 5.04 shall survive the termination of this Agreement for the
purpose of enforcing the County's rights herein.
5.05 Termination of Aqreement by the Operator.
If an Event of Default described in Section 5.03(a) or (b) hereof shall occur and If
such Event of Default shall continue for a period of thirty (30) days after the
County shall have received notice from the Operator describing In reasonable
detail the nature of the Event of Default, and if the County has neither remedied,
nor commenced and continued to pursue a remedy for any such Event of Default
with due diligence, or, In the event of a failure to pay monies owed, paid In full
such monies, then the Operator may commence such legal or equitable
proceedings to recover damages as the Operator may deem appropriate and/or
terminate this Agreement upon Thirty (30) days written notice to the County.
County shall be responsible for 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) dueto the
occurrence of an Uncontrollable Circumstance. The party whose performance
under this Agreement has been affected by an Uncontrollable Circumstance
shall provide prompt written notice of the occurrence and cessation of such
Uncontrollable Circumstance to the other party. Whenever an Uncontrollable
Circumstance shall occur, the party claiming to be adversely affected thereby
shall, as quickly as Possible, eliminate or mitigate the cause thereof, reduce costs and resume performance under this Agreement.
18
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5.07 Manner of Termination Pavment.
Within thirty (30) days fOllowing completion of the term of this Agreement, the
County and the operator shall reconcile all amounts then due and payable to
each other under the provisions of this Agreement. Upon reaching, as a result of
such reconciliation, the total amount of the outstanding unpaid balance which
the County and the Operator each owe the other, the County and the Operator
shall, within 30 days thereafter pay such amounts. If there shall be a
disagreement as to the amount the Operator or the County shall be entitled to
receive, there shall nevertheless be timely paid such amounts which are not in
dispute. Any remaining balance shall be payable promptly by the appropriate
party after resolution of said dispute, In accordance with Section 6.03.
ARTICLE VI
MISCELLANEOUS
6.01 Term.
Unless sooner terminated in accordance with the terms hereof, this Agreement
shall commence on, October 1, 1998 and continue until September 30, 2003.
County may request: renewal of this Agreement for up to two (2) additional
periods of five (5) years each on the terms and conditions set forth herein
unless either party shall give notice of non-renewal to the other no sooner than
180 days, and no later than 90 days, prior to the end of the initial term of any
renewal term.
6.02 Assianment.
(a) It is expressly understood and agreed that this Agreement is personal to
the County and the Operator, and that, except as expressly provided in
this Section 6.02, the Operator shall have no right, power or authority to
assign this Agreement or any portion thereof without prior approval of the
County.
(b) Upon written notification to and subject to approval by the County, the
Operator may subcontraot or assign performance required hereunder.
The Operator guarantees oomplianoe by suoh suboontraotors 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 entities to the County and the County agrees to hold only the
Operator responsible for any failure to comply. The County shall not
unreasonably withhold approval of any requested subcontract or
assignment.
6.03 Dispute Resolution.
(a)
The parties shall use their reasonable best efforts to resolve any dispute
or controversy by mutual agreement. Except as otherwise expressly
~'
19
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provided herein, each party shall have the right to fully pursue its
remedies at law in the event a dispute or controversy cannot be resolved
In accordance with the foregoing.
(b) Any civil proceeding or other action commenced to enforce this
Agreement shall be filed in any court having jurisdiction thereof and
situated in Monroe County, Florida.
6.04 Indemnities and Releases.
(a)
The Operator shall protect, indemnify, and hold harmless the County and
Its respective officers, board members, employees and agents (the
"County Indemnified Parties") from and against all liabilities, actions,
damages, claims, judgments, losses, costs, expenses, suits, or actions
and reasonable attorneys fees, and shall defend the County in any suit,
including administrative actions and appeals, for personal injury to, or
death of, any person or persons, or loss of or damage to property, or for
any fines or governmental penalties, arising out of the performance or
non-performance of the Operator's obligations under this Agreement; the
improper disposal of 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
Indemnified Party for loss or claim due to negligence of County or any
County Indemnified Party to the extent the loss or claim was caused by
the County or any County Indemnified Party. The Operator's aforesaid
Indemnity is for the exclusive benefit of the County and the County
Indemnified Parties, and In no event shall Inure the benefit of any third
party. This Indemnification set forth In this subsection shall survive the
termination of this Agreement.
".
(b) The Operator shall protect, indemnify and hold harmless the County and
the County Indemnified Parties from and against all cost recovery or
remedial actions arising under the Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C., Sec. 9601 et sea.
and Florida Statute 403, the Solid waste Act, brought against the County
or the County's Indemnified Parties and arising from Operator's
transportation and disposal of 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 harmless the Operator and any
subcontractors, and their respective officers, directors, employees and
agents (the "Operator Indemnified Parties") from and against all liabilities,
actions, fines, damages, claims demands, judgments, losses, costs,
expenses, suits, or actions and reasonable attorneys' fees, and shall
defend the Operator Indemnified Parties in any suit, Including appeals, for
personal injury to, or death of, any person or persons, or loss of, or
damage to property or any suit arising out of the negligent performance
20
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(or nonperformance) of the County's obligations under this Agreement up
to the waiver amount set forth in Section 768.28 Florida Statutes. The
County is not, however, required to reimburse or indemnify any Operator
Indemnified Party for loss or claim due to negligence of any Operator
Indemnified Party. This indemnification shall survive the termination of
this Agreement.
(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 eaC?h other resulting
from the performance of this Agreement, which is covered by valid and
collectible insurance policies, but only to the extent to which such loss or
damage is actually recovered under such insurance policies.
(e) There are no warranties or guarantees of the Operator which extend
beyond those expressed in this Agreement, and the Operator DISCLAIMS
AND THE COUNTY WAIVES ANY IMPLIED WARRANTIES OR
WARRANTIES IMPOSED BY LAW, INCLUDING WARRANTIES OR
MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR
PURPOSE, AND CUSTOM AND IMAGE.
6.05 Further Assurances.
Each party agrees to execute and deliver any instruments and to perform any
action that may be necessary, or, reasonably requested, In order to give full
'~ effect to this Agreement. Each party shall use all reasonable efforts to 'provide
such Information, execute such further Instruments and documents, and take
such action as may be reasonably requested by the other party not
inconsistent with the provisions of this Agreement and not involving the
assumption of obligations other than those provided for in this Agreement to
carry out the intent of this Agreement.
6.06 (Intentionally Left Blank]
6.07 Industrial Property Riqhts.
The Operator and the County 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 IdenUfied by one
party to the other as proprietary or confidential and has been or shall be
furnished by one party to the other in connection with the performance of this
Agreement, except tilat 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 tile
receiving party either directly or indirectly from the disclosing party, or (if) 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
under the requirements of law.
21
"
6.08 Representations.
(a) The County's Representations. The County represents to the Operator
that:
(1) The County is duly organized and existing in good standing under
the laws of the State of Florida and is authorized to carry on the
governmental functions and operations as contemplated by this
Agreement.
-
(2) The County has the power, authority and legal right, to enter into
and perform its obligations set forth in this agreement, and the
execution, delivery and performance hereof (a) have been duly
authorized, (b) have the requisite approval of appropriate
governmental bodies.
(3) This Agreement has been duly entered into and delivered and, as
of the Contract date, constitutes a legal, valid and binding
obligation of the County, enforceable in accordance with its terms.
(b) Operator's Representations. The Operator hereby represents to the
County that:
(1) The Operator is duly organized and existing in good standing under
the laws of the State of Florida, and is duly qualified to do business
wherever necessary to carry on the business and operations
contemplated by this Agreement.
(2) The Operator has the power, authority and legal right t~ enter into
and perform its obligations set forth in this agreement, and the
execution, delivery and performance hereof (i) has been duly
authorized, (Ii) has the requisite approval of appropriate
governmental bodies, (Hi) does not violate any judgment, order, law
or regulation applicable to the Operator of any provisions of the
Operator's certificate or Incorporation or bylaws and (Iv) does not
constitute a default under or result in the creation of any lien,
charge, encumbrance or security Interest upon any assets of the
Operator under any agreement or Instrument to whlcb the
Operator Is a party or by which the Operator or Its assets may be
bound or affected.
(3) The Operator holds, or Is expressly authorized under, the
necessary patent rights, licenses and franchises to the
Recyclables Facility Sites pursuant to the terms of this Agreement.
(4) This Agreement has been duly entered into and delivered and, as
of the contract date, constitutes a legal, valid and binding
obligation of the Operator, enforceable in accordance with its
terms. '
22
(5) The Operator warrants that its consultants, subconsultants, agents
'and employees have the experience, knowledge and character
necessary to qualify them for the particular duties that each may
perform under this Agreement and shall perform such services in
accordance with the highest professional standards and free from
defects in materials and workmanship.
(6) The Operator has or will obtain all necessary permits required to
operate the Recyclables Facility 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 party a partner, agent, or legal
representative of any other party or to create any fiduciary relationship between
or among the parties.
6.10 Documents Pertainina to the Recyclable 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 permitted hereunder shall be in
writing and sufficiently given or delivered in person, or sent by certified or
registered mail, postage prepaid, as follows:
As to the Operator:
President
Waste Management Inc. of Florida
2700 NW 48th street
Pompano Beach, FL 33073
As to the County:
County Administrator
Monroe County
5100 College Road
Key West, FL 33040
Changes In the respective addresses to which such notice may be directed may
be made from time to time by any party by written notice to the other party.
6.12 Waiver.
23
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The waiver by either party of a default or a breach of any provision of this
Agreement by the other party shall not operat~ or be construed to operate as a
waiver or any subsequent default or breach. The making or the acceptance of a
payment by either party with knowledge of the existence of a default or breach
shall not operate or be construed to operate as a waiver of any subsequent
default or breach.
6.13 Modifications.
The provisions of this Agreement, including the present and all future schedules,
together with the agreements incorporated by reference, shall (1) constitute the
entire agreement between the parties for the operation of the Recyclable Facility
Sites, and (2) be modified, unless provided herein to the contrary, only by written
agreement duly executed by both parties. In the event of any conflict, variation
or inconsistency between these general terms and conditions of this Agreement
and any of the schedules, these general terms and conditions shall control.
6.14 Headinqs.
Captions and headings in this Agreement are for ease of reference only and do
not constitute a part of this Agreement.
6.15 Governinq Law.
This Agreement and any questions concerning its validity, construction or
performance shall be governed by the laws of the State of Florida, irrespective of
the place of execution or of the order in which the signatures of the parties are
affixed or of the place or places of performance.
6.16 Venue.
Venue for all purposes arising out of this Agreement shall be in Monroe, County,
Florida, unless prohibited by law.
6.17 Counterparts.
This Agreement may be executed in more than one counterpart, each of which
shall be deemed to be an original.
6.18 SeverabilitV.
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
24
'=-
amended, modified, supplemented or otherwise affected by such action, remain
in full force and effect.
6.19 Unless Stated Otherwise.
Whenever this Agreement requires performance by the Operator, it shall be at
the Operator's expense and whenever this Agreement requires performance by
the County it shall be at the County's expense.
6.20 Performance.Bond.
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 Public Entitv Crimes Form.
The following document shall be attached to this Contract and shall be executed
annually on January 1 each year of the Contract term:
Schedule 1 - Public Entity Crimes Form
6.22 Schedules.
The following documents shall be schedules attached to this Contract and
incorporated therein by reference:
Schedule A
Schedule B
Schedule C
Processing Fees, Floors and Rebates
Rent Payments
list of Equipment to be purchased, along with purchase
price
Ethics Clause
Drug-Free Workplace Form
Public Entity Crimes Form
Schedule 0
Schedule E
Schedule F
25
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
by their duly authorized officers or representatives as of the day and year first above
written. '
, >>---..,...
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ATTEST: ';,':/-: " ~..., .fj,::~,
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Clerk of the Circuit Court
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Approved by Office of
General Counsel, as to Form
and Legal Sufficiency:
By:
~
Its: .4;'ii1. S~.
As To The County
MONROE COUNTY, FLORIDA
~
As to the Operator
WASTE MANAGEMENT INC.
OF FLORIDA
12~
APPR '
OVEO AS To FOR
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Property to be Leased
Long Key MRF
Key Largo Recycling Yard
Cudjoe Key Recycling Yard
SCHEDULE B
Lease Payments
Lease Payments (Original Bid
Form Item 4)
$0.00 -
$0.00
$900.00/month
~\. ,.
Equipmeut Descriptiou
9 Waste Oil Igloos
Tire CutterfWheel Crusher
SCHEDULE C
Equipment Purchase
[tern Purchase Offer Total Purchase Offer
$lOOfIgloo $ 900
$4,000 $4,000
. . .'.
SWORN SfATE~{ENT UNDER SECDON 287.133(3) (a),
FLORIDA SfATUTES ON PUBLIC ENTITY CRl1\fES
I
TIllS FORM: MUSf BE SlGC\'ED IN TIffi PRESENCE OF A NOTARY PUBLlC OR OTHER OffiCER
AUlliORIZED TO ADMINISTER OATHS.
I. This sworn statement is submitted to
by Ronald M. Kaplan, Assistant
(print individual's name and tille}
fur Waste Manaqement Inc. of Florida
(print name of entity submitting sworn st.a.lemcnll
Monroe County
(print name of the pub lie entity}
Secretary
whose business address is 2700 NW 48 Street, Pompano Beach FL 33073
applicable) its Federal Employer Identification Number (FEIN) is 59-1094518
has no FEIN, include the Social Security Number of Individual signing this sworn statement:
.)
and (if
(If the entity
2. l understand that a .public entity crime. as defined in Paragraph 287.133(I)(g), Rodda Statutes, means a violation
of any state or federal law by a person with respect to and directly related to the transaction of business with any
public entity or with an agency or political subdivision of any other state or of the Untied States, including, but not
limited to, any bid or contract for goOOs or services to be provided to any public entity or an agency or political
subdivision of any other state or of the Untied States and involving antitrust, fraud, theft, bribery, collusion,
racketeering, conspiracy, or material misrepresentation.
3. l und~rstand that .convicted. or .conviction- as defined in Paragraph 287.133(l)(b), Rorida Statutes, means a
find.ing of guilt or a conviction of a public entity crime, with or without an adjudication of guilt, in any federal or
state court of record relating to charges brought by indiconent or information after July I, 1989 as a result of a
jury verdict, nonjury trial, or entry of a plea of guilty or nolo contendere.
4. l understand that an .affiliate- as defined in Paragraph 287.133(I)(a), Rodda Statutes, means:
I. A predecessor or successor of a person convicted of a public entity crime: or
2. Any entity under the control of any natural person who is active in the management of the entity and w~o has
been convicted ora public entity crime. The term .affiliate. includes those officers, directors, executives,
partners, shareholders, employees, members and agents who are active in the management of an affiliate. The
ownership by one person of shares constituting a controlling interest in another person, or a pooling of
equipment or income among persons when not for fair marlcet value under an arm's. length agreement, shall be
a prima facie case that one person controls another person. A person who lcnowingly enters into a joint
venture with a person who has been convicted of a public entity crime in Rodda during the preceding 36
months shall be considered an affiliate.
5. l understand that a .person. as defined in Paragraph 287.133(1)(e), Florida Statutes means any natural person or
entity organized under the laws of any state or of the United States with the legal power to enter into a binding
contract and which bids or applies to bid on contracts for the provision of goods or services let by a public entity,
or which otherv.:ise ~ansacts or applies to transact business with a public entity. The term .person. includes those
officers, directors, executives, partners, shareholders, employees, members, and agents who are active in
management of an entity. "
(omu\pubc ome .doc
~
DRUG-FREE WORKPLACE FORM
The unden;igncd vendor in ;Jecord.'\lIce with FloridA Statute 287.01\1 hereby cCl1irics that:
\~as te__ Managemen tIne. 0 f Florida..
(Nllme of Business)
1. Publish a statem=nl notifying employc.cs thaI the Iml:twful manuf<\clure. distribution, dispensing.
possession, or llse of a controlled ~ubsl;\lIcc is prohibiled in the wurkplllcc Gnd sJx:ei(viiig the ,Iclion!: thai
will be tllken against employees for violatioll& of ~Ilch prohibition.
2. Inform employees about the dansers of drug ..busc in the work-pl:lcc. the business's policy of
Inailllainin& i'l drug-Croc workplaoc, an)' availAble dntg counseling, n:h.,hilitation, ;U1d cmployee assisl."'cc
programs, and Ihe penalties lhat may be imposed upon emplo~s for drug IIbul:e violaliolls.
.i. Give eaeh employee erq;a&ed in prclViding the commodities or contractuAl !:Crvices Innt :lrC under bid A
cop.r oftbe ,t.,tcmenl speciIicd in sub,cction (1).
4. In the statement specified in Sl.lbseetion (I), JlOIUy Ihe crrlplo.vces that, liS a C(Indilion of working on the
commodities or contrllctu.'\.l services tn;.t arc under bid, Ihe employee will ttbide hy the terms of thc
statemcntand will notify thc cmploycr of Clny cunviction of, or plc."1 of guilt.,. or nolo contendere to, nn}'
violation of Chapter ~CJ3 (Florida Statutcs) or of ~y controlled &uh!:t:tncc low of the United St(ll~ (lr auy
slllle, for 1\ violation oO:\Irrin{; in the workplao: no later thall five (5) days aOer sueh conviction.
5.. Impose 8 sanction on. or require the ~li$fAI...tor,. participillion in a drUb abuse a.c:sistancc or
rehabilitation program if 'ueh is l\vailable in thc crtlploycc'~ collllllunity, or an.r employee who is so
convicted.
G. MlIkc;\ good faith effort to continuc to main(,lin it dmg.free workplocc through ianplcmcntC'ltion or lhis
section.
As the persoll authoriZCd to sign thc sl1Itcntcnl, 1 certify lhal lhis firm complies fuJly wilh the ttlx,vc
requirements. .
tJ~
A. Waters - Vice~Pt~sident
21 1998
,-
~.....~
-...
SWORN STATEMENT UNDER ORDIl'!I\NCE NO. 10-1990
MONROE CPUNTY FLORIDA
Ell-liCS CLAUSE
James A. Waters
warra.nlS that hcfit has nol employed, retained
or otherwise ha.d act Oil his/its behalf any former Coulll)' officer or e~ploycc in violation of
Section 2 of Ordinance No. 10-1990 or 31lY Count)' officer or employee in violation of
Section J ofOrdil\3Jlcc No. 10-1990. For breach or violation ufl1.is provision the County
may, in its discretion, terminate tlli!> conlract witholll li<tbility Clnd may also, in iLc; disen.:ti<m,
deduel from the contrdcl or purcha~c price. or othcrwise rt:covcr, the nil! amount of any fee:,
conunissioll, perccn14gc, gift., or considerntion pai
he rO"2/~lPIOY""
James -A. t~aters
. d (signature)
PreS1 ent
Dalc:,.
Max 21, 1998
STATE OF Florida
COUNn' OF Browa r~:t
PERSONAL[.. Y APPEARED OEFORE ME, the undersigned authority,
James A.__Wa tel's
who, after (trSl bcinS sworn by me, affixed hislhcr
signature (name of individual signing) in the space provided C\bovc on this _.~ cUy of
May _.-' 19~.
\~:l?;l:!,'l-D\! I~
NOTARY PUBLIC
My oommis, n e"p;.<.<:
~~'{ Pll~ KAiHcRINE I-:t WAllS
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:e A..~\ ~ V;......_h...,.. ~ ~,
f;ftfr .' S\~;~CS DEe ~J ~
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~Of f\.~<t' ",".NilC 30.~ co. H:.
OMB - MCP FORM #4
.-~'
AMENDMENT TO RECYCLING AGREEMENT
This is an amendment to a Recyclables Operation Agreement. dated October 1.
1998. entered into by Monroe County and Waste Management. Inc. of Florida (original
agreement). A copy of the original agreement is affached to this amendment and
incorporated as Exhibit A.
In consideration of the mutual promises and benefits described below, Monroe
County (County) and Waste Management. Inc. of Florida (Operator). agree to amend the
original agreement as follows:
2.13 Office Space
The County grants a license to the Operator to utilize the approximately 520
square feet of office space located at the Key largo Recycling -Yard for general
office purposes. The office location is depicted on the map attached to this
amendment and incorporated as Exhibit B. The Operator is responsible for all
office utility expenses. The Operator may. at its own expense. renovate the office.
subject to the approval of the proposed renovation by the County's Solid Waste
Management Director. (The Director's approval does not exempt the Operator
from whatever County building permits may be required.) Any renovations
constructed by the Operator will become the property of the County at the
expiration of this recyclables operation agreement.
In consideration for this license, the Operator must pay the County $500.00 per
OJonth. in advance. due by the 10th day of each month. Paragraph 6.04'
Indemnities and Releases. also applies to the license and obligations established
by this Paragraph 2.13.
:.:~:t?~~~/<~ITN. ~S WHEREOF. th~ parties ~ave cawed this Amendment to be executed by
/~hT~..~~~y;~~;~~onzed representatives on thIs ?7'/f day of September, 1999.
r~>/.4~::-~.':':.' ~::~ :.:.... .\ {:~
;/:1 JSp\tt,(:.\.,:; .~ ] BOARD OF COUNTY COMMISSIONERS
\-,,;~~~'~}:?-f~~rl' KOLHAGE, CLERK OF MONROE COUNTY. FLORIDA
~; '. .' .,.:';,1 j't" .. ~
'~:'.;;.";':!.~-:~..:.<'/ ~~ ..
~... 6<. By
Mayor/Chairperson
(SEAL)
ATTEST:
~~b""e""-""7
WASTE MANAGEMENT. INC. OF FLORIDA
~rle~~'
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