Fort Walton Beach Ordinance — 1467--Sale of Excess Real Property--S&P Mgt — reading text

around the clock in the event of a declared emergency or disaster, or any other reasonable time requested by the City. BFI agrees to operate and manage the Transfer Station and to perform its duties hereunder in a manner consistent with the standards of the solid waste management industry in Northwest Florida. BFI shall in its operations comply with all applicable federal, state, local, and other laws and regulations, including without limitation, all regulations of the Environmental Protection Agency and the Florida Department of Environmental Protection. BFI shall use its reasonable business efforts to obtain all such Governmental Approvals as are necessary for the construction and operation of the Transfer Station and the transfer of Solid Waste, Yard Waste and Recyclables and shall manage and operate the Transfer Station and undertake its transfer activities in accordance with all such Governmental Approvals. During its hours of operation, BFI will have available at the Transfer Station such employees and equipment as shall be necessary for the direction to the City for the unloading of the City Waste and Recyclables and as shall be otherwise necessary for the operation of the Transfer Station. During the term of this Agreement, the City shall have access to enter the Transfer Station for the limited purpose of unloading City Waste and Recyclables at and in the manner directed by the Transfer Station operator. Except in an emergency, or at the express direction of the Transfer Station operator, the City's personnel shall not leave the Page 4 immediate vicinity of their vehicle. After unloading the City Waste and Recyclables, the City trucks shall promptly leave the Transfer Station. The Transfer Station operator may refuse to accept City Waste and Recyclables from, and shall deny an entrance license to, any of the City's personnel whom the Transfer Station operator reasonably and in good faith believes is under the influence of alcohol or other chemical substances. The City shall obey all BFI rules and regulations applicable to the Transfer Station. The City shall instruct its drivers who deliver City Waste and Recyclables to the Transfer Station on the prohibition of deliveries of Hazardous Waste and other types of Excluded Waste under this Agreement and to obey all operating provisions applicable to the City in this Agreement. 4. Landfill/Recycling Facility. BFI shall be responsible for furnishing both the transportation of City Waste and Recyclables and a Landfill or Recycling Facility, as the case may be, for the City Waste and Recyclables processed through the Transfer Station. BFI will pay for all disposal and recycling fees required at the Landfill and the Recycling Facility, respectively, and shall be entitled to keep any payment for Recyclables. BFI may change the Landfill or Landfills and Recycling Facility or Recycling Facilities at any time during the term of this Agreement without having to obtain the approval of the City. Such Landfill and/or Recycling Facility shall meet all federal, state, and local requirements for their operation and may, but need not be owned by BEI or a BFI Affiliate. Once the City disposes of City Waste and Recyclables at the Transfer Station, said waste becomes the property and responsibility of BFI. City Waste and Recyclables will be considered disposed of when it has been unloaded and inspected by BFI personnel, with the exception of Hazardous Waste and other types of Excluded Waste. Except for any such Hazardous Waste and other types of Excluded Waste, the City has no further responsibility for the cost of disposal charged BFI at the landfill or recycling facility, and no responsibility for future cleanup or closure costs. 5. Term. As to all provisions except those found in paragraph 7, Host City fee, this Agreement shall commence on the Service Commencement Date and shall expire on the date ten (10) years thereafter. 6. Payment. Notwithstanding any other provision of this Agreement, BFI agrees and guarantees the payment charged by BFI for all services provided hereunder will be at least five percent (5%) less than the lowest disposal rate charged by Okaloosa County for Municipalities who have entered into any interlocal agreement with Okaloosa County for disposal at its designated transfer station, at least five percent (5%) lower than any solid waste disposal rate charged by Okaloosa County; and equal to or lower than any disposal rate charged by BFI in the Fort Walton Beach facility’s region. BFI agrees to promptly adjust the disposal rate charged to the City to conform to all of the above conditions, notwithstanding any other provision within this Agreement. As payment for all services provided hereunder, the City shall pay BFI the sum per ton specified below for the specific quantities of City Solid Waste received at the Transfer Station based on BFI scales at the Transfer Station: Page 5 Monthly Tonnage Price Per Ton Service Commencement Date through the first five years thereafter _ $ 38.68 Year Six $ 39.84 Year Seven 3S 39.84 Year Eight S$ 41.04 Year Nine S 41.04 Year Ten > 42.27 The Disposal Rate per ton for Yard Waste and the City generated Construction and Demolition Debris shall be $33.00 per ton for the first five (5) years, and thereafter shall be adjusted by three percent (3%) in years six (6) eight (8) and ten (10). This rate will apply to any City generated Construction and Demolition debris delivered by a contractor of the City. In no event would the City be charged a fee higher for Yard Waste than the lowest fee charged by Okaloosa County at its facility for the disposal of Yard Wastes. Recyclable Commodities collected by the City from Residential Routes and delivered to the BFI Transfer Station shall be accepted and processed at “NO CHARGE” to the City during the term of this Agreement. BEI shall invoice the City monthly for the amounts payable under this Agreement. The City shall have thirty (30) days from the date of invoice to pay such invoice. All invoices not paid when due shall bear interest from the due date at the rate of twelve percent (12%) per annum until paid in full. The City shall be responsible for payment of all the amounts described above whether it collects and delivers such materials to the Transfer Station itself or has a contractor do it on behalf of the City. 7. Host City Fee. BFI ‘will pay a Host City Fee to the City for all waste disposed of at the Transfer Station that originated from outside the Fort Walton Beach City limits with the exception of the existing tonnage of 38 tons per day collected by BFI, in the proposed Transfer Station service area, as of the date of execution of this Agreement. The fee will be $1.50 per ton for the first five (5) years and $1.75 per ton until the expiration of the tenth (10th) year, 2012. Thereafter, BFI will continue to pay the host city fee which will increase by 5% at the end of the tenth (10th) year and will increase by 5% at the end of each 5 year period thereafter. BFI specifically agrees to pay this fee for as long as it maintains a waste transfer station within the city limits of Fort Walton Beach, Florida. BFI shall maintain records so that the origination/collection location of the waste can be ascertained and the City shall have the right to inspect the records during normal business hours and with reasonable notice. 8. Request for Adjustment of Prices. During the period of this Agreement, BFI shall have the right to petition the City for a rate adjustment to reflect changes in the Page 6 cost of operation under this Agreement caused by (a) any changes in taxes, fees, assessments or any other imposition of state, local, or federal government, (b) any Change in Law. No such increase shall be effective until the City, in its sole discretion, has approved the request. 9. Conditions Precedent. The obligations of BFI under this Agreement are subject to BFI being able to obtain all Governmental Approvals in final and unappealable form for the construction and operation of the Transfer Station. Should BFI be unable to meet this condition, BFI shall be entitled to terminate this Agreement by written notice to the City and after such termination this Agreement shall become void and have no effect, without any liability or obligation on the part of BFI or the City. The City shall cooperate with BFI in obtaining any of the Governmental Approvals to the extent the City can be of reasonable assistance. 10. Title. Title to all City Waste and Recyclables delivered to the Transfer Station shall be transferred to BFI at the time such City Waste and Recyclables is fully unloaded at the Transfer Station. Prior to such time, title to the City Waste and Recyclables shall be in, and all rights, risks and responsibilities therefore, shall be borne by the City. Title to and liability for Hazardous Waste and other types of Excluded Waste shall at all times remain with the City. 11. Representations and Warranties of BFI. BFI represents and warrants that it is a limited liability corporation, duly formed and validly existing under the laws of the State of Delaware and is duly qualified to do business in the State of Florida and in good standing under the laws of the State of Florida. BFI further represents and warrants that the execution, delivery and performance of this Agreement by BFI has been duly and validly authorized by all necessary corporate and any other required action and that this Agreement constitutes the legal, valid and binding obligation of BFI enforceable in accordance with its terms except as to the enforcement thereof may be limited by bankruptcy, insolvency, or other similar laws affecting the rights of creditors generally. From and after the signing of the contract through the term of this Agreement, BFI covenants that it will, at the City's option, provide legal counsel, at no charge to the City, for the City to defend any lawsuit filed by Okaloosa County, Florida or other private party or public agency against the City which is a result of and arises out of the City entering into this Agreement. BFI shall only be responsible for providing such legal counsel at no charge to the City as aforesaid and BFI shall in no way be responsible for or liable to the City for any damages, liabilities, judgments, penalties, fines, losses, costs, expenses, obligations, assessments, charges, fees, taxes, surcharges or any other liabilities of any sort whatsoever incurred by the City as a direct or indirect result of such lawsuit. If judgement is rendered against the City, BFI will readjust the City’s rate so that the total amount paid by the City for the disposal of City Waste and Recyclables is at least 5% less than the lowest rate charged by Okaloosa County in any interlocal agreement. Page 7 If the City exercises its option pursuant to the preceding paragraph to have BFI provide legal counsel at no charge to the City to defend any such lawsuit so described pursuant to the preceding paragraph, the City shall make its request in writing to BFI immediately after receipt of such lawsuit. BFI shall then choose such counsel. If BFI fails to choose counsel to defend the lawsuit within a reasonable time, the City shall be entitled to assume the defense thereof with counsel of its own choosing and BFI shall be responsible for paying counsel so chosen by the City. 12. Representations and Warranties of the City. The City represents and warrants that it is a duly formed and validly existing under the laws of the State of Florida, with full power and authority to enter into this Agreement and to undertake the activities required of it hereunder. The City further represents that its governing body had been duly elected or appointed and that the City is (and will continue to be throughout the term hereof) validly existing and in good standing under the laws of the State of Florida. The execution, delivery and performance of this