EXHIBIT 6.2
CONTRACT
THIS CONTRACT, made this 13TH day of JANUARY 2004, between ST. LUCIE
COUNTY, a political subdivision of the State of Florida, hereinafter called the
"COUNTY", and BIOMASS PROCESSING TECHNOLOGY, INC., a Delaware corporation, or
his, its or their successors, executors, administrators, and assigns hereinafter
called the "CONTRACTOR":
WITNESSETH:
1. PURPOSE
That Contractor agrees with County, for the consideration herein
mentioned, at his, its or their own proper cost and expense to do all the Work
and furnish all the materials, equipment, supplies, and labor necessary to carry
out this Contract in the manner and to the full extent as set forth in the
Contract Documents, and to the satisfaction of the duly authorized
representatives of St. Lucie County, who shall have at all times full
opportunity to inspect the materials to be furnished and the Work to be done
under this Contract.
2. GENERAL DESCRIPTION OF WORK
It is agreed that the Work to be done under this Contract is to provide
processing/recycling services for yard trash, landscape debris, and land
clearing debris at a County approved site at the Glades Road Landfill.
3. PROJECT MANAGER
The Project Manager for the County is Xxx Xxxxxxxx at (000) 000-0000.
The Project Manager for the Contractor is Xxxxxxx Xxxxxxxxx at (000) 000-0000.
The parties shall direct all matters arising in connection with the
performance of this Contract, other than invoices and notices, to the attention
of the Project Managers for attempted resolution or action. Except as otherwise
provided for in this Contract, the Project Managers shall be responsible for
overall resolution or action. The Project Managers shall be responsible for
overall coordination and oversight relating to the performance of this Contract.
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4. CONTRACT DOCUMENTS
The Contract Documents which comprise the Contract between the County
and the Contractor are attached hereto and made part hereof and consist of the
following:
A. This Contract, consisting of pages 1 through 14 inclusive.
B. Poposal Documents, consisting of:
Request for Proposals #03-101.
Contractors proposal dated October 22, 2003.
C. Insurance Certificates which shall be provided by the Contractor, along
with the return of an executed copy of this Contract.
D. Any Modifications, including change orders, duly delivered after
execution of this Contract.
Except for duly authorized and executed Modifications including but not
limited to change orders and contract amendments, any conflict between the terms
and conditions of this Contract and the terms and conditions of any of the other
contract documents shall be interpreted in favor of this Contract.
5. PERFORMANCE GUARANTY
That Contractor guarantees to repair, replace or otherwise make good to
the satisfaction of the County any defect in workmanship or material appearing
in the Work; and further guarantees the successful performance of the Work for
the service intended. Neither inspection nor payment by the County shall relieve
the Contractor from his or its obligations to do and complete the Work in
accordance with this Contract. If the County deems it inexpedient to require the
Contractor to correct deficient or defective Work, an equitable deduction from
the contract price shall be made therefore or in the alternative, if the expense
incurred by the County to correct deficient or defective Work exceeds the unpaid
balance on this Contract, the Contractor shall pay the difference to the County.
The liability of the Contractor and its surety or sureties for such payment is
joint and several.
6. TERM
The term of this contract shall begin on February 2, 2004 and shall end
of February 1, 2009. At the option of the parties, the term may be extended an
additional period of three (3) years.
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7. TIME OF PERFORMANCE/DELAYS AND EXTENSIONS OF TIME
The Contractor shall begin work within 1 calendar days after the
signing, execution and delivery of written notice to proceed. The Work shall be
conducted in such a manner and with sufficient labor, materials, tools, and
equipment necessary to complete the Work within the time limit set forth in the
Contract
In the sole opinion of the County, should the organization of the
Contractor, or its management, or the manner of carrying on the Work be
manifestly incompetent, or inadequate to do the Work specified within the stated
time, then the County shall have the right to take charge of the Work and finish
it and provide the labor, materials and equipment necessary to complete the Work
as planned within the required time and to charge the cost of all such Work
against the Contractor and his, or its Surety shall be held responsible
therefore. The Contractor fully understands and agrees that the County shall not
pay for any obligation incurred or expenditure made by the Contractor prior to
the effective date of the notice to proceed described above, unless the County
authorizes such payment in writing.
8. CONTRACT PAYMENT
The County shall pay the Contractor for the performance of this
Contract in accordance with the Contract Documents, subject to adjustment by
change order, the unit price of $17.48 per ton as measured by outgoing scale
weights recorded by the County's landfill scale. This rate will be adjusted each
year on February 1 beginning on February 1, 2005 according to the change in the
Consumer Price Index as published by the United States Department of Labor,
Bureau of Labor Statistics.
9. PAYMENT SCHEDULE
The County shall make payments on account of the Contract as follows:
Once each month progress payments shall be made during the term.
Contractor shall submit a payment application to the County's Project Manager by
the 25th day of each month. The application shall be for the dollar amount of
the Work complete on the last day preceding the submission of the application.
Payment to the Contractor shall be made within 20 business days of the County's
receipt of the application. The County may reject the application in writing
which shall specify the deficiency and the action necessary to correct the
deficiency. Payment shall be due 10 days after the County's receipt of a
corrected application. All applications for payment submitted by the Contractor
shall reference the County's Contract number.
The County shall pay the Contractor through payments issued by the
County Finance Department in accordance with the Florida Prompt Payment Act of
the Florida Statutes, Chapter 218.70, upon receipt of the certified invoice from
the County Project Manager. The parties agree, however, that any payments
withheld as liquidated damages or for any other reason allowed by this Contract,
shall not be governed by the Florida Prompt Payment Act.
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10. SUBCONTRACTORS
In the event Contractor requires the services of any subcontractor or
professional associate in connection with the Work to be performed under this
Contract, the Contractor shall secure the written approval of the County Project
Manager before engaging such subcontractor or professional associate.
11. AUDIT
The Contractor agrees that the County or any of its duly authorized
representatives shall, until the expiration of three years after expenditure of
funds under this Contract, have access to and the right to examine any directly
pertinent books, documents, papers, and records of the Contractor involving
transactions related to this Contract. The Contractor agrees that payments) made
under this Contract shall be subject to reduction for amounts charged thereto
which are found on the basis of audit examination not to constitute allowable
costs under this Contract. The Contractor shall refund by check payable to the
County the amount of such reduction of payments. All required records shall be
maintained until an audit is completed and all questions arising therefrom are
resolved, or three years after completion of the project and issuance of the
final certificate, whichever is sooner.
12. PUBLIC RECORDS
The Contractor shall allow public access to all documents, papers,
letters, or other material subject to the provisions of Chapter 119, Florida
Statutes, and made or received by the Contractor in conjunction with this
Contract.
13. GUARANTEE
The Contractor guarantees to repair, replace or otherwise make good to
the satisfaction of the County any defects in workmanship or material appearing
in the work within one year after the day of the certificate for final
performance of the work for the service intended. Contractor further guarantees
the successful performance of the work for the service intended. Neither
inspection nor payment, including final payment by the County shall relieve the
Contractor from his or its obligations to do and complete the work in accordance
with this contract. If the County deems it inexpedient to require the Contractor
to correct deficient or defective materials or labor, an equitable deduction
from the contract price shall be made therefore or in the alternative, the
County may xxx for damages. This guarantee is in addition to any other warranty
available to the County for the Work including but not limited to manufacturers
warranties.
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14. CONTRACTOR RESPONSIBILITY
The Contractor is an independent contractor and is not an employee or
agent of the County. Nothing in this Contract shall be interpreted to establish
any relationship other than that of an independent contractor, between the
County and the Contractor, its employees, agents, subcontractors, or assigns,
during or after the performance of this Contract. The Contractor shall take the
whole responsibility for the means, methods, techniques, sequences, and
production of the Work.
The Contractor shall bear all losses resulting to him, or its, on
account of the amount or character of the Work, or because of the nature of the
ground in or on which the Work is done is different from what was assumed or
expected, or because of bad weather, or because of errors or omissions in his or
its bid on the Contract price, or except as otherwise provided in the Contract
Documents because of any other causes whatsoever. Execution of this Contract by
the Contractor is a representation that the Contractor has visited the site,
become familiar with the local conditions under which the Work is to be
performed, and correlated personal observations with the requirements of the
Contract Documents.
The Contractor shall protect the entire Work, all materials under the
Contract and the County's property (including machinery and equipment) in, or
on, or adjacent to the site of the Work until final completion and Work, from
the action of the elements, acts of other contractors, or except as otherwise
provided in the Contract Documents, and from any other causes whatsoever; should
any damage occur by reason of any of the foregoing, the Contractor shall repair
at his, or its, own expenses to the satisfaction of the County or its Project
Manager. Neither the County nor its officers, employees or agents assume any
responsibility for collection of indemnities or damages from any person or
persons causing injury to the Work of the Contractor.
At his, or its expense, the Contractor shall take all necessary
precautions (including without limitation) the furnishing of guards, fences,
warnings signs, walks, flags, cables and lights for the safety of and the
prevention of injury, loss and damage to persons and property (including without
limitation) in the term persons, members of the public, the County and its
employees and agents, the Project Manager and his employees, Contractor's
employees, his or its subcontractors and their respective employees, other
contractors, their subcontractors and respective employees, on, about or
adjacent to the premises where said Work is being performed, and shall comply
with all applicable provisions of safety laws, rules, ordinances, regulations
and orders of duly constituted public authorities and building codes.
The Contractor assumes all risk of loss, damage and destruction to all
of his or its materials, tools appliances and property of every description and
that of his or its subcontractors and of their respective employees or agents,
and injury to or death of the Contractor, his or its employees, subcontractors
or their respective employees or agents, including legal fees, court costs or
other legal expenses, arising out of or in connection with the performance of
this Contract.
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15. INDEMNITY
Contractor agrees to pay of behalf of, protect, defend, reimburse,
indemnify and hold the County, its agents, employees, elected officers and
representatives and each of them, (hereinafter collectively and for the purposes
of this paragraph, referred to as "County"), free and harmless at all times from
and against any and all claims, liability, expenses, losses, costs, fines and
damages, including attorney's fees, and causes of action of every kind and
character against County by reason of any damage to property or the environment,
or bodily injury (including death) incurred or sustained by any party hereto, or
of any party acquiring any interest hereunder, any agent or employee of any
party hereto or of any party acquiring an interest hereunder, and any third or
other party whomsoever, or any governmental agency, arising out of or in
incident to or in connection with Contractor's performance under this Contract,
the condition of the premises, Contractor's acts, or omissions or operations
hereunder, or the performance, non-performance or purported performance of the
Contractor of any breach of the terms of this Contract; provided however that
Contractor shall not be responsible to County for damages resulting out of
bodily injury or damages to property which Contractor can establish as being
attributable to the sole negligence of County, its respective agents, servants,
employees or officers.
Contractor further agrees to pay on behalf of and hold harmless and
indemnify County for any fines, citations, court judgments, insurance claims,
restoration costs or other liability resulting from its activities on the
project, whether or not Contractor was negligent or even knowledgeable of any
events precipitating a claim or arising as a result of any situation involving
Contractor's activities.
Said indemnification by Contractor shall be extended to include all
deliverers, suppliers, furnishers of material or anyone acting for, on behalf
of, or at the request of Contractor. Contractor recognizes the broad nature of
this indemnification and hold harmless clause and voluntarily makes this
covenant. In conformance with Section 725.06 Florida Statutes, the specific
consideration given for the promises of the Contractor set forth with regard to
this indemnification and hold harmless clause is $10.00 in hand paid by the
County to the Contractor as a portion of the contract price, receipt thereof is
hereby acknowledged and the adequacy of which the Contractor accepts as
completely fulfilling the obligations of the County under the requirement of
Section 725.06 Florida Statutes. This indemnification and hold harmless survives
acceptance of the Work. This clause of the Contract will extend beyond the term
of the Agreement for a period of ten (10) years after the date of the acceptance
of the Work by the COUNTY.
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16. INSPECTION
The project will be inspected by the Project Manager and will be
rejected if it is not in conformity with the Contract provisions. Rejected Work
will be immediately corrected by the Contractor
17. INSURANCE
COMMERCIAL GENERAL LIABILITY:
The Contractor shall maintain and, prior to commencement of this
contract, provide the County with evidence of commercial general liability
insurance to include: 1) premises/operations, products/completed operations,
(including XCU hazards) and personal and advertising injury for limits of not
less than $1,000,000 per occurrence; 2) fire damage for limits of not less than
$100,000 per occurrence; 3) medical payments for limits not less than $5,000 per
person and 4) a general, per contract/project, aggregate limit of not less than
$2,000,000. The policy shall also provide the County will be given a thirty (30)
day written notice of cancellation or non-renewal and include County as an
additional insured.
BUSINESS AUTOMOBILE LIABILITY:
The Contractor shall maintain and, prior to commencement of this
contract, provide the County with evidence of business automobile liability
insurance to include: 1) coverage for any automobile for limits of not less than
$1,000,000 combined single limit (bodily injury & property damage) per accident
and 2) Personal Injury Protection (Florida no-fault) with full statutory limits.
The policy shall also provide the County will be given a thirty (30) day written
notice of cancellation or non-renewal and include County as an additional
insured.
WORKERS' COMPENSATION AND EMPLOYERS LIABILITY:
The Contractor shall maintain and, prior to commence of this contract,
provide the County with evidence of workers' compensation insurance providing
Florida statutory (F.S. 440) limits to cover all employees and include Employers
Liability coverage with limits of not less than $500,000 for accidents or
disease. The policy shall also provide the County will be given a thirty (30)
day written notice of cancellation or non-renewal.
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18. DEFAULT; TERMINATION
A. FOR CAUSE
If either party fails to fulfill its obligations under this
Contract in a timely and proper manner, the other party shall have the right to
terminate this Contract by giving written notice of any deficiency and by
allowing the party in default seven (7) calendar days to correct the deficiency.
If the defaulting party fails to correct the deficiency within the seven
calendar day period, this Contract shall terminate at the expiration of that
time period.
With regard to the Contractor, the following items shall be
considered a default under this Contract:
(1) If the Contractor should be adjudged bankrupt, or if he,
or it, should make a general assignment for the benefit of his, or its,
creditors, or if a receiver should be appointed on account of his, or its,
insolvency.
(2) If the Contractor should refuse or fail, except in cases
for which an extension of time is provided, to supply enough properly skilled
workmen or proper material to meet the project schedule or if the Contractor
should fail to make prompt payment for materials, or labor or other services
entering into the Work.
(3) If the Contractor disregards laws, ordinances, or the
instructions of the Project Manager or otherwise be guilty of a substantial
violation of the provisions of the Contract.
(4) Fails to perform any of the terms of this Contract or
performs work which fails to conform to the requirements of this Contract.
In the event of termination, the County may take possession of the
premises and all materials, tools, and appliances, thereon and finish the Work
by whatever method it may deem expedient. In such cases, the Contractor shall
only be entitled to receive payment for Work satisfactorily completed prior to
the termination date. The County may take possession of and use any materials,
plant, tools, equipment, and property of any kind furnished by Contractor to
complete the Work. If the expense incurred by the County to finish the Work
exceeds the unpaid balance on this Contract, the Contractor shall pay the
difference to the County. The expense incurred by the County as herein provided,
and the damage incurred through the Contractor's default, shall be certified by
the Project Manager. The Contractor shall be responsible for both liquidated
damages attributable to delay and for excess completion costs. The liability of
the Contractor and its surety or sureties for such damages and costs is joint
and several. The obligations of the Contractor and his surety with respect to
the warranty and maintenance shall remain in full force and effect for the
portion of the Work completed by the Contractor and shall not expire until the
Page 8 of 13
expiration of the prescribed time period measured from the final acceptance of
the project in its entirety. These clauses shall survive the termination of this
Contract. If the County makes a determination pursuant to this Contract to hold
the Contractor in default and terminate the Contract for cause and it is
subsequently determined that any such determination was improper, unwarranted,
or wrongful, then any such termination shall be deemed for all purposes as a
termination without cause as described below. The Contractor agrees that it
shall be entitled to no damages, allowances or expenses of any kind other than
as provided in this Agreement in connection with such termination.
B. WITHOUT CAUSE
Either party may terminate the Contract without cause at any
time upon ninety (90) calendar days prior written notice to the other party.
Upon such termination, the Contractor waives any claims for damages from the
termination without cause, including loss of anticipated profits, and as the
sole right and remedy of the Contractor, the County shall compensate the
Contractor for all authorized Work satisfactorily and responsibly completed
through the termination date. In the event of termination without cause by
either party, the obligations of the Contractor and his surety with respect to
the warranty and maintenance shall remain in full force and effect for the
portion of the Work completed by the Contractor and shall not expire until the
expiration of the prescribed time period measured from the final acceptance of
the project in its entirety. These clauses shall survive the termination of this
Contract.
19. NON DISCRIMINATION
Contractor covenants and agrees that Contractor shall not discriminate
against any employee or applicant for employment to be employed in the
performance of the Contract with respect to hiring, tenure, terms, conditions or
privileges of employment, or any matter directly or indirectly related to
employment because of age, sex or physical handicaps (except where based on a
bonafide occupational qualification); or because of marital status, race, color,
religion, national origin or ancestry.
20. VERIFICATION OF EMPLOYMENT STATUS
The County will not intentionally award contracts to any contractor who
knowingly employs unauthorized alien workers, constituting a violation of the
employment provisions of the Immigration and Nationality Act ("INA"). The Count
shall consider the employment by the Contractor of unauthorized aliens a
violation of 8 U.S.C. Section 1324a(e) [Section 274A(e) of the INA]. The
Contractor agrees that such violation by the Contractor shall be grounds for the
unilateral cancellation of this Contract by the County.
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21. PRODUCTS OR MATERIALS WITH RECYCLED CONTENT
Contractor is required to procure products or materials with recycled
content with respect to Work performed or products supplied under the contract
when those products or materials are available at reasonable prices. A decision
to not procure such items must be based on a determination that such
procurement:
a) Is not available within a reasonable period of time; or
b) Fails to meet the performance standards set forth in the applicable
specifications or fails to meet the reasonable performance standards of the
agency.
Contractor shall provide the County with a written statement indicating
what recycled products were used or supplied. If a decision was made not to use
recycled products, Contractor shall provide County with a written statement
indicating the basis for the decision using the above criteria.
22. FLORIDA PRODUCED LUMBER
Where applicable Contractor agrees to comply with the provisions of
Section 255.20, Florida Statutes, (2002) and as may be amended from time to
time.
23. ASBESTOS-FREE MATERIALS
Contractor shall not use any asbestos or asbestos-based fiber materials
in the Work performed under this Contract.
24. ASSIGNMENT
The County reserves the right to freely assign this Contract. The
Contractor, however, shall not assign this Contract to any other persons or firm
without first obtaining County's written approval.
25. ATTORNEYS' FEES AND COSTS
In the event of any dispute concerning the terms and conditions of this
Contract or in the event of any action by any party to this Contract to
judicially interpret or enforce this Contract or any provision hereof, or in any
dispute arising in any manner from this Contract, subject to the provisions of
Section 768.28, Florida Statutes and in no way altering the extent of the
County's liability under Section 768.28, Florida Statutes, the prevailing party
shall be entitled to recover its reasonable costs, fees and expenses, including
but not limited to, witness fees, expert fees, consultant fees, attorney,
paralegal and legal assistant fees, costs and expenses and other professional
fees, costs and expenses, whether suit be brought or not, and whether any
settlement shall be entered in any declaratory action, at trial or on appeal.
The liability of the Contractor and its surety or sureties for such fees and
costs is joint and several.
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26. NOTICES
All notices, requests, consents, and other communications required or
permitted under this Contract shall be in writing and shall be (as elected by
the person giving such notice) hand delivered by messenger or courier service,
telecommunicated, or mailed by registered or certified mail (postage prepaid)
return receipt requested, addressed to:
As To County: With a Copy To:
St. Lucie County Administrator St. Lucie County Attorney
Administration Annex Administration Annex
0000 Xxxxxxxx Xxxxxx 0000 Xxxxxxxx Xxxxxx
Xx. Xxxxxx, XX 00000 Ft. Xxxxxx, XX 00000
As To Contractor:
Xxxxxxx Xxxxxxxxx
Biomass Processing Technology, Inc.
0000 Xxxxxxxx Xxxxx, Xxxxx X
Xxxx Xxxx Xxxxx, Xxxxxxx 00000
or to such other address as any party may designate by notice complying with the
terms of this Section. Each such notice shall be deemed delivered (a) on the
date delivered if by personal delivery, (b) on the date upon which the return
receipt is signed or delivery is refused or the notice is designated by the
postal authorities as not deliverable, as the case may be, if mailed.
27. NON-WAIVER
The rights of the parties under this Contract shall be cumulative and
the failure of either party to exercise properly any rights given hereunder
shall not operate to forfeit any of the said rights.
28. CONFLICT OF INTEREST
The Contractor represents that it presently has no interest and shall
acquire no interest, either direct or indirect, which would conflict in any
manner with the performance of services required hereunder, as provided for in
Section 112.311, Florida Statutes (2003) and as may be amended from time to
time. The Contractor further represents that no person having any interest shall
be employed for said performance.
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The Contractor shall promptly notify the County in writing by certified
mail of all potential conflicts of interest prohibited by existing state law for
any prospective business association, interest or other circumstance which may
influence or appear to influence the Contractor's judgment or quality of
services being provided hereunder. Such written notification shall identify the
prospective business association, interest or circumstance, the nature of Work
that the Contractor may undertake and request an opinion of the County as to
whether the association, interest or circumstance would, in the opinion of the
County, constitute a conflict of interest if entered into by the Contractor. The
County agrees to notify the Contractor of its opinion by certified mail within
thirty (30) days of receipt of notification by the Contractor. If, in the
opinion of the County, the prospective business association, interest or
circumstance would not constitute a conflict of interest by the Contractor, the
County shall so state in the notification and the Contractor shall, at his/her
option, enter into said association, interest or circumstance and it shall be
deemed not in conflict of interest with respect to services provided to the
County by the Contractor under the terms of this Contract.
29. DISPUTE RESOLUTION
Any disputes relating to interpretation of the terms of this Contact or
a question of fact or arising under this Contract shall be resolved through good
faith efforts upon the part of the Contractor and the County or its Project
Manager. At all times, the Contractor shall carry on the work and maintain its
progress schedule in accordance with the requirements of the Contract and the
determination of the County or its representatives, pending resolution of the
dispute. Any dispute which is not resolved by mutual agreement shall be decided
by the County Administrator who shall reduce the decision to writing. The
decision of the County shall be final and conclusive unless determined by a
court of competent jurisdiction to be fraudulent, capricious, arbitrary, so
grossly erroneous as to necessarily imply bad faith, or not be supported by
substantial evidence.
30. MEDIATION
Prior to initiating any litigation concerning this Contract, the
parties agree to submit the disputed issue or issues to a mediator for
non-binding mediation. The parties shall agree on a mediator chosen from a list
of certified mediators available from the Clerk of Court for St. Lucie County.
The fee of the mediator shall be shared equally by the parties. To the extent
allowed by law, the mediation process shall be confidential and the results of
the mediation or any testimony or argument introduced at the mediation shall not
be admissible as evidence in any subsequent proceeding concerning the disputed
issue.
31. INTERPRETATION; VENUE
This Contract constitutes the entire agreement between the parties with
respect to the subject matter hereof and supersedes all prior verbal or written
agreements between the parties with respect thereto. This Contract may only be
amended by written document, properly authorized, executed and delivered by both
parties hereto. This Contract shall be interpreted as a whole unit and section
headings are for convenience only. All interpretations shall be governed by the
laws of the State of Florida. In the event it is necessary for either party to
initiate legal action regarding this Contract, venue shall be in the Nineteenth
Judicial Circuit for St. Lucie County, Florida, for claims under state law and
the Southern District of Florida for any claims which are justiciable in federal
court.
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IN WITNESS WHEREOF, the parties hereto have accepted, made and executed
this Agreement in counterparts each of which shall be treated as an original
upon the terms and conditions above stated.
BOARD OF COUNTY COMMISSIONERS
ST. LUCIE COUNTY
ATTEST:
/s/ X. XXXXXXX By: /s/ XXXXX X. XXXXX
--------------------- ---------------------------------------
Clerk Chairman
APPROVED AS TO FORM AND CORRECTNESS:
By: /s/
-------------------------------------
County Attorney
WITNESSES: BIOMASS PROCESSING TECHNOLOGY, INC.
/s/ By: /s/ XXXXXXX X. XXXXXXXXX
---------------------- ---------------------------------------
Xxxxxxx Xxxxxxxxx
/s/ Vice-President
----------------------
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