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

Agreement by the City have been duly and validly authorized by the City; the persons signing this Agreement on behalf of the City have full power and authority to bind the City to this Agreement; and this Agreement constitutes the legal, valid and binding obligation of the City enforceable in accordance with its terms, provided it is approved by a vote of the Fort Walton Beach City Council. 13. Special Representations Concerning City Waste and Recyclables. The City will employ its best efforts so that all City Waste and Recyclables delivered by it to the Transfer Station will consist only of Solid Waste, Yard Waste and Recyclables as defined in this Agreement and will not include any Excluded Waste or Hazardous Waste. Any waste rejected by BFI at the Transfer Station by reason of said waste being excluded or Hazardous Waste, shall be promptly removed by the City from the Transfer Station. BFI shall have the right to inspect any incoming loads of City Waste and Recyclables delivered to the Transfer Station for compliance hereunder and BFI reserves the right to reject any waste which does not fall within the definition of City Waste and Recyclables found in such load as described above in this Section. Further, all Solid Waste, Yard Waste and Recyclables must be delivered by the City in separate trucks to the Transfer Station, or, if not in separate trucks, in separate compartments for Solid Waste, Yard Waste and Recyclables capable of being kept separate when unloaded at the Transfer Station. Notwithstanding any other provisions, BFI expressly agrees the City, at its sole discretion, may discontinue its residential curbside recyclables collection program, or institute a commercial or industrial recyclables program. BFI expressly agrees the City at its sole discretion reserves the right to modify its curbside sorting recycling program to increase or decrease the types of material it collects and delivers to the Transfer Station. BFI and City agree both will use their best efforts to reach agreement on a reasonable payment to the City for recyclables materials delivered to the Transfer Station should a market develop for said materials. 14. Inspection of Transfer Station. | Authorized City representatives accompanied by BFI personnel may enter the property to inspect the buildings and grounds for the proper storage and handling of waste delivered to the Transfer Station, Page 8 whether a complaint has been made or not regarding the operation of the facility. These inspections will be made with reasonable notice to BFI and City representatives will follow all safety procedures set by BFI. In addition, periodic inspection and testing of the pretreatment facility may be made to ensure the discharge into the City’s sanitary sewer system falls within acceptable standards. 15. Independent Contractor. BFI shall perform all work under this Agreement as -an independent contractor. BFI is not, and shall not be considered, an employee, agent or servant of the City for any purposes, under this Agreement or otherwise; neither shall any of BFI's subcontractors, employees or agents be, nor shall they be considered, employees, agents, subagents or servants of the City for any purposes under this Agreement, or otherwise. BFI shall have exclusive control of and the exclusive right to control the services and work performed hereunder by it and all persons performing the same. BFI shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors, if any. Nothing in this Agreement shall be construed as creating a partnership or joint venture between BFI and City. Nothing in this Agreement shall be construed as giving the City any duty to supervise or control any acts or omissions of any person, entity or party, which acts or omissions are in any way connected with the performance of services by BFI under this Agreement. 16. Indemnification. BFI agrees to indemnify, defend and hold harmless City from and against, and on demand to reimburse City for, all costs, expenses, demands, suits, damages, claims, liabilities, and actions, including reasonable attorney's fees and costs of court, (i) based on or arising out of or caused by the willful conduct, error, omission, or negligent acts or omissions of BFI or any of BFl's officers, employees, agents or subcontractors; or (ii) arising out of or relating to any non-performance, breach or default by BFI under this Agreement. BFI shall indemnify, defend, and hold harmless the City, its officers, agents and employees, harmless of and from any losses, fines, penalties, costs, damage, claims, demands, suits and liabilities of any nature, including attorneys’ fees (including regulatory and appellate fees), arising out of or because of BFI’s disposal of waste or maintenance and operation of the Transfer Station. If any claim covered by the foregoing indemnities is asserted, the indemnified party shall notify the indemnifying party and give it an opportunity to defend the same with counsel of its choice, at the indemnifying party's cost and expense, and the indemnified party shall extend reasonable cooperation in connection with such defense. If the indemnifying party fails to defend the same within a reasonable time, the indemnified party shall be entitled to assume defense thereof, and the indemnifying party shall be liable to such indemnified party for its expenses reasonably incurred, including attorney's fees, and settlement payments. Page 9 17. Insurance - The City. During the term hereof, the City shall maintain insurance with insurance companies reasonably satisfactory to BFI in such amounts and against such risks as is customarily maintained in similar businesses operating in the same vicinity. The coverages maintained by City under this Agreement shall be at least as follows: Type Amount Worker's Compensation Statutory Employer's Liability $ 500,000.00 Comprehensive General Liability $2,000,000.00* Auto Liability $1,000,000.00* *Per occurrence, combined single limit for bodily injury and property damage liability. All policies, excluding Worker’s Compensation, shall name BFI and any applicable -BFI Affiliates as additional insureds. The City shall furnish to BFI insurance certificates, in form and substance satisfactory to BFI, evidencing compliance by it with the terms of this Section. 18. Insurance - BFI. During the term hereof, BFI shall maintain insurance with insurance companies reasonably satisfactory to the City in such amounts and against such risks as is customarily maintained in similar businesses operating in the same vicinity. The coverages maintained by BFI under this Agreement shall be at least as follows: Type Amount Worker's Compensation Statutory Employer's Liability $ 500,000.00 Comprehensive General Liability $2,000,000.00* Auto Liability $2,000,000.00* *Per occurrence, combined single limit for bodily injury and property damage liability. All policies, excluding Worker’s Compensation, shal! name the City as an additional insured. BFI shall furnish to the City insurance certificates in form and substance satisfactory to the City, evidencing compliance by it with the terms of this Section. BFI shall assume all liability and responsibility for any and all pollution and all pollution events on, or emanating from, or from operation of the Transfer Station and surrounding property owned or leased by BFI and during all conveyances of processed waste or recyclable material from the Transfer Station to any landfill or other destination. BFI shall provide the City with a certificate of insurance evidencing BFI has pollution liability insurance coverage in effect in an amount of $2,000,000 per event and $10,000,000 total all events. Page 10 19. Default. In the event that either party contends that the other has breached a provision of this Agreement, the non-breaching party shall give written notice of the breach to the breaching party, and demand a cure. In the event of notice of any breach, the breaching party shall effect a cure within thirty (30) days of receipt of such notice. If it is not cured within such thirty day period or if such breach is one that cannot reasonably be corrected within such thirty (30) day period and the breaching party fails to diligently commence to correct such breach and diligently prosecute the correction of such breach to completion, then the non-breaching party may, without prejudice to any other right or remedy and after giving the non-breaching party seven (7) days written notice thereof, terminate this Agreement. In the event that BFI is unable to perform its obligations hereunder due to its breach, BFI shall, until such breach is cured, bear all costs associated with the disposal of City Waste and Recyclables at an alternate disposal site that are in excess of those that would otherwise have been incurred by the City or their designated haulers had they delivered such waste to BFL. Notwithstanding the foregoing, in the event that the breaching party is the City and the breach by the City is for non-payment of amounts owed BFI under this Agreement, BFI shall give written notice of this breach to the City and demand a cure and in the event of such a notice for breach of the City's payment obligations, the City shall effect a cure within ten (10) days of receipt of such notice including not just payments owed to BFI under this Agreement but also payment of all interest due under this Agreement. If it is not cured within such ten-day period, then BFI may without prejudice to any other right or remedy and after giving the City seven (7) days written notice thereof terminate this Agreement. Nothing contained in this Section shall be construed to be a waiver of any remedy available to either party, at law or in equity. 20. Force Majeure. In the event that either party is rendered unable, wholly or in part, by the occurrence of a Force Majeure to carry out any of its obligations under this Agreement, then that party's obligations, to the extent affected by such occurrence, shall be suspended during the continuance of such inability. In the event that either party intends to rely upon the occurrence of a Force Majeure to suspend or to modify its obligations, such party shall notify the other party in writing as soon as reasonably possible, setting forth the particular circumstances. Notices shall likewise be given after the effect of such occurrence has ceased. In the event that because of Force Majeure, either party is unable to perform its obligations hereunder for a consecutive period in excess of one hundred twenty (120) days, the other party shall be entitled to terminate this Agreement. In the event and during the time period that BFI is unable to perform its obligations hereunder, BFI shall bear all costs associated with the disposal of City Waste and Recyclables at an alternate disposal site that are in excess of those that would otherwise Page 11 have been incurred by the City or their designated haulers had they delivered such waste to BFI. 21. Amendments to the Contract. All provisions of this Agreement shall be strictly complied with and conformed to by the parties, and no amendment to this Agreement shall be made except upon the written consent of the parties. No amendment shall be construed to release either party from any obligation of this Agreement except as specifically provided in such amendment. 22. Waiver. A waiver by either party of any breach of any provisions hereof shall not be taken or held to be a waiver of any succeeding breach of such provision or as waiver of any provision itself. No payment or acceptance of compensation for any period subsequent to any breach shall be deemed a waiver of any right or acceptance of defective performance unless evidenced in writing. Where the condition to be waived is a material part of this Agreement such that its waiver would affect the essential bargains of