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HomeMy WebLinkAboutItem #05 Authorization for Use of County Solid Waste Management System ce tetofGood AGENDA ITEM COVER SHEET Meeting Date: April 17, 2012 Item # 5 Reviewed By: / Y Contact Name: Stephen C. Krug Department Director: Contact Number: 6002 City Manager: JJ/ - Subject: Authorization for Use of County Solid Waste Management System. Background Summary: The City has historically utilized the County solid waste management system to dispose of residential and commercial solid waste. The interlocal agreement between the City and Orange County expired on September 18, 2011. On October 18, 2011, the City Commission ratified a letter of intent from the County to continue to receive County solid waste management services under the terms of the expired interlocal agreement for 180 days while a new agreement was reached. A new interlocal agreement was not negotiated within the 180 extension with the County Commission electing to take a step back and re- evaluate their current rate structure before going forward. Due to the County's prolonged rate evaluation process, leaving the City unable to negotiate a new contract, and the expiration of the letter of intent, Public Works seeks City Commission authorization to continue to use the County solid waste management system to dispose of residential and commercial solid waste until a new agreement is reached or September 30, 2012. Issue: Request authorization to utilize current County solid waste management services. Recommendations Recommend approval to authorize the City to continue to use the County solid waste management system until a new interlocal agreement is reached with the County or September 30, 2012. Attachments: Letter of Intent for Interlocal Agreement for Use of County Solid Waste Management System Financial Impact: The City utilizes approximately $35,000.00 monthly for services through the County solid waste management system as budgeted in the Sanitation Division Sanitary Landfill account line 402- 534 -10- 5500. The total budget for this account line is $675,000.00. Type of Item: (please mark with an `x') Public Hearing For Clerk's Dept Use: Ordinance First Reading Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda x Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. ✓ 4.4 N/A Reviewed by ( ) N/A 2 • k \Y\JUN!)[ H\NS0N'(']../ / 5� ~ ,5``"'' ''^/�'^' • '^'' ' `� '~ • { .`/`'^ . /:• ,; ,. • • • ` /'� 4, | / ^ � '� October 13.2011 Mr, Robert Frank � | City Manacle' City of Ocoee 301 Maguire Road Ocoee, FL 34781 RE: interlace! Agreement for Use of County Solid Waste Ma/`ayz/n*ot System • Dear Mr. Frank ' 0n September 18.2O(1. the above referuitced acjreerncut lietwieo t h e City and Orange County exprred. Over the past twenty years through x`|*rin:a| ag/eeman|o the City and County have worked together to manage solid waste generated by our residents businesses and visitors. Sinc! April of this year we have • bean working with the City cm a new Solid Waste agreement. Unfortunato|y, we have been unable to come to terms on this new interloctal agreement. Since thti; agreement has expired, we are no lnger nU/ to provide the solid waste management oewi specified in the agreement. Soma of these services include: • • Maximum unloading time at 30 minutes at the ir.:i|eimtaKun ^ Access to the household hazardous wmotafac/|it/es and collection events at no charge in city residents * Access 'o the recycling transfe station o Quarterly meetings • Should the City agree to compl&te riegmation and execute tli new intEuiocai agreement with the County no later :Man 180 days from the expiration date of the current /nterio`mi agreement, the County guarantees no interruption or change to services provided under the current interlace' agreement. Please return this letter. to the address 'a| the b* with your minnuh/re by October 31, 2311. acknowledging a,nci agreeing to continue to negotiate in good faith towards execution ot the new interlocal agreement within 180 days in order to continue to receive County solid waste management services tinder the terms ot the current interlocal agreorrnnt We took foard to working with you on a mutually beneficial m!edoca| agreement. Sincerely, / // 'p .' ��/ — R F\E.Direckn Dm/* Orange Co inty Ulilhie Department Signed and Agreed tcF --__ -�__ �__-- R Fmnk.C*yManager ibm y � CVy�oOcoee ' � . City Commission Regular October 18, 2011 Withers - Maguire House is a unique and iconic piece of frontier Florida history and is almost 123 years old. Mayor Vandergrift inquired if any action was needed tonight other than letting things go as they are. CIP Manager Butler said that tonight's presentation was to just give an update to the commission on the budget items they had supported for the Withers - Maguire house. He further said there were many rumors going around on what was going to be done with the house and he wanted to make sure everyone was knowledgeable on the city's intentions. The Ocoee Historical Commission is still willing to participate with the city and there have been several meetings with them so that any questions could be resolved. Mayor Vandergrift said without objection he would like the city to move forward with the combination of city staff and the Ocoee Historical Commission helping each other out. The Mayor further announced there is a history of Ocoee book on sale for $20 at the water counter. C. COMMENTS FROM CITIZENS/PUBLIC Steven VanBehren with Ocoee Lions Club thanked the commission and city for the help with their Patriot's Day event. He said it was a great success and they hope to build on it and make it a bigger and better Patriot's Day event. He further reminded everyone that the Ocoee Lions Club Turkey Shoot starts this Saturday at Sam at the West Orange Girls Club. Mr. VanBehren announced that if anyone is interested in joining the Ocoee Lions Club they can stop by the turkey shoot to get more information. He also announced if there is anyone out in the community that is in need of eyeglasses please contact an Ocoee Lions Club member and they can help them out. D. STAFF REPORTS AND AGENDA REVIEW City Manager Frank announced the following: 1) an Ocoee resident who would like to speak regarding Item #6 so this will have to be pulled for separate consideration should the commission be inclined to grant that request. Manor Vandergrift said without objection Item #6 will be pulled from onsent agenda to be heard for separate consideration. 2) an emergency item is in front of them for the Interlocal Agreement for Use of County olid Waste Management System - Letter of Intent. He further explained this will extend the city's interlocal agreement with the county for up to 180 days for staff to negotiate an agreement with Orange County. The final agreement will be brought back before the city commission for approval when negotiations are completed. Commissioner Hood, seconded by Commissioner Johnson, moved to approve the Interlocal Agreement for Use of County Solid Waste Management System — Letter of Intent. Motion carried 5 -0. 3) On the dais there is additional material for Item #11. 4) the Annual Business Meeting of the National League of Cities will be on November 12 from 2:30- 4:30pm at the NLC in Phoenix. He further said the NLC is asking for the city to appoint a voting delegate and/or an alternate delegate (2 delegates). Mayor Vandergrift said without objection Commissioner Johnson will be the delegate and Commissioner Keller will be the alternate delegate. Page 2 • coot of Go t , t +t! rw} oot ovo, AGENDA ITEM COVER SHEET Meeting Date: October 18, 2011 Item # Emergency Item • Reviewed By: Contact Name: Stephen C. Krug Department Director: i i i Contact Number: 6002 City Manager: Subject: Interlocal Agreement for Use of County Solid Waste Manage en System — Letter of Intent. Background Summary: The City has historically utilized the County solid waste management system to dispose of residential and commercial solid waste. The interlocal agreement between the City and Orange County expired on September 18, 2011. The City and County have been working on a new agreement, however the negotiations have extended beyond the expiration date. Public Works is requesting that the Commission ratify the attached letter of intent in order to continue to receive County solid waste management services under the terms of the current interlocal agreement. Issue: Ratify letter of intent between City and County to extend current solid waste management services. Recommendations Recommend approval to ratify the letter of intent between the City and Orange County to negotiate a new interlocal agreement for use of County solid waste management system and continue to receive services under the terms of the current interlocal agreement.. Attachments: Letter of Intent for Interlocal Agreement for Use of County Solid Waste Management System Financial Impact: The City utilizes approximately $35,000.00 monthly for services through the County solid waste management system as budgeted in the Sanitation Division Sanitary Landfill account line 402- 534 -10- 5500. The total budget for this account line is $675,000.00. Type of Item: (please mark with an x ") Public Hearing For Clerk's Dept Use; Ordinance First Reading Consent Agenda Ordinance Second Reading Public Hearing Resolution Regular Agenda x Commission Approval Discussion & Direction Original Document/Contract Attached for Execution by City Clerk Original Document/Contract Held by Department for Execution Reviewed by City Attorney N/A Reviewed by Finance Dept. N/A Reviewed by ( ) N/A Page l of l Tolbert, Joyce From: Krug, Stephen Sent: Monday, October 10, 2011 2:47 PM To: Tolbert, Joyce Subject: County Draft Solid Waste Interlocal Agreement Attachments: 20111010145143897. pdf Joyce, Attached is the draft solid waste agreement as provided by the County. Please let me know if you have any questions or comments on the agreement. Thank you, Steve Krug 10/13/2011 INTERLOCAL AGREEMENT FOR USE OF THE COUNTY SOLID WASTE MANAGEMENT SYSTEM This INTERLOCAL AGREEMENT FOR USE OF THE COUNTY SOLID WASTE MANAGEMENT SYSTEM (the "Agreement ") is made and entered into as of the date of last execution below (the "Effective Date ") by and between Orange County, Florida, a charter county and political subdivision of the State of Florida. (the "County ")„ and the City of ,Florida, a Florida municipal corporation, its successors and assigns, (the "Contract City "). Hereinafter, County and Contract city may be referred to individually as a "Party" or collectively as the "Parties." RECITALS WHEREAS, the Florida Interlocal Cooperation Act of 1969, Section 163.01, Florida Statutes (2010), permits local governments to make the most efficient use of their powers by enabling them to cooperate with other localities on a basis of mutual advantage and thereby provide services and facilities in a manner that will accord best with the needs and development of local communities; and WHEREAS, Section 125.0101, Florida Statutes (2010) permits the governing body of a county to contract with a municipality for, among other things, garbage and trash collection and disposal; and WHEREAS, the Orange County Board of County Commissioners (the "Board ") hereby finds and declares that it is necessary for the health, safety and welfare of the citizens of Orange County to provide for solid waste disposal and management facilities and services; and WHEREAS, Section 403.706(1), Florida Statutes (2010) states that "[t]he governing body of a county has the responsibility and power to provide for the operation of solid waste disposal facilities to meet the needs of all incorporated and unincorporated areas of the county "; and WHEREAS, Section 403.706(1), Florida Statutes (2010) states that "[i]n accordance with this section, municipalities are responsible for collecting and transporting solid waste from their jurisdictions to a solid waste disposal facility operated by a county or operated under a contract with a county "; and WHEREAS, the County desires to provide all Orange County citizens with access to and the use of the community asset known as the Solid Waste Management System (the "System "); and Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 l WHEREAS, the Contract City desires to use the System for solid waste and Household Hazardous Waste ( "HHW ") disposal and recycling processing; and WHEREAS, the Contract City desires to re- establish or continue its reliance on the System to satisfy Concurrency requirements of the Community Planning Act (Chapter 163 Part II, F.S.) only as it applies to the solid waste disposal capacity for the solid waste which the Contract City collects for disposal, and which is committed to the County for disposal in the System in accordance with this Agreement, and actually disposed of therein; and WHEREAS, the County desires to provide access to County transfer station(s) for Contract City's solid waste; and WHEREAS, the County desires to provide access to the County's Recovered Materials Facilities for Contract City's recycling processing; and WHEREAS, the County desires to provide access to the compost giveaway program for the citizens of Contract City; and WHEREAS, the County desires to provide access to the HHW facilities drop -off centers and neighborhood collection events to the citizens of Contract City; and WHEREAS, the County desires to provide the Contract City with educational information on recycling, solid waste, HHW and other System functions through the Orange County Public School system, the solid waste hotline, public events, facility tours and other forms of media; and WHEREAS, the County and the Contract City desire to formalize their relationship regarding solid waste disposal responsibilities consistent with the provisions of Section 403.706, Florida Statutes. Now therefore, in consideration of the foregoing premises, and the mutual considerations contained herein, the Parties hereto, intending to be legally bound, do hereby agree as follows: ARTICLE 1 RECITALS ACKNOWLEDGED All of the recitals contained herein are true and correct, and are incorporated herein and made a part hereof by this reference. Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 2 ARTICLE 2 TERM The initial term of this Agreement shall be for ten (10) years. This Agreement shall be renewed for two (2)- five (5) year terms automatically unless either Party provides written notice of non - renewal to the other Party at least ninety (90) days prior to the end of the then current term. ARTICLE 3 DEFINITIONS The following contains the definitions of the terms as applied to this Agreement: Concurrency: shall mean shall mean provision of certain public facilities specified in the State of Florida Community Planning Act (specifically, Chapter 163, Part II, Section 163.3180 F.S.) by a municipality or a combination thereof, at a specified level -of- service stated in the Capital Improvements Element of the comprehensive plan for the applicable jurisdiction(s) adopted pursuant to the Act. Disposal Fee: shall mean the rate charged to dispose of solid waste in the System adopted by rate resolution and approved by the Board, as may be amended from time to time. Director: shall mean the Orange County Utilities Department Director or his /her designee. Household Hazardous Waste (HHW): shall mean a solid waste (from a residential household) regulated by the Florida Department of Environmental Protection as a hazardous waste pursuant to Chapter 62 -730, F.A.C, as it may be amended or replaced from time to time. Manager: shall mean the Manager of the Solid Waste Division of the Orange County Utilities Department or his /her designee. Recovered Materials: shall mean metal, paper, glass, plastic, textile, or rubber materials that have known recycling potential, can be feasibly recycled, and have been diverted and source separated or have been removed from the solid waste stream for sale, use, or reuse as raw materials, whether or not the materials require subsequent processing or separation from each other, but does not include materials destined for any use that constitutes disposal. Recovered materials as described above are not solid waste tntertocal Agreement for Use of the County Solid Waste Management System 7 20 11 3 Solid Waste: shall mean all discarded materials including, but not limited to garbage, trash, litter, refuse, rubbish, recycling process residue, or other materials allowed by the Florida Department of Environmental Protection for disposal in a Class I landfill which result from domestic commercial, industrial, agricultural or governmental activities, but not including construction waste, sewage or other highly - diluted, water - carried materials or substances, or those in gaseous form. Solid Waste Management System: shall mean the aggregate of those Solid Waste facilities owned by or operated under contract with Orange County, which currently includes the Young Pine Road Landfill, Porter Transfer Station, L.B. McLeod Transfer Station, the Recovered Materials Processing Facilities, HHW facilities and drop -off centers and other facilities as designated by the Director. ARTICLE 4 RESPONSIBILITIES OF THE COUNTY 4.1 Capacity Provision. The County shall provide capacity for the Solid Waste which Contract City collects, or causes to be collected, and which is delivered to the System in accordance with the Agreement. The County shall operate its System in accordance with applicable local, state and federal laws. 4.2 Scales. The County shall operate and maintain motor truck scales at all of its facilities within the System to the accuracy required by Florida law, and weigh all vehicles delivering Solid Waste. The County will supply Contract City with monthly weighing records as may be reasonably required by Contract City to administer its Solid Waste collection program. The County will maintain copies of all transaction tickets for at least two (2) years. If weighing scales are inoperable due to maintenance or calibration testing, the County and the Contract City shall estimate the quantity of Solid Waste being delivered based on visual observations and historical weighing records. County shall take all reasonable efforts so scales are operational within forty -eight (48) hours of becoming inoperable. If scales are not back in operation within this timeframe, County shall notify Contract City. Should calibration test results indicate scales are inaccurate, County shall adjust weighing records accordingly and provide to the Contract City. 4.3 Facility Identification. The Manager shall collaborate with the Contract City to identify particular facilities within the System, acceptable to Contract City, to which each Contract City vehicle shall deliver its Solid Waste. The County will work with Contract City regarding disposal facility access and readiness. Quarterly meetings shall be held with Contract City to ensure fair and equitable opportunities to utilize the System. The County System will be managed in such a manner as to not unreasonably delay the Contract City during unloading. If Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 4 vehicle unloading time exceeds thirty (30) minutes on 5% or more of the Toads delivered monthly, this will result in a 20% discount on Disposal Fees for each delayed load. If the facility to which the Contract City primarily delivers its Solid Waste is inoperable, the County shall contact the Contract City to provide estimated time for facility re- opening and provide Contract City with the opportunity to use alternate County facilities acceptable to Contract City. Contract City shall be permitted to deliver Solid Waste to facilities other than the County's only if all County facilities are inoperable for a period exceeding twenty four (24) hours. 4.4 Other Contracts for Waste Delivery. The County agrees that neither it nor any agent or contractor of its System shall enter into any agreements for the disposition of Solid Waste with other persons, firms or corporations, including privately owned companies that materially impair the ability of the County to perform its obligations to the Contract City under this Agreement. 4.5 Most Favored Nation. If the County enters into any agreement with another municipality for the disposal of Solid Waste contemplated by this Agreement that contains lower fees or rates than is provided under this Agreement to Contract City, those lower fees or rates shall prevail over the fees or rates contained in this Agreement. ARTICLE 5 RESPONSIBILITIES OF CONTRACT CITY 5.1 Delivery of Solid Waste. The Contract City, or its contracted Solid Waste collection hauler, shall deliver all its Solid Waste generated and collected by or for the Contract City in its City limits to County System, unless approved by the Director or otherwise allowed pursuant to this Agreement. The City shall have the right to deliver its Solid Waste to those County facilities located at the minimum distance and time to transport from the Contract City. 5.2 Contract City Hauling Contract. Where the Contract City does not provide its own Solid Waste collection with Contract City staff, the Contract City shall contractually obligate its contracted Solid Waste collection hauler to deliver all Solid Waste generated and collected by or for the Contract City in the City limits to County facilities, except where this Agreement provides or allows otherwise. 5.3 Use of Other Facility Permitted. The Contract City may dispose of Solid Waste it collects at a facility which has proven successful experience within the State of Florida in the production of energy with Solid Waste ( "Energy Producing Facility "). The Contract City shall provide a written request to the County at least twelve (12) months in advance of the Contract City's intent to dispose of their Solid Waste at an Energy Producing Facility other than County - owned. The Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 5 County shall review Contract City's request to determine whether the Contract City's use of the Energy Producing Facility will not significantly impair financial commitments made by the County with respect to the System, and will contribute to the County's recycling rate towards the statewide recycling goal. If the County determines the Contract City may dispose its Solid Waste at an Energy Producing Facility, and the County cannot provide a similar disposal option, this Agreement shall terminate. 5.4 Disposal Capacity for Concurrency. In order to utilize the System for the purposes of Concurrency, the Contract City may incorporate this Agreement by reference in the Solid Waste and Capital Improvement Elements of the Contract City's comprehensive plan in the next regularly scheduled cycle of amendments. 5.5 Other Contracts for Waste Delivery. The Contract City shall not enter into any agreement that would materially affect its ability to fulfill its commitments in this Agreement. ARTICLE 6 DISPOSAL FEES 6.1 Disposal Fees. Current Disposal Fees are attached hereto and incorporated herein as Exhibit "A." Except for changes in regulatory requirements or other conditions beyond the County's control that affect operating costs, the County shall not increase Disposal Fees to the Contract City for three (3) years from the Effective Date of this Agreement. Following the initial three (3) year period from the Effective Date, Disposal Fees are subject to automatic annual rate increases of three percent (3 %). However, the annual rate increase may exceed three percent (3 %) in cases when permitting requirements or other conditions beyond the County's control occur. The County shall annually evaluate whether the Disposal Fees in effect cover the cost of providing service and recommend to the Board whether to repeal the automatic rate increase or allow the rate increase to take effect. The County pledges to use its best efforts to maintain reasonable and competitive Disposal Fees. If the proposed increase to the Disposal Fee for any year exceeds the Garbage and Trash Collection category of the Historical Consumer Price Index for all Urban Consumers, then the County shall give the Contract City sixty (60) days prior written notice of such increase. Contract City then has the option to terminate this Agreement with twelve (12) months prior written notice of termination to the County. 6.2 Terms of Payment. The County shall provide monthly invoices to Contract City, or its contracted Solid Waste collection hauler, for Disposal Fees based on County weighing records, by means of first class U.S. Mail. The Contract City, or its contracted Solid Waste collection hauler, shall pay to the Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 6 County all Disposal Fees not later than forty -five (45) days from the date of the invoice. The County may assess an interest penalty on late payments in the maximum amount allowed by the Florida Prompt Payment Act. 6.3 Disputes. In the event of a dispute of an invoiced amount payable by the Contract City to the County, the Contract City shall pay any undisputed portion of the amount so due and payable within the time period set forth above, and shall, within forty -five (45) days from the date of receipt of the invoice give written notice of the disputed portion of the invoice to the County. The notice of dispute shall identify the disputed invoice, state the amount in dispute, and set forth a full statement of grounds upon which such dispute is based. The Manager shall confer with Contract City and shall resolve the dispute not later than sixty (60) days after the date upon which the disputed invoice was received. The Contract City shall make payment in accordance with the Manager's determination within fifteen (15) days of determination unless the Contract City disagrees with the determination in which case the Contract City may pursue other remedies. ARTICLE 7 HEADINGS Captions and headings in this Agreement are for ease of reference only and do not constitute a part of the Agreement and shall not affect the meaning or interpretation of any provisions herein. ARTICLE 8 REPRESENTATIONS 8.1 County Authority. The County represents that this Agreement has been duly authorized by the Board as the governing body of the County, and the County has the requisite power and authority to perform any and all obligations under this Agreement. 8.2 Contract City Authority. Contract City represents that this Agreement has been duly authorized, executed and delivered by Contract City and it has the required power and authority to perform any and all obligations under this Agreement. ARTICLE 9 AMENDMENT TO AGREEMENT This Agreement may be modified, altered or amended only by a written amendment duly executed by the Parties hereto and approved by each Party. Any oral representations or modifications concerning the Agreement shall have no effect. lnterlocat Agreement for Use of the County Solid Waste Management System 7 20 11 7 ARTICLE 10 NON - ASSIGNMENT In no case shall the Contract City assign, transfer, convey or otherwise hypothecate any interest, rights, duties, or obligations hereunder, or any part thereof without the County's consent and without complying with any and all requirements of Chapter 32 of the Orange County Code and this Agreement. In the event the Contract City desires to assign, transfer, convey or otherwise hypothecate this Agreement or Contract City's rights, duties or obligations hereunder, or any part thereof, the Contract City must notify the County and County may, at its option, agree to such an assignment if the proposed assignee has the equipment, personnel, licenses, franchises, and financial capability to carry out the Contract City's obligations under this Agreement.. ARTICLE 11 NO THIRD PARTY BENEFICIARIES This Agreement is solely intended to establish a relationship between the County and the Contract City with regard to the delivery of Solid Waste to the County's Solid Waste Management System. The existence of this Agreement shall not constitute or establish any right or cause of action of any third party not a formal party hereto, whether it be a customer of the Contract City or any successor Contract City, unless this Agreement is specifically assigned by the Contract City and accepted by the County pursuant to this Agreement and Chapter 32 of the Orange County Code. ARTICLE 12 WAIVER There shall be no waiver of any rights related to this Agreement unless such waiver is in writing signed by the party waiving such right. No delay or failure to exercise a right under this Agreement shall impair such right or shall be construed to be a waiver thereof. Any waiver shall be limited to the particular rights waived and shall not be deemed a waiver of the same right at a later time, or of any other right under this Agreement. ARTICLE 13 FORCE MAJEURE This Agreement establishes the right and obligation of the County to accept Solid Waste from the Contract City pursuant to this Agreement for rates adopted and approved by the Board. This Agreement also obligates the Contract Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 8 City to deliver Solid Waste to the System as provided in this Agreement. In the event of an uncontrollable circumstance (force majeure) that makes full compliance with this Agreement impossible because it has limited the County or Contract City's ability to perform its obligations herein, then the obligations pursuant to this Agreement shall be interrupted until the uncontrollable circumstance is resolved. Resolution of the circumstance will be declared by the Manager. Once the problem related to the uncontrollable circumstance is thus declared resolved, the obligations of the County and the Contract City pursuant to this Agreement shall be restored and fully complied with by both Parties. ARTICLE 14 COUNTY EVENT OF DEFAULT Without limitation, the failure by the County to substantially fulfill any of its obligations in accordance with the Agreement, unless excused or justified by uncontrollable circumstances, shall constitute a County event of default. If a County event of default should occur, Contract City shall have any and all other rights provided under federal laws and the laws of the State of Florida. ARTICLE 15 CONTRACT CITY EVENT OF DEFAULT Without limitation, the failure by Contract City to substantially fulfill any of its obligations in accordance with this Agreement, unless excused or justified by uncontrollable circumstances, shall constitute a Contract City event of default. If a Contract City event of default should occur, the County shall have all of the following rights and remedies, which it may exercise singularly or in combination unless otherwise provided: 1. The right to declare that all rights granted Contract City hereunder are terminated effective upon such date as is designated by the County. 2 Any and all rights provided under federal laws and the laws of the State of Florida. 3. In the event Contract City fails to pay debts incurred by Contract City for tonnage delivered to the County for a period of sixty (60) days, then the County shall have the right to require- immediate payment from the Contract City for all past due sums ( "Arrearages "). Notwithstanding any provision of this Agreement to the contrary, the County reserves the right to deny access to the System until Arrearages have been received by the County. Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 9 4. In the event that Contract City materially breaches this Agreement by failing to deliver Solid Waste to the System in accordance with this Agreement, the County shall give the Contract City written notice of such material breach and an opportunity to cure such breach by ensuring prospective compliance by the Contract City. For the purposes of this Agreement, a material breach occurs when the Contract City fails to deliver at least ninety percent (90 %) of the Solid Waste that the Contract City collects to the County over any consecutive sixty (60) day period. A 5 If the Contract City fails to timely cure the materially breach d escribed in the preceding subsection 4, the Parties agree that the Contract City shall pay the County liquidated damages in an amount equal to fifteen (15) s months worth of Solid Waste Disposal Fees based on the immediately preceding < bonsecutive fifteen (15) month period. In the event Solid Waste Disposal Fees fA s have not been collected under this Agreement for fifteen (15) consecutive e, months, then the fifteen (15) month period shall be extrapolated based on any ' ` s month or set of consecutive months completed under this Agreement. However, u- if a material breach occurs Tess than fifteen (15) months prior to expiration of this \\ :,1\ Agreement, then the liquidated damages shall be equal to the anticipated >\' Disposal Fees associated with the remaining then current term of the Agreement. Of 6. The Parties agree that such liquidated damages are appropriate - since the County has made substantial economic investment in the System, N including personnel and equipment, in reliance upon Contract City's commitment to deliver Solid Waste to said System. Because damages to the County are difficult or impossible to determine, liquidated damages are appropriate. Parties further acknowledge that the liquidated damages are not a penalty but a remedy agreed to by the Parties as part of the consideration for this Agreement. In the event the County elects to seek liquidated damages, the County shall not be entitled to seek relief under any other breach provision. ARTICLE 16 NO RIGHT TO SUE FOR DAMAGES Both Parties hereto expressly waive their respective rights to sue for special or consequential damages for any breach of or default under this Agreement by the other. Both Parties expressly agree that each shall bear the cost of its own attorney's fees for any action arising out of or in connection with this Agreement. Interloca; Agreement for Use of the County Solid Waste Management System 7 20 11 10 ARTICLE 17 OPPORTUNITY TO CURE IN EVENT OF DEFAULT Notwithstanding any other provision of Articles 14 and 15, neither Party shall terminate this Agreement for an event of default unless either Party first gives the other Party written notice of their intent to terminate specifying the alleged default, and providing the other Party a period of sixty (60) days from receipt of notice within which to cure such default. ARTICLE 18 INDEMNIFICATION To the extent permitted by law, each Party agrees to defend, indemnify and hold harmless the other Party, its officials and employees from all claims, actions, losses, suits, judgments, fines, liabilities, costs and expenses (including attorney's fees) by third parties attributable to the indemnifying Party's negligent acts or omissions, or those of its officials, employees acting within the scope of their employment, and contractors or their subcontractors, or arising out of or resulting from the indemnifying Party's negligent performance under this Agreement. Nothing contained herein shall constitute a waiver of sovereign immunity or the provisions of Section 768.28, Florida Statutes. The foregoing shall not constitute an agreement by either Party to assume any liability for the acts, omissions and /or negligence of the other Party. ARTICLE 19 INSURANCE Without waiving their right to sovereign immunity as provided in Section 768.28, Florida Statutes, the Contract City and County acknowledge having commercial insurance or a bona fide self- insurance program for General Liability and Automobile Liability insurance with coverage limits as specified in Section 768.28, Florida Statutes, or such limited sovereign immunity limits as set forth by the Florida Legislature. The Contract City and County shall ensure their contractors or their subcontractors performing work under this Agreement agree to maintain commercial insurance or to be self - insured for Workers' Compensation & Employers' Liability in accordance with Florida Statute 440. Upon request the Contract City and its contractors or their subcontractors performing work under this Agreement shall provide an affidavit or Certificate of Insurance evidencing self- insurance or commercial insurance up to sovereign Interlocai Agreement for Use of the County Solid Waste Management System 7 20 11 11 immunity limits, which the Parties agree to find acceptable for the coverage mentioned above. The Contract City and County and their contractors or their subcontractors performing work under this Agreement agree to maintain Pollution Legal Liability with a limit of not less than one million ($1,000,000) per occurrence on a per - project basis. The County and Contract City shall each be listed as an additional insured on all insurance policies required for the performance of this Agreement. The County or Contract City's failure to request proof of insurance or to identify any deficiency in coverage or compliance with the foregoing requirements shall not relieve either Party of its liability and obligations under this Agreement. ARTICLE 20 FLORIDA LAW GOVERNS; VENUE IN ORANGE COUNTY FLORIDA This Agreement, regardless of where executed, shall be governed by and construed according to the laws of the State of Florida and venue shall be in Orange County, Florida. ARTICLE 21 TERMINATION This Agreement may be terminated upon written mutual consent between the Contract City and the County. ARTICLE 22 NOTICES Any and all notices required pursuant to this Agreement, shall be provided by one party to the other by sending notices by certified mail, return receipt requested, to the Parties as follows: To the County: County Administrator Orange County Government Orange County Administrative Center 201 South Rosalind Avenue Orlando, FL 32801 -3547 Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 12 Director Orange County Utilities Department 9150 Curry Ford Road -3 Floor Orlando, FL 32825 To the Contract City: AND ARTICLE 23 INVALIDITY OF PROVISIONS Should any provision, paragraph, sentence, word or phrase contained in the Agreement be determined by a court of competent jurisdiction to be invalid, illegal or otherwise unenforceable under the laws of the State of Florida, such provision, paragraph, sentence, word or phrase shall be deemed modified to the extent necessary in order to conform with such laws, and this Agreement shall remain in full force and effect. SIGNTURES TO FOLLOW Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 13 IN WITNESS WHEREOF, the Parties hereto have made and executed this Agreement on the respective dates under each signature: ORANGE COUNTY through its Board of County Commissioners, signing by and through its Chairman, authorized to execute same by Board action on the day of , and the City of , signing by and through officers duly authorized to execute same. ORANGE COUNTY, FLORIDA By: Board of County Commissioners By: Teresa Jacobs Orange County Mayor ATTEST: MARTHA O. HAYNIE, County Comptroller As Clerk of the Board of County Commissioners By: Deputy Clerk WITNESS: City of By: Print Name: Print Name: Title: Title: Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 14 Attest: CITY OF , FLORIDA City Clerk Mayor APPROVED AS TO FORM AND LEGALITY for use and reliance by City of , Florida, only. City Attorney , 2011 STATE OF FLORIDA COUNTY OF ORANGE The foregoing instrument was acknowledged before me this day of 2011, by and , as the and City Clerk of the City of , Florida, and who have acknowledged that they executed the same on behalf of the City of , Florida and that each was authorized to do so. Each is personally known to me or has produced as identification. In witness whereof, I have hereunto set my hand and official seal. Signature of Notary Public - State of Florida Print, Type, or Stamp Commissioned Name of Notary Public My Commission Expires Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 1 5 EXHIBIT "A" DISPOSAL FEES Residential Class I Materials $37.10/ton Commercial Class I Materials $39.80/ton Interlocal Agreement for Use of the County Solid Waste Management System 7 20 11 16