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HomeMy WebLinkAboutItem #07 Approval for Assignment of the Commercial and Multi-Family Solid Waste Collection Franchise Agmnt. center of Good �`7 Lwl� te, , QC AGENDA ITEM COVER SHEET Meeting Date: December 4, 2012 Item # 7 Reviewed By: Contact Name: Joyce Tolbert Department Director: .9-kwit Contact Number: 1516 City Manager: • Subject: Assignment of the Commercial and Multi - Family Solid Waste Collection Franchise Agreement to Waste Services of Florida Inc. Background Summary: The City currently has an Exclusive Commercial and Multi- Family Solid Waste Collection Franchise Agreement with Waste Depot LLC DBA Waste Works which will expire December 1, 2014. Pursuant to the Franchise Agreement, the City received a Contract Performance Bond #6530 in the amount of $200,000 issued by United Casualty and Surety Insurance Company (copy attached). On November 1, 2012 Waste Services of Florida Inc. ( "WSI ") purchased certain assets of Waste Works including the City's franchise agreement. Pursuant to Section 17- Assignment of the Franchise Agreement, Waste Works is requesting the City's approval to assign the Exclusive Commercial and Multi - Family Solid Waste Collection Franchise Agreement to WSI. Attached is a letter dated October 31, 2012 from Waste Works to the City of Ocoee which provides specific details regarding this assignment to WSI along with the assignment form. Upon approval of the assignment, the franchise would begin operating under WSI; all trucks and dumpsters would have the WSI logo. WSI was recently awarded a franchise agreement with the City for residential construction and demolition debris removal. In connection with the assignment, WSI is requesting that the City accept a substitute Contract Performance Bond in the amount of $200,000. Additionally, United Casualty and Surety Insurance Company requests that the City return their original bond and execute a release of all past, present, and future liability thereunder. The requested Release Acceptance (copy attached) would need to be executed by the Mayor and City Clerk and requires City Commission approval. The form of substitute Contract Performance Bond has not been finalized with WSI's surety. Attached hereto is the proposed form of bond which is being requested by the City Attorney. This is identical to the bond issued by United Casualty and Surety Insurance Company except that it references the Second Amendment and has other provisions which assure that is effective as of November 1, 2012 in order to avoid any gap in coverage between the date of the original Bond and the date of the substitute Bond. Additionally, staff recommends as a condition of assignment, the City be reimbursed $873.00 for City Attorney legal fees incurred by the City in connection with the assignment of this franchise. Issue: Approval of Assignment of the City's Exclusive Commercial and Multi- Family Solid Waste Collection Franchise Agreement with Waste Depot LLC DBA Waste Works to Waste Services of Florida Inc. Pursuant to Section 17- Assignment of the Franchise Agreement; the agreement shall not be assigned or otherwise transferred by Franchisee except with the express written consent of the City. 1 Recommendations Staff respectfully recommends that the City Commission: A) Approve the Assignment of the Exclusive Commercial and Multi - Family Solid Waste Collection Franchise Agreement to Waste Services of Florida Inc. ( "WSI ") and authorize execution of the Acknowledgement and Acceptance of Assignment by the Mayor and City Clerk, subject to the City being reimbursed $873.00 for City Attorney legal fees incurred by the City in connection with the assignment of this franchise; and B) Approve the proposed Release Acceptance of United Casualty and Surety Insurance Company in connection with its Contract Performance Bond #6530 and authorize execution thereof by the Mayor and City Clerk, subject to receipt from WSI of a substitute Contract Performance Bond. Attachments: 1. United Casualty and Surety Insurance Company Contract Performance Bond #6530 2. Proposed Release Acceptance of United Casualty and Surety Insurance Company 3. Acknowledgement and Acceptance of Assignment from Waste Services of Florida Inc. 4. Proposed Substitute Contract Performance Bond 5. Letter from Waste Works dated October 31, 2012 Financial Impact: The franchise fees remain the same. The City will be reimbursed for City Attorney legal fees incurred by the City in connection with the assignment of this franchise. 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 X 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 2 • A. t 407 -447 -0047 www.wasteworksflorida.com October 31, 2012 - City of Ocoee 150 N. Lakeshore Drive Ocoee, FL 34761 Re: City of Ocoee Exclusive Commercial and Multi - Family Solid Waste Collection Franchise Agreement / RFP #09 -004 Dear Sir: The purpose of this letter is to request your consent to assign the above referenced Agreement ( "Agreement ") between you and Waste Depot LLC dba Waste Works (Waste Works). I am pleased to inform you that Waste Works recently entered into a purchase agreement under which Waste Services of Florida Inc. has acquired certain assets of Waste Works, We are enthused to be joining Florida's leader in providing safe and efficient waste services. I want to assure you that the City of Ocoee will continue to receive the same quality of service to which you are accustomed. Containers and other assets currently used to service the Agreement will remain in place, and the transition will be seamless. As a result of the purchase agreement, the rights and obligations of Waste Works under the Agreement will be assigned to Waste Services of Florida Inc. I would like to request your consent to assign the Agreement from Waste Works to Waste Services of Florida Inc., effective November 1, 2012. If you consent to assigning the Agreement as described above, please sign below and- retain a copy for your files. We will arrange to pick up the original. For your convenience, you may also scan and email a copy of the signed agreement to Donna Eargle at donna(a,wasteworksfl .com. If you have any questions or would like more information, please contact me (239 370 -5300) at your convenience. Sincerely, Paul E. Reddish PO Box 980, Ocoee, FL 34761 (407) 447 -0047 Re: City of Ocoee Exclusive Commercial and Multi - Family Solid Waste Collection Franchise Agreement / RFP #09 -004 Acknowledgement and Acceptance of Assignment Waste Services of Florida Inc. For good and valuable consideration received in hand, the receipt and sufficiency of which is hereby acknowledged, Waste Services of Florida Inc. ( "WSI ") acknowledges and accepts the assignment of the City of Ocoee Exclusive Commercial and Multi - Family Solid Waste Collection Franchise Agreement, as amended ( "Agreement "). WSI represents that under the Bill of Sale, Assignment and Non - Competition Agreement dated November 1, 2012, between WSI and Waste Depot LLC dba Waste Works ( "Waste Works "), the Agreement is a Purchased Asset. By accepting such assignment, WSI acknowledges that it is responsible for all obligations under the Agreement. Agreed, cepted and consented to as of this 4 I day of November, 2012. Waste S i es •f F • .da Inc. By:_ Name: 1 bS & tail , Title: 4C ' Jitl2- 4iLLA ^lit ualL Acknowledgement and Acceptance of Assignment City of Ocoee Agreed, accepted and consented to as of this day of November, 2012. City of Ocoee By: See Attached City of Ocoee Signature Page Name: Title: CITY OF OCOEE SIGNATURE PAGE FOR ACKNOWLEDGEMENT AND ACCEPTANCE OF ASSIGNMENT OF RFP # 09 -004 EXCLUSIVE COMMERCIAL AND MULTI - FAMILY SOLID WASTE COLLECTION FRANCHISE AGREEMENT TO WASTE SERVICES, INC. APPROVED: CITY OF OCOEE, a Florida municipal corporation By: S. Scott Vandergrift, Mayor Date: ATTEST: Beth Eikenberry, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA. COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON UNDER LEGALITY THIS DAY OF AGENDA ITEM NO. , 2012 By: City Attorney except that the last such audit shall be submitted within sixty (60) days after the termination of this Agreement. Section 16. Preliminary Plans. The Franchisee shall, at no cost or expense, when requested, review the preliminary subdivision and site plans for all commercial and multi - family developments within the City and provide the City in a timely manner with written comments concerning the placement and location of solid waste receptacles or dumpsters. . - Section 17. Assignment. This Agreement and the rights and privileges hereunder shall not be assigned or otherwise transferred by Franchisee except with the express written approval of the City. The City reserves the right in its sole and absolute discretion to approve or disapprove any such requested assignment or transfer of this Agreement. The City may require that any proposed assignee submit similar documentation to that provided by the franchisee at the time of award of the franchise. No assignment or transfer shall be effective until the assignee or transferee has executed with the City an Agreement of Acceptance, subject to approval by the City, evidencing that the assignee or transferee accepts the assignment or transfer subject to all of the terms, conditions and limitations imposed herein. Any such assignment or transfer shall be in form and content subject to the approval of the City. Section 18. Indemnification. Franchisee shall indemnify, defend and hold completely harmless the City, its elected representatives, officers, employees and agents of each, from and against any and all liabilities, losses, suits, claims, demands, judgments, fines, damages, costs and expenses (including all costs for investigation and defense thereof, including, but not limited to court costs, expert fees and reasonable attorneys fees and paralegal fees and attorneys and paralegal fees on appeal) which may be incurred by, charged to or recovered from any of the foregoing (i) by reason or on account of damage to or destruction of any property of the City, or any property of, injury to or death of any person resulting from or arising out of the performance under this Agreement, or the acts or omissions of Franchisee officers, agents, employees, subcontractors, licensees or invitees, regardless of where the damage, destruction, injury or death occurred, unless such liability, loss, suit, claim, demand, judgment, fine, damage, cost or expense was proximately caused solely by City's negligence or by the joint negligence of City and any person other than Franchisee or Franchisee's officers, agents, employees, subcontractors, licensees or invitees, or (ii) arising out of the failure of Franchisee to keep, observe or perform any of the covenants or agreements herein to be kept, observed or performed by Franchisee. City agrees to give Franchisee reasonable notice of any suit or claim for which indemnification will be sought hereunder, to allow Franchisee or its insurer to compromise and defend the same to the extent of its interests and to reasonably cooperate with the defense of any such suit or claim. The provisions of this Section shall survive the expiration or earlier termination of the term of this Agreement with respect to any acts or omissions occurring during the term of this Agreement. Section 19. Performance Bond. 6 RELEASE ACCEPTANCE The City of Ocoee, Florida hereby returns to United Casualty and Surety Insurance Company the attached original of Bond Number 6530 in the name of Waste Depot, LLC d/b /a Waste Works and confirms that United Casualty and Surety Insurance Company is hereby fully exonerated, released and discharged from its obligation there under and from any and all past, present and future liability under Bond Number 6530 in the name of Waste Depot, LLC d/b /a Waste Works.. Dated this day of , 20 CITY OF OCOEE, a Florida municipal corporation By: S. Scott Vandergrift, Mayor ATTEST: Beth Eikenberry, City Clerk (SEAL) FOR USE AND RELIANCE ONLY BY APPROVED BY THE OCOEE CITY THE CITY OF OCOEE, FLORIDA. COMMISSION AT A MEETING HELD APPROVED AS TO FORM AND ON UNDER LEGALITY THIS DAY OF AGENDA ITEM NO. , 2012. By: City Attorney CONTRACT PERFORMANCE BOND Bond No: 6530 (Exclusive Commercial and Multi - Family Solid Waste Collection Franchise Agreement) KNOW ALL MEN BY THESE PRESENTS that Waste Depot, LLC d /b /a Waste Works, a Florida limited liability company, (hereinafter referred to as "Principal "), and United Casualty and Surety Insurance Company 170 Milk Street 5th Floor Boston, Massachusetts 02109, a corporation organized under the laws of the Commonwealth of Massachusetts and licensed to do business in the State of Florida (hereinafter referred to as "Surety), are held and firmly bound unto the City of Ocoee, Florida, as Obligee, (hereinafter referred to as "Obligee "), in the Penal Sum of Two Hundred Thousand Dollars ($200,000.00), for the payment of which sum well and truly made, Principal and Surety bind themselves, and their successors and assigns, jointly and severally, in accordance with the terms set forth herein. Recitals WHEREAS, Principal has by written agreement dated October 20, 2009 entered into a contract, with the Obligee titled "Exclusive Commercial and Multi - Family Solid Waste Collection Franchise Agreement", as amended by First Amendment thereto dated January 5, 2010 (hereinafter referred to as the "Contract ') for the purposes of establishing an exclusive franchise granted by the Obligee and accepted by the Principal for the collection of commercial and multi - family solid waste within the corporate limits of the City of Ocoee; and WHEREAS, the Contract identifies certain performance obligations of the Principal for a term of three (3) years, which term may be extended for an additional two (2) years; and WHEREAS, this Contract Performance Bond is being accepted by the City of Ocoee, as Obligee, on the condition that it is acknowledged by the Surety as covering all non - performance, defaults and matters arising under the Contract, including, but not limited to such non - performance, defaults and matters that have arisen since October 20, 2009 and /or are in existence as of the date of the execution of this Contract Performance Bond; and t WHEREAS, the Surety acknowledges receipt of good and valuable consideration for the obligations it assumes hereunder. NOW, THEREFORE, it is agreed that the above Recitals are acknowledged to be true and accurate and are incorporated herein by reference. This Contract Performance Bond is being issued by the Surety to secure the performance obligations of the Principal under the Contract since the date of it inception and any additional extensions thereof. If the Principal shall well, truly and timely perform all the undertakings, covenants, terms, conditions, and agreements of said Contract, within the term of the Contract and all extensions thereof; and shall also well, truly and timely perform all undertakings, covenants, terms, conditions, and agreements of any and all duly authorized modifications of said Contract that may hereafter be made; and shall pay, compensate, indemnify and save harmless the said Obligee of and from any and all loss, damage and expense, caused by any breach or default by Principal under the Contract, including, but not limited to, those arising before or which are in existence as of the date of the execution of this Contract Performance Bond; and including, but not limited to, liquidated damages, damages caused by delays in performance of the Principal, expenses, costs and attorneys' fees, including attorneys' fees incurred in appellate proceedings, that Obligee sustains resulting directly or indirectly from failure of the Principal to perform its performance obligations under the Contract, then the obligations of this Contract Performance Bond shall be null and void; otherwise, this Contract Performance Bond shall remain in full force and effect and Surety shall be liable to Obligee under this Contract Performance Bond in accordance with its terms and shall pay the Obligee for such damages that result from the non - performance of the Principal as described above subject to the notice provisions described below. The Surety's obligations to the Obligee hereunder shall be direct and immediate and are not conditional or contingent upon Obligee's pursuit of its remedies against Principal, and shall remain in full force and effect notwithstanding (a) amendments or modifications to the Contract entered into by Obligee and Principal without the Surety's knowledge or consent; (b) waivers of compliance with or any default under the Contract granted by Obligee to Principal or by Principal to Obligee without the Surety's knowledge or consent; (c) the discharge of Principal from its obligations under the Contract as a result of any proceeding initiated under The United States Bankruptcy Code, as the same may be from time to time amended, or any similar state or federal law, or any limitation of the liability of Principal or its estate as a result of any such proceedings; or (d) any other action taken by Obligee or Principal that would, in the absence of this clause, result in the release or discharge by operation of law of the Surety from its obligations hereunder. Any changes in or under the Contract or noncompliance with any formalities connected with the Contract or changes therein shall not affect Surety's obligations under this bond, and Surety hereby waives notice of any such changes. The Surety shall perform the obligations of the Principal under the Contract upon receipt of five (5) days written notice of the Principal's default. In the event that the Surety fails to fulfill its obligations under this Contract Performance Bond, then the Surety shall pay, indemnify and save the Obligee harmless from any and all loss, damage, cost and expense, including reasonable attorneys' fees and other legal costs for all trial and appellate proceedings, caused directly or indirectly by the Principal's default(s) and the Surety's failure to fulfill its obligations hereunder. This Contract Performance Bond and its obligations shall survive the termination or cancellation of the Contract. The payment and indemnification obligations set forth in this paragraph shall be limited by the Penal Sum of this Contract Performance Bond regardless of the duration of the Contract. IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their several seals on the 20th day of July, 2010, the name and corporate seal of each corporate party being hereto affixed and these presents fully signed by its undersigned representative, pursuant to the authority of its governing body. Signed, sealed and delivered in the presence of: Waste De • of 1 LC d a Wast , Works- Principal By: _ 'i �t (SEAL) G. Robert Schwandt, Member (Official Title) United Casual • and Sure Insurance Company- Surety B o . cy R„" 00-,.. (SEAL) Todd S. Carrigan. Attorney -in -Fact (Official Title) NOTES: If Principal and Surety are corporations, the respective corporate seal should be affixed and attached. Surety shall execute and attach a certified copy of Power of Attorney Appointing Individual Attorney -In -Fact for execution of Performance Bond on behalf of Surety. i _ ,�..,�;.„ � � < tP, -.;uk .. '. f � ,r �y P �.. . � ., s ��;.'r ,� Z 3.;���5' �'�"��.��y {�.�'�"" ,t. ^'x ,� n =z'�' a �i ,'' ' .,u... - a e -N- h. 4f 1i , �"^-":lr 3 l ff .N' ":3- t 5 1 : .�- _����- � v •��t�ta�t,7 ��Y , ���Ftt , � ; ,�� b ,.�� � � _� �� r t•.Ty,,� ,:,,�jt' -'r, i . y ,, v � r"� � �; � t 3� `` � �, �' - K A V7l'Ju..P p I A ,a, , • d , �Y �,� I; 5 u =r .,, h fi � , r1': - f rt :.! u* it 7 alp ,'1,.: k ha .r, r fi oi : ke �' 1,, " S IB d tl2+4* 4 'a" d r :• r , k ig4rrr t f 1 , ei.. ' �, --- C sC -- ..+ _ :: - -7y a c kPd!� 17:,'7 3x1, 3'•!d! 'Y. ;:, , v ' 'tl A • '''' I C'X •,: ' -- � -. �f p a t � Via! d�c ,f -1 '41. --'4"' aE 1 �� t " 1 B, a t r i ka r. r,etkr ,t W,,. - ` S7 iaa �CS1C 1 9 2 816 Bond No: 630 - No: t, ,, �, i' UNITE!) CASUALTY AND SURETY INSURANCE COMPANY 1 NIASSACHUSI I1 S: F - Principal: a ? {� � s s J Waste Depot, LLC d /hla Waste Works � ' P OWER OF ATTORNEY �tt `� 320 Enterprise Street x g trigtrl�ii I � e Ocoee, FL 34761 KNOW ALL MI:N BY THESE PRESENTS. ' , t` l Y a r riU4 y < c � i'f That UNITED CASUALTY AND SURETY INSURANCE Obligee: City of Ocoee, Florida , COMPANY, a corporation of the State of Massachusetts, does hereby 150 North Lakeshore Drive make, constitute and appoint Ocoee, FL 34761 yiit '�ta >; � r • 'Todd S. Carrigan of Boston, Massachusetts "' .. its true and lawful Attorney -in -Fact, with full power and authority, for and on behalf of the Company as surety, to execute and deliver and , Effective Date: 20th day of July, 2010 - affix the seal of the Company thereto, it a seal is required, bonds t:ndertakings, recognizances, consents of surety or other written '�' `- obligations in the nature thereof, as follows: $200,000.00 Contract Amount: Any and all bonds, undertakings, recognizances, consents of surety or other written obligations in the nature thereof and to bind UNPI'ED CASUALTY AND SURETY INSURANCE Bond Amount: $200,000.00 COMPANY, thereby, and all of the acts of said Attorney -in -Fact r pursuant to these presents, are hereby ratified and confirmed. - • This power of attorney is signed and sealed by facsimile under and by authority of the following Resolutions adopted by the Board of Directors of - UNITED CASUALTY AND SURETY INSURANCE COMPANY at a meeting duly called and held on the 1st day of July, 1993 which Resolutions are p now in full force and effect: ik iiiii Resolved that the President, Treasurer, or Secretary he and they are hereby authorized and empowered to appoint Attorneys -in -Fact of the Company, in its name and as its acts, to execute and acknowledge for and on its behalf as Surety any and all bonds, recognizances, contracts of indemnity, waivers of citation and all other writings obligatory in the nature thereof, with power to attach thereto the seal of the Company. Any such writings so executed by such Attorneys -in -Fact shall be binding upon the Company as if they had been duly executed and acknowledged by the regularly elected Officers of the Company in 1 ;:,:',.'• their own proper persons. This power of attorney is signed and sealed by facsimile under and by the authority of the following Resolution adopted by the Board of Directors of UNITED CASUALTY AND SURETY INSURANCE COMPANY, at a meeting duly called and held on the 1st day of July, 1993: t� That the signature of any officer authorized by Resolutions of this Board and the Company seal may be affixed by facsimile to any power of attorney or special g-,,, power of attorney or certification of either given for the execution of any bond, trrrdertaking, recognizance or other written obligation in the nature thereof; such .11. signature and seal, when so used being hereby adopted by the Company as the original signature of such officer and the original seal of the Company, to be valid a . and binding upon the Company with the same force and effect as though manually affixed. % 0.,W•i" IN WITNESS WHEREOF, UNITED CASUALTY AND SURETY INSURANCE COMPANY has caused these presents t9 be signed by its proper ., officer and its corporate seal to he hereunto affixed this 28th day of May 20013 , �� a w ,� UNI CASUALTY AND SURETY INSURANCE COMPANY X- r a w - S a _ ,,, ma . r a t Timothy M. Can•rgan, Treasure ,i; State of Massachusetts. County of Suffolk s s.: On this 28th day of May in the year 2008 before me personally came Timothy M. Carrigan to me known, who, being by me duly sworn, did depose r and say that he resides in the State of Massachusetts; that he is the Treasurer of UNITED CASUALTY AND SURETY INSURANCE COMPANY, the ,r' corporation described herein which executed the above instrument; that he signed his name thereto by the above quoted authority; that he knows the seal VL of said corporation; that said seal affixed to said instrument is such corporate seal, and that it was so affixed by authority of his office under the by -laws of said corporation. Thomas P. Carrigan, Jr., Notary Public My commission expires December 1, 2011 1, Timothy M. Can Treasurer of UNITED CASUALTY AND SURETY INSURANCE COMPANY, certify that the foregoing power of attorney, and the above quoted Resolutions of the - Board of Directors of July I, 1993 have not been abridged or revoked and are now in full force and effect. - 20th July 10 ,. Signed and sealed at Boston, Massachusetts, this _ day of _ 20 . o ` , , �: Timothy M. C <trrig in,'1 rensure i" CONTRACT PERFORMANCE BOND Bond No: (Exclusive Commercial and Multi - Family Solid waste Collection Franchise Agreement) KNOW ALL MEN BY THESE PRESENTS that Waste Services of Florida Inc., hereinafter referred to as "Principal "), and NAME OF SURETY COMPANY , a corporation organized under the laws of the State of and licensed to do business in the State of Florida (hereinafter referred to as "Surety "), are held and firmly bound unto the City of Ocoee, Florida, as Obligee, (hereinafter referred to as "Obligee "), in the Penal Sum of Two Hundred Thousand Dollars ($200,000.00), for the payment of which sum well and truly made, Principal and Surety bind themselves, and their successors and assigns, jointly and severally, in accordance with the terms set forth herein. Recitals WHEREAS, Waste Depot, LLC d/b /a Waste Works (hereinafter referred to as "Waste Depot ") by written agreement dated October 20, 2009 entered into an agreement, with the Obligee titled "Exclusive Commercial and Multi - Family Solid Waste Collection. Franchise Agreement ", as amended by First Amendment thereto dated January 5, 2010, and by second amendment thereto dated May 15, 2012 (hereinafter referred to as the "Franchise Agreement ") for the purposes of establishing an exclusive franchise granted by the Obligee and accepted by Waste Depot for the collection of commercial and multi- family solid waste within the corporate limits of the City of Ocoee; and WHEREAS . the Franchise Agreement identifies certain performance obligations of Waste Depot for a teen expiring on December 1, 2014; and WHEREAS, Principal assumed the rights and responsibilities of Waste Depot pursuant to that certain Bill of Sale, Assignment and Non - Competition Agreement dated November 1, 2012 (hereinafter the "Assignment Agreement "); and WHEREAS, Principal desires to assume the performance obligations of Waste Depot under the Franchise Agreement; and WHEREAS, this Contract Performance Bond is being accepted by the City of Ocoee, as Obligee, on the condition that it is acknowledged by the Surety as covering all non- performance, defaults and matters arising under the Franchise Agreement, including, but not limited to such non - performance, defaults and matters that have arisen since October 20, 2009 and /or are in existence as of the date of the execution of this Contract Performance Bond; and WHEREAS, the Surety acknowledges receipt of good and valuable consideration for the obligations it assum es hereund er. NOW. THEREFORE, it is agreed that the above Recitals are acknowledged to be true and accurate and arc incorporated herein by reference. This Contract Performance Bond is being issued by the Surety to secure the performance obligations of the Principal under the Franchise Agreement since the date of its inception and any additional extensions thereof. If the Principal shall we11, truly and timely perform all the undertakings, covenants, terms, conditions, and agreements of said Franchise Agreement, within the term of the Franchise Agreement and all extensions thereof; and shall also well , truly and timely perform all undertakings, covenants, terms, conditions, and agreements of any and all duly authorized modifications of said Franchise Agreement that may hereafter be made; and shall pay, compensate, indemnify and save harmless the said Obligee of and from any and all loss, damage and expense, caused by any breach or default by Principal under the Franchise Agreement, including, but not limited to. those arising before or which are in existence as of the date of the execution of this Contract Performance Bond; and including, but not limited to. liquidated damages, damages caused by delays in performance of the Principal, expenses, costs and attorneys' fees, including attorneys' fees incurred in appellate proceedings, that Obligee sustains resulting directly or indirectly from failure of the Principal to perform its performance obligations under the Franchise Agreement, then the obligations of this Contract Performance Bond shall be null and void; otherwise, this Contract Performance Bond shall remain in full force and effect and Surety shall be liable to Obligee under this Contract Performance Bond in accordance with its terms and shall pay the Obligee for such damages that result from the non- performance of the Principal as described above subject to the notice provisions described below. The Surety's obligations to the Obligee hereunder shall be direct and immediate and are not conditional or contingent upon Obligee's pursuit of its remedies against Principal, and shall remain in full force and effect notwithstanding (a) amendment s or modifications to the Franchise Agreement entered into by Obligee and Principal without the Surety's know ledge or consent; (b) waivers of compliance with or any default under the Franchise Agreement granted by Obligee to Principal or by Principal to Obligee without the Surety's knowledge or consent; (c) the discharge of Principal from its obligations under the Franchise Agreement as a result of any proceeding initiated under The United States Bankruptcy Code, as the same may be from time to time amended, or any similar state or federal Law, or any limitation of the liability of Principal or its estate as a result of any such proceedings; or (d) any other action taken by Obligee or Principal that would , in the absence of this clause, result in the release or discharge by operation of law of the Surety from its obligations hereunder. Any changes in or under the Franchise Agreement or noncompliance with any formalities connected with the Franchise Agreement or changes therein shall not affect Surety's obligations under this bond, and Surety hereby waives notice of any such chan ges. The Surety shall perform the obligation s of the Principal under the Franchise Agreement upon receipt of five (5) days written notice of the Principal's default. In the event that the Surety fails to fulfill its obligations under this Contract Performance Bond, then the Surety shall pay, indemnify and save the Obligee harmless from any and all loss, damage, cost and expense, including reasonable attorneys' fees and other legal costs for all tri al and appellate proceedings, caused directly or indirectly by the Principal's default(s) and the Surety's failure to fulfill its obligations hereunder. This Contract Performance Bond and its obligations shall survive the termination or cancellation of the Franchise Agreement. The payment and indemnification obligations set forth in this paragraph shall be limited by the Penal Sum of this Contract Performance Bond regardless of the duration of the Franchise Agreement. IN WITNESS WHEREOF, the Principal and Surety have executed this instrument under their several seals on the day of , 2012, the name and corporate seal of each corporate party being hereto affixed and these presents fully signed by its undersigned representative, pursuant to the authority of its governing body. Signed, sealed and delivered in the presence of Waste Services of Florida Inc. - Principal By (SEAL) _ (Official Title) Printed Name Surety By (SEAL) — (Official Title) Printed Name NOTES: If Principal and Surety are corporations, the respective corporate seal should be affixed and attached. Surety shall execute and attach a certified copy of Power of Attorney Appointing Individual Attorney -In -Fact for execution of Performance Bond on behalf of Surety.