HomeMy WebLinkAboutCOM 0582.027 2004-2006 ~tv w y._
Harry Kim rf!'•,~~ ~ "''j~14s William Takaba
Mayor ~ ~ Director
• Nancy E. Crawford
~ ti~oi Depury Director
County of Hawaii
Finance Department
25 Aupuni Street, Room 118 Hilo, Hawaii 96720
(808) 96L8234 Fax (808) 961-8248
July 14, 2006
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Stacy Higa, Chairman, and ` j r=
C-, ~
Members of the Hawaii County Council r-
Hawai`i County Council - ~ ;
25 Aupuni Street
Hilo, HI 96720
Subject: Solid Waste Reduction Facility RFP w
Stage 2, Draft 2
Enclosed, as requested by the Environmental Management Committee, is Draft 2 of the Stage 2
RFP. This draft was also sent to the three short-listed Proposers for their comments.
At this time, I would also like to request that the RFP consultants be placed on August 22, 2006
agenda of the Environmental Management Committee for the following purposes:
• To present a summary of the latest RFP draft, incorporating comments from the Proposers;
• To provide a progress report on the RFP process; and
• To respond to questions, comments, and concerns of the Committee.
Should you have any questions or concerns before then, please contact me at your convenience.
Thank you very much.
rrt
~G~I , r
William Takaba
Director
cc: Harry Kim
Barbara Bell Comm. No. S 2'~'7
Ref. To:
Enclosure Re#, Uate
(Note: The County of Hawaii's Solid Waste Reduction Facility RFP, Stage 2, Draft 2
is on file in the Office of the County Clerk.)
l July 3, 2006
Mr. John Phillips
Covanta Energy
40 Lane Rd
Fairfield, New Jersey 07004
Subject: County of Hawaii Waste Reduction Facility Design-$uitd-Operate Project
Proposer Review of DRAFT Request for Stage 2 Proposals
Dear Mr. Phillips:
Congratulations on being short-listed for the County of Hawai`i's Waste Reduction Facility
Design-Build-Operate Project. In order to achieve a high degree of thoroughness and clarity, the
County of Hawaii has requested that R. W. Beck, Inc. and Hawkins Delafield & Wood LLP
provide you this DRAFT Request for Stage 2 Proposals (Stage 2 RFP) for review and comment.
Enclosed aze Volumes I and III of the Stage 2 RFP. We expect to send Volume II (the DRAFT
Service Contract) subsequently.
While we encourage comments on all aspects of this Stage 2 RFP, we ask that you pay
particularly close attention to the following issues:
• The inclusion of the operation and maintenance of the Reload Building in the Scope of
Services for the Company;
L... The Method for Company compensation for the handling of Non-Processible Waste;
• The current design of the Reload Facility and its compatibility with the Waste Reduction
Facility (specifically Facility layout, Building orientation, Building and Facility size,
etc.);
• Waste management solutions to address the interval between the closure of the South
Hilo Landfill (assume 2010) and the commencement of operations of the Waste
Reduction Facility. Examples may include fast-tracking WRF development to shorten
this time interval, contracting with a third party for disposal, etc.;
• The inflationary indices and methods used for the Construction and Operation Periods;
• Facility capacity quantities and the adequacy of the background information provided in
the Stage 2 RFP; and
• The structure of the Service Fee. Specifically the inclusion of a Base Fee and
Incremental Fee and whether a waste delivery commitment is necessazy in tight of such
structure assuming that the base fee corresponds to a level of service substantially equal
to the quantity of waste historically received at the South Hilo Landfill.
011278 ~ 11-01067-10000 ~ 2001 ~ CovangCo~erl.euer,doc
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42.
1001 fourth Acrnue, Sui'•.e ]SIi) Seaiil~~. INA 4315-IUUA Phone i_rObi b9~-4; ;tU Fas ~.206r ~i95-4'01
Mr. John Phillips
July 3, 2006
Page 2
Please send comments, a markup of the Stage 2 RFP document, and/or any other information
that you think may be helpful in improving the Stage 2 RFP to the contact listed below by July
24th, 2006,
R. W. Beck Inc.
Attn: Rory Tipton
1001 Four[h Avenue, Suite 2500
Seattle, Washington 98154-1004
We appreciate your assistance.
Sincerely,
R. W. BECK, II~C.
Rory 'ton
Deputy Project Manager
RT/rlun
Enclosures
R:\Seavle\01118 HAWAII CNN HI, TINA\I1-01067-10000 REDUC'TION FACIGTY P\WOrk Producu\RFPStagel\CovantaCoverLel[er.doc
DRAFT
REQUEST FOR STAGE 2 PROPOSALS
VOLUME I
County of Hawaii
,r,_ Department of Finance
fir..
Waste Reduction Facility
Design-Build-Operate Project
July 3, 2006
RFP No. 2210
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TABLE OF CONTENTS
TABLE OF CONTENTS I
SECTION 1 -INTRODUCTION 1
1.1 Generallntroduction 1
1.1.1 Purpose and Organization of This Solicitation 1
1.1.2 Scope of Services 1
1.1.3 Financing and Ownership 2
1.1.4 Anticipated Schedule 2
1.2 Proposers and Technologies 2
1.3 County Objectives 3
1.4 Defined Terms 4
1.5 Organization of this Stage 2 RFP S
1.6 County Advisors $
1.7 Confidentiality $
1.8 Inquiries and Correspondence 9
SECTION 2 -GENERAL BACKGROUND INFORMATION 10
2.1 Introduction 10
2.2 Waste Stream Characteristics 10
2.2.1 Current and Expected Future Waste Generation 10
~'\.r 2.2.2 Reference Fuel 12
2.2.3 Anticipated Future Waste Diversion Activities 13
2.2.4 Waste Delivery Commitment 13
2.3 Project Site and Surrounding Areas 13
2.3.1 Short-Term Development 13
2.3.2 Long-Term Planning 14
2.4 Other Facilities 14
2.4.1 South Hilo Landfill 14
2.4.2 West Hawaii Landfill 14
2.5 Environmentallnformation 15
2.6 Reference Documents Available 15
2.7 Reliance on County Provided Information 16
SECTION 3 -OVERVIEW OF EXPECTED FACILITIES AND SERVICES 17
3.1 Introduction to Scope of Services 17
3.2 Scope of Services 17
3.2.1 Permitting 17
3.2.2 Design and Construction Services 18
3.2.3 Operation and Maintenance Services 19
3.2.4 Other Services 19
SECTION 4 -DRAFT SERVICE CONTRACT TERMS AND CONDITIONS 23
4.1 Purpose and Scope 23
4.2 Service Contract Requirements 23
`+..o
County of Hawaii i July 3, 2006
Waste Retluction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
4.2.1 Project Guarantor 24 I`~
4.2.2 Limitations on Liability 24
4.3 Periods of Work and Key Milestones 24
4.3.1 Development Period (Contract Date to Construction
Commencement Date) 25
4.3.2 Construction Period (Construction Commencement Date to
Acceptance Date) 25
4.3.3 Operations Period (Acceptance Date to end of the contract) 25
4.4 Business Terms and Conditions 26
4.4.1 Payment Provisions 26
4.4.2 Security 27
4.4.3 Ownership and Financing 28
4.5 Performance Guarantees 28
4.6 Term 29
4.7 Additional Contractual Requirements 29
4.7.1 County of Hawaii Business License and Taxes 29
4.7.2 Special Program Requirements 29
4.7.3 Venue for Litigation 29
4.8 Process for Proposed Changes to the Draft Service Contract 30
SECTION 5 -TECHNICAL REQUIREMENTS 31
5.1 General 31
5.2 Site and Utilities 31
5.3 Services 31
5.4 Overall Project Objectives 32
5.5 Aesthetic and Architectural Concepts 32
5.6 Technical Data to be submitted 32
SECTION 6 • PROCUREMENT PROCESS 33
6.1 Procurement Process Schedule and Project Implementation 33
6.2 County Rights and Options 33
6.3 Stage 2Pre-Proposal Conference /Site Tour 34
6.4 Interpretations, Questions, and Requests for Clarification 35
6.5 Communication Protocol 35
6.6 Contacts with Regulatory Agencies 35
6.7 Use of Proposals 35
6.8 Access and Proposer Investigations During Stage 2 Proposal Preparation36
6.9 Stage 2 Proposal Evaluation and Selection 36
6.9.1 Evaluation Process Overview 36
6.9.2 Proposal Evaluation Criteria 36
6.9.3 Proposal Evaluation Criteria Weightings 40
6.10 Evaluation and Ranking of Proposals 40
6.10.1 Stage 2 Proposal Evaluation 40
6.10.2 Interviews 40
6.10.3 Reference Checks 40
6.10.4 County Requests for Clarification or Resubmissions 40
6.11 Negotiations Process 41
6.12 Information Disclosure to Third Parties 41
- County of HawaPi ii July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Val. I
Design-Build•Operate Project
emu.,.
''err 6.13 Expenses of the Proposers 41
6.14 Other Procurement Requirements 41
6.14.1 Protests 41
6.14.2 Conflict of Interest 42
SECTION 7 -PROPOSAL SUBMITTAL REQUIREMENTS 43
7.1 Stage 2 Proposal Overview 43
7.2 Stage 2 Proposal Format 43
7.3 Stage 2 Proposal Submittal Requirements 45
7.3.1 Stage 2 Proposal Deadline 45
7.3.2 Number of Copies 46
7.4 Stage 2 Proposal Contents 46
7.4.1 Transmittal Letter and Attachments 46
7.4.2 Tab 1 -Executive Summary and Project Abstract 46
7.4.3 Tab 2 -Technical Proposal 46
7.4.4 Tab 3 -Management and Organization Proposal 55
7.4.5 Tab 4 -Business/Financial Proposal 56
7.4.6 Tab 5 -Stage 2 Proposal Forms 58
7.4.7 Tab 6 -Experience, Qualification, and Financial Information
Update (if changes are proposed) 58
SECTION 8 -PROPOSAL SUBMITTAL FORMS 59
ATTACHMENT A -FIGURES
ATTACHMENT B - RELOAD FACILITY DRAWINGS / SITE GEOTECHNICAL
INFORMATION
ATTACHMENT C -COMMUNICATIONS PROTOCOL
~ County of Hawaii iii July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Pmjed
~.d.~
Section 1 -Introduction
1.1 GENERAL INTRODUCTION
1.1.1 PURPOSE AND ORGANIZATION OF THIS SOLICITATION
This Request for Stage 2 Proposals (Stage 2 RFP) for the County of Hawaii (the
County) Waste Reduction Facility Design-Build-Operate Project (WRF DBO Project or
Project) is being issued by the County to the three Proposers that have been short-
listed based on the outcome of an evaluation of Stage 1 Proposals received in response
to the County's Request for Stage 1 Proposals (Stage 1 RFP).
The purpose of this Stage 2 RFP is to solicit comprehensive Stage 2 Proposals
(Proposals) from the short-listed Proposers for the scope of services described in
Section 1.1.2 below. Each Proposal shall include, among other things, guaranteed
pricing for design, construction and operation, performance guarantees, a description of
the proposed technical approach to the Project, supplemental qualification information
and comments on contractual terms and conditions, all as more fully described herein.
The County will review these Proposals and select the Proposer .(Selected Proposer)
that the County deems best qualified to meet the County's Project and risk objectives
and that provides acceptable pricing, financial strength, and assurances with which to
initiate negotiations.
The Stage 2 RFP is organized into three volumes as outlined below.
• Volume I includes the Stage 2 RFP Front-end, Proposal Forms and Attachments.
¦ Volume II is the Draft Service Contract.
• Volume III consists of the Appendices to the Draft Service Contract, setting forth
the technical and certain financial requirements for the Project.
1.1.2 SCOPE OF SERVICES
The County anticipates that the scope of services to be provided by the Design-Build-
Operate Contractor (Company) will include responsibility for permitting, designing,
constructing, commissioning and acceptance testing, and operating and maintaining the
Waste Reduction Facility (WRF) and required support facilities for an initial operating
period of 20 years. The scope of services will also include providing support for the
County to complete the Environmental Impact Statement (EIS) process.
The Company will be expected to be responsible for the handling of all Waste delivered
to the Reload Building tipping floor, the segregation of any Non-Processible Waste, the
combustion of all Processible Waste, the marketing of any recovered recyclable
materials, and the delivery of any Non-Processible Waste and Ash Residue to the West
Hawaii Sanitary Landfill at Pu'uanahulu (West Hawaii Landfill) for disposal.
County of Hawaii 1 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
r
1.1.3 FINANCING AND OWNERSHIP
Proposers are required to submit a Proposal that anticipates County financing and
ownership of the WRF (the "Base Proposal"). Under the public financing model the
County will issue general obligation bonds.
Proposers are also encouraged to provide a separate approach that reflects Company
responsibility for financing and owning the WRF (the "Private Financing Approach").
For more specific information on the Private Financing Approach see Section 3.2.4.
1.1.4 ANTICIPATED SCHEDULE
A summary of the anticipated schedule of the major activities associated with this Stage
2 RFP Design-Build-Operate procurement process through Service Contract execution
is presented below.
Date Activity
June 2006 Issuance of Draft Stage 2 RFP
August 2006 Meetings with Individual Proposers
August 25t", 2006 Issuance of Stage 2 RFP
September 2006 Stage 2Pre-Proposal Conference
\ November 2006 Stage 2 Proposal Submittal Date
December 2006 Evaluation Committee Ranking of
Proposals
December 2006 Initiate Negotiations
March 2007 Service Contract Executed
The County retains the right to modify any or all of the above dates.
1.2 PROPOSERS AND TECHNOLOGIES
In the Stage 1 RFP the County invited firms to submit Stage 1 Proposals describing in
detail their technical, management, and financial qualifications to permit, design,
construct, operate, and maintain the WRF DBO Project. Firms were also asked to
submit a specific waste reduction technology that they believed would best suit the
County's need and their experience and expertise. The acceptable technologies in the
Stage 1 RFP were limited to those that the County believed to be the most appropriate
for the Project. These technologies included Mass Burn (Waste-to-Energy), Refuse
Derived Fuel (Waste-to-Energy), and Thermal Gasification (including Pyrolysis and
conventional gasification).
This Stage 2 RFP is being issued to the three respondents that were short-listed
(Proposers).
~
~
- County of Hawaii 2 July 3, 2006
Waste Retluction Facility Request for Stage 2 Proposals Vol. I
Design•Builtl-Operate Project
The Short-Listed Proposers (and their proposed technologies) are, in alphabetical order:
Covanta Energy (Waste-to-Energy: Mass Burn)
L-Con Constructors (Waste-to-Energy: Mass Burn)
Wheelabrator Technologies Inc. (Waste-to-Energy: Mass Burn)
In order to be considered responsive to this Stage 2 RFP, Proposers must provide a
Proposal to obtain permits, design, build, commission, acceptance test, operate and
maintain a facility to meet all Performance Guarantees set forth in the Draft Service
Contract and Appendix 2 of Volume III of the Stage 2 RFP. Proposers are required to
submit Proposals based on the technologies with respect to which the Proposer
demonstrated the necessary minimum experience in its Stage 1 Proposal.
The criteria by which the County will evaluate the Proposals are set forth in Section
6.9.2 of this Stage 2 RFP.
Proposals must be submitted and received by the County at its offices no later than
November X, 2006. All Proposals are to be submitted in accordance with the
requirements of Section 7 of this Stage 2 RFP.
'I.3 COUNTY OBJECTIVES
The County has identified specific objectives for the Project and the selected Design-
- Build-Operate delivery process. These objectives include:
1. Long-Term, Self-Sufficient Solid Waste Disposal Solution. The County
seeks firms that are financially stable and technologies that are commercially proven so
that the County can be assured that the selected Company and technology will provide
a viable and reliable on-island disposal solution over the long term.
2. Maximize Waste Reduction and Sustainability. To the extent practicable, the
County wants to maximize waste reduction and minimize (or eliminate) the amount of
residual requiring landfilling at the West Hawaii Landfill. The County also wishes to
maximize beneficial utilization of waste through production of energy, soil amendments,
and/or reused material, and to minimize social and environmental impacts.
3. Implementation Certainty. The county seeks certainty that the WRF will be
developed, permitted, financed, and implemented.
4. Effective Design-Build-Operate Contractor. The County wishes to engage a
reputable, experienced, and knowledgeable Proposer (designer, constructor, and
operator) with the ability to work effectively together, and with the County, to deliver and
operate a Project that meets the County's needs for at least 20 years.
5. Single Point of Responsibility. -The Service Contract requires a single point of
responsibility between the County and the Company, which will provide certain risk
County of Hawaii 3 July 3, 2006
Waste Retluction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
insulation for the County as well as ease of contract administration and operations.
Consistent with this approach, the County expects the Company to assume certain risks
as further described in this Stage 2 RFP.
6. Cost. The County wishes to select acost-effective Project with predictable costs
for the long-term, taking into consideration the potential for the selected technology to
generate revenues to help off-set Project costs.
7. Schedule. Because of the impending closure of the South Hilo Landfill, the
County's objective is to develop the Waste Reduction Facility as soon as is practicable.
'I.4 DEFINED TERMS
For the purposes of Volume I of this Stage 2 RFP, the following words and terms shall
have the meanings set forth below. Unless otherwise specified in the Stage 2 RFP, all
capitalized terms in this document refer to defined terms in the Draft Service Contract.
In cases where terms are defined differently in both the Draft Service Contract and this
Volume I, definitions in the Draft Service Contract will prevail.
"Acceptance" has the meaning specified in [Article X of the Draft Service Contract].
"Acceptance Date" has the meaning specified in [Article X of the Draft Service
Contract].
"Acceptance Test" or "Acceptance Testing" means the test, plans, and procedures set
forth in Appendix 6 and further detailed in the Company's Acceptance Test Plan
developed by the Selected Proposer if awarded the Service Contract, to be
conducted following Substantial Completion to demonstrate Acceptance.
"Appendix" means any of the Appendices to the Draft Service Contract included in
Volume III of this Stage 2 RFP.
"Change in Law" has the meaning set forth in the Draft Service Contract.
"Company" means the Selected Proposer with whom the County has executed the WRF
Service Contract.
"Construction Commencement Date" means the first date on which alt of the
Construction Commencement Date Conditions shall be satisfied or waived, as
agreed to in writing by the parties pursuant to [Article X of the Draft Service
Contract] and the Notice to Proceed with construction of the Design-Build
Improvements is issued.
"Construction Commencement Date Conditions" has the meaning specified in [Article X
of the Draft Service Contract].
"Construction Period" means the period from and including the Construction
Commencement Date to the Acceptance Date.
l~"y
County of HawaPi 4 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
` "Construction Period Work" means all work required to be conducted during the
Construction Period, including but not limited to successful completion of the design
(not performed during the Development Period), construction, startup, and
Acceptance Testing.
"Contract Date" means the date that the Service Contract has been executed and
delivered by the County and the Company.
"County" means The County of Hawaii, Hawaii, a political subdivision of the State of
Hawaii.
"Development Period" means the period from and including the Contract Date to the
Construction Commencement Date.
"Development Period Work" means everything required to be furnished and done for
and related to the Project by the Company pursuant to the Draft Service Contract
during the Development Period.
"EIS" means an Environmental Impact Statement as required under Hawaii State
regulations (Hawai'i Revised Statutes 342).
"Evaluation Committee" means the committee formed by the County Director of Finance
that is responsible for evaluating Stage 2 Proposals.
"Final Completion" has the meaning set forth in [Article X of the Draft Service
Contract] and includes the requirements set forth in [Article X of the Draft Service
Contract.]
"Fixed Construction Price" means the amount to be proposed by the Proposer on
Proposal Form 16 as compensation for the Construction Period Work.
"Fixed Design-Build Price" means the amount to be proposed by the Proposer on
Proposal Form 16 that includes: 1) the Fixed Development Fee and the Fixed
Construction Price; and 2) Fixed Design-Build Price Adjustments.
"Fixed Design-Build Price Adjustments" means the amounts the Fixed Design-Build
Price is to be adjusted in accordance with [Article X of the Draft Service Contract].
"Fixed Development Fee" means the amount to be proposed by the Proposer on
Proposal Form 16 as compensation for completion of Development Period Work.
"Guarantor" means the entity that will guarantee all of the obligations of the Company
under the Draft Service Contract.
"Guaranty Agreement" or "Guaranty" is the agreement, entered into concurrently with
the Draft Service Contract, pursuant to which the Guarantor guarantees all of the
obligations of the Company.
'°trr.'
County of Hawaii 5 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Builtl-Operate Project
"Non-Processible Waste" has the meaning specified in [Article X of the Draft Service
Contract].
"Notice to Proceed" has the meaning set forth in [Article X of the Draft Service
Contract].
"Operating Period" means the period from and including the Acceptance Date to the last
day of the contract term.
"Operation and Maintenance Manual" or "O&M Manual" has the meaning set forth in
[Article X of the Draft Service Contract] and is further explained in Appendix 8.
"Processible Waste" has the meaning specified in [Article X of the Draft Service
Contract].
"Project Site" means the real property designated for the Project, located in Hawaii
County adjacent to the South Hilo Landfill site and any other off-site areas used on a
temporary basis by the Company during construction and defined by the limits of
Construction Work and any interconnecting roads and temporary storage stockpile
and worker parking areas, as more particularly described in [Article X of the Draft
Service Contract].
"Proposal" means the document submitted in response to this Stage 2 RFP detailing the
Proposer's plan to permit, design, construct, acceptance test, and operate the 4 - , ,
i Project.
"Proposal Submittal Date" means the date and time on which the Proposal is required to
be submitted to the County by the Proposer, as stated in Section 7.3.1.
"Proposed Milestone Payment Schedule" means the Maximum Drawdown Schedule
that includes milestones and proposed completion dates for key elements of Project
development and construction as completed by Proposers in Forms 19A and 196.
"Proposer" means the entity (including any corporation, joint venture, partnership,
subconsultants, subcontractors and other business entities) short-listed subsequent
to the Stage 1 Proposal evaluation and submitting a Proposal in response to this
Stage 2 RFP.
"Reload Building" means the facility currently part of the planned Reload Facility that will
be used to screen, separate, and transfer waste into containers for shipment to a
landfill or any waste disposal /reduction facility, prior to startup of the Waste
Reduction Facility. Subsequent to commercial operation of the Waste Reduction
Facility, the Reload Building will be used, based on Company Proposals, to screen,
separate and, if necessary, is able to transfer waste.
"Reload Facility" means the County facilities currently under construction at the South
Hilo Landfill Site (also called the East Hawaii Regional Sort Station) which will
j-^'k,
County of HawaPi 6 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design•BUild-Operate Project
include the Reload Scale Facility, the Reload Building, and associated roads, fencing
and drainage features.
"Reload Scale Facility" means the County operated scales and scalehouse that are
currently under construction, associated with the Reload Facility, and that will be
operated by County staff throughout the Contract Period.
"Residue" has the meaning specified in [Article X of the Draft Service Contract].
"Selected Proposer" means the Proposer selected to enter into negotiations pursuant to
Hawaii Revised Statutes 103D-303.
"Service Fee" means the fee paid to the Company by the County for providing services
during the Operating Period as defined in this Stage 2 RFP and the Draft Service
Contract.
"South Hilo Landfill° means the sanitary landfill currently operating in Hilo, HI under
Operating Permit No. SW-311286 issued by the State of Hawaii. Due to recent
permit modifications, this Permit No. may change in the near future.
"Stage 1 RFP" or "Request for Stage 1 Proposals" means the document and
amendments thereto, issued by the County, soliciting qualifications and other
information for the Project.
~`r..~ "Stage 2 RFP" or "Request for Stage 2 Proposals" means this document which sets
forth the requirements for Stage 2 Proposals.
"State" means the State of Hawaii.
"Substantial Completion" has the meaning specified in [Article X of the Draft Service
Contract].
"Uncontrollable Circumstances" has the meaning set forth in [Article X of the Draft
Service Contract].
"Update to the Integrated Solid Waste Management Plan" or "ISWMP" means the
addendum to the Integrated Solid Waste Management Plan for Hawaii County as
required by Hawaii Revised Statutes 342G. Published on December 31St, 2002, this
most recent version focuses primarily on the establishment of a solid waste
management system in East Hawaii to replace the South Hilo Landfill.
"Waste Reduction Facility" means the solid waste facility to be permitted, designed,
constructed and operated by the Selected Proposer, if awarded the Service Contract,
that is subject to the Performance Guarantees and Acceptance Testing, or that are
essential for the operation of those facilities subject to the Acceptance Test.
"Waste Reduction Facility Design-Build-Operate Project" or "Project" means all work
and services included within the scope of the Service Contract.
4w..
County of Hawaii 7 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
~ 1.5 ORGANIZATION OF THIS STAGE Y RFP
This Volume I of the Stage 2 RFP is organized into eight sections as follows:
¦ Section 1, Introduction provides an overview of the contents and purposes of
the Stage 2 RFP and outlines the County's objectives and commitment.
¦ Section 2, General Background Information describes Hawai'i's solid waste
system, its disposal strategies, and the characteristics of its waste stream.
• Section 3, Overview of Expected Facilities and Services outlines the site and
surrounding areas for the Waste Reduction Facility. It also describes specific
parameters related to design, construction, commissioning, acceptance testing,
operation and permitting of the Waste Reduction Facility.
Section 4, Draft Service Contract Terms and Conditions describes the
purpose and scope of the Draft Service Contract, requirements for the Draft
Service Contract and the process for proposing changes to the Draft Service
Contract.
¦ Section 5, Technical Requirements describes the general technical
requirements of the WRF and any other Facilities.
Section 6, Procurement Process describes the overall procurement process for
the Project, including summary discussion of how Stage 2 Proposals will be (^~"`"i
evaluated and selected.
Section 7, Stage 2 Proposal Submittal Requirements describes the specific
submittal requirements for the Stage 2 RFP as well as the criteria that will be
used to evaluate and rank Stage 2 Proposals.
Section 8, Stage 2 Proposal Submittal Forms
'I.F) COUNTY ADVISORS
The County has contracted with the environmental management consulting firm, R. W.
Beck Inc. and the legal firm of Hawkins Delafield & Wood LLP to assist with the
development of procurement documents, evaluation of Proposals, negotiations, and
Project implementation. Both firms are nationally recognized for their expertise in
assisting clients with developing alternative project delivery methods, including the
designing, building, and operating of waste reduction facilities employing the types of
technologies identified for this Project.
'I.7 CONFIDENTIALITY
All Stage 1 and Stage 2 Proposals received in response to the procurement documents
will become the property of the County and will not be returned. It is the County's intent,
to the extent permitted by law, to keep all Stage 1 and Stage 2 Proposals confidential
until execution of the Service Contract.
County of HawaPi 8 Juty 3, 2006 ~
Waste Retluction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
~ The County acknowledges that some information provided by Proposers may be
considered proprietary, confidential, and / or exempt from disclosure. If a Proposer
believes that portions of its Stage 2 Proposal are proprietary, confidential, or exempt
from disclosure to third parties, the Proposer must clearly label the specific portions
sought to be kept confidential and specify the exemption that the Proposer is relying
upon. Marking all or substantially all of a response as confidential may result in the
Stage 2 Proposal being considered non-responsive by the County. In the event that the
County receives a request for public records to which part or all of a Proposer's
response is responsive, the County will promptly provide the Proposer notice of the
request and an opportunity to seek at its own expense a protective order to preserve the
confidentiality of the requested materials.
Notwithstanding the foregoing, Proposers shall recognize and agree that the County will
not be responsible or liable in any way for any losses that a Proposer may suffer from
the disclosure of information or materials to third parties.
For other details on Confidentiality see the Communications Protocol in Attachment C.
'I.8 INQUIRIES AND CORRESPONDENCE
Any inquiries regarding this Stage 2 RFP, the overall Design-Build-Operate
Procurement process, or Project requirements shall be directed in writing to Bill Takaba
via the contact information provided below and in full compliance with the
Communications Protocol presented in Attachment C. The County requires contact
t~``~~` with the County to come, in writing, via the lead firm. Proposers should note that the
County will provide responses to questions, in writing, to all potential Proposers.
Bill Takaba
County of Hawaii
Department of Finance
25 Aupuni Street Room 118
Hilo, Hawaii 96720
Phone: 808-961-8234
Fax: 808-961-8248
E-Mail: wtakabaCcDco.Hawai'i.hi.us
County of Hawaii 9 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
Section 2 -General Background Information
2.1 INTRODUCTION
Solid waste management in Hawaii County is the responsibility of the Hawaii County
Solid Waste Division, which owns 21 drop-off style transfer stations and two active
landfills. According to the Integrated Solid Waste Management Plan, approximately
50% of the residential and commercial waste generated (mostly from areas with more
dense residential development) on the island is collected by private companies which
deliver waste directly to the landfills. Residential waste collection is not mandatory;
commercial collection is arranged directly by individual businesses. Self-haul
household waste can be transported to the landfill or to one of the 21 transfer stations,
which serve areas that are sparsely populated and do not receive waste collection
service. Also, approximately 86% of all single family households use the transfer
stations for disposal.
The County encourages public recycling through public education efforts and diversion
grants to companies that deliver certain recyclable materials to an end user. The
County is beginning plans to develop the East Hawaii Regional Sort Station (Reload
Facility), as described in Section 2.3.1 below.
All waste generated within the County is eventually delivered to the landfills, except for
material that is diverted by recycling.
~ The South Hilo Landfill, which serves the eastern portion of the County, is approaching
capacity. The County application to the State Department of Health (DOH) to increase
the slope of the landfill in order to extend its life will result in several more years of
capacity at the landfill. At the time that South Hilo Landfill reaches capacity, the County
will implement, if necessary, an interim waste disposal plan until- the Waste Reduction
Facility (WRF) described in this Stage 2 RFP is operational.
2.2 WASTE STREAM CHARACTERISTICS
2.2.1 CURRENT AND EXPECTED FUTURE WASTE GENERATION
In 2005 South Hilo Landfill received approximately 84,000 tons of municipal solid waste.
Historically about 49% comes from nine transfer stations, 37% comes from commercial
hauling companies, and 14% comes from self-haulers. In addition, waste generation on
the east side of the island is projected to increase at a rate of about two percent per
year and the County will consider diverting waste from other transfer stations to the
WRF as well. Table 2-1 below contains a summary of current (2005) solid waste
quantities delivered to South Hilo Landfill.
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- County of Hawaii 10 July 3, 20D6
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
Table 2-1: Current Solid Waste Quantities
From Transfer Commercial Total
Stations Hauling (tons)
tons tons
Avera a Da 110.84 117.43 228.27
Average Day /Peak 114.48 138.14 252.61
Month Au ust
Peak Da Au ust 7 132.26 220.17 352.43
Minimum Day (March 84.87 24.75 109.62
27
Average Day =Yearly Total / 365
t~1 Average Day /Peak Month =Peak Month Tonnage / Number of Days in Peak Month
tat Peak Day =highest tonnage day for 2005 (one outlier day was ignored)
tot Minimum Day =lowest tonnage day for 2005
Table 2-2 shows the results of a characterization study of waste delivered to the South
Hilo Landfill that was conducted in April and May of 2001 by Cascadia Consulting Group
Inc. This document is available for review as described in Section 2.6 below.
Proposers are strongly encouraged to review the entire characterization study in order
to determine the suitability of their proposed technology to this waste stream.
Table 2-2: South Hilo Waste Com osition
• ~ . .
Pa er 15 724 23.5
Cardboard 5,556 8.3 % ("""R,
Bas 313 0.5
News a er 1,673 2.5
White Led er 687 1.0
Colored Led er 76 0.1
Com uter 27 0.0
Office 653 1.0
Ma azines 852 1.3
Directories 61 0.1
Miscellaneous 2,060 3.1
R/C Pa er 3,768 5.6
Glass 1,985 3.0
Clear Containers 747 1.1
Green Containers 570 0.9
Brown Containers 522 0.8
Other Containers 12 0.0
Flat Glass 52 0.1
Other Glass 82 0.1
Metal 5,888 8.T
Tin Cans 613 0.9
White Goods 611 0.9
Ferrous 2,702 4.0
Aluminum Cans 286 0.4
Nonferrous 216 0.3
Other Metal 1,459 2.2
Plastic 5,677 8.4 °1°
#2 Containers 337 0.5 % (ice
' County of HawaPi 11 July 3, 20D6
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
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r.-.
#1 Containers 411 0.6
Other Containers 215 0.3
Film 1,842 2.7
Durable 1,161 1.7
Other Plastic 1,712 2.6
Or anics 20 351 30.4
Food 10,402 15.5
Leaves and Grass 1,119 1.7
Prunin s 2,502 3.7
Stum s 0 0.0
Cro Residue 0 0.0
Manure 0 0.0
Textiles 1,456 2.2
Other Or anic 4,872 7.3
Construction and Demolition 12,143 18.1
Treated Lumber 2,153 3.2
Concrete 710 1.1
As halt Pavin 944 1.4
As halt Roofin 182 0.3
Clean Lumber 5,956 8.9
G sum Board 291 0.4
Rocks and Soil 138 0.2
Other C&D Debris 1,769 2.6
Household Hazardous 221 0.3
Paint 38 0.1
Vehicle Fluids 22 0.0
Oil 0 0.0
Batteries 77 0.1
Other Hazardous 84 0.1
S ecial 4176 6.4
Ash 14 0.0
Sawa a Slud a 146 0.2
Industrial Slud a 1,414 2.1
Treated Medical 137 0.2
Bulk Items 1,713 2.6
Tires 809 1.2
Other S ecial 88 0.1
Mixed 860 1.3
Mixed Residue 860 1.3
Total 67 025 100
2.2.2 REFERENCE FUEL
The County expects that the waste delivered to the Waste Reduction Facility will have
Higher Heating Values between 3800 and 7000 BTU/pound. Proposers are to assume
a reference Higher Heating Value of 4800 BTU/pound for the purposes of their
Proposals.
County of Hawaii 12 July 3, 2006
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Design-Build-Operate Project
~ ~
2.2.3 ANTICIPATED FUTURE WASTE DIVERSION ACTNITIES
The County intends to continue recycling and diversion efforts as outlined in the Update
to the Integrated Solid Waste Management Plan. The County may implement additional
programs to increase recycling and waste diversion.
All solid waste not recycled or diverted shall be made available to the Company for
processing.
2.2.4 WASTE DELIVERY COMMITMENT
As set forth in Section 2.2.1 of this Volume I, the County received approximately 84,000
tons of waste at the South Hilo Landfill in 2005. It is the County's intent to cause all
waste which is more practicably disposed of at the Facility rather than the West Hawaii
Landfill, except for waste which is separated or recovered for recycling or another
beneficial use, to be disposed of at the Facility. The County will commit to deliver or
cause to be delivered X tons of Processible Waste to the Facility in each year of the
Term, the County will pay the Company shortfall damages equal to the product of (i) the
average energy revenue per ton that the Company was entitled to for such year (if any),
multiplied by (ii) the number of tons of Processible Waste below X which the County
failed to deliver in such year. The County intends to utilize legal and/or economic flow
control measures to ensure that it meets its waste delivery commitment.
2.3 PROJECT SITE AND SURROUNDING AREAS
The Waste Reduction Facility (WRF) will be located adjacent to the South Hilo Landfill ~'-m,
site. The specific property is identified by tax map key numbers (TMKs) 2-1-013: parcel
167. Figure 1, Attachment A shows the general site area including the general
location of the Reload Facility /Waste Reduction Facility Site. [Exact Location of the
Waste Reduction Facility will be defined based on the selected Proposal]. The
County is currently in the process of acquiring the site and is awaiting an executive
order to transfer ownership of the site from the State to the County.
2.3.1 SHORT-TERM DEVELOPMENT
The County intends to develop a Reload Facility on the Project Site. Included in the
Reload Facility will be site roads, inbound and outbound scales, a Scalehouse, a
Reload Building Office, surface water and wastewater management features, and the
Reload Building. The Reload Building will include a public drop-off area, a commercial
drop-off area, a load out area, a 20,000 square foot tipping floor, staff facilities, and staff
and fleet parking areas.
The Reload Facility will act as a central hub for the consolidation and transfer of
residential, commercial, and business waste from all areas of South and East Hawaii.
The Reload Facility will be the destination of all waste that is now disposed at the South
Hilo landfill (and potentially some waste from centrally located transfer stations currently
directed to the West Hawaii Landfill) minus any waste diverted due to expanded
recycling and reuse efforts by the County.
i
County of FiawaYi 13 Juy 3, 2006 ""d
Waste Retluction Facility Request Tor Stage 2 Proposals Vol. I
Design-Build-Operate Project
` The Reload Facility, once completed, will include water and sanitary (via absorption
bed) service to the Reload Building. It will also include communications, electricity and
lighting to the Reload Building, the Reload Building Office and Scalehouse.
It is the expectation of the County that the Reload Facility will be effectively incorporated
into the Company's design and Project approach. The Reload Facility design is
included in Attachment B.
In the areas surrounding the Reload Facility, several recycling and recovery approaches
are to be employed to reduce waste quantities. These approaches include areas for
residents to drop-off source-separated materials, a greenwaste processing area, and a
scrap metal processing site.
Z.$.2 LONG-TERM PLANNING
In the long-term, the County will continue to expand reduction and recovery in the areas
surrounding the Reload Facility. Included in the plan is the construction of a Public
Recycling Center as a convenient place for people to drop-off recyclable items on the
way to the Reload Building. Also planned is a commercial recycling processing area for
private recycling companies to clean and prepare recyclables for market. A Bottle Bill
redemption building, fats, oils and grease (FOGS) collection facility, household
hazardous waste (HHW) collection site, and a construction and demolition (C&D) debris
recovery yard are also in the long-term plans for the area. In addition to these new
( facilities, the County plans to replace the existing scrap metal yard and greenwaste
- recycling area with new areas that meet DOH requirements.
2.4 OTHER FACILITIES
In Hawaii County there are two municipal landfills currently in operation. Also the East
Hawaii Sort Station Complex (Reload Facility) is currently in the bidding phase for
construction. These facilities and their applicability to the Waste Reduction Facility
Project are described in this section.
2.4.1 SOUTH HILO LANDFILL
The South Hilo Landfill is owned and operated by the County and is located near Hilo
International Airport. It was established in the 1970's and is not built to current
standards. South Hilo Landfill was expected to reach its permitted capacity in March
2006, but the County was granted a permit by DOH for slope steepening at the landfill
to extend its life. The Waste Reduction Facility has been identified as the replacement
facility for the South Hilo Landfill. At the time that South Hilo Landfill reaches capacity,
the County will implement an interim waste disposal plan until the WRF is operational
2.4.2 WEST FIAWAI'I LANDFILL
West Hawaii Landfill is the primary disposal site for waste on the west side of the
island. It is a modern, lined landfill and meets the requirements of RCRA Subtitle D
regulations and is operated by County staff with management assistance from Waste
Management of Hawaii, Inc. The landfill has sufficient airspace to provide landfill
County of Hawaii 14 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-0perate Project
capacity to the west County region for the next 35 years. The West Hawaii Landfill is j..
the designated disposal site for all residue and other solid waste delivered to the Reload
Building tipping floor that is not processed, recycled, reused or otherwise removed from
the waste.
2.5 ENVIRONMENTAL INFORMATION
Environmental information for the Project is described in the Waste Reduction
Technology Facility EISPN which was published in the State Office of Environmental
Quality Control Bulletin on May 8, 2006.
2.6 REFERENCE DOCUMENTS AVAILABLE
There are multiple documents related to Solid Waste issues available for download and
review on the Department of Environmental Management website at:
http://www.Hawaii-countv.com/directoryldir envmng.htm
The following documents are of particular interest for this Project:
1. Hawaii County Update to the Integrated Solid Waste Management Plan,
December 31, 2002. The Plan describes future plans for solid waste
system in the County and gives general information about the County's
issues and priorities. The Plan includes the following Appendices of
( particular note with respect to this Project:
Appendix C: Waste Composition Study, Soufh Hilo Landfill, County of
Hawaii: The report of the Waste Composition Study includes
composition estimates for the overall waste stream and for the transfer
station, commercial, and self-haul wastes disposed at the South Hilo
landfill.
¦ Appendix F: Vendors of Waste Reduction Technologies: This is a list
(not exclusive) of vendors that have experience in the three waste
reduction technologies presented in the Plan (Anaerobic Digestion,
Thermal Gasification, and Waste-To-Energy Incineration).
The Integrated Solid Waste Management Plan and all of its appendices
can be viewed on the County website at:
http://www.Hawai'i-county.comlenv mnq/iswmp final update.htm
2. Plans and Specifications for the East Hawaii Regional Sort Station
(Reload Facility)
[these are enclosed, in electronic form, on the Compact Disk in
Attachment B].
3. EIS for the East Hawaii Regional Sort Station (Reload Facility)
This document can be found on the following website.
http:/Iwww.Hawai'i-countv.com/env mng/ehrss.htm ~'^4~
i
County of Hawari 15 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
4. EISPN for the Waste Reduction Facility
This document can be found on the following website.
http•//www Hawaii-countv.com/env mng/wrt-eispn.htm
2.7 RELIANCE ON COUNTY PROVIDED INFORMATION
For the purpose of this Stage 2 RFP, all documents provided by the County should be
used for informational purposes only. The County does not warrant the current
accuracy of these documents and Proposers are strongly encouraged to conduct
independent research to verify information contained in the documents.
County of Hawaii 16 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-0perate Project
,°w
Section 3 -Overview of Expected Facilities and
Services
3.1 INTRODUCTION TO SCOPE OF SERVICES
This section of the RFP provides a general description of the Project facilities and
services that will be provided by the Company. Proposers should refer to the
Performance Guarantees presented in Appendix 2 for a more detailed description of
the facilities and requirements.
$.Y SCOPE OF SERVICES
The Company will permit, design, construct, commission, acceptance test, operate, and
maintain a Waste Reduction Facility and all support facilities. The Company will also be
responsible for the loading and transfer of Non-Processible Waste, Bypass Waste and
Residue to the west side of the island for disposal at the West Hawaii Landfill.
The Project facilities include all new waste reduction facilities (as well as the associated
systems and facilities essential to operate and monitor them) that will be subject to the
Performance Guarantees (Appendix 2) and Acceptance Testing (Appendix 6). These
facilities include:
1. Waste Reduction Facility
2. Pre-processing Facilities (if any)
3. Systems and Equipment required to transfer waste to West Hawaii Landfill. This
may include hauling, loading, compacting equipment, scales and other
equipment proposed.
3.2.1 PERMITTING
The Company will be responsible for obtaining and complying with all permits necessary
to design, construct, commission, acceptance test, operate, and maintain the Waste
Reduction Facility. Proposers should be aware, however, that certain permits will be
held in the County's name as owner. In such cases, the Company will act as the
County's agent in obtaining the permits and shall still be responsible for complying with
them.
The number and type of permits will vary according to the specific design and operating
concepts proposed. Appendix 1 outlines the Company's responsibilities for applying
for and obtaining permits.
The County recognizes that activities necessary to secure permits prior to the Notice to
Proceed may be extensive. As the permit holder for the facilities associated with the
proposed Project, the County has an interest in the ability of the Company to
successfully obtain the necessary permits and to maintain efficient long-term business
County of Hawaii 17 July 3, 2006
Wasta Retluction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
relationships with permit agencies. Therefore, the County reserves the right to monitor,
and participate in, the permitting processes as necessary, to enhance the County's
interests. Specifically, the County has initiated and will continue to pursue the following
activities to facilitate the permitting process:
¦ The County will assist in providing available information that may be required by
permitting agencies to support permit applications. The County will attend permit
hearings and pre-application meetings at the request of the Company.
¦ The County will attempt to arrange for representatives of all regulatory agencies to
attend the Pre-Proposal conference and answer questions.
¦ The County will allow (and encourage) Proposers to meet with regulatory agencies
as they develop their technical approaches to ensure efficient permit acquisition
processes.
¦ The County may request input from regulatory agencies in reviewing Proposals.
The County's activities related to permitting shall in no way release the Company from
its obligation to obtain and comply with all permits necessary for the Project.
3.2.2 DESIGN AND CONSTRUCTION SERVICES
The Company shall be responsible for designing and constructing a Waste Reduction
Facility and all other associated infrastructure necessary to provide the services
described in this Stage 2 RFP while complying with the Pertormance Guarantees
( presented in Appendix 2 and Minimum Technical Requirements presented in I
Appendix 3.
Design and Construction Objectives
The design and construction objectives for the Waste Reduction Facility are to assure:
¦ Optimization of present and future waste reduction processes
¦ Minimization of design and construction costs
¦ Sound design and quality construction for long-term operational reliability
¦ Minimization and mitigation of environmental impacts
¦ A project schedule that achieves project efficiencies and quality
¦ Attention to quality to ensure prudent, long-term use of resources.
Facility Sizing
Based on expected population and economic growth, historical deliveries to the South
Hilo Landfill, and planned increases in waste diversion and recovery, the County
estimates that the facility will need to be designed to receive a sustained average
tonnage of 200 tons per day of Processible Waste.
j i~
County of HawaPi 18 July 3, 2006
Waste Retluction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
``r Project Quality Standards
In order to meet its quality objectives for the Project, the County expects:
Design and construction services that are consistent with the Service Contract and
result in a facility that meets all Performance Guarantees;
Durable, dependable and high-quality materials, equipment and installation that are
compatible with and proven inwaste-to-energy applications;
Emphasis on the use of natural lighting and the maximization on worker productivity in
design; and
Company provided systems to ensure that problems are discovered early, corrected
adequately and do not recur.
Therefore the facility shall be designed and constructed in accordance with good
engineering practice. All equipment and materials shall be new and unused. All facility
equipment shall be of utility grade where utility grade is defined to be of heavy-duty
construction, of a quality suitable and commonly used for high-availability, long-term
service in utility applications.
3.2.3 OPERATION AND MAINTENANCE SERVICES
The Company shall be responsible for operating and maintaining a Waste Reduction
l~'~ Facility and all other associated infrastructure necessary to provide the services
described in this Stage 2 RFP for along-term (up to 25 year) period while complying
with the Performance Guarantees presented in Appendix 2. Specific maintenance and
repair requirements are outlined in Appendix 17.
3.2.4 OTHER SERVICES
Project Financing and Ownership
Proposers are required to submit a Proposal that anticipates County financing and
ownership of the WRF (the "Base Proposal"). Benefits of such a structure for the county
potentially include lower financing rates, certainty that the financing will occur in a timely
manner, ownership of the "residual" value of the WRF following expiration of the Service
Contract, more flexibility with respect to the WRF Site following expiration of the Service
Contract, potentially lower transaction costs, and more contractual flexibility.
Proposers are encouraged to provide a separate approach that reflects Company
responsibility for financing and owning the WRF. This Private Financing Approach must
clearly state in the Proposal:
1. the advantages to the County associated with such a Proposal,
2. any changes in the risk posture and terms and conditions reflected in the Draft
Service Contract,
County of Hawaii 19 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build•Operate Project
( 3. any additional requirements of the County including, but not limited to, waste {
delivery commitments, site lease requirements, tipping fee requirements, and
other matters,
4. what assurances the County wil{ have that the financing will occur in a timely
manner,
5. the rights of the County in the event of a bankruptcy of the Company,
6. the rights of third party lenders,
7. the Capital Recovery component of the Service Fee, and
8. the County's purchase price of the WRF at the end of the Term of the Service
Contract.
The County Council passed Resolution 288-06 on April 5, 2006 which provided that,
should it be determined that a Proposal which includes County financing and ownership
is the most advantageous Proposal for the County, the County would provide the
necessary financing.
If the County elects to use the Private Financing Approach, the County will require that
the Company executes unconditional guarantees for the timing and the terms of the
financing. 1
( Where necessary, Proposers may duplicate proposal forms to demonstrate differences
between the Base Proposal and the Private Financing Approach.
Environmental Impact Statement Process Support
The Final EISPN for the Project was published in the State Office of Environmental
Quality Control Bulletin on May 8, 2006 and is available for review as described in
Section 2.6. Publication of the document initiated the public comment period that
ended June 7, 2006. Individual copies were also made available to all interested parties
and the second EISPN Public Meeting was held on May 17, 2006 in Hilo.
The Draft EIS (DEIS) process will begin after the County has determined the best
alternative, or combination of alternatives, and has received qualified bids to design,
build and operate the WRF under contract to the County.
The DEIS will include a summary of the issues raised during the EISPN comments
period and at meetings, analysis of the environmental impacts of the proposed Project,
any Alternatives that are advanced, and the No Action Alternative. The public will have
a 45-day period to review the DEIS and provide comments. A public meeting will also
be conducted during this period to solicit further comments.
Upon completion of the 45-day review period, Hawaii County DEM will review and
respond to the comments received on the DEIS. The Final EIS (FEIS) will incorporate
County of Hawaii 20 July 3, 2006 1
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design•&idd-Operate Pmject
~ these comments, and include copies of the comments and responses. The Final EIS
will also include the decision on which alternative is selected for implementation.
Finally, the Office of the Mayor, in consultation with the State Office of Environmental
Quality Control, will decide whether the FEIS meets the EIS requirements of the State of
Hawai' i.
The Company shall provide support of the EIS process by furnishing technical or
operational information, advice and expertise as requested by the County.
Marketing, Sale and Distribution of Recovered Materials and other Beneficial
Byproducts
The County encourages the Company to maximize the recovery of materials that result
from the operation of the Waste Reduction Facility. The Company shall be responsible
for the marketing, sale and distribution of these recovered materials. All revenues
generated from the sale of recovered materials and other beneficial byproducts (except
electricity, as discussed below) shall be kept by the Company.
Residue, Bypass Processible and Non-Processible Waste Transportation and
Disposal
The County will be responsible for providing a disposal site for Bypass Processible
Waste, excess waste, Non-Processible Waste, and residue. This site is expected to be
the West Hawaii Landfill approximately 80 miles away.
lie„.- The Company will be responsible for providing trailers equipped to travel to the West
Hawaill Landfill, the transfer of Residue, bypass, excess, and Non-Processible Wastes
into the trailers, and the transportation of such trailers to West Hawaii Landfill.
Electrical Power Generation and Sale
It is the intent of the County to reach an agreement (or to require the Company to reach
an agreement) with HELCO for the sale of the electrical energy produced at the Waste
Reduction Facility. The County has had preliminary discussions with HELCO regarding
the acceptance of, and payment for, energy generated by the WRF and delivered by the
Company. Proposers will be kept informed of the progress of the discussions and
negotiations with HELCO.
Revenues from the HELCO contract for energy up to and including the Guaranteed Net
Power Production will be shared 90% (County), 10% (Company). For energy produced
over the Guaranteed Net Power Production, revenues will be shared 50% (County),
50% (Company). At this time revenues are expected to be between 7 and 10 cents per
kWh, excluding avoided costs.
.e.
"ir.r
- County of Hawaii 21 Juty 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals V°I. I
Design-Build-Operate Project
Section 4 -Draft Service Contract Terms and
Conditions
4.1 PURPOSE AND SCOPE
The information contained in Volumes II and III of this RFP ("Draft Service Contract and
Appendices') constitutes the County's anticipated requirements for permitting,
designing, constructing, and operating and maintaining the Waste Reduction Facility.
Proposals must fully describe the Proposer's plan to meet these requirements and
demonstrate that the Proposer possesses the resources to provide the facilities and
services called for in the Draft Service Contract and Appendices.
Certain Appendices in Volume III will require Proposal-specific information to properly
complete the particular Appendix. Proposers should be aware that, if selected,
information submitted in their Proposal will be included in the Appendices to the Service
Contract. Proposal-specific information that may become part of the Service Contract
and Appendices includes, but is not limited to:
Drawings and specifications
• Construction Requirements
/ Transition and Acceptance Testing Protocols
- Critical Path Method Schedule
¦ Key Personnel
¦ Equipment Lists
¦ Draft Project Quality Management Plan
The Service Contract will also incorporate other information from the Selected
Proposer's Proposal including information from Proposal Forms.
4.2 SERVICE CONTRACT REQUIREMENTS
The Draft Service Contract and Appendices constitute the risk allocation,
responsibilities, and obligations sought by the County. While, in general, a Proposer
may suggest modifications to the Draft Service Contract (as set forth in Section 4.8 of
Volume I of this Stage 2 RFP) and may base its pricing on the contract as if it included
the modifications the Proposer made in its Proposal the provisions identified in
Sections 4.2.1 and 4.2.2 below of the Draft Service Contract will be mandatory.
Proposers that take material exceptions to these provisions will not be considered
responsive.
County of Hawaii 23 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
4.2.1 PROJECT GUARANTOR
Firms short-listed by the County have identified their Guarantor in the Stage 1 Proposal.
The Guarantor shall guarantee all of the obligations required for permitting, designing,
constructing, commissioning, acceptance testing, operating, and maintaining, and
providing required assurances for the Project.
4.2.2 ~IMITATIDN$ ON LIABILITY
The [Draft Service Contract, in Article X], sets a limit on liability related to the
payment of termination damages in the amount of 100 percent of the Fixed Design-
Build Price until two years following Acceptance, and 200 percent of the annual Service
Fee thereafter and the following shall not reduce the termination liability limit:
Any design or construction overruns or losses sustained by the Company, the
Guarantor, or any other party in connection with the Service Contract, the
Guaranty Agreement, or any other agreement relating to the Project;
Any claims, losses, and liabilities to third parties;
¦ Any fines, penalties, or other amounts paid to any Governmental Body;
Any indemnity payments made to the County; and
¦ Any liquidated damages or other non-performance damages paid to the County
or incurred prior to the date of termination. ~
This limit on termination damages is a mandatory requirement of the Project. Proposals
that incorporate reductions in the limit or other material changes to [Article X of the
Draft Service Contract] will be considered non-responsive to this RFP.
Proposers should note that the limitation on termination damages provided herein is not
intended to be a liquidated damage that the Selected Proposer would be required to pay
in the event of a termination by the County due to a Company Event of Default. This
limitation on termination damages provision is intended to benefit the Company by
placing an artificial cap on the amount of damages that a judge presiding over a
termination claim could award to the County. Proposers should further note the
County's waiver of consequential, punitive and similar damages, set forth in [Article X
of the Draft Service Contract.]
4.3 PERIODS OF WORK AND KEY MILESTONES
The Draft Service Contract defines three principal periods of time: the Development
Period; the Construction Period including passing the Acceptance Test; and the
Operating Period. Obligations of the Selected Proposer, with whom the County
negotiates a contract, and the County are different in each of these periods of time.
County of HawaPi 24 July 3, 2006
Waste Reduction Facility Repuest for Stage 2 Proposals Vol. I
Design-Build-Operate Project
4.3.1 DEVELOPMENT PERIOD (CONTRACT DATE TO CONSTRUCTION COMMENCEMENT DATE
The execution of the Service Contract (i.e., "Contract Date") between the Company and
the County is anticipated to occur by [March 2007]. Between the Contract Date and the
Construction Commencement Date, both the Company and the County will pertorm
activities in order to satisfy the Construction Commencement Date Conditions set forth
in [Article X of the Draft Service Contract.] Work by the Contractor during this period
is referred to as Development Period Work. The Development Period closes once all
Construction Commencement Date Conditions by the County and the Contractor are
completed or waived by the County. The County will formalize satisfaction or waiver of
all Development Period Conditions by both parties through issuance of a Notice to
Proceed.
The County will pay the Company during the Development Period, tied to the
completion of major milestones related to permitting and design. The sum of such
payments will not exceed the amount specified in the Draft Service Contract, consistent
with the County's intent to limit the County's risk until permits necessary to initiate
construction are in hand.
Two significant Development Period obligations are obtaining environmental permits
and approvals (Company) and obtaining financing for construction (County or Company,
as applicable). The Draft Service Contract incorporates the concept of a Development
Period in order to reduce the risk of paying for certain construction-related work (i.e.,
pre-purchase of equipment or construction mobilization) prior to having certain critical
permits and approvals in place.
Construction cannot begin until all obligations of both parties have been met and
verified (or waived), and the Development Period has been closed.
4.3.2 CONSTRUCTION PERIOD (CONSTRUCTION COMMENCEMENT DATE TO ACCEPTANCE DATE
The Construction Period will commence on the Construction Commencement Date and
end on the Acceptance Date. The Construction Period incorporates design and
construction to substantial completion, commissioning and startup, and satisfactory
completion of the Acceptance Test.
Acceptance will occur once the Selected Proposer, if awarded the Service Contract, has
successfully completed the Acceptance Tests and documented compliance with the
Performance Guarantees as set forth in Appendix 2, and once the Selected Proposer
has attained certain other conditions contained in the Draft Service Contract.
4.3.3 OPERATIONS PERIOD (ACCEPTANCE DATE TO END OF THE CONTRACT)
The Operations Period will commence on the Acceptance Date and end on the last day
of the contract term. The Operations Period includes the on-going operation of the
WRF throughout the Contract Term.
~...a
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4.4 BUSINESS TERMS AND CONDITIONS ;
4.4.1 PAYMENT PROVISIONS
Payment for the WRF DBO Project will consist of two components: 1) a fixed price for
development, design and construction ("Fixed Design-Build Price") of the facility,
including acceptance testing; and 2) an annual Service Fee.
Payment for Development Period Work
Development Period Work is to be included in the Fixed Design-Build Price but is to be
identified as a separate Fixed Development Fee on Proposal Form 16. Consistent with
the terms of the Draft Service Contract, the County will pay for Development Period
Work on a milestone basis.
Proposers shall use Proposal Form 19B to indicate anot-to-exceed amount for
proposed major milestones associated with activities related to achieving the
Construction Commencement Date Conditions.
Payment for Construction Work
Construction work is to be included in the Fixed Design-Build Price but is to be identified
as a separate Fixed Construction Price. Consistent with the terms of the Draft Service
Contract, the County will pay for Construction Work on a milestone basis. Proposers
shall assign a minimum of 5 percent of the Fixed Design-Build Price to the successful
completion of the Acceptance Test. Retainage will be withheld by the County per the t
requirements of [Article X of the Draft Service Contract,]
For the purposes of developing Proposals, Proposers should note that, except for cost
components for steel and cement, their Fixed Design-Build Price shall be held firm (i.e.,
not subject to escalation) provided that Notice to Proceed is given on or before the
Scheduled Construction Commencement Date. If the Notice to Proceed extends
beyond that date due to County fault or Uncontrollable Circumstances, then the Fixed
Design-Build Price will escalate using the escalation index defined in Appendix 12 of
Volume III of this Stage 2 RFP. The Service Contract will provide for an adjustment
upward or downward to the Fixed Design-Build Price with respect to the portions of
such price that relate to cement and steel based upon the change in Producer Price
Index for such materials from the Proposal Date to the date of purchase, regardless of
whether the Notice to Proceed is given prior to the Scheduled Construction
Commencement Date.
Service Fee
The Service Fee will consist of several components:
¦ Base Fee Component. The intent of this component is to cover the costs of
processing up to [TO COME] tons of Processible Waste each year. This fee will
remain constant (except by escalation outlined in Appendix 12) regardless of
tonnages delivered. The Base Fee Component is a yearly sum that will be
divided into 12 monthly lump sum amounts. i~
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~ Incremental Fee Component. The intent of this component is to cover the
costs of processing waste above the [TO COME] tons per month established for
the Base Fee Component. The Incremental Fee Component is a cost per ton to
be paid monthly.
¦ Non-Processible Fee Component. The intent of this component is to cover the
cost of transport and disposal of all Non-Processible Waste. The Non-
Processible Fee Component is a cost per ton to be paid monthly.
Pass Through Costs. The intent of this component is to reimburse the
Company for certain reimbursable third-party costs.
Fee Adjustments. This will include adjustments due to escalation (based on an
index specified in Appendix 12), liquidated damages, extraordinary items, and
other adjustments.
Energy Credit. The intent is to compensate the Company for energy generation
and to include incentives to maximize production and efficiency. This will include
a share of the energy revenues (10% to the Company) up to and including the
Guaranteed Net Power Production, and a larger share of revenues (50%) for
energy produced over the Guaranteed Net Power Production. Proposers shall
include Guaranteed Net Power Production for their Proposal. These thresholds
shall be finalized based on Proposals and negotiations.
Liquidated Damages. The Company will be responsible for the payment of
liquidated damages in certain circumstances of non-performance as set forth in
the Draft Service Contract.
¦ Capital Recovery. In the event that Proposers submit a Private Financing
Approach and it is selected by the County, a Capital Recovery portion of the
Service Fee will be included. The Capital Recovery Component is the
Company's only vehicle to recover the Fixed Design-Build Cost of the Project
from Proposal Form 16. This is also the only vehicle for the Company's
recovery of their equity contribution and the cost of internal or external financing.
Proposers are to submit an example calculation that relates the Capital Recovery
Component of the Service Fee to their Fixed Construction Price so that
escalation indices outlined in Appendix 12 and applied to the Fixed Construction
Price can be reflected in the Capital Recovery Component.
4.4.2 SECURITY
Guarantor/Guaranty Agreement
Proposers must have a Project Guarantor to fulfill all the financial obligations required
for permitting, designing, constructing, and operating and maintaining the Waste
Reduction Facility. Respondents must demonstrate to the County that the Guarantor
has the capability and legal commitment to guarantee the financial obligation of the
respondent for the project. The Project Guarantor Commitment is attached to this
Stage 2 RFP as Proposal Form 7.
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If at any time after receipt of a Respondent's Statement of Qualifications, aMaterial
Decline in the Guarantor's Credit Standing exists or occurs, the Company shall be
required to provide the County with a Letter of Credit meeting the requirements of
[Article X of the Service Contract] upon request, or, alternatively, to provide such
other credit enhancement as may be determined by the County in its sole and absolute
discretion.
Construction Payment and Performance Bonds
The Construction Payment and Performance Bonds shall be issued by Sureties who are
admitted to transact surety insurance in the State of Hawaii. Each shall be in an
amount equal to the Fixed Construction Price. The Selected Proposer, if awarded the
Service Contract, will be required to provide and maintain the performance and payment
bonds through successful startup, commissioning, Acceptance, and Final Completion.
The Construction Pertormance and Payment Bonds are required as conditions
precedent to the Construction Date.
Letter of Credit
During the Operations Period, an irrevocable standby letter of credit will be required in
the amount of $2 Million. The bank providing the irrevocable letter of credit shall be a
domestic or foreign commercial bank whose long-term and short-term debt is rated
"Aa2" or higher by Moody's and "AA" or higher by Standard & Poor's, and if there is a
split rating, then the lower of the two shall apply. The bank shall be subject to the
approval of the County, which shall not unreasonably be withheld or delayed. In the
event that the bank no longer meets the above qualifications, the Contractor shall
replace the irrevocable letter of credit immediately with a comparable security
acceptable to the County.
Insurance
The Selected Proposer will be required to provide insurance satisfying the requirements
of Appendix 14. Insurance for the Construction Period is to be included in the
Proposer's Fixed Design-Build Price but costs are to be listed separately in Proposal
Form 16. Operating Period insurance will be apass-through cost except for increases
due to the Company's poor operating record.
4.4.3 OWNERSHIP AND FINANCING
Project ownership and financing are described in Sections 1.1.3 and 3.2.4.
4.5 PERFORMANCE GUARANTEES
This Stage 2 RFP specifies project requirements while allowing the Proposers flexibility
and creativity. The County desires to promote creativity and cost competitiveness in the
procurement process and, therefore, flexibility with respect to selection and
configuration of solid waste processing systems and overall facility design.
Nonetheless, the Proposal must include processes, systems, and facilities that meet the
Performance Guarantees of Appendix 2 of Volume III of this Stage 2 RFP.
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( 4.6 TERM
The initial term of the Service Contract will be for 20 years beginning on the Acceptance
Date.
4.7 ADDITIONAL CONTRACTUAL REQUIREMENTS
4.7.1 COUNTY OF HAWAI`IB USINESS LICENSE AND TAXES
After contract execution, the Company, at its sole expense, shall obtain and keep in
force.any and all necessary business licenses and permits. The Company shall also be
responsible for payment of all applicable business taxes.
4.7.2 SPECU\L PROGRAM f2EQUIREMENTS
Proposers should be aware that the County and State have several statutory,
regulatory, and administrative requirements and practices related to fair employment
(Chapter 378, HRS), Worker's Compensation (Chapter 386, HRS), and other
requirements.
The Company shall keep themselves fully informed of all laws, ordinances, codes, rules
and regulations, governmental general and development plans, setback limitations,
rights-of-way, and all changes thereto, which in any manner affect the contract and the
performance thereof, including but not limited to:
~(~,r,,, All Sections of the Hawaii County Charter and Hawaii County Code.
¦ Chapters 103 and 103D, HRS, as amended, relating to expenditure of public
money and procurement.
¦ Chapter 321, HRS, as amended, relating to Health Department.
¦ Chapter 376, HRS, as amended, relating to industrial safety.
• Chapter 378, HRS, as amended, relating to fair employment practices.
• Chapter 386, HRS, as amended, relating to worker's compensation.
The Company shall comply with all such present laws, ordinances, codes, rules and
regulations, including the giving of all notices necessary and incident to the proper and
lawful prosecution of the work, and all changes thereto. If any discrepancy or
inconsistency is discovered between the Contract and any such law, ordinance, code,
rule or regulation, the Company shall report it in writing to Bill Takaba (County Contact
for this Project) immediately (See Section 1.8).
4.7.3 VENUE FOR LITIGATION
The Proposer agrees, by submitting a Proposal under the Stage 2 RFP, that the County
of Hawaii shall be the venue of any arbitration or lawsuit arising out of this Stage 2
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~ RFP, and also any contract that may be awarded pursuant to the Stage 2 RFP. Hawaii ~
State law shall govern the resolution of any such disputes.
4.H PROCESS FOR PROPOSED CHANGES TO THE DRAFT SERVICE CONTRACT
If a Proposer believes that significant benefits to the County, such as improved quality
or better value, would result from a different allocation of risks, modifications to the
Project concept, or modifications to the language of the Draft Service Contract, the
Proposer may propose exceptions or modifications to the Draft Service Contract and
Appendices except with respect to the provisions discussed in Section 4.2 of Volume I
of this RFP. The County's preference for the submittal of the written comments is by
means of a neat, handwritten markup of the Draft Service Contract (including the
Appendices). Any comments that cannot be neatly marked on the Draft Service
Contract (including the Appendices), including any complete replacement paragraphs,
shall be included on separate typed sheets as riders.
Proposers are advised that the extent and nature of proposed changes will be
considered in the County's evaluation of Proposals. Substantial changes to the
business arrangement presented in the Draft Service Contract may result in less
favorable evaluations.
Notwithstanding the above, Proposers should generally note that certain technical
requirements stated in Appendix 3 are intended to illustrate the level of quality,
durability, or operability that the County wishes to achieve but are not necessarily
intended to be mandatory. Further guidance with respect to how Proposers should view t'
specific provisions of Appendix 3 and Proposer flexibility to propose alternative
language to achieve the County's objectives is included in various subsections of
Section 7.4 of Volume I of this RFP.
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~ Section 5 -Technical Requirements
$.'I GENERAL
The County expects several basic technical requirements to be met in the Proposals
and, ultimately, in the design of the WRF. The WRF must be compatible with the
County's current and planned recycling and diversion efforts, it must result in significant
waste volume reduction so as to minimize the amount of waste requiring trucking across
the island, and it must be configured to produce electric power. These requirements are
outlined more specifically below and in Appendices 2 and 3.
The anticipated movement of waste through the facility is shown in the process diagram
below. This diagram is only for reference, the Proposers are required to submit their
own Process Diagram as a part of their Proposals (See Section 7.4.3).
Pu'uanahulu Landfill Goln~ary
Respovie0tAtty
OoW11Y
a m ~ ResponslNiky
aY a
w~ ~ y
c ~
Acce~teMe
MSW Waste
iu
a
ar m
W
Rec3rclabie MELGO
Markets-
5.2 SITE AND FJTILITIES
The Project Site is described in Section 2.3 and will include the Reload Facility and the
WRF. The Company will operate both the Reload Building and the WRF in conjunction
with the Reload Scale Facility and will use the on-site roads and utilities.
5.3 SERVICES
The Company will be responsible for permitting, designing, constructing, commissioning
and acceptance testing, and operating and maintaining the WRF and required support
facilities for an initial operating period of 20 years. The Company will be responsible for
all waste delivered to the WRF by County staff. This will include, but may not be limited
to, screening for Non-Processible Waste, marketing and recycling any recovered
e„~
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recyclable materials, processing Processible Waste and delivering any non-marketable j ^
residues to the West Hawaii Landfill for disposal.
5.4 OVERALL PROJECT OBJECTIVES
The Project Objectives are outlined in Appendix 3 and include:
¦ Minimizing the quantity of waste requiring landfilling,
¦ Minimizing Life-Cycle Costs, and
¦ Maximizing the Quality and Service Life of the WRF
AESTHETIC AND ARCHITECTURAL CONCEPTS
The WRF will be visually pleasing to the public yet capable of blending into the
surrounding terrain and natural setting. Clean function and attractive lines shall be
presented to those passing by, arriving to and viewing the facility. The WRF should
also utilize consistent architectural and aesthetic concepts as those used in the Reload
Facility to ensure consistency and achieve pleasing contextual characteristics.
5.6 TECHNICAL DATA TO BE SUBMITTED
The Technical Data to be submitted with the Proposal is outlined in Section 7 and
includes limits of construction, various site plans, a conceptual drainage plan, building
system schematic drawings, and other facility drawings and diagrams. Data related to
Performance Guarantees will also be required to complete the Appendices to the
Service Contract (Volume III).
<
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r ~ Section 6 -PROCUREMENT PROCESS
G.1 PROCUREMENT PROCESS SCHEDULE AND PROJECT IMPLEMENTATION
The County of Hawaii is undertaking this procurement process under the authority
granted in Hawaii Revised Statutes (HRS) 103D-303, Competitive Sealed Proposals.
An anticipated summary schedule of the upcoming major activities associated with this
procurement process is presented below.
Table 6-1: Procurement Schedule
,
August 25th, 2006 Issue Stage 2 RFP (Draft Service Contract to be
issued concurrently or shortly thereafter)
September X, 2006 Pre-Proposal Conference
September X, 2006 Final day of submission of Proposer questions
November X, 2006 Proposal Submittal Date
December 2006 Initial Evaluation of Proposals and possibly issue
Request for Clarification
Week of November X, 2006 Interviews
January X, 2006 Evaluation Committee Recommendation to County
Council
January X, 2006 Start Negotiations with Selected Proposer
March X, 2007 Negotiations complete
County Council Approval Followed by Execution
of Service Contract
The County of Hawaii reserves the right to modify any or all of the above dates.
6.2 COUNTY RIGHTS AND OPTIONS
The County reserves, holds without limitation, and may exercise, at its sole discretion,
the following rights and conditions with regard to this procurement process. By
responding to this Stage 2 RFP, Proposers acknowledge and consent to the following
County rights and conditions:
1. To terminate the procurement process or decide not to award a contract as a result
thereof by written notice to the Proposers for any reason whatsoever.
2. To waive any defect, technicality or any other minor informality or irregularity in any
Stage 1 RFP, in any Stage 2 RFP, or in any other response from Proposers.
~
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3. To make major changes or alterations to the schedule for any events associated ~
with this procurement process upon notice to the Proposers. Minor modifications '
may be made without notice to Proposers.
4. To eliminate any Proposer that submits an incomplete or inadequate response, or is
not responsive to the requirements of this Stage 2 RFP, or is otherwise deemed to
be unqualified during any stage of the procurement process.
5. To conduct clarification discussions, at any time, with one or more Proposers.
6. To amend the scope of services, at any time, to omit services therein or to include
services not currently contemplated therein.
7. Without prior notice, to supplement, amend or otherwise modify this Stage 2 RFP, or
otherwise request additional information.
8. In the event the County receives questions concerning the Stage 2 RFPs from
potential Proposers prior to the deadline for response, the County reserves the right
to provide such questions, and the County's responses, if any, to all potential
Proposers.
9. Neither the County, its Elected Officials, staff, agents, employees, representatives,
nor consultants will be liable for any claims or damages resulting from any aspect of
this procurement process.
10.To visit and examine any of the facilities referenced in the Stage 1 or Stage 2
Proposals and to observe and investigate the operations of such facilities, as well as
other facilities not referenced in the Stage 1 or Stage 2 Proposals.
11.To conduct investigations with respect to the qualifications and experience of each
Proposer and to request additional evidence to support any such information.
12. To take any action affecting the Stage 2 RFP process, or the Project that is
determined to be in the County's best interests.
13.To request Best and Final Offers
6.3 STAGE 2PRE-PROPOSAL CONFERENCE /SITE TOUR
The County will hold a Stage 2Pre-Proposal Conference and site tour on [September
X, 2006]. Attendance at the conference and site tour is not mandatory but is strongly
encouraged.
The schedule and meeting locations for the day are as follows:
Tour: 4:00 p.m.
Hilo Transfer Station Baseyard'
To get to the Hilo Transfer Station Baseyard, as you leave Airport road (Kalanikoa), tum left onto
Kaneolehua Avenue. At the first traffic signal, turn left to Leilani SUeet. Go to the end of Leilani Street
and follow the sign to the Transfer Station Baseyard.
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,ter, Stage 2 Pre -Proposal Conference: (3:00 p.m.
County Council Chamber
25 Aupuni Street
Hilo, Hawaii 96720
For a map, see Figure 1, Attachment A.
Questions may be submitted before, during and after at the conference in accordance
with Section 6.5 below. Relevant questions answered at the conference or site tour will
also be answered via addendum to the Stage 2 RFP.
After the conference and site tour, the County will accept written questions only. Written
questions must be received no later than [September X, 2006] to provide adequate
time for issuance of an addendum to respond to them.
6.4 INTERPRETATIONS, QUESTIONS, AND REQUESTS FOR CLARIFICATION
Any questions and clarification requests regarding the Stage 2 RFP, the overall Design-
Build-Operate Procurement Process, or Project requirements shall be directed to Bill
Takaba as outlined in Section 1.8.
Mr. Takaba is the official point of contact for the County of Hawaii for this procurement.
All communication between the Proposer and the County of Hawaii upon receipt of this
Stage 2 RFP shall be with Mr. Takaba. Any other communication will be considered
unofficial and non-binding on the County of Hawaii. Proposers may rely only on written
l~\'~'-~ statements issued by Mr. Takaba. Oral statements may not be relied on for any
purpose.
6.5 COMMUNICATION PROTOCOL
The County has established a Communication Protocol to assure that all interested
parties have equal access to information on the Project. In addition, the protocol is
intended to assure that all Proposals and related information regarding the selection
process are kept confidential. All Proposers shall comply with the Communications
Protocol included in Attachment C.
6.6 CONTACTS WITH REGULATORY AGENCIES
Proposers are encouraged to contact regulatory agencies for information and
clarifications during the Proposal development period. However, the County does not
warrant any information provided by the regulatory agencies or other third party
organizations or individuals.
6.7 USE OF PROPOSALS
Regardless of whether the County of Hawaii awards a contract, the County may use
the data, information, concepts, and ideas contained in any Proposal for the municipal
purposes of the County of Hawaii in any manner or combination it so elects, without
notice to or the consent of the Proposer(s). Such "municipal purposes" do not include
the publication, distribution, or sale of such Proposals to third parties not employed by
~
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~ or under contract to the County of Hawaii, except in connection with requests for {
Proposals to perform construction work or design, or consulting services on behalf of
the County of Hawaii. Notwithstanding the foregoing, the County of Hawaii agrees that
any use of such Proposal(s) by the County of Hawaii without the Proposer's verification
or adaptation for the specific purpose intended shall be at the sole risk of the County of
Hawaii.
6.8 ACCESS AND PROPOSER INVESTIGATIONS DURING STAGE 2 PROPOSAL
PREPARATION
The County of Hawaii recognizes that Proposers may need access to the Project Site
during the Proposal preparation period. ,Proposers may only access the site after
obtaining written authorization from the County of Hawaii. In order to receive
authorization for access, Proposers must contact Bill Takaba at least one week prior by
email or at the address noted within this Stage 2 RFP.
The County of Hawaii will have the right to be present during any Proposer site visits.
Proposers will be required to define the areas they wish to access and describe
methods to be implemented to limit the use to the requested area.
All available geotechnical information for the Project Site is included in Attachment B.
Proposers should use this information to prepare their Proposals. Proposers should be
aware that geologic conditions in Hawaii are unique. Proposers should review all
available geotechnical information and address specific geologic conditions at the site
C including lava tubes, volcanic issues and rock characteristics. Site investigations shall
be conducted after the Contract Date to determine any differences in the subsurface
characteristics from those presented in Attachment B and assumed by the Proposer.
The Selected Proposer will be given relief for these differences.
B.9 STAGE 2 PROPOSAL EVALUATION AND SELECTION
6.9.1 EVALUATION PROCESS OVERVIEW
In the evaluation of the Proposals the County will consider the information submitted in
response to the Stage 2 RFP with respect to the Proposal Evaluation Criteria set forth in
Section 6.9.2.
The Proposal Evaluation Committee ("Evaluation Committee") will evaluate the
responses to this Stage 2 RFP. Technical, legal, and financial consultants and others
may serve as advisors to the Evaluation Committee.
6.9.Z PROPOSAL EVALUATION CRITERIA
Proposals will be evaluated based on the Proposer's ability to meet the Performance
Guarantees of this Stage 2 RFP and the Draft Service Contract, including Appendices.
The County will compare all Proposals in developing its ranking of Proposals.
The County will re-evaluate technical, management, and financial qualifications and
experience provided in each Proposer's Stage 1 Proposal along with Stage 2 Proposals
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and incorporate this re-evaluation into its ranking of Stage 2 Proposals. In this
consideration of qualifications and experience, the County will pay particular attention to
how well the qualifications and experience support the Proposer's ability to deliver the
specific Project concepts and approach that they propose.
This re-evaluation will allow for changes in teams to be considered in the selection
process. Proposers are reminded that any substitution of a significant team member
(firm or individual) from those described in the Stage 1 Proposal requires approval by
the County and completion of Proposal Submittal Form 5 from the Stage 1 RFP.
However, County approval is not required for strengthening of teams by adding
personnel or subcontractors prior to submitting a Stage 2 Proposal.
The County and the Evaluation Committee reserve the right to conduct an independent
investigation of a Proposer's technical qualifications by contacting project references
(including actual site visits), accessing public information, or contacting independent
parties. Additional information may be requested during the evaluation of technical
qualifications.
Criteria that will be used in the evaluation of the Proposals will include, but may not be
limited to:
Qualifications and Experience
This criterion evaluates the Proposer's ability to successfully and seamlessly undertake
/ the Project by reviewing the technical qualifications and experience of the contracting
\4..~ party, principal subcontractors, and key individual team members with respect to the
specific scope that each will perform. Specific items included in this criterion were
defined in the Stage 1 RFP and include, but are not limited to:
• Firm and individuals' Design-Build 1 Design-Build-Operate experience.
Particular emphasis will be placed on the experience of the proposed project
manager, and the proposed construction manager on Design-Build or Design-Build-
Operate projects for solid waste facilities of similar size and complexity as this
Project;
• Firm and individuals' engineering, permitting, and design experience;
• Construction experience, including history of construction claims and change
orders; and
• Startup, testing, O&M manual preparation, and training experience.
Technical Aaaroach
This criterion evaluates the Proposer's technical approach to the facility. Specific
considerations include, but are not limited to:
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i • Technical Feasibility and Reliability, including issues such as the feasibility and I
reliability of the proposed Waste Reduction Technology and equipment;
demonstrated ability of the design and proposed operating strategy to meet the
specified waste throughput, product output and residue requirements; portion and
amount of the waste stream that is processible with the technology proposed; and
the integration of the Waste Reduction Facility with existing and anticipated facilities
at the South Hilo Landfill Site. Particular emphasis will be placed on the extent that
overall waste reduction is maximized (by weight and volume).
Approach to Avoiding or Minimizing Environmental and Social Impacts,
including the impacts of construction and operation, including management of waste
streams, such as air emissions, Non-Processible waste and residue disposal.
Particular emphasis will be placed on the Proposal's plan for minimizing the hauling
of waste to West Hawaii Landfill.
¦ Quality, Durability and Workmanship, including such issues as overall quality of
proposed materials, equipment, and the overall facility; proposed operations and
maintenance plans; and integration of features and techniques to preserve Project
residual value at the end of the Contract Term.
¦ Construction Approach, including issues such as construction sequencing; need
for temporary facilities and operations; safety records /safety programs, and
~ requirements for construction laydown areas. Particular emphasis will be placed on r
the construction schedule to ensure that the duration of the interim operations `
period is minimized.
¦ Ability to Deliver the Project. This criterion includes issues such as the ability to
meet the County's objectives; the proposed approach for managing and
coordinating; the proposed permitting approach, including air permitting, the
proposed schedule and ability to meet time requirements, and previous experience
that proposed team has had delivering similar projects together as a team. This
criterion also includes an assessment of the recent, current, and projected
workloads of the firm and individuals.
Life-Cycle Costs
The County will consider each of the following for the Base Proposal and, where
applicable, for the Private Financing Approach.
¦ Fixed Design-Build Price, Service Fee, and Cost Effectiveness. Under this
criterion, the Proposals will be evaluated on their Proposed Price which includes,
but is not limited to, the following
¦ Proposed Fixed Design-Build Price
¦ Proposed drawdown schedule
l Proposed Service Fee
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~ ¦ Proposed Pass-Through Costs
¦ Proposed income from electricity sales
¦ Current interest rates
¦ Other proposed variable and fixed costs
The cost-effectiveness analysis that the County will conduct to evaluate the
Proposed Price will be based on present value life-cycle costs. The County will at its
sole discretion evaluate the impacts of each Proposal on the County's costs and
adjust Proposal costs to reflect these impacts. (For example, if a Proposer's
approach to disposal of Residue increases the County's operating costs at West
Hawaii Landfill, the County will make the appropriate adjustments to the Proposer's
costs. )
The following assumptions will be included in County's Net Present Value analysis:
¦ 20-year operations period
¦ Annual discount rate of 5.0 percent (nominal)
¦ Electricity rates currently in effect and projected future rates
¦ Annual County interest rate of 5.0 percent (nominal)
¦ Annual inflation rate of 2.0 percent
The County shall at its sole discretion conduct sensitivity analyses to test the cost
C~~``"' effectiveness of Proposals under different assumptions, such as different escalation
rates for power.
Business and Contractual Considerations
This criterion includes the evaluation of business and contractual elements including,
but not limited to:
• Overall Value of Enhancements and Exceptions /Modifications to County's
Proposed Design-Build-Operate Contract.
• Risk Assumption, Performance Guarantees and Assurances. This is expected
to include an evaluation of the Proposer's ability and willingness to assume the risk
allocation specified in the proposed Design-Build-Operate Contract and an
assessment of the proposed modifications /exceptions to the Design-Build-Operate
Contract.
• Financial Strength of Company and Guarantor. This consideration evaluates the
Proposers' and their Guarantors' financial strength specifically to determine if it is
sufficient to successfully undertake and guarantee successful completion of the
Project.
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6.9.3 PROPOSAL EVALUATION CRITERIA WEIGHTINGS ~
Based on the County's specific Project objectives, the Proposal Evaluation Criteria
described above will be weighted as outlined in Table 6-2 below.
Tabte 6-2: Evaluation Criteria Weightings
Qualifications and Experience 15%
Technical Approach 30%
Life-Cycle Costs 40%
Business and Contractual Considerations 15%
Total Weighting 100%
F).'I O EVALUATION AND RANKING OF PROPOSALS
6.10.1 STAGE 2 PROPOSAL EVALUATION
The Evaluation Committee will evaluate the Stage 2 Proposals in accordance with the
Proposal Evaluation Criteria and Proposal Evaluation Criteria Weightings described in ~
Sections 6.9.2 and 6.9.3, respectively. The Evaluation Committee will be supported by
third-party technical, legal and financial experts to assist in the evaluation process.
6.1 U.2 jNTERVIEWS
At its sole discretion, the Evaluation Committee may hold interviews during the
evaluation and selection process.
6.10.3 REFERENCE CHECKS
The Evaluation Committee will verify experience and qualifications, including verification
of quality on past projects, through interviews and, possibly, site visits to reference
facilities. Qualifications of firms and individuals may be verified in this manner. In
addition, the County retains the right to interview and / or visit facilities that have not
been listed as references but where Proposer team members, including specific
individuals, have worked.
6.10.4 COUNTY REQUESTS FOR CLARIFICATION OR RESUBMISSIONS
At its sole discretion, the Evaluation Committee may ask written questions of Proposers,
seek written clarifications, conduct in-person or telephone discussions on Proposals
with Proposers, and solicit updated Proposals during the evaluation and selection
process.
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6.11 NEGOTIATIONS PROCESS
The Evaluation Committee will evaluate and then recommend a ranking of firm(s) to the
County's Chief Procurement Officer based upon the criteria, weighting and process set
forth in the Stage 2 RFP. If a decision to proceed is made based on this
recommendation, the County will conduct negotiations with the highest-ranked firm(s).
The County will retain the right to suspend or cancel negotiations with the highest-
ranked firm and proceed to negotiations with the next highest-ranked firm at its sole
discretion. The County's Draft Service Contract will be modified to reflect the outcome
of the negotiations.
If a Change in Law occurs between the Proposal Submittal Date and the Contract Date,
and such change requires a change to the Selected Proposer's Proposal, such change
must be addressed during negotiations. Failure of the Selected Proposer to address
such changes in law prior to contract execution shall effectively waive the Selected
Proposer's right to relief for such change. In the event the Selected Proposer notifies
the County of such Change in Law, but an agreement cannot be reached on the
Change in Law during negotiations, the County has the right to suspend negotiations
with the Selected Proposer and enter into negotiations with another Proposer or seek
revised Proposals from one or all of the Proposers not selected for negotiations.
6.12INFORMATION DISCLOSURE TO THIRD PARTIES
All Stage 1 and Stage 2 Proposals received in response to the procurement documents
will become the property of the County and will not be returned. It is the County's intent,
~'rrr to the extent permitted by law, to keep all Stage 1 and Stage 2 Proposals confidential
until execution of the Service Contract. (See Section 1.7)
6.13 EXPENSES OF THE PROPOSERS
The County of Hawaii accepts no liability for the costs and expenses incurred by firms
in responding to the Stage 1 RFP, this Stage 2 RFP, responses to clarification requests
and resubmittals, potential interviews, and subsequent negotiations. Each Proposer
that enters into the procurement process shall prepare the required materials and
submittals at its own expense and with the express understanding that they cannot
make any claims whatsoever for reimbursement from the County of Hawaii for the costs
and expenses associated with the process, except as specifically provided herein.
6.14OTHER PROCUREMENT REQUIREMENTS
6.14.1 PROTESTS
A Proposer that the County rejects or does not select in response to the Stage 2 RFP
may submit a written request for debriefing to the County within three working days after
the posting of the award of the Service Contract in accordance with HRS 103D-303.
The requester will be provided with a prompt debriefing by the County. Protests are
only allowed following such a debriefing and must be filed in writing to the Chief
Procurement Officer within five working days after the date that the debriefing is
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completed in accordance with HRS 103D-303. Protests of contract award or rejection
of bids or Proposals are governed by HRS 103D-701. ~ .
Proposers protesting this procurement shall follow the procedures described above.
Protests that do not follow these procedures will not be considered. This protest
procedure constitutes the sole administrative remedy available to Proposers under this
procurement.
6.14.Y CONFLICT OF INTEREST
No officer, employee, or agent of the County, nor any member of the immediate family
of any such officer, employee, or agent as defined by County ordinance, shall have any
personal financial interest, direct or indirect, in the Service Contract, either in fact or in
appearance. The Company must comply with all federal, state, and county conflict of
interest laws, statutes, and regulations. Proposers must represent that the Proposer
presently has no interest and shall not acquire any interest, direct or indirect, in the
program to which the Service Contract will pertain, which would conflict in any manner
or degree with the performance of the services and obligations there under. Proposers
further will be required to covenant that, in performance of the Service Contract, no
person having any such interest shall be employed.
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Section 7 -PROPOSAL SUBMITTAL REQUIREMENTS
7.'I STAGE 2 PROPOSAL OVERVIEW
The required work for the Project is generally outlined in Section 3 of this Stage 2
RFP and further described within the Draft Service Contract and Appendices
(Volumes II and III, respectively). Proposers should rely on the Draft Service Contract
and Appendices for a full understanding of the work. Proposals must include a
detailed presentation, in graphic and written form, that clearly provides the Proposer's
approach for achieving the work required.
In addition to the textual discussions required by this Section, Proposers must complete
Proposal Forms included in Section 8. Textual discussions should reference the
Proposal Forms.
The County wishes to minimize the receipt of extraneous and unnecessary
information. Therefore, Proposers are urged to be complete, but concise, in their
responses. Sales brochures are not desired unless directly related to the response
and referenced in the text of the Proposal.
Requests for interpretation or clarification by any Proposer must be made to Bill
Takaba at the address given in Section 1.8. Responses to material requests for
information will be provided to all recipients of the Stage 2 RFP. Any and all such
( interpretations and supplemental instructions will be made in the form of written
addenda that will be sent to all recipients of the Stage 2 RFP, and will become part of
the Stage 2 RFP. Receipt of all addenda shall be acknowledged by Proposers by
completing a form which will be provided if any addenda are issued.
7.2 STAGE 2 PROPOSAL FORMAT
Narrative pages should generally be 8-1 /2 inches by 11 inches, although 11 by 17 inch
pages may be used for summary and comparison information. Section and subsection
headings shall be provided and font size shall be selected to facilitate reproduction
and review.
Proposers shall provide the appropriate information in accordance with the content
and format requirements set forth in this Stage 2 RFP. Proposals shall incorporate
graphics (i.e., process diagrams and drawings) as necessary to clearly present each
Proposal option.
Proposals must be separated by tabs into the following sections and subsections:
Transmittal Letter and Attachments
1.0 Executive Summary and Project Abstract
2.0 Technical Proposal
2.1 Overview Description of Waste Reduction Facility
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2.2 Waste Reduction Technology '
2.3 Facility and Site
A. Site/Civil Work
B. Architectural Work
C. Foundation Requirements and Structural Work
D. Building Services
E. Communications Systems
F. Power Supply and Electrical Systems
G. Support Facilities
H. Licenses, Permits and Approvals
2.4 Measures to Reduce Environmental Impacts, Maximize Waste
Reduction, and Promote Sustainability
2.5 Facility Operations and Performance Guarantees including Interim
Operations (if applicable)
A. Acceptance Test
B. Normal Operations
C. Operations During Scheduled /Unscheduled Shutdowns
2.6 Facility Drawings and Diagrams
2.7 Preliminary Operations and Maintenance and Preliminary Maintenance,
Repair, and Replacement Plans
3.0 Management and Organization Proposal
3.1 Project Implementation Approach
t 3.2 Project Schedules
3.3 Quality Management Plan
3.4 County Coordination and Communication Plan
4.0 Business /Financial Proposal
4.1 Project Guarantor Commitment
4.2 Fixed Design-Build Price and Drawdown Schedule -Base Proposal
4.2A Fixed Design-Build Price and Drawdown Schedule -Private Financing
Approach
4.3 Service Fee
A.4 Surety Requirements
4.5 Non-Discrimination in Employment, Contracting and Services; Other
Select Contracting Requirements
4.6 Markup of the Draft Service Contract and Appendices
4.7 Project Financing Plan -Private Financing Approach
5.0 Stage 2 Proposal Forms
6.0 Experience, Qualification, and Financial Information Update(if changes are
proposed)
7.0 Appendices to the Stage 2 Proposal (as necessary)
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r'"' Failure of a Proposer to organize the information as required by this Stage 2 RFP may
result in the County, at its sole discretion, deeming the Proposal unresponsive to the
requirements of the Stage 2 RFP. Proposers are encouraged to reduce the repetition
of identical information within several sections of the Proposal by making the
appropriate cross-references to other sections of their Proposal. Appendices for
certain technical information such as drawings, charts, forms, and tables, may be used
to facilitate efficient Proposal preparation.
T.3 STAGE 2 PROPOSAL SUBMITTAL REQUIREMENTS
Each Proposal submittal package shall be completely sealed and properly addressed
with the name of the Proposer and Proposal Name marked on the exterior of the
package and on the cover of each copy of the Proposal. The original and all 10 copies
shall be individually bound.
Proposals must be signed by the Chief Executive Officer of the firm that will be the
Contracting Party or by another officer with the authority to commit the Contracting
Party. Unsigned Proposals may be rejected.
7.3.1 STAGE 2 PROPOSAL DEADLINE
All Proposals, including all attachments, must be submitted in writing and must be in a
sealed package addressed to:
Purchasing Division
Department of Finance
County of Hawaii
25 Aupuni Street Room 118
Hilo, Hawaii 96720
The package should state "Stage 2 Proposal for the Hawaii County Waste Reduction
Facility Design-Build-Operate Project." Proposals must be signed and acknowledged by
the Proposer in accordance with the instructions herein. Proposals will not be subject to
a public opening.
All Proposals must be delivered to and be received by Hawaii County at the
aforementioned address no later than 3:00 p.m. Hawaii Time on [August 25, 2006].
Proposals that are received after the time mentioned will not be considered, and any
Proposals so received after the scheduled closing time shall be returned to the
Proposer unopened.
Proposals may be sent in by mail or delivered personally; however, if sent by mail, the
responsibility for their delivery on time to the Purchasing Division is solely the
responsibility of the Proposer. Faxed or e-mailed responses will not be accepted.
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7.3.2 NUMBER OF COPIES
An original and ten (10) copies of the Proposal must be submitted. All Proposals must
be complete, with all requested information, data and attachments.
7.4 STAGE 2 PROPOSAL CONTENTS
Proposers must provide the appropriate information in accordance with the content
and format requirements set forth in each of the following Proposal sections.
7.4.1 TRANSMITTAL LETTER AND ATTACHMENTS
The Proposal shall include a transmittal letter and the transmittal letter attachments as
represented in Proposal Form 1. The transmittal letter shall contain the name,
address, telephone number, fax number, and a-mail address of the Proposed
Contracting Party and the principal contact person. The transmittal letter shall also
include a listing of companies that are part of the team and identify the Project
Guarantor if different from the Proposed Contracting Party.
7.4.2 TAB 1 -EXECUTIVE SUMMARY AND PROJECT ABSTRACT
Proposers shall submit an Executive Summary detailing the key aspects of their
Proposal. This Section shall include a clear statement of the Proposer's
understanding of the Stage 2 RFP, identify the major Project participants and their
respective roles on the Project, briefly describe the Proposal, and summarize how the
proposed services and team meet the requirements of the Stage 2 RFP and Draft
Service Contract and Appendices. This Section shall also identify material exceptions
taken to the Draft Service Contract and Appendices as well as any enhancements
included in the Proposal.
The Executive Summary shall not exceed 15 typed pages and shall be accompanied
by a figure showing the team organizational structure. No pricing information should
be included in the Executive Summary.
7.4.3 Tab 2 -Technical Proposal
Section 2.0 of the Proposal shall present the technical aspects of the Proposer's plan
to design, build and operate and maintain the facility. Proposers shall provide a
description of the Project facility components as well as the information necessary to
convey a clear understanding of the Project.
The Technical Proposal shall be in sufficient detail to allow the County to evaluate the
Proposer's ability to comply with the Performance Guarantees and other technical
requirements outlined in the Draft Service Contract and Appendices.
Some of the Appendices anticipate that additional information will be incorporated
based on the Selected Proposal. To facilitate this, technical information shall be
provided in a format that can be easily incorporated into the Appendices in order to
finalize the Draft Service Contract. Where draft plans are indicated as attachments to
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the Appendices, Proposers shall submit such draft plans in sufficient detail to convey
the Proposer's approach and allow it to be evaluated by the County. Proposers shall
also include a Process Diagram that shows materials and volume percentages to more
completely explain the processes employed at the facility (see Section 5.1 for an
example). Outline format, provided it conveys sufficient information, is acceptable.
PROPOSAL SUBSECTION 2.1-OVERVIEW DESCRIPTION Of WASTE REDUCTION FACILITY
Proposers must provide drawings showing the limits of the Construction Site(s) and
Operation Site(s), which clearly define the limits of work during the Construction Period
and Operation Period. The Construction Site(s) drawings must show areas, such as
sensitive areas and buffers, to be avoided during construction. These drawings will
become a part of the Appendices to the Service Contract.
Proposers must clearly describe the specifics of the Waste Reduction Facility and
provide a general overview of the relationship of the Waste Reduction Facility and the
Reload Facility and any County/Company interface requirements.
Proposers must identify the selected locations for the Waste Reduction Facility on the
Site Area and the rationale behind selecting this location.
All major components of the Waste Reduction Facility, as appropriate, must be
described, including waste pre-processing, waste and Residue transfer and hauling,
and the reduction process itself.
A discussion of how the Waste Reduction Facility will be operated and maintained
must be provided, including compliance with Appendices 9 and 17, and must address
the approach to handling variations in waste stream quantity and components. This
discussion must also include the Proposer's approach to identifying, processing and
disposing Non-Processible Wastes that can not be handled by the process. This
section must also demonstrate the Waste Reduction Facility's ability to comply with the
Performance Guarantees contained in the Draft Service Contract and Appendices of
this Stage 2 RFP.
PROPOSAL SUBSECTION 2.2-WASTE REDUCTION TECHNOLOGY
Proposals must describe the Waste Reduction Technology, selected from those
approved from the Stage 1 Proposal submittals, in sufficient detail for the County to
review the proposed design and its reliability. Detailed information on the following
systems and components must be provided:
¦ Pre-processing System
¦ Waste Reduction Process
¦ Process Instrumentation and Controls
¦ Process Residual Management Systems
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The rationale underlying the proposed Waste Reduction Technology, including the
relationship between the size and configuration of major components must be
discussed. Within this Proposal section, Proposers must also describe or provide:
1. The proposed design to meet Appendices 2 and 3 requirements,
2. An analysis of how the proposed waste reduction system can meet the approval of
regulatory agencies, and
3. An expected timeline for the permitting process.
PROPOSAL SUBSECTION 2.$ -FACILITY AND SITE
A. Site/Civil Work
Construction Site Plan(s), Operations Site Plan(s), a Final Site Plan, and a Conceptual
Drainage Plan shall be included in the Proposal.
The Construction Site Plan(s) must identify the limits of work, including clearing limits;
all permanent and temporary on-site structures, facilities, and utilities; staging and
laydown areas; temporary and permanent stockpiles; roadways and traffic circulation;
parking areas; clearing and grading; site drainage; temporary and permanent
stormwater control and treatment facilities; landscaping; and undisturbed wetlands and
wetland buffers, disturbed wetlands, and artificial/ enhanced wetlands proposed for
mitigation. Site section drawings showing typical sections through developed areas
must also be provided.
The Operations Site Plan(s) must show permanent facilities and the limits of the area
for which the Proposer plans to retain operational and maintenance responsibility.
Operations Site section drawing(s) showing typical sections through the developed
portion of the Operations Site must be included.
The Construction Sites Plan(s) and Operations Site Plan(s) must be accompanied by a
brief narrative that addresses the proposed approach for site development for the
Waste Reduction Facility. This narrative must address construction laydown areas,
proposed access and worker parking, clearing and grubbing limits and methods,
temporary and permanent stockpiles, earth movement, cut and fill balance, proposals
for use/disposal of excess excavated material, temporary and permanent stormwater
infiltration, treatment, and detention facilities. The narrative must also address how
the Proposer intends to meet the security requirements set forth in Appendix 8.
The Final Site Plan(s), showing completed facilities, shall include all new and
expanded facilities; final parking and traffic circulation; landscaped areas; and
permanent storm water infiltration, treatment, and detention facilities. Proposals shall
also include drawings showing how areas disturbed during construction will be
restored following the completion of construction including landscaping.
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The Final Site Plan and related drawings shall be accompanied by a narrative that
addresses the proposed approach for site development, primarily addressing any
permanent changes in site drainage, access and traffic circulation, and parking.
The Conceptual Drainage Plan shall include existing and proposed flow control, water
quality, and conveyance systems for the Waste Reduction Facility and Reload Facility
sites, including approximate sizes, existing and proposed peak flow rates and
proximity to natural discharge locations as applicable. Proposals shall include
sufficient calculations to demonstrate that the proposed permanent stormwater
management system includes sufficient capacity and treatment capability to meet the
requirements set forth in Appendices 3 and 5.
B. Architectural Work
Proposers must describe their proposed architectural concepts for the Waste
Reduction Facility. Appropriate plan views and elevations of Waste Reduction Facility
structures must be provided to depict:
¦ How the architectural concept addresses the functional requirements of the Waste
Reduction Facility;
¦ Waste Reduction Facility aesthetics;
¦ Building layouts and access between structures;
¦ Building exterior and interior dimensions;
¦ Materials of Construction;
¦ Exterior Finishes.
A brief narrative must be included describing the suitability of the proposed
architectural concepts fora 50-year useful life. Technical Proposals must include a
color architectural rendering of the Waste Reduction Facility in a format suitable for
presentations. The vantage-point of the renderings must be clearly identified on the
rendering.
The County assumes that Proposers will desire that the Waste Reduction Facility
reflect the Proposer's creative approaches to both the process design and technology
while promoting public and employee acceptance of the facility. The County
encourages Proposers to integrate graphical displays and other features that express
these considerations into the architectural design and to describe these features in
their Proposals.
Proposals must indicate measures provided to comply with the Americans with
Disabilities Act.
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C. Foundation Requirements and Structural Work
Proposals must include a discussion of the approach to the design of the structural
aspects of the Waste Reduction Facility, including foundation systems, and structural
floor, wall, and roof systems proposed for all buildings and other structures.
Proposers shall be solely responsible for all geotechnical and seismic assumptions to
be used in foundation designs. Proposers may perform additional subsurface
explorations, at their sole cost and expense, for the purposes of preparing the
Proposal and satisfying their concerns (see Section 8.8).
D. Building Services
Proposals must fully describe all building services. Building services must include:
¦ Heating, Ventilation, and Air Conditioning;
¦ Electrical Power and Lighting (including natural lighting);
¦ Plumbing;
¦ Sanitary Facilities;
¦ Potable Water Supply;
¦ Fire Protection;
¦ Security Systems for buildings and the Operation Site;
¦ Telephone System and Utility Connections; and
¦ Hazardous Materials Storage and Disposal.
Proposals must supplement discussions of building service systems with system
schematic drawings, where appropriate, to illustrate proposed systems. Proposals
must specify whether on-site septic disposal is proposed and provide soils information
to verify the suitability of any proposed disposal area. Special provisions for disposal
of laboratory wastes must be described. Where applicable, Proposals must indicate
measures provided to comply with the Americans with Disabilities Act.
E. Communications Systems
Proposals must include a description of the voice and data communication systems to
be provided. Proposals must address:
¦ Facility internal communication system;
¦ Facility external communication system;
¦ Real time communication of Waste Reduction process control data, including
descriptions of the real time data that will be provided to the County.
Proposals must provide schematic drawings to supplement the discussion where
appropriate to illustrate the proposed systems. For each system, Proposals must
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( describe the applicable systems' power supply(ies), number and location of stations,
etc.
F. Power Supply and Electrical Systems
Proposals must describe all major systems and electrical equipment. This section
must include descriptions of:
¦ All power distribution transformers;
Lightning protection system;
Motor control centers;
• Electrical equipment rooms;
Protective relays and circuitry
¦ Site Lighting
For each major component, Proposals must include, at a minimum, the number of
units, location, horsepower, voltage rating, motor classification, and rate of power
usage. Proposals must provide an electrical one-line diagram and a lighting plan for
the Waste Reduction Facility.
The County is currently discussing options with HELCO to provide connections to the
- power grid from the Waste Reduction Facility.
Proposals must also include a discussion of backup power capability that will be
included for meeting the reliability requirements outlined in Appendix 3. This
discussion should include descriptions of the make and manufacturer of backup
generators and any provisions to stage the installation of equipment over time.
G. Support Facilities
Proposals must describe any support facilities to be provided. The function, size, and
purpose of each support facility must be described, including how each facility will be
equipped.
H. Licenses, Permits and Approvals
Proposers must describe their plan to obtain each license, permit, approval, or other
authorizations needed to construct and operate and maintain the Waste Reduction
Facility. The plan should be based on the Permits and Approvals identified in
Appendix 1. Proposals must also identify any permits listed in Appendix 1 that they
believe will not be required due to the specific nature of their Proposal, as well as any
permits not listed in Appendix 1 that will be required due to the specific nature of their
Proposal. Proposals must state where and to what degree coordination or assistance
from either the County or others in obtaining such approvals is required, and identify
the lead person /team assigned to the complete this task.
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( Proposals must state the name of the applicable license, permit, or approval, the ~
estimated time required to obtain each license, permit or approval, and any other
parties that must assist in obtaining them. Proposals must also identify issues that
could delay issuance of permits beyond the time frames identified in Proposals and
strategies for managing any such delays.
PROPOSAL SUBSECTION 2.4 -MEASURES TO REDUCE ENVIRONMENTAL IMPACTS, MAXIMIZE
WASTE REDUCTION, AND PROMOTE SUSTAINABILITY
Proposers must describe their plan to reduce environmental impacts during the
construction and operation of the Waste Reduction Facility. The plan should address
impacts related to, but not limited to, the following:
• Air Quality;
¦ Surface Water Quality and Management;
• Noise Impacts;
• Traffic Impacts;
• Odor Impacts; and
¦ Other Neighborhood Impacts.
Proposers must outline their plan to maximize Waste Reduction at the facility. This
should include a description of actions that will be taken relative to recovery of
recyclables from the waste stream, marketing of these materials, and any other
actions that will divert waste from being hauled to and disposed in West Hawaii
Landfill.
Proposers must also describe their plan to promote the sustainability of the Project
with particular emphasis on encouraging long and stable recyclable markets and
effective use of resources during construction and operations.
PROPOSAL SUBSECTION 2.$-FACILITY OPERATIONS AND PERFORMANCE GUARANTEES
Acceptance Test
Proposers must describe their approach to complying with the Acceptance Test
requirements set forth in Appendix 6. An outline of the Acceptance Plan must be
provided.
Normal Operations
Proposers should be aware that the County wants to encourage efficient operation of
the Waste Reduction Facility over the term of the Service Contract in a manner that is
consistent with the County's objective of maintaining the facility to a high standard of
care that includes: 1) continuous good housekeeping to preserve aesthetics and
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~ "an-- protect against deterioration; 2) ongoing maintenance and repair; 3) prudent renewal
and replacement of major equipment; 4) cost-effective upgrades of obsolete
equipment and systems; and 5) application and use of maintenance management and
performance management information systems.
Accordingly, this section of the Proposal must include the general facility management
philosophy, a description of the Company's workplace expectations for employees, and
references to the Operations and Maintenance and Maintenance, Repair and
Replacement Plans described in Proposal Subsection 2.7.
As to all plant maintenance, repairs and replacements, assurance must be provided
that required maintenance, repairs and replacements will be made to a specified
standard and in a timely manner and will not be deferred due to cost pressures or
other factors, and that at the expiration of the contract term the Waste Reduction
Facility will be returned to the County in a sound, proper and well-maintained condition
without the necessity for the County to undertake a major overhaul when assuming
Waste Reduction Facility management responsibilities. Proposers are requested to
set forth an approach to this issue that will serve the County's maintenance, repair and
replacement goals. Part of the County's assurance in this area will be derived from
the specific duties to be assumed with respect to maintenance, repairs and
replacements. The Summary Operation and Maintenance Plan and Renewal and
Replacement Plan proposed by Proposers must be outlined in sufficient detail to
f convert into contractual terms.
Proposers shall also describe their approach to disposal of Residue from the reduction
process. Specific attention should be paid to the quantity of material, potential
contaminants, suitability for landfilling, and any required disposal contingency plans.
Operations During Scheduled /Unscheduled Shutdowns
Proposers shall describe their approach to management of waste and the facility
during scheduled and unscheduled shutdowns. This section should describe
measures to safeguard against, minimize the impact of, and to resolve shutdowns
efficiently and quickly. Specific focus should be placed on how the waste stream will
be handled in the event of a shutdown.
It is the County's expectation that this facility will be the primary method of waste
disposal for the east side of the island, therefore the facility must be highly reliable.
Proposers shall include a shutdown schedule that outlines the yearly shutdowns and a
proposed number of days per year that the facility will not operate due to unscheduled
shutdowns. The negotiated shutdown schedule and negotiated unscheduled
shutdown days number will be included in the Service Contract.
PROPOSAL SUBSECTIDN 2.6 -FACILITY DRAWINGS AND DIAGRAMS
As a minimum, Proposals must include the drawings listed below. Some of these
drawings were described briefly in the subsection descriptions above.
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¦ Site Construction Plans (including limits of construction) t
¦ Final Site Plan and Sections
¦ Traffic Flow (may be included in Site Plans)
¦ On-site and off-site parking and staging area drawing
Process Diagrams
¦ Structural Plan and Section Drawings
Preprocessing Facility Plans
Waste Reduction Facility Plans
¦ Electrical One-line Diagram
¦ Fire Protection System
Site Drainage Plans (Stormwater Control and Treatment)
Site Utilities Plans, including sanitary sewage, fire protection, and utility water
Architectural Plans, Elevations, and Renderings
¦ Other drawings to be submitted as needed to fully describe Proposals
PROPOSAL SUBSECTION Y.7 -PRELIMINARY OPERATIONS AND MAINTENANCE AND PRELIMINARY
MAINTENANCE, REPAIR, AND REPLACEMENT PLANS
Proposers shall describe the Operations and Maintenance Plan and the Maintenance,
Repair and Replacement Plan. These plans must address the proposed approach for
ordinary maintenance and for major maintenance, repairs and replacements to comply
with the Draft Service Contract. They must include an equipment inventory, schedule
for shift and preventative maintenance, and related operator training. The Maintenance,
Repair and Replacement Plan description must consist of a plan for replacement of
major items (over $25,000 per replacement or renewal) at the Date of Construction Price
Escalation over the term of the Service Contract. This schedule will be included in the
Service Fee Payment.
This plan must include sufficient detail and cross-referencing so that this information,
together with Proposal Form 15, is sufficient to complete Appendix 17 of the Draft
Service Contract. Proposers are encouraged to review [Article X of the Draft Service
Contract] for additional requirements. The plan must address the tracking of groups of
different-lived equipment, and include depreciation and the repairs, replacements, and
renewals required to obtain, at a minimum, the manufacturer's useful life.
I "
Counly of Hawaii 54 July 3, 2006
Waste Retlucfion Facility Request for Stage 2 Proposals Vol. I
Design-Build-0perate Project
7.4.4 TAB $ -MANAGEMENT AND ORGANIZATION PROPOSAL
PROPOSAL SUBSECTION 3.'I -PROJECT IMPLEMENTATION APPROACH
Proposers must describe their internal team communications plan, their approach to
public involvement and external project communications, and their approach to Project
partnering with all Project stakeholders to assure Project quality and performance.
Proposers must also submit an Implementation Schedule that includes project
schedules that present the major activities necessary to implement their Proposal.
The project schedules should commence with the Contract Date and extend to the
time that the Waste Reduction Facility initiates full-scale operation. The proposed
Project schedules must include each major milestone outlined in the Proposed
Milestone Payment Schedule, along with all other major activities for completing the
Project. The schedules must clearly distinguish between pre- and post- Notice to
Proceed activities. In addition, within this section, Proposers must identify the date(s)
after Notice-To-Proceed on which receipt of DOH approval(s) is anticipated.
Proposers must also identify suggested County review periods during design to meet
the requirements of Appendix 9. Proposers should recognize the County's desire for
the Acceptance Date to be achieved on or before [December X, 2010]. The proposed
project schedule should be designed to meet this goal. If Proposers feel this schedule
is too aggressive, the Proposal should state any expected cost savings and other
project benefits that could be achieved by extending the [December X, 2010] date.
PROPOSAL SUBSECTION 3.2-PROJECT SCHEDULES
Proposers shall include project schedules (a Project Construction Schedule and a
Development Work Schedule) that present the major activities necessary to implement
their Proposal in order to meet the requirements of Appendix 9. The schedules
should commence with the Contract Date and identify major milestones. The
schedules must clearly distinguish between pre- and post- Notice to Proceed activities.
The guaranteed maximum construction period must be provided in this section.
PROPOSAL SUBSECTION $.3-QUALITY MANAGEMENT PLAN
This section of the Proposal must describe the Proposer's overall quality plan,
including its preliminary quality assurance/quality control (QA/QC) plan for all phases
of the project, including permitting, design, construction, commissioning, start-up, and
acceptance testing, and operation.
Minimum requirements for the Quality Management Plan are set forth in Appendix 5.
In preparing this section, Proposers should discuss their overall quality program,
including quality control and assurance, with respect to the quality objectives
established by the County. These objectives include:
• Defining quality level goals and expectations, and developing and implementing
procedures to insure that quality is an integral consideration in each and every
task.
County of Hawaii 55 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-BUiltl-Operate Project
1
• Including aesthetics and workmanship in quality objectives along with the ability ~ ~
of the Project to meet Performance Guarantees.
¦ Maintaining the overall responsibility for quality with the Company. While
implementation of quality-related programs can be delegated, this overall
responsibility cannot be delegated.
¦ Ongoing involvement of individuals responsible for permitting and
environmental mitigation through the construction phase will help assure project
quality.
Integration of construction contractors into the design process and designers
(engineers and architects) into the construction process.
Independent verification of workmanship, materials, and quality control
procedures.
¦ Effective QC/QA programs, including adequate resources dedicated exclusively
to the program's implementation. Design and construction QC/QA staff must be
independent of production staff and empowered to enforce the program's
objectives, define quality expectations, independently verify quality, and
investigate the causes of poor quality work. Use of, or even partial reliance on,
the monitored organization's production staff to implement construction QC/QA
program activities is to be discouraged due to conflicts of interest and time.
C Inspection of work in progress rather than at completion of work components.
When problems are encountered, focusing on correcting the systems that led to
the problem rather than simply on its repair.
¦ Continuous training and ongoing communication with subcontractors.
¦ Continuous communication with the County regarding quality issues and project
changes.
PROPOSAL SUBSECTION 3.4-COUNTY COORDINATION AND COMMUNICATION PLAN
This section shall describe, in detail, the Proposer's approach to communicating and
coordinating with the County's technical staff, as well as the County's on-site project
management staff during each Project phase. The Company's internal
Communication Plan and an initial draft of the Company's proposed plan for
communication with the County shall be provided.
7.4.5 TAB 4 - BUSINESSIFINANCU~L PROPOSAL
This section must present the business and financial aspects of the Proposal.
Proposers must submit sufficient information so that the County can evaluate the
Proposer's ability to satisfy the conditions of the Draft Service Contract. The
County of Hawaii 56 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
e.+~.
`w subsequent subsections outline the type of information that must be included in the
Proposer's business and financial submission.
PROPOSAL SUBSECTION 4.'I -PROJECT GUARANTOR COMMITMENT
Proposers must describe how it plans to use a Project Guarantor to guarantee all
requirements of the Stage 2 RFP and the Draft Service Contract for the project.
Proposers must provide a commitment from the Project Guarantor for the Project as
identified in the response to the Stage 1 RFP. The Project Guarantor is to complete
and submit Proposal Form 7 as described in Section 4.4.2.
PROPOSAL SUBSECTION 4.2 -FIXED DESIGN-BUILD PRICE (INCLUDING FIXED DEVELOPMENT FEE
AND FIXED CONSTRUCTION PRICE~AND DRAWDOWN SCHEDULE- BASE PROPOSAL
This section must include and describe the Proposed Fixed Design-Build Price and its
elements assuming that the Project is financed by the County. It must demonstrate
that the Proposer understands that the Fixed Design-Build Price is full payment for the
Waste Reduction Facility, including all costs for the Development Period (Fixed
Development Fee) and the Construction Period (Fixed Construction Price), including,
but not limited to environmental review, permitting, design, construction,
commissioning, start-up, and acceptance testing, including all taxes and fees.
A cumulative maximum drawdown schedule is required for the Development and
Construction Period, respectively, and shall be provided by reference to Proposal
~,,w, Forms 19A and 19B. Proposers shall state their understanding that payment by the
County shall not exceed the cumulative maximums shown (except for construction
index adjustments provided for in Appendix 12).
PROPOSAL SUBSECTION 4.$-SERVICE FEE
Proposers are encouraged to review [Article X of the Draft Service Contract] to fully
understand the Service Fee formula. The Service Fee must include all components
set forth in Section 4.4.1 and in [Article X of the Draft Service Contract]. Proposers
shall assume that the Date of Escalation for all components of the Service Fee is
[February X, 2007]. Proposers are also encouraged to review Appendix 18 for an
example Service Fee calculation.
If a Private Financing Approach is submitted, Proposers must also include the Capital
Recovery component of the Service Fee (see Section 4.4.1).
PROPOSAL SUBSECTION 4.4-SURETY REQUIREMENTS
Proposals must include a consent of surety for the Construction Period in an amount
equal to the Fixed Construction Price. The surety company must be qualified and
licensed to do business in the State of Hawaii.
`a.r
County of Hawaii 57 Juty 3, 2006
Waste Retlucfion Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
1 ( +~L
PROPOSAL SUBSECTION 4.5 -NON-DISCRIMINATION IN EMPLOYMENT, CONTRACTING AND `
SERVICES; AND OTHER SELECT CONTRACTING REQUIREMENTS
Proposers must state in their Proposal that they understand that the foNowing
requirements will be made a part of the Service Contract and must describe the
following:
¦ Programs to assure non-discrimination in employment and services of the
Proposer and principal subcontractors;
¦ Apprenticeship programs and use of apprentice labor of the Proposer and Principal
subcontractors;
¦ Affirmative efforts to use women and minority-owned business enterprises; and
¦ Compliance with other ordinances and requirements described in the Stage 2 RFP.
PROPOSAL SUBSECTION 4.6 -MARKUP OF THE DRAFT SERVICE CONTRACT AND APPENDICES
Proposers shall include their markup as an Appendix to their Proposal per the specific
requirements of Section 4.7 of Volume I of this Stage 2 RFP.
PROPOSAL SUBSECTION 4.7 -PROJECT FINANCING PLAN -PRIVATE FINANCING APPROACH
If Proposers are including the Private Financing Approach in their Proposal, this
section must be provided. It should include a narrative description of the financing
mechanism and how this mechanism will provide a secure source of funds for project (/"Mlji
design and construction. Proposers should include justification that the proposed ,~,,.~r,,ii
Private Financing Approach provides and equivalent level of financial viability as does
Public financing through the County.
7.4.6 TAB 5 -STAGE 2 PROPOSAL FORMS
To be deemed responsive to this Stage 2 RFP, Proposers must provide the requested
information and complete in detail all Proposal Forms provided in Section 8. All
Proposal Forms must be included in this Section of Proposals.
7.4.7 TAB 6 - EXPERIENCE, QUALIFICATION, AND FINANCIAL INFORMATION UPDATE (IF
CHANGES ARE PROPOSED)
Proposers shall update the qualifications and financial information submitted in their
Stage 1 Proposals to reflect any changes to the proposed team, experiences or
financial resources of the Proposer, as necessary. This shall be done by attaching
Proposal Submittal Forms 4 and/or 5 from the Stage 1 RFP as appropriate.
i
County of Hawaii 58 July 3, 2006 w.r+'
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
~
Section 8 -Proposal Submittal Forms
County of HawaPi 59 July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals Vol. I
Design-Build-Operate Project
HAWAII COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form A
Checklist of Forms
Business Forms
? Proposal Submittal Form A -Checklist of Forms
? Proposal Submittal Form 1 -Transmittal Letter and Three Attachments
? Proposal Submittal Form 2 -Personnel Inventory Form
? Proposal Submittal Form 3 -Non-Collusion Affidavit
? Proposal Submittal Form 4 -Participating Entities -Group List
? Proposal Submittal Form 5 -Participating Entities -Individual Descriptions
? Proposal Submittal Form 6 -Statement of Ownership
? Proposal Submittal Form 7 -Project Guarantor Commitment f
? Proposal Submittal Form 8A -Surety Letter of Intent to Issue a Performance Bond
? Proposal Submittal Form 8B -Surety Letter of Intent to Issue a Payment Bond
? Proposal Submittal Form 9 -Bank Letter of Intent to Issue Operations Period Letter of
Credit
? Proposal Submittal Form 10 -Insurance Company Letter of Intent
Technical Forms
? Proposal Submittal Form 11 -Performance Guarantees
? Proposal Submittal Form 12 -Specifications of Major Equipment/Systems
? Proposal Submittal Form 13 -Process Residue and Liquid Discharge Data
? Proposal Submittal Form 14 -Air Pollutant Emissions
? Proposal Submittal Form 15 -Major Equipment Replacement Schedule
Financial /Price Forms
? Proposal Submittal Form 18 -Fixed Design-Build Price Breakdown
Hawaii County July 3, 2006 r„rr'
Waste Reduction Facility RFP Proposal Submittal Form A
Design-Build-Operate Project Sheet 1 of 2
i
e...• ? Proposal Submittal Form 17 -Service Fee and Electricity Generation Breakdown
? Proposal Submittal Form 18 -Guaranteed Maximum Electricity UtilizationlDemand
? Proposal Submittal Form 19A -Maximum Development Period Drawdown Schedule and
Milestones
? Proposal Submittal Form 196 - Maximum Construction Drawdown Schedule and
Milestones
? Proposal Submittal Form 20 -Operating Period Insurance, Operation Period Performance
Bond, Letters of Credit, and Termination for Convenience Amounts
? Proposal Submittal Form 21 -Change Order History
r
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form A
Design-BUiltl-Operate Project Sheet 2 of 2
( HAWAI'i COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 1
Transmittal Letter and Three Attachments
(To be typed on Proposer's Letterhead)
[Date]
Bill Takaba
County of Hawai i
Department of Finance
25 Aupuni Street Room 118
Hilo, Hawaii 96720
Re: Stage 2 Proposal for County of Hawaii Waste Reduction Facility Design-Build-
Operate Project
(the "Proposer") hereby submits its Stage 2
Proposal in response to the Request for Proposals for the Waste Reduction Facility
issued by the County of Hawai' i (the "County") on [Date], as amended.
As a duly authorized representative of the Proposer, I hereby certify, represent, and
warrant, on behalf of the Proposer team, as follows in connection with the Stage 2
Proposal:
1. The Proposer acknowledges receipt of the Stage 2 RFP and the following
addenda:
No. Date
Hawaii County July 3, 20D6 ~y1°`
Waste Reduction Facility RFP Proposal Submittal Form t
Design-Build-Operate Project _ Sheet l of7
( 2. The submittal of the Stage 2 Proposal has been duly authorized by, and
in all respects is binding upon, the Proposer. Attachment 1 to this
Transmittal Letter is a Certificate of Authorization which evidences my
authority to submit the Proposal and bind the Proposer,
3. The Proposer has completely reviewed and understands and agrees to
be bound by the requirements of the Stage 2 RF P.
4. The Proposer's obligations that will be contained in the Service Contract
will be guaranteed irrevocably, absolutely, and unconditionally by
as evidenced by the Guarantor
Acknowledgment certificate submitted as Attachment 2 to this Transmittal
Letter. The Guarantor Certificate of Authorization submitted as
Attachment 3 to this Transmittal Letter evidences the individual's authority
to submit the Guarantor Acknowledgment certificate and bind the
Guarantor.
5. All information and statements contained in the Stage 2 Proposal are
current, correct, and complete, and are made with full knowledge that the
County will rely on such information and statements in determining
whether the Proposer will proceed to the next phase of the procurement.
6. The Proposal has been prepared and is submitted without collusion,
fraud, or any other action taken in restraint of free and open competition
for the services contemplated by the Stage 2 RF P.
7. Neither the Proposer, the Guarantor, nor any Proposer team member is
currently suspended or debarred from doing business with any
governmental entity.
8. The Proposer has reviewed all of the engagements and pending
engagements of the Proposer and the Guarantor, and no potential exists
for any conflict of interest or unfair advantage.
9. No person or selling agency has been employed or retained to solicit the
award of the Service Contract under an arrangement for a commission,
percentage, brokerage or contingency fee, or on any other success fee
basis, except bona fide employees of the Proposer or the Guarantor.
10. The principal contact person who will serve as the interface between the
County and the Proposer for all communications is:
NAME:
TITLE:
ADDRESS:
Hawaii County Jury 3, 2006
Waste Reduction Facility RFP Proposal Su6miffiI Fonn 1
Design•BUild-Operate Project Sheet 2 of 7
l
PHONE -
FAX:
E-MAIL:
11. The key technical and legal representatives available to provide timely
response to written inquiries submitted, and to attend meetings requested
by the County, are:
Technical Representative:
NAME:
TITLE:
ADDRESS:
PHONE
FAX:
E-MAIL:
C Legal Representative: {
NAME:
TITLE:
ADDRESS:
PHONE
FAX:
E-MAIL:
i i
Hawaii County July 3, 2006 'w-~'
Waste Reduction Facility RFP Proposal Submittal Form 1
Design-Build-0perete Project Sheet 3 of 7
Name of Proposer
Name of Designated Signatory
Signature
Title
(Notary Public)
State of
County of
~`w"
On this day of , 2006, before me appeared ,
personally known to me to be the person described in and who executed this
_ and acknowledged that (she/he) signed the same freely and voluntarily for the uses
and purposes therein described.
In witness thereof, I have hereunto set my hand and affixed by official seal the day and
year last written above.
Notary Public in and for the State of
(seal)
(Name printed)
Residing at
My Commission Expires
'`w...
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 1
Design-Build-Operate Project Sheet 4 of 7
Attachment 1 ~
CERTIFICATE OF AUTHORIZATION*
I, a resident of in the State
of DO HEREBY CERTIFY that I am the Clerk/Secretary of
a corporation duly organized and existing
under and by virtue of the laws of ; that I have custody of
the records of the corporation; and that as of the date of this certification,
holds the title of _ of the corporation, and
is authorized to execute and deliver in the name and on behalf of the corporation the
Stage 2 Proposal submitted by the corporation in response to the Request for Stage 2
Proposals for the Waste Reduction Facility Design-Build-Operate Project, issued by the
County of Hawaii, Hawaii on [August X, 2006], as amended; and all documents,
letters, certificates and other instruments which have been executed by such officer on
behalf of the corporation in connection therewith.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the corporate
seal of the corporation this day of _ , 2006.
(Affix Seal Here)
Clerk/Secretary
* Nofe: Separate certifications shall be submitted if more than one corporate officer has
executed documents as part of the Proposal. Proposers shall make appropriate
conforming modifications fo this Certificate in the event that the signatory's address is
outside of the United States.
I i
Hawai i County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 1
Design-Build-Operate Project Sheet 5 of 7
( Attachment 2
GUARANTOR ACKNOWLEDGMENT
CERTIFICATE*
(to be typed on Guarantor's Letterhead)
(the "Proposer") has submitted
herewith a Proposal in response to the County of Hawaii, Hawaii s [August X, 2006]
Request for Stage 2 Proposals for the County of Hawaii Waste Reduction Facility
Design-Build-Operate Project, as amended (the "Stage 2 RFP") pursuant to which it is
seeking to be qualified by the County to provide the contract services described in the
Stage 2 RFP.
The Guarantor hereby certifies that it will irrevocably, absolutely, and
unconditionally guarantee pursuant to a Guaranty Agreement the performance of all of
the Proposer's obligations under the Service Contract to be issued with the County's
Stage 2 RFP, in the event the Proposer is selected for execution of the Service Contract
by the County.
Name of Guarantor
Name of Authorized Signatory
Signature
Title
Note: If more than one Guarantor is proposed, each firm shall be jointly and severally
obligated and shall independently provide an executed copy of this Guarantor
Acknowledgment. If a Guarantor is a joint venture, each firm in the joint venture shall be
jointly and severally obligated and shall independently provide an executed copy of this
Guarantor Acknowledgment.
Hawai i County July 3, 2006
Waste Reduction Facility RFP Proposal Submidal Form 1
Design-Build-Operate Project Sheet 6 of 7
I: Attachment 3 t
GUARANTOR CERTIFICATE OF AUTHORIZATION*
I, a resident of in the
State of DO HEREBY CERTIFY that I am the Clerk/Secretary of
a corporation duly organized and existing under and by
virtue of the laws of the State of ; that I have custody of the records of
the corporation; and that as of the date of this certification,
holds the title of of the corporation, and is authorized to execute
and deliver in the name and on behalf of the corporation the Guarantor Acknowledgment
submitted by the corporation as part of (the "Proposer's")
response to the Request for Proposals for the Waste Reduction Facility Design-Build-
Operate Project, issued by the County of Hawaii, Hawaii on [August X, 2006], as
amended; and all documents, letters, certificates and other instruments which have been
executed by such officer on behalf of the corporation in connection therewith.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the
corporate seal of the corporation this day of , 200 6.
C {
(Affix Seal Here)
(Clerk/Secretary)
* Note: If more than one Guarantor is proposed, each firm shall be jointly and severally
obligated and shall independently provide an executed copy of this Guarantor
Acknowledgment. If a Guarantor is a joint venture, each firm in the joint venture shall be
jointly and severally obligated and shall independently provide an executed copy of this
Guarantor Acknowledgment.
i
Hawaii County July 3, 2006
Waste Reduction FacilRy RFP Proposal Submittal Form 1
Design•Build-Operate Project Sheet 7 of 7
;,w,,, HAWAII COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 2
Personnel Inventory Form
[Form to Come]
o.,.
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Foon 2
Design-Build-Operate Project Sheet 1 of 1
~ HAWAI'I COUNTY WASTE REDUCTION FACILITY ~'~0.
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 3
Non-Collusion Affidavit
STATE OF )
SS.
COUNTY OF )
I, of the City of , in the County
of and State of of full age, being duly
sworn on oath depose and say that:
V am of the firm of ,the Proposer
making the Proposal for Design, Build, and Operate services for the Waste Reduction
Facility, and that I executed the said Proposal with full authority so to do; that said Proposer
C has not, directly or indirectly, entered into any agreement, participated in any collusion, or i-
otherwise taken any action in restraint of free, competitive bidding in connection with the
Services; that all statements contained in said Proposal and in this affidavit are true and
correct, and made with full knowledge that the County of Hawaii relies upon the truth of the
statements contained in said Proposal and in the statements contained in this affidavit in
awarding the Service Contract for the said Services, respectively.
(Signature of Proposer)
Note: If this Proposal is being submitted by a corporation, the Proposal shall be executed in
the corporate name by the president or other corporate officer, and the corporate seal shall
be affixed and attested to by the clerk. A certificate of the clerk of the corporation evidencing
the officer's authority to execute the Proposal shall be attached.
If this Proposal is being submitted by a joint venture, it shall be executed by all joint
venture Partners, and any partner that is a corporation shall follow the requirements for
execution by a corporation as set forth above.
Hawaii CounTy July 3, 2006 -.W-
Waste Reduction Facility RFP Proposal Submittal Form 3
Design-Build-Operate Project Sheet 1 oF2
~
(Notary Public)
State of
County of
On this day of 20 before me appeared
,personally known to me to be the person described
in and who executed this and acknowledged that (she/he)
signed the same freely and voluntarily for the uses and purposes therein
described.
In witness whereof, I have hereunto set my hand and affixed my official seal the
day and year last written above.
Notary Public in and for the state of Hawai i
(seal)
(Name printed)
Residing at
My appointment expires
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 3
Design-Build-Operate Project Sheet 2 of 2
HAWAII COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 4
Participating Entities -Group List
All entities that will be significant participants in providing the contract services (the
"Participating Entities") are identified below. Such entities shall include, as applicable, (1)
the Company (which may be a new company formed for the sole purpose of executing
and performing the Service Contract); (2) the entity that will design the Facility; (3) the
entity that will construct the Facility; (4) the entity that will operate the facility, (5) the
Guarantor; and (6) any other significant participant or subcontractor.
(1) The Company:
(2) Design Entity:
(3) Construction Entity:
(4) Operating Entity:
(5) Guarantor:
(6) Other:
Include a copy of Proposal Submittal Form 5 for each entity listed above. Each member
of a joint venture should be listed separately.
Name of Respondent
Name of Authorized Signatory
Signature
Title
i~
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 4
Design-Build-Operate Project Sheet 1 of 1
~
HAWAI'I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 5
Participating Entities(') -Individual Descriptions
(Complete Proposal Submittal Form 5 for each Participating Entity)
Entity Name:
Type of Entity:
Address:
Names of partners, officers and
stockholders who own 10 percent
or more of the shares:
Note:
[Company and any JV members or parent Flrms Form of Business (Corporation, Partnership, Joint
Venture, Other)]
°W
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal SubmiUal Form 6
Design-Build-Operate Project Sheet 1 of 2
Form of Business (Corporation, Partnership, Joint Venture, Other): w
State formed in (or to be formed in):
Contact Person(s):
Voice Telephone Number:
Fax Telephone Number:
E-Mail Address:
Role(s) (e.g., Company, Guarantor):
Attach a brief summary of the services and responsibilities of each Participating
Entity, limited to one page or less in length for each entity.
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submillal Form 5
Design-Build-Operate Project Sheet 2 of 2
HAWAI'I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 6
Statement of Ownership
The Proposer shall set forth the names and addresses of all stockholders in the corporation
who own ten percent or more of its stock of any class, or all partners in the partnership who
own ten percent or greater interest therein; if none, the Proposer must state "none." If one or
more such stockholder or partner is itself a corporation or partnership, the stockholders
owning ten percent or more of that corporation's stock, or the individual partners owning ten
percent or greater interest in that partnership shall also be listed; if none, the Proposer must
state "none." This disclosure shall be continued until names and addresses of every
individual stockholder, and individual partner exceeding the ten percent ownership criteria of
each corporation or partnership listed has been identified.
NAME ADDRESS
l`
Signature of Proposer Date
Name of Proposer (Print or Type)
Title
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 6
Design-Build-Operate Project Sheet 1 of 1
` HAWAII COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 7
Project Guarantor Commitment
HAWAII COUNTY
Hawaii County
Department of Finance
25 Aupuni Street Room 118
Hilo, Hawaii 96720
Re: Waste Reduction Facility
Director of Finance:
The undersigned hereby represents to Hawaii County (County) that if
(the "Proposer") is awarded the Service Contract
for the Proposal requested by the Stage 2 RFP, the undersigned agrees to fully and
unconditionally guarantee all obligations of whatever kind or nature of the Proposer to the
County. Those matters which the undersigned will guarantee shall include, but shall not be
limited to, the following:
• All financial, payment, and performance obligations of the Proposer under the Service (`''"~1
Contract to be executed by the Selected Proposer and the County. ,,.~.r/?
• All obligations of the Proposer to permit, design, build, commission, acceptance test,
operate and maintain the Waste Reduction Facility.
• All indemnification obligations of the Proposer to the County for any claims, losses,
damages or liabilities arising out of any acts or omissions of the Proposer, its agents,
contractors, subcontractors, and employees, in performing the Services including but not
limited to (1) permitting, designing, constructing, and Acceptance Testing the Waste
Reduction Facility; and/pr (2) operating the Waste Reduction Facility to meet
performance requirements.
The undersigned acknowledges that (s)he has reviewed the Form of Guaranty Agreement of
the Stage 2 RFP, and agrees that (the Guarantor) will
execute such Guaranty Agreement concurrently with execution of the Service Contract.
Sincerely yours,
PresidenUChief Executive Officer
Name of Firm
I~
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 7
Design-Build-Operate Project Sheet 1of 1
r~~ HAWAI'I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 8A
Surety Letter of Intent to Issue a Performance
Bond
(to be typed on Surety's letterhead)
Hawaii County
Department of Finance
25 Aupuni Street Room 118
Hilo, Hawaii 96720
Re: Waste Reduction Facility
Director of Finance:
(Proposer) has submitted herewith a Proposal in response to the County of Hawa~ i
Waste Reduction Facility Design-Build-Operate Project Request for Stage 2 Proposals (Stage 2
RFP) to provide permitting, design, construction, commissioning, acceptance testing, operation,
and maintenance of the Waste Reduction Facility and all support facilities (WRF). The most
advantageous Proposer will enter into a Service Contract to cause the WRF to meet certain
( Performance Guarantees, and to comply with all applicable permits, licenses, approvals and
other Applicable Law, and to provide related and ancillary services, all as defined and described
in the Stage 2 RFP, and covered by the Proposal submitted by the Proposer in response thereto,
which Proposal is made a part hereof.
The Surety has reviewed the Proposer's Proposal, which will farm the basis of the Service
Contract. The Surety hereby certifies that it intends to issue on behalf of the Company, should
the conditions of the Service Contract and the business standing of the Proposer be substantially
the same on the day of issuance, as security for performance of its obligations under the Service
Contract, a Performance Bond for the Construction Period, in an amount equal to the Fixed
Construction Price (plus a reasonable amount to be determined by the parties for any estimated
Fixed Design-Build Price Adjustments), for the benefit of the County in the event the Proposer is
selected for final negotiations and execution of the Service Contract.
Name of Surety.•
Name ofAuthorized Signatory:
Signature:
Title:
ems,
Hawari County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Fonn 8
Design-Build-Operate Project Sheet 1 of 1
HAWAI'{ COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 8B
Surety Letter of Intent to Issue a Payment Bond
(to be typed on Surety's letterhead)
Hawaii County
Department of Finance
25 Aupuni Street Room 118
Hilo, Hawaii 96720
Re: Waste Reduction Facility
Director of Finance:
(Proposer) has submitted herewith a Proposal in response to the County of Hawai i
Waste Reduction Facility Design-Build-Operate Project Request for Stage 2 Proposals (Stage 2
RFP) to provide permitting, design, construction, commissioning, acceptance testing, operation,
and maintenance of the Waste Reduction Facility and atl support facilities (WRF). The most
advantageous Proposer will enter into a Service Contract to cause the WRF to meet certain
Performance Guarantees, and to comply with all applicable permits, licenses, approvals and
other Applicable Law, and to provide related and ancillary services, all as defined and described w~,
C in the Stage 2 RFP, and covered by the Proposal submitted by the Proposer in response thereto, ~ 3
which Proposal is made a part hereof.
The Surety has reviewed the Proposer's Proposal, which will form the basis of the Service
Contract. The Surety hereby certifies that it intends to issue on behalf of the Company, should
the conditions of the Service Contract and the business standing of the Proposer be substantially
the same on the day of issuance, as security for performance of its obligations under the Service
Contract, a Payment Bond for the Construction Period, in an amount equal to the Fixed
Construction Price (plus a reasonable amount to be determined by the parties for any estimated
Fixed Design-Build Price Adjustments), for the benefit of the County in the event the Proposer is
selected fof final negotiations and execution of the Service Coniract.
Name of Surefy:
Name of Authorized Signatory:
Signature:
Tdle:
ice`
(
Hawaiti County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 8
Design-Build-Operate Project Sheet'f aF 1
(.,,,w, HAWAII COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 9
Bank Letter of Intent to Issue Operations Period
Letter of Credit
(to be typed on Bank or Financial Institution's letterhead)
Hawaii County
Department of Finance
25 Aupuni Street Room 116
Hilo, Hawaii 96720
Re: Waste Reduction Facility
Director of Finance:
(Proposer) has submitted herewith a Proposal in response to the County of Hawai i
Waste Reduction Facility Design-Build-Operate Project Request for Stage 2 Proposals (Stage 2
RFP) to provide permitting, design, construction, commissioning, acceptance testing, operation,
and maintenance of the Waste Reduction Facility and all support facilities (WRF). The most
advantageous Proposer will enter into a Service Contract to cause the WRF to meet certain
Performance Guarantees, and to comply with all applicable permits, licenses, approvals and
other Applicable Law, and to provide related and ancillary services, all as defined and described
in the Stage 2 RFP, and covered by the Proposal submitted by the Proposer in response thereto,
which Proposal is made a part hereof.
The Bank has reviewed the Proposer's Proposal, which will form the basis of the Service
Contract. The Bank hereby certifies that it intends to issue on behalf of the Proposer, as
additional security for the Company's Operations obligations under the Service Contract, an
irrevocable standby letter of credit in the amount of $2 Million for the benefit of the County in the
event the Proposer is selected for final negotiations and execution of the Service Contract.
Name of Bank or Financial Institution:
Name ofAuthorized Signatory:
Signature:
Title:
Jul 3, 2006
Hawari County Y
Waste Retluction Facility RFP Proposal Submittal Form 9
Design-BUiltl-Operate Project Sheat 1 of 1
HAWAI'I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT "w""
Proposal Submittal Form 10
Insurance Company Letter of Intent
(to be typed on insurance company's letterhead or
an authorized broker of the insurance company's letterhead)
Hawaii County
Department of Finance
25 Aupuni Street Room 118
Hilo, Hawaii 96720
Re: Waste Reduction Facility
Director of Finance:
(Proposer) has submitted herewith a Proposal in response to the County of Hawaii
Waste Reduction Facility DesigrnBuild-Operate Project Request for Stage 2 Proposals (Stage 2
RFP) to provide permitting, design, construction, commissioning, acceptance testing, operation,
and maintenance of the Waste Reduction Facility and all support facilities (WRF). The most
advantageous Proposer will enter into a Service Contract to cause the WRF to meet certain -
Performance Guarantees, and to comply with all applicable permits, licenses, approvals and
other Applicable Law, and to provide related and ancillary services, all as defined and described
in the Stage 2 RFP, and covered by the Proposal submitted by the Proposer in response thereto,
which Proposal is made a part hereof.
The insurance company has reviewed the Proposer's Proposal, which will form the basis of
the Service Contract. The insurance company hereby certifies that it intends to provide all
required insurance set forth in this Stage 2 RFP in the event the Proposer is selected for final
negotiations and execution of the Service Contract.
Name of Insurance Company:
Name of Authorized Signatory:
Signature:
Title:
I
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 10
Design-Build-0perate Project Sheet 1 of 1
~
HAWAI'I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 11
Performance Guarantees
The Proposer agrees that the facility will operate in accordance with the following
Performance Guarantees.
Performance Guaranteed Performance Metrics Limitations
Guarantee
Facility Maximum Capacity = Tons /day
Throughput Facility Sustained Capacity = Tons /year
Energy Guaranteed Electrical Energyl'I = MW (Net)
Production
Waste Volume Guaranteed Waste Volume Reduction =
Reduction
Operational Guaranteed Minimum Availability =
Reliability
Residue Quality Quantity of Uncombusted Organics =
Emission levels must
Air Emissions Chemical and Particulate Contaminant Levels = comply with all applicable
local, state, and federal
re uirements.
Noise Maximum Operating Noise Level = dg
Emissions
I'I Assume 250 tons of waste, with a Higher Heating Value of 4800 BTU/pound, per day.
Adjustments will be made based on actual values.
tz> See Appendix 2 for background on Performance Guarantees and calculations.
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 11
Design-Build-Operate Project Sheet 1 of 1
~ HAWAI'I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 12
Specifications of Major Equipment/Systems
(Copy and complete this form for all Major Equipment/Systems;
Attach additional pages if necessary)
General Information Proposer-Specific Information
Name of EquipmenUSystem
Manufacturer
Identification/Model No.
Number of Units
r.+~
r.r'
Design/Operational Parameterst~1 ProposerSpecific Informationt'I
Capacity
Size/Dimensions
Power Requirements/Voltage
i 1'~+
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 12
Design-Build-Operate Project Sheet 1 of 2
r
Materials of Constructions"I ProposerSpecific Information151
Other Features
Notes:
1. Proposer shall duplicate this form for all major equipment and systems required. Major
Equipment /Systems are key components of the facility including, but not limited to, Cranes,
Furnace /Boiler Units, Combustion Control Systems, Turbine Generator, Air Pollution Control
Systems, Residue Handling and Storage System, Fans, Cooling Tower, Pumps, Condensers,
Feedwater Heaters, Make-up Water Treatment Systems, and Wastewater Treatment
Systems.
2. Proposer shall include all additional parameters regarding the Design/Operational
requirements that are applicable to [he given system and/or equipment. This shaft include
items such as throughput, ratios, or other appropriate measurements.
3. Proposer -specific information shall include the appropriate measurements and units (i.e.,
tpd, volts, ft~, etc).
4. Proposer shall identify each major component of the equipment and system (i.e., structure,
floors, enclosures, cores, etc.).
5. Proposer shall identify the corresponding material of the listed component (i.e., concrete,
type of metal, etc.).
,w,.,
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 12
Design-Build-Operate Project Sheet 2 of 2
~ HAWAI'I COUNTY WASTE REDUCTION FACILITY t~
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 13
Process Residue and Liquid Discharge Data
Provide breakdown of the Characteristics of the items listed below:
Process Residue
Bottom Ash
Quantity:
Unit Weight:
Moisture Content:
Chemical Characteristics:
Fly Ash
Quantity:
Unit Weight:
Moisture Content:
Chemical Characteristics:
Combined Residue
Quantity:
Unit Weight:
Moisture Content:
Chemical Characteristics:
Liquid Discharges
Process Wastewater
i~
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submithal Form 13
Design-BuildAperate Project Sheet 1 of 2
'~.r Quantity (gpd):
Quantity (gpm):
BOD:
TSS:
Physical I Chemical Characteristics:
Sanitary Wastewater
Quantity (gpd):
Quantity (gpm):
BOD:
TSS:
Physical /Chemical Characteristics:
i
`w,u,.
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Sutrmittal Form 13
Design-build-Operate Project Sheef 2 of 2
~ HAWAI'I COUNTY WASTE REDUCTION FACILITY l
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 14
Air Pollutant Emissions
STACK DESCRIPTION
1. Construction Materials:
- Flue:
- Common stack(s): _
2. Insulation Materials:
3. Grade Elevation (feet above MSL):
4. Height above grade (ft):
C 5. Number of Stacks:
6. Number of Flues per Stack: _
7. Inside Diameter of Each Flue (ft):
8. Outside Diameter of Common Stack (ft):
9. Exist Gas Volume Flow per Flue
- ACFM:
- DSCFM:
10. Exit Gas Temperature (CF):
11. Sampling Port
Locations:
12. Continuous Emission Monitors:
-Manufacturers:
- Model Nos.:
- Parameter(s):
- Location:
13. Stack Emissions
i~
Hawaii County July 3, 2006 - - -
Waste Reduction Facility RFP Proposal Submithal Form 14
Design-Build-Ope2te Project Sheet 1 of 6
i~.~.
y~"° Stack emissions based on an installed capacity of 300 TPD of MSW at 4,800 Btu/Ib.
Uncontrolled Controlled Averaging Total
(IbIMMBtu) (Ib/MMBtu) Period Annual
Emission
s
CRITERIA POLLUTANTS:
Particulates:
-Front-Half
-Back-Half
Total
SOZ
NOX (as NOZ)
CO
Nonmethane
Hydrocarbons (as
CH,)
Lead
NON-CRITERIA POLLUNTANTS:
Asbestos
Beryllium
Mercury
Vinyl Chloride
Fluorides (as HF)
Sulfuric Acid
Mist
Hydrogen
Sulfide (HZS)
Total Reduced Sulfur
including HZS (as HZS)
Reduced Sulfur
Compounds including
HZS (as HZS)
HCI
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 14
Design•Builtl-Operate Project Sheet 2 of 5
~
OTHER POLLUTANTS:
Trace Metals:
Antimony
Arsenic
Barium
Cadmium
Chromium
Cobalt
Copper
Manganese
Molybdenum
Nickel
Scandium
Selenium
Vanadium
Zinc
Trace Organics:
t/ PCB
Chlorinated Phenols ~
Chlorinated Benzenes
Total PCDDt'i:
-2378 TCDD
-other TCDD
-Penta CDD
-Hexa CDD
-Hepta CDD
-Octa CDD
Total
Total PCDFt't:
-2378 TCDF
-other TCDF
-Penta TCDF
-Hexa TCDF
-Hepta TCDF
i ~°M"~
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 14
Design-Build-Operete Project Sheet 3 of 5
~ -Octa TCDF
-Total
Polynuclear Aromatic Hydrocarbonst'l:
-Benzo-a-pyrene
-Chrysene
-Anthracene
-Phenathrene
-Coronene
-Pyrene
-Fluoroanthene
-Other:
Total
Aldehydes (as
formaldehyde)
Organic acids (as
~a. ~ acetic acid)
t'i ALSO RECORD AS NONOGRAMS PER DAY STANDARD CUBIC METER
FUGITIVE EMISSIONS
1. Estimated Emissions: Emissions (tons/yr)
-Cooling Tower Drift
-Waste Handling and Storage
-Ash Handling, Storage Treatment
- On-site Fuel Storage _
-Sorbent Handling, Storage and Preparation _
-Ammonia Handling, Storage and Preparation
(if applicable)
Other:
2. Describe method used to estimated uncontrolled fugitive emissions and
measures to be used to control these emissions:
Hawaii County July 3, 2006
Waste Reducdon Facility RFP Proposal Submittal Form 14
Design-Build-0perate Project Sheet 4 of 5
{
ODORS
1. Describe measures to be used to control odors resulting from waste handling and
storage during normal operations:
2. Describe equipment and measures to be used to control odors resulting from
waste handling and storage when one or more combustion units is down,
including shutdown of all units:
t
i~
Hawaiti Counly July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 14
Design-BuildAperate Project Sheet 5 of 5
~
~ HAWAI'i COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 15
Major Equipment Replacement Schedule
(Expand and format this form as necessary to express maintenance, repair and
replacement activities over a 20-year base operating period and one 5-year extension
period)
Year Activity/Equipmentt't Costst2if'i
1.
2.
3.
( 4.
5.
6.
7.
8.
9.
10.
11.
12.
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 15
Design-Build-Operate Project Sheet t of 3
Year Activity/Equipmentt~~ CoststZit'i
13.
14.
15.
16.
17.
18.
19.
20.
i
Total For 20 Years $
Year Activity/Equipmentt'i Costsl2tt'~
21.
22.
23.
24.
25.
Total fors-year extension $
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 15
Design-Build-Ope2te Project Sheet 2 of 3
~
(1) List individual activities or groups of activities, along with specific mention of equipment, systems and other
components. Activities should be limited to equipment replacement and maintenance in excess of $25,000.
(2) Corresponding itemized costs for unused portions may ba carried over into the next year in accordance with [Article
X of the Draft Service Contract].
(3) Only equipment and parts costs included.
s.,
( h.rr
Hawai i County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form [5
Design-Build-Operate Project Sheet 3 of 3
( HAWAII COUNTY WASTE REDUCTION FACILITY t ~
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 16
Fixed Design-Build Price Breakdown
SUMMARY OF FIXED DESIGN-BUILD PRICE COSTt~t
Development Period Costs:
Planning $
Engineering and Design Costs ~
Site Surveys, Borings, etc. $
Permitting $
Securing Financing for Construction $
Other (Specify) $
C TOTAL FIXED DEVELOPMENT FEE $
Construction Period Costs
Site Work:
Site Preparation and Mobilization $
Clearing and Grubbing $
LandscapinglRestoration $
Roads, Parking, Lighting, Utilities, Fencing, Gates, etc. $
Grading, Excavation, and Backfill $
Utilities $ $
Other (Specify): $
Subtotal $
Structures:
Building Foundations $
Building Structure $
Exterior Finish $
Interior Finish
( $ ~
Hawaii County July 3, 2006
Wasfe Reduction Facility RFP Proposal Submittal Form 16
Design-Build-Operate Project Sheet 1 of 4
~ n...
Y
SUMMARY OF FIXED DESIGN-BUILD PRICE COSTI'I
Stack(s) $
Other (Specify): $
Subtotal $
Equipment:
Waste Handling Equipment
Cranes $
Mobile Equipment $
Other $
Furnaces /Boilers $
Residue Handling $
Water Treatment $
Deaerator $
Piping and Valves $
Turbine Generator $
Condenser(s) $
Cooling Tower $
Air Pollution Control Equipment $
Wastewater Treatment System $
Other (Specify): $
Subtotal $
Electrical:
Plant Electrical $
Switchyard and Electrical Interconnect $
Subtotal $
Instrumentation and Controls $
Other (Specify): $
Start-up Commissioning:
Pre-Start-up Inspection $
Acceptance Testing $
Other (specify) $
Hawai i County July 3, 2006
Waste Reduction Facility RFP Proposal Suhmitfal Form 16
Design-Build-Operate Project Sheet 2 of 4
( ~ mow.
SUMMARY OF FIXED DESIGN-BUILD PRICE COSTItI
Subtotal $
Other Direct and Indirect Costs:
Administrative $
Insurance (During Construction) $
Record Drawings, O&M Manuals and Training $
performance Bond {During Construction) $
Other (specify): $
Subtotal $
TOTAL FIXED CONSTRUCTION PRICE $
TOTAL FIXED DESIGN-BUILD PRICE $
Percent of Fixed Construction Price Index o~p
Percent of Steel and Cement Price Index %
Steel and Cement Quantity and Cost Data
The Fixed Construction Price provided above includes
the following:
Eligible Reinforcing Steel
Baseline Amount' $
Baseline Raw Material Amount** (tons) $
Eligible Steel Products other tfian Reinforcing
Steel
Baseline Amount* $
Baseline Raw Material Amount** (tons) $
Eligible Cement
Baseline Amount* $
Baseline Raw Material Amount** (tons) $
* This is a product of Baseline Raw Material Amount Multiplied by the prevailing price of a particular raw
material set forth herein, as prepared by the Proposer as of the Proposal Date (excluding all associated
procurement costs, labor costs, and tax and freight charges).
This is an amount the Proposer reasonably believes to be the anticipated amount of a particular raw
material set forth herein required to complete the Project, as prepared by the Proposer as of the Proposal
Date. The Fixed Design-Build Price Adjustment shall be allowable for the purchases only up to 120 percent
`~r?°`
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Forrn 16
Design-Build-0perate Project Sheet 3 of 4
~s..~ of the Baseline Raw Material Amounts provided for each raw material set forth herein, in accordance with
[Article X of the Drak Service Contract].
(1) The Fixed Construction Price shall include all costs, including any operating and maintenance costs, in
the Construction Period and shall remain in effect through the Date of Construction Price Escalation,
which is [March X, 2007]. Thereafter, the Fixed Construction Price shall escalate in acwrdance with
Appendix 12 up until Notice to Proceed. Thereafter, the Fixed Construction Price will not be escalated.
v,..r
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 16
Design-Build-Operate Project Sheet 4 of 4
HAWAII COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT °~Y°
Proposal Submittal Form 17
Service Fee and Electricity Generation Breakdown
SUMMARY OF B,4$E SERVICE CHARGE
Item Costltl
Base Service Char e
Labor $ / r
Site Maintenance $ / r
Meterin , Monitorin ,and Testin $ / r
Routine Maintenance $ / r
Re air and Re lacement less than $25,000 ` $ / r
Administrative Mana ement, etc. $ / r
Ca ital Recove Private Financin A roach OnI Izl $ / r
Other s eci $ / r
C. $ /yr
Base Service Char e $ / r
Date of Base Service Char a Escalation: Janua X, 2007
Percent of Base Service Charge Index
100% maximum : %
(1) The Base Service Charge shall reflect the Date of Escalation, January X, 2010. Thereafter, they shall escalate in
acwrdance with Schedule 12 in Volume III [o this RFP.
(2) In the event that the Private Financing Approach is employed, the Capital Recovery component is the Company's
only vehicle to recover their equity contribution and the cost ofinternal/eztemal financing.
"Only includes parts and equipment.
NET~EL~CTRI~sAL GERATION
. _ ,
Waste Throughput Electrical Generation Total Generation
t d kWhr/ton MW
t
Hawaii County July 3, 2006
Waste Reductlon Facility RFP Proposal Submithal Form 17
Design-Build-Operate Project Sheet 1 of 1
~ a.. HAWAII COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 18
Guaranteed Maximum Electricity
Utilization/Demand
It is the County's expectation that the Company will operate the Facility using electricity that
it produces. However, the County recognizes that there will be periods when electricity will
be required during scheduled or unscheduled Facility downtime andlor when the Facility is
producing inadequate electricity to operate. Using this Proposal Submittal Form, the
Company shall guarantee a Maximum Annual Electricity Utilization, and a Maximum Peak
Electricity Capacity for these periods.
1. Guaranteed Maximum Annual Electricity Utilization for WRF:
kilowatt-hours per year
2. Guaranteed Maximum Peak Electricity Capacity for WRF:
kilowatts
Notes:
The County will reimburse the Company for electricity costs only to the maximum annual
electricity consumption amounts presented in this form.
The Company shall be responsible for all electricity costs associated with exceeding the
maximum usage amounts provided on this Proposal Submittal Form.
`~r
Hawaii County Juty 3, 2006
Waste Retlucdon Facility RFP Proposal Submittal Form 18
Design-Builtl-Operate Project Shee[ 1 of 1
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HAWAII COUNTY WASTE REDUCTION FACILITY ~ "'"n
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 20
Operating Period Insurance, Operation Period
Performance Bond, Letters of Credit, and
Termination for Convenience Amounts
Insurance Cost During Project Operation 1'1 $ /yr
Pertormance Bond Cost During Project Operation)2>
Bond Size of $3,000,000 $ /yr
Bond Size of $5,000,000 $ /yr
Bond Size of $10,000,000 $ /yr
( Letters of Credit (3) (/~y
Maximum Annual Letter of Credit Fee (Construction)
20M) $ /yr
Maximum Annual Letter of Credit Fee
(Operation) 4M) $ /yr
Termination for Convenience Before Acceptance Date (<1 $
Termination for Convenience After Acceptance Date I^j $
Notes:
1~1 Insurance required is specifed in Appendix 14 of the Stage 2 RFP. Insurance costs during operation
shall be paid as a Pass Through Cost during the Operation Period. Estimated amount shall be in 2006
dollars.
tzl Costs for the Performance Bond during the Operation Period shall be paid as a Pass Through Cost.
Estimated amounts shall be in 2006 dollars. The County will select the Performance Bond size during
the Operation Period prior to the Agreement Date.
131 Letters of Credit requirements are discussed in Section 4.4.2 of the Stage 2 RFP. Amounts shall be in
2006 dollars.
(41 The Termination for Convenience amounts will be used to complete the Service Contract. These costs
will not be subject to escalation. The amount for post-Acceptance Date termination will decline in equal
amounts on a monthly basis until the end of the initial 20-year Operation Period where at such time the
termination for convenience amount will be $0. Refer to the Service Contract for additional detail for
r application of these fgures.
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Form 20
Design-Build-Operate Project Sheet 1 of 1
HAWAI'I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
Proposal Submittal Form 21
Change Order History
Project and Contactjtj Change Claims Explanation
Order (/e)
Noes:
1. Proposers shall list Project Name, Owner, and Owner contact name and phone number. The Owner contact should
be an individual with knowledge of the change order and claims for this Project.
Hawaii County July 3, 2006
Waste Reduction Facility RFP Proposal Submittal Fonn 21
Design-Build-Operate Project Sheet 1 of 1
HAWAI`1 COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
REQUEST FOR STAGE 2 PROPOSALS
ATTACHMENT A
FIGURES
Figure 1 -Location Map
r.~
PROJECT LOCATION
\ rat
2~ .,.~i
HAWAII \`\P~~'
. t ~ ,~aQ
7t' General Lyman Field (Hilo International Airport)
~ I
0
0
s
J
- I
s P~`S~ T FE TATIO
BASEYA
- ---w^~-
- ~ HILO TRA ~KEAUKANA MILITARY
I~ STATION RESERVATIOrv
~ __e~. _,w`.°"`-'.'~ FUTURE RELOAI~'°~N ~
~ FACILITY/ ~A,rh'q~
~ WRF SITE
Q ~ HILO GREEN
_
s k# WASTE SITE ~ ~=ny
0 4~ ~ ~ OUTH HILO
z v SANITARY LANDFILL I
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f^ Po ~ ~
I
County of Hawaii Wasie Reduction Facility
Design -Build -Operate Project
Request for Stage 2 Proposals
FIGURE 1: LOCATION MAP
HAWAt`I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
REQUEST FOR STAGE 2 PROPOSALS
ATTACHMENT B
RELOAD FACILITY DRAWINGS / GEOTECHNICAL
INFORMATION
~
~
HAWAI`I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
REQUEST FOR STAGE 2 PROPOSALS
ATTACHMENT B
RELOAD FACILITY DESIGN 1 GEOTECHNICAL INFORMATION
TO COME
tom...
~`r.r County of Hawaii July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals -Attachment B
Design-Build-Operate Project Page 1 of 1
HAWAII COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
REQUEST FOR STAGE 2 PROPOSALS
ATTACHMENT C
COMMUNICATION PROTOCOL
C ~
HAWAI`I COUNTY WASTE REDUCTION FACILITY
DESIGN-BUILD-OPERATE PROJECT
REQUEST FOR STAGE 2 PROPOSALS
ATTACHMENT C
COMMUNICATION PROTOCOL
Project Communication Objectives
The County of Hawaii is proposing to develop a Waste Reduction Facility using the
Design-Build-Operate alternative delivery method. The County anticipates Proposals
from multiple firms and intends to take all reasonable measures to assure that accurate
and consistent information is distributed regarding all aspects of the Project.
Furthermore, the County is committed to use a fair and open procurement process for the
Project.
Specifically, the County is committed to:
¦ achieving the fair and accurate distribution of relevant information to interested
parties;
avoiding "insider" information and the appearance thereof;
providing regular informational updates about the Project; and
providing prompt, thorough and accurate responses to parties with questions or
concerns.
The County requires that the following guidelines be followed by firms and individuals
who have an interest in the Project and may wish to participate in the procurement
process:
1. Participating Proposers: The County requests that participating firms direct any and
all inquiries related to this Project, including inquiries to the County's elected officials
or representatives of their offices, to the County's Contact Person (Bill Takaba).
Participating proposers can only rely upon written addendum issued by the County in
response to such inquiries.
2. Elected officials will refer any and all inquiries related to this Project to the
County's Contact Person (Bill Takaba)
3. Public Outreach: The County requests that participating firms not engage in
outreach efforts to the local community residents, businesses or organizations during
the Stage 2 RFP phase.
4. Contact with Regulators: The participating Proposers may contact regulators
responsible for issuing permits with respect to whether their proposed design /
technology can be permitted or not under applicable law.
County of Hawaii July 3, 2006
Waste Reduction Facility Request for Stage 2 Proposals -Attachment C
Design-Build-Operate Project Page 1 of 1
HDW Draft of 7/6/06
1r~
DRAFT SERVICE CONTRACT
FOR THE
DESIGN, CONSTRUCTION AND OPERATION
OF THE
COUNTY OF HAWAII
SOLID WASTE REDUCTION FACILITY
between
`r•
COUNTY OF HAWAII, HAWAII
AND
[PROJECT COMPANY]
Dated
2007
ht~
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TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1 DEFINITIONS ..........................................................................................3
SECTION 1.2 INTERPRETATION .................................................................................28
(A) References Hereto .........................................................................28
(B) Gender and Plurality 28
(C) Persons ........................................................................................28
(D) Headings ......................................................................................28
(E) Entire Agreement 28
(F) Design Requirements 29
(G) Standards of Workmanship and Materials .....................................29
(H) Technical Standards and Codes ....................................................29
(I) Liquidated Damages .....................................................................29
(J) Causing Performance ...................................................................30
(K) Pazty Bearing Cost of Performance ................................................30
(L) Assistance ....................................................................................30
(M) Interpolation 30
(N) Applicability and Stringency of Contract Standazds .......................30
(O) Delivery of Documents in Digital Format .......................................30
(P) Severability 31
(Q) No Third-Party Rights ...................................................................31
(R) References to Days .......................................................................31
(S) References to Including 31
ti.~. (T) References to Knowledge ...............................................................31
(U) Counterparts ................................................................................31
Governing Law 31
(W) Defined Terms ..............................................................................31
ARTICLE II
REPRESENTATIONS AND WARRANTIES
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE COUNTY .....................32
(A) Existence and Powers ...................................................................32
(B) Due Authorization and Binding Obligation ....................................32
(C) No Conflict 32
(D) No Approvals Required 32
(E) No Litigation .................................................................................32
(F) County Ownership Interests in the Site .........................................32
(G) Information Pertaining to the Site 33
SECTION 2.2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY ..................33
(A) Existence and Powers ...................................................................33
(B) Due Authorization and Binding Obligation ....................................33
(C) No Conflict 33
(D) No Approvals Required 33
(E) No Litigation .................................................................................33
(F) Claims and Demands ...................................................................34
(G) Applicable Law Compliance ..........................................................34
(H) Practicability of Performance of the Facility ...................................34
(I) Patents and Licenses ....................................................................35
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(J} Information Supplied by the Company 35
( SECTION 2.3. KNOWLEDGE-BASED REPRESENTATIONS ...........................................35 j
ARTICLE III
TERM
SECTION 3.1. EFFECTIVE DATE AND INITIAL TERM ...................................................36
SECTION 3.2. RENEWAL AND EXTENSION OPTION .....................................................36
ARTICLE IV
DEVELOPMENT PERIOD
SECTION 4.1. SITE SUITABILITY CONFIRMATION .......................................................37
(A) Site Familiarity .............................................................................37
(B) County-Supplied Information ........................................................37
(C) Site Access During Development Period ........................................37
(D) Discovery of Hazardous Materials or Other Regulated
Substances ..................................................................................38
SECTION 4.2. DEVELOPMENT PERIOD RESPONSIBILITIES OF THE PARTIES .............38
(A) County Development Period Responsibilities .................................38
(B) Company Development Period Responsibilities ..............................40
(C) Payment for Company Development Period Work ..........................44
SECTION 4.3. CONSTRUCTION COMMENCEMENT DATE CONDITIONS .......................44
(A) Construction Commencement Date Conditions Defined .................44
(B) Construction Commencement Date Conditions for which
( Both Parties Have Responsibility 45
SECTION 4.4. CLOSING THE DEVELOPMENT PERIOD ................................................45
(A) Establishment of the Construction Commencement Date 45
(B) Failure of Conditions 45
SECTION 4.5. COUNTY TERMINATION OPTION DURING THE DEVELOPMENT
PERIOD . . 46
(A) County Convenience Termination Option Prior to
Construction Commencement Date ...............................................46
(B) Delivery of Development Period Work Product to the County..........46
(C) County Right of Termination Upon Required Redesign of the
Facility 46
(D) Costs, Records and Reporting .......................................................47
SECTION 4.6. REGULATORY CONTRACT APPROVAL ...................................................47
ARTICLE V
DESIGN AND PERMITTING OF THE DESIGN/BUILD IMPROVEMENTS
SECTION 5.1. DESIGN WORK ......................................................................................48
(A) Performance of the Design Work ...................................................48
(BJ Design Risk ..................................................................................48
(C) Changes to Design Requirements ..................................................48
(D) Licensing Requirements ................................................................49
SECTION 5.2. PERMIT CONDITIONS ............................................................................49
(A) Negotiation of Permit Conditions ...................................................49
(B) Proposed Conditions and Company Evaluation .............................49
(C) Permit Acceptance -Conditions of Lesser Stringency Than
Environmental Guazantee ............................................................49
(ii)
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(D) Start-up Operations and Shutdown Operations .............................49
.~,.y (E) Offsets 50
SECTION 5.3. PERMITTING WORK ..............................................................................50
(A) Company Permitting Responsibilities ............................................50
(B) County Permitting Responsibilities 51
(C) Company Assumption of Permitting Risk for Design/Build
Improvements 52
(D) Failure of Company to Obtain Governmental Approval in a
Timely Manner .............................................................................52
SECTION 5.4. COMPLIANCE WITH APPLICABLE LAW 53
(A) Compliance with Applicable Law and Equipment Operating
Requirements 53
(B) Compliance with Conditions in Governmental Approvals 53
(C) Governmental Approvals Necessary for Continued
Construction 53
(D) Fines, Penalties and Remediation 53
ARTICLE VI
FINANCING AND POWER PURCHASE AGREEMENT
SECTION 6.1. COUNTY FINANCING .............................................................................54
SECTION 6.2. GENERAL BOND RESOLUTION .............................................................54
SECTION 6.3. POWER PURCHASE AGREEMENT .........................................................54
(A) General Terms 54
(B) Company Responsibilities .............................................................54
ARTICLE VII
CONSTRUCTION OF THE FACILITY
SECTION 7.1. AGREEMENT TO CONSTRUCT 56
(A) Commencement of Construction ...................................................56
(B) Construction Practice 56
(C) Measurements ..............................................................................57
(D) Engagement of Authorized Representative 57
(E) Title and Risk of Loss 57
(F) Encumbrances .............................................................................58
(G) Utilities ........................................................................................58
(H) Payment of Costs ..........................................................................58
(I) Notice of Default 58
(J) Compliance With Law ...................................................................58
SECTION 7.2. COMMENCEMENT OF WORK ................................................................59
(A) Notice to Proceed ..........................................................................59
(B) Time 59
(C) Effect of Progress Schedule 59
SECTION 7.3. DESIGN REVIEW, OBSERVATIONS, TESTING AND UNCOVERING OF
WORK 59
(A) Observations and Design Review Protocol 59
(B) Tests ............................................................................................59
(C) County Observations, Inspections and Tests .................................60
(D) Certificates and Reports ...............................................................61
(E) Taking Apart, Uncovering and Replacing Design/Build Work.........61
~ (F) Monthly On-Site Meetings and Design and Construction
Review 62
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(G) Notices of Non-Compliance ...........................................................62
~ SECTION 7.4. CORRECTION OF DESIGN(BUILD WORK ..............................................62
(A) Correction of Non-Conforming Design/Build Work ........................62
(B) Costs of Correction .......................................................................63
(C) Elective Acceptance of Defective Design/Build Work ......................63
(D) Relation to Other Obligations ........................................................63
(E) Payments of Amounts Owed 63
SECTION 7.5. DAMAGE TO THE FACILITY ...................................................................63
(A) Damage Prevention .......................................................................63
(B) Restoration ..................................................................................63
(C) Notice and Reports 64
SECTION 7.6. CHANGE ORDERS AND EXTRA DESIGN/BUILD WORK .........................64
(A) Right to Issue Change Orders 64
(B) ExtraDesignJBuildWork .............................................................64
(C) Extra Design/Build Work Caused by Company Fault ....................64
(D) Cost Reductions from Change Orders ...........................................65
(E) Proposal for Extra Design/Build Work ..........................................65
(F) Conditions to Obligation to Proceed ..............................................65
(G) Obligation to Proceed Notwithstanding Dispute .............................66
(H) Disputed Work .............................................................................66
(I) Notice; Waiver ..............................................................................66
SECTION 7.7. PATENT, COPYRIGHT AND OTHER PROTECTED MATERIAL ..................66
(A) Property of the County ..................................................................66
(B) Delivery of Deliverable Material .....................................................66
(C) Use of Deliverable Material, Processes and Equipment ..................66
(D) Substitutes for Deliverable Material, Process or Equipment...........67
C SECTION 7.5. COUNTY TERMINATION OPTIONS DURING THE CONSTRUCTION
PERIOD .................................................................................................67
(A) County Termination for Cause ......................................................67 ..w+"~
(B) Cost Records and Reporting ..........................................................67
(C) Delivery of Construction Period Work Product to the County 67
SECTION 7.9. PERSONNEL ..........................................................................................68
{A) Personnel Performance 68
(B) Construction Manager ..................................................................68
(C) County Rights With Respect to Key Personnel ...............................68
(D) Labor Disputes .............................................................................69
(E) Prevailing Wages ..........................................................................69
SECTION 7.10. WARRANTIES ........................................................................................69
ARTICLE VIII
ACCEPTANCE OF THE FACILITY
SECTION 8.1. START-UP OPERATIONS ........................................................................70
(A) Notices .........................................................................................70
(B) Commissioning .............................................................................70
(C) Deliveries for Start-Up and Commissioning; Payment ....................70
(D) Failure of Deliveries for Start-Up and Commission Operations....... 71
(E) Operations Following Start-Up/Commissioning and Prior to
Acceptance Testing 71
(F) Personnel Training 72
(G) Residue Sampling and Analysis 72
SECTION 8.2. SUBSTANTIAL COMPLETION .................................................................73
1 (A) Conditions to Substantial Completion ...........................................73 i''~?,
(B) Final Punch List ...........................................................................74
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SECTION 8.3. CONDUCT OF ACCEPTANCE TEST ........................................................76
SECTION 8.4. ACCEPTANCE DATE CONDITIONS ........................................................75
SECTION 8.5. PROVISIONAL ACCEPTANCE; ACCEPTANCE AT REDUCED
ACCEPTANCE STANDARD; THROUGHPUT PERFORMANCE
LIQUIDATED DAMAGES ........................................................................76
(A) Provisional Acceptance at Full Acceptance Standard 76
(B) Option to Establish Acceptance Date 77
(C) Unexcused Non-Compliance 78
(D) Acceptance Re-testing ..................................................................78
(E) Uncontrollable Circumstances 78
SECTION 8.6. DISPOSAL BY COMPANY UPON UNEXCUSED DELAY IN
ACCEPTANCE DATE ..............................................................................79
(A) Interim Service 79
(B) Payment for Interim Service ..........................................................80
(C) Interim Service Does Not Constitute Acceptance 80
(D) Operations During Extension Period 80
SECTION 8.7. TEST REPORT .......................................................................................80
SECTION 8.8. CONCURRENCE OR DISAGREEMENT WITH TEST RESULTS .................80
(A) Acceptance Date Concurrence ......................................................80
(B) Acceptance Date Disagreement .....................:...............................81
SECTION 8.9. REPETITION OF ACCEPTANCE TEST; EXTENSION PERIOD ...................81
SECTION 8.10. FAILURE TO MEET ACCEPTANCE STANDARD ......................................81
SECTION 8.11. FINAL COMPLETION 82
(A) Requirements ...............................................................................82
(B) Final Certificate and Claims Statement .........................................82
(C) Payment for Punchlist Items .........................................................83
SECTION 8.12. NO ACCEPTANCE, WAIVER OR RELEASE ..............................................83
SECTION 8.13. NO SERVICE FEE PAYMENT DURING START-UP AND TESTING 84
ARTICLE IX
PAYMENT OF THE DESIGN/BUILD PRICE
SECTION 9.1. DESIGN/BUILD PRICE ..........................................................................86
(A) Design/Build Price Generally ........................................................85
(B) Fixed Design/Build Price ..............................................................85
(C) Fixed Design/Build Price Adjustments ..........................................85
(D) Limitation on Payments for Costs of the Design/Build Work..........88
SECTION 9.2. PAYMENT FOR THE DEVELOPMENT PERIOD WORK .............................88
(A) Fixed Development Price ...............................................................88
(B) Milestone Schedule .......................................................................88
(C) Conditions of Payment ..................................................................88
(D) Disbursement Procedure 89
(E) Disbursement Dispute Procedures ................................................89
(F) Retainage 90
SECTION 9.3. PAYMENT PROCEDURE FOR CONSTRUCTION PERIOD WORK ..............90
(A) Fixed Construction Price ..............................................................90
(B) Milestone Schedule .......................................................................90
(C) Construction Disbursement Procedure ..........................................90
(D) Disbursement Dispute Procedures ................................................92
(E) Retainage 93
SECTION 9.4. CONDITIONS OF PAYMENT ...................................................................93
(A) Information Supporting Requisition ..............................................93
(B) Permissible Withholdings ..............................................................93
SECTION 9.5. FINAL REQUISITION AND PAYMENT ......................................................94
(v)
487571.3 028493 AGMT
(A) Final Requisition 94
l (B) Final Payment ..............................................................................95 i,r.w,
SECTION 9.6. PAYMENT OF SUBCONTRACTORS ........................................................96
...f,.
SECTION 9.7. AUDIT BOOKS AND RECORDS ..............................................................96
(A) Audit ............................................................................................96
(B) Construction Books and Records ..................................................96
ARTICLE X
DELNERY AND RECEIPT OF WASTE
SECTION 10.1. DELNERY OF PROCESSIBLE WASTE BY THE COUNTY ........................98
(A) Annual Waste Delivery Commitment .............................................98
(B) Charges to Registered Haulers ......................................................98
(C) Source Sepazation ........................................................................98
(D) Shortfall Damages ........................................................................99
SECTION 10.2. RECEIPT OR REJECTION OF WASTE BY THE COMPANY .......................99
(A) Receiving and Processing of Solid Waste .......................................99
(B) Annual Facility Throughput Guarantee .........................................99
(C) Billing Period Throughput Guarantee ............................................99
(D) Adjustments to Peak Billing Period Throughput Guarantees........ 100
(E) Determination of Billing Period Throughput Surpluses and
Deficiencies . 101
(F) Determination of Tonnage Combusted 101
(G) Billing Period Processing Record 101
(H) Disposal of Bypass Processible Waste 102
(I) Alternative Waste Disposal Site 102
( (J) Segregation of Non-Processible Waste 103 (Ab
(K) Storage 103
SECTION 10.3. DELIVERY SCHEDULES, PROCEDURES AND REQUIREMENTS 103
(A) Annual Operating Plan 103
(B) Registered Haulers 103
(C) Delivery Procedures 103
(D) Spillage of Solid Waste 104
(E) Release of Hazardous Substances 104
SECTION 10.4. RECEIVING AND OPERATING HOURS 104
(A) Receiving Time 104
(B) Operating Hours 104
SECTION 10.5. WEIGHING RECORDS 105
(A) Measurement Devices and Procedures 105
(B) Estimates During Incapacitation 105
(C) Weight Records 105
(D) Representative to Monitor Compliance 105
SECTION 10.6. NON-COUNTY PROCESSIBLE WASTE 106
(A) Prohibition on Receipt of Non-County Processible Waste 106
(B) Waiver of Prohibition 106
SECTION 10.7. TEMPORARY SHUTDOWNS 106
(A) Notice 106
(B) Effect of Temporary Shutdown 106
SECTION 10.8. HAZARDOUS MATERIAL 106
(A) Responsibilities ..........................................................................106
SECTION 10.9. LIMITATION ON SUPPLEMENTAL FUELS OR COMPANY-SUPPLIED
MATERIAL . 107
l i~
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ARTICLE XI
~ OPERATION AND MANAGEMENT
SECTION 11.1. COMPANY OBLIGATIONS GENERALLY 108
(A) Operation and Management Responsibility 108
(B) Transfer and Application of Industry Experience 108
SECTION 11.2. COUNTY OBLIGATIONS GENERALLY 108
SECTION 11.3. SERVICE COORDINATION AND CONTRACT ADMINISTRATION............ 108
(A) Company's Facility Manager 108
(B) Company's Senior Supervisors 109
(C) County's Contract Representative 109
(D) County Approvals and Consents 109
(E) Communications and Meetings 110
SECTION 11.4. OPERATION AND MAINTENANCE MANUAL 110
(A) Company Responsibility 110
(B) Supplements for Capital Modifications 111
SECTION 11.5. STAFFING AND PERSONNEL TRAINING 111
(A) Staffing 111
(B) Training 111
SECTION 11.6. TRAINING OF COUNTY PERSONNEL 112
(A) Emergency Preparedness 112
(B) Ongoing Training 112
(C) Permanent Operations 112
SECTION 11.7. ELECTRICITY SUPPLY AND CONSUMPTION 113
(A) Generally 113
(B) Back-Up Supply 113
SECTION 11.8. SAFETY AND SECURITY 113
(A) Safety 113
(B) Security 114
SECTION 11.9. COMPLIANCE WITH APPLICABLE LAW 114
(A) Compliance Obligation 114
(B) Sampling, Testing and Laboratory Work 114
(C) Investigations of Non-Compliance 115
(D) Fines, Penalties and Remediation 115
(E) No Nuisance Covenant 115
SECTION 11.10. OPERATING GOVERNMENTAL APPROVALS 116
(A) Applications and Submittals 116
(B) Data and Information 116
(C) Non-Compliance and Enforcement 117
(D) Reports to Governmental Bodies 117
(E) Potential Regulatory Change 117
SECTION 11.11. COUNTY ACCESS TO FACILITY 117
SECTION 11.12. ASSET AND FINANCIAL RECORDS 118
(A) Managed Assets Records 118
(B) Availability of Managed Assets Records to County 118
(C) Record Documents 118
(D) Financial Records 118
(E) Annual Audited Report Required Under the Act 119
(F) Company Financial Reports 119
(G) Inspection, Audit and Adjustment 119
SECTION 11.13. PERIODIC REPORTS 120
(A) Monthly Operations 120
(B) Annual Operations and Maintenance Reports 120
(C) Default Reports 120
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(D) Permit Communications and Reports 120
(E) Periodic Audits 120
SECTION 11.14. EMERGENCIES ...................................................................................120
(A) Emergency Plan 120
(B) Emergency Action 121
SECTION 11.15. CONTRACT ADMINISTRATION 121
(A) Administrative Communications 121
(B) Contract Administration Memoranda 121
(C) Procedures .................................................................................122
(D) Effect .........................................................................................122
SECTION 11.16. COST REDUCTION AND SERVICE IMPROVEMENT 122
ARTICLE XII
PERFORMANCE
SECTION 12.1. FACILITY PERFORMANCE GENERALLY 123
(A) Reliance .....................................................................................123
(B) Curtailments and Shutdowns 123
(C) Limitations on Company Rights 123
SECTION 12.2. ANNUAL FACILITY THROUGHPUT GUARANTEE 123
SECTION 12.3. ANNUAL ELECTRICITY PRODUCTION GUARANTEE 123
SECTION 12.4. ENVIRONMENTAL GUARANTEE 123
(A) General ......................................................................................123
(B) Company Non-Compliance with Environmental Guazantee.......... 124
(C) Enhanced Standards 124
(D) Start-up Operations and Shutdown Operations Relief 124
C (E) Environmental Guazantee, Permits and Uncontrollable (
Circumstances 125
SECTION 12.5. RESIDUE GUARANTEE 125
(A) General ......................................................................................125
(B) Residue Performance Liquidated Damages 125
(C) Procedures for Determining Compliance with Residue
Guarantee 126
SECTION 12.6. ENVIRONMENTAL TESTING ................................................................126
SECTION 12.7. COUNTY REMEDIES FOR NON-COMPLIANCE WITH PERFORMANCE
GUARANTEES 127
(A) Remedies 127
(B) Performance Testing 127
SECTION 12.8. RESIDUE REMOVAL, TRANSPORT AND DISPOSAL; PAYMENT 128
SECTION 12.9. ACCEPTABLE RESIDUE DISPOSAL SITE AND DESIGNATED
DISPOSAL SITE 128
(A) Acceptable Residue Disposal Site 128
(B) Required Disposal and County Approval; Designated Residue
Disposal Site 129
(C) Changes in Designated Residue Disposal Site 129
SECTION 12.10. TESTING .............................................................................................129
Testing . 129
SECTION 12.11. ACCIDENTS DURING TRANSPORT 129
ARTICLE XIII
MAINTENANCE, REPAIR AND REPLACEMENT
i~
SECTION 13.1. MAINTENANCE, REPAIR AND REPLACEMENT GENERALLY 130 .,.,r+`
(viii)
487571.3 028493 AGMT
(A) Ordinary Maintenance 130
I'
(B) Repair and Maintenance of Site Grounds 130
~w (C) Major Maintenance, Repair and Replacements by the
Company 130
SECTION 13.2. FACILITIES EVALUATIONS 131
(A) Initial and Final Valuation of Vehicles, Rolling Stock, Spare
Parts and Consumables 131
(B) Baseline Facility Record 131
(C) Final Evaluation of the Facility 131
(D) Required Condition of Facility Structures Upon Return to the
County 132
(E) Required Condition of Facility Equipment Upon Return to the
County 132
(F) Capital Modifications 132
(G) Effect of County Election to Renew 132
(H) Disputes 133
SECTION 13.3. PERIODIC MAINTENANCE INSPECTIONS 133
(A) Annual Maintenance Inspection 133
(B) Full-Scale Inspections 133
(C) Remediation 133
(D) Unscheduled Inspections 134
SECTION 13.4. COMPUTERIZED MAINTENANCE MANAGEMENT SYSTEM 134
SECTION 13.5. MAINTENANCE, REPAIR AND REPLACEMENT PLAN 134
SECTION 13.6. WARRANTIES 135
SECTION 13.7. LOSS, DAMAGE OR DESTRUCTION TO THE FACILITY 135
(A) Prevention and Repair 135
(B) Insurance and Other Third-Party Payments 135
(C) Uninsured Costs 136
(D) Repair of County and Private Property 136
ARTICLE XIV
CAPITAL MODIFICATIONS
SECTION 14.1. CAPITAL MODIFICATIONS GENERALLY 137
(A) Purpose ......................................................................................137
(B) County Approval 137
(C) Party Responsible for Costs 137
(D) Cost Savings 137
SECTION 14.2. CAPITAL MODIFICATIONS AT COMPANY REQUEST 137
SECTION 14.3. CAPITAL MODIFICATIONS DUE TO UNCONTROLLABLE
CIRCUMSTANCES 138
SECTION 14.4. CAPITAL MODIFICATIONS AT COUNTY DIRECTION 138
SECTION 14.5. PRIMARY PROCEDURE FOR IMPLEMENTING CAPITAL
MODIFICATIONS 138
(A) Primary Implementation Procedure 138
(B) Preliminary Company Plan and County Review 138
(C) Company Implementation Proposal 139
(D) Negotiation and Finalization of Company Implementation
Proposal 139
(E) Implementation Procedures 140
SECTION 14.6. ALTERNATNE PROCEDURES FOR IMPLEMENTING CAPITAL
MODIFICATIONS 140
SECTION 14.7. FINANCING CAPITAL MODIFICATIONS 140
SECTION 14.8. COMPANY NON-IMPAIRMENT RIGHTS 141
(ix)
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ARTICLE XV
""'sy,
SERVICE FEE AND OTHER PAYMENTS
SECTION 15.1. SERVICE FEE GENERALLY 142
SECTION 15.2. SERVICE FEE FORMULA 142
SECTION 15.3. BASE OPERATION FEE 142
SECTION 15.4. EXCESS OPERATION FEE 142
SECTION 15.5. PASS THROUGH COSTS 143
SECTION 15.6. ENERGY REVENUE CREDIT 145
SECTION 15.7. EXTRAORDINARY ITEMS CHARGE OR CREDIT 145
SECTION 15.8. CPI ADJUSTMENT FACTOR 145
SECTION 15.9. COMPANY NON-PERFORMANCE -THROUGHPUT 146
(A) Company Non-Compliance 146
(B) Billing Period Throughput Performance Debits 146
(C) Billing Period Throughput Performance Credits 147
(D) Establishment of Record-Keeping Accounts 147
(E) Throughput Performance Damages Account 147
(F) Throughput Performance Credit Account 148
(G) Billing Period Debits and Throughput Performance
Liquidated Damages 148
(H) Billing Period Throughput Performance Credits 149
(I) Annual Facility Throughput Damage Adjustment 144
(J) Annual Lapse of Unused Billing Period Throughput
Performance Credits 150
SECTION 15.10. COMPANY NON-PERFORMANCE -ELECTRICITY PRODUCTION 150
(A) Billing Period Determination of Performance 150
(B) Billing Period Electricity Production Debits 150
(C) Billing Period Electricity Production Credits 151
(D) Establishment of Record-Keeping Accounts 151
(E) Electricity Production Damages Account 151
(F) ElectriciTy Production Credit Account 151
(G) Billing Period Debits and Electricity Production Liquidated
Damages 151
(H) Billing Period Electricity Production Credits 152
(I) Annual Electricity Production Liquidated Damages 153
SECTION 15.11. DAMAGE ADJUSTMENTS TO ACCOUNT FOR WASTE BTU CONTENT
OUTSIDE DESIGN RANGE AND WASTE SHORTFALLS 154
(A) Waste Btu Content Outside Design Range 154
(B) Waste Shortfalls 155
(C) Delivery Shortfall; County Non-Performance 155
SECTION 15.12. BILLING AND PAYMENT 155
(A) Billing ........................................................................................155
(B) Payment .....................................................................................155
SECTION 15.13. ESTIMATES AND ADJUSTMENTS 156
(A) Pro Rata Adjustments 156
(B) Budgeting 156
(C) Adjustment to Service Fee 156
SECTION 15.14. ANNUAL SETTLEMENT 156
SECTION 15.15 BILLING STATEMENT DISPUTES 157
SECTION 15.16. TAXES 157
(x)
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ARTICLE XVI
`1t--y BREACH, DEFAULT, REMEDIES AND TERMINATION
SECTION 16.1. REMEDIES FOR BREACH 158
SECTION 16.2. EVENTS OF DEFAULT BY THE COMPANY 158
(A) Events of Default Not Requiring Previous Notice or Further
Cure Opportunity for Termination 158
(B) Events of Default Requiring Previous Notice and Cure
Opportunity for Termination 159
(C) Other Remedies Upon Company Event of Default 160
SECTION 16.3. LIMITATION OF LIABILITY BY COMPANY 160
(A) Monetary Limit, Generally 160
(B) Exclusions 160
SECTION 16.4. EVENTS OF DEFAULT BY THE COUNTY 161
(A) Events of Default Permitting Termination 161
(B) Notice and Cure Opportunity 161
(C) Termination Liquidated Damages During the Operation
Period 162
SECTION 16.5. COUNTY CONVENIENCE TERMINATION DURING THE OPERATION
PERIOD 162
(A) Termination Right and Fee 162
(B) Uncontrollable Circumstances 162
(C) Payment of Amounts Owing Through the Termination Date......... 163
(D) Termination Fee Payment Contingent Upon Surrender of
Possession 163
(E) Adequacy of Termination Payment 163
~ (F) Consideration for Convenience Termination Payment 163
(G) Completion or Continuance by County 163
SECTION 16.6. OBLIGATIONS OF THE COMPANY UPON TERMINATION OR
EXPIRATION 163
(A) Company Obligations 163
(B) Hiring of Company Personnel 165
(C) Continuity of Service and Technical Support 165
(D) Company Payment of Certain Costs 166
(E) County Payment of Certain Costs 166
(F) Exit Test 166
SECTION 16.7. SURVIVAL OF CERTAIN PROVISIONS UPON TERMINATION 167
SECTION 16.8 NO WAIVERS 167
SECTION 16.9. NO CONSEQUENTIAL OR PUNITIVE DAMAGES 167
SECTION 16.10. FORUM FOR DISPUTE RESOLUTION 167
SECTION 16.11. NON-BINDING MEDIATION POST FACILITY ACCEPTANCE 168
(A) Rights to Request and Decline 168
(B) Procedure ...................................................................................168
(C) Non-Binding Effect 168
(D) Relation to Judicial Legal Proceedings 168
ARTICLE XVII
INSURANCE, UNCONTROLLABLE CIRCUMSTANCES
AND INDEMNIFICATION
SECTION 17.1. INSURANCE 169
(A) Company Insurance 169
(B) Insurers, Deductibles and County Rights 169
(xi)
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(C) Certificates, Policies and Notice 169
(D) Maintenance of Insurance Coverage 169 l"4r
SECTION 17.2. UNCONTROLLABLE CIRCUMSTANCES 170
(A) Relief from Obligations 170
(B) Notice and Mitigation 170
(C) Conditions to Performance, Design(Build Price, Service Fee
or Schedule Relief 171
(D) Capital Modifications 172
(E) Acceptance of Adjustment Constitutes Release 172
SECTION 17.3. INDEMNIFICATION BY THE COMPANY 172
ARTICLE XVIII
SECURITY FOR PERFORMANCE
SECTION 18.1. GUARANTOR 174
(A) Guaranty Agreement 174
(B) Material Decline in Guarantor's Credit Standing 174
(C) Credit Enhancement 174
(D) Annual Reports 174
SECTION 18.2. BONDS 174
(A) Construction, Performance and Payment Bonds 174
(B) Monitoring of Sureties 175
(C) Operations Performance Bond 175
SECTION 18.3. LETTER OF CREDIT 175
(A) Requirements .............................................................................175
(B) Drawings for Non-Renewal or Bankruptcy 176
(C) Drawings for Termination 176 ~
(D) Drawings for Material Breach 176
(E) Effect of Final Determination of Damages 177
SECTION 18.4. COSTS OF PROVIDING SECURITY FOR PERFORMANCE 177
(A) Inclusion in Service Fee 177
ARTICLE XD{
MISCELLANEOUS PROVISIONS
SECTION 19.1. RELATIONSHIP OF THE PARTIES 178
SECTION 19.2. LIMITED RECOURSE TO COUNTY 178
SECTION 19.3. PROPERTY RIGHTS 178
(A) Protection from Infringement 178
(B) Intellectual Property Developed by the Company 178
SECTION 19.4. PROPRIETARY INFORMATION 179
(A) Non-Disclosure ...........................................................................179
(B} Authorized Disclosures 179
SECTION 19.5. INTEREST ON OVERDUE OBLIGATIONS 180
SECTION 19.6. COST SUBSTANTIATION 180
(A) Substantiating Non-Fixed Costs 180
(B) Cost Substantiation Certificate 180
(C) Technical Services 181
(D) Mark-Up 181
(E) Evidence of Costs Incurred 181
SECTION 19.7. SUBCONTRACTORS 181
(A) Use Restricted 181 ""'~,yl,
..r~'
(xii)
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(B) Limited CounTy Review and Approval of Permitted
Subcontractors 181
(C) Subcontract Terms and Subcontractor Actions 182
(D) Indemnity for Subcontractor Claims 182
(E) Design Subcontract 182
(F) Construction Subcontract 183
(G) Operation Contract 183
(H) Notice to County of Amendments, Breaches and Defaults............ 183
(I) Assignability ...............................................................................184
SECTION 19.8. ACTIONS OF THE COUNTY IN ITS GOVERNMENTAL CAPACITY........... 184
(A) Rights as Government Not Limited 184
(B) No County Obligation to Issue Governmental Approvals 184
SECTION 19.9. ASSIGNMENT ......................................................................................184
(A) By the Company 184
(B) By the County 185
SECTION 19.10. FACILITY TOURS .................................................................................185
SECTION 19.11. COMPLIANCE WITH MATERIAL AGREEMENTS 185
SECTION 19.12. BINDING EFFECT 185
SECTION 19.13. AMENDMENT AND WAIVER 185
SECTION 19.14. NON-DISCRIMINATION 185
SECTION 19.15. NOTICES 185
(A) Procedure ...................................................................................185
(B) Company Notice Address 186
(C) County Notice Address 186
SECTION 19.16. NOTICE OF LITIGATION 186
SECTION 19.17. FURTHER ASSURANCES 186
~`w.~
(Xlll)
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APPENDICES
fir.- 1. Description of the Site
2. Governmental Approvals
3. Technical Specifications
4. Design/Build Work Review Procedures
5. Design/Build Quality Management Plan [To be Developed and Finalized Based
on Final Technical Proposals]
6. Pre-Acceptance Testing Requirements and Acceptance Test Procedures and
Standards
7. Performance, Environmental and Residue Guazantees [To be Developed and
Finalized Based on Final Technical Proposals]
8. Annual Throughput Guarantee; Electricity Production Guarantee; Operating
Parameters
9. Maximum Electricity Utilization Guarantee (from Price Proposal Form
[To be Developed and Finalized Based on Final Technical Proposals]
10. Schedule of Values, Milestone Payment and Construction Progress
[To be Developed and Finalized Based on Final Proposals]
~Yrn
11. Staffing Plan and Operation and Maintenance Plan
[To be Developed and Finalized Based on Final Technical Proposals]
12. Ferrous Metal Recovery and Residue Performance Evaluation Procedures
13. Asset Evaluation Protocol
14. Exit Test Procedures and Standards
15. Example Service Fee Calculations
16. Subcontractors [To be Developed and Finalized Based on FYnal Business
Proposals]
17. Required Insurance
REFERENCE DOCUMENTS
1. EISPN/DEIS
2. [RESERVED]
3. [RESERVED]
(xiv)
487571.3 028493 AGMT
TRANSACTION FORMS
~ A. Form of Guaranty Agreement
B. Form of Construction Performance Bond
C. Form of Payment Bond
D. Form of Letter of Credit
E. Form of Technology Supply Agreements
F. Form of Confidentiality Agreement
v...~
lM')
487571.3 028493 AGMT
SERVICE CONTRACT
FOR THE
`'rw.' DESIGN, CONSTRUCTION AND OPERATION
OF THE
COUNTY OF HAWAII SOLID WASTE REDUCTION FACILITY
THIS SERVICE CONTRACT FOR THE DESIGN, CONSTRUCTION AND
OPERATION OF THE COUNTY OF HAWAII SOLID WASTE REDUCTION FACILITY is made and
entered into as of this _ day of , 2007 between the County of Hawaii, a body politic
and corporate of the State of Hawaii (the "County") and a
corporation organized and existing under the laws of the State of and authorized
to do business in the State of Hawaii (the "Company").
RECITALS
(A) The County of Hawaii (the "County") currently utilizes two County-owned
landfills to dispose of all municipal solid waste generated within the geographic boundaries of
the County. The South Hilo Landfill which services waste generation on the east side of the
County and the Pu'uanahulu Landfill which provides disposal capacity for waste generated on
the west side of the County.
(B) It is anticipated that the South Hilo Landfill will exhaust its capacity in
the next few years.
(C) The County does not desire to transport waste generated on the east side
of the County to the Pu'uanahulu Landfill upon the closure of the South Hilo Landfill due to
the environmental and social impacts that would result from such transportation activity.
(D) The County undertook an extensive evaluation and planning process to
determine the disposal methodology that was not advantageous for the County upon closure of
the South Hilo Landfill.
(E) The County's Integrated Solid Waste Management Plan which was
amended in 2000 provides that the most advantageous disposal methodology for the County is
to develop a solid waste reduction facility in the County.
(F) The County has determined that it is in the County's best interests to
contract with a private entity to permit, design, construct, start up, acceptance test, operate,
maintain, repair and replace a new solid waste reduction facility.
(G) Pursuant to Division 1, Title 9, Chapter 103D of the Hawaii Revised
Statutes (the "Act"), the County is authorized to conduct a procurement process to select a
private entity to provide the Contract Services.
1
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article III -Conditions Precedent
(H) The first phase of the procurement process was the issuance of a Stage I _
Request for Proposals ("RFP") by the County in December 28, 2005. Following an evaluation of {
the statements of qualifications submitted in response to the Stage I RFP based upon the
criteria set forth in the Stage I RFP, the County selected three firms to whom it would issue a
Stage II RFP.
(I) On 2006, the County undertook the second phase of the
competitive process by issuing to the proposers a Stage II RFP with respect to the desired
services. Stage II RFP Addenda were issued on ,
(J) Proposals submitted in response to the Stage II RFP were received on
2006 from _ firms.
(K) The County requested and received written clarifications of the proposals
in accordance with the Stage II RFP.
(L) The final proposals were reviewed by the County's evaluation committee
and assigned a score based on the evaluation criteria and scoring method set forth in the
Stage II RFP.
(M) Based on the evaluations and scoring of the final proposals, the
evaluation committee determined that the proposal submitted by was the `
most advantageous proposal received in response to the County's Stage II RFP. ,,,,,,,r'
(N) On 2007, by Resolution No. the County
Council authorized the execution and delivery of this Service Contract on behalf of the County.
(O) an [affiliate] of the Company, will guarantee
the payment and performance of the obligations of the Company under the Service Contract
pursuant to a guaranty agreement executed concurrently herewith.
(P) The County desires to receive, and the Company desires to provide, the
Contract Services under the terms of this Service Contract.
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
the parties hereto, intending to be legally bound, agree as follows:
2
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n, ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. As used in this Service Contract the following
terms shall have the meanings set forth below:
"Acceptable Residue Disposal Site° has the meaning specified in Section 12.8.
"Acceptance" means demonstration by the Company in accordance with
Article VIII hereof and Appendix _ that the Acceptance Tests have been conducted, the
Acceptance Test Procedures and Standards have been achieved and the other Acceptance Date
Conditions set forth in Section 8.4 have been achieved.
"Acceptance Date" means the date on which the Acceptance has occurred or is
deemed to have occurred under Article 8.4.
"Acceptance Date Conditions" has the meaning specified in Section 8.4.
"Acceptance Test Plan" has the meaning specified in Appendix
"Acceptance Test Procedures and Standards° or "Acceptance Standard" means
the test procedures and standards for Acceptance as set forth in Appendix
"Acceptance Tests" or "Acceptance Testing" means the tests required for
Acceptance as set forth in Appendix
"Act" means Division 1, Title 9, Chapter 103D of the Hawaii Revised Statutes, as
amended, supplemented, superseded and replaced from time to time.
"Affiliate" means any person directly or indirectly controlling or controlled by
another person, corporation or other entity or under direct or indirect common control with
such person, corporation or other entity.
"Aggregate Billing Period" means, as of any date of determination during the
Term hereof, all Billing Periods from the first Billing Period hereunder through the end of the
Billing Period ending on or most recently prior to such date of determination.
"Alternative Waste Disposal Site" has the meaning specified in Section 10.2(I).
"Annual Electricity Price° means, for any Contract Year, the average price
(expressed in dollars/kWh) for electricity which is actually payable by the Power Purchaser
during such Contract Year for electricity purchased under the Power Purchase Agreement,
calculated by dividing the total sum payable thereunder for purchased electricity during the
Contract Year (prior to any deductions, offsets, holdbacks, damages, or other reductions
allowed under the Power Purchase Agreement) by the total amount (kWh) of electricity actually
delivered to the Power Purchaser during the Contract Year.
3
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"Annual Electricity Production" means, for any Contract Year, the per-Ton
(
average amount of exportable electricity actually produced by the Facility during such Contract
Year, calculated by dividing (1) the total amount of electricity produced by the Facility during
such Contract Year and available, after use in the Facility, for sale to the Power Purchaser, by
(2) the Annual Facility Throughput.
"Annual Electricity Production Liquidated Damages" means the amounts so
designated which aze calculated in accordance with Section 15.10.
"Annual Electricity Production Guarantee" means, for any Contract Yeaz, (1) if
the average annual higher heating value of all of the Processible Waste combusted by the
Facility in such Contract Year is within the higher heating value range of [3,800] to [7,000] Btu
per pound, an annual average production of electricity from the combustion of Processible
Waste equal to kWh per Ton of Processible Waste combusted [A3 PROPOSED ON
PROPOSAL FORM 11]; and (2) if such average annual higher heating value is outside such
range, an annual average electricity production determined in accordance with Section 10.10.
"Annual Facility Throughput° means, for any Contract Year, the Tonnage
actually combusted by the Facility in accordance with this Service Contract.
"Annual Facility Throughput Guarantee" has the meaning specified in
Section 10.2(B). ~
°Annual Operating Plan" means the annual operating plan established, adopted
and revised in accordance with Section 10.3(A).
"Annual Settlement Statement° has the meaning specified in Section 15.14.
"Annual Waste Delivery Commitment" has the meaning specified in Section
10.1.
"Appendix" means any of the Appendices attached to this Service Contract and
identified as such in the Table of Contents, as the same may be amended or modified from time
to time in accordance with the terms hereof.
"Applicable Law" means: (1) any federal, state or local law, code or regulation;
(2) any formally adopted and generally applicable rule, requirement, determination, standazd,
policy, implementation schedule or other order of any Governmental Body having appropriate
jurisdiction; (3) any established interpretation of law or regulation utilized by an appropriate
Governmental Body if such interpretation is documented by such Governmental Body and
generally applicable; (4) any Governmental Approval; and (5) any Governmental Approval, in
each case having the force of law and applicable from time to time to: (a} to the siting, design, i+~?,
acquisition, construction, equipping, financing, ownership, possession, start up, testing,
4
487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
operation, maintenance, repair, replacement or management of municipal solid waste
reduction systems, including the Facility; (b) to the air and odor emissions therefrom; (c) to the
transfer, handling, processing, transportation or disposal of Non-Processible Waste, residue
and other by-products produced thereby; or (d)to any other transaction or matter
contemplated hereby (including, without limitation, any of the foregoing which pertain to solid
waste reduction, waste disposal, health, safety, fire, environmental protection, labor relations,
building codes, the payment of prevailing or minimum wages and non-discrimination).
"Authorized Representative" means the authorized representative for either party
designated pursuant to subsection 7.1(D).
"Available Billing Period Processible Waste° means the sum of (1) the amount of
Processible Waste delivered to the Facility and accepted by the Company in any Billing Period,
plus (2) the amount of Processible Waste which the Company wrongfully refuses to accept at
the Facility in any Billing Period as provided in Section 10.2.
"Bankruptcy Code" means the United States Bankruptcy Code, 11 U.S.C. 101 et
as amended from time to time and any successor statute thereto. "Bankruptcy Code"
shall also include (1) any similaz state law relating to bankruptcy, insolvency, the rights and
remedies of creditors, the appointment of receivers or the liquidation of companies and estates
that aze unable to pay their debts when due, and (2) in the event the Guarantor is incorporated
or otherwise organized under the laws of a jurisdiction other than the United States, any
similar insolvency or bankruptcy code applicable under the laws of such jurisdiction.
"Base Operation Fee' means the annual amount payable to the Company,
pursuant to Section 15.3, for the operation and maintenance (including repair and
replacement) of the Facility and the combustion of Processible Waste in amounts up to
[ ]Tons per year in accordance with the requirements hereof.
"Baseline Amounts" has the meaning set forth in subsection 9.2(C)(4)(d).
"Baseline Facility Record" has the meaning specified in subsection 13.2(B).
"Baseline Raw Material Amounts" has the meaning set forth in subsection
9.2(C)(4)(e).
"Billing Period" means each calendaz month. With respect to the Facility, the
first Billing Period shall begin on the Acceptance Date and shall continue to the last day of the
month in which the Acceptance Date occurs and the last Billing Period shall end on the last
day of the Term of this Service Contract. Any computation made on the basis of a Billing
` Period shall be adjusted on a pro rata basis to take into account any Billing Period of less than
`w the actual number of days in the month to which such Billing Period relates.
5
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Design, Construction and Qperation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
~ "Billing Period Electricity Price' means, for any Billing Period, the average price
1
(expressed in dollars/kWh) for electricity which is actually payable by the Power Purchaser
during such Billing Period for electricity purchased under the Power Purchase Agreement,
calculated by dividing the total sum payable thereunder for purchased electricity during the
Billing Period (prior to any deductions, offsets, holdbacks, damages, or other deductions
allowed under the Power Purchase Agreement) by the total amount (kWh) of electricity actually
delivered to the Power Purchaser during the Billing Period.
"Billing Period Electricity Production" means, for any Billing Period, the per-Ton
average amount of exportable electricity actually produced by the Facility during the Billing
Period, calculated by dividing (1) the total amount of electricity produced by the Facility during
such Billing Period and available, after use in the Facility, for sale to the Power Purchaser, by
(2) the Billing Period Throughput.
"Billing Period Electricity Production Credit" has the meaning specified in
subsection 15.10(C).
"Billing Period Electricity Production Debit" has the meaning specified in
subsection 15.10(B).
"Billing Period Electricity Production Deficiency' has the meaning specified in
subsection 15.10(A).
"Billing Period Electricity Production Surplus" has the meaning specified in
subsection 15.10(A).
"Billing Period Throughput" means, for any Billing Period, the Tonnage actually
combusted by the Facility in accordance with this Service Contract.
"Billing Period Throughput Performance Credit" has the meaning specified in
Section 15.9(C).
"Billing Period Throughput Performance Debit" has the meaning specified in
Section 15.9(B).
"Billing Period Throughput Deficiency" has the meaning specified in
Section 10.2(E).
"Billing Period Throughput Guarantee" has the meaning specified in
Section 10.2(C).
"Billing Period Throughput Surplus° has the meaning specified in
Section 10.2(E).
("+wR,
6
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I - Defmitions and Interpretations
"Bypass Processible Waste" means Processible Waste delivered or available for
~ delivery to the Facility which the Company wrongfully refuses to accept or combust at the
Facility as provided in Section 10.2.
"Capital Modification° means any material change to the Facility including the
installation of new structures, equipment, systems or technology following Acceptance. If a
replacement of any pazt of the Facility made by the Company pursuant to its obligations under
Article XIV results in a material change to the Facility, such replacement shall be considered to
be a Capital Modification.
"CCI" or "Construction Cost Index" means the final reported Construction Cost
Index for [Hawaii], published by the Engineering News, Record.
"CEM° means continuing emissions monitoring using the equipment provided
therefore in the Design Requirements.
"CERCLA" means the Comprehensive Environmental Response, Compensation,
and Liability Act, 42 U.S.C. 9601 et and applicable regulations promulgated thereunder,
each as amended from time to time.
"Change in Lawn means any of the following acts, events or circumstances to the
j' extent that compliance therewith materially increases the cost of performing or materially
!
increases the scope of a pazty's obligations hereunder:
(a) the adoption, amendment, promulgation, issuance, modification, repeal
or written change in (i) administrative or (ii) judicial interpretation of any Applicable Law on or
after the Contract Date, unless such Applicable Law was on or prior to the Contract Date duly
adopted, promulgated, issued or otherwise officially modified or changed in interpretation, in
each case in final form, to become effective without any further action by any Governmental
Body; or
(b) the order or judgment of any Governmental Body issued on or after the
Contract Date (unless such order or judgment is issued to enforce compliance with Applicable
Law which was effective as of the Contract Date) to the extent such order or judgment is not
the result of willful or negligent action, error or omission or lack of reasonable diligence of the
Company or of the County, whichever is asserting the occurrence of a Change in Law;
provided, however, that the contesting in good faith or the failure in good faith to contest any
such order or judgment shall not constitute or be construed as such a willful or negligent
action, error or omission or lack of reasonable diligence; or
(c) except with respect to any Governmental Approval required for the
` construction of the Facility as provided within (i) - (ii) below pertaining to exclusions from
7
487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"Change in Law", the denial of an application for, a delay in the review, issuance of renewal of,
;~+w,.
or the suspension, termination, or interruption of any Governmental Approval, or the
imposition of a term, condition or requirement which is more stringent or burdensome than the
Contract Standards in connection with the issuance, renewal or failure of issuance or renewal
of any Governmental Approval, to the extent that such occurrence is not the result of willful or
negligent action, error or omission or a lack of reasonable diligence of the Company or of the
County, whichever is asserting the occurrence of a Change in Law; provided, however, that the
contesting in good faith or the failure in good faith to contest any such occurrence shall not be
construed as such a willful or negligent action or lack of reasonable diligence.
It is specifically understood, however, that none of the following shall constitute
a "Change in,Law":
(i) a change in the nature or severity of the actions typically taken by a
Governmental Body to enforce compliance with Applicable Law which was effective as of the
Contract Date;
(ii) acts, events and circumstances with respect to which the Company has
assumed the permitting risk relating to the Facility under Sections 3.4 and 7.3; or
( (iii) a change in any tax or similaz law regarding taxes or similar charges not
included as Fixed Design/Build Price Adjustments or Pass Through Costs under Sections 9.1
or 15.5.
"Change Order" means a written order to the Company issued and signed by the
County after execution of this Service Contract, authorizing or requiring:
(i) Extra Design/Build Work, or a deletion or omission from or modification
to the Design/Build Work, pursuant to Section 7.9;
(ii) an increase or reduction in the Fixed Design/Build Price; or
(iii) any other change in this Service Contract prior to the Acceptance Date
(including any change in the Design Requirements).
"CMMS° has the meaning specified in subsection 11.4(A).
"Company" means a [corporation ]organized and existing under
the laws of ,and its permitted successors and assigns.
"Company Fault" means any breach (including the untruth or breach of any
Company representation or warranty herein set forth), failure, non-performance or non-
compliance by the Company with respect to its obligations and responsibilities under this
Service Contract to the extent not directly attributable to any Uncontrollable Circumstance or
8
487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
County Fault, and which materially and adversely affects the County's right and obligations or
ability to perform under this Service Contract.
"Confidentiality Agreement" has the meaning set forth in subsection 19.4(C).
"Construction Commencement Date" means the first date on which all of the
Construction Commencement Date Conditions set forth in Section 4.2 shall be satisfied or
waived, as agreed to in writing by the parties pursuant to Section 4.3 and the Notice to Proceed
with construction of the Facility is issued.
"Construction Commencement Date Conditions" has the meaning set forth in
Section 4.3 hereof.
"Construction Manager" has the meaning specified in subsection 7.12(B).
"Construction Performance Bond" means the surety bond which shall be
provided for in accordance with Section 18.2 and substantially in the form set forth in the
Transaction Forms.
"Construction Period" means the period from and including the Construction
Commencement Date to the Acceptance Date.
`Construction Period Price Escalation Factor" shall be calculated by subtracting
the CCI for the month in which the Scheduled Construction Date is to occur from the [CCI] for
the month that the Notice to Proceed is issued, and dividing such difference by the [CCI] for the
month in which the Scheduled Construction Date is to occur, and adding such quotient to 1.0.
"Construction Period Work" means all work required to be conducted during the
Construction Period, including successful completion of design, construction, Acceptance
Testing, preparation of Operation and Maintenance Manual and other plans, and completion of
Company staff training.
"Construction Permit° has the meaning specified in subsection 5.2(D).
("Construction Subcontract" has the meaning specked in subsection 19.7(F).]
["Construction Subcontractor" means the general contractor
contracting with the Company for the construction of the Facility.]
"Consumablesn means those materials, supplies and similar consumables used
in connection with the operation of the Facility, which may include fuel oil, diesel fuel, liquid
chlorine, liquid sulfur dioxide, liquid defoament, quick lime, activated carbon, lubricants,
polymers, office supplies and other chemicals, fuels, materials, supplies and similar
consumables.
9
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"Consumer Price Index" or "CPI" means the final non-seasonably adjusted
( Consumer Price Index as reported by the Q.S. Department of Labor, Bureau of Labor Statistics, t
for All Urban Consumers, for the [Hawaii] area.
"Contract Administration Memorandum' has the meaning set forth in
subsection 11.15(B).
"Contract Date" means the date this Service Contract is executed and delivered
by the parties hereto.
"Contract Representative" means, in the case of the Company, the individual
specified in writing by the Company as the representative of the Company from time to time for
all purposes of this Service Contract and, in the case of the County, [NAME] or such other
representative as shall be designated in writing by the County Finance Director from time to
time.
"Contract Services" means the Design/Build Work and the Operation Services.
"Contract Standards° means the standards, terms, conditions, methods,
techniques and practices imposed or required by: (1) Applicable Law; (2) the Design
Requirements; (3) the Performance Guarantees; (4) Good Engineering and Construction
Practice; (5) Good Industry Practice; (6) the Design/Build Quality Management Plan; (7) the (
Operation and Maintenance Manual; (8) applicable equipment manufacturers' specifications;
(9) applicable Insurance Requirements, and (10) any other standard, term, condition or
requirement specifically provided in this Service Contract to be observed by the Company.
Subsection 1.2(N) shall govern issues of interpretation related to the applicability and
stringency of the Contract Standards.
"Contract Year" means the County's fiscal year commencing on July 1 in any
yeaz and ending on June 30 of such year; provided, however, that with respect to operations of
the Facility, the first Contract Year shall commence on the Acceptance Date and shall end on
the following June 30, and the last Contract Year shall commence on July 1 prior to the date
this Service Contract expires or is terminated, whichever is appropriate, and shall end on the
last day of the Term of this Service Contract or the effective date of any termination, whichever
is appropriate. Any computation made on the basis of a Contract Year shall be adjusted on a
pro rata basis to take into account any Contract Year of less than 365 or 366 days, whichever
is applicable.
"Cost Substantiation° has the meaning specified in Section 19.6.
"County" means County of Hawaii, Hawaii.
w...
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"County Engineer° means either (1) an engineer employed by the County or (2) a
qualified consulting engineer or firm of consulting engineers, having experience with respect to
the design, construction, testing, operation, maintenance, repair, replacement and
management of solid waste reduction facilities, in either case designated as the County
Engineer from time to time in writing by the County.
"County Fault" means any breach (including the untruth or breach of any
County representation or wazranty herein set forth), failure, non-performance or non-
compliance by the County under this Service Contract with respect to its obligations and
responsibilities under this Service Contract to the extent not directly attributable to any
Uncontrollable Circumstance or Company Fault, and which materially and adversely affects
the Company's rights, obligations or ability or costs to perform under this Service Contract.
"County Indemnitee" has the meaning specified in Section 17.3.
"County Landfill" means either of the County-owned sanitary landfills (the South
Hilo Landfill or the Pu'uanahulu Landfill) located in the County.
"County Property" means any structures, improvements, equipment, fire alarm
systems, [valves, pumping systems, hydrants, hydrant connections, duct lines], lamps,
/ lampposts, monuments, sidewalks, curbs, trees, lawns, roadways, utilities or any other
W,,,w systems, factures, or real or personal property owned, leased, operated, maintained, or
occupied by the County.
"CPI Adjustment Factor" has the meaning specified in subsection 15.8(A).
"Deliverable Material" means all documents, reports, wazranties, manuals,
submittals, licenses and other materials required to be delivered by the Company to the
County pursuant to this Service Contract.
"Delivery Shortfall Liquidated Damages" has the meaning specified in subsection
15.11(C).
"Designated Residue Disposal Site" means the Pu'uanahulu Landfill, or such
other site designated by the County.
"Design/Build Period" means the period of time from the Contract Date through
the Acceptance Date and includes, both, the Development Period and the Construction Period.
"Design/Build Price° means the Fixed Design/Build Price as adjusted pursuant
to subsection 9.2(C) (which includes, both, the Fixed Development Price and the Fixed
Construction Period Price).
11
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"Design/Build Quality Management Plan" means the quality assurance and
l quality control requirements set forth in Appendix
"Design/Build Work° means the employment and furnishing of all labor,
materials, equipment, supplies, tools, scaffolding, transportation, Utilities, insurance,
temporary facilities and other things and services of every kind whatsoever necessary for the
full performance and completion of the Company's design, engineering, construction, stazt-up,
shakedown, Acceptance Testing, obtaining Governmental Approvals and related obligations
with respect to the construction of the Facility during the Development Period and the
Construction Period under this Service Contract, including all completed structures,
assemblies, fabrications, acquisitions and installations, all commissioning and testing, and all
of the Company's administrative, accounting, record-keeping, notification and similaz
responsibilities of every kind whatsoever under this Service Contract pertaining to such
obligations. A reference to Design/Build Work shall mean any part and all of the Design/Build
Work unless the context otherwise requires (and shall include all Extra DesignJBuild Work
authorized by Change Order).
["Design Firm° means ,the primary engineering firm contracting
with the Company for the design of the Facility.)
( "Design Requirements" means the design requirements for the Facility set forth
in Appendix as the same may be changed or modified in accordance herewith.
["Design Subcontract" has the meaning set forth in subsection 19.7(E).]
"Development Period" means the period from and including the Contract Date to
the Construction Commencement Date.
"Development Period Responsibilities" means the Company's responsibilities
and/or the County's responsibilities with respect to the Development Period under Section 4.2
hereof.
"Development Period Work" means everything required to be furnished and done
for and relating to the Facility by the Company pursuant to this Service Contract during the
Development Period. Development Period Work shall mean any part and all of the
Development Period Work unless the context otherwise requires.
"Disputed Work" has the meaning set forth in subsection 7.9(H).
"DOH" means the Hawaii State Department of Health or any predecessor or
successor agency.
"Electricity Production Liquidated Damage" has the meaning specified in
Section
12
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"Electricity Production Credit Account" has the meaning specified in subsection
"Electricity Production Damages Account" has the meaning specified in
subsection 15.10(E).
"Eligible Cement" means the eligible cement described in subsection 9.2(C)(4).
"Eligible Reinforcing Steel" means the eligible reinforcing steel described in
subsection 9.2(C)(4).
"Eligible Steel Products Other Than Reinforcing Steel" means the eligible steel
products other than reinforcing steel described in subsection 9.2(C)(4).
"Encumbrances" means any Lien, lease, mortgage, security interest, charge,
judgment, judicial award, attachment or encumbrance of any kind with respect to the Facility,
other than Permitted Encumbrances.
"Energy Revenue Credit" has the meaning specified in Section 15.6.
"Environmental Guazantee" means the Company's guarantee that, in the
performance of the Contract Services, it will comply with all odor, noise, lighting, dust, air
quality, traffic, run-off and other environmental requirements under Applicable Law and
environmental mitigation measures, as further described in Section 12.4 and Appendix
"Environmental Performance Obligations" has the meaning specified in
Section 12.4(B).
"EPA° or "USEPA" means the United States Environmental Protection Agency
and any successor agency.
"Event of Default" means, with respect to the Company, those items specified in
Section 16.2 and, with respect to the County, those items specified in Section 16.4.
"Excess Processible Waste" has the meaning specified in Section 10.2(A).
"Excess Operation Fee" means per Ton of Processible Waste, the amount
payable to the Company for the combustion of Processible Waste in excess of [ ]Tons per
year.
"Exit Test Procedures and Standazds" means the test procedures and standards
regarding the FaciliTy to be conducted by the Company prior to termination or expiration of this
Service Contract as set forth in Appendix
"Extension Period' means the period commencing on the day after the
' ~ Scheduled Acceptance Date and ending 180 days following the Scheduled Acceptance Date, or
13
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
in the event of one or more delays caused by Uncontrollable Circumstances, County-requested
ice;,
' Change Orders or County Fault occurring during such period, the date which is the next (
business day following the date calculated by adding to the Scheduled Acceptance Date the
aggregate number of days of such delay.
"Extra Design/Build Work" means any Design/Build Work ordered by the
County pursuant to Section 7.9 in addition to the Design/Build Work originally required
hereunder.
"Extra Payment" has the meaning specified in subsection 7.9(B).
"Extraordinary Items" has the meaning specified in Section 15.7.
"Facility" means the solid waste reduction facility to be designed, constructed
and acceptance tested by the Company in accordance with the Design Requirements,
consisting generally of (i) [the receiving pit, waste feed systems, combustion units, boilers,
electric generation equipment, Residue handling equipment, air pollution control equipment,
auxiliary and control equipment, all other components of the combustion train]; (ii) all other
buildings, structures, fixtures and equipment appurtenant thereto, involved in the reduction of
solid waste; (iii) all roads; grounds, fences and landscaping appurtenant thereto, utilized for
( solid waste reduction, treatment of ash, disposal of Residue, [laboratory functions]; and
(iv) administration and management of the Facility, including any Capital Modifications made r•.nr~
thereto from time to time. [The Facility shall have a maximum continuous rating of [ ]
Tons per day at a Higher Heating Value of [4,800] Btu per pound of Processible Waste and [70]
degrees Fahrenheit dry bulb ambient air temperature.] [For purposes of the operation and
maintenance responsibilities of the Company, the Facility also includes the Reload Building.]
"Facility Equipment" means all manufactured equipment, property or assets,
whether or not constituting personal property or fixtures other than Facility Structures,
constituting pazt of the Facility, including, without limitation, the waste feed systems,
combustion units, boilers, electric generation equipment, Residue handling equipment, air and
pollution control equipment.
"Facility Manager" has the meaning specified in Section 11.3.
"Facility Performance Obligations" means the Facility Throughput Performance
Liquidated Damages, Electricity Production Liquidated Damages, Residue Performance
Liquidated Damages and Environmental Performance Obligations.
"Facility Registry" has the meaning specified in subsection 13.2(C).
"Facility Structures" means all structures, buildings and all appurtenances,
other than Facility Equipment, constituting pazt of the Facility.
14
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"Facility Throughput Performance Liquidated Damages° has the meaning
specified in Section 15.9.
["Federal Energy Regulatory Commission" means
"Fees and Costs" means reasonable fees and expenses of employees, attorneys,
azchitects, engineers, expert witnesses, contractors, consultants and other persons, and costs
of transcripts, printing of briefs and records on appeal, copying and other reimbursed
expenses, and expenses reasonably incurred in connection with investigating, prepazing for,
defending or otherwise appropriately responding to any Legal Proceeding.
"Final Completion° means completion of the Design/Build Work in compliance
with the Design Requirements and the requirements of Section 8.11.
"Final Design" means the detailed plans and specifications necessary and
sufficient to allow complete construction of the Facility in conformance with the requirements
of this Service Contract.
"Final Punch List" has the meaning specified in subsection 8.2(B).
"Fixed Construction Period Price" means (as such
amount may be adjusted in accordance with 9.2(C)). [AS PROPOSED ON PRICE PROPOSAL
FORM 16.]
"Fixed Design/Build Price" has the meaning specified in subsection 9.2(B).
"Fixed Design/Build Price Adjustments" has the meaning specified in
subsection 9.2(C).
"Fixed Development Price° means [AS PROPOSED ON
PRICE PROPOSAL FORM 16].
["General Bond Resolution" means the general bond resolution to be adopted by
the County, pursuant to which the County shall issue indebtedness described therein to
finance capital costs of the Facility.]
"Good Engineering and Construction Practice" means those methods,
techniques, standards and practices which, at the time they aze to be employed and in light of
the circumstances known or reasonably believed to exist at such time, are generally recognized
and accepted as good design, engineering, equipping, installation, construction and
commissioning practices for the design, construction and improvement of capital assets in the
municipal solid waste reduction industry as followed in the [Hawaii] region of the United
States.
15
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County of Hawaii Solid Waste Reduction Facility Article I - Definitions and Interpretations
"Good Industry Practice° means the methods, techniques, standards and
' 1~
practices which, at the time they are to be employed and in light of the circumstances known
w,+"'
or reasonably believed to exist at such time, are generally recognized and accepted as good
operation, maintenance, repair, replacement and management practices in the municipal solid
waste reduction industry as observed in the [Hawaii] region of the United States.
"Governmental Approvals" means all orders of approval, permits, licenses,
authorizations, consents, certifications, exemptions, rulings, entitlements and approvals issued
by a Governmental Body of whatever kind and however described which are required under
Applicable Law to be obtained or maintained by any person with respect to the Contract
Services.
"Governmental Authority' has the meaning specified in subsection 19.4(BJ.
"Govemmental Body" means any federal, state, regional or local legislative,
executive, judicial or other governmental board, agency, authority, commission,
administration, court or other body, or any official thereof having jurisdiction.
"Guaranteed Maximum Electricity Consumption" has the meaning specified in
Appendix [AS PROPOSED ON BUSINESS PROPOSAL FORM 18]
"Guaranteed Maximum Electricity Demand" has the meaning specified in
Appendix [AS PROPOSED ON BUSINESS PROPOSAL FORM 18]
"Guaranteed Maximum Electricity Utilization" means Guaranteed Maximum
Electricity Consumption and Guazanteed Maximum Electricity Demand. [AS PROPOSED ON
BUSINESS PROPOSAL FORM 18]
["Guaranteed Maximum Natural Gas (or Propane) Utilization"] has the meaning
specified in Appendix [AS PROPOSED ON BUSINESS PROPOSAL FORM 18]
"Guarantor" means , a corporation organized and existing under the
laws of ,and its successors and assigns permitted thereunder.
"Guazanty Agreement" or "Guaranty" means the Guaranty Agreement entered
into concurrently with this Service Contract from the Guarantor to the County in the form set
forth in the Transaction Forms, as the same may be amended from time to time in accordance
therewith.
"Hazardous Material" means any waste, substance, object or material deemed
hazardous under Applicable Law including, without limitation, "hazazdous substance" as
defined under CERCLA and "hazardous waste" as defined under RCRA.
dew.,
16
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I - Definitions and Interpretations
- "Higher Heating Value" means the heat generated during complete combustion
it of a fuel including the heat of vaporization of water vapor formed during combustion and
expressed in "British Thermal Units Per Pound" (Btu/lb).
"Independent Engineer" means a nationally-recognized qualified consulting
engineer or firm of consulting engineers, not otherwise associated with the transactions
contemplated hereby, having experience with respect to permitting, design, construction,
testing, operation, maintenance, repair, replacement and management of solid waste reduction
facilities.
"Independent Evaluator' means a qualified independent evaluator or evaluation
firm with demonstrated skill and experience in the evaluation of utility property, not otherwise
associated with the transactions contemplated hereby, selected with the mutual consent of the
pazties for the purpose of evaluating and determining the condition of the Facility pursuant to
Section 13.2. The Independent Evaluator may be an engineer or other technical professional
competent to perform such services.
"Initial Term° has the meaning specified in Section 4.1.
"Insurance Requirement° means any rule, regulation, code, or requirement
issued by any insurance company which has issued a policy of Required Design/Build Period
Insurance or Required Operation Period Insurance under this Service Contract, as in effect
during the Term hereof, compliance with which is a condition to the effectiveness of such
policy.
"Interim Electricity Production Performance Liquidated Damages° has the
meaning specified in Section 15.10.
"Legal Proceeding" means every action, suit, litigation, arbitration,
administrative proceeding, and other legal or equitable proceeding having a bearing upon this
Service Contract, and all appeals therefrom.
"Letter of Credit" has the meaning specified in Section 18.3.
"Lien" means any and every lien against the Facility or against any monies due
or to become due from the County to the Company under this Service Contract, for or on
account of the Contract Services, including mechanics', materialmen's, laborers' and lenders'
liens.
"Loss-and-Expense" means, and is limited to, any and all actual losses,
liabilities, forfeitures, obligations, damages, fines, penalties, judgments, deposits, costs,
expenses, charges, Taxes, or expenses, including all Fees and Costs, except as explicitly
excluded or limited under any provision of this Service Contract, relating to third party claims
17
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
for which the Company is obligated to indemnify the County pursuant to this Service Contract.
i
"Loss-and-Expense" for the purpose of any provision hereunder requiring indemnification of ~
the County by the Company shall mean and include any special, incidental, consequential,
punitive or similaz damages incurred by the County for third party claims.
"Maintenance, Repair and Replacement Plan° has the meaning specified in
subsection i3.1(A).
"Major Equipment° means [to be agreed upon by the Parties.]
"Material Decline in Guarantor's Credit Standing" has the meaning specified in
Section 18.1.
"Mediator° means any person serving as a mediator of disputes hereunder
pursuant to Sections 8.8 and 16.12.
"Minimum Acceptance Standazd" means the Minimum Acceptance Standard for
Acceptance of the Facility set forth in Appendix
"Minimum Financial Criteria° has the meaning specified in subsection 18.1(B).
"Monthly Progress Report" has the meaning specified in subsection'7.6(F).
"Non-Binding Mediation° means the voluntary system of dispute resolution
established by Sections 16.11 and 16.12 for the resolution of any dispute arising under this ~.r~'
Service Contract.
"Non-Processible Waste" means (a) Hazardous Waste; (b) dirt, concrete and other
construction material and demolition debris; (c) refrigerators, washing machines, large
appliances and similar "white goods"; (d) large items of machinery, equipment and mechanical
parts, such as motor vehicles and major components thereof (e.g., transmissions, rear ends,
springs and fenders), agricultural equipment, trailers and marine vessels, or any other lazge
item of waste; (e) sludge, sewage, wastewater and septic, cesspool, human, animal, offal, food
processing and liquid waste; (t) incinerator residue, ashes, foundry sands, and large
concentrations of plastics disposed of as wastes; (g) oil, paints, acids, caustics, poisons,
asbestos, chemicals, highly ignitable substances, explosives and ordinance materials; (h) bulk
loads of tires; and (i) any other materials the receipt and combustion of which is likely to cause
damage to or otherwise materially and adversely affect the operation of the Facility, constitute a
material threat to health or safety, or violate or cause the violation of any Applicable Law.
"Notice to Proceed" means a notice issued by the County for the Company to
commence construction of the Facility as set forth in Section 3.1.
"'~R
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"Operating Protocol' means the protocol governing operation of the Facility,
ti.. including all interface, coordination, and solid waste reduction policies, procedures and
protocols established, adopted and revised in accordance with Section 8.2 and Appendix
"Operation and Maintenance Manual° means the manual and related computer
programs prepared by the Company containing detailed standard operating and maintenance
procedures and other specific instructions, policies, directives, routines, schedules and other
matters relating to the Operation Services, developed and maintained as required by Article XI
and Appendix
"Operation Period" means the period from the Acceptance Date to and including
the last day of the Term.
"Operation Services" means everything required to be furnished and done for
and relating to the Facility by the Company pursuant to this Service Contract during the
Operation Period.
"OSHA" means both the [Hawaii Occupational Safety and Health Act,
Chapter 396 of the Hawaii Revised Statutes], including all applicable regulations promulgated
thereunder, and the Occupational Safety and Health Act of 1970, 29 U.S.C. Section 650 et
( sec including the applicable regulations promulgated thereunder, each as amended or
l supplemented from time to time.
"Overdue Rate° means the maximum rate of interest permitted by the laws of the
State, if applicable, or the Prime Rate, whichever is lower.
"Pass Through Costs° has the meaning specified in Section 15.5.
"Payment Bond" means the surety bond which guarantees the timely payment
by the Company for all labor, materials, supplies, implements, and machinery and equipment
to be furnished with respect to the construction of the Facility, and which shall be provided in
accordance with Section 18.2 and in substantially the form set forth in the Transaction Forms.
"Performance Bond" means the performance bond required to be provided by the
Company in accordance with Section 18.2 and substantially in the form set forth in the
Transaction Forms.
"Performance Guarantees" means the guazantees of performance relating to the
Annual Facility Throughput Guazantee, the Annual Electricity Production Guarantee, the
Environmental Guarantee and the Residue Guarantee made by the Company specifically set
forth in Sections 12.2, 12.3, 12.4 and 12.5, respectively.
TM "Permitted Encumbrances" means, as of any particular time, any one or mare of
w
the following:
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
(i) encumbrances for Utility charges, taxes, rates and assessments not yet
delinquent or, if delinquent, the validity of which is being contested diligently and in good {
faith by the Company and against which the Company has established appropriate
reserves in accordance with generally accepted accounting principles;
(ii) any encumbrance arising out of any judgment rendered which is being
contested diligently and in good faith by the Company, the execution of which has been
stayed or against which a bond or bonds in the aggregate principal amount equal to such
judgments shall have been posted with afinancially-sound insurer and which does not
have a material and adverse effect on the ability of the Company to construct the Facility
or operate the Facility;
(iii) any encumbrance arising in the ordinary course of business imposed by
law dealing with materialmen's, mechanics', workmen's, repairmen's, warehousemen's,
landlords', vendors' or carriers' encumbrances created by law, or deposits or pledges
which are not yet due or, if due, the validity of which is being contested diligently and in
good faith by the Company and against which the Company has established appropriate
reserves; and
(iv) servitudes, licenses, easements, encumbrances, restrictions, rights-of-
{ way and rights in the nature of easements or similar charges which will not in the
aggregate materially and adversely impair the construction of the Facility and operation
of the Facility by the Company.
"Power Purchase Agreement" means the agreement to be entered into by the
County and the Power Purchaser providing for the purchase by the Power Purchaser of
electricity produced by the Facility, as the same may be amended from time to time in
accordance therewith; or any other agreement between the County and the Power Purchaser
providing for the purchase of electricity from the Facility which is applicable in the event a
prior Power Purchaser is terminated for cause or fails to purchase all or a portion of the
electricity produced by the Facility, as such other agreement may be amended from time to
time in accordance with therewith.
"Power Purchaser" means Hawaii Electric Light Company or any other purchaser
of electricity from the Facility under a Power Purchase Agreement.
"PPI1" means the Producers Price Index relating to Eligible Reinforcing Steel, as
further described in subsection 9.2(C)(4)(a).
"PPI2" means the Producers Price Index relating to Eligible Steel Products Other
Than Reinforcing Steel, as further described in subsection 9.2(C)(4)(b).
20
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"PPI3" means the Producers Price Index relating to Eligible Cement, as further
described in subsection 9.2(C)(4)(c).
"Price Adjustment" has the meaning specified in subsection 9.2(C)(4).
"Prime Rate" means the prime rate as published in The Wa11 Street Journal, or a
mutually agreeable alternative source of the prime rate if it is no longer published in The Wa11
Street Journal or the method of computation thereof is substantially modified.
"Processible Waste° means Solid Waste which can be combusted by the Facility
in compliance with Applicable Law, including but not limited to the following types of solid
waste as defined in Hawaii County Code Section 20-31. [DISCUSS WITH BARBARA
BELL/BOBBY JEAN] Processible Waste does not include any waste included in the defmition
of "Non-Processible Waste", except for Non-Processible Waste which can be processed in small
quantities when mixed with other Processible Waste.
"Producers Price Index" or "PPI" means the final non-seasonally adjusted
Producers Price Index for different commodities set forth in this Service Contract, as reported
by the U.S. Department of Labor, Bureau of Labor Statistics, for Hawaii region.
"Provisional Acceptance° has the meaning specified in subsection 8.1(E).
( ~ "Provisional Acceptance Date" has the meaning specified in subsection 8.1(E).
'rw?
"Qualified Commercial Bank° means a domestic commercial bank whose long-
term debt is rated "A2" or higher by Moody's Investors Service, Inc., rated "A° or higher by
Fitch, Inc. and rated "A" or higher by Standard 8v Poor's Ratings Services, Inc. (if there is a split
rating, the lowest of the three shall apply), and which is a bank organized and existing under
the laws of the United States, is subject to federal and State banking regulatory jurisdiction
and maintains an office in the State of Hawaii.
`Rating Service" means Moody's Investors Service Inc., Standazd & Poor's Rating
Services, a division of The McGraw-Hill Companies, Inc. or Fitch Ratings, or any of their
respective successors and assigns and, if such corporations shall be dissolved or liquidated or
shall no longer perform the functions of a securities rating agency, "Rating Service" shall be
deemed to refer to any other nationally-recognized securities rating agency designated by the
County.
"RCRA" or "Resource Conservation and Recovery Act" means the Resource
Conservation and Recovery Act, 42 U.S.C.A. §6901 et and applicable regulations
promulgated thereunder, each as amended from time to time.
"Receiving Time° has the meaning specified in subsection 10.4(A)
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County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
r "Reference Document" means any of the documents appended to this Service
Contract or incorporated by reference. f
["Registered Hauler° means any person registered with the County and
authorized to deliver waste to the Facility or who is otherwise approved by the County to deliver
Processible Waste to the Facility from any source within the County, and whose authorization
is made evident to the Company by a pass, vehicle sticker or other method designated by the
County to identify commercial waste haulage vehicles that are reasonably acceptable to the
Company.] [DISCUSS WITH BARBARA B./MIKE D.]
"Regulated Substance" means (1) any oil, petroleum or petroleum product and
(2) any pollutant, contaminant, hazardous substance, hazardous material, toxic substance,
toxic pollutant, solid waste, municipal waste, industrial waste or hazardous waste that is
defined as such by and is subject to regulation under any Applicable Law. Regulated
Substances include Hazardous Materials and contaminated soils requiring special handling or
disposal.
"Reload Building" means the facility currently part of the planned Reload Facility
that will be used to screen, separate and transfer waste into containers for shipment to a
landfill or any waste disposal/reduction facility, prior to staztup of the Facility. Subsequent to
commercial operation of the Facility, the Reload Building will be used to screen, separate and, //~M,
if necessary, transfer waste.
"Reload Facility" means the County facilities currently under construction at the
South Hilo Landfill site (also called the East Hawaii Regional Sort Station) which will include
the Reload Building and associated roads, fencing and drainage features.
"Renewal Term" has the meaning specified in Section 4.1.
"Required Design/Build Period Insurance" has the meaning specified in
Appendix
"Required Insurance° means the Required Design/Build Period Insurance and
the Required Operation Period Insurance.
"Required Operation Period Insurance" has the meaning specified in
Appendix
"Requisition" means a written submission by the Company on the form of
requisition as agreed to by the parties, together with accompanying submittals, requesting
payment with respect to the Fixed DesignJBuild Price as set forth in Section 9.6 hereof.
"Residue" means bottom ash, fly ash, grate siftings, scrubber residue, unspent °"'Aq
lime and other material which remains after combustion of waste in the Facility.
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County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
"Residue Guazantee" means the production of Residue (1) containing not more
'sr than [5.0]% (by dry weight) combustible matter and not more than [0.2]% (by dry weight)
putrescible content, and (2) having a moisture content of not more than [20.0]%. [DISCUSS
WITH R.W. BECK]
"Residue Performance Liquidated Damages" has the meaning specified in
Section 12.5(B).
"RFP° means the County's Stage II Request for Proposals for the Solid Waste
Reduction Facility, issued on , 2006, as amended.
"Scheduled Acceptance Date" means the day consecutive calendar days
following the Schedule Construction Date [AS PROPOSED ON BUSINESS PROPOSAL
FORM or, in the event of one or more delays caused by Uncontrollable Circumstances or
County-directed Change Orders occurring during the Construction Period, the date which is
the next calendar day following the date calculated by adding _ days [AS PROPOSED ON
BUSINESS PROPOSAL FORM to the aggregate number of days of such delay. Any such
extension in the Scheduled Acceptance Date shall be evidenced by a Contract Administration
Memorandum or Change Order, as appropriate.
( ["Scheduled Construction Date" means the day _ consecutive calendar days
\ w--- following the Contract Date [AS PROPOSED ON BUSINESS PROPOSAL FORM or, in the
event of one or more delays caused by Uncontrollable Circumstances or County-directed
Change Orders occurring during the Development Period, the date which is the next calendar
day following the date calculated by adding days [AS PROPOSED ON BUSINESS
PROPOSAL FORM to the aggregate number of days of such delay. Any such extension in
the Schedule Construction Date shall be evidenced by a Contract Administrative Memorandum
or a Change Order, as appropriate.]
"Securities and Exchange Commission" means the U.S. Securities and Exchange
Commission.
"Security Instruments" means the Guazanty Agreement, the Construction
Performance Bonds, the Payment Bond and the Letter of Credit.
"Senior Supervisors" has the meaning specified in subsection 11.3(B).
"Service Contract° means this Service Contract for the Design, Construction and
Operation of the County of Hawaii Solid Waste Reduction Facility between the Company and
the County, including the Appendices, the Transaction Forms and the Reference Documents,
as the same may be amended or modified from time to time in accordance herewith.
d....
"Service Fee" has the meaning specified in Article XV.
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~ ["Shutdown Operations" means any period, not to exceed 3 hours (per
occurrence), commencing with the suspension of feeding of Processible Waste to any
combustion unit of the Facility and ending when the combustion unit is void of Processible
Waste.] DDISCUSS WITH R.W. BECK)
"Site" means the parcels of real property identified in Appendix , on which the
Facility is to be constructed.
"Site-Related Information" means all site-related information provided to the
Company prior to the Contract Date including, but not limited to, the Reference Documents.
"Solid Waste" means all materials and substances discazded or rejected as being
spent, useless, worthless, or in excess to the owners at the time of such discard or rejection,
including, without limitation, waste, garbage, trash, rubbish and refuse that is normally
disposed of by, and collected from, residential, commercial, industrial, governmental or
institutional establishments.
[Start-up Operations" means any period, not to exceed 3 hours (per occurrence),
commencing when any combustion unit of the Facility begins the combustion of Processible
Waste following an appropriate warm-up period and ending when the Facility achieves steady-
! state operations.] [DISCUSS WITH R.W. BECK]
c
"State° means the State of Hawaii. •.w''
"Subcontract" means an agreement or purchase order by the Company, or a
Subcontractor to the Company, as applicable.
"Subcontractor" means every person (other than employees of the Company)
employed or engaged by the Company or any person directly or indirectly in privity with the
Company (including all subcontractors and every sub-subcontractor of whatever tier) for any
portion of the Contract Services, whether for the furnishing of labor, materials, equipment,
supplies, services or otherwise.
"Substantial Completion" has the meaning specified in Section 8.2.
"Supplemental Technical Information" means those portions of Appendix
that aze expressly designated as "Supplemental Technical Information".
"Surety" means the surety company issuing the Construction Performance Bond
or the Payment Bond.
"Tax" means any tax, fee, levy, duty, impost, charge, surcharge, assessment or
withholding, or any payment-in-lieu thereof, and any related interest, penalty or addition to
tax.
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"Technical Dispute" has the meaning specified in subsection 16.11.
~w~-
"Technical Specifications" means the technical specifications set forth or
referenced in Appendix which are comprised of the Design Requirements and the
Supplemental Technical Information.
"Technology Supply Agreements° means (1) the Technology Supply Agreement to
be entered into between [Company (as owner of the combustion technology to be used at the
Facility)] and the County, substantially in the form set forth in Appendix and (2) the [Boiler
Technology Supply Agreement to be entered into between the supplier to the Company of the
boilers to be used] at the Facility and the County, substantially in the form set forth in
Appendix as each may be amended or modified from time to time in accordance therewith.
"Term" has the meaning set forth in Article N.
"Termination Date" means the last day of the Term of this Service Contract.
"Throughput Performance Credit Account° means the account so designated
which is established in accordance with Section 15.9(F).
"Throughput Performance Damages Account° means the account so designated
( which is established in accordance with Section 15.9(E).
"Throughput Performance Liquidated Damages" means the account so
designated which is established in accordance with Section 15.9(G).
"Ton" means a short ton of 2,000 lbs.
"Tonnage" means Tons of Processible Waste.
"TPD° means Tons per day.
"Transaction Form" means any of the Transaction Forms appended to this
Service Contract.
"Uncontrollable Circumstances" means any act, event or condition that is
beyond the reasonable control of the party relying thereon as justification for not performing an
obligation or complying with any condition required of such party under this Service Contract,
and that materially interferes with or materially increases the cost of performing its obligations
hereunder (other than payment obligations), to the extent that such act, event or condition is
not the result of the willful or negligent act, error or omission, failure to exercise reasonable
diligence, or breach of this Service Contract on the part of such party.
(1) Inclusions. Subject to the foregoing, Uncontrollable Circumstances may
~'r.r include, but shall not be limited to, the following:
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(a) a Change in Law;
(b) [the discovery of Hazardous Material or Regulated Substances on or at ,e.,,
the Site to the extent not disclosed in the Referenced Documents set forth in Appendix _ or
caused by Company Fault];
(c) naturally occurring events (except weather conditions normal for the
geographic region of the County) such as landslides, underground movement, earthquakes,
fires, tornadoes, floods, epidemics, and other acts of God;
(d) explosion, sabotage or similar occurrence, acts of a declared public
enemy, terrorism, extortion, war, blockade or insurrection, riot or civil disturbance;
(e) labor disputes, except labor disputes involving employees of the
Company, its Affiliates, or Subcontractors which affect the performance of the Contract
Services;
(f) the failure of any Subcontractor (other than the Company, the Guazantor
or any Affiliate of either, except as otherwise provided in the Service Contract), to furnish
services, materials, chemicals or equipment on the dates agreed to, but only if such failure is
the result of an event which would constitute an Uncontrollable Circumstance if it affected the
Company directly, and the Company is not able to timely obtain substitutes after exercising all yii~a
reasonable efforts; ,dw
(g) any failure of title to the Facility or any placement or enforcement of any
encumbrance on the Facility not consented to in writing by, or arising out of any action or
agreement entered into by, the party adversely affected thereby;
(h) the preemption, confiscation, diversion or destruction of materials or
services by a Governmental Body in connection with a public emergency or any condemnation
or other taking by eminent domain of any material portion of the Facility;
(i) subsurface conditions at the Site which vary from the conditions which
materially vary from the conditions reasonably anticipated based upon the {following Site
Related Information provided by the County: [TO BE PROVIDED]] in accordance with
Section 3.3;
(j) the failure of any appropriate federal, State, county or local public agency
or private utility having operational jurisdiction in the azea in which the Facility is located, to
provide and maintain utilities, services, water and sewer lines and power transmission lines to
the Site which are required for the construction, start-up, Acceptance Testing or operation of
( the Facility; ,,rw~
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County of Hawaii Solid Waste Reduction Facility Article I -Definitions and Interpretations
(k) any default by the Power Purchaser under the Power Purchase
Agreement other than a failure by such Power Purchaser to make payment when due, except
defaults attributable to unexcused non-performance by the Company or the County, as
applicable;
(1) a violation of Applicable Law by a person other than the affected party or
its subcontractors;
(m) with respect to the Company, any County Fault and County-requested
Change Orders not due to Company Fault; and
(n) with respect to the County, any Company Fault.
(2) Exclusions. It is specifically understood that none of the following acts,
events or circumstances shall constitute Uncontrollable Circumstances:
(a) any act, event or circumstance that would not have occurred if the
affected party had complied with its obligations hereunder;
(b) changes in interest rates, inflation rates, wage rates, insurance costs,
commodity prices, (except as provided in subsection 9.2(C)(4)), currency values, exchange rates
or other general economic conditions;
(c) changes in the financial condition of the County, the Company, the
Guarantor, or their Affiliates or Subcontractors affecting the ability to perform their respective
obligations;
(d) the consequences of error, neglect or omissions by the Company, the
Guazantor, any Subcontractor, any of their Affiliates or any other person in the performance of
the Contract Services;
(e) any impact of prevailing wage or similar laws, customs or practices on
the Company's costs;
weather conditions normal for the geographic region of the County;
(g) any surface or subsurface geotechnical or hydrological conditions,
including without limitation the existence of compressible soil layers, masses, unstable soils,
manmade deposits, and water table fluctuations, which conditions do not materially vary from
those reasonably anticipated based upon the [following Site Related Information supplied by
the County: [TO BE PROVIDED]] in accordance with Section 3.3;
(h) mechanical failure of equipment to the extent not resulting from a
condition that is listed in the °Inclusions" section of this definition;
V,~-
(i) [power outages (except as set forth in Section 11.7)];
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(j) failure of the Company to secure patents which it deems necessary for
the performance of the Contract Services;
(k) a Change in Law pertaining to taxes, except sales taxes;
(1) any Change in Law (including the issuance of any Governmental
Approval, the enactment of any statute, or the promulgation of any regulation) the terms and
conditions of which do not impose more stringent or burdensome requirements on the
Company than are imposed by the Contract Standards; or
(m) the discovery of Hazardous Materials or Regulated Substances on or at
the Site to the extent disclosed in the Reference Documents contained in Appendix _ or
caused by Company Fault.
"Utilities" means any and all utility services and installations whatsoever
(including gas, water, electricity, telephone, Internet, cable and any other telecommunications),
and all piping, wiring, conduit, and other fixtures of every kind whatsoever related thereto or
used in connection therewith.
SECTION 1.2. INTERPRETATION. In this Service Contract, notwithstanding
any other provision hereof:
(A) References Hereto. The terms "hereby," "hereof," "herein," "hereunder°
and any similar terms refer to this Service Contract; and the term "hereafter" means after, and ~
the term "heretofore" means before, the Contract Date.
(B) Gender and Plurality. Words of the masculine gender mean and include
correlative words of the feminine and neuter genders and words importing the singular number
mean and include the plural number and vice versa.
(C) Persons. Words importing persons include firms, companies,
associations, joint ventures, general partnerships, limited partnerships, limited liability
corporations, trusts, business trusts, corporations and other legal entities, including public
bodies, as well as individuals.
(D) Headines. The table of contents and any headings preceding the text of
the Articles, Sections and subsections of this Service Contract shall be solely for convenience of
reference and shall not affect its meaning, construction or effect.
(E) Entire Agreement. This Service Contract contains the entire agreement
between the parties hereto with respect to the transactions contemplated by this Service
Contract. Without limiting the generality of the foregoing, this Service Contract shall
completely and fully supersede all other understandings and agreements among the pazties
with res ect to such transactions, includin those contained in the RFP, the ~
p g proposal of the
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Company submitted in response thereto, and any amendments or supplements to the RFP or
the proposal.
(F) Design Requirements. The Design Requirements are intended to include
the basic design principles, concepts and requirements for the Design/Build Work but do not
include the final, detailed designs, plans or specifications or indicate or describe each and
every item required for full performance of the physical Design/Build Work and for achieving
Acceptance. The Company agrees to prepare all necessary and required complete and detailed
designs, plans, drawings and specifications and to furnish and perform, without additional
compensation of any kind, all Design/Build Work in conformity with the Design Requirements
and the final designs, plans, drawings and specifications based thereon.
(G) Standazds of Workmanship and Materials. Any reference in this Service
Contract to materials, equipment, systems or supplies (whether such references aze in lists,
notes, specifications, schedules, or otherwise) shall be construed to require the Company to
furnish the same in accordance with the grades and standards therefor indicated in this
Service Contract. Where this Service Contract does not specify any explicit quality or standard
for construction materials or workmanship, the Company shall use only workmanship and new
materials of a quality consistent with that of construction workmanship and materials specified
elsewhere in the Design Requirements, and the Design Requirements are to be interpreted
accordingly.
(H) Technical Standazds and Codes. References in this Service Contract to
all professional and technical standards, codes and specifications are to the most recently
published professional and technical standards, codes and specifications of the institute,
organization, association, authority or society specified, all as in effect as of the Contract Date.
Unless otherwise specified to the contrary, (1) all such professional and technical standazds,
codes and specifications shall apply as if incorporated in the Design Requirements and (2) if
any material revision occurs, to the Company's knowledge, after the Contract Date, and prior
to completion of the Design/Build Work, the Company shall notify the County. If so directed
by the County, the Company shall perform the Design/Build Work in accordance with the
revised professional and technical standard, code, or specification as long as the Company is
compensated, subject to Cost Substantiation, for any additional cost or expense attributable to
any such revision.
(I) Liquidated Damages. This Service Contract provides for the payment by
the Company of liquidated damages in certain circumstances of non-performance, breach and
_ default. Each party agrees that the County's actual damages in each such circumstance would
`~.r be difficult or impossible to ascertain (particularly with respect to the public harm that would
occur as a result of such non-performance, breach or default of the Company), and that the
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liquidated damages provided for herein with respect to each such circumstance aze intended to
place the County in the same economic position as it would have been in had the circumstance ~
not occurred. Except where additional remedies are otherwise specifically provided for herein,
such liquidated damages shall constitute the only damages payable by the Company to the
County in such circumstances of non-performance, breach or default, regazdless of legal
theory.
(J) Causine Performance. A party shall itself perform, or shall cause to be
performed, subject to any limitations specifically imposed hereby with respect to
Subcontractors or otherwise, the obligations affirmatively undertaken by such party under this
Service Contract.
(K) Party Bearin¢ Cost of Performance. All obligations undertaken by each
pazty hereto shall be performed at the cost of the party undertaking the obligation or
responsibility, unless the other party has explicitly agreed herein to bear all or a portion of the
cost either directly, by reimbursement to the other pazty or through an adjustment to the
Service Fee.
(L) Assistance. The obligations of a pazty to cooperate with, to assist or to
provide assistance to the other party hereunder shall be construed as an obligation to use the
C parr,~'s perscnnel resources to the extent reasonably available ir. the context of performance of
their normal duties, and not to incur material additional overtime or third party expense unless
requested and reimbursed by the assisted party.
(M) Internolation. If any calculation hereunder is to be made by reference to
a chart or table of values, and the reference calculation falls between two stated values, the
calculation shall be made on the basis of linear interpolation.
(N) Applicability and Strineency of Contract Standards. The Company shall
be obligated to comply only with those Contract Standards which are applicable in any
particular case. Where more than one Contract Standazd applies to any particular
performance obligation of the Company hereunder, each such applicable Contract Standazd
shall be complied with. In the event there are different levels of stringency among such
applicable Contract Standards, the most stringent of the applicable Contract Standards shall
govern.
(O) Delivery of Documents in Dieital Format. In this Service Contract, the
Company is obligated to deliver reports, records, designs, plans, drawings, specifications,
proposals and other documentary submittals in connection with the performance of its duties
hereunder. The Company agrees that all such documents shall be submitted to the County ;
both in printed form (in the number of copies indicated) and, at the County's request, in digital ~
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. form. Digital copies shall consist of computer readable data submitted in Autocad, Microsoft
Word, Microsoft Access, and Microsoft Excel or in any other similar standard interchange
format which the County may reasonably request to facilitate the administration and
enforcement of this Service Contract. In the event that a conflict exists between the signed or
the signed and stamped hazd copy of any document and the digital copy thereof, the signed or
the signed and stamped hard copy shall govern.
(P) Severability. If any clause, provision, subsection, Section or Article of
this Service Contract shall be ruled invalid by any court of competent jurisdiction, then the
parties shall: (1) promptly negotiate a substitute for such clause, provision, subsection,
Section or Article which shall, to the greatest extent legally permissible, effect the intent of the
parties in the invalid clause, provision, subsection, Section or Article; (2) if necessary or
desirable to accomplish item (1) above, apply to the court having declared such invalidity for a
judicial construction of the invalidated portion of this Service Contract; and (3) negotiate such
changes in substitution for or addition to the remaining provisions of this Service Contract as
may be necessary in addition to and in conjunction with items (1) and (2) above to effect the
intent of the parties in the invalid provision. The invalidity of such clause, provision,
subsection, Section or Article shall not affect any of the remaining provisions hereof, and this
Service Contract shall be construed and enforced as if such invalid portion did not exist.
(Q) No Third-Pazty Rights. This Service Contract is exclusively for the benefit
of the County and the Company and shall not provide any third parties with any remedy,
claim, liability, reimbursement, cause of action or other rights.
(R) References to Days. All references to days herein are references to
calendaz days.
(S) References to Including. All references to "including" herein shall be
interpreted as meaning "including without limitation".
(T) References to Knowledge. All references to "acknowledge", "knowing",
"know" or "knew" shall be interpreted as references to a party having actual knowledge.
(U) Counterparts. This Service Contract may be executed in any number of
original counterparts. All such counterparts shall constitute but one and the same Service
Contract.
Governing Law. This Service Contract shall be governed by and
construed in accordance with the applicable laws of the State.
(W) Defined Terms. The definitions set forth in Section 1.1 shall control in
the event of any conflict with any definitions used in the recitals hereto.
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t
ARTICLE II
`r.. REPRESENTATIONS AND WARRANTIES
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE COUNTY.
The County represents and warrants that:
(A) Existence and Powers. The County is a body politic and corporate of the
State of Hawaii (the "State"), with full legal right, power and authority to enter into and to
perform its obligations under this Service Contract.
(B) Due Authorization and Binding Oblieation. This Service Contract has
been duly authorized, executed and delivered by all necessary action of the County.
(C) No Conflict. To the best of its knowledge, neither the execution nor
delivery by the County of this Service Contract, nor the performance by the County of its
obligations in connection with the transactions contemplated hereby or the fulfillment by the
County of the terms or conditions hereof (1) conflicts with, violates or results in a breach of any
constitution, law or governmental regulation applicable to the County or (2) conflicts with,
violates or results in the breach of any term or condition of any order, judgment or decree, or
any contract, agreement or instrument, to which the County is a pazty or by which the County
" or any of its properties or assets aze bound, or constitutes a default under any of the foregoing.
\
(D) No Approvals Required. No approval, authorization, order or consent of,
or declaration, registration or Filing with, any Governmental Body or referendum of voters is
required for the valid execution and delivery by the County of this Service Contract or the
performance by the County of its payment or other obligations hereunder except otherwise as
such have been duly obtained or made.
(E) No Litigation. To the best of its knowledge, there is no Legal Proceeding,
at law or in equity, before or by any court or Governmental Body, or proceeding for referendum
or other voter initiative, pending or, to the best of the County's knowledge, overtly threatened
or publicly announced against the County, in which an unfavorable decision, ruling or finding
could reasonably be expected to have a material and adverse effect on the execution and
delivery of this Service Contract or the validity, legality or enforceability of this Service
Contract, or any other agreement or instrument entered into by the County in connection with
the transactions contemplated hereby, or on the ability of the County to perform its obligations
hereunder or under any such other agreement or instrument.
(F) County Ownership Interests in the Site. [The County owns the Site in fee
simple.]
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(G) Information Pertainine to the Site. To the best of its knowledge, the
County has made available to the Company all of the significant studies, reports and other
information pertaining to the Site which the County has developed in connection with its ' '
planning and preparation work with respect to the RFP and the Facility and which, in the
County's opinion, may reasonably be material to the performance by the Company of the
Contract Services. The County makes no representation, however, as to the accuracy or
completeness of any such information except as expressly set forth in Section 3.3.
SECTION 2.2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants that:
(A) Existence and Powers. The Company is a [corporation] duly organized,
validly existing and in good standing under the laws of and has the authority to
do business in the State and in any other state in which it conducts its activities, with the full
legal right, power and authority to enter into and perform its obligations under this Service
Contract.
(B) Due Authorization and Bindine Obli¢ation. This Service Contract has
been duly authorized, executed and delivered by all necessary corporate action of the Company
and constitutes a legal, valid and binding obligation of the Company, enforceable against the
C Company in accordance with its terms, except to the extent that its enforceability may be
limited by bankruptcy, insolvency or other similaz laws affecting creditors' rights from time to
time in effect and equitable principles of general application.
(C) No Conflict. To the best of its knowledge, neither the execution nor
delivery by the Company of this Service Contract nor the performance by the Company of its
obligations in connection with the transactions contemplated hereby or the fulfillment by the
Company of the terms or conditions hereof (1) conflicts with, violates or results in a breach of
any constitution, law or governmental regulation applicable to the Company or (2) conflicts
with, violates or results in a breach of any order, judgment or decree, or any contract,
agreement or instrument to which the Company is a party or by which the Company or any of
its properties or assets are bound, or constitutes a default under any of the foregoing.
(D) No Approvals Required. No approval, authorization, order or consent of,
or declaration, registration or filing with, any Governmental Body is required for the valid
execution and delivery of this Service Contract by the Company or the performance of its
payment or other obligations hereunder except as such have been duly obtained or made.
(E) No Litieation. Except as disclosed in writing to the County, to the best of
its knowledge, there is no Legal Proceeding, at law or in equity, before or by any court or
Governmental Body pending or, to the best of the Company's knowledge, overtly threatened or ,,,,,,,r
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publicly announced against the Company, in which an unfavorable decision, ruling or finding
could reasonably be expected to have a material and adverse effect on the execution and
delivery of this Service Contract by the Company or the validity, legality or enforceability of this
Service Contract against the Company, or any other agreement or instrument entered into by
the Company in connection with the transactions contemplated hereby, or on the ability of the
Company to perform its obligations hereunder or under any such other agreement or
instrument.
(F) Claims and Demands. Except as disclosed in writing to the County, to
the best of its knowledge, there aze no material and adverse claims or demands based in
environmental tort law, or based on breach of contract, pending or threatened against the
Company with respect to any solid waste reduction facility providing service to the general
public designed, constructed, operated, maintained or managed by the Company, the
Guazantor or any Affiliate.
(G) Applicable Law Compliance. Except as disclosed in writing to the
County, to the best of its knowledge, neither the Company, the Guarantor nor any Affiliate is in
material violation of any law, order, rule or regulation applicable to any solid waste reduction
facility providing service to the general public designed, constructed, operated, maintained or
managed by the Company, the Guarantor or any Affiliate the violation of which may have an
adverse affect on the ability of the Company, the Guarantor or any Affiliate to perform their
obligations hereunder or under the Guazanty Agreement.
(H) Practicability of Performance of the Facility. The Design Requirements,
the technology and the construction and management practices to be employed in the
construction of the Facility and operation of the Facility as so improved are furnished
exclusively by the Company pursuant to the terms of this Service Contract, and the Company
assumes and shall have exclusive responsibility for their efficacy, notwithstanding the
inclusion of design principles or other terms and conditions in the RFP or the negotiation of the
terms of the Design Requirements, Acceptance Test Procedures and Standards, and
Performance Guarantees between the Company and the County. The Company assumes the
risk of the practicability and possibility of performance of the Facility on the scale, within the
time for completion and in the manner required hereunder, and of reducing solid waste
through the operation of the Facility in a manner which meets all of the requirements hereof,
even though such performance and operation may involve technological or mazket
breakthroughs or overcoming facts, events or circumstances (other than Uncontrollable
Circumstances) which may be different from those assumed by the Company in entering into
this Service Contract, and agrees that sufficient consideration for the assumption of such risks
and duties is included in the Fixed Design/Build Price and the Service Fee. No impracticability
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( or impossibility of any of the foregoing shall be deemed to constitute an Uncontrollable _
Circumstance.
(I) Patents and Licenses. The Company owns, or is expressly authorized to
use under patent rights, licenses, franchises, trademarks or copyrights, the technology
necessary for the Facility without any known material conflict with the rights of others.
(J) Information Supplied by the Comnany. The information supplied and
representations and warranties made by the Company and the Guarantor in all submittals
made in response to the RFP and in all post-proposal submittals with respect to the Company
and the Guarantor (and to the best of its knowledge, all information supplied in such
submittals with respect to any Subcontractor) are true, correct and complete in all material
respects.
SECTION 2.3. KNOWLEDGE-BASED REPRESENTATIONS. Whenever a
representation or warranty hereunder is made to the best of the knowledge of the CounTy or
the best of the knowledge of the Company, such representation or warranty hereunder shall be
deemed made, as the case may be, to the knowledge of the [County Corporation Counsel] or to
the knowledge of the General Counsel and Chief Executive Officer of the Company.
•,urd
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w„. ARTICLE III
TERM
SECTION 3.1. EFFECTNE DATE AND INITIAL TERM. This Service
Contract shall become effective on the Contract Date, and shall continue in effect for 20 years
following the Acceptance Date (the °Initial Term°) or, if renewed as provided in Section 3.2,
until the last day of the renewal term (the "Renewal Term"; the Initial Term and any Renewal
Term being referred to herein as the °Term"), unless eazlier terminated pursuant to the
termination provisions of Article XVI hereof, in which event the Term shall be deemed to have
ended as of the date of such termination. All rights, obligations and liabilities of the pazties
hereto shall commence on the Contract Date, subject to the terms and conditions hereof. The
County shall have no obligation to make Service Fee payments with respect to the Facility until
after the Acceptance Date. At the end of the Term of this Service Contract, all other obligations
of the parties hereunder shall terminate, except as provided in Sections 16.6 and 16.7.
SECTION 3.2. RENEWAL AND EXTENSION OPTION. This Service Contract
may be renewed and extended for an additional period of five yeazs (subject to convenience
termination without cost to the County at any time or 90 days written notice) by mutual
agreement of the pazties on the same conditions as aze applicable during the Initial Term. The
Company shall give the County written notice of the approaching expiration of the Initial Term
no later than 270 days prior to such expiration.
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ARTICLE N
i DEVELOPMENT PERIOD
SECTION 4.1. SITE SUITABILITY CONFIRMATION. (A) Site Familiarity.
The Company aclaZOwledges that the Company's agents and representatives have visited,
inspected and are familiar with the Site, its surface physical condition relevant to the
obligations of the Company pursuant to this Service Contract, including surface conditions,
normal and usual soil conditions, roads, utilities, topographical conditions and air quality
conditions; that the Company is familiaz with all local and other conditions which may be
material to the Company's performance of its obligations under this Service Contract
(including, but not limited to transportation; seasons and climate; access, availability, disposal,
handling and storage of materials and equipment; and availability and quality of labor and
Utilities), and has received and reviewed all information regarding the Site provided to it as part
of the Site-Related Information or obtained in the course of performing its obligations
hereunder; and that based on the foregoing, the Site constitute acceptable and suitable sites
for the construction and operation of the Facility in accordance herewith, and the Facility can
be constructed on the Site within the Fixed Design/Build Price and by the Scheduled
Acceptance Date.
(B) County-Supplied Information. Except as set forth below, the Company
l`>.~.- shall be responsible for the independent verification and confirmation of all information
supplied to it by or on behalf of the County and upon which it elects to rely in connection
herewith. Except as set forth below, no error or omission in any such information shall
constitute an Uncontrollable Circumstance, or relieve the Company from any of its obligations
or entitle the Company to any increase in compensation hereunder. Notwithstanding the
above, the Company shall not be required to verify and confirm the actual subsurface condition
of the Site, and the Company shall be entitled to relief if the actual subsurface condition of the
Site varies from that reasonably anticipated based upon the information set forth in [the
geotechnical reports set forth in Appendix _ and the Company's assumptions regarding such
information as set forth in Appendix and, in addition, the Company shall be able to rely on
the [Phase I Environmental Site Assessments] contained in Appendix _ with respect to the
presence of Hazazdous Materials and Regulated Substances and the survey set forth in
Appendix _ with respect to the on-Site boundaries.]
(C) Site Access Durine Development Period. The execution of this Service
Contract shall be deemed to constitute the granting of a license to the Company to access the
Site for the purposes of: (1) performing engineering, analysis and such additional subsurface
and geotechnical studies or tests as deemed necessary by the Company; and (2) performing all
vw necessary onsite activities pursuant to Section 4.2. Such access shall be subject to the
County's prior approval, which shall not be unreasonably withheld, as to time and scope. On
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County of Hawaii Solid Waste Reduction Facility Article IV -Development Period
and after the Construction Commencement Date, the County shall also provide to the
~ Company licenses in, over, or to the Site and other lands owned or controlled by the County, as
may be necessary to permit the Company to perform its obligations hereunder for the Term of
this Service Contract. The Company shall assume all risks associated with such activities and
indemnify, defend and hold harmless the County and the County Indemnitees in accordance
with Section 17.3.
(D) Discovery of Hazardous Materials or Other Regulated Substances. The
discovery after the Contract Date of Hazazdous Materials or Regulated Substances, except for
any Hazardous Materials or Regulated Substances which have been disclosed to the Company
prior to the Contract Date, shall be treated as an Uncontrollable Circumstance.
SECTION 4.2. DEVELOPMENT PERIOD RESPONSIBILITIES OF THE PARTIES.
(A) County Development Period Responsibilities. The County shall satisfy the following County
responsibilities as soon as practicable following the Contract Date, each of which shall be a
condition precedent to the occurrence of the Construction Commencement Date, unless waived
by the County pursuant to Section 4.3 hereof:
(1) [General Bond Resolution.] The County shall have adopted the [General
Bond Resolution].
(2) Power Purchase Agreement. The County and the Power Purchaser shall
have executed and delivered the Power Purchase Agreement.
(3) Technology Supply Agreement. The Company shall have delivered to the
County the executed Technology Supply Agreements.
(4) Environmental and Governmental Approvals. All applicable
environmental and other governmental permits, licenses, approvals and authorizations
(a) necessary for the commencement of construction of the Facility, (b) required to be
issued under Applicable Law before the Construction Commencement Date, and
(c) specified in Appendix _ hereto to be obtained by the Company, by the County or
both prior to the Construction Commencement Date shall have been duly obtained by
the Company, the County or both, as applicable, in form and substance reasonably
satisfactory to the County and the Company (except as provided in Sections 4.1 and 5.2
hereof) and in accordance with the requirements of Section 4.1 and 5.2 hereof.
(5) [Certification of the Facility. The County shall have received certification
of the Facility as a "qualifying facility° from the Federal Energy Regulatory Commission.}
..,r
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IV -Development Period
(6) Site. The County shall have good and marketable title to the Site free
and clear of any encumbrances material to the performance of any party's obligation
hereunder.
(7) Easements. The County shall have received all easements, or other
interests in real property as may be necessary in order to provide utilities and enable
the Company to perform the Design/Build Work and Operation Services hereunder.
(8) Representations. The representations of the County set forth in
Section 2.1 hereof shall be correct in all material respects as of the Construction
Commencement Date as if made on and as of such date, and the County shall have
delivered to the Company a certificate of an authorized officer to that effect.
(9) Documents Instruments and Agreements. All of the documents,
instruments and agreements identified in this Section 4.2 shall be in form and
substance reasonably satisfactory to the Company (it being agreed by the Company and
the County that any such document, instrument or agreement the form of which is set
forth in an Appendix on the Contract Date that is executed and delivered in
substantially such form is and shall be deemed to be in form and substance satisfactory
to the Company, and that the [General Bond Resolution,] and the Power Purchase
Agreement shall be consistent with the requirements set forth with respect thereto in
Article VI hereof, except as otherwise agreed to by the County and the Company; and
that any Transaction Agreement shall not materially and adversely affect the rights of
the Company to any payment due hereunder from the sources and in the manner
contemplated hereby or impose any obligations on the Company in excess of those
assumed hereunder) and shall be valid, in full force and effect and enforceable against
each party thereto on the Construction Commencement Date. No such document,
instrument or agreement shall be subject to the satisfaction of any outstanding
condition precedent except those expressly to be satisfied after the Construction
Commencement Date, no pazty to any such document, instrument or agreement shall
be in default or imminent default thereunder, and the Company shall have received
such certificates or other evidence reasonably satisfactory to it of such facts as the
Company shall have reasonably requested.
(10) Survey and Property Description. The County shall deliver to the
Company existing metes and bounds property descriptions and existing survey
information with respect to the Site and other lands upon or under which the Facility is
to be constructed.
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County of Hawaii Solid Waste Reduction Facility Article IV -Development Period
(B) Companv Development Period Responsibilities. The Company shall
satisfy the following Company responsibilities as soon as practicable following the Contract
Date, each of which shall be a condition precedent to the occurrence of the Construction
Commencement Date, unless waived by the County pursuant to Section 4.3 hereof:
(1) Representations. The representations of the Company set forth in
Section 2.2 and of the Guazantor set forth in the Guaranty Agreement shall be true and
correct in all material respects as of the Construction Commencement Date as if made
on and as of the Construction Commencement Date, and the Company shall deliver to
the County a certificate of an authorized officer of each to that effect.
(2) Documents, Instruments and Aereements. All of the documents,
instruments and agreements identified in this Section 4.2 shall be in form and
substances reasonably satisfactory to the County (it being agreed by the County and
the Company that any such document, instrument or agreement the form of which is
set forth in an Appendix on the Contract Date that is executed and delivered in
substantially such form is and shall be deemed to be in form and substance satisfactory
to the County, and that the [General Bond Resolution] and the Power Purchase
Agreement shall be consistent with the requirements set forth with respect thereto in
Article VI hereof, except as otherwise agreed to by the County and the Company), and
C, shall be valid, in ful] force and effect and enforceable against each party thereto on the
Construction Commencement Date. No such document, instrument or agreement
shall be subject to the satisfaction of any outstanding condition precedent except those
expressly to be satisfied after the Construction Commencement Date, no pazty to any
such document, instrument or agreement shall be in default or imminent default
thereunder, and the County shall have received such certificates or other evidence
reasonably satisfactory to it of such facts as the County shall have reasonably
requested.
(3) Confirmation of Chances. Since the Contract Date, there shall not have
occurred any change, financial or otherwise, in the condition of the Company or the
Guarantor that would materially and adversely affect the ability of the Company or the
Guarantor to perform this Service Contract or any agreement or instrument entered
into or to be entered into by the Company or the Guarantor pursuant to this Service
Contract.
(4) Legal Proceeding. There shall be no Legal Proceeding, at law or in equity,
before or by any court or governmental authority, pending or threatened, which
challenges, or might challenge, directly or indirectly, the authorization, execution,
delivery, validity or enforceability of this Service Contract or any other agreement,
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County of Hawaii Solid Waste Reduction Facility Article N -Development Period
instrument, ordinance or regulation (including, without limitation, the portions of the
County's Integrated Solid Waste Management Plan material to this Service Contract)
entered into or adopted by the State, the County or the Company or its Affiliates in
connection with the transactions contemplated hereby, unless counsel acceptable to the
CounTy has determined any such Legal Proceeding to be without merit.
(5) Favorable Opinions of Counsel. The CounTy shall have received such
favorable opinions of counsel for the Company and for the other parties to the
agreements to be entered into in connection with the transactions contemplated hereby,
in customary form for financing transactions, as to the matters of law covered by the
representations of the Company set forth in Section 2.2 hereof and similar matters of
law with respect to such other agreements and as to such other matters of law as the
County may reasonably request, together with appropriate certified authorizing
resolutions and incumbency certificates to the extent reasonably available.
(6) Change in Law. Since the Contract Date, there shall been no Change in
Law (other than a Change in Law made by the County) or other Uncontrollable
Circumstance which would (after giving effect to any provisions of this Service Contract
which may require the County to beaz the burden of such Change in Law or other
Uncontrollable Circumstance) (a) impose permit conditions or other legal requirements
governing air emissions or Facility operations which, in the good faith judgment of the
County, cannot reasonably be expected to be complied with, (b) materially and
adversely affect the availabiliTy of solid waste disposal service to the County hereunder
or the ability of the County to perform its obligations hereunder or under any other
Transaction Agreement entered or to be entered into by the County pursuant to this
Service Contract, or (c) increase the total cost to the County of waste disposal utilizing
the Facility (including without limitation costs associated with the Service Fee, [debt
service on Bonds] and Residue disposal) in the first full Contract Year by more than
50% of such total costs expected as of the Contract Date to be paid by the County
hereunder in the first full Contract Year, as determined by the County in good faith.
(7) Site Conditions. The Company shall make all further soil test borings
and conduct analyses of subsurface conditions, inspections and applicable site history
reviews of the Site, in each case as necessary under Good Engineering and
Construction Practice to prepare for excavation and construction hereunder in
accordance with Applicable Law and to obtain all required Governmental Approvals.
[DISCUSS WITH COUNTY)
(8) Designn and Approvals. The Company shall perform all design work and
other work necessary to obtain, and shall obtain, all applicable Governmental Approvals
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County of Hawaii Solid Waste Reduction Facility Article IV -Development Period
which are required to be issued under Applicable Law for the commencement of _
construction of the Facility, except for those Governmental Approvals specified in
Appendix _ hereto to be obtained by the County, in a form and in substance
satisfactory to the County. With respect to construction work, the commencement of
which does not require a Governmental Approval, the Company shall have submitted
design drawings (50 percent) to the County in compliance with Appendix In
addition, the Company shall cooperate with and assist the County in obtaining
Governmental Approvals which the County is responsible for obtaining. The Company
shall provide the County with any final design documents and copies of any
Government Approvals.
(9) Site Related Plans. The Company shall prepare and submit to -the
appropriate Governmental Body, as required under Appendix _ and as needed to
support any permit applications or meet permit conditions, all Site-related plans,
including those plans set forth in Appendix
(10) [Environmental Review. The Company shall have performed, at its cost
and expense, all additional environmental reviews (State and federal) if any such
reviews are necessary due to the Company's design of the Facility.] (DISCUSS WITH
C COUNTY]
(11) Information to Support Site Easements. In the event the County is
required to grant Utility easements on the Site in connection with the Design/Build
Work, the Company shall provide complete descriptions of all Utility connections and
surface features within 10 feet of both sides of the easement and routes on the Site
necessary for such purposes.
(12) Utilities. The Company shall make all azrangements necessary to secure
the availability of all Utilities required to construct and operate the Facility in the
capacities required hereunder, and shall evidence such availability by letters from the
providers of such Utilities.
(13) Critical Path Method Schedule. The Company shall prepare and provide
to the County an updated "critical path method° schedule for the Design/Build Work.
(14) [Design and Construction Subcontracts. The Company shall negotiate
and execute the Design Subcontract and the Construction Subcontract in accordance
with the requirements of subsections 19.7(E) and 19.7(F) (if applicable).]
(IS) Construction Performance and Pavment Bonds. The Company shall
obtain and deliver to the County the Construction Performance Bond and the Payment
t,..=
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County of Hawaii Solid Waste Reduction Facility Article N -Development Period
Bond as required by Section 18.2. Each such bond shall be substantially in the form
~ set forth in the Transaction Forms.
(16) Applicable Law Compliance. The Company shall comply with all other
requirements of Applicable Law pertaining to the activities constituting the
Construction Commencement Date Conditions.
(17) Companv Law Compliance. The Company shall certify to the County as
of the Construction Commencement Date that it is in substantial compliance with all
laws, regulations, rules and orders applicable to its business, non-compliance with
which would have a material and adverse effect upon its business or its ability to
perform its obligations under this Service Contract.
(18) Financial Condition. The Company shall provide audited financial
statements of the Company and the Guarantor for the most recently completed fiscal
year and quarterly period. Since the Contract Date, there shall not have occurred any
change, financial or otherwise, in the condition of the Company or the Guarantor that
would materially and adversely affect the ability of the Company or the Guarantor to
perform their respective obligations under this Service Contract and the Guazanty
_ Agreement. [The Company shall cooperate with and assist the County by providing any
information, certifications or documents which may be reasonably required in
connection with the issuance of County debt obligations or otherwise obtaining the
funds necessary to pay the Fixed DesignJBuild Price, including the County's application
for any available grant funds, loans or special appropriations (which shall be prepared
by the County).] [DISCUSS WITH COUNTY)
(19) Documents Evidencine Required Activities. The Company shall have
provided to the County copies of all filings and reports conducted, prepared or obtained
with respect to or evidencing the Company's activities pursuant to this Section and
Section 3.2.
(20) Required Design/Build Period Insurance. The Company shall have
submitted to the County certificates of insurance for all Required Design/Build Period
Insurance specified in Appendix _ hereto.
(21) Confirmation of Guazanty. The Guarantor shall execute and deliver a
confirmation to the County that the Guazanty Agreement remains in full force and
effect.
(22) Notice of Default. The Company shall provide to the County, promptly
following the receipt thereof, copies of any notice of default, breach or non-compliance
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Countv of Hawaii Solid Waste Reduction Facility Article IV -Development Period
received under or in connection with any Governmental Approval or Subcontract _ .
pertaining to the Development Period.
(C) Payment for Company Development Period Work. The Company shall be
paid for its Development Period Work in accordance with Section 9.3.
SECTION 4.3. CONSTRUCTION COMMENCEMENT DATE CONDITIONS.
(A) Construction Commencement Date Conditions Defined. The obligations of the Company
and the County to proceed with their respective obligations hereunder during the
Design/Build Period shall not commence until all of the following conditions necessary for the
construction of the Facility (the "Construction Commencement Date Conditions") are satisfied:
(1) Company Development Period Responsibilities. The Company shall have
fulfilled all of its responsibilities with respect to the Development Period under
Section 4.2.
(2) Countv Development Period Responsibilities. The County shall have
fulfilled all of its responsibilities with respect to the Development Period under
Section 4.2.
(3) Designation of Authorized Representative. The parties shall each
r designate an authorized representative for coordination of matters arising during the
Design/Build Period.
(4) Acceptability and Effectiveness of Documents. All of the documents and
instruments identified in this Article shall be in form and substance reasonably
satisfactory to both parties, and shall be valid, in full force and effect and enforceable
against each party thereto on the Construction Commencement Date. It is understood
that any such document, instrument or agreement the form of which is set forth in a
Transaction Form, that is executed and delivered in substantially such form is and shall
be deemed to be in form and substance satisfactory to each party. No such document,
instrument or agreement shall be subject to the satisfaction of any outstanding condition
precedent except those expressly to be satisfied after the Construction Commencement
Date. No party to any such document, instrument or agreement shall have repudiated or
be in default or imminent default thereunder, and each party shall have received such
certificates or other evidence reasonably satisfactory to it of such facts as such party
shall have reasonably requested.
(5) Leal Proceedings. There shall be no Legal Proceeding, at law or in
equity, before or by any court or Governmental Body, pending or threatened, which:
(a) challenges, or might challenge, directly or indirectly, (i) the authorization, execution,
delivery, validity or enforceability of this Service Contract or the Guaranty, or (ii) the
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County of Hawaii Solid Waste Reduction Facility Article N -Development Period
interests of the County in the Site; (b) seeks to enjoin or restrict the use of the Site for
~ `v the purposes contemplated by this Service Contract; or (c) seeks damages, fines,
remediation or any other remedy in connection with the environmental condition or any
other factor pertaining to the Site, in any such case which can reasonably be expected to
materially and adversely affect the County's or the Company's ability to comply with its
obligations hereunder.
(6) No Chance in Law Affecting the Service Contract. No Change in Law
shall have occurred after the Contract Date and before the Construction Commencement
Date that would make the authorization, execution, delivery, validity, enforceability or
performance of this Service Contract a violation of Applicable Law.
(B) Construction Commencement Date Conditions for which Both Parties
Have Resoonsibilitu. The County and the Company shall each use all reasonable efforts in
taking such actions as may reasonably be under their control in order to satisfy the
Construction Commencement Date Conditions as soon as practicable.
SECTION 4.4. CLOSING THE DEVELOPMENT PERIOD. (A] Establishment of
the Construction Commencement Date. The parties shall give each other prompt notice when
each Construction Commencement Date Condition has been achieved. Upon the satisfaction
or waiver of all of such Construction Commencement Date Conditions, the parties shall hold a
formal closing on a date and at a location determined by the County, acknowledging such
satisfaction, delivering copies of all relevant documents, and certifying that the Construction
Commencement Date has occurred. The date of such closing shall be deemed to be the
Construction Commencement Date hereunder, and thereupon the County shall issue its
Notice to Proceed and the Design/Build Period shall commence. Written documents or
instruments constituting or evidencing satisfaction of the Construction Commencement Date
Conditions shall be furnished to each party prior to or on the Construction Commencement
Date to the extent practicable.
(B) Failure of Conditions. If by the [ ]anniversary of the Contract
Date (as such date may be extended day-for-day by any Legal Proceeding which has a material
bearing upon the ability of the parties to proceed with the transactions contemplated hereby,
but not later than the [ ]anniversary of the Contract Date], or such later date upon
which the County and the Company may agree, any Construction Commencement Date
Conditions in Section 4.3 hereof is not satisfied or waived as a result of an Uncontrollable
Circumstance, either party hereto may, by notice in writing to the other party, terminate this
Service Contract. Neither party shall be liable to the other for the termination of this Service
Contract pursuant to this subsection, and each of the parties shall bear its respective costs
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County of Hawaii Solid Waste Reduction Facility Article IV -Development Period
and expenses incurred in seeking to satisfy the Construction Commencement Date Conditions
set forth in Section 4.3 hereof. [DISCUSS TERMINATION] f „w..~
SECTION 4.5. COUNTY TERMINATION OPTION DURING THE
DEVELOPMENT PERIOD. (A) County Convenience Termination Option Prior to Construction
Commencement Date. The County shall have the right any time prior to the Construction
Commencement Date, exercisable in its sole discretion for any reason upon thirty days' written
notice to the Company, to terminate this Service Contract. Upon any such termination, the
County shall reimburse the Company for 100% of its Cost-Substantiated costs incurred
directly by the Company and any expenses paid or incurred to third pazties from the Contract
Date to the termination date hereunder not previously compensated by the County, which aze
directly related to the performance of the Company's obligations, and which are necessary to be
performed prior to the Construction Commencement Date subject to a maximum amount of
the Fixed Development Price. [DISCUSS TERMINATION OPTION]
(B) Delivery of Development Period Work Product to the Countv.
Concurrently with payment by the County to the Company of the amount due upon any
termination of this Service Contract under this Section, the Company shall deliver to the
County all of its Development Period Work product. Such work product shall include, without
limitation, all plans, specifications, designs (including CADD files in a format requested by the
County), drawings, rendering, blueprints, manuals, equipment layouts, and Governmental
Approvals and related applications, submittals and other information prepared for the purpose
of planning, designing, constructing and operating the Design/Build Work or operating the
Design/Build Work and securing Governmental Approvals and financial security for the
Company's obligations pursuant hereto. In the event the County utilizes any incomplete
design provided by the Company following a convenience termination, the Company shall have
no liability with respect thereto.
(C) Countv Rieht of Termination Upon Required Redesien of the Facility. If
at any time prior to the Construction Commencement Date, the County determines, based on a
Change in Law or upon negotiations with the DOH or USEPA as to proposed administrative or
permit conditions to be applicable to the Facility, that the maximum continuous rating of the
Facility must be increased or decreased in order to either comply with Applicable Law, to
obtain solid waste construction and air permits necessary to begin construction of the Facility,
the Company shall furnish the County with a proposal therefor as if such potentially required
change in combustion capacity constituted a Change Order, including proposed changes in
price, schedule, guarantee and other terms hereof. In the event the County and the Company
are unable, following good faith negotiations, to agree as to the changes to this Service i.~1
Contract which aze necessazy as a result of the capacity alternation required by such Change ..M?)
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County of Hawaii Solid Waste Reduction Facility Article IV -Development Period
in Law or proposed permit requirement, the County shall have the right to terminate this
~ Service Contract upon written notice to the Company, and payment to the Company of the
amount which would be payable upon termination of this Service Contract pursuant to
subsection 4.5(A) hereof.
(D) Costs, Records and Reaortine. Prior to the Construction Commencement
Date, the Company shall prepare and maintain proper, accurate and complete books and
records of the cost and description of the permitting and other developmental work which the
Company has performed since the Contract Date (or with respect to permitting work from
2007) which is directly related to the Company's obligations under this Service
Contract, the cost of which would be the responsibility of the County if the County were to elect
to terminate this Service Contract pursuant to subsections of this Article. The Company shall
submit such books and records to the County on the Contract Date and thereafter on a
quarterly basis until either the County exercises its right to terminate this Service Contract or
until the Construction Commencement Date occurs, whichever is eazlier. Within 45 days of
receipt of such information the County will advise the Company as to whether and to what
extent the County disputes such information contained in such books and records.
SECTION 4.6. REGULATORY CONTRACT APPROVAL. [DISCUSS WITH COUNTY
IF ANY REGULATORY CONTRACT APPROVAL IS NECESSARY)
~w,„.-
`.r.
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ARTICLE V
DESIGN AND PERMITTING OF THE DESIGN/BUILD IMPROVEMENTS
SECTION 5.1. DESIGN WORK. (A) Performance of the Design Work. The
Company agrees to undertake, perform, and complete the designs and plans in accordance
with the Contract Standards and all other provisions and requirements of this Service
Contract. The Company shall make design submittals to the County in accordance with
Appendix -
(B) Design Risk. The Company shall have sole and exclusive responsibility
for the design of the Facility hereunder and the preparation of all plans, specifications,
drawings, blueprints and other design documents necessary or appropriate to complete the
Facility. All such design documents shall comply in all respects with the Contract Standards
including Design Requirements and shall ensure that the Facility is constructed to a standazd
of quality, durability and reliability which is equal to or better than the standard established by
the Contract Standards. The County and its Authorized Representative shall have the right to
review and provide comment with regazd to compliance with Contract Standards, but shall
have no approval rights or other responsibilities or obligations with respect to, such design
documents.
t
(C) Changes to Desipai Requirements. The Company acknowledges the
County's material interest in each provision of the Design Requirements and agrees that no
change shall be made to the Design Requirements pertaining to the Facility hereto without the
prior written approval of the County, which approval may be withheld in the sole discretion of
the County. The Company, following written notice to the County, may make changes to
certain items (as expressly designated in Appendix (the "Supplemental Technical
Information°) of the Technical Specifications without the prior consent of the County; provided,
however, that the Company shall not make any change which the County determines to be
material and provides the Company notice thereof. In the event that during the performance of
the design work, the Company determines that a requirement in Appendix _ would prevent the
Company from meeting the Acceptance Standazds, the Company shall promptly notify the
County of such determination. If the County agrees with the Company's determination, the
Company shall propose a modification to the applicable Appendix _ requirement that would
enable it to meet the Acceptance Standazds. No such modification shall be made without the
prior written approval of the County. Any modification shall be made as a Change Order and
shall be made at the Company's sole cost unless any such modification is required as a result
of an Uncontrollable Circumstance.
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County of Hawaii Solid Waste Reduction Facility Article V -Design and Permitting of the
Design/Build Improvements
(D) Licensing Reouirements. Architects and engineers engaged by the
Company for Facility design services shall be licensed to practice in the State and shall be
experienced and qualified to perform such services.
SECTION 5.2. PERMIT CONDITIONS. (A) Neeotiation of Permit Conditions. The
parties shall use all reasonable efforts in applying for any permit, license or approval required
to commence construction hereunder to assure that the terms and conditions thereof are
consistent with the Company's obligations hereunder, including particulazly the provisions of
Appendix _ hereto, and that any such permit, license or approval, as applicable, contains
adequate relief to reflect operational limitations during periods of Stazt-up Operations and
Shutdown Operations.
(B) Proposed Conditions and Company Evaluation. Within 10 days of the
receipt of information as to proposed conditions or requirements to be contained in any draft or
final permit, license or approval, the Company shall provide the County with written notice of
its determination and reasoning as to whether and why the terms and conditions of any such
draft or final permit, license or approval are more stringent than those of the Environmental
Guazantee or any other obligation contained in this Service Contract. In the event the
JJ Company claims that such permit, license or approval contains conditions or requirements
1, which aze more stringent than those of the Environmental Guarantee or any other obligation
contained in this Service Contract and constitutes a Change in Law or Uncontrollable
Circumstance, the Company shall provide the County with notice and information required
pursuant to Section 17.2 hereof.
(C) [Permit Acceptance - Conditions of Lesser Stringency Than
Environmental Guarantee. If any permit, license or approval proffered as final by the DOH or
USEPA contains terms and conditions which are no more stringent than those set forth in the
Environmental Guarantee or any other obligation contained in this Service Contract, the
County (without limiting its rights under Sections 4.4 and 4.5 hereofi shall accept such permit,
license and approval, and the condition precedent to this Service Contract provided in
subsection 4.2(A) shall be deemed to be satisfied.]
(D) [Start-up Operations and Shutdown Operations. In the event that the
permit to construct, install or alter control apparatus or equipment, temporary certificate to
operate control apparatus or equipment and prevention of significant deterioration permit (the
"Construction Permit°) with respect to the Facility does not provide relief acceptable to the
Company for operational limitations during period of Start-up Operations and Shutdown
Operations, then the Company shall be entitled to have the permit appealed based on such ,~rrE
lack of relief. If the County appeals such permit based solely on the Company's request, the .rr'
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article V -Design and Permitting of the
Design/Build Improvements
t..r escalation of the Fixed Design/Build Price shall be suspended as of the day of the appeal and
escalation shall re-commence upon the date that the Company certifies in writing to the
County that it will proceed under the final permit. The Company shall be responsible for all
costs with respect to the Legal Proceedings in connection with such appeal to the extent that
such costs are directly related to the appeal of provisions of the permit which lack sufficient
relief for Start-up Operations and Shutdown Operations. If after final determination of the
appeal, the County determines to accept a final permit which does not provide Stazt-up
Operations and Shutdown Operations relief acceptable to the Company, the Company shall
have the right to terminate this Service Contract if the Company: (a) demonstrates to the
County that it is not technically reasonable to operate the Facility in compliance with the
Construction Permit during period of Start-up Operations and Shutdown Operations;
(b) demonstrates to the County that there is a likelihood of criminal penalties to a Company or
Guarantor officer or employee, if the Company were to operate the Facility as a result of
insufficient relief in the Construction Permit with respect to Start-up Operations and Shutdown
Operations; and (c) pays ] to the County.] [DISCUSS WITH R.W. BECK]
(E) [Offsets. The County shall bear the responsibility for obtaining any
offsets required to be obtained by the DOH or USEPA with respect to the issuance of any
construction permit by either agency for the Facility. The cost of any such required offsets
shall be treated in accordance with Article XVII hereof, provided, however, if any such amounts
aze required to be expended prior to the Construction Commencement Date, the County shall
not be entitled to reimbursement from the Company until the Construction Commencement
Date.] [DISCUS3 WITH R.W. BECK]
SECTION 5.3. PERMITTING WORK. (A) Companv Permittine
Responsibilities. The Company shall make all applications and take all other action necessary
to obtain, and shall obtain and maintain all Governmental Approvals, necessary to commence,
continue and complete the Facility including payment of all fees, costs and charges due in
connection therewith except with respect to those approvals for which the County is obligated
to obtain, maintain and/or pay for in accordance with Appendix Where required under
Applicable Law, such applications shall be made in the name of the County, subject to the
County's rights hereunder. The Company shall manage the process of obtaining the
Governmental Approvals on behalf of the County for which it is responsible hereunder in a
manner which affords the County a reasonable opportunity to review and comment upon such
submittals and all material documentation submitted to and issued by any Governmental Body
in connection therewith as provided in Appendix The Company shall not knowingly take
any action in any application, data submittal or other communication with any Governmental
~r
Body regarding Governmental Approvals or the terms and conditions thereof that would impose
50
487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article V -Design and Permitting of the
Design/Build Improvements
( any unreasonable cost or burden on the County or that would contravene any County policies
with respect to the matters contained therein. The County reserves the right to reject, modify,
alter, amend, delete or supplement any information supplied, or term or condition proposed, by
the Company which would have the effect described in the preceding sentence. The Company,
at its cost and expense, shall cooperate with and assist the County, including by providing to
the County and all involved regulatory agencies all data and information that is within its
possession and its control (including proprietary information and all information specific to the
Facility which may exist or be required by the involved regulatory agencies to be developed by
the Company) which may be required in order to properly apply for and obtain such permits,
licenses and approvals. All such data and information shall be correct and complete in all
material respects.
(B) County Permitting Responsibilities. The County shall make all
applications and take all other action necessary to obtain, and shall obtain, maintain and pay
for those approvals for which the County is obligated to obtain, maintain and pay for in
accordance with Appendix _ In addition, the County shall be responsible for paying the
application fees (and no other associated costs) for certain Government Approvals set forth in
Appendix _ which are to be obtained and maintained by the Company, as indicated in
C Appendix In addition, the County shall provide reasonable assistance to the Company in
connection with the Company's obligation to obtain and maintain the Governmental Approvals ~y
which it is required to obtain under this Section, including signing permit applications,
attending public hearings and meetings of the Governmental Bodies charged with issuing such
Governmental Approvals, and providing the Company with existing relevant data and
documents that are within its custody or control and which are reasonably required for such
purpose; provided, however, that the County's obligation to provide such reasonable assistance
shall be limited, in light of the Company's primary role in the permitting and development of
the Facility, only to those actions which are legally required to be taken by the County as
permittee or which involve providing information which is solely in the possession of the
County. Any such assistance shall be provided upon the reasonable request of the Company
made directly to the County. This covenant shall not obligate the County to staff the
Company's permitting efforts, to undertake any new studies or investigations with respect to
the Facility, or to affirmatively seek to obtain the issuance of the Governmental Approvals
required under this Section. The County, however, shall not take any action which seeks to
cause the denial or delay of any application for a Governmental Approval. Any agreement by
the County to cooperate does not in any way obligate the County with respect to usual and
customary County permitting, code compliance and other regulatory reviews as they may relate
to the Company or the Company's requirements hereunder. The outcome of any regulatory
51
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article V -Design and Permitting of the
Design/Build Improvements
review or action undertaken by the County involving the Company will be independent of and
in no way biased, prejudiced, or predetermined in any way by this Service Contract. Nothing in
this Service Contract is intended or shall be construed to require that the County exercise its
discretionary authority under its regulatory ordinances in a manner favorable to the Company.
(C) Comoanv Assumption of Permitting Risk for Facility. The Company
explicitly assumes the risk of obtaining and maintaining all Governmental Approvals for which
it is responsible pursuant to Appendix _ that are required for the Facility, including the risk of
delay (except as otherwise set forth in paragraph (D) below), non-issuance or imposition of any
term or condition in connection therewith by a Governmental Body. In assuming this risk, the
Company acknowledges in particular that the delay (except as otherwise set forth in
paragraph (D) below) or non-issuance of any Governmental Approval required pursuant to
subsection 4.2(B) beyond the Schedule Construction Date will give the County the right to
terminate this Service Contract for an Event of Default in accordance with Article XVI. In the
event the County elects not to terminate this Contract pursuant to such an Event of Default,
the Company acknowledges that the delay or non-issuance of any Governmental Approval
required pursuant to subsection 4.2(B) beyond the Schedule Construction Date will delay the
occurrence of the Construction Commencement Date and wil] have the effect of (i) eliminating
( any escalation of the Fixed Design/Build Price pursuant to Section 9.2(C) and (ii) compressing
the period within which the completion of construction, acceptance testing and all other
Design/Build Work will need to be completed hereunder in order to avoid delay liquidated
damages pursuant to Section 8.9.
(D) Failure of Comoanv to Obtain Governmental Approval in a Timely
Manner. In the event the Company fails to obtain any Governmental Approval necessary to
commence construction for which it is responsible for obtaining prior to the Schedule
Construction Date and (i) the Company has diligently taken all measures to obtain such
approval, (ii) such failure is not the result of the quality or completeness of the submittal
application or of the nature of the design or approach reflected in such submittal, and (iii) the
issuing Governmental Body has failed to respond to the Company submittal(s) in a reasonably
timely manner taking into consideration the nature of the required review and the reasonable
review period for similarly situated applicants, such failure shall not constitute an Event of
Default, the Scheduled Acceptance Date shall be extended by the number of days by which
such delay materially adversely affects the Company's critical path schedule and the Company
will be entitled to escalation of the Fixed Design/Build Price in accordance with Section 9.2.
No other relief shall be afforded the Company as a result of such delay.
''ir
52
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction FaciliTy Article V -Design and Permitting of the
Design/Build Improvements
' SECTION 5.4. COMPLIANCE WITH APPLICABLE LAW. (A) Compliance 1'""`
with Applicable Law and Equipment Operating Requirements. In designing, constructing,
commissioning, stazting up and testing the Facility, the Company shall comply with Applicable
Law, shall construct and operate all equipment and systems comprising the Facility in
accordance with the Contract Standazds and applicable equipment manufacturer's
specifications and recommendations, and shall observe the same safety standazds as are set
forth in Section 11.8 with respect to the operation of the FaciliTy and such other safeTy
requirements set forth in Appendix
(B) Compliance with Conditions in Governmental Approvals. The Company
shall comply with all conditions and requirements of all Governmental Approvals required to be
made, obtained or maintained under Applicable Law in connection with the continuance of the
Design/Build Work.
(C) Governmental Approvals Necessary for Continued Construction. The
Company shall make all necessary filings, applications and reports necessary to obtain and
maintain all Governmental Approvals required to be made, obtained or maintained under
Applicable Law in connection with the continuance of the Design/Build Work once
commenced. The County shall cooperate with the Company in connection with the foregoing 3
undertaking. ~
(D) Fines. Penalties and Remediation. Except to the extent excused by
Uncontrollable Circumstances, in the event that the Company or any Subcontractor fails at
any time to comply with Applicable Law with respect to the Design/Build Work, the Company
shall, without limiting any other remedy available to the County upon such an occurrence and
notwithstanding any other provision of this Service Contract: (1)immediately correct such
failure and resume compliance with Applicable Law; (2) bear all Loss-and-Expense of the
Company and the County resulting therefrom; (3) pay or reimburse the County for any
resulting damages, fines, assessments, levies, impositions, penalties or other charges; (4) make
all changes in performing the Design/Build Work which aze necessary to assure that the
failure of compliance with Applicable Law will not recur; and (5) comply with any corrective
action plan filed with or mandated by any Governmental Body in order to remedy a failure of
the Company to comply with Applicable Law.
53
487571.3 028493 AGMT
m°~ ARTICLE VI
~ FINANCING AND POWER PURCHASE AGREEMENT
SECTION 6.1. (COUNTY FINANCING. The County shall secure the
availability of all funds necessary to pay the Design/Build Price in a timely manner whether
through the authorization or issuance of debt obligations of the County or otherwise as
determined by the County]. [IF PUBLIC FINANCING] Payments of the Design/Build Price
shall be made by the County to the Company in the manner provided in Sections 9.3 and 9.4
and Appendix _ ]
SECTION 6.2. [GENERAL BOND RESOLUTION. [TO BE DISCUSSED WITH
BILL T.]
SECTION 6.3. POWER PURCHASE AGREEMENT. (A) General Terms. The
Power Purchase Agreement shall provide for the purchase by the Power Purchaser of
substantially all of the net electrical output of the Facility net of Facility usage, subject to
reasonable exceptions, for a term of at least 5 yeazs.
(B) Company Responsibilities. The Company shall carry out and perform all
of the construction and maintenance responsibilities assumed by the County as seller under
/ the Power Purchase Agreement relating to the electrical interconnection and related equipment
and to the supply of electricity to the Power Purchaser and the operation of the Facility in
accordance with the terms of the Power Purchase Agreement. In addition, the Company shall
coordinate operational communications with the Power Purchaser, provide reasonable
assistance in generating data for submission to the Power Purchaser, any of its Affiliates, the
DOH, and the Federal Energy Regulatory Commission, and plan scheduled maintenance in
conjunction with the requirements of the Power Purchaser, subject to the requirements of the
DOH. The Company shall not be responsible for any other obligations under the Power
Purchase Agreement, including the required security deposit or for administrative matters
other than that of operational communications. In the event the Company fails to perform its
obligations hereunder, unless excused by Uncontrollable Circumstances or County Fault, and
such failure causes any Loss-and-Expense to the County under the Power Purchase
Agreement, the Company shall promptly reimburse the County for the amount of any such
Loss-and-Expense; provided, however, that if any such Company failure of performance
hereunder would not have caused any such Loss-and-Expense except for the occurrence of an
Uncontrollable Circumstance, County Fault or the failure of the County to deliver Processible
Waste in amounts necessary to allow the generation of electricity (based on the Company's
Performance Guarantees) at levels sufficient to avoid Loss-and-Expense to the County under
the Power Purchase Agreement, then the Company shall have no liability for any such Loss-
and-Expense. The standard of performance for determining compliance by the Company with
54
487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VI -Financing and Power
Purchase Agreement
its obligation to generate electricity hereunder, insofar as such obligation relates to liability for I
any such Loss-and-Expense, shall be the full Acceptance Standard for energy recovery
determined as provided in Appendix _ hereto; provided, however, that available Facility
operating data and records including the compliance monitoring forms contained in
Appendix _ hereto, rather than a special energy recovery performance test, shall be used to
determine such compliance.]
55
487571.3 028493 AGMT
ARTICLE VII
r.rr CONSTRUCTION OF THE FACILITY
SECTION 7.1. AGREEMENT TO CONSTRUCT. (A) Commencement of
Construction. The Company shall commence the preparation of those portions of the Site on
which the Design/Build Work will be performed or which will be utilized for laydown and
staging, the disposal of any debris thereon, and the construction of the Facility in accordance
with the Design Requirements promptly after the Construction Commencement Date, and shall
proceed with due diligence to cause the Facility to be started up and tested for Acceptance in
accordance with this Service Contract. All excavated soil and other debris or waste generated
from the Facility shall be used or disposed of properly by the Company at its expense
provided, however, the Company shall provide for the disposal at the County Landfill of soil
excavated from the Site if such soil meets County specifications for landfill cover or constitutes
Processible Waste]. Subcontracts entered into by the Company for the construction of the
Facility shall neither supersede nor abrogate any of the terms or provisions of this Service
Contract. Laydown and staging areas for construction materials shall be located on the Site as
identified in Appendix _ or at other locations azranged and paid for by the Company.
(B) Construction Practice. The Company shall perform the Design/Build
Work in accordance with the Contract Standards and shall have exclusive responsibility for all
construction means, methods, techniques, sequences, and procedures necessary or desirable
for the correct, prompt, and orderly prosecution and completion of the Facility as required by
this Service Contract. The responsibility to provide the construction means, methods
techniques, sequences and procedures referred to above shall include, but shall not be limited
to, the obligation of the Company to provide the following construction requirements as further
set forth in Appendix (1) temporary power and light, (2) temporary offices and construction
trailers, (3) required design certifications, (4) required approvals, (5) weather protection, (6) site
clean-up and housekeeping, (7) construction trade management, (8) temporary pazking (beyond
the parking provided by the County as described in Appendix (9) safety and first aid
facilities, (10) correction of defective work or equipment, (11) Subcontractors' insurance,
(12) staging areas (beyond the storage areas provided by the County as described in
Appendix (13) workshops and wazehouses, (14) temporary fire protection, (15) site security,
(16) potable water (the Company is permitted to use the County's water supply for domestic
use only), (17) telecommunications, (18) sanitary facilities, (19) fuel, (20) Subcontractor and
vendor qualification, (21) receipt and unloading of delivered materials and equipment,
(22) erection rigging, (23) temporary supports, [(24) temporary utilities, (25) gas] and
(26) construction coordination.
56
487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VII -Construction of the Facility
(C) Measurements. The Company shall be responsible for all measurements
I
required for execution of the Facility to the exact position and elevation as required by this
Service Contract.
(D) Enea~ement of Authorized Representative. The County may designate a
representative ("Authorized Representative') to assist it in connection with this Service
Contract. The services of the Authorized Representative may include but shall not be limited to
the following:
(1) review and monitor construction progress, payments and procedures;
(2) determine the completion of specified portions of the Facility and review
the release of funds to the Company pursuant hereto;
(3) review proposed changes to the Design Requirements;
(4) review Facility drawings, plans and specifications available to the County
hereof for compliance with the Design Requirements;
(5) monitor the Acceptance Tests undertaken by the Company to determine
whether any Acceptance Standard has been satisfied;
(6) review the validity of the Company's written notice that an
Uncontrollable Circumstance has occurred; and
(7) review and advise the County with respect to material changes to the
Facility during the Term of this Service Contract.
It is understood that the services intended to be provided by the Authorized Representative
shall be of an observational nature only, unless additional inspection, testing or monitoring
services are requested by the County pursuant to subsection 7.6(C) hereof. The Company
agrees to cooperate with all reasonable requests made by the Authorized Representative in
connection with the performance of such duties for the County. The fees of the Authorized
Representative shall be paid by the County, except that the Company shall reimburse the
County, on a Cost Substantiated basis, for any services performed by the Authorized
Representative in connection with each repetition of all or any portion of the initial Acceptance
Tests unless and to the extent any such additional Acceptance Tests aze required as a result of
Uncontrollable Circumstances or County Fault.
(E) Title and Risk of Loss. Title to the structures, improvements, fixtures,
machinery, equipment and materials constituting the Facility shall pass to the County upon
incorporation in the Facility or payment therefor by the County, whichever first occurs, free
and clear of all Liens as provided in subsection (F) of this Section. The Company shall, „
57
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VII -Construction of the Facility
however, bear all risk of loss concerning such structures, improvements, fixtures, machinery,
equipment and materials until Acceptance, regardless of the extent to which the loss was
insured or the availability of insurance proceeds.
(F) Encumbrances. The Company shall not directly or indirectly, without
the County's consent, create or permit to be created or to remain, and shall promptly discharge
or bond any Encumbrance arising in relation to the Facility, Site or Design/Build Work, other
than Permitted Encumbrances, arising out of the Company's construction of the Facility.
(G) Utilities. The Company shall make all arrangements necessary to secure
the availability of all Utilities required to construct the Project and operate the Facility in the
capacities required hereunder. In the event the County is required to grant Utility easements
on the Site in connection with the Design/Build Work, the Company shall provide complete
descriptions of all Utility connections and routes on the Site necessary for such purposes. The
Company shall also be required to connect all Utilities at a point located at the Site boundary,
as more particularly described in Appendix
(H) Payment of Costs. The Company shall pay directly all costs and
expenses of the Design/Build Work of any kind or nature whatsoever, including all costs of
permitting (regardless of permittee); regulatory compliance and Legal Proceedings brought
against the Company; obtaining and maintaining the Security Instruments and Required
Insurance; payments due under the Subcontracts with Subcontractors or otherwise for all
labor and materials; legal, financial, engineering, architectural and other professional services
of the Company; sales, use and, similar Taxes on building supplies, materials and equipment;
general supervision by the Company of all Design/Build Work; Company preparation of
schedules, budgets and reports; keeping all construction accounts and cost records; and all
other costs required to achieve Final Completion.
(I) Notice of Default. The Company shall provide to the County, promptly
following the receipt thereof, copies of any notice of default, breach or non-compliance received
under or in connection with any Governmental Approval or Subcontract pertaining to the
Design/Build Period.
(J) Compliance With Law. In designing, constructing, starting up and
testing the Facility, the Company shall comply with Applicable Law, shall construct and
operate all equipment and systems constituting the Facility in accordance with good
engineering practice and applicable equipment manufacturers' specifications and
recommendations, and shall observe all applicable safety standards with respect to the
operation of the Facility.
58
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VII -Construction of the Facility
SECTION 7.2. COMMENCEMENT OF WORK. (A) Notice to Proceed. The
~
' County shall give the Company a Notice to Proceed upon the satisfaction or waiver of all of the 1
Construction Commencement Date Conditions as set forth in Section 4.2. Thereafter, the
Company shall undertake the Design/Build Work so as to achieve Acceptance on or before the
Scheduled Acceptance Date.
(B) Tune. The Company's failure to achieve Acceptance on or before the
Scheduled Acceptance Date will result in assessment of damages under Section 8.9 hereof.
(C) Effect of Progress Schedule. As pazt of the Monthly Progress Report
required under subsection 7.6(F) hereof, the Company shall submit to the Authorized
Representative a progress schedule completed with corresponding dates of completion. The
Company agrees that the Company's submission of any such progress schedule is far the
County's information only; and the County's acceptance of any such progress schedule shall
not bind the County or the Company in any manner. Thus, the Authorized Representative's
acceptance of any such progress schedule shall not imply that the County:
(1) approves the Company's proposed staffing or scheduling of the
Design/Build Work;
(2) agrees or guazantees to the Company or any other person that the
Company has the capacity or ability to complete the Facility in accordance with the progress
schedule, or that the Facility can or will be completed in accordance with the monthly progress
schedule; or
(3) consents to any changes in scheduling, or agrees to any extension of
time, unless the County agrees specifically in writing to the applicable change.
SECTION 7.3. DESIGN REVIEW. OBSERVATIONS, TESTING AND
UNCOVERING OF WORK. (A) Observations and Design Review Protocol. During the progress
of the Design/Build Work through Acceptance, the Company shall at all times during normal
working hours afford the County, appropriate regulatory agency representatives, the
Authorized Representative and all County consultants every reasonable opportunity for
observing all Design/Build Work at the Site, and shall comply with the requirements of
Appendix _ and the Design/Build Quality Management Plan contained in Appendix
During any such observation, all representatives of the County and the County's consultants
and regulatory body representatives shall comply with all reasonable safety and other rules
and regulations applicable to presence in or upon the Site or the Facility, and shall in no
material way interfere with the Company's performance of any Design/Build Work.
(B) Tests. The Company shall conduct all tests of the Facility (including
•..r~'
shop tests) or inspections required by Appendix the Design Requirements or by Applicable
59
457571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VII -Construction of the Facility
~y"'° Law or Insurance Requirements. The Company shall give the County, the Authorized
Representative, the appropriate construction code enforcement agency, and County
consultants designated by the County Authorized Representative reasonable advance notice (at
least 10 business days for those tests which must be witnessed by third pazties in accordance
with Applicable Law) of tests or inspections prior to the conduct thereof. In no event shall the
inability, failure, or refusal of the Authorized Representative or any County consultant or State
representative to attend or be present at or during any such test or inspection, delay the
conduct of such test or inspection or the performance of the Design/Build Work. If required by
Applicable Law or Insurance Requirements, the Company shall engage a licensed engineer or
architect to conduct or witness any such test or inspection. All analyses of test samples shall
be conducted by persons appearing on lists of laboratories authorized to perform such tests by
the State or federal agency having jurisdiction or, in the absence of such an authorized list in
any particular case, shall be subject to the approval of the County, which shall not be
unreasonably withheld. Acceptance Testing of the performance of the completed Facility shall
be conducted in accordance with Appendix _ hereto.
(C) County Observations, Inspections and Tests. The County, its employees,
agents, representatives and contractors (which may be selected in the County's sole discretion),
( and all Governmental Bodies, may at any reasonable time conduct such on-site observations
and inspections, and such civil, structural, mechanical, electrical, chemical, or other tests as
the County, the Authorized Representative or Governmental Body deems necessary or desirable
to ascertain whether the Facility complies with this Service Contract. The Company shall not
restrict the ability of the County or the Authorized Representative to take progress photographs
of the Facility construction. The County will pay for any test, observation or inspection
requested by the Authorized Representative and incur any costs directly resulting from a delay
in performing the Design/Build Work caused by such test or inspection (and not required
under subsection 7.6(B) hereof or as Extra Design/Build Work under Section 7.9 hereof). The
test, observation or inspection shall be treated as an Uncontrollable Circumstance hereunder,
the cost of which shall be borne by the County, unless such test, observation or inspection
reveals a material failure of the Facility to comply with this Service Contract or Applicable Law,
in which event the Company shall beaz all reasonable costs and expenses of such observation,
inspection or test and of any such delays. If the test, observation and inspection is requested
by a Governmental Body (other than the County) the cost and delay resulting from such test,
observation or inspection shall be treated as an Uncontrollable Circumstance, unless the test,
observation or inspection reveals a material failure of the Facility to comply with this Service
Contract or Applicable Law, in which event the Company shall beaz all reasonable costs and
expenses of such observation, inspection or test and of any such delays.
60
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VII -Construction of the Facility
(D) Certificates and Reports. The Company shall secure and deliver to the
i ~
Authorized Representative promptly, at the Company's sole cost and expense, all required
certificates of inspection, test reports, work logs, or approvals with respect to the Facility as
and when required by the Design Requirements or by Applicable Law or Insurance
Requirements. The Company shall provide to the County, immediately after the receipt thereof,
copies of any notice of default or noncompliance received by the Company under or in
connection with any Governmental Approval, Subcontract, or other transaction agreement
pertaining to the Construction Period.
(E) Taking Apart, Uncovering and Replacing Design/Build Work. The
Company shall give the County reasonable notice (at least 10 business days for those events
which must be witnessed by third pazties in accordance with Applicable Law) of its upcoming
schedule with respect to the covering and completion of any Design/Build Work. The County
shall give the Company reasonable notice of any intended inspection or testing of such
Design/Build Work in progress prior to its covering or completion, which notice shall be
sufficient to afford the County and the Authorized Representative a reasonable opportunity to
conduct a full inspection of such Design/Build Work, including, but not limited to, at least 5
business days' advance notice with respect to all final visual inspections and tests of all
/ mechanical equipment and Design/Build Work. At the County's written request, the Company
_ shall take apart or uncover for inspection or testing any previously covered or completed
Design/Build Work; provided, however, that the County's right to make such requests shall be
limited to circumstances where there is a reasonable basis for concern by the County that the
disputed Design/Build Work conforms with the requirements of this Service Contract. The
cost of uncovering, taking apart, or replacing such Design/Build Work along with the costs
related to any delay in performing Design/Build Work caused by such actions, shall be borne
as follows:
(1) by the Company, if such Design/Build Work has been covered prior to
any observation or test required by the Design Requirements or by Applicable Law or Insurance
Requirements or if such Design/Build Work has been covered prior to any observation or test
as to which the County has provided reasonable advance notice of its intent to conduct; and
(2) in all other cases, as follows:
(1) by the Company, if such observation or test reveals that the
Design/Build Work does not comply with this Service Contract; or
(2) by the County, if such observation or test reveals that the
Design/Build Work does comply with this Service Contract.
In the event such Design/Build Work is revealed to comply with this Service Contract, the
delay caused by such observation or test shall be treated as having been caused by an
61
487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VII -Construction of the Facility
Uncontrollable Circumstance and any costs incurred with respect to such observation or test
~ shall be borne solely by the County.
(F) Monthly On-Site Meetings and Design and Construction Review. During
the Construction Period, the Company, the County and the Authorized Representative shall
conduct management meetings on at least a monthly basis, and shall conduct construction
progress meetings on a weekly basis as set forth in Appendix Such meetings shall take
place on the Site in afield office to be provided by the Company. At such meetings,
discussions will be held concerning all aspects of Design/Build Work construction including,
but not limited to, construction schedule, progress payments, Extra Design/Build Work, shop
drawings, progress photographs to the extent available, and any soil boring data and shop test
results. A monthly progress report, (the °Monthly Progress Report°) containing all relevant
information as required by Appendix shall be prepared by the Company and provided to the
County and the Authorized Representative at least five (5) days prior to each monthly meeting.
[It is the desire of the parties to resolve disputes without third party intervention and,
therefore, prior to instituting the dispute resolution methods set forth in Article XVI, senior
officials from the Company and the County shall meet to attempt to resolve any such dispute.]
[DISCUSS WITH BJT]
% (G) Notices of Non-Compliance. The County may, but shall not be obligated
y"'` to, deliver notices of noncompliance or breach during construction which shall reasonably
describe the actions or omissions of the Company which constitute a breach of the Company's
obligations under this Service Contract. Each notice of non-compliance shall require the
Company to promptly cure the non-compliance. The County may elect to cure such breach
and the Company shall be required to pay for all costs and expenses incurred by the County in
the curing of such breach. Repeated and uncured breaches shall be grounds for termination
as set forth in Section 16.2 hereof.
SECTION 7.4. CORRECTION OF DESIGN/BUILD WORK. (A) Correction of
Non-Conformin¢ Design/Build Work. The Company at its sole cost and expense shall repair,
restore, rebuild or replace and correct promptly, any Design/Build Work which does not
conform with the requirements of this Service Contract. If the Company fails to repair, restore,
rebuild or replace and correct promptly, any such Design/Build Work, the County shall give to
the Company written notice of the need to correct such non-conforming Design/Build Work.
The Company shall have the right to object to the County's determination within five (5) days of
receipt of the County notice, and the matter may be submitted for dispute resolution pursuant
to Section 16.11 hereof. Notwithstanding the Company's right of objection, upon receipt of
County notice pursuant to this subsection, the Company shall, without being deemed to have
waived such objection, at its cost and expense, complete, repair, replace, restore, rebuild and
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correct promptly the non-conforming Design/Build Work. The failure of the Company to do so
' shall constitute a Company Fault under the terms of this Service Contract.
(B) Costs of Correction. The costs of correcting rejected or omitted
Design/Build Work shall be borne by the Company. If it is determined by the pazties or
through dispute resolution pursuant to Section 16.11 hereof that the corrective action was not
necessary to conform the Design/Build Work with the requirements of this Service Contract,
the County shall reimburse the Company for its costs and expenses incurred in correcting the
Design/Build Work, subject to Cost Substantiation and the Scheduled Acceptance Date shall
be extended to reflect delays caused by such corrective work.
(C) Elective Acceptance of Defective Design/Build Work. The County may
elect, at the Company's request, to accept non-conforming Design/Build Work and charge the
Company, by Change Order, for the amount agreed upon by the parties, which amount shall
reflect the reduction in value of the Company's services or Design/Build Work has been
reduced.
(D) Relation to Other Obligations. The obligations specified in
subsection 7.7(A) hereof establish only the Company's specific obligation to correct the
Design/Build Work and shall not be construed to establish any limitation with respect to any
other obligations or liabilities of the Company under this Service Contract. This Section 7.7 is
intended to supplement (and not to limit) the Company's obligations under the Acceptance Test
Procedures and Standards and any other provision of this Service Contract or Applicable Law.
(E) Payments of Amounts Owed. Any amounts for which the Company is
responsible under this Section shall be deducted from the unpaid balance of the Design/Build
Price; and the Company shall pay to the County upon demand any amount owing under this
Section which exceeds the unpaid balance of the Design/Build Price.
SECTION 7.5. DAMAGE TO THE FACILITY. (A) Damage Prevention. In
performing the Design/Build Work, the Company shall use caze and diligence, and shall take
precautions to protect the Facility. Prior to Acceptance, such care and diligence with respect to
such system shall include reasonable and appropriate security measures, fencing, protective
features (such as waterproof coverings and/or roofing, boazds, boxing, frames, canvas guazds,
and fireproofing), and other safeguards to the extent necessary and proper in the performance
of the Design/Build Work.
(B) Restoration. During the Construction Period, in case of damage to the
Facility, and regazdless of the extent thereof or the estimated cost of restoration, and whether
or not any insurance proceeds are sufficient or available for the purpose, the Company shall e
promptly undertake and complete restoration of the damage to Facility to the character and
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condition existing immediately prior to the damage in accordance with the procedures set forth
herein, as applicable, regarding Uncontrollable Circumstances, Change Orders or Extra
Design/Build Work. If the Company fails to undertake restoration of the damage, or having so
commenced fails to complete restoration in accordance with this Section and the revised
progress schedule, the County may (but shall not be obligated to) undertake or complete
restoration at the Company's expense to the extent applicable.
(C) Notice and Reports. The Company shall notify the County, any other
appropriate Governmental Body, and the insurers under any applicable Required Insurance of
any damage to the Facility, or any accidents on the Site related to the Facility or otherwise
caused by the Company, as promptly as reasonably possible after the Company leazns of any
such damage or accidents; and, as soon as practicable after learning of any such occurrence
(but in no event later than 72 hours), the Company shall submit a full and complete written
report to the Authorized Representative and the County. Such report shall be updated on a
weekly basis and upon culmination of all tests, analysis and reviews, a final report
incorporating all of the test, analysis and reviews and the findings thereof shall be submitted to
the County. The Company shall also submit to the Authorized Representative and the County
copies of all accident and other reports filed with (or given to the Company by) any insurance
/ . company, adjuster, or Governmental Body or otherwise prepared or filed in connection with the
\ `r.. damage or accident, and prior to resuming work, shall provide written releases of OSHA and
other Governmental Bodies and a report of a qualified independent engineer certifying that it is
safe to resume such work.
SECTION 7.6. CHANGE ORDERS AND EXTRA DESIGN/BUILD WORK.
(A) Rieht to Issue Chanee Orders. The County, subject to the provisions of subsection 7.9(F)
hereof, may issue Change Orders pertaining to any and all aspects of the Design/Build Work at
any time and for any reason whatsoever, whether and however such Change Orders revise this
Service Contract, add Extra Design/Build Work or omit Design/Build Work.
(B) Extra Desien[Build Work. The Company shall, except to the extent
excused under subsection 7.9(F) hereof, undertake and complete promptly all Extra
Design/Build Work authorized under this Section. The Company shall not perform any Extra
Design/Build Work without a Change Order authorized by the County. The Company shall be
entitled to additional compensation for Extra Design/Build Work, determined in accordance
with this Section ("Extra Payment").
(C) Extra Design/Build Work Caused by Company Fault. The Company
shall not be entitled to any Extra Payment for any Extra Design/Build Work, if and to the
,W extent required by reason of any Company Fault.
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(D) Cost Reductions from Change Orders. The Design/Build Price shall be
reduced if and to the extent that any Change Order, whether for omitted Design/Build Work or
otherwise, results in any reduction in the Company's cost of the Design/Build Work.
(E) Proposal for Extra Design/Build Work. If the County requires Extra
Design/Build Work involving items of Design/Build Work for which the Company has unit
prices as set forth in Appendix the Extra Payment shall be determined in accordance with
such unit prices, plus additional labor and engineering costs as required and subject to Cost
Substantiation. In other cases, the County may request the Company to submit alump-sum
price for Extra Design/Build Work covered by any proposed Change Order which price shall be
broken out by the categories of work to be done and corresponding costs. Within seven (7)
days after receipt of any such request (unless a longer or shorter period is specified or is
reasonably required by the Company taking into account the scope and complexity of the
proposed Change Order), the Company shall submit a written quotation on a lump-sum basis
(or on a unit-price basis if unit prices for the items involved were previously set forth in this
Service Contract or are appropriate to the proposed Extra Design/Build Work). With respect to
any Extra Design/Build Work necessitated by Uncontrollable Circumstances, the Company
agrees to a reduced profit with respect thereto as set forth in Appendix _ hereto. The
Company shall include with each quotation Cost Substantiation therefore in accordance with
the definition thereof and Appendix Any such quotation shall be deemed the Company's ~
...r'
offer to the County, binding for 30 days, to perform the Extra Design/Build Work at the price
quoted. In addition, each quotation shall include the effect, if any, of the Extra Design/Build
Work on the progress schedule, the ability to meet the Acceptance Standards or standards
more stringent than the Acceptance Standards, the Scheduled Acceptance Date, the
Design/Build Price and any of the other obligations of the Company under this Service
Contract. If the County does not accept the Company's quotation, the Company shall use its
best efforts to procure three quotations for the Extra Design/Build Work and any individual
elements thereof, which shall constitute the Company's offer to the County, binding for 30
days. Alternatively, the County, as owner, may bid-out the work directly with another
contractor.
(F) Conditions to Obligation to Proceed. The pazties shall promptly proceed
to negotiate in good faith to reach agreement on the price to be paid the Company for the Extra
Design/Build Work and on the effect of the Extra Design/Build Work on any other obligations
of the Company under this Service Contract. The Company acknowledges that it shall not be
entitled to seek a price which is in excess of the fair market price for such Extra Design/Build
Work. In order to receive payments for Extra Design/Build Work, the Company shall submit
Requisitions, which will include all Cost Substantiation information (unless a lump sum price
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is agreed upon), to the County, with a copy to the Authorized Representative on a monthly
4- basis, for amounts specified in this subsection 7.9(F) as they are incurred. The Requisition
and payment procedure shall be in accordance with Sections 9.3 and 9.4 hereof.
(G) Obligation to Proceed Notwithstandin¢ Dispute. In the event the County
and the Company are unable to agree on a price and any adjustments to this Service Contract
which are occasioned by a Change Order for Extra Design/Build Work within a reasonable
period of time after conducting good faith negotiations with respect thereto pursuant to
subsection 7.9(F) hereof, the Company at the election of the County shall perform the Extra
Design/Build Work on a Cost Substantiation basis.
(H) Disputed Work. If the Company is of the opinion that any Design/Build
Work which it elects to perform in the absence of any agreement under subsection 7.9(F) is
Extra Design/Build Work and not original Design/Build Work ("Disputed Work"), the Company
shall give the County and the Authorized Representative a written notice of dispute before
commencing the Disputed Work.
(I) Notice; Waiver. The Company shall give reasonable advance notice to the
Authorized Representative in writing of the scheduling of all Extra Design/Build Work and all
Disputed Work. The Company's failure to give such written notice of Disputed Work under this
Section shall constitute a waiver of Extra Payment, any extension of time, and all other loss
and expenses whatsoever relating to the particular Disputed Work.
SECTION 7.7. PATENT, COPYRIGHT AND OTHER PROTECTED MATERIAL.
(A) Property of the County. The Design Requirements and all other documents forming part of
this Service Contract, the Deliverable Material, and all drawings, notes, studies, surveys,
computer programs, films, draft and final reports, and other documents issued by the County
or by the Company to the County in connection with this Service Contract or the Design/Build
Work shall be `works for hire" and remain the property of the County and the County will own
all copyrights thereto, whether or not the County undertakes the Design/Build Work or
subsequently terminates the Design/Build Work or this Service Contract.
(B) Delivery of Deliverable Material. As the Design/Build Work progresses
(or upon the termination of the Company's right to perform the Design/Build Work), the
Company shall deliver to the County all Deliverable Material as otherwise required herein.
(C) Use of Deliverable Material, Processes and Eouipment. If any Deliverable
Material, process or equipment utilized in the Facility is patented or copyrighted by other
persons (or is or may be subject to other protection from use or disclosure), the County (and
the EPA) shall have aroyalty-free perpetual license to use the same with respect to the Facility.
- [Subject to Section 19.4,] the County shall have the right to use (or permit use ofl all such
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Deliverable Material, process or equipment, all oral information whatsoever received by the
1
County in connection with the Facility, and all ideas or methods represented by such
Deliverable Material, process or equipment, at any time without additional compensation, but a
solely for purposes of the ownership, construction and operation of the Facility.
(D) Substitutes for Deliverable Material, Process or Equipment. If the
County is enjoined or otherwise legally prohibited from using any Deliverable Material, process
or equipment (or any affected portion of the Facility) for reasons other than Uncontrollable
Circumstances, or County Fault, the Company, at its expense, shall:
(1) acquire the right to legally use under infringed patents or copyrights; or
(2) modify or replace infringed Deliverable Materials, processes or equipment
(or any affected portion of the Facility) with uninfringed Deliverable
Materials, processes or equipment (or any affected portion of the Facility)
equivalent in quality, performance, useful life and technical
characteristics and development.
SECTION 7.8. COUNTY TERMINATION OPTIONS DURING THE
CONSTRUCTION PERIOD. (A) County Termination for Cause. The County shall have the right
during the Construction Period to terminate this Service Contract for cause and to pursue all
remedies available pursuant to Article XVI, without cost or liability to the County, based upon,
the occurrence of any Event of Default by the Company during the Construction Period.
(NOTE: DISCUSS WHETHER TO RETAIN A CONVENIENCE TERMINATION RIGHT DURING
THE CONSTRUCTION PERIOD.]
(B) Cost Records and Reportin¢. During the Construction Period, the
Company shall prepare and maintain proper, accurate and complete books and records of the
cost and description of the permitting and other work which the Company has performed since
the Construction Commencement Date which is directly and solely related to the Company's
obligations during the Construction Period under this Service Contract, the cast of which
would be the responsibility of the County if the County were to elect to terminate this Service
Contract pursuant to this Section.
(C) Delivery of Construction Period Work Product to the County.
Concurrently with payment by the County to the Company of the amount due upon any
termination of this Service Contract under this Section, the Company shall deliver to the
County all of its Construction Period work product produced during the period commencing on
the Contract Date to the Termination Date hereunder, which work product immediately shall
l become the property of the County. The County's use of any such work product for any '"'R
~,..,a
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County of Hawaii Solid Waste Reduction Facility Article VII -Construction of the Facility
- purpose other than the Design/Build Work shall be at its own risk and the Company shall
have no liability therefor.
SECTION 7.9. PERSONNEL. (A) Personnel Performance. The Company
shall enforce discipline and good order at all times among the Company's employees and all
Subcontractors. All persons engaged by the Company for Design/Build Work shall have
requisite skills for the tasks assigned. The Company shall employ or engage and compensate
engineers and other consultants to perform all engineering and other services required for the
Design/Build Work. All firms and personnel performing Design/Build Work, including
Subcontractor firms and personnel, shall meet the licensing and certification requirements
imposed by Applicable Law.
(B) Construction Manager. The Company shall designate an employee of the
Company, any Affiliate of the Company, or the Company's construction subcontractor as the
construction manager (the "Construction Manager'), who shall be present on the Site with any
necessary assistants on a full-time basis when the Company or any Subcontractor is
performing the Design/Build Work. The Construction Manager shall, among other things:
(1) be familiaz with the Design/Build Work and all requirements of
_ this Design/Build Contract;
(v..? (2) coordinate the Design/Build Work and give the Design/Build
Work regular and careful attention and supervision;
(3) maintain a daily status log of the Design/Build Work; and
(4) attend all monthly management meetings, weekly construction
meetings and applicable design-related meetings with the County and the
County Authorized Representative.
The Company may change the person assigned as Construction Manager, subject to the
provisions of subsection (C) of this Section.
(C) County Rights With Respect to Kev Personnel. The Company
acknowledges that the identity of the key management and supervisory personnel proposed by
the Company and its Subcontractors in its proposal submitted in response to the RFP was a
material factor in the selection of the Company to perform this Service Contract. The
Company's key management and supervisory personnel and their affiliations are set forth in
Appendix The Company shall utilize such personnel to perform such services unless such
personnel aze unavailable for good cause shown. "Good cause shown" shall not include
performing services on other projects for the Company or any of its Affiliates, but shall include
termination for cause, employee death, disability, retirement or resignation. In the event of any
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such permissible unavailability, the Company shall utilize replacement key management and _
supervisory personnel of equivalent skill, experience and reputation. Any change to key ! ~
personnel shall be proposed to the County for its review, consideration and approval (not to be
unreasonably withheld).
(D) Labor Disputes. The Company shall furnish labor that can work in
harmony with all other elements of labor employed for the performance of the Design/Build
Work. The Company shall have exclusive responsibility for disputes or jurisdictional issues
among unions or trade organizations representing employees of the Company or its
Subcontractors, whether pertaining to organization of the Design/Build Work, arrangement or
subdivision of the Technical Specifications, employee hiring, or any other matters. The County
shall have no responsibility whatsoever for any such disputes or issues and the Company shall
indemnify, defend and hold harmless the County and the County Indemnitees in accordance
with Section 17.3 from any and all Loss-and-Expense resulting from any such labor dispute.
(E) Prevailine Waees. The Company shall pay or cause to be paid by its
Subcontractors prevailing wages for all labor engaged in connection with the Design/Build
Work.
SECTION 7.10. WARRANTIES. The Company warrants to the County that
the structures, improvements, fixtures, machinery, equipment and materials incorporated in
the Facility, and in all Capital Modifications, will be new, of recent manufacture, of good
quality, free from faults and defects, suitable for its intended purpose and in conformity with
Appendix _ and the Contract Standazds. The Company shall, for the protection of the County,
obtain from all Subcontractors, vendors, suppliers and other persons from which the Company
procures structures, improvements, fixtures, machinery, equipment and materials such
warranties and guazantees as are normally provided with respect thereto, each of which shall
be assigned to the County to the full extent of the terms thereof. No such warranty or
guarantee shall relieve the Company of any obligation hereunder, and no failure of any
warranted structures, improvements, fixtures, machinery, equipment or material shall be the
cause for any increase in the Service Fee or non-performance of the Contract Services unless
such failure is itself attributable to an Uncontrollable Circumstance or County Fault.
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- ARTICLE VIII
ACCEPTANCE OF THE FACILITY
SECTION 8.1. START-UP OPERATIONS. (A) Notices. (1) Submittal of
Acceptance Test Plan. At least 180 days before the eazlier of any Scheduled Acceptance Date
or the date upon which the Company plans to begin any Acceptance Testing, the Company
shall prepaze and submit to the County for its approval a detailed Acceptance Test Plan for
such Facility, which shall conform to the requirements of Appendix _ in all respects. If the
Company and County are unable to agree upon an acceptable Acceptance Test Plan for such
Facility within 90 days of such submission, their inability to agree may be mediated as
provided in Section 16.11.
(2) Notice of Substantial Completion. The Company shall give the County's
Authorized Representative at least 30 days prior written notice of the expected date of
any Substantial Completion and of commencement of stazt-up operations at such
Facility in preparation for conducting the Acceptance Test.
(3) Notice of Commencement of Acceptance Test. The Company shall also
provide the County with at least 30 days prior written notice of the expected initiation of
the Acceptance Test in accordance with the requirements of Appendix At least 10
days prior to the actual commencement of any Acceptance Testing, the Company shall
certify in writing that it is ready to begin Acceptance Testing in accordance with the
Acceptance Test Plan and Appendix
(B) Commissioning. The Company may start-up and commission the
Facility, test equipment and systems, and, subject to paragraph (C) below, conduct post-
commission operations at its election at any time. The Company's cost of all such
commissioning-related activities, regazdless of their extent or duration, shall be included in the
Fixed Design/Build Price.
(C) Deliveries for Start-Up and Commissionine: Payment. The County shall
deliver or cause to be delivered to the Facility Processible Waste in such quantities and upon
such schedules as may reasonably be requested by the Company for the purposes of
conducting start-up and commission operations. During the period of start-up and
commission operations through the earlier of the Provisional Acceptance Date and the
Scheduled Acceptance Date, the County shall retain all energy revenue generated from
combusting waste, and the Company shall not receive the Service Fee but shall receive
] [AS PROVIDED ON BUSINESS PROPOSAL FORM 16] for each Ton of waste
combusted; provided, however, that no payment shall be due the Company with respect to any
Processible Waste combusted during start-up and commission operations from which Residue
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is produced that (1) contains more than [10.0% (by dry weight)] unburned carbon or more than
[0.4% (by dry weight) putrescible content,] or (2) has a moisture content or more than [30.0%].
The Company agrees to minimize to the extent practicable the return to the County of
Processible Waste delivered to the Facility for start-up and commission operations purposes.
The County shall dispose of any such returned waste, Residue, Non-Processible Waste and
rejects during start-up and commission operations at its cost and expense. The provisions of
this subsection shall apply only until the Scheduled Acceptance Date or the Acceptance Date
(whether established on a provisional or permanent basis), whichever first occurs. In the event
the Acceptance Date has not occurred by the Scheduled Acceptance Date, regardless of
whether or to what extent the Company has commenced stazt-up and commission operations
of the Facility, the rights and obligations of the parties shall be governed by the provisions of
subsection 8.6(A) hereof.
(D) Failure of Deliveries for Start-Up and Commission Operations. Prior to
the Scheduled Acceptance Date or the Acceptance Date, whichever occurs first, the County's
obligation to deliver Processible Waste for start-up and commission operations shall extend
only to substantially all of the actual quantities of Processible Waste which would otherwise be
delivered to the County Landfill for disposal on each day on which start-up and commission
operations aze conducted. Upon any failure of the County to provide such deliveries, unless
excused by Uncontrollable Circumstances or Company Fault, the Scheduled Acceptance Date
shall be extended by the number of days of any such failure which occurs prior to the Schedule
Acceptance Date. In addition, upon a failure by the County to deliver any Processible Waste at
all to the Facility for start-up and commission operations, the County shall be obligated to pay
the costs incurred by the Company in preparation for start-up and commission operations
which it would not have otherwise incurred if the County had delivered such Processible Waste
to the Facility.
(E) Operations Followine Start-Up/Commissionine and Prior to Acceptance
Testine. Upon successful completion of start-up and commissioning testing (check-out testing
necessary to demonstrate that such system is likely to pass the Acceptance Test) of systems
which comprise the Facility (not individual pieces of equipment), such systems necessary for
the normal and proper operation of the Facility will be integrated into the Facility. Prior to
integration of systems into the Facility, the Company shall, pursuant to the provisions of
Appendix (i) demonstrate to the satisfaction of the County that such system has been
properly installed and tested in accordance with the manufacturers' recommendations and
requirements and operates properly and that integration of any such system will not adversely
affect the ability of the Facility to meet any requirement of Applicable Law and that the ~
Company is authorized to occupy and operate the Facility under Applicable Law, (ii) provide
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training to Company personnel in accordance with the Company's comprehensive training
''V., program to enable Company personnel to properly operate and maintain such system, and
(iii) in the event the final Operation and Maintenance Manual has not been delivered to the
County, provide a detailed operation and maintenance protocol to the County with respect to
such system. Following satisfaction of the preceding, as acknowledged in writing by both
parties, and prior to Acceptance, the Company, will operate and maintain the Facility in close
consultation with County personnel and in accordance with the Operation and Maintenance
Manual or protocols provided by the Company and in accordance with Sections 8.5 and 8.6.
The Company will be responsible, at its cost, for performing all repairs and replacements and
other non-routine maintenance on Company-installed malfunctioning equipment, systems and
improvements to the Facility which may be necessary prior to Acceptance. Prior to
commencing the Acceptance Tests, the Company shall inspect all equipment and systems
which constitute the Facility, including those which have been previously integrated into the
Facility and operated by the Company, to ensure that all such improvements aze ready for
Acceptance Testing. The Company shall certify to the County, in accordance with Section 8.3,
that the Facility has been designed and constructed in accordance with this Service Contract
and that the Facility in its then existing condition is ready to undergo the Acceptance Tests.
The Company shall not commence. the Acceptance Tests until Substantial Completion has
occurred.
(F) [Personnel Trainine. Prior to the Acceptance Date, the Company shall
submit to the County for its review and approval a personnel training protocol which the
Company proposes to institute in order to ensure that the Facility is operated in accordance
with this Service Contract and with good operating standards prevailing in the waste-to-energy
industry. Such personnel training protocol shall include any personnel training guidelines,
policies or procedures set forth as of the Acceptance Date in (1) any permit or operator's
certificate issued by the DOH, (2) the [New Source Performance Standazds] or (3) any other
Applicable Law, and shall include standazds for operator and supervisor background, training
and experience, instruction on identifying potential Hazardous Material and Non-Processible
Waste; safety and emergency response training; general security procedures; and requirements
for operator certification by the American Society of Mechanical Engineers or another
equivalent certifying body. All costs of complying with the personnel training protocol shall be
borne by the Company, except costs incurred due to increased personnel training requirements
applicable after the Acceptance Date due to a Change in Law.] [DISCUSS]
(G) Residue Sampling and Analysis. Upon the occurrence of the first firing of
waste at the Facility through the first eight weeks of the Residue characterization program
described in Appendix _ hereto, the Company shall be responsible for the sampling and
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laboratory analysis of the Residue and data evaluation in connection with such
chazacterization. The costs of such sampling, analysis and data evaluation shall be the
responsibility of the Company. In the event such Residue characterization program is required
by the DOH to be extended beyond such eight week period due to the unexcused failure of the
Company to correctly follow the Residue characterization procedures or due to other Company
Fault, the Company shall remain responsible for all costs associated with the Residue
characterization program during such additional period. In the event such Residue
characterization program is required by the DOH to be extended for any other reason, the
Company shall pay the costs of Residue sampling and the County shall pay the costs of
laboratory analysis and shall be responsible for data evaluation. The County will provide
storage capacity for all Residue requiring storage under the Residue characterization program
described in Appendix _ hereto, and all costs thereof shall be borne by the County except that
the Company shall beaz all costs of storage (but not disposal) of such Residue resulting from
the unexcused failure to correctly follow such Residue characterization procedures or from
other Company Fault.
SECTION 8.2. SUBSTANTIAL COMPLETION. (A) Conditions to Substantial
Completion. Substantial Completion shall occur only when all of the following conditions has
been satisfied (unless otherwise agreed by the parties in writing):
t
(1) a preliminary or temporary certificate of occupancy has been issued, if ..,,.g'
required by Applicable Law;
(2) the Company is authorized to conduct an Acceptance Test and to operate
the Facility under Applicable Law, and such authorization has not been withdrawn,
revoked, superseded, suspended, or materially impaired or amended;
(3) all Utilities specified or required under this Service Contract to be
arranged for by the Company are connected and functioning properly;
(4) the Company and the County have agreed in writing upon the Final
Punch List (or, if they aze unable to agree, the County shall have prepazed and issued
the Final Punch List to the Company within 15 business days of the Company having
submitted its Final Punch List to the County);
(5) the County has approved in writing, such approval not to be
unreasonably withheld, the certification by the Company that all Design/Build Work
pertaining to the Facility, excepting the items on the Final Punch List, is complete and
in all respects is in compliance with this Service Contract;
(6) the Company has delivered to the County written certification from the
equipment manufacturers that all major items of machinery and equipment included
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County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the Facility
t^-~ in such Facility have been properly installed and tested in accordance with the
`n..r manufacturers' recommendations and requirements;
(7) all warranties required to be obtained under subsection 8.4 have been
delivered to the County;
(8) the Company has delivered to the County a claims statement setting
forth in detail all claims of every kind whatsoever of the Company connected with, or
arising out of, the Design/Build Work pertaining to such Facility, and arising out of or
based on events prior to the date when the Company gives such statement to the
County;
(9) the Company has delivered to the County the initial Operating Protocol
and the draft Operation and Maintenance Manual in accordance with Appendix
(10) all spaze parts and Consumables required by the Design Requirements
have been delivered and are in storage at such Facility;
(11) the Company has submitted to the County and the County has reviewed
and approved the plan for Acceptance Testing as required by Appendix
„ (12) if required by Applicable Law, the DOH has approved the plan for
t ~ Acceptance Testing and has caused a notice of permission to conduct the Acceptance
Tests; and
(13) the Company has submitted written certification that all of the foregoing
conditions have been satisfied and the County has approved the Company's
certification, which approval shall be effective as of the date of the Company's
certification.
Alternatively, Substantial Completion shall occur on any date certified by the County, which
shall have discretion to waive any of the foregoing conditions.
(B) Final Punch List. The Company shall submit a proposed Final Punch
List to the County and the County Engineer when the Company believes that the Facility has
been substantially completed in compliance with this Service Contract. The "Final Punch List°
shall be a statement of repairs, corrections and adjustments to the Facility, and incomplete
aspects of the Facility, which in the Company's opinion:
(1) the Company can complete before the Company's agreed date for Final
Completion and with minimal interference to the occupancy, use and lawful operation
of the Facility; and
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(2) would represent, to perform or complete, a total cost of not more than
~ 2.5% of the portion of the Fixed Design/Build Price applicable to the Facility (unless the f ~
County determines that a higher percentage is acceptable).
Completion of the Final Punch List work shall be verified by a final walk-through of the Facility
conducted by the County and the County Engineer with the Company and the Company
engineer. The existence and approval of the Final Punch List shall in no way either limit the
Company from performing additional repairs, corrections and adjustments to the Facility as
may be necessary to comply with this Service Contract or limit the County's ability to enforce
the Company obligation to complete the Facility in accordance with the Design Requirements.
If the Company fails to complete any Final Punch List-related Design/Build Work, the County
shall have the right to withhold twice the value of such work as part of the retainage amount.
SECTION 8.3. CONDUCT OF ACCEPTANCE TEST. The Company shall
conduct all Acceptance Tests in accordance with Appendix _ and the Acceptance Test Plan;
and shall notify the County when any such test shall occur. The Company shall permit the
designated representatives of the County to inspect the prepazations for any Acceptance Test
and to be present for the conducting of any Acceptance Test for purposes of ensuring
compliance with the Acceptance Test Plan and the integrity of the Acceptance Test results.
SECTION 8.4. ACCEPTANCE DATE CONDITIONS. The following conditions l~
shall constitute the "Acceptance Date Conditions," each of which must be satisfied in all
material respects by the Company in order for an Acceptance Date to occur, and each of which
must be and remain satisfied as of the Acceptance Date (unless otherwise agreed by the parties
in writing):
(1) Construction Commencement Date Conditions. Each of the
Construction Commencement Date Conditions shall be and remain satisfied as of the
Acceptance Date;
(2) Achievement of Acceptance Standazds. The Company shall have
completed the required Acceptance Tests and such tests shall have demonstrated that
the Facility has met the Acceptance Test Procedures and Standazds;
(3) Final Operation and Maintenance Manual. The Company has delivered
to the County the final Operation and Maintenance Manual in accordance with
Appendix
(4) Reouired Operation Period Insurance. The Company shall have
submitted to the County certificates of insurance for ali Required Operation Period
Insurance specified in Appendix _ and made available to the County all insurance
policies for its review;
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the FaciliTy
(5) Operatine Governmental Approvals. All applicable Governmental
Approvals required under Applicable Law which are necessary for the continued routine
operation of the FaciliTy shall have been duly obtained by the Company and shall be in
full force and effect. Copies of all such Governmental Approvals, to the extent not in
the CounTy's possession, certified by the Company shall have been delivered to the
County;
(6) Equipment Warranties and Manuals. The Company shall be in
possession of, and shall have delivered to the County, copies of the warranties of
machinery, equipment, fixtures and vehicles constituting a pazt of such Facility,
together with copies of all related operating manuals supplied by the equipment
supplier; and
(7) No Default. There shall be no Event of Default by the Company under
this Service Contract or by the Guarantor under the Guaranty Agreement, or event
which with the giving of notice or the passage of time would constitute an Event of
Default by the Company hereunder or an Event of Default by the Guarantor under the
Guaranty Agreement.
SECTION 8.5. PROVISIONAL ACCEPTANCE: ACCEPTANCE AT REDUCED
ACCEPTANCE STANDARD• THROUGHPUT PERFORMANCE LIQUIDATED DAMAGES. (A)
Provisional Acceptance at Full Acceptance Standazd. The Facility shall be deemed to have
achieved Acceptance, and the Acceptance Date shall be established, on a provisional basis on
the date of certification by the Company to the County in good faith that (1) all Acceptance
Tests have been conducted and completed in accordance with this Service Contract, (2) to the
Company's best knowledge at the time of the certification, based on due inquiry and all
available information, Acceptance has been achieved, (3) the Required Operating Period
Insurance is in effect, (4) such certification shall have the effect provided in this
subsection 8.5(A) hereof, and (5) no information has come to the Company's attention as of the
date of such certification which would lead it to believe that it will not be able to comply with
the terms of the permits (other than with respect to more stringent permit conditions accepted
by the County pursuant to subsections 3.4(D) or 3.4(E) hereof to the extent the Service
Contract is not amended to reflect additional obligations of the Company with respect to such
more stringent conditions), applicable to the operation of the Facility for the period governed by
the permits except as such compliance may be affected by Uncontrollable Circumstances or
CounTy Fault. In the event that Acceptance is certified at less than the full Acceptance
Standazd, the Acceptance Date shall not be deemed to have occurred except upon compliance
with the provisions of this Section. Upon such certification, the terms and provisions of this
~ Service Contract (including without limitation the Processible Waste delivery and processing
76
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the Facility
obligations of the parties, the Service Fee payment obligation of the County, and the obligation
of the Company to pay performance liquidated damages for failure to meet the Performance ~
Guarantees) shall apply, and the Company and the County shall be bound, as if the
Acceptance Date had been permanently established and shall be effective for the Term of this
Service Contract, except as provided in Section 8.8 hereof in the event that the County
disputes such certification. The establishment of the Acceptance Date on a provisional basis
shall not operate to lengthen the Extension Period in the event that such provisional
establishment expires and the parties are restored to their former positions pursuant to
Section 8.8 hereof.
(B) Option to Establish Acceptance Date. The Company shall have the
option to establish the Acceptance Date notwithstanding the failure of the Facility to meet the
full Acceptance Standard if, at any time during the Extension Period, (1) the Company, in
accordance with the procedures set forth in Section 8.8 hereof, certifies and calls for
concurrence by the County that the Acceptance Tests have demonstrated that the Facility
meets or exceeds the Minimum Acceptance Standard or requests the County, at the County's
option, to accept the Facility at less than the Minimum Acceptance Standard, (2) unless the
Facility failed to meet the full Acceptance Standard for Facility throughput due to reasons of
Uncontrollable Circumstances or County Fault, the Company pays Facility Throughput ~t
Performance Liquidated Damages to the County, and (3) the Company certifies to the County
and the Authorized Representative in good faith that (a) all Acceptance Tests have been
conducted and completed in accordance with this Service Contract, (b) to the Company's best
knowledge at the time of the certification, based on due inquiry and all available information,
the Minimum Acceptance Standard has been achieved, (c) the Required Operation Period
Insurance is in effect, and (d) no information has come to the Company's attention as of the
date of such certification which would lead it to believe that it will not be able to comply with
the terms of the permits (other than with respect to more stringent permit conditions accepted
by the County pursuant to subsections 3.4(D) or 3.4(E) hereof to the extent the Service
Contract is not amended to reflect additional obligations of the Company with respect to such
more stringent conditions), applicable to the operation of the Facility for the period governed by
the permits except as such compliance may be affected by Uncontrollable Circumstances or
County Fault. Facility Throughput Performance Liquidated Damages shall be equal to
(1) ( ] Tons minus the 7-day throughput capacity last certified by the Authorized
Representative, (2) divided by [ ]Tons, (3) multiplied by the Design/Build Price. If the
Company meets the Minimum Acceptance Standard with respect to any Acceptance Standard
other than the throughput standard, the Company shall not be obligated to make any one-time
damage payment to the County but shall be obligated to pay to the County ongoing Facility
w.~'
Performance Obligations if the Company fails to meet its Performance Guarantees. The
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487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the Facility
Acceptance Date shall be established under this subsection 8.5(B) as of the date of the
'fir Company's certification pursuant to item (1) in the first sentence of this subsection 8.5(B),
subject to the provisions of Section 8.4 hereof. The exercise by the Company of its option
under this subsection 8.5(B) shall have the consequences on the rights, duties and obligations
of the parties hereto set forth in this Section 8.5.
(C) Unexcused Non-Compliance. If Acceptance occurs at a reduced standard
pursuant to subsection 8.5(B) hereof upon a failure of the Facility to meet the full Acceptance
standard due to reasons other than Uncontrollable Circumstances or County Fault, (1) the
Annual Facility Throughput Guarantee shall be reduced, for all purposes of the Service
Contract, in direct proportion to the reduction in throughput capacity, respectively, below the
full Acceptance standard for throughput capacity concurred in or deemed to be concurred in by
the County (2) the Base Operation Fee shall be reduced in the same direct proportion to the
Facility throughput capacity reduction if the last certified annualized Facility throughput
capacity is below [ ]tons per year, and (3) there shall be no reduction in the Residue
Guarantee, the Environmental Guarantee, or the Annual Electricity Production Guarantee, and
the Company shall continue to be obligated to pay its Facility Performance Obligations (based
on the Billing Period Throughput Guarantee) throughout the Term of the Service Contract for
any failure to meet such guarantees.
(D) Acceptance Re-testine. In the event that Acceptance at a reduced
throughput standard occurs pursuant to subsection 8.5(B) hereof, the Company shall have the
right to re-test the Facility in accordance with Appendix _ hereto at any time during the three-
yeaz period following Acceptance at its sole cost, expense and liability. If any such re-test
demonstrates that the throughput capacity of the Facility exceeds the reduced throughput
standazd on which Acceptance occurred, then all calculations and adjustments called for by
subsections 8.5(B) and (C) hereof (including those relating to the Base Operation Fee) shall be
reperformed so as henceforth to place the parties in the position each would have been in had
the throughput standazd on which Acceptance occurred been the throughput standard on
which demonstrated in the re-rest (including the release of the Company to the extent
appropriate from any direct recourse liability assumed by the Company in connection with the
establishment of the Acceptance Date at a reduced standard pursuant to subsection 8.5(B)
hereof.
(E) Uncontrollable Circumstances. If Acceptance occurs at a reduced
standard pursuant to subsection 8.5(B) hereof upon a failure of the Facility to meet the full
Acceptance standazd for throughput due to reasons of Uncontrollable Circumstances or
County Fault, (1) the Company shall not be liable for Throughput Performance Liquidated
Damages, (2) the Annual Facility Throughput Guarantee shall be adjusted, for all purposes of
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the Facility
this Service Contract, as appropriate to reflect the impact of the Uncontrollable Circumstance
or County Fault thereon, (3) the Annual Electricity Production Guarantee shall be reduced, for 1
all purposes of this Service Contract, as appropriate and to the extent necessary to reflect the
impact of the Uncontrollable Circumstance or County Fault thereon, (4) there shall be no
decrease in the Base Operation Fee, and (5) the Residue Guarantee and the Environmental
Guarantee shall be adjusted for all purposes of this Service Contract as appropriate and to the
extent necessary to reflect the impact of the Uncontrollable Circumstances or County Fault
thereon.
SECTION 8.6. DISPOSAL BY COMPANY UPON UNEXCUSED DELAY IN
ACCEPTANCE DATE. (A) [Interim Service. The County and the Company acknowledge that
the intent of this Service Contract is to provide for waste disposal through waste reduction, to
minimize the social and environmental impacts associated with off-site disposal and to
maximize the remaining useful life of the County Landfill. It is therefore agreed that,
notwithstanding any right under Applicable Law which the Company may have to compel the
County to mitigate the Company's damages through the use of the County Landfill, in the event
the Acceptance Date is delayed beyond the Scheduled Acceptance Date, the County Landfill
shall not be used for the disposal of Processible Waste which the Facility is unable to process
as long as an alternative disposal method is available to the County, and (1) the Company may
utilize the Facility to the extent of its processing and combustion capacity in accordance with
Applicable Law, (2) the County shall transport and dispose of at an alternative waste disposal
facility all of the Solid Waste which is not combusted at the Facility, and (3) the Company shall
indemnify the County, in the manner provided in Section 17.3 hereof, for all Loss-and-Expense
incurred in connection with the transportation and disposal of Processible Waste by the
County in such circumstances. In the event that the County is precluded from disposing of
such waste at any other disposal site or is required by Applicable Law to dispose of all or any
portion of such waste at the County Landfill, the cost of disposal of such waste at the County
Landfill shall be an amount equal to 1.75 times the [tipping fee] then applicable for each such
Ton. Such alternate service and payment obligations (as discussed in (B) below) shall continue
until (1) the Acceptance Date is achieved (whether on a provisional or permanent basis), or
(2) the expiration of the Initial Term of this Service Contract, or (3) termination of this Service
Contract pursuant to Article XVI hereof and payment by the Company or County of any
damages payable upon such termination, whichever first occurs. If the Extension Period
expires and the Acceptance Date has not occurred for reasons other than Uncontrollable
Circumstances or County Fault, the County or the Company shall have the right to terminate
this Service Contract as provided in Section 8.10 hereof.]
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the Facility
(B) [Payment for Interim Service. The County shall pay to the Company for
the alternate disposal service provided under this Section an interim service fee with respect to
each month of the Extension Period equal to (1) the Service Fee that would have been payable
with respect to such month had such month occurred after the Acceptance Date (assuming the
Company had met but not exceeded all of the Performance Guarantees and further assuming
that the allowable annual Pass Through Costs aze prorated on a monthly basis), minus (2) an
amount equal to the [County's costs of transfer, transportation and disposal for [85%] of the
Tonnage handled by the County, provided that the disposal costs will be calculated at 200% of
the actual tipping fee]. The Company also shall be responsible during any period of interim
service in which the Facility is used to process or combust Processible Waste for all of the
Facility Performance Obligations for which it would have been responsible had Acceptance
occurred.]
(C) [Interim Service Does Not Constitute Acceptance. Notwithstanding
anything contained or implied in this Section to the contrary, the receipt by the County of
interim service pursuant to this Section does not constitute Acceptance of the Facility. Such
Acceptance may only be achieved pursuant to the provisions of Section 8.4 hereof.]
(D) [Operations Durine Extension Period. During any interim operations
conducted pursuant to this Section, the Company shall operate the Facility in accordance with
the provisions of Articles X and XI hereof.]
SECTION 8.7. TEST REPORT. Within 30 days following conclusion of any
required Acceptance Test, the Company shall furnish the County and the County Engineer
with ten copies of a certified written report describing and certifying (1) the Acceptance Test
conducted, (2) the results of the Acceptance Test, and (3) the level of satisfaction of the
Acceptance Tests Procedures and Standazds relating thereto and all other requirements
specified in Appendix The written test report shall include copies of the original data
sheets, log sheets and all calculations used to determine performance during the Acceptance
Test, and copies of laboratory reports conducted in conjunction with the Acceptance Test,
including all laboratory sampling and test results.
SECTION 8.8. CONCURRENCE OR DISAGREEMENT WITH TEST RESULTS.
(A) Acceptance Date Concurrence. The °Acceptance Date" shall be the day on which the
Acceptance Date Conditions have been achieved. If the Company certifies in its written report
delivered pursuant to Section 8.4 that such full Acceptance Test Procedures and Standards
have been achieved, the County shall determine, within 60 days of its receipt of such report,
whether it concurs in such certification. If the County states in writing that it concurs with the
Company's certification, amounts retained by the County pursuant to subsection 9.4(D) shall
be released to the Company to the extent set forth in Section 8.11(C).
80
487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the Facility
(B) Acceptance Date Disagreement. If the County determines at any time
i ..+w,
during such 60-day review period that it does not concur with such certification, the County t
shall immediately send written notice to the Company of the basis for its disagreement. In the
event of any such non-concurrence by the County, either party may elect to refer the dispute to
Non-Binding Mediation for resolution pursuant to Section 16.12. The Mediator shall issue a
decision within 60 days of the dispute referral unless both parties agree that more time is
appropriate. In the event that the Mediator fails to issue a decision within 60 days, then either
party may initiate judicial proceedings. The parties acknowledge and agree that any decision
rendered by the Mediator as to whether any Acceptance has occurred shall be non-binding.
Acceptance shall not be deemed to have been achieved unless the Acceptance Test, conducted
in a unified and continuous manner as provided in the Acceptance Test Plan and in
Appendix demonstrates that all of the Acceptance Test Procedures and Standards have
been met. In the event the Company, in conducting the Acceptance Test, does not successfully
meet the Acceptance Test Procedures and Standards, the County shall have the right, in its
sole discretion, to permit the Company to re-test such Facility for compliance only with the
Acceptance Test and Procedures Standards not previously achieved through an earlier
Acceptance Test. Nothing in this Section shall prevent the Company from bringing an action or
from repeating any Acceptance Test in order to establish the achievement of Acceptance.
SECTION 8.9. REPETITION OF ACCEPTANCE TEST: EXTENSION PERIOD. ~
C !~4
It is agreed that time is of the essence in the performance of the Design/Build Work. If
Acceptance shall not have occurred on or before the Scheduled Acceptance Date, the Company
shall be entitled to conduct or repeat such Acceptance Test as often as it desires in order to
secure Acceptance of such Facility during the Extension Period. During the Extension Period,
the Company shall be responsible for and shall pay any fines and penalties assessed by a
Governmental Body against the County or the Company due to the failure to achieve
Acceptance by the Scheduled Acceptance Date. In addition, the Company shall be responsible
for reimbursing the County for the costs associated with monitoring the re-tests of the Facility ;
provided, however, that such re-test was not due to County Fault or an Uncontrollable
Circumstance.
SECTION 8.10. FAILURE TO MEET ACCEPTANCE STANDARD. If, as of the
last day of any Extension Period, any Acceptance Tests have not been conducted or have failed
to demonstrate that the Facility operates at a standard equal to or greater than the full
Acceptance standard, an Event of Default by the Company shall be deemed to have occurred
under Section 16.2 notwithstanding any absence of notice, further cure opportunity or other
procedural rights accorded the Company thereunder, and the County shall thereupon have the
right to terminate this Service Contract upon written notice to the Company. Upon any such 4
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the Facility
termination, the County shall have all of the rights provided in Article XVI upon a termination
~r..- of the Company for cause.
SECTION 8.11. FINAL COMPLETION. (A) Requirements. The Company
shall achieve Final Completion within 30 days after the Acceptance Date. Unless otherwise
agreed to by the parties in writing, °Final Completion" shall occur when all of the following
conditions have been satisfied:
(1) Certificate of Occupancy Issued. A certificate of occupancy has been
issued for the Facility, if required;
(2) Acceptance Achieved. The Acceptance Test has been conducted, the
Acceptance Test Procedures and Standazds have been achieved, and Acceptance has
occurred;
(3) Design/Build Work Completed. All Design/Build Work (including all
items on the Final Punch List and all clean up and removal of construction materials
and demolition debris) is complete and in all respects is in compliance with this Service
Contract;
(4) Spare Pazts In Storage. All spare parts required by the applicable Design
Requirements have been delivered and are in storage at the Facility;
\ :ir..r
(5) Deliverable Material Furnished. The Company has furnished to the
CounTy all Deliverable Material required to be delivered prior to Acceptance;
(6) Record Drawines. The Company shall have delivered to the County a
fmal and complete reproducible set of record drawings, together with six copies thereof,
in a size and form required by the County and as required by the Design Requirements
and shall certify that such Facility was constructed in accordance with the Design
Requirements, including any Change Orders. Such record drawings shall include one
mylaz copy. The Company shall also provide an electronic file in AutoCad format to the
extent drawings aze prepared in such format; and
(7) Equipment Warranties and Manuals. The Company shall be in
possession of, and shall have delivered to the County, copies of the warranties of
machinery, equipment, fixtures and rolling stock constituting a pazt of such Facility,
together with copies of all related operating manuals supplied by the equipment
supplier.
(B) Final Certificate and Claims Statement. The Company shall also prepare
and submit to the County as soon as practicable following the Acceptance Tests, for purposes
~ of demonstrating Final Completion: (1) a certificate of the Company's Contract Representative
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the Facility
certifying (a) that all the Design/Build Work has been completed in accordance herewith and
1
with the Design Requirements, and (b) that Acceptance of the Facility has occurred; and (2) a
claims statement setting forth a detailed, itemized description, related dollar amount and
grounds for all claims of every kind whatsoever against the County in connection with or
arising out of the Design/Build Work the Company may have. The County shall review the
certificate and the claims statement and shall verify or dispute them in writing within 30 days
of receipt.
(C) Pavment for Punchlist Items. Upon Final Completion, all amounts
retained to pay for punch list items following Acceptance pursuant to Section 9.4(D) shall be
released to the Company.
SECTION 8.12. NO ACCEPTANCE. WANER OR RELEASE. Unless other
provisions of this Service Contract specifically provide to the contrary, none of the following,
without limitation, shall be construed as the County's acceptance of any Design/Build Work
which is defective, incomplete, or otherwise not in compliance with this Service Contract, as
the County's release of the Company from any obligation under this Service Contract, as the
County's extension of the Company's time for performance, as an estoppel against the County,
or as the County's acceptance of any claim by the Company:
(1) the County's payment to the Company or any other person with respect i^'
to the Facility;
(2) the County's review or acceptance of any drawings, submissions, punch
lists, other documents, certifications (other than certificates relating to completion or
Acceptance of the Facility), or Design/Build Work of the Company or any
Subcontractor;
(3) the County's review of (or failure to prohibit) any construction
applications, means, methods, techniques, sequences, or procedures for the
Design(Build Work;
(4) the County's entry at any time on the Site (including any area in which
the Design/Build Work is being performed);
(5) any inspection, testing, or approval of any Design/Build Work (whether
fmished or in progress) by the County or any other person;
(6) the failure of the County or any County consultant to respond in writing
to any notice or other communication of the Company; or
(7) any other exercise of rights or failure to exercise rights by the County
hereunder. ,
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article VIII -Acceptance of the Facility
SECTION 8.13. NO SERVICE FEE PAYMENT DURING START-UP AND
err TESTING. During start-up, commissioning and testing, the Company shall not be entitled to
payment of the Service Fee. All costs for design, construction, permitting, start-up,
commissioning and testing for any Acceptance, and any operations prior to the Acceptance
Date, including costs for labor, materials, chemicals and Utilities, shall be borne by the
Company without reimbursement by the County.
a...-
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ARTICLE IX
~'r' PAYMENT OF THE DESIGN/BUILD PRICE
SECTION 9.1. DESIGN~BUILD PRICE. (A) Design/Build Price Generally.
The Company shall be entitled to receive the Design/Build Price for the Contract Services on a
progress basis in accordance with the terms of this Section. The Design/Build Price shall be
the Fixed Design/Build Price as adjusted by the Fixed Design/Build Price Adjustments set
forth in Section 9.2(C).
(B) Fixed Design/Build Price. The Fixed Design/Build Price shall be the
sum of the Fixed Development Price and the Fixed Construction Period Price, and shall be
equal to $ Except as provided in subsection (C) of this Section, the Fixed
Design/Build Price shall not be subject to adjustment in any manner whatsoever.
(C) Fixed Design/Build Price Adiustments. The following items shall
constitute the Fixed Design/Build Price Adjustments:
(1) An adjustment for the cost of any Change Orders issued by the County
with respect to the Design/Build Work pursuant to Section 7.9;
% r (2) An adjustment for the cost of any Uncontrollable Circumstances required
l `W.rr
pursuant to Section 17.2;
(3) In the event the Construction Commencement Date occurs subsequent
to [AS PROPOSED ON BUSINESS PROPOSAL FORM consecutive calendaz
days following the Contract Date, the Fixed Construction Period Price portion of the
Fixed Design/Build Price (excluding the costs of Eligible Reinforcing Steel, Eligible Steel
Products Other Than Reinforcing Steel, and Eligible Cement which shall be adjusted in
accordance with subsection (4) of this Section) will be adjusted by multiplying (i) the
Fixed Construction Period Price, by (ii) the Construction Period Price Escalation Factor;
provided, however, that the Fixed Construction Period Price shall not escalate to the
extent that the Construction Commencement Date occurs subsequent to the Schedule
Construction Date due to either the Company's failure to use good faith efforts to
achieve the Construction Commencement Date or, notwithstanding its good faith
efforts, the Company has failed to obtain all Governmental Approvals required for the
Construction Commencement Date to occur as set forth in subsection 3.1(B)(6) and
such failure is not excused pursuant to Section 3.4; and
_ (4) Adiustment for Certain Raw Materials Cost Fluctuations. The portion of
the Fixed Design/Build Price relating to the costs of Eligible Reinforcing Steel, Eligible
Steel Products Other Than Reinforcing Steel and Eligible Cement shall be adjusted
85
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
(increase or decrease) pursuant to this subsection. Adjustments pursuant to this
1
subsection shall be based on the indices set forth below published by the U.S.
Department of Labor -Bureau of Labor Statistics index entitled "Producers Price Index",
which shall be generally referred to herein as the "PPI". The Fixed Design/Build Price
shall be adjusted by adding or subtracting the "Price Adjustments" to the Fixed
Design/Build Price in the manner set forth in this subsection. The parties acknowledge
that the Company may purchase Eligible Reinforcing Steel, Eligible Steel Products
Other Than Reinforcing Steel and Eligible Cement in different stages and at various
quantities throughout the Construction Period. Accordingly, Price Adjustments shall be
calculated pursuant to this subsection for each month during the Construction Period
in which the Company actually purchases Eligible Reinforcing Steel, Eligible Steel
Products Other Than Reinforcing Steel or Eligible Cement; provided, however, that Price
Adjustments shall be allowable for such purchases only up to 100 percent of the
Baseline Raw Material Amounts provided for each raw material, as set forth in
subsection (fl of this Section.
(a) Eligible Reinforcin¢ Steel. Price Adjustments relating to Eligible
Reinforcing Stee] shall be based on the PPI for "Carbon Steel Scrap," Group
Metals and metal products, Series ID WPU101211, which shall be referred to
herein as "PPI1". Price Adjustments shall be calculated in accordance with the
formula set forth in subsection below based on the percentage of change in
the value of PPI1 as of [PROPOSAL DATE] compared to the value of PPI1
in any month Eligible Reinforcing Steel is actually purchased by the Company.
(b) Eligible Steel Products Other Than Reinforcin¢ Steel. Price
Adjustments relating to Eligible Steel Products Other Than Reinforcing Steel
shall be based on the PPI for "Hot rolled bazs, plates, & structural shape,° Group
Metals and metal products, Series ID WPU101704, which shall be referred to
herein as "PPI2". Price Adjustments shall be calculated in accordance with the
formula set forth in subsection below based on the percentage of change in
the value of PPI2 as of _ [PROPOSAL DATE] compared to the value of PPI2
in any month Eligible Steel Products Other Than Reinforcing Steel are actually
purchased by the Company.
(c} Eligible Cement. Price Adjustments relating to Eligible Cement
shall be based on the PPI for "Cement," Group Nonmetallic mineral products,
Series ID WPU1322, which shall be referred to herein as "PPI3". Price
Adjustments shall be calculated in accordance with the formula set forth in
86
487571.3 028493 AGMT
Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
~r subsection (f) below based on the percentage of change in the value of PPI3 as of
[PROPOSAL DATE] compared to the value of PPI3 in any month
Eligible Cement is actually purchased by the Company.
(d) Baseline Amounts. The Baseline Amount for Eligible Reinforcing
Steel shall be $ [AS PROPOSED ON BUSINESS PROPOSAL FORM 16].
The Baseline Amount for Eligible Steel Products Other Than Reinforcing Steel
shall be $ [AS PROPOSED ON BUSINESS PROPOSAL FORM 16]. The
Baseline Amount for Eligible Cement shall be $ [AS PROPOSED ON
BUSINESS PROPOSAL FORM 16]. The Company represents that the Baseline
Amounts represent only the cost of the raw material and exclude all associated
procurement costs, labor costs, and tax and freight charges. These "Baseline
Amounts° shall be used to calculate Price Adjustments in accordance with
subsection (f) of this Section.
(e) Baseline Raw Material Amounts. The Design/Build Work has
been estimated to include _ tons of Eligible Reinforcing Steel [AS PROPOSED
ON BUSINESS PROPOSAL FORM 16], _ tons of Eligible Steel Products other
C than Reinforcing Steel [AS PROPOSED ON BUSINESS PROPOSAL FORM 16],
~'*r" and _ tons of Eligible Cement [AS PROPOSED ON BUSINES3 PROPOSAL
FORM 16]. These `Baseline Raw Material Amounts" shall be used to calculate
Price Adjustments in accordance with subsection (fl of this Section.
(f) Formula for Determinine the Price Adiustment. Price
Adjustments with respect to Eligible Reinforcing Steel, Eligible Steel Products
Other Than Reinforcing Steel and Eligible Cement shall be determined based on
changes in PPI1, PPI2 and PPI3, respectively, in accordance with the following
formula:
For an adjustment in PPI1, PPI2 or PPI3:
r ~IE- IC~ 1 x ~BA~ x ~RMA / BRMA~
L IC 1
where,
IE = Applicable PPI (PPI1, PPI2 or PPI3) at time actual
material cost is established
IC = Applicable PPI (PPI1, PPI2 or PPI3) for
[PROPOSAL DATE]
BA = Applicable Baseline Amount (subsection (d) of
this subsection)
S7
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
RMA = Tonnage of Eligible Reinforcing Steel, Eligible ~
Steel Products Other Than Reinforcing Steel or
Eligible Cement, as applicable, actually
purchased by the Company; provided, however,
that such amount shall not exceed [120] percent
of the applicable BRMA
and
BRMA = Applicable Baseline Raw Material Amount
(D) Limitation on Payments for Costs of the Desien(Build Work. The
Company agrees that the Design/Build Price shall be the Company's entire compensation and
reimbursement for the performance of the Design/Build Work, including obtaining all Utilities
that the Company will require to perform the Design/Build Work, commissioning and starting
up the Facility, and operating the Facility during the Acceptance Tests and prior to the
Acceptance Date and performing all repairs and replacements. In no event shall the Company
be entitled to any payment for Design/Build Work costs in excess of the Design/Build Price,
notwithstanding any cost overruns the Company may incur. The Company shall finance and
pay for any such excess cost of the Design/Build Work in any manner it chooses without
reimbursement from or other claim upon the County.
SECTION 9.2. PAYMENT FOR THE DEVELOPMENT PERIOD WORK. (A)
Fixed Development Price. The Company shall be paid the Fixed Development Price for its
Development Period Work on a milestone basis in accordance with the terms of this Section. ~
The Fixed Development Price shall be the sum of $ [AS PROPOSED ON PRICE
PROPOSAL FORM 16] and any adjustments under the terms of this Service Contract,
including any County-approved Change Orders.
(B) Milestone Schedule. The Company shall be entitled to payment for
Development Period activities hereunder in accordance with the milestones set forth in
Appendix which payments are and shall be considered to be partial payments of the Fixed
Design/Build Price to the Company. Such payments shall be based on the Company's fmal
completion of each such Development Period activity and shall not exceed the individual and
aggregate maximum Development Period payments therefor. All other costs and expenses
incurred by the Company in performing its obligations during the Development Period shall be
for the account of the Company and shall not be reimbursable until and unless the
Construction Commencement Date occurs or the County exercises its right to terminate this
Service Contract during the Development Period as provided in Section 3.2.
(C) Conditions of Payment. Notwithstanding any provision of this Service
Contract to the contrary, the Company shall not be entitled to receive any payments for ~
~ Development Period Work until the Company has provided the County (i) the executed
88
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
' \.r Guaranty Agreement, and (ii) the Required Design/Build Period Insurance as set forth in
Appendix
(D) Disbursement Procedure. The Company shall be entitled to submit
requisitions and receive from the County the payments, which (1) shall be made on a milestone
basis in accordance with Appendix _ and (2) shall be subject to the maximum payments set
forth in Appendix Each Requisition must be submitted monthly and be accompanied by a
monthly requisition report, which shall include:
(1) a certificate of an authorized officer of the Company certifying (1) the
portion of the Fixed Development Price which is payable to the Company,
(2) that the Company is neither in default under this Service Contract
nor in breach of any material provision of this Service Contract such that
the breach would, with the giving of notice or passage of time, constitute
an Event of Default, and (3) that all milestones which the Company has
identified in Appendix _ have been completed in accordance therewith;
(2) notice of any liens which have been filed together with evidence that the
Company has discharged or bonded against any such liens; and
(3) any other documents or information relating to the Development Period
( w«.
Work or this Service Contract requested by the County or the Authorized
Representative or as may be required by Applicable Law, this Service
Contract or generally accepted accounting practices or principles.
The Authorized Representative shall review the Company's certified Requisitions to the County
for each Fixed Development Price payment and within 10 business days of receipt of the
Company's written report, shall verify or dispute in writing (or by telecommunication promptly
confirmed in writing) the Company's certification that the Company has achieved the level of
progress indicated and is entitled to payment. If the Authorized Representative determines
that the work has progressed to the milestone indicated in the Company's certified Requisition
and the Authorized Representative provides written notice thereof to the Company and the
County, thereupon the Company shall be entitled to payment within 30 days of such
determination. Disputes regarding payments of the Fixed Development Price shall be resolved
in accordance with subsection 9.3(E) hereof. In any event, any undisputed amounts shall be
paid within 40 days of receipt of the Company's certified requisition.
(E) Disbursement Dispute Procedures. If the Authorized Representative
determines pursuant to subsection 9.3(E) hereof that the milestone required for any payment
has not been reached as indicated by the Company, or otherwise disputes any Requisition, the
89
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
~ Authorized Representative shall provide prompt written notice to the Company and the County
as to the Authorized Representative's reasons, in reasonable detail, for such determination or
the basis for such dispute. After receiving such determination notice, the Company may make
the necessary corrections and resubmit a certified Requisition to the Authorized
Representative. If the Company is unable to reach agreement with the Authorized
Representative as to the completion of the milestone, the Company may exercise its right to
contest the Authorized Representative's determination in accordance with the dispute
resolution procedures set forth in Section 16.11 hereof. Any proceedings undertaken to resolve
a dispute arising under this subsection 9.3(E) shall immediately terminate if (1) the Company
demonstrates to the Authorized Representative that the milestone has been completed as
indicated in the certified Requisition giving rise to the dispute or that any disputed certified
Requisition is correct, and (2) the Authorized Representative concurs with such demonstration.
The Company shall not be entitled to payment of the amount so requisitioned and disputed
except upon resolution of the dispute in accordance with this subsection 9.3(E). Payment shall
be made only upon the submission of a certified Requisition indicating that a pazticulaz
milestone has been reached and no partial payments will be made for Requisitions involving
milestones which aze in dispute or not otherwise fully completed. In the event that upon
/ resolution of any such dispute, it is determined that the Company was properly entitled to the ;,r~
disputed amount as of a date earlier than the date on which payment is actually made, the ,.,,,,r}
Company shall be entitled to receive promptly following such resolution such disputed amount
plus interest on such disputed amount for the period of dispute calculated at the base rate.
(F) [Retainaee. Each Development Period milestone payment will be subject
to a [5%] retainage holdback. Amounts retained by the County shall be disbursed to the
Company following Acceptance in accordance with Section 9.6(B).]
SECTION 9.3. PAYMENT PROCEDURE FOR CONSTRUCTION PERIOD
WORK. (A) Fixed Construction Price. The Company shall be paid the Fixed Construction Price
on a milestone basis in accordance with the terms of this Section. The Fixed Construction
Price shall be the sum of $ [AS PROVIDED ON PRICE PROPOSAL FORM 16] and
any adjustments under the terms of this Service Contract, including any County-approved
Change Orders.
(B) Milestone Schedule. The milestone schedule established in Appendix _
will serve as the basis for progress payments and will be incorporated into a form of Requisition
acceptable to the County.
(C) Construction Disbursement Procedure. The Company shall be entitled to
i
submit monthly Requisitions and receive from the County the payments, which (1) shall be
90
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
made [only when completion of the milestone required to be completed as a basis, as such
~ payment as set forth in] Appendix (2) shall be subject to the maximum drawdown
limitations specified in Appendix _ hereto, and (3) shall be subject to the conditions of
payment set forth in Section 9.5 hereof; provided, however, that on the date that the
Acceptance Date is permanently established under Section 8.8, the Company shall be entitled
to receive all payments due for completed work (which is unencumbered) which remain unpaid
as of such date except for the payment conditioned on Final Completion. Each Requisition
must be accompanied by a monthly requisition report, which shall include:
i. a reasonably detailed description of all Design/Build Work actually
completed to date;
ii. revisions to the progress schedule (or a revised progress schedule) which
shall reflect changes in the Company's construction schedule since the date of the last
requisition;
iii. revisions to the cost-loaded critical path schedule which shall reflect
changes in the critical path schedule since the date of the last Requisition;
/ iv. construction progress photographs;
1, v. a certificate of an authorized officer of the Company certifying (1) the
portion of the Fixed Design/Build Price which is payable to the Company, (2) that the
Company is neither in default under this Service Contract nor in breach of any material
provision of this Service Contract such that the breach would, with the giving of notice
or passage of time, constitute an Event of Default, and (3) that all items applicable to
the work entitling the Company to requested payment under the schedule in
Appendix _ have been completed in accordance therewith and with the Design
Requirements;
vi. a verified statement setting forth the information required under any
Applicable Law pertaining to prevailing wages;
vii. notice of any liens which have been filed together with evidence that the
Company has discharged or bonded against any such liens; and
viii. any other documents or information relating to the Design/Build Work
or this Service Contract requested by the County or the Authorized Representative or as
may be required by Applicable Law, this Service Contract or generally accepted
accounting practices or principles.
•a.,-
91
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article DC -Financing and Payment of the
Design/Build Price
' The Authorized Representative shall review the Company's certified Requisitions to the County
for each Design/Build Price payment and within 10 business days of receipt of the Company's
written report delivered pursuant to Section 9.5 hereof, shall verify or dispute in writing (or by
telecommunication promptly confirmed in writing) the Company's certification that the
Company has achieved the level of progress indicated and is entitled to payment. If the
Authorized Representative determines that the work has progressed to the milestone indicated
in the Company's certified Requisition and the Authorized Representative provides written
notice thereof to the Company and the County, thereupon the Company shall be entitled to
payment within 30 days of such determination. Disputes regarding payments of the Fixed
Design/Build Price shall be resolved in accordance with subsection 9.4(D) hereof. In any
event, any undisputed amounts shall be paid within 40 days of receipt of the Company's
certified requisition.
(D) Disbursement Dispute Procedures. If the Authorized Representative
determines pursuant to subsections 9.4(B) and 9.4(C) hereof that the work required for any
payment has not progressed as indicated by the Company, or otherwise disputes any
Requisition, the Authorized Representative shall provide prompt written notice to the Company
and the County as to the Authorized Representative's reasons, in reasonable detail, for such
C ~ determination or the basis for such dispute. After receiving such determination notice, the
Company may make the necessary corrections and resubmit a certified Requisition to the
Authorized Representative, or the Authorized Representative may agree on a revised amount,
Requisition or estimate, as applicable, in which case the Company shall promptly notify the
County of such agreement. If the Company is unable to reach agreement with the Authorized
Representative as to the progress of work, the Company may exercise its right to contest the
Authorized Representative's determination in accordance with the dispute resolution
procedures set forth in Section 16.11 hereof. Any proceedings undertaken to resolve a dispute
arising under this subsection 9.4(C) shall immediately terminate if (1) the Company
demonstrates to the Authorized Representative that the work has proceeded as indicated in the
certified Requisition giving rise to the dispute or that any disputed certified Requisition is
correct, and (2) the Authorized Representative concurs with such demonstration. The
Company shall not be entitled to payment of the amount so requisitioned and disputed except
upon resolution of the dispute in accordance with this subsection 9.4(D); provided, however,
that the Company shall be entitled to all requisitioned amounts which are not in dispute. In
the event that upon resolution of any such dispute, it is determined that the Company was
properly entitled to the disputed amount as of a date earlier than the date on which payment is
actually made, the Company shall be entifled to receive promptly following such resolution
92
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
such disputed amount plus interest on such disputed amount for the period of dispute
calculated at the Prime Rate.
(E) RetainaQe. Each construction drawdown payment will be subject to a
[5%] retainage holdback. The County shall release to the Company the accumulated funds
retained upon receipt of certification from the Company and confirmation by the Authorized
Representative that Acceptance has occurred pursuant to Section 8.8 hereof; provided,
however, that to the extent items are contained on the Final Punch List, the County or the
Authorized Representative shall reasonably estimate the cost to make each correction or to
complete each such item and the County shall be entitled to withhold from payment of the
retained funds an amount equal to two times the aggregate value of such items, in addition to
the amount of unresolved or unbonded claims or liens by third parties in connection with the
Design/Build Work and earned interest on the retained funds. Upon certification by the
Authorized Representative that Final Completion has occurred and so long as authority
contained in the Governmental Approvals to operate the Facility remains unimpaired, the
County shall release to the Company all remaining retained funds, including the amount equal
to the interest actually received on the retainage holdback.]
SECTION 9.4. CONDITIONS OF PAYMENT. (A) Information Supoortine
Requisition. The Company shall submit to the County, with a copy to the Authorized
Representative, with each Requisition all information required in subsection 9.4(C) hereof.
(B) Permissible Withholdines. The County may disapprove and withhold and
retain all or any portion of any payment requested to any Requisition in an amount equal to
the sum of:
(1) any amounts which are permitted under Section 9.5 hereof to be
withheld from any payment requested in any Requisition;
(2) any amounts which aze due the County under Section 7.7 hereof;
(3) any liquidated damages which are payable;
(4) any indemnification amounts which aze agreed to by the pazties, or after
judicial review aze found to be due and owing to the County under Section 17.3 hereof;
(5) any amounts which aze due from the Company under Section 7.8 hereof;
(6) any other deductions which are required by Applicable Law;
(7) any payments with respect to which documents to be delivered in
~y connection therewith aze not correct and complete;
93
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
( (8) any payments with respect to which the Design/Build Work covered by
such Requisition (or any previous Requisition) does not comply with this Service
Contract;
(9) any payments with respect to which any person has asserted a Lien
resulting from the acts or omissions of the Company in performing the Design/Build
Work and such Lien remains unreleased or unbonded;
(10) all requisitioned payments, if an Event of Default of the Company has
occurred under Section 16.2 hereof; and
(11) in the event the Company fails to pay any Taxes, assessments, penalties
or fees imposed by any Governmental Body,.including acourt of law, then the Company
authorizes the County to deduct and withhold or pay over to the appropriate
Governmental Body those unpaid amounts upon demand by the Governmental Body. It
is agreed that this provision shall apply to taxes and fees imposed by County ordinance.
SECTION 9.5. [FINAL REQUISITION AND PAYMENT. (A) Final Requisition.
The Company shall prepare and submit to the County for purposes of demonstrating Final
Completion:
_ (1) a certificate certifying (a) that all applicable Design/Build Work has been
completed in accordance herewith and with the Design Requirements, (b) that
Acceptance of the Facility has occurred, and (c) all other conditions of Final Completion
have occurred or been achieved; and
(2) a final Requisition.
The final Requisition shall enclose:
i. AIA Document G707 (Consent of Surety Company to Final Payment)
certifying the Surety agrees that final payment of the Fixed Design/Build Price shall not
relieve the Surety of any of its obligations under the Construction Performance and
Payments Bonds;
ii. a contractor's affidavit regazding settlement of claims and complete and
legally effective releases or waivers acceptable to the County in the full amount of the
Design/Build Price, or if any Subcontractor refuses or fails to furnish such release or
waiver, a bond or other security acceptable to the County to indemnify the County
against any payment claim; and
'+y?,
.,..~d
94
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
tip, iii. a list of all pending property damage and personal injury or death
insurance claims arising out of or resulting from the Design/Build Work, identifying the
claimant and the nature of the claim.
(B) Final Payment. If based on the Authorized Representative's
(1) observation of the Design/Build Work, (2) final inspection, and (3) review of the final
Requisition and other documents required by subsection (A) of this Section, the Authorized
Representative is satisfied that conditions for Final Completion have been satisfied, the
Authorized Representative shall, within 30 days after receipt of the final Requisition, furnish to
the County and the Company the Authorized Representative's recommendation of final
payment and Final Completion. If the Authorized Representative is not satisfied, the
Authorized Representative shall return the final Requisition to the Company, indicating in
writing the reasons for not recommending final payment, in which case the Company shall
make the necessary corrections and resubmit the final Requisition.
(1) County Concurrence. If the County concurs with the Authorized
Representative's recommendation of final payment, the County will, within 15 days, file
a written notice of final completion of the Facility and notify the Company and the
Authorized Representative of such acceptance. Within 60 days after filing such notice,
- the County shall pay to the Company the balance of the Design/Build Price, subject to
any withholdings and those other provisions governing final payment specified herein.
(2) County Non-Concurrence. If the County does not concur with the
Authorized Representative's determination, the County will return the Requisition to the
Company, through the Authorized Representative, indicating in writing its reasons for
refusing final payment and Final Completion. The Company shall promptly make the
necessary corrections and resubmit the Requisition to the Authorized Representative.
The County's written determination shall bind the Company, unless the Company
delivers to the County, through the Authorized Representative, written notice of claim
within 30 days after receipt of that determination.
(3) Partial Release of Final Payment. If recommended by the Authorized
Representative, the County may, upon receipt of the Company's final Requisition and
without terminating the Construction Period, make payment of the balance due for that
portion of the Design/Build Work fully completed and accepted, if Final Completion is
significantly delayed due to Uncontrollable Circumstances. If the balance to be held by
the County for the Design/Build Work not fully completed or corrected is less than the
retainage on that work, the affidavits specified in subsection (A) of this Section and the
~ release or waiver, or Construction Performance and Payment Bonds, shall be furnished
95
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
~ as required and submitted by the Company. Payment of the balance due shall be made i'"""~
under the provisions for final payment, but shall not constitute a wavier of claims. The
County shall pay with reasonable promptness any amounts deducted from the final
payment, upon resolution of the claims for which the amounts were withheld.
Final payment does not constitute a waiver by the County of any rights relating to the
Company's obligations under the Service Contract. Final payment constitutes a wavier of all
claims by the Company against the County other than those previously filed in writing with the
County on a timely basis and still unsettled.] [DISCUSS WITH COUNTY]
SECTION 9.6. PAYMENT OF SUBCONTRAC'T'ORS. The Company shall pay
its Subcontractors in accordance with Applicable I,aw.
SECTION 9.7. AUDIT BOOKS AND RECORDS. (A) Audit. All payments
whatsoever by the County to the Company and all Design/Build Work of the Company shall be
subject to audit at any time by the County.
(B) Construction Books and Records. The Company shall prepare and
maintain proper, accurate and complete books and records regarding the Design/Build Work
and all other transactions related to the design, permitting, construction, shakedown and
testing of the Design/Build Work, including all books of account, bills, vouchers, invoices,
personnel rate sheets, cost estimates and bid computations and analyses, Subcontracts,
purchase orders, time books, daily job diaries and reports, correspondence, and any other
documents showing all acts and transactions in connection with or relating to or arising by
reason of the Design/Build Work, this Service Contract, any Subcontract or any operations or
transactions in which the County has or may have a financial or other material interest
hereunder. All financial records of the Company and its Subcontractors shall be maintained in
accordance with generally accepted accounting principles and auditing standards for
governmental institutions. The Company and its Subcontractors shall comply with state audit
requirements and federal audit requirements to the extent that the County receives federal
funding for this project. The Company shall produce such construction books and records
(except for the Company's financial ledgers and statement) for examination and copying in
connection with the costs of Change Orders, Extra Design/Build Work, Uncontrollable
Circumstance costs, or other costs in addition to the Fixed Design/Build Price under
circumstances in which such costs aze required to be Cost Substantiated pursuant to this
Service Contract, for which the County may be responsible hereunder with respect to work
performed prior to Acceptance except with respect to costs incurred in connection with work
performed on a fixed price basis. The Company shall keep and maintain all such construction
books and records for the Facility separate and distinct from other records and accounts, and
96
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article IX -Financing and Payment of the
Design/Build Price
shall maintain such books and records for at least seven years after Acceptance, or such longer
period during which any Legal Proceeding with respect to the Design/Build Work commenced
within seven years of the Acceptance Date may be pending.
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ARTICLE X
DELNERY AND RECEIPT OF WASTE
SECTION 10.1. DELIVERY OF PROCESSIBLE WASTE BY THE COUNTY.
(A) Annual Waste Delivery Commitment. Beginning on the Acceptance Date
and throughout the Term of this Service Contract, the County shall deliver or cause to be
delivered to the Facility in each Contract Yeaz all Processible Waste generated in the County (1)
received at the following County transfer stations: [TO BE PROVIDED], (2) which is not
diverted from the waste stream prior to its delivery to the Facility by the County or any other
person for recycling, composting or any other similar reuse purpose, and (3) which the Facility
is capable from time to 6me of accepting, processing and combusting at its design capacity as
of the Contract Date. Deliveries in excess of such level in any Contract Year may be made in
the sole discretion of the County, subject to the Company's rejection rights under Section 10.2
hereof. As a minimum, the County shall deliver or cause to deliver Tons of Processible
Waste each Contract Year (pro-rated for partial Contract Years) (the "Annual Waste Delivery
Commitment"). Deliveries shall be made, without cost to the Company, as and when
Processible Waste is generated and collected for disposal within the County. The County shall
cooperate with and assist the Company in preparing anticipated, non-binding annual delivery
~ schedules under Section 10.3 hereof.
(B) Chazees to Registered Haulers. For the disposal service provided
hereunder the Company shall be paid the Service Fee by the County as provided in Article XV
hereof. The County may from time to time establish fees or chazges to be imposed upon
Registered Haulers for the right to deliver Processible Waste to the Facility. Any such fee or
charge shall be collected by the County through a billing system under which the County shall
be responsible for collection enforcement.
(C) Source Separation. Nothing in this Service Contract shall be deemed to
restrict the right of the municipalities, residents, businesses or organizations in the County to
practice source separation for the recovery, recycling or composting of waste nor the right of
the County to conduct, sponsor, encourage or require such source separation. No reduction in
the amount of Processible Waste generated in the County and delivered to the Facility by or on
behalf of the County which may result from any such source separation or recycling program
shall cause the County any liability hereunder except as set forth in pazagraph (D) below. The
existence of such a source separation or recycling program shall not limit or otherwise affect
any Performance Guarantee of the Company hereunder, notwithstanding (1) any change in the
a recoverable energy content of the Processible Waste delivered to the Facility which may result
r.~.. from any such program, except to the extent provided in Section 15.11 hereof, or (2) any other
98
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article X -Delivery and Receipt of Waste
change in the composition of Processible Waste delivered to the Facility which may result from _
~
such a program.
(D) Shortfall Damaees. In the event the County fails to deliver or cause to be
delivered the Annual Waste Delivery Commitment in any Contract Year, the County shall pay
waste delivery shortfall damages calculated in accordance with Section 15.11(C).
SECTION 10.2. RECEIPT OR REJECTION OF WASTE BY THE COMPANY.
(A) [Receivine and Processine of Solid Waste. The Company shall receive
and process at the Facility all Processible Waste delivered to the Facility by or on behalf of the
County in each Contract Year; provided, however, that the Company may refuse delivery of any
waste delivered at hours outside the Receiving Time and mutually agreed upon times of
delivery. The Company shall combust at the Facility all Processible Waste delivered to the
Facility by or on behalf of the County in each Contract Year; provided, however, that the
Company may refuse to combust (1) any Processible Waste which cannot be combusted or
processed at the Facility on account of a partial or complete shutdown caused by
Uncontrollable Circumstances or County Fault, and (2) any Processible Waste delivered by or
on behalf of the County in any Billing Period or in any Contract Yeaz in excess of the applicable
Billing Period Throughput Guarantee or the Annual Facility Throughput Guarantee.
Notwithstanding the foregoing, the Company shall use its best reasonable efforts to accept and /~'~y
combust all Processible Waste delivered to the Facility by or on behalf of the County. The ...+'Y
Company shall provide for the transportation and disposal of any Processible Waste which the
Company is permitted to reject and fails to combust at the Facility under this Section ("Excess
Processible Waste°). Cost of such transportation and disposal shall be included as a
reimbursable fee in accordance with Article XV] [DISCUSS RESPONSIBILITIES]
(B) Annual Facility Throughput Guarantee. For the purposes of this Service
Contract, the "Annual Facility Throughput Guazantee" for any Contract Year shall be
[ ]Tons of Processible Waste per Contract Year, if the average annual Higher Heating
Value of the Processible Waste processed in the Contract Yeaz is between [3,800] and [7,000]
Btu per pound. For any Contract Year in which the average annual Higher Heating Value of
combusted Processible Waste is less than [3,800] Btu per pound or is greater than [7,000] Btu
per pound as determined by using all available data including the information contained in the
compliance monitoring forms contained in Appendix _ hereto, the provisions of Section 15.11
hereof shall apply in determining the Annual Facility Throughput Guarantee and whether and
to what extent any Facility Performance Obligations shall be payable.
(C) Billing Period Throughput Guarantee. The Billing Period Throughput
Guarantee for each Billing Period in each Contract Yeaz shall be as follows: !''may,
99 ~,j
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article X -Delivery and Receipt of Waste
Billing Billing Period
~ Period Throughput Guarantee (Tonsl
January [ ]
February [ ]
March [ ]
April [ ]
May [ ]
June [ ]
July [ ]
August [ ]
September [ ]
October [ ]
November [ ]
December [ ]
TOTAL [ ]
The Billing Period Throughput Guarantee with respect to any Billing Period may be changed at
the request of either party subject to the approval of the other pazty which, with respect to
changes requested prior to the commencement of the applicable Contract Year, may not
unreasonably be withheld and with respect to changes requested during the applicable
Contract Yeaz may be withheld in the sole discretion of the approving party; [provided,
however, that the County shall have the right to designate four peak delivery Billing Periods in
each Contract Year prior to the commencement of such Contract Yeaz for which the Billing
Period Throughput Guarantee shall be an amount equal to Tons multiplied by the
number of calendar days in such Billing Period]. Any such change in any Billing Period
Throughput Guarantee shall be deemed to be an action taken pursuant to this Service
Contract and not an amendment hereof. In any event, the sum of the Billing Period
Throughput Guazantees in each Contract Year shall be equal to the Annual Facility
Throughput Guazantee. [DISCUSS WITH COUNTY)
(D) iAdiustments to Peak Billing Period Throughput Guazantees. During the
designated four peak delivery Billing Periods in any Contract Year, the Company shall combust
Processible Waste to the Facility's full capacity and shall not perform any scheduled or
unscheduled maintenance which will prevent the Facility from combusting waste in amounts
at least equal to the respective Billing Period Throughput Guarantees; provided, however, that
if in any such peak Billing Period the Facility requires unscheduled, unavoidable maintenance
which cannot be delayed consistent with good operating practices applicable in the waste-to-
energy industry and the Company has complied with its required periodic maintenance
schedules, the Company shall be entitled to elect, upon written notice to the County delivered
prior to the end of such Billing Period, to reduce the otherwise applicable Billing Period
Throughput Guarantee by up to [ ]Tons, subject to an aggregate limit of [ ]Tons for
all four peak Billing Periods, and the applicable Billing Period Throughput Guazantee shall be
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deemed to have been reduced accordingly. Upon any such election by the Company, the
Billing Period Throughput Guazantee Tonnage reduction effectuated by the Company shall be (
used first to raise retroactively the Billing Period Throughput Guazantee applicable in any prior
Billing Period in the Contract Yeaz in which there was a Billing Period Throughput Surplus not
utilized to offset any Billing Period Throughput Deficiencies, to the extent of such unutilized
Billing Period Throughput Surplus, and such Billing Period Throughput Surplus shall be
reduced accordingly. Any such Tonnage reduction not so utilized shall be applied to increase
the Billing Period Throughput Guazantee applicable in the eight non-peak Billing Periods
following the Billing Period in which such reduction in the Billing Period Throughput
Guarantee occurs.] [DISCUSS WITH BARBARA B./MIKE D.]
(E) [Determination of Billine Period Throughput Surpluses and Deficiencies.
If in any Billing Period the Billing Period Throughput exceeds the Billing Period Throughput
Guazantee, the amount of the excess shall constitute a "Billing Period Throughput Surplus"
hereunder. If in any Billing Period the Billing Period Throughput is less than both the
Available Billing Period Processible Waste and the Billing Period Throughput Guarantee, and
the failure of the Company to process the Available Billing Period Processible Waste in amounts
up to the Billing Period Throughput Guarantee is due to reasons other than Uncontrollable
Circumstances or County Fault, there shall be a Billing Period Throughput Deficiency. The
t °Billing Period Throughput Deficiency" shall be an amount equal to (1) the lesser of (a) the
...r"
Billing Period Throughput Guarantee or (b) the Available Billing Period Processible Waste,
minus (2) the Billing Period Throughput. For any Billing Period in which the Available Billing
Period Processible Waste is equal to or less than the Billing Period Throughput Guarantee, and
the Company processes all of the Available Billing Period Processible Waste, there shall be
neither a Billing Period Throughput Surplus nor a Billing Period Throughput Deficiency. The
determinations under this subsection as to Billing Period Throughput Surpluses and Billing
Period Throughput Deficiencies shall be used to calculate Throughput Performance Liquidated
Damages under Section 15.9 hereof.] [DISCUSS WITH COUNTY)
(F) Determination of Tonnage Combusted. As a convention for determining
the Tonnage combusted by the Facility for the purposes of this Section, the weighing records
pertaining to the receipt of Processible Waste at the Facility and the removal of any non-
processed Processible Waste, Non-Processible Waste, rejects and Residue from the Facility
shall be utilized. The difference between the amounts so received and removed shall be
deemed to constitute the Tonnage combusted by the Facility during such period.
(G) Billing Period Processing Record. The County shall furnish the Company
with a record, within 15 days after each Billing Period, of the Available Billing Period
Processible Waste, the Billing Period Throughput, the Billing Period Throughput Guarantee for ~.rW'
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such Billing Period, and any Billing Period Throughput Deficiency or Billing Period Throughput
'\r Surplus for such Billing Period.
(H) Disposal of Bvnass Processible Waste. The Company agrees after the
Acceptance Date to transfer and transport all Bypass Processible Waste from the Facility to an
alternative waste disposal site selected by the Company from time to time and to dispose of all
such Bypass Processible Waste at the alternative waste disposal site. The Company shall pay
all costs and expenses incurred in connection with the transfer, transportation and disposal of
such Bypass Processible Waste to or at an alternative waste disposal site, regazdless of the
transportation distance and cost and regazdless of the disposal cost involved. In the event the
alternative waste disposal site is the County Landfill, the disposal costs chazged to the
Company will be 200 percent of the tipping fee in effect from time to time. In the event of a
protracted shutdown of the Facility for any reason, the Company shall exercise its best
reasonable efforts to use the Facility to provide transfer station operations in order to facilitate
the disposal of Bypass Processible Waste. [DISCUSS WITH COUNTY)
(I) Alternative Waste Disposal Site. An "Alternative Waste Disposal Site°, as
used herein, means a sanitary landfill, waste-to-energy facility or other solid waste
management facility which as applicable (1) is operated in accordance with good engineering
practice, (2) if a landfill, is constructed of a double liner or, with the County's consent, a single
.
composite liner, (3) is located in the United States, (4) is not, without the consent of the County
given in its absolute discretion, located in the County, (5) does not appeaz on any federal or
State list of sites, such as but not limited to the National Priority List or the CERCLIS list
under CERCLA, maintained for the purpose of designating landfills which aze reasonably
expected to require remediation on account of the release or threat of release of Hazardous
Material, (6) is being operated at the time of disposal or delivery in accordance with Applicable
Law as evidenced by the absence of any regulatory sanctions, notices of violations or significant
enforcement actions with respect to material environmental matters, (7) has committed by
agreement or obligation of the owner or operator to receive Processible Waste originating in the
CounTy, and (8) is not under any executive or judicial order, bazring receipt of waste from any
region which includes the County. No waste-to-energy facility shall qualify as an Alternative
Waste Disposal Site unless the site at which the ash residue therefrom is disposed also
qualifies as an Alternative Waste Disposal Site hereunder. The Company shall provide
evidence satisfactory to the County, prior to the use of any Alternative Waste Disposal Site and
from time to time as requested thereafter, that the intended disposal location (and any related
ash residue site) conforms with the requirements of this subsection. Any Alternative Waste
Disposal Site shall be selected by the Company and, except as specifically provided herein,
a..-
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County of Hawaii Solid Waste Reduction Facility Article X -Delivery and Receipt of Waste
shall not require the approval of the County so long as the site conforms with each of the
criteria set forth in this subsection.
(J) Segregation of Non-Processible Waste. The Company shall be
responsible for segregating the Processible Waste from Non-Processible Waste. Non-Processible
Waste shall be handled ,used or sold to beneficial re-use, or disposal of by the Company in
accordance with Applicable Law. The Company shall receive payment for the disposition of
Non-Processible Waste as set forth in Article XV. To the extent that Hazardous Material is
delivered to the Facility, such waste will be handled in accordance with Section 10.9 herein
and Applicable Law. The [County] shall remove or cause to be removed from the Facility and
dispose elsewhere at its own cost all Hazardous Material refused under this subsection 10.2()).
(K) [Storage. No Processible Waste may be stored outside the tipping floor
and the receiving pit of the Facility, except during an emergency and then only in conformity
with Applicable Law. The Company will expeditiously remedy any nuisance conditions,
including, without limitation, any noise or odor constituting a nuisance.]
SECTION 10.3. DELIVERY SCHEDULES. PROCEDURES AND
REQUIREMENTS.
(A) Annual Operating Plan. At least 60 days prior to the commencement of
each Contract Year, the County and the Company shall establish an Annual Operating Plan for i""~!.
the delivery, receipt and processing of Solid Waste at the Facility. The Annual Operating Plan
also shall provide for such matters as the parties may mutually deem necessary or desirable in
the implementation of this Service Contract. The County and the Company may revise the
Annual Operating Plan for the current Contract Year at any time by mutual consent. The
Annual Operating Plan shall not limit the Company's obligation to receive and process Solid
Waste delivered by the County in accordance with this Service Contract.
(B) [Regstered Haulers. The County will compile and provide the Company
with the following information about all Registered Haulers: name and address; identification
number; area of collection and transportation; and status as a contract operator or municipal
or district hauler for the County. The County shall require and shall cause all Registered
Haulers to be reasonably bonded or insured.] [DISCUSS WITH COUNTY)
(C) Delivery Procedures. Deliveries of Solid Waste hereunder shall be
substantially in accordance with written procedures established by mutual consent of the
parties. Such delivery procedures shall reflect the waste transportation and disposal practices
within the County and the Facility's design and operating requirements, as in effect at the time
of delivery, and shall not unreasonably either impede the ability of the County to deliver or
~ cause the efficient delivery of all Solid Waste which the Company is obligated to receive from
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County of Hawaii Solid Waste Reduction Facility Article X -Delivery and Receipt of Waste
the County hereunder or impair the ability of the Company to receive and process such Solid
i? Waste in accordance with this Service Contract. The delivery and receipt of Solid Waste shall
be arranged by the parties so as to avoid, delivery vehicle stacking on roadways outside the
Site.
(D) Snillaee of Solid Waste. The Company shall cazry on its activities in the
Facility in such manner that solid waste will not blow, leak or spill onto the Site or elsewhere,
and the Company shall bear the cost of cleaning up and correcting any damage resulting from
any blowing, leakage or spillage caused by its employees, agents or Subcontractors and shall
make and file any reports with respect thereto required under this Service Contract and
Applicable Law. Nothing in this subsection 10.3(E) shall limit the right of the Company to
recover such costs from any Registered Hauler causing any spillage or damage.
(E) Release of Hazazdous Substances. The Company, after first notifying the
County, shall be responsible to fulfill all notification or reporting requirements associated with
any release of any substance into the environment (from the Facility or the Site) as required by
Applicable Law or by any licenses, permits and approvals issued by any regulatory agencies for
the Facility, including, but not limited to, the notification or reporting of releases of Hazazdous
Material. The Company shall prepare a memorandum evidencing such notification or reporting
1 ~ and provide copies thereof to the County, along with any documents provided to the relevant
regulatory agency regarding such release.
SECTION 10.4. RECEIVING AND OPERATING HOURS.
(A) [Receivin¢ Time. On and after the Acceptance Date, the Company shall
keep the Facility open for receiving Processible Waste (1) from [7:00 A.M. until 3:30 P.M.]
Monday through Friday, and [7:00 A.M. until 2:00 P.M. on Saturday (other than days on which
the Reload Facility is closed) for general deliveries], and (2) during such additional hours as
may be required to accommodate the usual special collection practices of the County on
account of any holiday or to accommodate the County's disposal requirements on account of a
special event, a natural disaster, or an emergency condition (the "Receiving Time"]. The
Company shall, based on the operating history at the Facility, provide the County with
reasonable notice of anticipated additional hours of operation which may be necessary and cost
associated with such additional hours of operations. The County shall reimburse the Company
for any additional labor costs, including overtime chazges, incurred as a result of extending the
Receiving Time in accordance with item (2) above, except in the event of the extension of the
Receiving Time is made at the request of the Company.] [DISCUSS WITH MIKE D.]
(B) Operatine Hours. On and after the Acceptance Date, the Company shall
operate the Facility on a continuous basis in a manner which is consistent with the
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Performance Guazantees and sound operating practice, except as affected by Uncontrollable
{
Circumstances.
SECTION 10.5. WEIGHING RECORDS.
(Aj [Measurement Devices and Procedures. The County shall operate and
maintain truck scales, installed in accordance with Appendix _ hereto and calibrated to the
accuracy required by Applicable Law, to weigh all vehicles delivering waste to and removing
waste from the Facility. The County shall require that each vehicle delivering or removing
waste hereunder shall have a current and accurate taze weight permanently indicated and
conspicuously displayed on the exterior of the vehicle in a location designated by the Company.
The Company in its reasonable discretion may require the revalidation of the tare weight of any
vehicle or the reweighing of unloaded vehicles. Each loaded vehicle shall be weighed,
indicating gross weight, tare weight, date and time and vehicle identification on a weight
record. The Company and its agents shall have the right to monitor weighing activities.]
[DISCUSS WITH MIKE D.]
(B) [Estimates Durine Incapacitation. To the extent that weighing facilities
are incapacitated or are being dested, the County shall estimate the quantity of waste delivered
on the basis of truck volumes and estimated data obtained through historical information.
These estimates shall take the place of actual weighing and shall be the basis for records ;irk
during the scale outage. If, upon conclusion of testing, the test indicates that the scale did not ~.y'°`
meet the accuracy requirements required by Applicable Law, any adjustments of scale records
actually recorded since the previous test will be negotiated by the County and the Company,
and payments due hereunder shall be adjusted consistent with such adjustments of scale
records.} [DISCUSS WITH COUNTY)
(C) [Weieht Records. The County shall maintain daily records of the number
of Tons of waste delivered to the Facility, the number of Tons of waste received and processed
or rejected (rightfully or wrongfully) by the Company, received Non-Processible Waste, rejects
and Residue, indicating, in each case in and to the extent practicable, the date and time of
arrival or depazture of each vehicle transporting such waste, rejects or Residue, with
appropriate identification of each vehicle, and the disposition of all such materials. All such
records shall be in such form as the Company shall reasonably request for billing and
statistical purposes, and the County shall maintain copies of all individual vehicle delivery
weight records for a period of at least six years.] [DISCUSS WITH MIKE D.]
(D) Representative to Monitor Compliance. Each of the County and the
Company shall have the right, at its expense, to station its representative at any weighing
i facilities maintained by the other to monitor the other's compliance with the provisions of this
Section 10.5. ~
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County of Hawaii Solid Waste Reduction Facility Article X -Delivery and Receipt of Waste
SECTION 10.6. NON-COUNTY PROCESSIBLE WASTE.
~wr.' (A) [Prohibition on Receipt of Non-County Processible Waste. Non-County
Processible Waste shall not be knowingly received at the Facility without the consent of the
County, notwithstanding the periodic capacity of the Facility to process such waste due to
seasonal fluctuations in the delivery of County Processible Waste or other factors, except as
described in subsection 10.7(B) hereof. The Company and the County shall cooperate in
enforcing this restriction.] [DISCUSS WITH COUNTY)
(B) Waiver of Prohibition. The County shall have the right to deliver or
arrange for the delivery of non-County Processible Waste to the Facility in accordance with the
County's Integrated Solid Waste Management Plan and other Applicable Law. In the event the
County exercises the right to deliver or arrange for the delivery of such waste, any non-County
Processible Waste delivered to the Facility will be deemed to constitute County Processible
Waste for all purposes of this Service Contract.
SECTION 10.7. TEMPORARY SHUTDOWNS.
(A) Notice. If the operation of the Facility is temporarily reduced, curtailed
or shut down for any reason so that the Company is unable to receive, process and combust all
or any portion of the Processible Waste scheduled to be received, processed and combusted in
accordance with Section 10.2 hereof, the Company shall at the earliest possible time advise the
County as to the nature and probable duration thereof and the expected effect thereof on
operations at the Facility.
(B) Effect of Temporary Shutdown. During any period in which combustion
operations of the Facility is temporazily reduced, curtailed or shut down, the obligations of the
parties hereto to deliver and to receive, process and combust waste, and to pay the Service Fee
therefor, shall continue, subject to the provisions hereof, including, without limitation,
Section 10.2 and Articles XIV, XV and XVI hereof, as applicable.
SECTION 10.8. HAZARDOUS MATERIAL.
(A) [Responsibilities. The pazties acknowledge that the Facility has not been
designed and is not intended to be used in any manner or to any extent as a facility for the
handling, transportation, storage or disposal of Hazardous Material. Neither the Company nor
the County shall countenance or knowingly permit the delivery of Hazazdous Material to the
Facility or the Site or the storage of Hazardous Material at the Facility for more than 90 days.
The Company shall comply with the waste screening practices and procedures set forth in
subsection 10.2()) hereof and Appendix _ hereto. The County and the Company shall use
their best reasonable efforts to identify any person responsible for delivery to or abandonment
at the Facility of any Hazardous Material and to require such person to bear all costs and
liabilities associated with the removal, transportation and disposal thereof. The County shall
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diligently enforce all Applicable Laws of the County prohibiting the delivery of Hazardous
Material to the Facility and both the County and the Company shall take all reasonable steps [
necessary to seek the enforcement of all other Applicable Law regarding such delivery. If the
Company discovers that Hazardous Material has been delivered to the Facility, it shall give
immediate notice of such discovery to the County and the County shall immediately notify all
other appropriate governmental authorities as required by Applicable Law. If the Company is
unable to immediately notify the appropriate County officials of the discovery of Hazardous
Material at the Site, then the Company shall immediately notify all other appropriate
governmental authorities as required by Applicable Law. Immediately upon receipt of such
notification, the [County] shall, in the most expeditious manner possible in the circumstances
cause such Hazardous Material to be cleaned up, removed from the Facility and transported to
and disposed of at a landfill or other disposal site selected by the County in its sole discretion,
and lawfully permitted to receive and dispose of such Hazardous Material.] [DISCUSS
RESPONSIBII.ITIES]
SECTION 10.9. LIMITATION ON SUPPLEMENTAL FUELS OR COMPANY-
SUPPLIED MATERIAL. [No material other than Processible Waste delivered by or on behalf of
the County shall be combusted by the Facility, except (1) supplemental fossil fuels combusted
to maintain furnace temperature in compliance with Applicable Law, and (2) supplemental
fossil fuel necessary to conduct Stazt-up Operations and Shutdown Operations; provided,
however, that no supplemental fossil fuel firing shall be conducted at levels which would cause
the Facility to lose its qualifying facility status under the [Public Utility Regulatory Policies Act]
or to cause the provisions of [40 CFR 60 Subpart Db) (Standards of Performance for Industrial-
Commercial-Institutional Steam Generating Units) to apply to the Facility.] [DISCUSS WITH
R.W. BECK]
.r?'
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ARTICLE XI
OPERATION AND MANAGEMENT
SECTION 11.1. COMPANY OBLIGATIONS GENERALLY. (A) Operation and
Manaeement Responsibility. Commencing on the Acceptance Date, the Company shall operate
and manage the Facility on a 24-hour per day, 7-day per week basis, and shall receive all Solid
Waste delivered, separate Non-Processible Waste from Processible Waste, combust all
Processible Waste and transport and dispose of Non-Processible Waste and Residue, provide all
information necessary to secure Governmental Approvals, and otherwise operate and manage
the Facility so as to comply with the Contract Standards applicable to such activities, each of
the plans pertaining thereto set forth in the Appendices, and the other terms and conditions of
this Service Contract.
(B) Transfer and Application of Industry Experience. The Company shall use
all reasonable efforts to transfer to and apply at the Facility the benefit of the advances and
improvements in technology, management practices and operating efficiencies which are
developed by the Company, the Guarantor and their Affiliates through the operation of their
worldwide solid waste reduction businesses and industry research and development activities
conducted over the full Term of this Service Contract, and which are useful and appropriate in
t the good faith judgment of the Company for carrying out the Contract Services in a manner
which improves upon the Contract Standards.
SECTION 11.2. COUNTY OBLIGATIONS GENERALLY. The County, in
addition to the obligations it has accepted elsewhere in this Service Contract, shall:
(1) Make available to the Company upon request all information relating to
the Facility which is in the possession of the County and material to the Company's
performance hereunder;
(2) Grant and assure the Company access to the Facility and the Reload
Building for the performance of its obligations hereunder; and
(3) Pay the Service Fee and any other amounts due the Company in
accordance with the terms and conditions of this Service Contract.
SECTION 11.3. SERVICE COORDINATION AND CONTRACT
ADMINISTRATION. (A) Company's Facility Manager. The Company shall appoint afull-time
manager of the Facility (the "Facility Manager") who shall be [licensed], trained, experienced
and proficient in the management and operation of solid waste reduction systems comparable
- to the Facility, shall have an operator's certification and be otherwise appropriately certified
under Applicable Law [DISCUSS WITH R.W. BECK], and whose sole employment responsibility
shall be managing the Company's performance of the Operation Services. The Company
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acknowledges that the performance of the individual serving from time to time as the Facility
Manager will have a material beazing on the quality of service provided hereunder, and that i'"~`
effective cooperation between the County and the Facility Manager will be essential to
effectuating the intent and purposes of this Service Contract. Accordingly, not fewer than 30
days prior to the date on which any candidate for Facility Manager from time to time during the
Term of this Service Contract is proposed by the Company to assume managerial responsibility
for the Facility, the Company shall: (1) provide the County with a comprehensive resume of the
candidate's licenses, training, experience, skills and approach to management and customer
relations; and (2) afford the County an opportunity to interview the candidate with respect to
such matters. The County shall have the right within 30 days following such interview to
disapprove the hiring of the proposed candidate, which right of disapproval shall not be
exercised unreasonably. The initial Facility Manager shall not be replaced, unless otherwise
approved by the County in its sole discretion, for a period of three yeazs from the Acceptance
Date absent retirement, resignation or cessation of employment with the Company. The
Company shall replace the Facility Manager at the request of the County, after notice and a
reasonable opportunity for corrective action, in the event the County determines that an
unworkable relationship has developed between the Facility Manager and the County.
(B) Company's Senior Supervisors. The Company shall appoint and inform
the County from time to time of the identity of the corporate officials of the Company and the ..r~
Guarantor with senior supervisory responsibility for the Facility and the performance of this
Service Contract (the "Senior Supervisors"). The Company shall promptly notify in writing to
the County of the appointment of any successor Senior Supervisors. The Senior Supervisors
shall cooperate with the County in any reviews of the performance of the Facility Manager
which the County may undertake from time to time, and shall give full consideration to any
issues raised by the County in conducting such performance reviews.
(C) County's Contract Representative. The County shall designate an
individual or firm to administer this Service Contract and act as the County's liaison with the
Company in connection with the Operation Services (the "Contract Representative"). The
Company understands and agrees that the Contract Representative has only limited authority
with respect to the implementation of this Service Contract, and cannot bind the County with
respect to any Service Contract amendment or to incurring costs in excess of the amounts
appropriated therefor. Within such limitations, the Company shall be entitled to rely on the
written directions of the Contract Representative.
(D) County Approvals and Consents. When this Service Contract shall
require any approval or consent by the County to a Company submission, request or report,
the approval or consent shall be given by the County's Contract Representative in writing and
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such writing shall be conclusive evidence of such approval or consent, subject only to
compliance by the County with the Applicable Law that generally governs its affairs. Unless
expressly stated otherwise in this Service Contract, and except for requests, reports and
submittals made by the Company that do not, by their terms or the terms of this Service
Contract, require a response or action, if the County does not find a request, report or
submittal acceptable, it shall provide written response to the Company describing its objections
and the reasons therefor within 30 days of the County's receipt thereof. If no response is
received, the request, report or submittal shall be deemed rejected and the Company may
resubmit the same, with or without modification. Requests, reports and submittals that do not
require a response or other action by the County pursuant to some specific term of this Service
Contract shall be deemed acceptable to the County if the County shall not have objected
thereto within 30 days of the receipt thereof.
(E) Communications and MeetinQS. On or before the Acceptance Date, the
Company shall inform the County of the telephone, cellular telephone, fax and beeper
numbers, a-mail address and other means by which the Facility Manager and Senior
Supervisors may be contacted. The Facility Manager shall be reachable 24 hours a day, seven
days a week and shall, at the County's request, attend weekly meetings with the County's
Department of Environmental Management staff. The County shall furnish to the Company
comparable communications information with respect to the County's Contract Representative.
The Company shall meet with the County each month to review the contents of the operations
reports required to be prepared pursuant to Section 11.13. The Facility Manager and, if
requested by the County, the Senior Supervisors each shall personally attend the monthly
operations meetings with the County, and all special meetings which the County may
reasonably request from time to time, to review management, operational, performance and
planning matters arising with respect to the Facility and this Service Contract. [It is the desire
of the parties to resolve disputes without third party intervention and, therefore, prior to
instituting the dispute resolution methods set forth in Article XVI, senior officials from the
Company and the County shall meet to attempt to resolve any such dispute.] [DISCUSS WITH
BJT] Any issue in dispute which the pazties are unable to resolve at such monthly and special
meetings may be referred to Non-Binding Mediation, as provided for in Section 16.12, and the
resolution of any issues resolved at such meetings or through Non-Binding Mediation shall be
reflected in a Contract Administration Memorandum.
SECTION 11.4. OPERATION AND MAINTENANCE MANUAL. (A) Company
Responsibility. The Operation Services shall be performed substantially in compliance with the
Operation and Maintenance Manual and the Company's computerized maintenance
management system (°CMMS"). The Company shall keep the Operations and Maintenance
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Manual current and shall supply the County with appropriate updates, supplements or _
revisions thereto annually or at any earlier time that a material change to the Operation and '
Maintenance Manual is made, to be reviewed and commented on in accordance with
Appendix Such updates shall preserve the standards set forth in the initial Operation and
Maintenance Manual. Notwithstanding any such review and comment by and discussion with
the County, the Operation and Maintenance Manual shall remain, at all times, the
responsibility of the Company. Neither the review of or comment upon, nor the failure of the
County to comment upon, the Operation and Maintenance Manual shall: (1) relieve the
Company of any of its responsibilities under this Service Contract; (2) be deemed to constitute
a representation by the County that operating the Facility pursuant to the Operation and
Maintenance Manual will cause the Facility to be in compliance with this Service Contract or
Applicable Law; or (3) impose any liability upon the County.
(B) Supplements for Capital Modifications. The Company shall prepare
supplements and revisions to the Operation and Maintenance Manual which are required due
to the design, construction and installation of all Capital Modifications. Such supplements and
revisions shall be provided, reviewed and approved in the same manner as provided in this
Section with respect to the initial Operation and Maintenance Manual. The cost and expense
of such supplements and revisions shall be borne by the Company, except with respect to
supplements and revisions necessitated by Capital Modifications directed by the County or
required by a Change in Law or other Uncontrollable Circumstance.
SECTION 11.5. STAFFING AND PERSONNEL TRAINING. (A) Staffine. The
Company shall staff the Facility during the Term of this Service Contract with qualified
personnel who meet the licensing and certification requirements of the State in accordance
with the Contract Standazds. The Company shall discipline or replace, as appropriate, any
employee of the Company or any Subcontractor engaging in unlawful, unruly or objectionable
conduct. The Company shall notify the County of any material change in staffing levels and
positions from time to time, and shall not make any such material change if the new staffmg
level would adversely affect the ability of the Company to provide the Contract Services.
[DISCUSS WITH COUNTY WHETHER THERE SHOULD BE OBLIGATION TO OFFER
EMPLOYMENT TO COUNTY EMPLOYEES AFFECTED BY FACILITY)
(B) Trainine. The Company shall be responsible for training the Facility
Manager, operations supervisors and other Company personnel. No later than 90 days prior to
Substantial Completion, the Company shall submit to the County for its review and comment a
personnel training program which the Company proposes to institute in order to ensure that
the Facility is managed and operated in accordance with this Service Contract. Such personnel
training program shall include, at a minimum, the personnel training guidelines, policies and
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procedures established: (1) by the DOH and the EPA; (2) in any Governmental Approval or
yam„ operator's certificate required or issued by any Governmental Body; and (3) in any other
Applicable Law.
[SECTION 11.6. TRAINING OF COUNTY PERSONNEL. (A) Emer¢ency
Preparedness. The Company acknowledges that, notwithstanding the execution of this Service
Contract, the County will retain the responsibility for reducing solid waste received from the
solid waste stream and serving the public health, safety and welfare needs of its taxpayers.
The County accordingly shall have right to designate three officers or employees for the
purpose of receiving emergency preparedness training from the Company. Such training shall
be scheduled to enable any of the three officers or employees to be familiar with the equipment,
supplies, processes, operations and performance of the Facility at a level which will permit
such officials to properly respond to any operating emergency and to assume managerial
responsibility for the County in the event the County elects to exercise its rights in an
emergency to take temporary possession of the Facility hereunder or under Applicable Law.
(B) On~oin~ Training. The County shall have the right to send not more
than three County employees to any Company-provided training programs pursuant to
subsection 11.5(B). The Company shall be responsible for the cost of training such County
employees, and the County shall be responsible for all employee expenses (travel, lodging,
meals, etc.) incurred while participating in such training programs.
(C) Permanent Operations. The Company shall, on not less than 30 days'
prior written notice from the County, conduct aone-time training program for the County and
its designees in order to enable the County to assume operating and management
responsibility for the Facility at the expiration or termination of this Service Contract. The
program shall train supervisory and operating personnel in sufficient numbers and job
classifications so as to allow the County and its designees to operate and manage the Facility
in such circumstances in accordance herewith and with the same degree of skill and
performance as the Facility has been operated by the Company during the Term hereof. The
training afforded to County employees or designees shall be substantially equivalent to the
training afforded the Company's and Subcontractor's employees in connection with the stazt-
up of the Facility prior to the Acceptance Tests. In addition, the Company shall permit County
supervisory and operating personnel to observe the Company's operation of the Facility for a
period of up to six months prior to expiration or termination of the Service Contract, which
observation activities shall not interfere unreasonably with the Company's performance of the
Contract Services. All costs pertaining to the observation activities of County supervisory and
operating personnel shall be borne by the County.] [DISCUSS WITH R.W. BECK]
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SECTION 11.7. [ELECTRICITY SUPPLY AND CONSUMPTION. (A) Generally.
The County shall have the exclusive right to azrange for the supply of electricity to the Facility,
and to negotiate and establish electric rates with the supplier. The Company shall cooperate
with and assist the CounTy in making such arrangements, and the County shall give
reasonable consideration to any requests and recommendations made by the Company as to
the terms and conditions of electriciTy supply. The Company shall pay all electricity bills and
the County shall reimburse the Company for all electricity costs up to the Guaranteed
Maximum Electricity Utilization as set forth in Section 15.10. The Company shall operate the
Facility in a manner which minimizes, to the maximum extent reasonably practicable in light of
its obligation to provide the Contract Services, chazges for electriciTy use, demand,
transmission and collection which are reimbursable by the County hereunder.
(B) Back-Un Supoly. Appendix _ sets forth the Technical Specifications
relating to the Company's obligation to design and construct, as pazt of the FaciliTy, back-up
electric power production facilities capable of providing continuous electricity sufficient to meet
the electric power demands of the FaciliTy on an indefmite basis in the event of a failure for any
reason by the electric UtiliTy to supply electricity to the Facility. In light of such back-up
electric power capacity of the FaciliTy, utility failure shall be deemed to constitute an
i Uncontrollable Circumstance entitling the Company to price relief, but not performance relief
hereunder, and the Company shall comply with the Performance Guazantees and the other
Contract Standards notwithstanding any utility failure regardless of its extent or duration.
Price relief in such circumstances shall consist of any incremental additional reasonable costs
incurred by the Company in operating and maintaining the back-up electric power production
facilities during the outage, subject to the mitigation requirements set forth in Section 17.2.]
[DISCUS3 WITH RW BECK)
SECTION 11.8. SAFETY AND SECURITY. (A) Safety. The Company shall
maintain the safety of the FaciliTy at a level consistent with the Contract Standards. Without
limiting the foregoing, the Company shall: (1) take all reasonable precautions for the safety of,
and provide all reasonable protection to prevent damage, injury or loss by reason of or related
to the operation of the Facility to, (a) all employees working at the Facility and all other persons
who may be involved with the operation, construction, maintenance, repair and replacement of
the FaciliTy, (b) all visitors to the Facility, (c) all materials and equipment under the care,
custody or control of the Company on the Site, (d) other property constituting part of the
Facility, and (e) County Property; (2) establish and enforce all reasonable safeguards for safety
and protection, including posting danger signs and other warnings against hazards and
promulgating safety regulations; (3) give all notices and comply with all Applicable Laws
relating to the safety of persons or property or their protection from damage, injury or loss; ~
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(4) designate a qualified and responsible employee whose duty shall be the supervision of
'R.? Facility safety, the prevention of fires and accidents and the coordination of such activities as
shall be necessary with federal, State and County officials; (5) operate all equipment in a
manner consistent with the manufacturer's safety recommendations; (6) provide for safe and
orderly vehicular movements; and (7) develop and carry out aSite-specific safety program,
including employee training and periodic inspections, designed to implement the requirements
of this Section.
(B) Security. The Company shall be responsible for the security of the
Facility, and shall maintain suitable fences, gates and locks at the Facility in accordance with
the Design Requirements. The Company shall guard against and be responsible for all damage
or injury to such properties caused by trespass, negligence, vandalism or malicious mischief of
third parties. The Company shall comply with EPA and DOH guidelines regarding security
measures for terrorist threats and activities.
SECTION 11.9. COMPLIANCE WITH APPLICABLE LAW. (A) Compliance
Oblieation. The Company shall perform the Contract Services in accordance with Applicable
Law, and shall cause all Subcontractors to comply with Applicable Law. The Company shall
comply with the terms of all Governmental Approvals and other Applicable Law pertaining to
the Facility, air emissions and odor, and Residue notwithstanding the fact that the Company
~ may not be a permittee or co-permittee with respect to some or all of such Governmental
Approvals. The Company's obligations under this Section shall apply regardless of the extent
to which the County complied with Applicable Law with respect to the Facility prior to the
Construction Commencement Date.
(B) Samplin¢, Testing and Laboratory Work. The Company shall perform
and provide and bear the cost of, all sampling, laboratory testing and analyses, and quality
assurance and quality control procedures and programs required by the Contract Standards.
All testing laboratories shall be certified by the appropriate State agency and EPA, as
applicable, for the applicable test, shall be operated in accordance with Good Industry Practice,
and shall be audited and monitored by the Company for compliance with EPA standazd test
methods. All sampling and test data shall be available for review by, and reported to, the
County in accordance with Section 11.13 and Appendix The Company explicitly assumes
the risk of incorrect sampling, testing and laboratory work and any consequences thereof or
actions taken or corrections needed based thereon, whether such work is performed by itself or
third parties, both as to failures to detect and as to false detections. The Company shall permit
the County, at the County's expense, to perform any testing, sampling or analytical procedure
it deems appropriate, using the Facility or otherwise.
~r..+
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(C) Investigations of Non-Compliance. In connection with any actual or
alleged event of non-compliance with Applicable Law, the Company shall, in addition to any '
other duties which Applicable Law may impose: (1) fully and promptly respond to all inquiries,
investigations, inspections, and examinations undertaken by any Governmental Body;
(2) attend all meetings and heazings required by any Governmental Body; (3) provide all
corrective action plans, reports, submittals and documentation required by any Governmental
Body; (4) in conjunction with the County, communicate in a timely and effective manner with
the general public as to the nature of the event, the impact on the public, and the nature and
timetable for the planned remediation measures; and (5) immediately upon receipt thereof,
provide the County with a true, correct and complete copy of any written notice of violation or
non-compliance with Applicable Law, and true and accurate transcripts of any verbal notice of
non-compliance with Applicable Law, issued or given by any Governmental Body. The
Company shall furnish the County with an immediate written notice describing the occurrence
of any event or the existence of any circumstance which does or may result in any such notice
of violation or non-compliance to the extent the Company has knowledge of any such event or
circumstance, and of any Legal Proceeding alleging such non-compliance.
(D) Fines. Penalties and Remediation. Except to the extent excused by
Uncontrollable Circumstances or County Fault, in the event that the Company or any
C Subcontractor fails at any time to comply with Applicable Law with respect to the Facility, air
emissions, odor, Residue or other environmental or operating condition, the Company shall,
without limiting any other remedy available to the County upon such an occurrence and
notwithstanding any other provision of this Service Contract: (1) immediately correct such
failure and resume compliance with Applicable Law; (2) bear all Loss-and-Expense of the
Company and the County resulting therefrom; (3) pay or reimburse the County for any
resulting damages, fines, assessments, levies, impositions, penalties or other charges; (4) make
all Capital Modifications and changes in operating and management practices which are
necessary to assure that the failure of compliance with Applicable Law will not recur; and
(5) comply with any corrective action plan filed with or mandated by any Governmental Body in
order to remedy a failure of the Company to comply with Applicable Law.
(E) No Nuisance Covenant. The Company shall keep the Facility neat, clean
and litter-free at all times, ensure that the operation of the Facility does not create any odor,
litter, noise, fugitive dust, vector, excessive light or other adverse environmental effects
constituting, with respect to each of the foregoing, a nuisance condition under Applicable Law.
Should any such nuisance condition occur which is not caused by Uncontrollable
Circumstances, the Company shall immediately remedy the condition, pay any fines or M+~.
i
penalties relating thereto, make all Capital Modifications and changes in operating and
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p management practices necessary to prevent a recurrence of the nuisance condition, and
indemnify and hold harmless the County from any Loss-and-Expense relating thereto in the
manner provided in Section 17.3.
SECTION 11.10. OPERATING GOVERNMENTAL APPROVALS.
(A) Aunlications and Submittals. Except as otherwise expressly set forth in Appendix the
Company shall make all filings, applications and reports necessary to obtain and maintain all
Governmental Approvals required to be made, obtained or maintained by or in the name of the
Company or the County under Applicable Law in order to operate the Facility. With respect to
Governmental Approvals which are required to be obtained in the name of the County, the
Company shall: (1) prepare the application and develop and furnish all necessary supporting
material; (2) supply all data and information which may be required; (3) familiarize itself with
the terms and conditions of such Governmental Approvals; (4) attend all required meetings and
hearings; and (5) take all other action necessary in obtaining, maintaining, renewing, extending
and complying with the terms of such Governmental Approvals. All permit and filing fees
required in order to obtain and maintain Governmental Approvals for the Contract Services
shall be paid by the Company, except otherwise expressly set forth in Appendix regardless
of the identity of the applicant, except Governmental Approvals required in connection with an
Uncontrollable Circumstance. The Company shall agree to be named as a co-permittee on any
(w.,r Governmental Approval if so required by the issuing Governmental Body or the County. The
Company shall not disadvantage the County in any application, data submittal or other
communication with any Governmental Body regarding Governmental Approvals. The fmal
terms and conditions of any Governmental Approval shall be subject to the County's approval,
exercisable in its sole discretion.
(B) Data and Information. All data, information and action required to be
supplied or taken in connection with the Governmental Approvals required for the Contract
Services shall be supplied and taken on a timely basis considering the requirements of
Applicable Law and the responsibilities of the County as the legal and beneficial owner of the
Facility and primary permittee. The data and information supplied by the Company to the
County and all regulatory agencies in connection therewith shall be correct and complete in all
material respects, and shall be submitted in draft form to the County sufficiently in advance to
allow full and meaningful review and comment by the County. The Company shall be
responsible for any schedule and cost consequences which may result from the submission of
materially incorrect or incomplete information. The County reserves the right to reject, modify,
alter, amend, delete or supplement any information supplied by the Company pursuant to this
- Section.
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(C) Non-Compliance and Enforcement. The Company shall report to the
County, immediately upon obtaining knowledge thereof, all violations of the terms and '
t
conditions of any Governmental Approval or Applicable Law pertaining to the Facility. The
County shall have the right independently to enforce compliance with this Contract regarding
the requirements of any Governmental Approval regardless of whether a concurrent or different
regulatory enforcement action has been undertaken by any other Governmental Body. The
failure of the Company to comply with any Governmental Approval shall constitute a breach of
this Service Contract as well as an event of non-compliance with the Governmental Approval.
(D) Reports to Governmental Bodies. The Company shall prepare all periodic
and annual reports, make all information submittals and provide all notices to all
Governmental Bodies required by all Governmental Approvals and under Applicable Law with
respect to the Facility, including sampling and testing results and monthly discharge
monitoring reports. Such reports shall contain all information required by the Governmental
Body, and may be identical to comparable reports prepazed for the County, if such aze
acceptable to the Governmental Body. The Company first shall provide the County with copies
of such regulatory reports for review, comment and signature, as applicable, at least ten days
before their filing with the Governmental Body and, in any case, within 15 days after the end of
C each month, and then with the Governmental Body.
(E) Potential Reeulatory Change. The Company shall keep the County
regularly advised as to potential changes in regulatory requirements affecting the solid waste
reduction industry and the Facility, and provide recommended responses to such potential
changes so as to mitigate any possible adverse economic impact on the County should a
Change in Law actually occur.
SECTION 11.11. COUNTY ACCESS TO FACILITY. The County and any
regulatory body that has jurisdiction over the County and the Operation Services shall have the
right at any time, on a 24-hour per day, 365-day per year basis, to visit and inspect the Facility
and observe the Company's performance of the Contract Services. The Company shall permit
and facilitate access to the Facility for such purposes by County personnel and by agents and
contractors designated by the County. Keys or passwords, as applicable, for the facilities or
structures comprising the Facility shall be provided to the County's Contract Representative by
the Company in accordance with the Company's physical security plan and key control
program. All visitors shall comply with the Company's reasonable operating and safety
procedures and rules, and shall not interfere with the Company's operations of the Facility.
When visiting any portion of the Facility that is staffed by the Company at the time of the visit,
all County employees, agents and contractors shall announce themselves to the staff and f~
Company employees may elect to accompany any County employees, agents and contractors
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- during the visit. The parties agree that the County shall have immediate access to the Facility,
w„„,, and no Company rule or procedure shall impede, impair or delay such access. The Company
shall maintain a visitors' log during the Term of this Service Contract and shall require that all
visitors to the Facility (other than visitors on organized tours or Company personnel) sign in
and sign out in the visitors' log.
SECTION 11.12. ASSET AND FINANCIAL RECORDS. (A) FacIlity Records.
The Company, on and after the Acceptance Date, shall establish and maintain a computerized
information system with respect to the Facility for operations and maintenance data and
process control, including the information necessary to verify calculations made pursuant to
this Service Contract and demonstrate compliance with the Contract Standards. The Company
shall promptly provide the County, upon reasonable request, with copies of all operations and
maintenance data and other information kept by the Company in its performance of the
Contract Services.
(B) Availability of Facility Records to County. The Company shall make
available to the County all operations, maintenance, performance, Residue management,
process control and similar records and data as are available to the Company's Facility
Manager. The County shall have real time, continuous computer access to such records and
( data, and hard copy reproduction capability, through information systems installed in
accordance with the Design Requirements.
(C) Record Documents. The Company shall maintain at the Facility and
make available to the County upon request for review and copying: (1) all designs, drawings,
blueprints, plans, specifications and "as-built" or record drawings and documents pertaining to
the Facility copies of which were delivered to the County by the Company pursuant to
Appendix and (2) similar documents relating to any Capital Modifications. The Company
shall keep current all such records to show any changes to the Facility made by the Company
in the performance of the Contract Services.
(D) Financial Records. The Company shall prepare and maintain proper,
accurate, complete and current fmancial books, records and accounts, in accordance with
generally accepted accounting principles, with respect to all aspects of the Facility and
Contract Services, including direct and indirect personnel expenses, Subcontractor costs, the
costs of material, equipment and supplies, maintenance, repair and replacement items,
operating expenses and overhead. These financial records shall be in form and substance
sufficient to support all financial reporting, including Cast Substantiation, required hereunder.
. In the event the Company fails to prepare or maintain any books, records or accounts as
,W required under this Section, the Company shall not be entitled to any requested payments or
adjustment for which Cost Substantiation was required hereunder to the extent such failure
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prevented Cost Substantiation. The Company shall keep the relevant portions of the books,
records and accounts maintained with respect to each Contract Year until at least the seventh ( ~
anniversary of the last day of each such Contract Year. For those circumstances that require
Cost Substantiation under Section 19.6, the Company shall make such books and records
available to the County for inspection, audit and copying upon reasonable notice during
business hours to the extent necessary to allow the County to determine to its reasonable
satisfaction the accuracy, completeness, currency and propriety of any charge or request for
payment hereunder. The Company shall not be required to provide the County any income
statement showing profit or loss, but recognizes that profit and loss information may become
discernible to the County through the Cost Substantiation process. The provisions of this
Section shall survive the termination of this Service Contract.
(E) IAnnual Audited Report Required Under the Act. Notwithstanding any
other provision hereof, in accordance with Section 103D-317 of the Act, the Company shall
prepare an annual audited report accounting for the income received and expenses to operate
the Facility, and shall make that report available to the County and, for a cost not to exceed
the cost of reproduction of the report, to any member of the general public.] [DISCUSS WITH
BOBBY JEAN/BILL T.]
(F) Company Financial Reports. [Unless the Company is organized as a sole
purpose company (dedicated to this project),] the Company shall furnish the County, within 90
days after the end of each Contract Year, consolidating balance sheets and income statements
for the Company attached to the audited year and financial statements reported upon by the
Company's independent public accountant. If applicable, the Company shall also furnish the
County with copies of the quarterly and annual reports and other filings of the Company filed
with the Securities and Exchange Commission.
(G) Inspection. Audit and Adiustment. The County shall have the right to
perform or commission an inspection or independent audit of the financial information
required to be kept under this Section, subject to possible reimbursement as provided in this
Section. If an inspection or audit reveals that the Company has overstated the Service Fee,
then the Company shall, at the election of the County, either immediately reimburse to the
County or offset against future Service Fee payments, as a Service Fee adjustment, the
overstated amount, in addition to interest, from the time such amount was initially overpaid
until reimbursed or credited to the County, at the Prime Rate. If an inspection or audit
contemplated by this Section discloses an overpayment of the Service Fee to the Company of
1% or more of the total amount that should have been properly paid by the County during the
period audited, then the Company shall, in addition to the reimbursement or credit of such U~
overpaid amount, with interest, reimburse the County for any and all Fees and Costs incurred
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in connection with the inspection or audit. The foregoing remedies shall be in addition to any
°v other remedies the County may have, including remedies for an Event of Default by the
Company.
SECTION 11.13. PERIODIC REPORTS. (A) Monthly Operations. The
Company shall provide the County with monthly operations reports no later than 15 days after
the end of each Billing Period in a form approved by the County, in accordance with the
provisions set forth in Appendix [NOTE: DISCUSS WITH RW BECK LIST OF REQUIRED
REPORTS TO BE IDENTIFIED IN APPENDIX
(B) Annual Operations and Maintenance Reports. The Company shall
furnish the County, within 30 days after the end of each Contract Yeaz, an annual report in
accordance with the provisions set forth in Appendix including a summary of the
information contained in the monthly operations reports. The Company shall also perform and
report to the County, as part of its annual operations report, the results of a comprehensive
performance evaluation which reviews and analyzes the administrative, operational and
maintenance practices employed in the management of the Facility.
(C) Default Reports. The Company shall provide to the County, immediately
after the receipt thereof, copies of any written notice of a material default, breach or non
compliance received or sent under or in connection with any material contract entered into by
the Company in connection with the Contract Services.
(D) Permit Communications and Reports. The Company shall provide to the
County copies of all communications and reports furnished to any Governmental Body
pursuant to this Section simultaneously with their submittal to the Governmental Body.
(E) Periodic Audits. The County, ar the Independent Engineer selected by
the County, shall have the right, but not the obligation, to conduct periodic audits and annual
inspections of the Facility to assess whether (1) the Company has performed all necessary
maintenance, repairs and replacements (including major repairs and replacements), and (2) the
Facility is operating in compliance with Applicable Law and the performance standards
specified herein. Such inspections and audits may include, but shall not be limited to,
(1) walk-through inspections of the Facility, (2) useful life engineering audits of machinery,
equipment, vehicles, and structures constituting the Facility, and (3) actual performance tests
on equipment, processes, and the Facility.
SECTION 11.14. EMERGENCIES. (A) Emergency Plan. Upon Substantial
Completion, the Company shall have provided the County with a plan of action to be
implemented in the event of an emergency, including £rre, weather, environmental, health,
`o...
safety and other potential emergency conditions. The plan shall: (1) provide for appropriate
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notifications to the County and all other Governmental Bodies having jurisdiction and for _
measures which facilitate coordinated emergency response actions by the County and all such
other appropriate Governmental Bodies; (2) specifically include spill prevention and response
measures; and (3) assure the timely availability of all personnel required to respond to any
emergency (no later than two hours during nights, weekends or holidays). The emergency plan
shall be reviewed by the pazties annually as part of the review of the annual operations report,
and updated when necessary.
(B) Emereencv Action. Notwithstanding any requirement of this Service
Contract requiring County approval or consent to reports or submittals, if at any time the
Company determines in good faith that an emergency situation exists such that action must be
taken to protect the safety of the public or its employees, to protect the safety or integrity of the
Facility, or to mitigate the immediate consequences of an emergency event, then the Company
shall take all such action it deems in good faith to be reasonable and appropriate under the
circumstances. As promptly thereafter as is reasonable, the Company shall notify the County
of the event at an emergency phone number from a list supplied by the County, and the
Company's response thereto. The cost of the Company's response measures shall be borne by
the Company except to the extent the emergency event was caused by an Uncontrollable
Circumstance, in which case the County shall bear the cost.
i.
` SECTION 11.15. CONTRACT ADMINISTRATION. (A) Administrative
Communications. The parties recognize that a vaziety of contract administrative matters will
routinely arise throughout the Term of this Service Contract. These matters will by their
nature involve requests, notices, questions, assertions, responses, objections, reports, claims,
and other communications made personally, in meetings by phone, by mail and by electronic
and computer communications. The purpose of this Section is to set forth a process by which
the resolution of the matters at issue in such communications, once resolution is reached, can
be formally reflected in the common records of the parties so as to permit the orderly and
effective administration of this Service Contract.
(B) Contract Administration Memoranda. The principal formal tool for the
administration of matters arising under this Service Contract between the pazties shall be a
"Contract Administration Memorandum". A Contract Administration Memorandum shall be
prepared, once all preliminary communications have been concluded, to evidence the
resolution reached by the County and the Company as to matters of interpretation and
application arising during the course of the performance of their obligations hereunder. Such
matters may include, for example: (1) claims for an increase or decrease of the Service Fee or
other demands for compensation or performance based on any provision of this Service ~
Contract; (2) issues as to the meaning, interpretation, application or calculation to be made
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under any provision hereof; (3) the specific details and terms of any Change Order; (4) notices,
~ waivers, releases, satisfactions, confirmations, further assurances and approvals given
hereunder; and (5) other similar contract administration matters.
(C) Procedures. Either party may request the execution of a Contract
Administration Memorandum. When resolution of the matter is reached, a Contract
Administration Memorandum shall be prepazed by or at the direction of the County reflecting
the resolution. The Contract Administration Memorandum shall be numbered, dated, signed
by the Contract Representative of each party, and co-signed by a Senior Supervisor for the
Company and by the [County's Director of Finance]. [DISCUSS WITH BILL T. AND BARBARA
B.] The County and the Company each shall maintain a pazallel, identical file of all Contract
Administration Memoranda, sepazate and distinct from all other documents relating to the
administration and performance of this Service Contract.
(D) Effect. The executed Contract Administration Memoranda shall serve to
guide the ongoing interpretation and performance of this Service Contract. Any material
change, alteration, revision- or modification of this Service Contract, however, shall be
effectuated only through a formal Service Contract amendment authorized, approved or ratified
by resolution of the governing body of the County and properly authorized by the Company.
SECTION 11.16. COST REDUCTION AND SERVICE IMPROVEMENT. In the
event either party offers the other pazty any idea, approach or concept for lowering the
Company's cost, reducing the County's Service Fee or total costs, or improving the Company's
service, the other party shall reasonably consider and explore the development and
implementation of the concept. Neither party shall be obligated to negotiate or to agree to
amend this Service Contract to effectuate any such idea, approach or concept except in its sole
discretion and upon terms and conditions acceptable to it.
w.,,
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ARTICLE XII
1"r PERFORMANCE
SECTION 12.1. FACILITY PERFORMANCE GENERALLY. (A) Reliance. The
Company acknowledges that the County, in reducing solid waste, is providing an essential
public service, and in complying with its obligations under Applicable Law is relying on the
performance by the Company of its obligations hereunder.
(B) Curtailments and Shutdowns. If the operation of the Facility for any
reason is temporarily reduced, curtailed or shut down so that the Company is unable to receive
and reduce any quantity of solid waste in accordance herewith, the Company shall immediately
advise the County as to the nature and probable duration thereof and the expected effect on
the operation of the FaciliTy, and take all steps necessary to remedy the curtailment or
shutdown and to resume full performance hereunder as soon as possible.
(C) Limitations on Company Riehts. The Company shall not accept Solid
Waste other than Solid Waste delivered to the FaciliTy by or on behalf of the County and shall
not use the Facility for any purpose other than the purposes contemplated hereby. The
Company shall not impose a fee or charge on any third pazty for the processing of Solid Waste
( - or any other waste. The only compensation payable by the County to the Company for
providing the Operation Services shall be the Service Fee payable by the County hereunder.
SECTION 12.2. ANNUAL FACILITY THROUGHPUT GUARANTEE. The
Company shall operate the Facility at all times of operation subsequent to start-up and
Acceptance Testing so that it continuously meets the Annual Facility Throughput Guarantee in
accordance with Section 10.2.
SECTION 12.3. ANNUAL ELECTRICITY PRODUCTION GUARANTEE. The
Company shall operate the Facility at all times of operation subsequent to start-up and
Acceptance Testing so that it continuously meets the Annual Electricity Production Guazantee.
SECTION 12.4. ENVIRONMENTAL GUARANTEE. (A) General. The
Company shall operate the Facility at all times of operation subsequent to stazt-up and
Acceptance Testing so that it continuously meets the Environmental Guazantee,
notwithstanding periodic variations in the composition of Processible Waste which is
combusted by the Facility. In the event the Company fails to comply with the Environmental
Guazantee, it shall be obligated to perform the Environmental Performance Obligations set
forth in subsection 12.4(B) hereof. The County shall be entitled to enforce the Environmental
Performance Obligations as provided herein notwithstanding the provisional or fmal
Acceptance of the Facility at the Minimum Acceptance Standard for environmental
performance.
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(B) Companv Non-Compliance with Environmental Guarantee. If at any time
subsequent to the start-up and Acceptance Testing of the Facility, the Company fails to comply j
with the Environmental Guarantee for any reason other than Uncontrollable Circumstances or
County Fault, the Company shall (except as provided in subsection 12.4(D) hereof), at its own
cost and expense and without relief under any other Performance Guarantee: promptly notify
the County of any such non-compliance; provide the County promptly with copies of any
notices sent to or received from the DOH or USEPA with respect to any permit violations; pay
any resulting damages, £mes, assessments or other charges resulting therefrom; and take any
action (including without limitation making all repairs, replacements, Capital Modifications or
operating changes) necessazy in order to (1) comply with the Environmental Guazantee and
continue or resume performance hereunder, (2) eliminate the cause of preventable recurrences
of non-compliance with the Environmental Guazantee, and (3) avoid or prevent substantial,
repeated occurrences of non-compliance with the Environmental Guarantee. Time shall be of
the essence in taking all such corrective action. The payment and performance obligations
described in this subsection (C) shall constitute the "Environmental Performance Obligations."
The Company shall continuously operate the equipment installed in the Facility pursuant to
the Design Requirements for the purpose of controlling emissions and measuring
environmental emissions on a continuous, computerized basis, and shall keep complete and
accurate records of such operations and measurements. The records so maintained shall be i^'"",e
used to determine-compliance by the Company with the Environmental Guazantee.
(C) Enhanced Standards. [DISCUSS WITH R.W. BECK]
(D) [Stazt-up Operations and Shutdown Operations Relief. Notwithstanding
the provisions of Sections 12.4 and 16.2 hereof, the failure of the Company to comply with its
Environmental Performance Obligations hereunder with respect to any non-compliance with
the Environmental Guarantee during periods of Start-up Operations or Shutdown Operations
shall not constitute an Event of Default by the Company hereunder, and shall entitle the
Company to reimbursement by the County of one half of any fines, assessments and chazges
imposed as a result of any such non-compliance, so long as, (1) during steady-state operations
preceding the applicable period of Start-up Operations or Shutdown Operations, the Company
met its Environmental Guarantee with respect to those elements of the Environmental
Guarantee which were not complied with during the period of Stazt-up Operations or
Shutdown Operations, and (2) during the applicable period of Stazt-up Operations or
Shutdown Operations, the Company operated the Facilfty so as to minimize non-compliance
with the Environmental Guazantee during such period; provided, however, that the Company
shall not be entitled to any such reimbursement by the County if any non-compliance with the
Environmental Guarantee occurs during any period of Start-up Operations or Shutdown
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~.M- Operations which operations are caused by equipment malfunction.] [DISCUSS WITH R.W.
rn,r BECK]
(E) [Environmental Guazantee Permits and Uncontrollable Circumstances.
The parties acknowledge that the Environmental Guarantee has been established prior to the
negotiation and issuance of permits, licenses and approvals by the appropriate regulatory
agencies, and that the Environmental Guazantee shall be complied with irrespective of the
terms and conditions contained in the required licenses, permits and approvals. In the event
any appropriate regulatory agency imposes conditions to the issuance of any such license,
permit or approval which are more stringent than those constituting the Environmental
Guarantee, and such conditions of greater stringency cannot be complied with without
additional expense or delay, then the imposition of such conditions shall be considered to be a
[Cost Shared Uncontrollable Circumstance]. If the Company seeks and the County grants relief
from the Environmental Guarantee in any respect in connection with the negotiation of permit
terms and conditions with appropriate regulatory agencies, the relief afforded by the County
shall be taken into account in the determination of any performance adjustments to be made
hereunder on account of such an Uncontrollable Circumstance.] [DISCUSS WITH R.W. BECK]
SECTION 12.5. RESIDUE GUARANTEE. (A) General. The Company shall
( operate the Facility at all times of commercial operation subsequent to shakedown and
~ Acceptance Testing so that it continuously meets the Residue Guarantee, notwithstanding
periodic variations in the composition of Processible Waste which is combusted by the Facility.
In the event the Company fails to comply with the Residue Guarantee, it shall be obligated to
perform the obligations set forth in subsections 12.5(B) and (C) hereof.
(B) Residue Performance Liauidated Damages. The Company shall pay the
incremental costs and expenses incurred by the County in any Billing Period in connection
with payment of any applicable fines and the disposal of Residue which costs and expenses
would not otherwise have been incurred, to the extent that (1) such incremental costs and
expenses aze incurred as a result of a failure of the Residue to meet the Residue Guazantee
(including, without limitation, the costs of transporting and disposing of any additional
quantities of Residue which would not have been produced had the Residue Guarantee been
achieved) which failure is due to any reason other than Uncontrollable Circumstances or
County Fault, or (2) any Residue constitutes Hazardous Material as a result of the processing
by the Company of Hazardous Material which the Company discovered prior to processing or
did not discover due to its gross negligence or willful misconduct or its unexcused failure to
observe the waste screening protocol set forth in Appendix _ hereto ("Residue Performance
Liquidated Damages°). In determining such incremental costs, the disposal costs of the
``..r County Landfill shall be calculated at 200 percent of the then applicable tipping fee.
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(C) (Procedures for Determinine Compliance with Residue Guarantee. The
~ parties hereto agree that if the County determines at any time that the Company has failed or
may have failed to comply with the Residue Guarantee, the County shall promptly notify the
Company of such determination. If the Company concurs in such determination or fails to
respond to the County within seven days from receipt of such notice, the Company shall be
deemed to have concurred in the Residue Performance Liquidated Damages payable with
respect thereto. If the Company does not so concur, it shall within such seven-day period
either provide the County and the County Engineer with Facility performance records
indicating compliance with the Facility Residue Guarantee or notify the County and the County
Engineer that it wishes to test the subject Facility' s Residue. Such test (the "Putrescible
Matter, Unburned Carbon and Residue Moisture Test°), shall be conducted in accordance with
the procedures established with respect thereto described in Appendix _ hereto [DISCUSS
WITH RW BECK], and the cost thereof shall be borne by the Company if the Residue does not
meet the Residue Guarantee upon testing for reasons other than Uncontrollable Circumstances
or County Fault. If the test indicates compliance with the Residue Guarantee or if the
Company fails to meet the Residue Guarantee upon testing due to Uncontrollable
Circumstances or County Fault, the, costs of the respective test shall be borne by the County.
The Company shall, within 15 days of completion of the Putrescible Matter, Unburned Carbon
and Residue Moisture Test, furnish the County and the County Engineer with a certified
written report describing the results of such test, and the County shall determine, within five "w"
days of its receipt of such report, whether it concurs in the results of such test. If the County
indicates that it concurs with the Company's conclusion, based either on such performance
records or test, then the County shall be deemed to have approved and accepted the
Company's certification. If the County indicates that it does not concur with such certification
and the County and the Company cannot agree within ten days thereafter as to whether the
Company's results were correct, either party may elect to refer the dispute to the Independent
Engineer for non-binding mediation in accordance with Section 16.12 hereof.]
SECTION 12.6. ENVIRONMENTAL TESTING. The County shall have the
right, at any time, to re-test the Facility or to require the Company to re-test the Facility for
compliance with the Environmental Guarantee and to require the Company to test the Residue
for compliance with the Residue Guarantee. Any such test shall be conducted in accordance
with the procedures established hereunder for the conduct of the Acceptance Tests and if such
test demonstrates that the Facility is operating in accordance with the Environmental
Guarantee or the Residue Guarantee or both, then the costs incurred by the Company in
performing the test showing such compliance shall be paid to the Company by the County as a
Facility Pass Through Cost. If such test shows that the Facility is operating out of compliance
with either the Environmental Guarantee or the Residue Guarantee or both, then the costs of
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the test showing the inability to comply with the applicable guazantee shall be borne by the
Company unless such failure to comply is a result of an Uncontrollable Circumstance, in which
case the County shall pay to the Company the costs it incurred in performing the test as a
Facility Pass Through Cost. Testing shall be conducted in a manner which minimizes
interference with the Company's performance of its obligations under this Service Contract,
and the Performance Guarantees shall be adjusted appropriately to reflect any such
interference unless such testing shows non-compliance on the pazt of the Company which is
not excused by Uncontrollable Circumstances.
SECTION 12.7. COUNTY REMEDIES FOR NON-COMPLIANCE WITH
PERFORMANCE GUARANTEES. (A) Remedies. If the Company fails to comply with any
Performance Guarantee and is not excused from performance as provided in Section 17.2, the
Company shall, without relief under any other Performance Guarantee, and in addition to any
other remedy provided herein, allowed by Applicable Law or required by a Governmental Body:
(1) promptly notify the County within 24 hours of the Company's having knowledge of any such
non-compliance; (2) promptly provide the County within 24 hours with copies of any notices
sent to or received from the EPA, the DOH or any other Governmental Body having regulatory
jurisdiction with respect to any violations of Applicable Law; (3) pay liquidated damages or have
( its Service Fee reduced in the amounts provided for herein, or if no liquidated damages aze
`.y,,,,. provided for, reimburse the County for its Cost Substantiated third pazty costs incurred as a
result of such non-compliance; (4) pay any other resulting damages, fines (discretionary or
mandatory in nature), levies, assessments, impositions, penalties or other charges resulting
therefrom; (5) take any action (including, without limitation, making all repairs and
replacements and operating and management practices changes) necessary in order to comply
with such Performance Guarantee, continue or resume performance hereunder and eliminate
the cause of, and avoid or prevent the recurrence of non-compliance with such Performance
Guarantee; (6) promptly prepaze all public notifications required by Applicable Law, and
submit such notifications for publication; and (7) assist the County with all public relations
matters necessary to adequately address any public concern caused by such non-compliance,
including but not limited to, prepazation of press releases, attendance at press conferences,
and participation in public information sessions and meetings.
(B) Performance Testin¢. The County, at any 6me, may require a
performance test to be conducted by the Company, at the County's cost and expense, to
demonstrate that the Facility is operating in compliance with Applicable Law and the
Performance Guarantees. The performance tests shall be conducted in the manner provided in
Appendix If the test is not successfully passed, the Company shall reimburse the County
and, at its own cost and expense, make all necessary repairs and replacements, including
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major repairs and replacements, and the test shall be re-performed at the Company's sole cost.
(
The County Engineer will conduct or verify each test and inspection.
SECTION 12.8. RESIDUE REMOVAL, TRANSPORT AND DISPOSAL;
PAYMENT. The Company shall store Residue at the Facility in an enclosed building in
accordance with the Design Requirements. The Company shall transport Residue to the
Designated Residue Disposal Site designated by the County in safe and environmentally sound
manner and in accordance with Applicable Law, and deposit Residue at the Designated
Residue Disposal Site or transfer Residue to the operator of the Designated Residue Disposal
Site for deposit therein by such operator. The costs of transporting Residue for disposal at the
County Landfill shall be borne by the Company. [Cost of disposal of Residue shall be borne by
the [County]].
SECTION 12.9. ACCEPTABLE RESIDUE DISPOSAL SITE AND DESIGNATED
DISPOSAL SITE. (A) Acceptable Residue Disposal Site. No Residue shall be disposed of except
at an Acceptable Residue Disposal Site. An "Acceptable Residue Disposal Site", as used herein,
means either the County Landfill, a sanitary landfill, land application site or other waste
disposal or management facility, which, as applicable, (1) is operated in accordance with good
engineering practice, (2) is constructed of a single composite liner for monofilled Residue, or a
double liner (one liner of which is a composite liner) for disposal of mixed Residue and
municipal solid waste, (3) is located in the United States, (4) does not appear on any federal or
State list of sites, such as but not limited to the National Priority List or the CERCLIS list
under CERCLA, maintained for the purpose of designating landfills which are reasonably
expected to require remediation on account of the release or threat of release of Hazardous
Material, (5) is not under any executive or judicial order barring receipt of Residue from any
region which includes the County, and (8) does not otherwise expose the County or Company
to any material risk as a "generator° or "transporter' of waste under CERCLA or any similar
law, or to any material risk under product liability, tort, environmental impairment or any
similar law. "Acceptable Residue Disposal Site" also includes any means, method or process
for the re-use or recycling of Residue employed consistently with Applicable Law. Any
Acceptable Residue Disposal Site shall be selected by the County and shall not require the
approval of the Company so long as the site conforms with each of the criteria set forth in this
subsection. If the Company objects to the Designated Residue Disposal Site on the ground
that the criteria of this subsection are not met, the County shall provide evidence satisfactory
to the Company prior to the commencement of any shipment of Residue (and from time to time
requested thereafter) to such Acceptable Residue Disposal Site that the intended disposal
location conforms with the requirements of this subsection.
i'"'e
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(B) Required Disposal and County Approval• Designated Residue Disposal
Site. No Residue shall be disposed of except at a Designated Residue Disposal Site. A
°Designated Residue Disposal Site" shall be an Acceptable Residue Disposal Site that is
designated by the County.
(C) Chances in Designated Residue Disposal Site. The Company shall have
the right from time to time to change a Designated Residue Disposal Site and the Service Fee
will be adjusted to account for any additional or reduced costs to the Company as a result of
such change. The Company shall make a full information submittal to the County regarding
any such proposed change, and fully respond to all due diligence inquiries the County chooses
to make in the exercise of its right of approval.
SECTION 12.10. TESTING . Testing. The Company shall conduct all tests of
Residue, air emissions and odor in accordance with the Contract Standards. The tests shall be
made at State certified laboratories to the extent required by the Contract Standards and shall
be conducted at the Company's sole cost and expense, except to the extent such tests are
required by a Change in Law or any other Uncontrollable Circumstance and are not required
under the terms hereof as of the Contract Date. All sampling and testing for contract
performance and for the application of the Service Fee shall be conducted at the testing
/ locations identified in the testing and sampling standards set forth in Appendices _ and
'ti?
SECTION 12.11. ACCIDENTS DURING TRANSPORT. The Company shall give
an operating notice to the County and all appropriate Governmental Bodies immediately upon
the occurrence of any accident involving transport of any Solid Waste (including Residue), and
shall commence remedial action pursuant to its contingency plan in accordance with
Applicable Law and the Operating Protocol. In the event of any such accident, the Company
shall pay any resulting fines, assessments, penalties or damages resulting therefrom.
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,a.... ARTICLE XIII
MAINTENANCE, REPAIR AND REPLACEMENT
SECTION 13.1. MAINTENANCE REPAIR AND REPLACEMENT GENERALLY.
(A) Ordinarv Maintenance. The Company shall perform all normal and ordinary maintenance
of the machinery, equipment structures, improvements and all other property constituting the
Facility, shall keep the Facility in good working order, condition and repair, in a neat and
orderly condition and in accordance with the Contract Standazds, and shall maintain the
aesthetic quality of the Facility as originally constructed and in accordance with the Design
Requirements. The Company shall provide or make provisions for all labor, materials,
supplies, equipment, spare parts, Consumables and services which aze necessary for the
normal and ordinary maintenance of the Facility and shall conduct predictive, preventive and
corrective maintenance of the Facility as required by the Contract Standazds. The Company
shall keep maintenance logs in accordance with the Maintenance, Repair and Replacement
Plan set forth in Appendix
(B) Repair and Maintenance of Site Grounds. The Company, in accordance
with the Contract Standazds, shall keep the grounds of the Site in a neat and orderly condition
(including the cleanup of litter and debris on a daily basis or more frequently as required). The
Company shall also maintain and repair all Facility fencing and signage. In addition, the
v......
Company shall provide lawn mowing, leaf raking, and brush cutting services for the Site.
(C) Maior Maintenance Repair and Replacements by the Company. The
Company shall perform all major maintenance, repairs and replacement of the machinery,
equipment, structures, improvements and all other property constituting the Facility during
the Term of this Service Contract required under the Contract Standards, including all
maintenance, repair and replacement which may be characterized as "major" or °capital" in
nature. The County's approval for any such maintenance, repair or replacement shall not be
required unless it constitutes a Capital Modification in which event the County shall have the
approval rights set forth in Article XIV. The obligations of the Company under this Article are
intended to assure that the Facility is fully, properly and regulazly maintained, repaired and
replaced in order to preserve its long-term reliability, durability and efficiency, and that in any
event the Facility is returned to the County at the end of the Term in a condition which does
not require the County to undertake a significant overhaul or immediate replacements in order
to continue to provide reasonably priced and efficient solid waste reduction services. The
Company shall bear the cost and expense of all maintenance, repairs and replacements
required under this Article, including the cost and expense of any maintenance, repair or
replacement that may constitute a Capital Modification, unless otherwise provided in
Article XIV.
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~ SECTION 13.2. FACILITIES EVALUATIONS. (A) Initial and Final Valuation of
Vehicles. Rolline Stock, Spare Parts and Consumables. The Company shall, within 180 days
following the Acceptance Date, prepaze an itemized inventory and valuation of all vehicles,
rolling stock, spare parts and Consumables having operational utility and present at the
Facility as of the Acceptance Date. In like manner, prior to the Termination Date, the
Company shall prepaze an itemized inventory and valuation of all vehicles, rolling stock, spare
parts and Consumables in stock at the Facility and having operational utility at the Facility
which are to be transferred to the County on the Termination Date. The final valuation
amount shall be compazed to the initial valuation amount, as adjusted by the CPI Adjustment
Factor. The amount of any valuation shortfall or excess shall be paid by the Company to the
County or by the County to the Company as appropriate, on or before the Termination Date.
(B) Baseline Facilitv Record. Concurrently with the inventory and valuation
conducted pursuant to subsection (A) of this Section, the Company shall photograph and
prepare an itemized inventory of all property constituting the Facility, including records of
assets originally installed, manufacturer, identification number and original cost data. The
Baseline Facility Record shall reflect, based on the Fixed Design/Build Price and the Design
Requirements, the condition, functionality, value and useful life of the Facility as originally
constructed by the Company hereunder. The purpose of the Baseline Facility Record shall be u~1,
to establish an informational baseline for determining compliance by the Company with its
maintenance, repair and replacement obligations under this Article.
(C) Final Evaluation of the Facilitv. Not later than six months prior to the
Termination Date resulting from the expiration of this Service Contract or concurrently with
the Termination Date resulting from an early termination of this Service Contract, the
Company shall conduct a final evaluation of the Facility in accordance with the protocol
established in Appendix _ and shall utilize standard utility property evaluation methods. In
connection with the final asset evaluation, the Company shall furnish the County with the
Facility Registry prepared pursuant to Appendix _ and all data base information developed in
connection with the implementation of the Company's computerized maintenance management
system pursuant to Section 13.4. The evaluation of the Facility Structures shall determine and
establish the physical condition of the Facility Structures. The evaluation of the Facility
Equipment shall determine and establish the weighted average useful life of the Facility
Equipment as of the date of evaluation (expressed as a single number of years, carried to one
decimal place), taking into account the performance capability and value of each piece of
Facility Equipment. The fmal evaluation shall exclude the value of any Capital Modifications to
the extent paid for by the County, direcfly or indirectly, other than those made on account of
Uncontrollable Circumstances. ~.re'
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County of Hawaii Solid Waste Reduction Facility Article XIII -Maintenance, Repair and
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(D) Required Condition of Facility Structures Upon Return to the County.
The Facility Structures (including the Reload Building) shall be returned to the County in good
condition, working order and repair as when new, with ordinary weaz and tear excepted as
determined in light of the Company's maintenance, repair and replacement obligations under
Section 13.1. Concrete with reactive aggregate shall- be replaced. [DISCUSS WITH RW BECK
WHETHER THERE SHOULD BE A MORE SUBJECTIVE STANDARD FOR THE TIPPING
FLOOR CONDITION)
(E) Required Condition of Facility Equipment Upon Return to the County.
The Facility Equipment shall be returned to the County in a condition and state of repair such
that, in the aggregate, the weighted average useful life of the Facility Equipment at the end of
the Term is equal to or greater than five years. In the event the final audit establishes a
maintenance, repair and replacement weighted average useful life deficiency, the Company
shall, at the election of the County, either remedy the deficiency or make a cash payment to the
County sufficient to enable the County to remedy the deficiency. Notwithstanding any other
provision hereof, as of the Termination Date each piece of Major Equipment shall have a useful
life of not less than three yeazs.
(F) Capital Modifications. In the event that Capital Modifications
. constituting Facility Structures are made during the Term, such assets shall be returned to the
County on the Termination Date in good condition, working order and repair, with ordinary
weaz and tear excepted as determined in light of the Company's maintenance, repair and
replacement obligations under Section 13.1. In the event that Capital Modifications
constituting Facility Equipment are made during the Term and aze paid for by the County,
such Capital Modifications shall be disregazded in preparing the fmal evaluation of the Facility
pursuant to subsection (C) of this Section. The weighted average useful life of all such assets
as an aggregate which aze paid for by the County, however, shall be separately determined in
the final asset evaluation, and shall be equal to or greater than the weighted average useful life
for Facility Equipment as provided in subsection (E) of this Section. Reasonable conventions
may be adopted in the weighting analysis to take account of the varying dates of installation.
Capital Modifications and other maintenance, repairs and replacements paid for by the
Company, including computer and other replacement systems installed based on advances in
technology, shall be included in the Facility evaluated in the final asset evaluation conducted
pursuant to subsection (C) of this Section, and their remaining useful life included in such
final evaluation.
(G) Effect of County Election to Renew. In the event the County elects to
~.r renew this Service Contract at the end of the Initial Term, the final asset evaluation required by
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County of Hawaii Solid Waste Reduction Facility Article XIII -Maintenance, Repair and
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r this Section shall not be performed at the end of the Initial Term, but instead shall be
performed at the end of the Renewal Term. The standards established by this Section for the
condition of the Facility upon their return to the County shall apply notwithstanding any such
renewal.
(H) Disputes. In the event the County disputes any of the information or
conclusions presented by the Company pursuant to this Section, the County shall initially
notify the Company of such dispute and the pazties shall use good faith efforts to resolve any
dispute. If the parties are unable to resolve the dispute within 30 days of the County's
notification, the County shall have the right to appoint an Independent Evaluator to review
such information or conclusions. The Company shall have the right to approve the County's
selection, the exercise of which shall not unreasonably be withheld or delayed. The expense of
the Independent Evaluator for all services performed pursuant hereto shall be borne equally by
the parties. The final determination by the Independent Evaluator as to any matter arising
under this Section which is in dispute between the County and the Company shall be final and
binding upon the parties.
SECTION 13.3. PERIODIC MAINTENANCE INSPECTIONS. (A) Annual
Maintenance Inspection. The County may, upon reasonable written notice, perform an
inspection of the Facility and relevant records of the Company each Contract Year to determine
compliance with the Contract Standazds. The Company shall cooperate fully with the
inspections, which shall not interfere unreasonably with the Company's performance of the
Contract Services.
(B) Full-Scale Inspections. Commencing upon the fourth year anniversary of
the Contract Date, there shall be a full-scale inspection and review of the state of repair,
working condition and performance capability of the Facility. The inspection and review shall
be performed by or on behalf of the County by the County Engineer at the County's expense,
and shall take place at such time as the County shall determine upon three months' written
notice to the Company. The principal purpose of the inspection and review shall be to permit
the County to ascertain on a comprehensive and focused basis the extent to which the Facility
is being properly maintained, repaired and replaced in accordance with the Contract
Standards. The inspection shall include a concurrent review of all relevant data, records and
reports. The Company shall cooperate fully with the inspections, which shall not interfere
unreasonably with the Company's performance of the Contract Services.
(C) Remediation. Based on the annual operations and maintenance reports
submitted by the Company pursuant to Section 11.13 or the annual or periodic inspections
and reviews conducted pursuant to this Section or any unscheduled inspection provided for `r+'"
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County of Hawaii Solid Waste Reduction Facility Article XIII -Maintenance, Repair and
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herein, the County may submit a statement to the Company detailing any deficiencies found
and requiring the Company to submit a plan of remediation. The remediation plan shall be
sufficient to reasonably demonstrate that, if implemented, the Facility will be promptly brought
into compliance with the requirements of this Article. If the County accepts the remediation
plan, the Company shall thereupon correct all deficiencies noted in accordance therewith.
Failing such corrective action, the Service Fee shall be reduced by the amount of the County's
estimated cost of remediation. Any disputes with respect to the cause or amounts specified in
the County's statement, not resolved to the mutual satisfaction of the pazties, shall be
determined by Non-Bindipg Mediation as provided in Section 16.12.
(D) Unscheduled Inspections. Nothing in this Section shall limit the
County's right, on an unscheduled basis, at any time to inspect the Facility and relevant
records of the Company to determine compliance with this Article.
SECTION 13.4. COMPUTERIZED MAINTENANCE MANAGEMENT SYSTEM.
The Company shall, in accordance with the Design Requirements, install, maintain, upgrade,
repair and replace, as appropriate throughout the Term, a computerized maintenance
management system capable of providing a record of repair and replacement of the Facility on
a detailed, item-by-item basis; scheduling, cazrying out, monitoring and controlling predictive,
preventive and corrective maintenance programs; monitoring routine operations within the
Facility; issuing work orders and purchase orders; maintaining a spare parts inventory; and
issuing exception, equipment status and repair priority reports. The computerized
maintenance management system shall be modified when appropriate during the Term to take
account of removals from and additions to the Facility. The Company shall utilize the
computerized maintenance management system to provide the County with documentation
which allows it to efficiently monitor compliance by the Company with its maintenance
obligations hereunder. The County shall have computer-based real time, read-only access to
such system. The Company shall permit all electronic data to be replicated and provided to the
County for review by the County Engineer.
SECTION 13.5. MAINTENANCE REPAIR AND REPLACEMENT PLAN.
Appendix _ contains the Company's plan for the maintenance, repair and replacement of the
Facility. This plan is intended to establish a minimum standard by which to measure the
Company's performance of its ongoing maintenance, repair and replacement obligations
hereunder, and to assure that no material deferred or sub-standard maintenance, replace and
replacement occurs. The Operation and Maintenance Manual shall incorporate a maintenance,
repair and replacement plan that is in substantial compliance with Appendix The Company
shall adhere to the plan as incorporated in the Operation and Maintenance Manual, except
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County of Hawaii Solid Waste Reduction Facility Article XIII -Maintenance, Repair and
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where it can demonstrate to the County that changes are reasonable under .Good Industry ~
Practice. The timing and extent of maintenance, repair and replacement activities performed
by the Company hereunder with respect to the Facility, taken as a whole, shall equal or exceed
the standard set for those activities by Appendix _ as incorporated in the Operation and
Maintenance Manual. The Company shall also perform any additional maintenance, repair
and replacement work which is necessary in order to comply with the Contract Standards.
SECTION 13.6. WARRANTIES. During the Term of this Service Contract, the
Company shall be responsible for meeting the County's maintenance obligations under all
manufacturer's wazranties on new equipment purchased and installed in the Facility by the
County or by the Company, and shall be the agent of the County in enforcing existing
equipment warranties and guazantees. The Company shall not be required to commence or
maintain any litigation with respect to such warranties or guarantees, but may do so in its
discretion. The Company shall cooperate with and assist the County if the County seeks to
enforce warranties and guazantees through litigation.
SECTION 13.7. LOSS. DAMAGE OR DESTRUCTION TO THE FACILITY. (A)
Prevention and Repair. The Company shall use care and diligence, and shall take all
appropriate precautions, to protect the Facility from loss, damage or destruction. The
Company shall report to the County and the insurers, immediately upon obtaining knowledge
thereof, any damage or destruction to the Facility and as soon as practicable thereafter shall
submit a full report to the County. The Company shall also submit to the County within 24
hours of receipt copies of all accident and other reports filed with, or given to the Company by,
any insurance company, adjuster or Governmental Body. The parties shall cooperate so as to
promptly commence and proceed with due diligence to complete the repair, replacement and
restoration of the Facility to at least the chazacter or condition thereof existing immediately
prior to the loss, damage or destruction, in accordance with and subject to the procedures set
forth in Article XIV and Article XVII, as applicable. The County shall have the right to monitor,
review and inspect the performance of any repair, replacement and restoration work by the
Company as if such work constituted Design/Build Work hereunder.
(B) Insurance and Other Third-Party Payments. To the extent that any
repair, replacement or restoration costs incurred pursuant to this Section can be recovered
from any insurer or from another third-party, each party shall assist each other in exercising
such rights as it may have to effect such recovery. Each party shall provide each other with
copies of all relevant documentation at no cost to the County, and shall cooperate with and
assist the other pazty upon request by participating in conferences, negotiations and litigation
i~
regarding insurance claims.
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(C) Uninsured Costs. The County shall provide all funds necessary to pay
W?
the costs of repairing, replacing and restoring the Facility in accordance with this Section and
all insurance proceeds and recoveries from third parties resulting from damage to or the loss or
destruction of the Facility shall be for the account of the County; provided, however, that such
costs not covered by insurance proceeds or third-pazty payments shall be borne by the
Company to the extent the loss, damage or destruction was not caused by Uncontrollable
Circumstances or County Fault.
(D) Repair of County and Private Property. The Company shall promptly
repair or replace all County and private property damaged by the Company or any officer,
director, employee, representative or agent of the Company in connection with the performance
of, or the failure to perform, the Contract Services. The repair and replacements shall restore
the damaged property, to the maximum extent reasonably practicable, to its chazacter and
condition existing immediately prior to the damage.
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ARTICLE XIV
CAPITAL MODIFICATIONS
SECTION 14.1. CAPITAL MODIFICATIONS GENERALLY. (A) Purpose. The
parties acknowledge that it may be necessary due to an Uncontrollable Circumstance, or
desirable from the standpoint of either party, to make Capital Modifications. Capital
Modifications may be desirable, for example, to improve the performance or increase the
capacity of the Facility, to address or anticipate the obsolescence of portions of the Facility, to
reduce the cost to the Company of performing this Service Contract or to reduce the Service
Fee payable by the County as provided in subsection (D) of this Section.
(B) County Approval. The County shall have the right, in its sole discretion,
to approve all Capital Modifications if the requirements of Section 14.2 are complied with. All
Capital Modifications shall be made and implemented in accordance with this Article. The
County shall have the express right to condition its approval of Capital Modifications upon the
shazing of net cost savings expected to result therefrom as provided in subsection (D) of this
Section.
(C) Pazty Responsible for Costs. The Company shall bear the cost and
expense of all Capital Modifications and related operation, maintenance, repair and
replacement costs, unless the Capital Modification is directed by the County (other than as
part of an enforcement action taken in response to a breach hereof) or is necessary to address
an Uncontrollable Circumstance, in each case as provided in Sections 14.3 and 14.4.
(D) Cost Savings. In the event any Capital Modification is reasonably
expected to result in a net cost savings to the Company, the parties shall negotiate in good
faith the extent to which any such net cost savings shall be shared with the CounTy, and the
Service Fee shall be reduced accordingly.
SECTION 14.2. CAPITAL MODIFICATIONS AT COMPANY REQUEST. The
Company shall give the County written notice of, and reasonable opportunity to review and
comment upon, any Capital Modification proposed to be made at the Company's request,
whether before or after Acceptance. The notice shall contain sufficient information for the
County to determine that the Capital Modification: (1) does not diminish the capacity of the
Facility to be operated so as to meet the Contract Standards; (2) does not impair the quality,
integrity, durability and reliability of the Facility; (3) is reasonably necessary or is advantageous
for the Company to fulfill its obligations under the Service Contract; and (4) is feasible. The
Company shall not be entitled to any adjustment in the terms of this Service Contract as a
result of any such Capital Modification unless approved by the County or made a condition of
approval by the County in its sole discretion.
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SECTION 14.3. CAPITAL MODIFICATIONS DUE TO UNCONTROLLABLE
CIRCUMSTANCES. Upon the occurrence of an Uncontrollable Circumstance, the County shall
promptly proceed, subject to the terms, conditions and procedures set forth in this Article and
Section 17.2, to make or cause to be made all Capital Modifications reasonably necessary to
address the Uncontrollable Circumstance. The Company shall consult with the County
concerning possible means of addressing and mitigating the effect of any Uncontrollable
Circumstance, and the Company and the County shall cooperate in order to minimize any
delay, lessen any additional cost and modify the Facility so as to permit the Company to
continue providing the Contract Services in light of such Uncontrollable Circumstance. The
design and construction costs of any such Capital Modification, and any related operation,
maintenance, repair and replacement costs, shall be borne by the County. The County shall
pay the Capital Modification costs and any such related costs for which it is responsible in the
manner established in accordance with the procedures set forth in Sections 14.5, 14.6 and
14.7.
SECTION 14.4. CAPITAL MODIFICATIONS AT COUNTY DIRECTION. The
County shall have the right to make Capital Modifications at any time and for any reason
whatsoever, whether and however the exercise of such rights affects this Service Contract so
long as the Company's rights are protected as provided in Section 14.8. The design and
construction costs of any such Capital Modification made at the County's direction under this f"1,
Section, and any related operation, maintenance, repair and replacement costs, shall be borne
by the County, through an adjustment to the Service Fee, pursuant to Sections 14.5, 14.7 and
14.8. The County shall have no obligation to direct the Company to make any Capital
Modification.
SECTION 14.5. PRIMARY PROCEDURE FOR IMPLEMENTING CAPITAL
MODIFICATIONS. (A) Primary Implementation Procedure. Unless the County determines
pursuant to Section 14.6 that an alternative implementation procedure be employed, the
implementation procedure set forth in this Section shall apply with respect to all Capital
Modifications, which the Company may implement by means of its own choosing.
(B) Preliminary Company Plan and County Review. At the request of the
County and the cost and expense of the Company, the Company shall prepare and deliver to
the County a preliminary plan for the implementation of the Capital Modification. The
preliminary plan shall include recommendations as to technology, design, construction,
equipment, materials, and operating and performance impacts. Preliminary schedule and
capital and operating cost estimates shall be included, together with an assessment of possible
alternatives. The preliminary plan shall specifically evaluate reasonable alternatives to the mix i:~+,
of Capital Modifications and changed operating and management practices which the Company
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- is recommending. The County shall review the Company's preliminary plan and
recommendations, and undertake discussions with the Company in order to reach agreement
on a basic approach to the Capital Modification.
(C) Comnany Implementation Proposal. Following agreement on a basic
approach to the Capital Modification, at the request of the County the Company shall submit a
formal implementation proposal to the County for its consideration. The implementation
proposal shall contain: (1) a Company services element; and (2) a third-party construction
services element, to be implemented through third-party contracting. The Company services
element shall contain: (i) the Company's offer to perform design, construction management
and acceptance testing services with respect tc the Capital Modification for a fixed price, and
shall include a guazantee of the performance of the Capital Modification through an acceptance
test and a guazanteed maximum construction price if so requested by the County and agreed
to by the Company; and (ii) the Company's offer to operate, maintain, repair, replace and
manage the Capital Modification following construction and acceptance for a fixed fee to be
added to the Service Fee, and shall include long-term performance guarantees with respect to
the Capital Modification. The third-pazty construction services element shall be a proposal by
the Company to conduct, as allowed by Applicable Law, a bidding or competitive proposal
process for the construction work as the design/build work involved in completing the Capital
~ Modification. The bidding process shall include an advertisement for bids and a construction
contract award to the lowest responsible bidder, and shall be conducted in accordance with the
requirements of Applicable Law which govern construction projects undertaken by the County.
The resulting construction or design/build contract shall be held by and executed in the name
of the County or the Company, as determined by the County in compliance with Applicable
Law. A competitive proposal process shall include a request for proposals and a construction
or design/build contract awazd to the most advantageous proposer. The County shall be a
party to all such construction contracts or design/build contracts unless the County
determines otherwise as permitted by Applicable Law.
(D) NeQOtiation and Finalization of Company Implementation Proposal. The
pazties shall proceed, promptly following the County's review of the Company's submittal and
quotation, to negotiate to reach an agreement on price and any adjustment to the terms and
conditions of this Service Contract required under Section 14.8. Any final negotiated
agreement for the implementation of a Capital Modification under this Section shall address, as
applicable: (1) Design Requirements; (2) construction management services; (3) Acceptance
Tests and procedures; (4) a guarantee of completion and Acceptance; (5) Performance
Guazantees; (6) any changes to the Performance Guarantees or other Contract Standazds to
take effect as a consequence of the Capital Modification; (7) a payment schedule for the design
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and construction management-related services; (8} provisions for County Engineer review;
j
(9) any adjustments to the Service Fee resulting from the Capital Modification, including any
related operation, maintenance, repair and replacement costs; (10) a financing plan; and
(11) any other appropriate amendments to this Service Contract. The Company shall not be
obligated to undertake any Capital Modification under Section 14.3 or 14.4 except following
agreement as to such negotiated adjustments, unless otherwise required on an emergency
basis. The County shall have no obligation to reimburse the Company for any costs incurred
pursuant to this Section except as part of a negotiated amendment to this Service Contract.
(E) Implementation Procedures. With respect to each Capital Modification to
be made by the Company, the County shall have the same substantive and procedural rights
that it has with respect to the design, construction and acceptance of the Facility, as set forth
in Articles III, VII and VIII and in Appendices _ and
SECTION 14.6. ALTERNATNE PROCEDURES FOR IMPLEMENTING
CAPITAL MODIFICATIONS. The County shall be under no obligation to utilize the primary
implementation procedure for Capital Modifications set forth in Section 14.5, and may instead,
in its sole discretion, utilize any other implementation procedure available to it or required
under the Applicable Law. Alternative implementation procedures may include, without
J limitation and to the extent permissible under Applicable Law: (1) contracting with the j++~
1 Company on a sole source basis to implement the Capital Modification on a design/build basis;
(2) contracting with the Company to manage a competition for design/build services to
implement the Capital Modification; and (3) contracting with third parties for the
implementation of the Capital Modification on a traditional design/bid/build basis, with the
County rather than the Company responsible for the design and construction of the Capital
Modification, or with the Company acting as the County's agent in the design/bid/build
process. While it is the intention of the County to have the Company operate, maintain, repair,
replace and manage Capital Modifications on an integrated basis with the Facility, the County
is not obligated to do so and may contract for such services with athird-party. The County
may determine to proceed with an alternative implementation procedure for Capital
Modification at any time, whether before or after entering into negotiations with the Company
under the primary implementation procedure specified under Section 14.5. No alternative
implementation procedure for Capital Modifications shall impair the Company's rights under
Section 14.8.
SECTION 14.7. FINANCING CAPITAL MODIFICATIONS. Unless otherwise
agreed to by the parties, the County shall provide financing for any Capital Modification for
which the County is financially responsible under this Article, and shall make the proceeds of
the financing available to the Company to pay the negotiated price on the milestone schedule ~^w'
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and subject to any retainage negotiated by the parties pursuant to this Section. The County in
in.r its sole discretion may voluntarily, if requested by the Company, provide financing for the
Capital Modifications for which the Company is financially responsible hereunder, on terms
and conditions established by the County in its sole discretion.
SECTION 14.8. COMPANY NON-IMPAIRMENT RIGHTS. No Capital
Modification, other than a Company-requested Capital Modification, shall be made that
materially impairs any right, materially impairs the ability to perform, imposes any material
additional obligation or liabiliTy, or materially increases the costs of the Company hereunder,
including operating, maintenance, repair and replacement costs related to such Capital
Modification. The Company shall have no right to object to any such Capital Modification,
provided that, if the County affords the Company any price, schedule, performance and other
relief necessary to avoid any such material effect.
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ARTICLE XV
'err SERVICE FEE AND OTHER PAYMENTS
SECTION 15.1. [SERVICE FEE GENERALLY. From and after the Acceptance
Date, the County shall pay the Service Fee to the Company as compensation for the Company's
performing the operation services under this Service Contract. The Service Fee shall be
calculated according to this Article. Examples of the calculation of the Service Fee and the
application of the CPI Adjustment Factor are included in Appendix [DISCUSS WITH
COUNTY/R.W. BECK]
SECTION 15.2. [SERVICE FEE FORMULA. The Service Fee shall be
calculated in accordance with the following formula:
SF=BOF+EOF+PTC+ERC+/-EI
Where
SF = Annual Service Fee
BOF = Base Operation Fee
EOF = Excess Operation Fee
PTC = Pass Through Costs
{ ERC = Energy Revenue Credit
EI = Extraordinary Items
Each component of the Service Fee shall be determined in accordance with this Article.]
[DISCUSS WITH COUNTY/R.W. BECK]
SECTION 15.3. BASE OPERATION FEE. The Base Operation Fee represents
the Company's compensation for providing the Operation Services including the receipt and
combustion of Tons of Processible Waste. The annual Base Operation Fee shall be
] [PRICE PROPOSAL FORM 17]. The Base Operation Fee for the initial Contract
yeaz shall be adjusted at the beginning of the initial Contract Year by multiplying (1) the Base
Operation Fee by (2) the CPI Adjustment Factor. The Base Operation Fee for each subsequent
Contract Yeaz throughout the Term shall be determined by multiplying (1) the Base Operation
Fee for the previous Contract Year, times (2) the CPI Adjustment Factor. The Base Operation
Fee for any particular month shall be an amount equal to one-twelfth of the then applicable
annual Base Operation Fee.
SECTION 15.4. EXCESS OPERATION FEE. The Excess Operation Fee
represents the Company's compensation for combusting Processible Waste in excess of
Tons in any Contract Year. The Excess Opeaztion Fee shall be per Ton of Processible
~.a..-
Waste combusted above Tons in any Contract Year. The Excess Operation Fee for the
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~ initial Contract year shall be adjusted at the beginning of the initial Contract Year by
multiplying (1] the Excess Operation Fee by (2) the CPI Adjustment Factor. The Excess
Operation Fee for each subsequent Contract Yeaz throughout the Term shall be determined by
multiplying (1) the Excess Operation Fee for the previous Contract Year by (2) the CPI
Adjustment Factor. The Excess Operation Fee shall be calculated and paid at the end of each
Contract Year.
SECTION 15.5. [PASS THROUGH COSTS. The Pass Through Costs for any
Contract Year shall be an amount equal to the actual and direct expenses (without mazkup for
profit, administration or otherwise) paid by the Company to unrelated third parties, equal to
the sum of the following items, to the extent paid or incurred by the Company in such Contract
Year and to the extent the Company provides Cost Substantiation therefore:
(1) Insurance. Any premium paid by the Company for the Required Operation
Period Insurance during such Billing Period. Notwithstanding the foregoing, Pass Through
Costs shall not include increases in premiums to the extent caused by extraordinary claims
under policies issued to the Company, Guarantor or any of their Affiliates other than claims
originating from Uncontrollable Circumstances or County Fault. The amount of any such
increases shall be for the account of the Company.
t (2) Water Use. The cost of potable water required for use in the Facility, up to a
maximum of gallons per Contract Year.
(3) Sewer Use. The cost of sewer usage by the Facility, up to a maximum of
gallons per Contract Year.
(4) Electricity Demand. The cost of electrical demand charges up to kW
per Contract Year not caused by Company Fault.
(5) Purchased Electricity. The cost of purchased electricity in amounts up to
kWh per Contract Yeaz.
(6) Natural Gas Usaee. The cost of natural gas usage for any Facility purpose
other than Start-up or Shut-down in amounts up to [ ] cf per Contract Year.
(7) Certain Taxes. [Any sales, use, real and personal property, ad valorem,
excise, leasing or leasing use Tax, or any Tax to the extent measured by gross receipts, gross
income, gross operating income or gross earnings, paid by or on behalf of the Company
imposed by the United States, State, County or any other taxing authority or jurisdiction of the
United States or the State against the Company or the Facility or upon or with respect to the
design, construction or operation thereof by the Company, any Tax paid by or on behalf of the
Company which is imposed by the United States, the County or any other taxing authority or
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jurisdiction of the United States or the State solely on the Company with respect to the Facility,
waste disposal, power generation or any Tax in respect of emissions from the Facility. Pass
Through Costs shall not include any Taxes based on or measured by net income, any
unincorporated business, payroll, franchise (except to the extent measured by gross receipts,
gross income, gross operating income or gross earnings) or employment taxes, any taxes
imposed by a foreign government or any of their taxing agencies, or any sales Taxes paid by or
on behalf of the Company because of the failure of the Company or any Subcontractor to
comply with procedures required for the use of any available sales tax exemption.]
(8) Hazardous Material. Any costs and expenses payable by the County to the
Company, to the extent provided in subsection _ hereof, on account of the delivery by the
County or the Registered Hauler s of Hazardous Material to the Facility.
(9) Testing. The cost of (a) environmental and Residue laboratory testing
conducted after the Acceptance Date, (b) compliance testing, including environmental testing,
which is not required as of the Contract Date, and (c) testing required under the Power
Purchaser Agreement, unless duplicative of tests otherwise required hereunder. The cost of
Acceptance Testing shall not constitute a Pass Through Cost.
l/ (10] Excess Processible Waste Transportation and Disposal Costs. The cost of
transporting and disposing of the Excess Processible Waste that could not be combusted at the
Facility.
[11] Non-Processible Waste Transportation and Disposal Costs. The cost of
transporting and disposing of the Non-Processible Waste that can not be combusted at the
Facility.
(12) Other Costs. Any amounts payable by the County to the Company to the
extent that the County is legally precluded from paying such amounts directly to the Company
under Section 17.3 due to a Change in Law.
It is specifically understood and agreed that the cost of the following, to the extent not resulting
from Uncontrollable Circumstances or a County Fault, will be borne by the Company and shall
not constitute Pass Through Costs: (i) the cost of electricity purchased during turbine outages
occurring due to reasons other than Uncontrollable Circumstance or County Fault; (ii) the cost
of natural gas required for Start-up Operations or Shut-down Operations, except when due to
an Uncontrollable Circumstance or County Fault; (iii) the cost of scrubber lime reagent; and
(iv) all other operation, maintenance, repair and replacement costs and expenses incurred with
respect to the Facility not expressly payable by the County as Pass Through Costs or otherwise
hereunder.] [DISCUSS WITH COUNTY/R.W. BECK]
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~ SECTION 15.6. [ENERGY REVENUE CREDIT . The Energy Revenue Credit
for any Contract Year shall consist of an amount equal to the difference between (1) the energy
revenues received by the County during the Applicable Contract Year from the sale of electricity
under the Power Purchase Agreement from the combustion of Processible Waste and (2) the
product of (i) [the average price per kilowatt hour] paid to the County during such applicable
Contract Year] and (ii) the difference of (a) the actual average number of kilowatt hours per Ton
of Processible Waste combusted in such Contract Year, minus (b) the Annual Electricity
Production Guarantee. In the event that the above calculation is a negative number, no Energy
Revenue Credit shall apply. Any amount which would have been received from the Power
Purchaser under the Power Purchase Agreement but was not received due to additional
demand chazges, the excess electricity consumption above the Guaranteed Maximum
Electricity Consumption, or other deductions, offsets or chazges resulting in lost revenues
under the Power Purchase Agreement due to a Company Fault shall be subtracted from the
Energy Revenue Credit. In the event the County incurs any costs or charges from the Power
Purchaser due to a Company Fault (including, without limitation, electricity demand chazges),
the amount of such cost or charges shall be deducted first from the Energy Revenue Credit
then from the Base Operation Fee.] [DISCUSS WITH COUNTY/R.W. BECK]
( SECTION 15.7. EXTRAORDINARY ITEMS CHARGE OR CREDIT. The
Extraordinary Items component of the Service Fee, which may be a charge or a credit, shall be
equal to the sum of (1) the amounts payable by the County for increased operation,
maintenance or other costs incurred on account of the occurrence of Uncontrollable
Circumstances which are chargeable to the County hereunder, net of any operation,
maintenance or other cost savings achieved by the Company in mitigating the effects of the
occurrence of such an Uncontrollable Circumstance, plus (2) the adjustments to the Service
Fee resulting from any Capital Modifications or the benefits of which accrue to the County,
under the provisions of the Service Contract, minus (3) any Service Fee reductions or liquidated
damages due to Company non-performance specifically provided for in the Service Contract,
plus or minus (4] any other increase or reduction in the Service Fee provided for under any
other Article of the Service Contract, and (5) minus utility costs paid by the County for utilities
usage beyond the amounts guazanteed by the Company.
SECTION 15.8. CPI ADJUSTMENT FACTOR. The "CPI Adjustment Factor"
for purposes of this Service Contract, when used with respect to any pazticular Contract Year,
shall be determined as follows:
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AFn = CPIa.t _ CPIn-2
~rr+'
where,
AFn = The CPI Adjustment Factor in any Contract Year.
CPI = The final non-seasonably adjusted Consumer Price Index, All
Urban Consumers, as reported by the U.S. Department of Labor,
Bureau of Labor Statistics, for all items, [U.S. city average].
CPI„_1 = The average of the 12-monthly CPI values occurring in the
Contract Year preceding the Contract Yeaz with respect to which
a calculation is to be made thereunder.
CPI„_z = The average of the 12-monthly CPI values occurring in the
Contract Year two years preceding the Contract Year with respect
to which a calculation is to be made thereunder.
SECTION 15.9. COMPANY NON-PERFORMANCE - THROUGHPUT. (A)
Company Non-Compliance. The Company shall determine Billing Period Throughput
Deficiencies and Billing Period Throughput Surpluses with respect to each Billing Period in
accordance with Section 10.2 hereof, which shall be the basis of calculating Billing Period
Throughput Performance Debits and Billing Period Throughput Performance Credits for each
Billing Period as provided in subsections 15.9(B) and 15.9(C) hereof. The Billing Period
Throughput Performance Credits and Billing Period Throughput Performance Debits so
determined shall then be used in accordance with this Section to determine, on a Billing Period
basis, whether Facility Throughput Performance Liquidated Damages are payable by the
Company to the County or whether reimbursements to the Company by the County of
previously paid Facility Throughput Performance Liquidated Damages aze payable, based on
the Company's cumulative throughput performance hereunder, subject to the lapsing
provisions of subsection 15.9(J) hereof.
(B) Billing Period Throughput Performance Debits. If in any Billing Period
there is a Billing Period Throughput Deficiency, then the Billing Period Throughput
Performance Debit for such Billing Period (stated in dollazs) shall be equal to the sum of: (1) an
amount calculated by multiplying (a) 1.0 times (b) the amount of the Billing Period Throughput
Deficiency, times (c) the Billing Period Electricity Price, times (d) the Annual Electricity
Production Guarantee; plus (2) all costs and expenses (if any) incurred by the County in
connection with the transfer, transportation and disposal of Processible Waste constituting the
Billing Period Throughput Deficiency to or at an alternative waste disposal site; provided,
however, that any such Processible Waste which is disposed of at alternative waste disposal
site shall be deemed to have been disposed of at a cost calculated by multiplying such
Processible Waste Tonnage times the alternative waste disposal site disposal fee (which shall be
200 percent of the tipping fee if such disposal site is the County Landfill); minus (3) an imputed
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amount equal to the costs of transporting and disposing of the Residue which would have been ~
produced from such Processible Waste which would have been payable by the County had
such Processible Waste been processed at the Facility during such Billing Period, calculated by
multiplying the Tonnage amount of such Residue times the [tipping fee].
(C) Billing Period Throughput Performance Credits. If in any Billing Period
there is a Billing Period Throughput Performance Surplus, then the Billing Period Throughput
Performance Credit for such Billing Period (stated in dollars) shall be equal to the sum of:
(1) an amount calculated by multiplying (a) 1.0, times (b) the amount of the Billing Period
Throughput Surplus, times (c) the Billing Period Electricity Price, times (d) the Annual
Electricity Production Guarantee; plus (2) an amount equal to the sum of all costs and
expenses avoided by the County as a result of the processing by the Company of the
Processible Waste constituting the Billing Period Throughput Surplus rather than transporting
and disposing of such Billing Period Throughput Surplus at the alternative waste disposal site,
calculated by multiplying the Tonnage amount of such Processible Waste times the alternative
waste disposal site disposal fee; minus (3) an amount equal to the costs of transporting and
disposing of the Residue from such Processible Waste deemed to have been paid by the County
as a result of such processing of Processible Waste at the Facility during such Billing Period
and the disposal of such Residue at the alternative waste disposal site, calculated by l~
multiplying the Tonnage amount of such Residue times the alternative waste disposal site
disposal fee.
(D) Establishment of Record-Keeping Accounts. For recordkeeping purposes
in connection with determinations hereunder as to Facility Throughput Performance Liquidated
Damages, the Company shall maintain two non-cash accounts designated the `Throughput
Performance Damages Account° and the "Throughput Performance Credit Account.° A
Throughput Performance Damages Account and a Throughput Performance Credit Account
shall be established sepazately for the Term of this Service Contract, and each shall have a
beginning balance of zero. The account balances shall be kept on a net basis, and there shall
be a zero balance at all times in at least one account. Balances shall be kept in dollar units.
(E) Throughput Performance Damages Account. The Throughput
Performance Damages Account shall be used to record the cumulative balance of all Facility
Throughput Performance Liquidated Damages which have been paid by the Company in the
Aggregate Billing Period preceding the Billing Period for which a determination is to be made
under this Section and which have not been reimbursed to the Company by the County during
such Aggregate Billing Period.
<.s
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(F) Throughput Performance Credit Account. The Throughput Performance
°ir~
Credit Account shall be used to record the cumulative balance of the Billing Period Throughput
Performance Credits which have been eazned by the Company in the Aggregate Billing Period
preceding the Billing Period for which a determination is to be made under this Section and
which have not been applied to offset the Facility Throughput Performance Liquidated
Damages paid by the Company during such Aggregate Billing Period.
(G) Billing Period Debits and Facility Throughput Performance Liquidated
Damages. If in any Billing Period there is a Billing Period Throughput Performance Debit:
(1) and if there is a zero balance in the Billing Period Throughput
Performance Credit Account, then the Company shall pay the County Facility
Throughput Performance Liquidated Damages in an amount equal to the Billing Period
Throughput Performance Debit, and such amount shall be added to any balance in the
Throughput Performance Damages Account. The Throughput Performance Credit
Account shall retain a zero balance;
(2) and if there is a positive balance in the Throughput Performance Credit
Account:
(a) and if the Throughput Performance Credit Account balance
exceeds the Billing Period Throughput Performance Debit, then the Company shall not
be required to make any payments with respect thereto. The balance in the Throughput
Performance Credit Account shall be reduced by the amount of the Billing Period
Throughput Performance Debit, and the Throughput Performance Damages Account
shall retain a zero balance;
(b) and if the Billing Period Throughput Performance Debit exceeds
the Throughput Performance Credit Account balance, the Company shall pay the
County Facility Throughput Performance Liquidated Damages in an amount equal to
the Billing Period Throughput Performance Debit less such Throughput Performance
Credit Account balance, and the Throughput Performance Credit Account shall be
reduced to a zero balance. The amount of such Facility Throughput Perfonnance
Liquidated Damages payment shall be added to the balance in the Throughput
Performance Damages Account;
(c) and if the Billing Period Throughput Performance Debit is equal
to the Throughput Performance Credit Account balance, then the Company shall not be
required to make any Facility Throughput Performance Liquidated Damages payment
with respect thereto, the Throughput Performance Credit Account balance shall be
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( reduced to zero, and the Throughput Performance Damages Account shall retain a zero {'"'R=
balance.
(H) Billine Period Throuehput Performance Credits. If in any Billing Period
there is a Billing Period Throughput Performance Credit:
(1) and if there is a zero balance in the Throughput Performance Damages
Account then the balance in the Throughput Performance Credit Account shall be
increased by the amount of the Billing Period Throughput Performance Credit, and the
Throughput Performance Damages Account shall retain a zero balance;
(2) and if there is a positive balance in the Throughput Performance
Damages Account:
(a) and if the Throughput Performance Damages Account balance
exceeds the Billing Period Throughput Performance Credit, then the County with
respect to such Billing Period shall reimburse the Company an amount equal to such
Billing Period Throughput Performance Credit, the Throughput Performance Damages
Account balance shall be reduced by the amount of the Billing Period Throughput
Performance Credit, and the Throughput Performance Credit Account shall retain a zero
balance;
(b) and if the Billing Period Throughput Performance Credit exceeds
the Throughput Performance Damages Account balance, then the County with respect
to such Billing Period shall reimburse the Company an amount equal to the balance in
the Throughput Performance Damages Account, there shall be credited to the
Throughput Performance Credit Account an amount equal to the difference between the
Billing Period Throughput Performance Credit and such Throughput Performance
Damages Account balance; and the Throughput Performance Damages Account balance
shall be reduced to zero;
(c) and if the Billing Period Throughput Performance Credit is equal
to the Throughput Performance Damages Account balance, then the County with
respect to such Billing Period shall reimburse the Company an amount equal to the
balance in the Throughput Performance Damages Account, the Throughput
Performance Damages Account balance shall be reduced to zero, and the Throughput
Performance Credit Account shall retain a zero balance.
(I) Annual Facility Throuehput Damage Adiustment. As part of the Annual
Settlement Statement prepared pursuant to Section 15.14 hereof, the Company shall
recompute all Billing Period Throughput Performance Debits and Billing Period Throughput
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Performance Credits, using the Annual Electricity Price in lieu of the Billing Period Electricity
Price originally used in making such computations. Any credits owed by one pazty to the other
as a result of such recomputation shall be reflected on the Annual Settlement Statement and
paid pursuant thereto.
(J) Annual Lapse of Unused Billing Period Throu~hnut Performance Credits.
Any Billing Period Throughput Performance Credits which are not applied against Billing Period
Throughput Performance Debits in the Contract Yeaz in which such Billing Period Throughput
Performance Credits accrue shall carryover to the succeeding Contract Year, less an amount
calculated by multiplying (a) the difference between the sum of the Billing Period Throughput
Surpluses for the Contract Year and the sum of the Billing Period Throughput Deficiencies for
the Contract Year, times (b) 1.0, times (c) the Annual Electricity Price, times (d) the Annual
Electricity Production Guazantee. Any Billing Period Throughput Performance Credits carried
over pursuant to this subsection shall be available to offset Billing Period Throughput
Performance Debits incurred in the following Contract Year only.
SECTION 15.10. COMPANY NON-PERFORMANCE - ELECTRICITY
PRODUCTION. (A) Billine Period Determination of Performance. If, in any Billing Period, the
( - Billing Period Electricity Production is less than the Annual Electricity Production Guarantee
Or (which, for the purposes of calculating interim non-performance damages shall be applied on a
Billing Period basis), there shall be a "Billing Period Electricity Production Deficiency° equal to
the amount of such deficiency, expressed on a kWh per ton basis. If, in any Billing Period, the
Billing Period Electricity Production is greater than the Annual Electricity Production
Guarantee (applied on the same basis), there shall be a "Billing Period Electricity Production
Surplus° equal to the amount of such surplus, expressed on a kWh per ton basis. Such
amounts shall be used as the basis for calculating Billing Period Electricity Production Debits
and Billing Period Electricity Production Credits as provided in subsections 15.10(B) and
15.10(C) hereof. The Billing Period Electricity Production Credits and Billing Period Electricity
Production Debits so determined shall then be used in accordance with this Section to
determine, on a Billing Period basis, whether Interim Electricity Production Performance
Liquidated Damages are payable by the Company to the County or whether reimbursements to
the Company by the County of previously paid Interim Electricity Production Performance
Liquidated Damages are payable, based on the Company's cumulative throughput performance
within each Contract Year.
(B) Billine Period Electricity Production Debits. If in any Billing Period there
is a Billing Period Electricity Production Deficiency, then the Billing Period Electricity
"y.+~ Production Debit for such Billing Period (stated in dollazs) shall be an amount calculated by
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( multiplying (a) 1.0, times (b) the amount of the Billing Period Electricity Production Deficiency, `.""m
times (c) the Billing Period Electricity Price, times (d) the Billing Period Throughput, up to a
maximum of the Billing Period Throughput Guarantee.
(C) Billine Period Electricity Production Credits. If in any Billing Period there
is a Billing Period Electricity Production Surplus, then the Billing Period Electricity Production
Credit for such Billing Period (stated in dollars) shall be equal to the sum of: (1) an amount
calculated by multiplying (a) 1.0, times (b) the amount of the Billing Period Electricity
Production Surplus, times (c) the Billing Period Electricity Price, times (d) the Billing Period
Throughput.
(D) Establishment of Record-Keepin¢ Accounts. For recordkeeping purposes
in connection with determinations hereunder as to Interim Electricity Production Performance
Liquidated Damages, the Company shall maintain two non-cash accounts designated the
"Electricity Production Damages Account" and "Electricity Production Credit Account". An
Electricity Production Damages Account and an Electricity Production Credit Account shall be
established sepazately for each Contract Yeaz, and each shall have a beginning balance of zero.
The account balances shall be kept on a net basis, and there shall be a zero balance at all
times in at least one account. Balances shall be kept in dollar units. ,rr~
~ 7
(E) Electricity Production Damages Account. The Electricity Production
Damages Account shall be used to record the cumulative balance of all Interim Electricity
Production Performance Liquidated Damages which have been paid by the Company in the
Aggregate Billing Period preceding the Billing Period for which a determination is to be made
under this Section and which have not been reimbursed to the Company by the County during
such Aggregate Billing Period.
(F) Electricity Production Credit Account. The Electricity Production Credit
Account shall be used to record the cumulative balance of interim Electricity Production
Credits which have been eazned by the Company in the Aggregate Billing Period preceding the
Billing Period for which a determination is to be made under this Section and which have not
been applied to offset the Interim Electricity Production Performance Liquidated Damages paid
by the Company during such Aggregate Billing Period.
(G) Billing Period Debits and Electricity Production Liquidated Damages. If
in any Billing Period there is a Billing Period Electricity Production Debit,
(1) and if there is a zero balance in the Electricity Production Credit
Account, then the Company shall pay the County Interim Electricity Production
i
Performance Liquidated Damages in an amount equal to the Billing Period Electricity
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Production Debit and such amount shall be added to any balance in the Electricity
Production Damages Account. The Electricity Production Credit Account shall retain a
zero balance;
(2) and if there is a positive balance in the Electricity Production Credit
Account:
(a) and if the Electricity Production Credit Account balance exceeds
the Billing Period Electricity Production Debit, then the Company shall not be required
to make any payments with respect thereto. The balance in the Electricity Production
Credit Account shall be reduced by the amount of the Billing Period Electricity
Production Debit, and the Electricity Production Damages Account shall retain a zero
balance;
(b) and if the Billing Period Electricity Production Debit exceeds the
Electricity Production Credit Account balance, the Company shall pay the County
Interim Electricity Production Performance Liquidated Damages in an amount equal to
the Billing Period Electricity Production Debit less such Electricity Production Credit
Account balance, and the Electricity Production Credit Account shall be reduced to a
zero balance. The amount of such Interim Electricity Production Performance
~'ti"'' Liquidated Damages payment shall be added to the balance in the Electricity Production
Damages Account;
(c) and if the Billing Period Electricity Production Debit is equal to
the Electricity Production Credit Account balance, then the Company shall not be
required to make any Interim Electricity Production Performance Liquidated Damages
payment with respect thereto, the Electricity Production Credit Account balance shall be
reduced to zero, and the Electricity Production Damages Account shall retain a zero
balance.
(H) Billin¢ Period Electricity Production Credits. If in any Billing Period there
is a Billing Period Electricity Production Credit,
(1) and if there is a zero balance in the Electricity Production Damages
Account, then the balance in the Electricity Production Credit Account shall be
increased by the amount of the Billing Period Electricity Production Credit, and the
Electricity Production Damages Account shall retain a zero balance;
(2) and if there is a positive balance in the Electricity Production Damages
Account:
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(a) and if the Electricity Production Damages Account balance exceeds the ~ ~
Billing Period Electricity Production Credit, then the County with respect to such Billing Period
shall reimburse the Company an amount equal to such Billing Period Electricity Production
Credit plus interest calculated on an average daily balance basis at the Prime Rate, the
Electricity Production Damages Account Balance shall be reduced by the amount of the Billing
Period Electricity Production Credit, and the Electricity Production Credit Account shall retain
a zero balance;
(b) and if the Billing Period Electricity Production Credit exceeds the
Electricity Production Damages Account balance, then the County with respect to such Billing
Period shall reimburse the Company an amount equal to the balance in the Electricity
Production Damages Account plus interest calculated on an average daily basis at the Ptime
Rate, there shall be credit to the Electricity Production Credit Account an amount equal to the
difference between the Billing Period Electricity Production Credit and such Electricity
Production Damages Account balance, and the Electricity Production Damages Account
balance shall be reduced to zero;
(c) and if the Billing Period Electricity Production Credit is equal to the
Electricity Production Damages Account balance, then the County with respect to such Billing
Period shall reimburse the Company an amount equal to the balance in the Electricity
r.?~
Production Damages Account plus interest calculated on an average daily balance basis at the
Prime Rate, the Electricity Production Damages Account balance shall be reduced to zero, and
the Electricity Production Credit Account shall retain a zero balance.
(I) Annual Electricity Production Liquidated Damages. Immediately
following each Contract Year, the Company shall compute the Annual Electricity Production
Guazantee applicable to such Contract Year. In the event that the Annual Electricity
Production exceeds the Annual Electricity Production Guarantee (1) no Annual Electricity
Production Liquidated Damages shall be payable by the Company with respect to such
Contract Year, and (2) any Interim Electricity Production Performance Liquidated Damages
which have been paid by the Company with respect to such Contract Year shall be reimbursed
to the Company, with interest thereon computed at the Prime Rate from the date of payment to
the date of reimbursement. In the event that the Annual Electricity Production is less than the
Annual Electricity Production Guarantee the Company shall pay Annual Electricity Production
Liquidated Damages to the County. The amount of such Annual Electricity Production
Liquidated Damages shall be calculated by multiplying (1) 1.0 times (2) the Annual Facility
Throughput (not to exceed the Annual Facility Throughput Guarantee), times (3) the Annual
Electricity Price, times (4) the difference (expressed on the basis of kWh per Ton) between the
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Annual Electricity Production Guarantee and the Annual Electricity Production for such
Contract Yeaz. If Annual Electricity Production Liquidated Damages aze payable with respect
to any Contract Year, and the Company has paid Interim Electricity Production Performance
Liquidated Damages with respect to such Contract Year, the amount of such Interim Electricity
Production Performance Liquidated Damages so paid shall be applied as a credit against the
Annual Electricity Production Liquidated Damages so payable. The County shall reimburse the
Company the amount by which any such credit exceeds the Annual Electricity Production
Liquidated Damages, and the Company shall pay the County the amount by which the Annual
Electricity Production Liquidated Damages exceeds any such credit. If Annual Electricity
Production Liquidated Damages aze payable with respect to any Contract Year and the
Company has not paid any Interim Electricity Production Performance Liquidated Damages to
the County with respect to such Contract Year, the Company shall pay the County the full
amount of such Annual Electricity Production Liquidated Damages. The Company shall deliver
to the County a report and accounting of all of the technical and financial calculations required
under this Section with the Annual Settlement Statement, and any amounts due one pazty
from the other shall be paid in conjunction therewith.
SECTION 15.11. DAMAGE ADJUSTMENTS TO ACCOUNT FOR WASTE BTU
~ CONTENT OUTSIDE DESIGN RANGE AND WASTE SHORTFALLS. (A) Waste Btu Content
Outside Design Ranee. The parties acknowledge that the Throughput Performance Liquidated
Damages and the Annual Electricity Production Liquidated Damages have been established
based on the assumption that the Processible Waste processed by the Facility will have a Btu
content within an allowable range of [3,800 to 7,000] Btu per pound on an annual average
basis throughout the Term of this Service Contract. If with respect to any Billing Period or
Contract Yeaz (1) Throughput Performance Liquidated Damages are payable pursuant to
Section 15.9 hereof, or (2) Annual Electricity Production Liquidated Damages are payable
pursuant to Section 15.10 hereof, the Company may certify in a written report to the County
and the County Engineer that the Btu content of the Processible Waste processed by the
Facility in such Billing Period or Contract Year was outside the applicable allowable range and
the extent, if any, to which either of such liquidated damage payment obligations is
attributable to such Btu content variations. If the County concurs with such certification or
fails to respond within 30 days of such certification, the Throughput Performance Liquidated
Damages or Annual Electricity Production Liquidated Damages which otherwise would have
been payable pursuant to Sections 15.9 or 15.10 hereof shall be adjusted appropriately to
reflect the effect of the Btu variation. If the County does not so concur, it shall notify the
Company within such 30-day period and shall describe in reasonable detail the basis of the
County's rejection. Upon such notice of non-concurrence, thereupon either party may elect to
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refer the dispute to the Independent Engineer for non-binding mediation in accordance with
Section 16.12 hereof. The burden of proof shall be on the Company in making any request
under this Section to demonstrate, solely on daily performance monitoring records maintained
in accordance with the requirements of this Service Contract, that the average annual Higher
Heating Value of Processible Waste processed in such Contract Year was outside the range of
[3,800-7,000] Btu/lb range.
(B} [Waste Shortfalls. In the event that there are insufficient quantities of
Processible Waste to maintain a Facility steaming rate of
[ pounds per hour ( Ib/hour)] to the
turbine generator, the Company may shut down the Facility until sufficient quantities of
Processible Waste are available; provided, however, any such shutdown will in no event provide
relief towards the Company's obligation to meet the Facility Performance Obligations.]
[DISCUSS WITH RW BECK]
(C) [Delivery Shortfall; County Non-Performance. If in any Contract Yeaz, for
any reason other than Uncontrollable Circumstances, the annual available County Processible
Waste is less than the Annual Waste Delivery Commitment, the County shall pay the Company
an amount equal to the Company's shaze of electricity sale revenues which would have been
payable under the Power Purchase Agreement had the shortfall not occurred ("Delivery (
Shortfall Liquidated Damages"). Delivery Shortfall Liquidated Damages shall be calculated by `J
multiplying (1) times (2) the amount of such delivery shortfall, times (3) the Electricity
Price, times (4) the average electricity production (expressed in kWh per Ton of Processible
Waste processed) generated at the Facility during such Contract Year.] [DISCUSS WITH
COUNTY)
SECTION 15.12. BILLING AND PAYMENT. (A) Billine. The County shall pay
the Service Fee in monthly installments in an amount equal to the sum of (1) amounts
calculated in accordance with Sections 15.3, 15.4 and 15.6; (2) Pass Through Costs; (3) any
Extraordinary Items determined on a monthly basis; (4) one-twelfth of any Extraordinary Items
determined on an annual basis; and (5} any adjustments, plus or minus, to reconcile any prior
monthly Excess Operation Fee or Facility Pass Through Cost payments. Any overpayment from
prior months shall be credited against the monthly Service Fee payment. Any amount due the
County on account of exceedences of the Guazanteed Maximum Electricity Consumption shall
be paid as part of the Annual Settlement Statement.
(B) Payment. The Service Fee for each month shall be on account of the
i
Operation Services rendered during the prior month. If the Company provides the County with
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an invoice by the fifteenth day of each month which sets forth the monthly portion of the
'ir/
Service Fee for the prior month and which shows the annual Service Fee and each component
thereof as calculated for the then current Contract Year, together with the accumulated
payments for each component to the date of such invoice and such other documentation or
information as the County may reasonably require to determine the accuracy and
appropriateness of the invoice, then the County shall pay the invoice within 30 days of receipt.
SECTION 15.13. ESTIMATES AND ADJUSTMENTS. (A) Pro Rata
Adiustments. Any computation made on the basis of a stated period shall be adjusted on a pro
rata basis to take into account any initial or final period which is a partial period.
(B), Budeetine. For County budgeting purposes, no later than 120 days
preceding each Contract Yeaz, the Company shall provide to the County a written statement
setting forth for such Contract Year its reasonable estimate of the aggregate Service Fee, each
component thereof, and the CPI Adjustment Factor. The estimate shall not be binding on the
Company but shall establish the basis for monthly billing for such Contract Year, subject to
annual settlement pursuant to this Article.
(C) Adiustment to Service Fee. If any adjustment to the Service Fee is
required pursuant to any express provision of this Service Contract, the pazty requesting the
adjustment shall submit to the other party a written statement setting forth the cause of the
adjustment, the anticipated duration of the adjustment, and the amount of the adjustment, as
appropriate. Except to the extent that a longer period is otherwise specifically provided for in
this Service Contract, any request for adjustment of the Service Fee hereunder shall be
accepted or rejected by the pazty receiving the request within 45 days of receipt. If the
receiving party does not notify the requesting pazty of its rejection and the reasons therefore
within such 45 day period, the request shall be deemed rejected. A rejected request may be
resubmitted, with or without change, and this paragraph shall apply to such resubmitted
request as it applies to an original request. Any Service Fee adjustment request which is not
rejected or deemed rejected shall take effect as of the next monthly billing period thereafter, or
as otherwise agreed to by the parties.
SECTION 15.14. ANNUAL SETTLEMENT. Within 30 days after the end of each
Contract Yeaz, the Company shall provide to the County an annual settlement statement (the
"Annual Settlement Statement") setting forth the actual aggregate Service Fee payable with
respect to such Contract Yeaz and a reconciliation of such amount with the amounts actually
paid by the County with respect to such Contract Year. As pazt of the annual settlement
" ' process, the Company shall pay the County an amount equal to any overpayment made by the
County for electricity which would have been avoided had the Company met the Guaranteed
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Maximum Electricity Consumption, together with interest on such overpayment at the Overdue j
Rate computed from the time such guarantee was exceeded. The County or the Company, as
appropriate, shall pay all known and undisputed amounts within 60 days after receipt or
delivery of the Annual Settlement Statement. If any amount is then in dispute or is for other
reasons not definitely known at the time the Annual Settlement Statement is due, the Annual
Settlement Statement shall identify the subject matter and reasons for such dispute or
uncertainty and, in cases of uncertainty, shall include a good faith estimate by the Company of
the amount in question. When the dispute is resolved or the amount otherwise finally
determined, the Company shall file with the County an amended Annual Settlement Statement
which shall, in all other respects, be subject to this Section.
SECTION 15.15. BILLING STATEMENT DISPUTES. If the County disputes
any amount billed by the Company, the County may either (1) pay the disputed amount when
otherwise due, and provide the Company with a written objection indicating the amount that is
being disputed and providing all reasons then known to the County for its objection to or
disagreement with such amount, or (2) withhold payment of the disputed amount and provide
the Company with written objection as aforesaid within the time when such amount would
otherwise have been payable. When any billing dispute is finally resolved, if payment by the
County to the Company of amounts withheld or reimbursement to the County by the Company i~~,
of amounts paid under protest is required, such payment or reimbursement shall be made
within 45 days of the date of resolution, with interest at the Overdue Rate.
SECTION 15.16. TAXES. [Except as otherwise provided in this Service
Contract, the Company shall be responsible for all federal, State, county and municipal Taxes
and any other Tax imposed in connection with its performance of the Contract Services;
provided that the County shall be responsible for all personal property and real property Taxes
which may be assessed against the Facility or the Site by any Governmental Body.] [DISCUSS
WITH COUNTY]
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ARTICLE XVI
`~+rr BREACH, DEFAULT, REMEDIES AND TERMINATION
SECTION 16.1. REMEDIES FOR BREACH. The parties agree that, except as
otherwise provided in Sections 16.2, 16.4, 16.5 and 16.6 with respect to termination rights, in
the event that either party breaches this Service Contract, the other party may exercise any
legal rights it may have under this Service Contract, under the Security Instruments or under
Applicable Law to recover damages or to secure specific performance, and that such rights to
recover damages and to secure specific performance shall ordinarily constitute adequate
remedies for any such breach. Neither party shall have the right to terminate this Service
Contract for cause except upon the occurrence of an Event of Default.
SECTION 16.2. EVENTS OF DEFAULT BY THE COMPANY. (A) Events of
Default Not Reouirine Previous Notice or Further Cure Onnortunity for Termination. Each of
the following shall constitute an Event of Default by the Company upon which the County, by
notice to the Company, may terminate this Service Contract without any requirement of having
given notice previously or of providing any further cure opportunity:
(1) Security for Performance. The failure of the Company to obtain,
) maintain in full force and effect or renew within 30 days prior to expiration any Security
1.'~ Instrument required by Article XVIII as security for the performance of this Service
Contract, without excuse for Uncontrollable Circumstances or County Fault;
(2) Failure to Achieve Acceptance. The failure of the Company to achieve
Acceptance prior to the end of the Extension Period;
(3) Insolvency. The insolvency of the Company or the Guazantor as
determined under the Bankruptcy Code;
(4) Voluntary Bankruptcy. The filing by the Company or the Guarantor of a
petition of voluntary bankruptcy under the Bankruptcy Code; the consenting of the
Company or the Guarantor to the filing of any bankruptcy or reorganization petition
against the Company or the Guarantor under the Bankruptcy Code; or the filing by the
Company or the Guazantor of a petition to reorganize the Company or the Guarantor
pursuant to the Bankruptcy Code;
(5) Involuntary Bankruptcy. The issuance of an order of a court of
competent jurisdiction appointing a receiver, liquidator, custodian or trustee of the
Company or the Guarantor or of a major part of the Company's or the Guazantor's
property, respectively, or the filing against the Company or the Guazantor of a petition
to reorganize the Company or the Guarantor pursuant to the Bankruptcy Code, which
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order shall not have been dischazged or which filing shall not have been dismissed '
i
within 90 days after such issuance or filing, respectively;
(6) Default of Guazantor. The failure of the Guarantor to perform any
payment or other obligation under the Guaranty in a timely manner, the material
untruth of any representation or warranty made by the Guarantor in the Guaranty
Agreement, or the failure of the Guarantor to comply with the terms and conditions of
Section 18.1; or
(7) Guarantor Credit Standine. The failure of the Company to provide credit
enhancement when and as required by subsection 18.1(C).
(B) Events of Default Reauirine Previous Notice and Cure Oooortunity for
Termination. It shall be an Event of Default by the Company upon which the County may
terminate this Service Contract, by notice to the Company, if: (1) any representation or
warranty of the Company hereunder or the Guarantor under the Guaranty Agreement was
false or inaccurate in any material respect when made, and the legality of this Service Contract
or the Guaranty Agreement or the ability of the Company to carry out its obligations hereunder
or the ability of the Guarantor to cazry out its obligation thereunder is thereby adversely
f affected; or (2) the Company fails, refuses or otherwise defaults in its duty (a) to pay any
amount required to be paid to the County under this Service Contract within 60 days following
the due date for such payment, or (b) to perform any material obligation under this Service
Contract (unless such default is excused by an Uncontrollable Circumstance or County Fault
as and to the extent provided herein), except that no such default (other than those set forth in
subsection (A) of this Section) shall constitute an Event of Default giving the County the right
to terminate this Service Contract for cause under this subsection unless:
(1) The County has given prior written notice to the Company stating that in
its opinion a specified default in its duty to pay or perform exists which gives the
County a right to terminate this Service Contract for cause under this Section, and
describing the default in reasonable detail; and
(2) The Company has not initiated within a reasonable time (in any event
not more than 30 days from the initial default notice) and continued with due diligence
to carry out to completion all actions reasonably necessary to correct the default and
prevent its recurrence.
If the Company shall have initiated within such reasonable time and continued with due
diligence to carry out to completion all such actions, the default shall not constitute an Event
{ , of Default during such period of time (in any event not more than 60 days from the initial
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~ default notice) as the Company shall continue with due diligence to carry out to completion all
such actions.
(C) Other Remedies Uoon Comganv Event of Default. The right of
termination provided under this Section upon an Event of Default by the Company is not
exclusive. If this Service Contract is terminated by the County for an Event of Default by the
Company, the County shall have the right to pursue a cause of action for actual damages and
to exercise all other remedies which are available to it under this Service Contract, under the
Security Instruments and under Applicable Law. Without limiting the foregoing, upon any
termination of the Company for an Event of Default the damages payable by the Company to
the County shall include the incremental costs of completing the Facility and any Capital
Modifications then under construction, remediating any public health and safety problems,
and paying all unpaid fines and penalties payable to any Governmental Body, in each case
resulting from any breach of this Service Contract by the Company. Such termination
damages shall also include, without limitation, cone-time payment equivalent to the sum of
(1) the excess, if any, of (a) the estimated present value (at a [6%] discount factor) of the
reasonable costs of Facility operations, maintenance, repair and replacement, by the County, if
the Facility is to be operated, maintained, repaired and replaced by the County, or under any
new Service Contract with a replacement operator chosen as result of a competitive selection
t w„r
process, if the Facility is to be operated, maintained, repaired and replaced pursuant to such
an agreement, in either case for a period equal to the balance of the Term at the time of
termination, over (b) the estimated present value (at a [6%] discount factor) of the aggregate
Service Fee for the balance of the Term; plus (2) all reasonable costs incurred by the County in
procuring, negotiating and implementing a new Service Contract with a replacement operator,
if any. The Company shall not be entitled to any compensation for services provided
subsequent to receiving any notice of termination for an Event of Default under this Section.
SECTION 16.3. LIMITATION OF LIABILITY BY COMPANY. (A) Monetary
Limit Generally. Notwithstanding anything to the contrary contained herein, the Company's
liability to the County with respect to termination damages shall not exceed an amount equal
to 100% of the Fixed Design/Build Price, which amount shall be lowered to 200% of the initial
full Contract Year's Service Fee on the second anniversary of the Acceptance Date.
(B) Exclusions. Excluded from the stated monetary limitation on liability set
forth in subsection (A) above, are the following damages, costs or expenses:
(i) any design, construction or operating overruns or losses sustained by
the Company, the Guazantor, or any other pazty in connection with the Service
4`" Contract, the Guaranty Agreement or any other agreement relating hereto;
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(ii) any claims, losses and liabilities to third parties in any Legal Proceeding;
(iii) any fines and penalties paid to any Governmental Body; '
(iv) any indemnity payments made to the County; and
(vj any liquidated damages or other non-performance damages paid to the
County or incurred prior to the date of termination.
SECTION 16.4. EVENTS OF DEFAULT BY THE COUNTY. (A) Events of
Default Permitting Termination. Each of the following shall constitute an Event of Default by
the County upon which the Company, by notice to the County, may terminate this Service
Contract:
(1) Representations and Warranties. Any representation or warranty of the
CounTy hereunder was false or inaccurate in any material respect when made, and the
legaliTy of this Service Contract or the abiliTy of the County to carry out its obligations
hereunder is thereby adversely affected;
(2) Failure to Pav or Perform. The failure, refusal or other default by the
County in its duTy: (1) to pay the amount required to be paid to the Company under this
Service Contract within 60 days following the due date for such payment; or (2) to
r perform any other material obligation under this Service Contract (unless such default is (
excused by an Uncontrollable Circumstance or Company Fault); or
(3) Bankruptcy. The authorized filing by the County of a petition seeking
relief under the Bankruptcy Code, as applicable to political subdivisions which are
insolvent or unable to meet their obligations as they mature; provided that the
appointment of a financial control or oversight boazd by the State for the County shall
not in and of itself constitute an Event of Default hereunder.
(B) Notice and Cure Opportunity. No such default described in
subsection (A) of this Section shall constitute an Event of Default giving the Company the right
to terminate this Service Contract for cause under this subsection unless:
(1) The Company has given prior written notice to the County stating that a
specified default which gives the Company a right to terminate this Service Contract for
cause under this Section, and describing the default in reasonable detail; and
(2) The County has neither challenged in an appropriate forum the
Company's conclusion that such failure or refusal to perform has occurred or
constitutes a material breach of this Service Contract nor corrected or diligently taken
steps to correct such default within a reasonable period of time but not more than 30
days from the date of the notice given pursuant to the preceding paragraph (but if the
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~ County shall have diligently taken steps to correct such default within a reasonable
period of time, the same shall not constitute an Event of Default for as long as the
County is continuing to take such steps to correct such default).
(C) Termination Liquidated Damaees During the Operation Period. If this
Service Contract is terminated by the Company for cause as a result of an Event of Default by
the County following the Acceptance Date, the County shall pay the Company, as liquidated
damages upon any such termination, the same amount which would be payable under
Section 16.5 if this Service Contract were terminated during the Operation Period, according to
the month of termination, at the election of the County for convenience and without cause.
SECTION 16.5. COUNTY CONVENIENCE TERMINATION DURING THE
OPERATION PERIOD. (A) Termination Right and Fee. The CounTy shall have the right at any
time during the Operation Period, exercisable in its sole discretion, for its convenience and
without cause, to terminate this Service Contract upon 60 days' written notice to the Company.
If the CounTy exercises its right to terminate the Service Contract pursuant to this Section, the
County shall pay the Company a convenience termination fee equal to [$500,000], reduced by
1/240 of such amount for each month which has elapsed following the Acceptance Date to and
including the month in which the Termination Date occurs. If this Service Contract is renewed
\`'W.~ pursuant to Section 4.2, then the convenience termination fee payable during the Renewal
Term shall be zero. [DISCUSS WITH COUNTY)
(B) Uncontrollable Circumstances. In the event an Uncontrollable
Circumstance causes a total constructive loss of the Facility, or in the event an Uncontrollable
Circumstance causes an extraordinary increase in County costs, and thereupon the County
elects to exercise its right of convenience termination under this Section, the amount specified
in subsection (A) of this Section ([$500,000] as reduced) shall be excluded from the termination
fee payable by the County. A "total constructive loss" for this purpose shall be deemed to have
occurred: (1) if so determined by the casualty insurance carrier; or (2) if the Facility is
substantially inoperable for a period of at least six months following the occurrence of the
Uncontrollable Circumstance. "An extraordinary increase° in County costs shall be deemed to
have occurred for this purpose if costs proposed to be paid to the Company resulting from the
Uncontrollable Circumstance would cause an increase of more than 20% from the prior
Contract Yeaz in the total Service Fee payable under this Service Contract (excluding the
amortization of debt incurred by the Company for Capital Modifications resulting from
Uncontrollable Circumstances) when compazed to such amounts that would have been payable
- during the comparable periods had no Uncontrollable Circumstances occurred.
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(C) Payment of Amounts Owing Throueh the Termination Date. Upon any {
termination pursuant to this Section, the Company shall also be paid all amounts due for the
Contract Services to be paid as pazt of the Service Fee but not yet paid as of the date of
termination.
(D) Termination Fee Pavment Contineent Upon Surrender of Possession.
The County shall have no obligation to pay the applicable termination fee provided for under
this Section except concurrently with the surrender of possession and control by the Company
of the Facility to the County.
(E) Adeauacy of Termination Pavment. The Company agrees that the
applicable termination fee provided in this Article shall fully and adequately compensate the
Company and all Subcontractors for all foregone potential profits, Loss-and-Expense, and
charges of any kind whatsoever (whether foreseen or unforeseen), including initial transition
and mobilization costs and demobilization, employee transition and other similar wind-down
costs, attributable to the termination of the Company's right to perform this Service Contract.
(F) Consideration for Convenience Termination Pavment. The right of the
County to terminate this Service Contract for its convenience and in its sole discretion in
accordance with this Article constitutes an essential part of the overall consideration for this
Service Contract, and the Company hereby waives any right it may have under Applicable Law
to assert that the County owes the Company a duty of good faith dealing in the exercise of such
right.
(G) Completion or Continuance by County. After the date of any termination
under this Section, the County may at any time (but without any obligation to do so) take any
and all actions necessary or desirable to continue and complete the Contract Services so
terminated, including, without limitation, entering into contracts with other operators and
contractors.
SECTION 16.6. OBLIGATIONS OF THE COMPANY UPON TERMINATION OR
EXPIRATION. (A) Company Obli¢ations. Upon a termination of the Company's right to
perform this Service Contract under Section 16.2, 16.4 or 16.5 or upon the expiration of this
Service Contract under Section 4.1, the Company shall, as applicable:
(1) stop the Contract Services on the date and to the extent specified by the
County;
(2) promptly take all action as necessary to protect and preserve all
materials, equipment, tools, facilities and other property;
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...m (3) promptly remove from the Facility all equipment, implements,
`rr? '
machinery, tools, temporary facilities of any kind and other property owned or leased by the
Company (including, but not limited to sheds, trailers, workshops and toilets), and repair any
damage caused by such removal;
(4) clean the Facility and the Site and leave them in a neat and orderly
condition;
(5) subject to subsection (B) of this Section, promptly remove all employees
of the Company and any Subcontractors and vacate the Facility;
(6) promptly deliver to the County a list of all supplies, materials,
machinery, equipment, property and special order items previously delivered or fabricated by
the Company or any Subcontractor but not yet incorporated in the Facility;
(7) deliver to the County the Operation and Maintenance Manual and all
computer programs used at the Facility in the performance of the Contract Services, including
all revisions and updates thereto;
(8) deliver to the County a copy of all books and records in its possession
relating to the performance of the Contract Services;
(9) provide the County with a list of all files, and access and security codes
with instructions and demonstrations which show how to open and change such codes;
(10) advise the County promptly of any special circumstances which might
limit or prohibit cancellation of any Subcontract;
(11) promptly deliver to the County copies of all Subcontracts, together with a
statement of:
(a) the items ordered and not yet delivered pursuant to each agreement;
(b) the expected delivery date of all such items;
(c) the total cost of each agreement and the terms of payment; and
(d) the estimated cost of canceling each agreement;
(12) assign to the County any Subcontract that the County elects in writing,
at its sole election and without obligation, to have assigned to it. The County shall assume,
and the Company shall be relieved of its obligations under, any Subcontract so assigned;
(13) unless the County directs otherwise, terminate all Subcontracts and
make no additional agreements with Subcontractors;
(14) as directed by the County, transfer to the County by appropriate
instruments of title, and deliver to the Facility (or such other place as the County may specify),
all special order items pursuant to this Service Contract for which the County has made or is
obligated to make payments;
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(15) promptly transfer to the County all warranties given by any j~"+.
manufacturer or Subcontractor with respect to particular components of the Facility or the
Operation Services;
(16) notify the County promptly in writing of any Legal Proceedings against
the Company by any Subcontractor or other third parties relating to the termination of the
Design/Build Work or the Operation Services (or any Subcontracts);
(17) give written notice of termination, effective as of date of termination of
this Service Contract, promptly under each policy of Required Insurance (with a copy of each
such notice to the County), but permit the County to continue such policies thereafter at its
own expense, if possible;
(18) arrange its dealings with employees such that no "successor clause" or
accrued benefit liability will bind the County in the event the County determines to offer
employment to the Company's employees at the Facility following the Termination Date; and
(19) take such other actions, and execute such other documents as may be
necessary to effectuate and confirm the foregoing matters, or as may be otherwise necessary or
desirable to minimize the County's costs, and take no action which shall increase any amount
payable to the County under this Service Contract.
(B) Hirine of Comnanv Personnel. Upon the termination or expiration of this
Service Contract under any provision hereof, the County or any successor operator of the
Facility designated by the County shall have the right to offer employment on any terms it may
choose to any Company employee employed full time at the Facility. No Company employment
agreement, job offer, letter or similar document may contravene this right. The County or its
designated successor operator shall extend any such job offer within 30 days of the expiration
or termination of this Service Contract. The Company shall assist and cooperate with any such
employee transition in the manner as reasonably requested by the County.
(C) Continuity of Service and Technical Suuoort. Upon the termination of
the Company's right to perform this Service Contract under Section 16.2, 16.4 or 16.5 or upon
the expiration of this Service Contract under Section 4.1, the Company, at the request and
direction of the County, shall provide for an effective continuity of service and the smooth and
orderly transition of management to the County or any replacement operator designated by the
County. Such service shall be for a period of up to 180 days and shall include providing
technological and design advice and support and delivering any plans, drawings, renderings,
blueprints, operating manuals, computer programs, spare parts or other information useful or
necessary for the County or any replacement operator designated by the County to carry out
and complete the Facility and to perform the Operation Services. In addition, the Company
"rm'
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shall provide the County and any replacement operator with aone-time training program
relating to the operation of the Facility, including any Capital Modifications thereto.
(D) Comroany Payment of Certain Costs. If termination is pursuant to
Section 16.2, or upon the expiration of this Service Contract under Section 4.1, the Company
shall be obligated to pay the costs and expenses of undertaking its obligations under
subsection (A) of this Section. If the Company fails to comply with any obligation under this
Section, the County may perform such obligation and the Company shall pay on demand all
reasonable costs thereof subject to Cost Substantiation.
(E) County Payment of Certain Costs. If termination is for the convenience
of the County under Section 16.5 or due to a County Event of Default pursuant to
Section 16.4, the County shall pay to the Company within 60 days of the date of the
Company's invoice supported by Cost Substantiation all reasonable cost and expenses incurred
by the Company in satisfying its obligations under subsection (A) of this Section subject to a
maximum limitation of [$50,000]. [DISCUSS WITH COUNTY)
(F) Exit Test. Not later than six months prior to the Termination Date
resulting from the expiration of this Service Contract or concurrently with the termination
resulting from an early termination of this Service Contract, the Company shall prepare and
submit to the County for its approval a plan for exit testing of the FaciliTy, which shall conform
to the requirements of Appendix _ in all respects. The County shall submit its comments on
the exit testing plan to the Company within 30 days of receipt thereof, and the Company
thereafter shall prepare a final exit testing plan, incorporating the County's comments, for
submission to the County within 30 days. The Company (or a third party at the County's
option), at the request of the County and after reasonable notice to the Company, shall perform
the exit test of the Facility for compliance with the Exit Test Procedures and Standards in the
first month of the 3-month period preceding the end of the Term hereof. If such test shows
that the Facility is operating out of compliance with the Exit Test Procedures and Standards,
then within 14 days of such test results, the Company shall submit to the County a plan for
remediation and retesting. The County shall have 14 days to approve such plan, which
approval shall not to be unreasonably withheld. The Company shall make all repairs,
replacements, renewals and operating changes and take all other actions which may be
necessary to enable the FaciliTy to meet the Exit Test Procedures and Standards. The FaciliTy
shall then be re-tested to demonstrate that the necessary corrective action has been taken and
the Facility is in compliance with the Exit Test Procedures and Standazds. No such testing or
retesting shall relieve the Company of its obligations under this Service Contract during the
performance of the test or retest.
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SECTION 16.7. SURVIVAL OF CERTAIN PROVISIONS UPON TERMINATION. ('~*w.
All representations and wazranties of the parties hereto contained in Article II and the rights
and obligations of the pazties hereto pursuant to Sections [1.2(I), 4.5(B), 4.1(C), 6.4, 6.9(D), 7.9,
8.4, 8.5, 8.6, 10.9, 10.12, 12.2(D), 12.5(I), 12.6, 13.6, 13.7, 15.15, 16.2, 16.3, 16.4, 16.5,
16.6, 16.7, 16.10, 17.1, 17.3, 19.2, 19.3 and 19.6(D)j shall survive the termination of this
Service Contract. No termination of this Service Contract shall (1) limit or otherwise affect the
respective rights and obligations of the parties hereto accrued prior to the date of such
termination; or (2) preclude either party from implementing the other party in any Legal
Proceeding originated by a third-party as to any matter occurring during the Term of this
Service Contract.
SECTION 16.8. NO WAIVERS. No action of the County or Company
pursuant to this Service Contract (including, but not limited to, any investigation or payment),
and no failure to act, shall constitute a waiver by either party of the other party's compliance
with any term or provision of this Service Contract. No course of dealing or delay by the
County or Company in exercising any right, power or remedy under this Service Contract shall
operate as a waiver thereof or otherwise prejudice such pazty's rights, powers and remedies.
No single or paztial exercise of (or failure to exercise) any right, power or remedy of the County
or the Company under this Service Contract shall preclude any other or further exercise
thereof or the exercise of any other right, power or remedy.
SECTION 16.9. NO CONSEQUENTIAL OR PUNITIVE DAMAGES. In no event
shall either party hereto be liable to the other or obligated in any manner to pay to the other
any special, incidental, consequential, punitive or similar damages based upon claims azising
out of or in connection with the performance or non-performance of its obligations or otherwise
under this Service Contract, or the material falseness or inaccuracy of any representation
made in this Service Contract, whether such claims are based upon contract, tort, negligence,
warranty or other legal theory; provided, however, that nothing in this Section shall limit the
obligation of the Company to indemnify the County for any special, incidental, consequential,
punitive or similar damages payable to third parties resulting from any act or circumstance for
which the Company is obligated to indemnify the County hereunder.
SECTION 16.10. FORUM FOR DISPUTE RESOLUTION. It is the express
intention of the parties that all Legal Proceedings related to this Service Contract or to the
Facility or to any rights or any relationship between the parties azising therefrom shall be
solely and exclusively initiated and maintained in courts of the State located in Hawaii County.
The Company and the County each irrevocably consents to the jurisdiction of such courts in
.rr
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' any such Legal Proceeding, waives any objection it may have to the laying of the jurisdiction of
any such Legal Proceeding, and the Company waives its right to a trial by jury.
SECTION 16.11. NON-BINDING MEDIATION
(A) Rights to Request and Decline. Either pazty hereto may give the other
pazty written notice of any dispute with respect to the Company's satisfaction of any
Acceptance Standard, any Performance Guarantee, any technical matter or any other matter
specified herein for resolution by mediation. Such notice shall specify a date and location for a
meeting of the parties hereto at which such parties shall attempt to resolve such dispute. In
the event that such dispute cannot be resolved by the parties hereto within 30 days, such
dispute shall be referred to a Mediator for advice and non-binding mediation.
(B) Procedure. The Mediator shall be a professional engineer, attorney or
other professional mutually acceptable to the parties who has no current or on-going
relationship to either party. The Mediator shall have full discretion as to the conduct of the
mediation. Each party shall participate in the Mediator's program to resolve the dispute until
and unless the parties reach agreement with respect to the disputed matter or one party
determines in its sole discretion that its interests aze not being served by the mediation.
(C) Non-Bindin¢ Effect. Mediation is intended to assist the parties in
resolving disputes over the correct interpretation of this Service Contract. No Mediator shall be
empowered to render a binding decision.
(D) Relation to Judicial Leal Proceedings. Nothing in this Section shall
operate to limit, interfere with or delay the right of either party under this Article to commence
judicial Legal Proceedings upon a breach of this Service Contract by the other party, whether in
lieu of, concurrently with, or at the conclusion of any Non-Binding Mediation. [DISCUSS WITH
B.J.]
a..~
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ARTICLE XVII
INSURANCE, UNCONTROLLABLE CIRCUMSTANCES
AND INDEMNIFICATION
SECTION 17.1. INSURANCE. (A) Company Insurance. At all times during
the Term of this Service Contract, the Company shall obtain and maintain the Required
Insurance in accordance with Appendix _ and shall pay all premiums with respect thereto as
the same become due and payable.
(B) Insurers. Deductibles and County Rights. All insurance required by this
Section shall be obtained and maintained from financially sound and generally recognized
responsible insurance companies meeting the qualifications set forth in Appendix The
insurers shall be selected by the Company with the consent of the County, which consent shall
not be unreasonably withheld, and authorized to write such insurance in the State. The
insurance coverage shall be written with deductible amounts within the limits allowed in
Appendix and the Company shall be responsible for any deductible amounts. The Company
shall also be responsible for all self-insured retentions contained in its insurance coverages, as
well as any excluded losses if such losses are within the liability of the Company hereunder.
All policies evidencing such insurance shall provide for: (1) payment of the losses to the
CounTy, and to the Company as their respective interests may appear; and (2) at least 30 days
~ prior written notice of the cancellation thereof to the Company and the County. All policies of
insurance required by this Section shall be primary insurance without any right of contribution
from other insurance carried by the County. The County shall have the right to fully
participate in all insurance claim settlement negotiations and to approve all final insurance
settlements, which approval shall not be unreasonably withheld.
(C) Certificates. Policies and Notice. The delivery by the Company to the
County of certificates of insurance is required by this Service Contract as a condition to the
occurrence of the Construction Commencement Date (Required Design/Build Period
Insurance) and as a condition to the occurrence of the Acceptance Date (Required Operation
Period Insurance). The Company shall also supply the County, upon request, with certified
copies of such policies promptly following issuance by the insurers. Not later than 60 days
prior to the beginning of each Contract Year throughout the Term, the Company shall furnish
certificates of insurance to the County to confirm the continued effectiveness of the Required
Insurance. Whenever a Subcontractor is utilized, the Company shall either obtain and
maintain or require the Subcontractor to obtain and maintain insurance in accordance with
the applicable requirements of Appendix
(D) Maintenance of Insurance Covera¢e. If the Company fails to pay any
premium for Required Insurance, or if any insurer cancels any Required Insurance policy and
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the Company fails to obtain replacement coverage so that the Required Insurance is i ^"w
maintained on a continuous basis, then, at the County's election (but without any obligation to
do so), the County, following notice to the Company, may pay such premium or procure similaz
insurance coverage from another company or companies and upon such payment by the
County the amount thereof shall be immediately reimbursable to the County by the Company.
The Company shall not perform Design/Build Work during any period when any policy of
Required Design/Build Period Insurance is not in effect. The Company shall comply with all
applicable Required Insurance in accordance with the requirements of this Service Contract
during the Term hereof. The failure of the Company to obtain and maintain any Required
Insurance shall not relieve the Company of its liability for any losses intended to be insured
thereby. Should any failure to provide continuous insurance coverage occur, the Company
shall indemnify and hold harmless the County in the manner provided in Section 17.3, from
and against any Loss-and-Expense arising out of such failure. The purchase of insurance to
satisfy the Company's obligations under this Section shall not be a satisfaction of any
Company liability under this Service Contract or in any way limit, modify or satisfy the
Company's indemnity obligations hereunder.
SECTION 17.2. UNCONTROLLABLE CIRCUMSTANCES. (A) Relief from
( Obligations. Except as expressly provided under the terms of this Service Contract, neither
party to this Service Contract shall be liable to the other for any loss, damage, delay, default or ~.rr0
failure to perform any obligation to the extent it results from an Uncontrollable Circumstance.
The parties agree that the relief for an Uncontrollable Circumstance described in this
Section shall apply to all obligations in this Service Contract, except to the extent specifically
provided otherwise, notwithstanding that such relief is specifically mentioned with respect to
certain obligations in this Service Contract but not other obligations. The occurrence of an
Uncontrollable Circumstance shall not excuse or delay the performance of a party's obligation
to pay monies previously accrued and owing under this Service Contract, or to perform any
obligation hereunder not affected by the occurrence of the Uncontrollable Circumstances. The
County shall pay the Service Fee during the continuance of any Uncontrollable Circumstance,
adjusted to account for any cost reductions achieved through Company mitigation measures
required by subsection (B) of this Section, as well as for any cost increases to which the
Company is entitled under subsection (C) of this Section.
(B) Notice and Mitieation. The pazty that asserts the occurrence of an
Uncontrollable Circumstance shall notify the other party by telephone or facsimile, on or
promptly after the date the party experiencing such Uncontrollable Circumstance first knew of
the occurrence thereof, followed within 15 days by a written description of: (1) the
~Wyi~
Uncontrollable Circumstance and the cause thereof (to the extent known); and (2) the date the
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Uncontrollable Circumstance began, its estimated duration, the estimated time during which
the performance of such party's obligations hereunder shall be delayed, or otherwise affected.
As soon as practicable after the occurrence of an Uncontrollable Circumstance, the affected
party shall also provide the other party with an description of: (1) the amount, if any, by which
the Design/Build Price or the Service Fee is proposed to be adjusted as a result of such
Uncontrollable Circumstance; (2) any areas where costs might be reduced and the approximate
amount of such cost reductions; and (3) its estimated impact on the other obligations of such
party under this Service Contract. The affected party shall also provide prompt written notice
of the cessation of such Uncontrollable Circumstance. Whenever such act, event or condition
shall occur, the party claiming to be adversely affected thereby shall, as promptly as
practicable, use all reasonable efforts to eliminate the cause therefor, reduce costs and resume
performance under this Service Contract. While the Uncontrollable Circumstance continues,
the affected party shall give notice to the other party, before the first day of each succeeding
month, updating the information previously submitted. The party claiming to be adversely
affected by an Uncontrollable Circumstance shall bear the burden of proof, and shall furnish
promptly any additional documents or other information relating to the Uncontrollable
Circumstance reasonably requested by the other pazty.
t (C) Conditions to Performance Designn/Build Price, Service Fee or Schedule
Relief. If and to the extent that an Uncontrollable Circumstance materially expands the scope
of the Company's obligations hereunder, materially interferes with, materially delays or
materially increases the cost of the Company's performing its obligations hereunder, the
Company shall, subject to the limitations specifically provided for in this Service Contract; be
entitled to relief from the performance of its obligations hereunder, an extension of schedule or
an increase in the Design/Build Price or the Service Fee, or any combination thereof, which
properly reflects the interference with performance, the time lost or the amount of the
increased cost, in each case as a result thereof, but only to the minimum extent reasonably
forced on the Company by the event, and the Company shall perform all other Contract
Services. The proceeds of any Required Insurance available to meet any such increase cost,
and the payment by the Company of any deductible, shall be applied to such purpose prior to
any determination of cost increase payable by the County under this Section. Any cost
reduction achieved through the mitigating measures undertaken by the Company pursuant to
subsection (B) of this Section upon the occurrence of an Uncontrollable Circumstance shall be
reflected in a reduction of the amount by which the Design/Build Price or the Service Fee
would have otherwise been increased or shall serve to reduce the Design/Build Price or the
Service Fee to reflect such mitigation measures, as applicable. In the event that the Company
believes it is entitled to any relief on account of an Uncontrollable Circumstance, it shall
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' furnish the County written notice of the specific relief requested and detailing the event giving j"
rise to the claim within 30 days after the giving of notice delivered pursuant to subsection (B) of
this Section, or if the specific relief cannot reasonably be ascertained and such event detailed
within such 30-day period, then within such longer period within which it is reasonably
possible to detail the event and ascertain such relief. Within 30 days after receipt of such a
timely submission from the Company, the County shall issue a written determination as to the
extent, if any, it concurs with the Company claim for performance, price or schedule relief, and
the reasons therefore. The Company acknowledges that its failure to give timely notice
pertaining to an Uncontrollable Circumstance as required under this Section may adversely
affect the County. To the extent the County asserts that any such adverse effect has occurred
and that the relief to the Company or the additional cost to be borne by the County under this
subsection should be reduced to account for such adverse effect, the Company shall have the
affirmative burden of refuting the County's assertion. Absent such refutation, the reduction in
relief to the Company and the reduction in additional cost to the County asserted by the
CounTy in such circumstances shall be effective. The agreement of the parties as to the specific
relief to be given the Company hereunder on account of an Uncontrollable Circumstance shall
be evidenced by a Contract Administration Memorandum, Service Contract amendment or a
Change Order, as applicable.
C, (D) Capital Modifications. Before proposing any modification to the Service
Fee in its notice of requested adjustment under this Section, the Company shall determine
whether any increased costs of operation and maintenance of the Facility resulting from an
Uncontrollable Circumstance can reasonably and prudently be reduced by the undertaking of a
Capital Modification. In the event that the Company makes such a determination, the
Company shall so advise the County in accordance with Sections 14.3 and 14.5. The County
shall thereupon determine, in its sole discretion, whether such a Capital Modification shall be
undertaken and shall so advise the Company within 60 days of receipt of such notice by the
Company. In no event shall the Company undertake such Capital Modification except at the
express written direction of the County.
(E) Acceptance of Adjustment Constitutes Release. The Company's
acceptance of any performance, price or schedule adjustment under this Section shall be
construed as a release of the County by the Company (and all persons claiming by, through, or
under the Company) for any and all losses or expenses resulting from, or otherwise attributable
to, the event giving rise to the adjustment claimed.
SECTION 17.3. INDEMNIFICATION BY THE COMPANY. The Company shall
indemnify, defend and hold harmless the County, and its elected officials, appointed officers,
v..ir'
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~r.. employees, representatives, agents, consultants and contractors (each, a °County Indemnitee°),
'`r.r
from and against (and pay the full amount ot) any and all boss-and-Expense incurred by a
County Indemnitee to third parties arising from or in connection with (or alleged to arise from
on in connection with): (1) any failure by the Company to perform its obligations under this
Service Contract; or (2) the negligent acts, errors or omissions or willful misconduct of the
Company or any of its officers, directors, employees, agents, representatives or Subcontractors
in connection with this Service Contract. The Company shall also indemnify the County as
and to the extent provided elsewhere in this Service Contract. The Company's indemnity
obligations hereunder shall not be limited by any coverage exclusions or other provisions in
any insurance policy maintained by the Company which is intended to respond to such events.
The Company shall not, however, be required to reimburse or indemnify any County
Indemnitee for any Loss-and-Expense to the extent caused by the negligence or willful
misconduct of any County Indemnitee or to the extent attributable to any Uncontrollable
Circumstance. A County Indemnitee shall promptly notify the Company of the assertion of any
claim against it for which it is entitled to be indemnified hereunder, and the Company shall
have the right to assume the defense of the claim in any Legal Proceeding and to approve any
settlement of the claim. These indemnification provisions aze for the protection of the County
j Indemnitee only and shall not establish, of themselves, any liability to third pazties. The
provisions of this Section shall survive termination of this Service Contract. (DISCUSS
WHETHER TO HAVE A RECIPROCAL INDEMNITY PROVISION WITH B.J.]
'w?
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ARTICLE XVIII
`r.r SECURITY FOR PERFORMANCE
SECTION 18.1. GUARANTOR. (A) Guazanty Agreement. The Company shall
cause the Guazanty Agreement to be provided and maintained by the Guazantor during the
Term hereof in the form attached hereto as a Transaction Form.
(B) Material Decline in Guarantor's Credit Standing. For purposes of this
Section, a "Material Decline in Guarantor's Credit Standing" shall be deemed to have occurred
if: (1) in the event that the Guazantor has long-term senior debt outstanding which has a
credit rating by one of the Rating Services, such rating by one of the Rating Services is reduced
below investment grade level; or (2) in the event that the Guarantor does not have long-term
senior debt outstanding or such debt is not rated by one of the Rating Services, the Guarantor
fails to meet any of the minimum financial criteria set forth in Appendix _ ("Minimum
Financial Criteria"). [NOTE: TO BE NEGOTIATED WITH SELECTED COMPANY.] The
Company immediately shall notify the County of any Material Decline in the Guarantor's Credit
Standing.
(C) Credit Enhancement. If a Material Decline in Guarantor's Credit
Standing occurs, the Company shall cause to be provided credit enhancement of its obligations
hereunder within 30 days after such occurrence. Such credit enhancement shall be in the
form either of: (1) an unconditional guarantee of all of the Company's obligations hereunder
provided by a corporation or financial institution whose long-term senior debt is or would be
rated investment grade by one of the Rating Services; or (2) a letter of credit securing the
Company's Design/Build Work obligations hereunder in a face amount equal to ]
provided by a financial institution whose long-term senior debt is or would be rated investment
grade by one of the Rating Services. The Guazantor shall maintain such credit enhancement
until either the Guarantor's credit standing has been restored to investment grade or it
otherwise meets all of the Minimum Financial Criteria.
(D) Annual Reports. The Company shall furnish the County, within 120
days after the end of the Guarantor's fiscal yeaz, consolidating balance sheets and income
statements for the Guarantor attached to the audited year end financial statements reported
upon by the Guazantor's independent public accountant. If applicable, the Company shall also
furnish the County with copies of the quarterly and annual reports and other filings of the
Guarantor filed with the Securities and Exchange Commission.
SECTION 18.2. BONDS. (A) Construction Performance and Payment Bonds.
On or before the Construction Commencement Date and any Capital Modification undertaken
by the Company, the Company shall provide the Construction Performance Bond and the
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Payment Bond, each in an amount equal to the Fixed Design/Build Price relating to the
construction work (plus a reasonable amount to be determined by the pazties for any estimated ~
Fixed Design/Build Price Adjustments), as financial security for the faithful performance and
payment of its Design/Build Period obligations hereunder. The Construction Performance
Bond and the Payment Bond shall be substantially in the form set forth in the Transaction
Forms and shall be issued by a surety company: (1) approved by the County having a rating of
"A" in the latest revision of the A. M. Best Company's Insurance Report; (2) be listed in the
United States Treasury Department's Circular 570, "Companies Holding Certificates of
Authority as Acceptable Sureties on Federal Bonds and as Acceptable Reinsurance
Companies"; and (3) holding a certificate of authority to transact surety business in the State
issued by the Director of the Department of Insurance. The Construction Performance Bond
and the Payment Bond shall remain open until Acceptance has been achieved.
(B) Monitoring of Sureties. The Company shall be responsible throughout
the Term of this Service Contract for monitoring the financial condition of any surety company
issuing bonds under this Service Contract and for making inquiries no less often than annually
to confirm that each such surety company maintains at least the minimum rating level
specified in this Section. In the event the rating of any issuing surety company falls below
{ such minimum level, the Company shall promptly notify the County of such event and shall
promptly furnish or azrange for the furnishing of a substitute or an additional bond of a surety
•...y
company whose rating and other qualifications satisfy all above requirements, unless the
County agrees to accept the surety company or agrees to an alternative method of assurance.
Upon such notice by the Company of such an event, the County shall not unreasonably
withhold its approval of such assurance. ,
(C) [Operations Performance Bond. [DISCUSS WITH COUNTY)
SECTION 18.3. LETTER OF CREDIT. (A) Requirements. On the [Contract
Date], the Company shall provide to the County as beneficiary an irrevocable standby letter of
credit in the stated amount of $2,000,000 issued by a Qualified Commercial Bank (the "Letter
of Credit"). The Letter of Credit shall be for a term of one year, shall be continuously renewed,
extended or replaced so that it remains in effect until 90 days after the Termination Date, and
shall be issued substantially in the form set forth in the Transaction Forms. The Letter of
Credit shall, upon each renewal, extension or replacement thereof, be reduced from the
required stated amount applicable for that Contract Yeaz by the aggregate amount of all
amounts drawn on all previous Letters of Credit provided under this subsection. The Letter of
Credit shall serve as security for the performance of the Company's obligations hereunder, and
the stated amount thereof shall in no way limit the amount of damages to which the County ""1
may be entitled for any Company Event of Default hereunder. .,.w
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(B) Drawines for Non-Renewal or Bankruptcy. The County shall have the
`rv unconditional right to immediately draw upon the Letter of Credit for the full stated amount
thereof upon the following conditions: (1) in the event that any required renewal, extension or
replacement thereof is not made eazlier than the date which is 30 days prior to its expiration
date; (2) the Company or the Guarantor (i) has filed a petition of voluntary bankruptcy under
the Bankruptcy Code, (ii) has consented to the filing of any bankruptcy or reorganization
petition against the Company or the Guarantor, or (iii) has filed a petition to reorganize the
Company or the Guarantor pursuant to the Bankruptcy Code; or (3) a court of competent
jurisdiction has issued an order appointing a receiver, liquidator, custodian or trustee of the
Company or the Guarantor or of a major pazt of the Company's or the Guarantor's property,
respectively, or a petition to reorganize the Company or the Guarantor pursuant to the
Bankruptcy Code has been filed against the Company or the Guazantor, and such order has
not been dischazged or such filing has not been dismissed within 90 days after such issuance
or filing. The proceeds of any such drawing shall be held by the County as cash collateral to
secure the performance of the Contract Services and, in the event of a material breach of this
Service Contract following any such drawing, may be retained by the County as payment or
partial payment of damages resulting therefrom.
(C) Drawings for Termination. The County shall have the unconditional
`e-~- right to immediately draw upon the Letter of Credit an amount estimated by the County as
representing the damages it has suffered as a result of the termination of this Service Contract
by the County pursuant to this Section.
(D) Drawines for Material Breach. The County shall have the right to draw
upon the Letter of Credit in an amount estimated by the County as representing the damages it
has suffered as a result of a material breach of this Service Contract by the Company. Unless
the Letter of Credit is due to expire prior to such period necessary to provide notice and hold a
meeting, it shall be a condition to the right of the County to draw on the Letter of Credit for a
material breach that: (I) the County has given the Guarantor notice of a material breach of
this Service Contract, whether or not such breach constitutes an Event of Default, and
attached a copy of the good faith assessment of the damages the County has suffered as a
result of such breach, and (2) the Company has had an opportunity at a meeting scheduled by
the County to be held not earlier than 15 days nor later than 30 days following de]ivery of such
notice, to present to the County evidence disputing the County's assertion of material breach or
assessment of damages. Notice to the Company of a material breach hereof shall be given
concurrently with the notice to the Guarantor, except that following any event of voluntary
bankruptcy or involuntary bankruptcy by the Company as described in subsection 16.2(B) or a
termination of this Service Contract pursuant to this Section, no such notice shall be required
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/ to be given to the Company, nor shall the giving of such notice be a condition to the County's
l i
drawing rights under the Letter of Credit pursuant to this subsection.
(E) Effect of Final Determination of Damaees. In the event that subsequent
to any drawing on the Letter of Credit it is determined by any court of competent jurisdiction in
a final non-appealable decision that such drawing to any extent was not permitted hereunder,
the County shall pay the amount wrongfully drawn to the Company together with interest
thereon at the Overdue Rate calculated from the date of the drawing to the date of payment to
the Company.
SECTION 18.4. COSTS OF PROVIDING SECURITY FOR PERFORMANCE.
(A) Inclusion in Service Fee. The cost and expense of obtaining and maintaining the Security
Instruments required under this Article as security for the performance of the Company's
obligations hereunder shall be borne by the Company without reimbursement from the County.
1,
( ~
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ARTICLE XIX
`"'r-' MISCELLANEOUS PROVISIONS
SECTION 19.1. RELATIONSHIP OF THE PARTIES. The Company is an
independent contractor of the County and the relationship between the parties shall be limited
to performance of this Service Contract in accordance with its terms. Neither party shall have
any responsibility with respect to the services to be provided or contractual benefits assumed
by the other pazty. Nothing in this Service Contract shall be deemed to constitute either party
a partner, agent or legal representative of the other party. No liability or benefits, such as
workers compensation, pension rights or liabilities, or other provisions or liabilities aiising out
of or related to a contract for hire or employer/employee relationship, shall arise or accrue to
any pazty's agent or employee as a result of this Service Contract or the performance thereof.
SECTION 19.2. [LIMITED RECOURSE TO COUNTY. No recourse shall be
had to the general fund or general credit of the County for the payment of any amount due the
Company hereunder, whether on account of the Service Fee, any indemnity payment, or for
any payment or claim of any nature arising from the performance or non-performance of the
County's obligations hereunder. The sole recourse of the Company for all such amounts shall
be to the funds held in the County's [solid waste utility enterprise fund]. All amounts held in
, the [solid waste utIlity enterprise fund] shall be held for the uses permitted and required
thereby, and no such amounts shall constitute property of the Company. [DISCUSS WITH
COUNTY)
SECTION 19.3. PROPERTY RIGHTS. (A) Protection from Infringement. The
Company shall pay all royalties and license fees in connection with the Facility and the
Operation Services. The Company shall protect, indemnify, defend and hold harmless the
County, and any of the County Indemnities, in the manner provided in Section 17.3, from and
against all Loss-and-Expense arising out of or related to the infringement or unauthorized use
of any patent, trademazk, copyright or trade secret relating to, or for the Design/Build Work
and the Operation Services, or at its option, shall acquire the rights of use under infringed
patents, or modify or replace infringing equipment with equipment equivalent in quality,
performance, useful life and technical characteristics and development so that such equipment
does not so infringe. The Company shall not, however, be required to reimburse or indemnify
any person for any Loss-and-Expense to the extent due to the negligence or willful conduct of
such person. The provisions of this Section shall survive termination of this Service Contract.
(B) Intellectual Property Developed by the Company. All intellectual property
developed by the Company at or through the use of the Facility or otherwise in connec5on with
the performance of the Contract Services shall be owned by the Company subject to the terms
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and conditions of this Section, and is hereby licensed to the County on anon-exclusive cost
free, perpetual basis for use by the County and any successor operator of the Facility (but, with
respect to any successor operator, only in connection with the operation of the Facility). Such
intellectual property shall include technology, inventions, innovations, processes, know-how,
formulas and softwaze, whether protected as proprietary information, trade secrets, or patents.
The Company shall have an irrevocable, perpetual and unrestricted right to use such
intellectual property for any County request, whether before or following the Termination Date.
Neither the County nor the Company shall license, transfer or otherwise make available such
intellectual property to any third-pazty for remuneration except with the consent of the other,
which consent may be conditioned upon mutual agreement as to the sharing of any such
remuneration. [SEE SECTION 19.4 BELOW]
SECTION 19.4. PROPRIETARY INFORMATION. (A) Non-Disclosure. The
pazties hereto hereby acknowledge that the Company has a proprietary interest in certain
information that may be furnished pursuant to the provisions of this Service Contract.
Without the prior written consent of the Company, the County agrees to keep in confidence and
agrees not to disclose any such information that is specifically designated by the Company as
being confidential or proprietary, subject however in all cases to operation of the provisions of
Applicable Law to the contrary. The provisions of this paragraph shall not apply to any
C_ information, notwithstanding any confidential designation thereof, which (1) is known to the
County without any restriction as to disclosure or use at the time it is furnished, (2) is or
becomes generally available to the public without breach of any agreement, (3) is received from
a third party without limitation or restriction on such third pazty or the County at the time of
disclosure or (4) may be disclosed to a Governmental Authority pursuant to subsection 19.4(B)
hereof.
(B) Authorized Disclosures. The County may disclose any information
deemed confidential or proprietary when required to do so by or pursuant to (1) any Applicable
Law or regulations governing the disclosure of such information, (2) an order of a court of
competent jurisdiction, or (3) a lawful subpoena (collectively, "Governmental Authority"). Prior
to making any such disclosure, the County will (a) provide the Company with advance written
notice at the earliest practicable date of the proprietary information requested by or pursuant
to such Governmental Authority and the County's intent to disclose, (b) minimize, consistent
with Applicable Law, the amount of proprietary information to be provided in a manner that is
consistent with the requirements of the Governmental Authority involved, and (c) make all
reasonable efforts (which may include participation of the Company in discussions with or
pursuant to such Governmental Authority) to secure confidential treatment and minimization
riwhr.
of the proprietary information to be provided. In the event that efforts to secure the
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- confidential treatment of such proprietary information are unsuccessful, the Company shall
have the prior right to revise such information in order to minimize the disclosure of such
information if and to the extent any such revision is permitted by and consistent with the
requirements of the Governmental Authority involved.
SECTION 19.5. INTEREST ON OVERDUE OBLIGATIONS. Except as
otherwise provided herein, all amounts due hereunder, whether as damages, credits, revenue,
charges or reimbursements, that are not paid when due shall bear interest at the rate of
interest which is the Overdue Rate, on the amount outstanding from time to time, on the basis
of a 365-day yeaz, counting the actual number of days elapsed, and such interest accrued at
any time shall, to the extent permitted by Applicable Law, be deemed added to the amount due
as accrued.
SECTION 19.6. COST SUBSTANTIATION. (A) Substantiating Non-Fixed
Costs. The fixed component of the Service Fee and the Fixed Design/Build Price aze fixed by
the terms of this Service Contract and are not subject to Cost Substantiation as provided in
subsection (B) of this Section except to the extent otherwise specifically set forth in this Service
Contract. Any other cost proposed or incurred by the Company which is directly or indirectly
chargeable to the County in whole or in part hereunder shall be the fair market price for the
f good or service provided, or, if there is no mazket, (including costs related to emergency
`""V actions, cost-plus work Capital Modifications, and other additional work necessitated or
additional costs to be borne on account of Uncontrollable Circumstances, County Fault or
County direction) shall be a commercially reasonable price. The Company shall provide
certified Cost Substantiation for all such other costs invoiced to the County hereunder.
(B) Cost Substantiation Certificate. Any certificate delivered hereunder to
substantiate cost shall be signed by separate senior management officers of both the Company
and the Guarantor, shall state the amount of such cost and the provisions of this Service
Contract under which such cost is properly chazgeable to the County, shall describe the
competitive or other process utilized by the Company to obtain a fair market price, and shall
state that such cost is a fair mazket price for the service or materials to be supplied (or, if there
is no mazket, that such cost is commercially reasonable) and that such services and materials
are reasonably required pursuant to this Service Contract. The certificate shall be
accompanied by copies of such documentation as shall be necessary to reasonably
demonstrate that the cost as to which Cost Substantiation is required has been paid or
incurred. Such documentation shall be in a format reasonably acceptable to the County and
shall include reasonably detailed information concerning: (1) all subcontracts; (2) the amount
and character of materials and services furnished, the persons from whom purchased, the
t~... amounts payable therefor and related delivery and transportation costs and any sales or
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personal property Taxes; (3) a statement of the equipment used and any rental payable
therefor; (4) Company and Subcontractor employee hours, duties, wages, salaries, benefits and
assessments; and (5) Company and Subcontractor profit, administration costs, bonds,
insurance, taxes, premiums overhead, and other expenses. The Company's entitlement to
reimbursement of Cost Substantiated costs of the Company shall be subject to the limitations
set forth in this Section.
(C) Technical Services. For costs proposed or incurred by the Company that
are subject to Cost Substantiation, Company personnel and personnel of Subcontractors
providing technical services shall be billed at their then currently applicable rates for similar
services on projects of similar size and scope to the Design/Build Work or Operation Services.
The Company shall use commercially reasonable efforts to use available Company personnel
for additional work hereunder before using Subcontractors.
(D) Mark-Uo. The Company will be entitled to a mark-up of [ 10%] for a
combination of overhead, risk, profit and contingency on costs of its own personnel, except
with respect to work due to Uncontrollable Circumstances, for which the Company shall be
entitled to [5%] mark-up for overhead, risk, profit and contingency. No mark-up will be added
to the Company's costs for Subcontractors, lodging and meals or travel. Construction and
j" operation Subcontractors similarly will be entitled to such mark ups with respect to its i;,~y~
personnel costs but no mark ups for costs for their subcontractors, lodging and meals or
travel. (DISCUSS WITH COUNTY)
(E) Evidence of Costs Incurred. To the extent reasonably necessary to
confirm direct costs required to be Cost Substantiated, copies of timesheets, invoices, canceled
checks, expense reports, receipts and other documents, as appropriate, shall be delivered to
the County with the request for reimbursement of such costs.
SECTION 19.7. SUBCONTRACTORS. (A) Use Restricted. The Company
shall operate the Facility with its own employees and in accordance with Article XI and
Appendix Subcontractors may be used to perform other Contract Services, subject to the
County's right of approval identified in subsection (B) of this Section.
(B) Limited County Review and Approval of Permitted Subcontractors.
Except as provided in the next sentence, the County shall have the right, based on the criteria
provided below in this Section, to approve all Subcontractors which the Company is permitted
to engage under subsection (A) of this Section for Contract Services valued in excess of
[$50,000] annually, which approval shall not be unreasonably withheld. County approval of
Subcontractors as provided in the preceding sentence shall not be required for: (1) Affiliates of
the Company; (2) equipment suppliers; (3) Governmental Bodies; (4) approved Subcontractors
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listed in Appendix and (5) Subcontractors hired by the Company for purposes of remedying
+,y,,, an emergency situation. The Company shall furnish the County written notice of its intention
to engage such Subcontractors, together with all information reasonably requested by the
County pertaining to the demonstrated responsibility of the proposed Subcontractor in the
following azeas: (1) any conflicts of interest; (2) any record of felony criminal convictions or
pending felony criminal investigations; (3) any final judicial or administrative finding or
adjudication of illegal employment discrimination; (4) any unpaid federal, State, or local Taxes;
and (5) any final judicial or administrative findings or adjudication of non-performance in
contracts with the County or the State. The approval or withholding thereof by the County of
any proposed Subcontractor shall not create any liability of the County to the Company, to
third parties or otherwise. In no event shall any Subcontract be awazded to any person
debarred, suspended or disqualified from State or County contracting for any services similar
in scope to the Operation Services or Design/Build Work. [DISCUSS RIGHTS DESIRED BY
COUNTY)
(C) Subcontract Terms and Subcontractor Actions. The Company shall
retain full responsibility to the County under this Service Contract for all matters related to the
Contract Services notwithstanding the execution or terms and conditions of any Subcontract.
No failure of any Subcontractor used by the Company in connection with the provision of the
Contract Services shall relieve the Company from its obligations hereunder to perform the
Contract Services. The Company shall be responsible for settling and resolving with all
Subcontractors all claims arising out of delay, disruption, interference, hindrance, or schedule
extension caused by the Company or inflicted on the Company or a Subcontractor by the
actions of another Subcontractor.
(D) Indemnity for Subcontractor Claims. The Company shall pay or cause to
be paid to all direct Subcontractors all amounts due in accordance with their respective
Subcontracts. No Subcontractor shall have any right against the County for labor, services,
materials or equipment furnished for the Contract Services. The Company acknowledges that
its indemnity obligations under Section 17.3 shall extend to all claims for payment or damages
by any Subcontractor who furnishes or claims to have furnished any labor, services, materials
or equipment in connection with the Contract Services.
(E) [Design Subcontract. The Company shall enter into a design subcontract
with (the °Design Subcontract"). The Design Subcontract shall provide for the
design of the Facility. The Design Subcontract shall be subject to review and comment by the
County for consistency with the applicable requirements of this Service Contract, and shall not
contain any provision which is material and adverse to the County. No such review or
°yr comment shall amend, alter or affect this Service Contract or the Company's obligations
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hereunder in any manner, nor shall the County incur any liability or expense as a result
thereof.] (DISCUSS WITH COUNTY) ~ ~
(F) fConstruction Subcontract. The Company shall enter into a construction
contract (the "Construction Subcontract°) with , or, subject to the approval of the
County not to be unreasonably withheld, another general construction contractor reasonably
experienced in constructing industrial and utility projects similar to the Facility (the
"Construction Subcontractor"]. The Construction Subcontract shall provide for the
construction, installation and equipping of the Facility, and the performance of all
Design(Build Work except work to be performed by the Company and work pertaining to
Facility design or Acceptance Testing, based upon detailed design drawings, blueprints, plans
and specifications furnished by the Company for such purpose. All such drawings, blueprints,
plans and specifications shall be based on and consistent with the Design Requirements and
all other terms and conditions of this Service Contract. The Construction Subcontract shall be
subject to review and comment by the County for consistency with the requirements of this
subsection, and shall not contain any provision which is material and adverse to the County.
The provisions of the Construction Subcontract that the Company certifies are proprietary and
not materially advise to the County may be blacked out in any copy given to the County. No
such review or comment by the County shall amend, alter or affect this Service Contract or the
Company's obligations hereunder in any manner, nor shall the County incur any liabllity or t
expense as a result thereof.} [DISCUSS WITH COUNTY]
(G) fOperation Contract. Not later than 30 days prior to the Facility
Acceptance Date, the Company shall enter into the Operation Contract with The
Operation Contract shall provide for the operation, maintenance, repair and replacement of the
Facility and the performance of all the Operation Services except those to be performed by the
Company. The Operation Subcontract shall be subject to review and comment by the County
for consistency with the applicable requirements of this Service Contract, and shall not contain
any provision which is material and adverse to the County. No such review or comments shall
amend, alter or affect this Service Contract or the Company's obligations hereunder in any
manner, nor shall the County incur any liability or expense as a result thereof.] [DISCUSS
WITH COUNTYJ
(H) [Notice to County of Amendments, Breaches and Defaults. The Company
shall give prior written notice to the County of any material proposed and final amendments to
the Design Subcontract, the Construction Subcontract or the Operation Subcontract, and shall
not enter into any such amendment which is material and adverse to the rights and obligations
of the CounTy hereunder without the County's prior written consent. The Company shall notify
the County promptly of any material breach or event of default occurring under the Design
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Subcontract, the Construction Subcontract or the Operation Contract and the probable effect
~+rv' on the Design/Build Work or the Operation Services. The Company shall keep the County
apprised of the course of the dispute and shall advise the County of its ultimate resolution.]
(I) Assicnability. All Subcontracts entered into by the Company with
respect to the Facility shall be assignable to the County, solely at the County's election and
without cost or penalty, upon the expiration or termination of this Service Contract.
SECTION 19.8. ACTIONS OF THE COUNTY IN ITS GOVERNMENTAL
CAPACITY. (A) Riehts as Government Not Limited. Nothing in this Service Contract shall be
interpreted as limiting the rights and obligations of the County under Applicable Law in its
governmental or regulatory capacity (including police power actions to protect health, safety
and welfaze or to protect the environment), or as limiting the right of the Company to bring any
action against the County, not based on this Service Contract, arising out of any act or
omission of the County in its governmental or regulatory capacity.
(B) No County Obli¢ation to Issue Governmental Annrovals. The County
retains all issuance and approval rights it has under Applicable Law with respect to any
Governmental Approval required with respect to the Facility, the Design/Build Work or the
_ Operation Services, and none of such rights shall be deemed to be waived, modified or
v.. amended as a consequence of the execution of this Service Contract. The County shall not be
deemed to be in breach of or in default hereunder as a result of any delay or failure in the
issuance or approval of any such Governmental Approval.
SECTION 19.9. ASSIGNMENT. (A) By the Comuany. The Company shall not
assign, transfer, convey, sell, lease, encumber or otherwise dispose of this Service Contract, its
right to execute the same, or its right, title or interest in all or any part of this Service Contract
or any monies due hereunder whatsoever prior to their payment to the Company, whether
legally or equitably, by power of attorney or otherwise, without the prior written consent of the
County. Any such approval given in one instance shall not relieve the Company of its
obligation to obtain the prior written approval of the County to any further assignment. Any
such assignment of this Service Contract which is approved by the County shall require the
assignee of the Company to assume the performance of and observe all obligations,
representations and warranties of the Company under this Service Contract, and no such
assignment shall relieve the Guazantor of any of its obligafions under the Guaranty Agreement,
which shall remain in full force and effect during the Term hereof. The approval of any
assignment, transfer or conveyance shall not operate to release the Company in any way from
~ any of its obligations under this Service Contract unless such approval specifically provides
otherwise.
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(B) By the County. The County may not assign its rights or obligations r
' under this Service Contract without the prior written consent of the Company. The County
may however, assign its rights and obligations under this Service Contract, without the
consent of the Company, to another Governmental Body if such assignee assumes, and is
legally capable of dischazging, the duties and obligations of the County hereunder.
SECTION 19.10. FACILITY TOURS. The Company shall conduct tours of the
Facility during normal business hours and take visitors through such portions of the Facility
as are suitable for such visitation in a manner which does not interfere with the Company's
performance of its obligations hereunder as provided in Section 11.11.
SECTION 19.11. COMPLIANCE WITH MATERIAL AGREEMENTS. The
Company shall comply with its obligations under agreements of the Company which are
material to the performance of its obligations under this Service Contract. The County shall
comply with its obligations under agreements of the County which are material to the
performance of its obligations hereunder.
SECTION 19.12. BINDING EFFECT. This Service Contract shall inure to the
benefit of and shall be binding upon the County and the Company and any assignee acquiring
an interest hereunder consistent with Section 19.9.
r~
SECTION 19.13. AMENDMENT AND WAIVER. This Service Contract may not 7
be amended except by a written agreement signed by the parties. Any of the terms, covenants,
and conditions of this Service Contract may be waived at any time by the party entitled to the
benefit of such term, covenant or condition if such waiver is in writing and executed by the
pazty against whom such waiver is asserted.
SECTION 19.14. NON-DISCRIMINATION. The Company, its Subcontractor
and its suppliers in performing under this Service Contract shall not discriminate against any
worker, employee or applicant, or any member of the public, because of race, color, religion,
gender, national origin, age or disability nor otherwise commit an unfair employment practice.
SECTION 19.15. NOTICES. (A) Procedure. All notices, consents, approvals or
written communications given pursuant to the tenns of this Service Contract shall be: (1) in
writing and delivered in person; (2) transmitted by certified mail, return, receipt requested,
postage prepaid or by overnight courier utilizing the services of anationally-recognized
overnight courier service with signed verification of delivery; or (3) given by facsimile
transmission, if a signed original is deposited in the United States Mail within two days after
transmission. Notices shall be deemed given only when actually received at the address first
given below with respect to each pazty. Either party may, by like notice, designate further or +''"""R
different addresses to which subsequent notices shall be sent.
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article XIX -Miscellaneous Provisions
.R-. (B) Comoanv Notice Address. Notices required to be given to the Company
`rw shall be addressed as follows:
[Company Name
Local Address]
Attn: Facility Manager
With a copy to:
[Company Name--
National Address]
Attn:
(C) County Notice Address. Notices required to be given to the County shall
be addressed as follows:
Attn:
With a copy to:
l~
Attn: [ ]
SECTION 19.16. NOTICE OF LITIGATION. In the event the Company or
County receives notice of or undertakes the defense or the prosecution of any Legal
Proceedings, claims, or investigations in connection with the Facility, the pazty receiving such
notice or undertaking such prosecution shall give the other party timely notice of such
proceedings and shall inform the other party in advance of all hearings regarding such
proceedings.
SECTION 19.17. FURTHER ASSURANCES. The County and Company each
agree to execute and deliver such further instruments and to perform any acts that may be
necessary or reasonably requested in order to give full effect to this Service Contract. The
County and the Company, in order to carry out this Service Contract, each shall use all
commercially reasonable efforts to provide such information, execute such further instruments
and documents and take such actions as may be reasonably requested by the other and not
inconsistent with the provisions of this Service Contract and not involving the assumption of
obligations or liabilities different from or in excess of or in addition to those expressly provided
for herein.
`r.?
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Design, Construction and Operation of the Service Contract
County of Hawaii Solid Waste Reduction Facility Article XIX -Miscellaneous Provisions
I [SIGNATURE PAGE FOLLOWS]
...rf
...r''
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IN WITNESS WHEREOF, the parties have caused this Service Contract to be
executed by their duly authorized representatives as of the day and yeaz first above written.
COUNTY OF HAWAII, HAWAII
ATTEST:
COUNTY OF HAWAII, a municipal [Company]
corporation
Name
[Print Name -President]
President, [Company Name]
[Director, Department of Finance]
\
[Risk Manager]
Approved as to form:
[County Corporation Counsel]
ATTEST: ATTEST:
[County Clerk] Printed Name:
`w
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TRANSACTION FORMS
TO THE
SERVICE CONTRACT
FOR THE
DESIGN, CONSTRUCTION AND OPERATION
OF THE
COUNTY OF HAWAII
SOLID WASTE REDUCTION FACILITY
t ~ between
COUNTY OF HAWAII, HAWAII
and
[PROJECT COMPANY]
Dated
2007
487571.3 028493 AGMT
~ TRANSACTION FORM A
FORM OF GUARANTY AGREEMENT
°~r
487571.3 028493 AGMT
GUARANTY AGREEMENT
from
1,
[COMPANY]
to
THE COUNTY OF HAWAII, HAWAII
Dated
2007
487571.3 025493 AGMT
ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS A-2
SECTION 1.2. INTERPRETATION A-2
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR A-4
ARTICLE III
GUARANTY COVENANTS
SECTION 3.1. GUARANTY TO THE COUNTY A-6
SECTION 3.2. RIGHT OF COUNTY TO PROCEED AGAINST GUARANTOR A-6
SECTION 3.3. GUARANTY ABSOLUTE AND UNCONDITIONAL A-7
SECTION 3.4. DEFENSES, SET-OFFS AND COUNTERCLAIMS A-9
SECTION 3.5. WAIVERS BY THE GUARANTOR A-9
SECTION 3.6. PAYMENT OF COSTS AND EXPENSES .......................................................A-10
SECTION 3.7. SUBORDINATION OF RIGHTS ....................................................................A-10
SECTION 3.8. SEPARATE OBLIGATIONS; REINSTATEMENT .............................................A-10
SECTION 3.9. TERM .........................................................................................................A-10
ARTICLE IV
GENERAL COVENANTS
SECTION 4.1. MAINTENANCE OF CORPORATE EXISTENCE .............................................A-11
SECTION 4.2. ASSIGNMENT .............................................................................................A-11
SECTION 4.3. QUALIFICATION IN HAWAII ......................................................................A-11
SECTION 4.4. CONSENT TO JURISDICTION .....................................................................A-11
SECTION 4.5. BINDING EFFECT ......................................................................................A-12
SECTION 4.6. AMENDMENTS, CHANGES AND MODIFICATIONS ......................................A-12
SECTION 4.7. NOTICES ....................................................................................................A-12
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j GUARANTY AGREEMENT
THIS GUARANTY AGREEMENT is made and dated as of , 2007, between
[Company], a corporation organized and existing under the laws of (together
with any permitted successors and assigns hereunder, the "Guazantor"), and the County of
Hawaii, Hawaii, (the "County").
RECITALS
The County and (the "Company°), a corporation, have
entered into aDesign-Build-Operate Contract for the Design, Construction and Operation of
the County of Hawaii Solid Waste Reduction Facility (the "Project°), dated 2007
(the "Service Contract'), whereby the Company has agreed to design, obtain governmental
approvals, construct, start up, acceptance test, operate, maintain, repair and replace the
Facility and other related and ancillary responsibilities, as more particulazly described in the
Service Contract.
The Company is a subsidiary of the Guazantor.
The County will enter into the Service Contract only if the Guazantor guazantees
the performance by the Company of all of the Company's responsibilities and obligations under
the Service Contract as set forth in this Guazanty Agreement (the "Guazanty").
In order to induce the execution and delivery of the Service Contract by the
County and in consideration thereof, the Guarantor agrees as follows:
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d..,,
~ ARTICLE I
DEFINITIONS AND INTERPRETATION
SECTION 1.1. DEFINITIONS. For the purposes of this Guaranty, the following
words and terms shall have the respective meanings set forth as follows. Any capitalized word
or term used but not defined herein is used as defined in the Service Contract.
"Obligations' means the amounts payable by, and the covenants and
agreements of, the Company pursuant to the terms of the Service Contract.
"Transaction Agreement" means any agreement entered into by the Company or
the County in connection with the transactions contemplated by the Service Contract,
including, but not limited to, the Service Contract, and any supplements thereto.
SECTION 1.2. INTERPRETATION. In this Guaranty, unless the context
otherwise requires:
(A) References Hereto. The terms "hereby", "hereof', "herein', "hereunder"
and any similar terms refer to this Guaranty, and the term "hereafter" means after, and the
term "heretofore" means before, the date of execution and delivery of this Guaranty.
(B) Gender and Plurality. Words of the masculine gender mean and include
correlative words of the feminine and neuter genders and words importing the singular number
mean and include the plural number and vice versa.
(C) Persons. Words importing persons include firms, companies,
associations, general partnerships, limited partnerships, trusts, business trusts, corporations
and other legal entities, including public bodies, as well as individuals.
(D) Headin¢s. The table of contents and any headings preceding the text of
the Articles, Sections and subsections of this Guaranty shall be solely for convenience of
reference and shall not constitute a part of this Guaranty, nor shall they affect its meaning,
construction or effect.
(E) Entire Agreement. This Guaranty constitutes the entire agreement
between the parties hereto with respect to the transactions contemplated by this Guazanty.
Nothing in this Guazanty is intended to confer on any person other than the Guarantor, the
County and their permitted successors and assigns hereunder any rights or remedies under or
by reason of this Guaranty.
(F) Counteroazts. This Guaranty may be executed in any number of original
counterparts. All such counterparts shall constitute but one and the same Guaranty.
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~ (G) Applicable Law. This Guaranty shall be governed by and construed in
accordance with the Applicable Laws of the State of Hawaii.
(H) Severabilitv. If any clause, provision, subsection, Section or Article of
this Guazanty shall be ruled invalid by any court of competent jurisdiction, the invalidity of any
such clause, provision, subsection, Section or Article shall not affect any of the remaining
provisions hereof, and this Guaranty shall be construed and enforced as if such invalid portion
did not exist provided that such construction and enforcement shall not increase the
Guarantor's liability beyond that expressly set forth herein.
(I) Approvals. All approvals, consents and acceptances required to be given
or made by any party hereto shall be at the sole discretion of the party whose approval,
consent or acceptance is required.
(J) Payments. All payments required to be made by the Guarantor
hereunder shall be made in lawful money of the United States of America.
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'err ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
SECTION 2.1. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR.
The Guarantor hereby represents and warrants that:
(1) Existence and Powers. The Guarantor is duly organized and validly
existing as a corporation under the laws of with full legal right, power and
authority to enter into and perform its obligations under this Guaranty.
(2) Due Authorization and Binding Obligation. The Guarantor has duly
authorized the execution and delivery of this Guaranty, and this Guazanty has been duly
executed and delivered by the Guazantor and constitutes the legal, valid and binding obligation
of the Guarantor, enforceable against the Guarantor in accordance with its terms except
insofaz as such enforcement may be affected by bankruptcy, insolvency, or moratorium or by
general equity principals of reorganization and other similar laws affecting creditors' rights
generally and general principals of equity.
(3) No Conflict. Neither the execution or delivery by the Guarantor of this
t Guaranty nor the performance by the Guarantor of its obligations hereunder (a) to the
Guarantor's knowledge conflicts with, violates or results in a breach of any law or
governmental regulation applicable to the Guarantor, (b) conflicts with, violates or results in a
material breach of any term or condition of the Guazantor's corporate charter or by-laws or any
judgment, decree, agreement or instrument to which the Guarantor is a party or by which the
Guarantor or any of its properties or assets are bound, or constitutes a default under any such
judgment, decree, agreement or instrument, or (c) to the Guarantor's knowledge will result in
the creation or imposition of any material encumbrance of any nature whatsoever upon any of
the properties or assets of the Guarantor except as permitted hereby or by any Transaction
Agreement.
(4) No Governmental Approval Required. No approval, authorization, order
or consent of, or declaration, registration or filing with, any governmental authority is required
of the Guazantor for the valid execution and delivery by the Guarantor of this Guaranty, except
such as shall have been duly obtained or made.
(5) No Litigation. Except as disclosed in the Guazantor's filings with the
Securities and Exchange County pursuant to the requirements of the Securities Exchange Act
of 1934, as amended, there is no action, suit or other proceeding, at law or in equity, before or
by any court or governmental authority, pending or, to the Guazantor's knowledge, threatened
`a.,.
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~ against the Guarantor which has a likelihood of an unfavorable decision, ruling or finding that
would materially and adversely affect the validity or enforceability of this Guaranty.
(6) No Leeal Prohibition. The Guarantor has no knowledge of any Applicable
Law in effect on the date as of which this representation is being made which would prohibit
the performance by the Guazantor of this Guazanty and the transactions contemplated by this
Guaranty.
(7) Consent to Aereements. The Guazantor is fully aware of the terms and
conditions of the Service Contract.
(8) Consideration. This Guaranty is made in furtherance of the purposes for
which the Guarantor has been organized, and the assumption by the Guarantor of its
obligations hereunder will result in a material benefit to the Guarantor.
C_
..ir
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ARTICLE III
'W.r
GUARANTY COVENANTS
SECTION 3.1. GUARANTY TO THE COUNTY. The Guazantor hereby absolutely,
presently, irrevocably and unconditionally guarantees to the County for the benefit of the
County (1) the full and prompt payment when due of each and all of the payments required to
be credited or made by the Company under the Service Contract (including all amendments
and supplements thereto) to, or for the account of, the County, when the same shall become
due and payable pursuant to the Service Contract, and (2) the full and prompt performance
and observance of each and all of the Obligations. Notwithstanding the unconditional nature
of the Guazantor's obligations as set forth herein, the Guarantor shall have the right to assert
the defenses provided in Section 3.4 hereof against claims made under this Guaranty.
SECTION 3.2. RIGHT OF COUNTY TO PROCEED AGAINST GUARANTOR. This
GuaranTy shall constitute a guaranty of payment and of performance and not of collection, and
the Guazantor specifically agrees that in the event of a failure by the Company to pay or
perform any Obligation guaranteed hereunder, the County shall have the right to proceed first
and directly against the Guazantor under this Guaranty and without proceeding against the
f Company or exhausting any other remedies against the Company which the County may have.
Without limitin the fore oin the Guarantor a ees that it shall not be necess
g g g, gr ary, and that
the Guazantor shall not be entitled to require, as a condition of enforcing the IiabiliTy of the
Guarantor hereunder, that the County (1) file suit or proceed to obtain a personal judgment
against the Company or any other person that may be liable for the Obligations or any pazt of
the Obligations, (2) make any other effort to obtain payment or performance of the Obligations
from the Company other than providing the Company with any notice of such payment or
performance as may be required by the terms of the Service Contract or required to be given to
the Company under Applicable Law, (3) foreclose against or seek to realize upon any security
for the Obligations, or (4) exercise any other right or remedy to which the CounTy is or may be
entitled in connection with the Obligations or any security therefor or any other guazantee
thereof, except to the extent that any such exercise of such other right or remedy may be a
condition to the Obligations of the Company or to the enforcement of remedies under the
Service Contract. Upon any unexcused failure by the Company in the payment or performance
of any Obligation and the giving of such notice or demand, if any, to the Company or
Guazantor as may be required in connection with such Obligation or this Guaranty, the
liability of the Guazantor shall be effective and shall immediately be paid or performed.
Notwithstanding the County's right to proceed directly against the Guazantor, the County (or
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~ any successor) shall not be entitled to more than a single full performance of the obligations in i'""
regard to any breach or non-performance thereof.
SECTION 3.3. GUARANTY ABSOLUTE AND UNCONDITIONAL. The obligations
of the Guarantor hereunder aze absolute, present, irrevocable and unconditional and shall
remain in full force and effect until the Company shall have fully dischazged the Obligations in
accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not
be subject to any counterclaim, set-off, deduction or defense (other than full and strict
compliance with, or release, dischazge or satisfaction of, such Obligations) based on any claim
that the Guarantor may have against the Company, the County or any other person. Without
limiting the foregoing, the obligations of the Guazantor hereunder shall not be released,
dischazged or in any way modified by reason of any of the following (whether with or without
notice to, knowledge by or further consent of the Guarantor):
(1) any exercise or failure, omission or delay by the County in the exercise of
any right, power or remedy conferred on the County with respect to this Guaranty or
the Service Contract except to the extent such failure, omission or delay gives rise to an
applicable statute of limitations defense with respect to a specific claim;
(2) any permitted transfer or assignment of rights or obligations under the
Service Contract or under any other Transaction Agreement by any party thereto, or
any permitted assignment, conveyance or other transfer of any of their respective
interests in the Project or in, to or under any of the Transaction Agreements;
(3) any permitted assignment for the purpose of creating a security interest
or mortgage of all or any pazt of the respective interests of the County or any other
person in any Transaction Agreement or in the Project;
(4) any renewal, amendment, change or modification in respect of any of the
Obligations or terms or conditions of any Transaction Agreement
(5) any failure of title with respect to all or any pazt of the respective
interests of any person in the Project;
(6) the voluntary or involuntary liquidation, dissolution, sale or other
disposition of all or substantially all the assets, marshalling of assets and liabilities,
receivership, insolvency, bankruptcy, assignment for the benefit of creditors,
reorganization, moratorium, arrangement, composition with creditors or readjustment
of, or other similar proceedings against, the Company or the Guazantor, or any of the
property of either of them, or any allegation or contest of the validity of this Guaranty or
I
any other Transaction Agreement in any such proceeding (it is specifically understood,
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consented and agreed to that, to the extent permitted by law, this Guaranty shall
\.r
remain and continue in full force and effect and shall be enforceable against the
Guarantor to the same extent and with the same force and effect as if any such
proceeding had not been instituted and as if no rejection, stay, termination, assumption
or modification had occurred as a result thereof, it being the intent and purpose of this
Guaranty that the Guarantor shall and does hereby waive all rights and benefits which
might accrue to it by reason of any such proceeding);
(7) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other
transfer by the Guazantor or any Affiliate of any of the capital stock or other interest of
the Guarantor or any Affiliate in the Company now or hereafter owned, directly or
indirectly, by the Guarantor or any Affiliate, or any change in composition of the
interests in the Company;
(8) any failure on the pazt of the Company for any reason to perform or
comply with any agreement with the Guarantor;
(9) the failure on the part of the County to provide any notice to the
Guarantor which is not required to be given to the Guarantor pursuant to this
j Guaranty and to the Company as a condition to the enforcement of Obligations
`rr~+' pursuant to the Service Contract;
(10) any failure of any pazty to the Transaction Agreements to mitigate
damages resulting from any default by the Company or the Guarantor under any
Transaction Agreement;
(11) the merger or consolidation of any pazty to the Transaction Agreements
into or with any other person, or any sale, lease, transfer, abandonment or other
disposition of any or all of the property of any of the foregoing to any person;
(12) any legal disability or incapacity of any party to the Transaction
Agreements; or
(13) the fact that entering into any Transaction Agreement by the Company or
the Guazantor was invalid or in excess of the powers of such party.
Should any money due or owing under this Guazanty not be recoverable from the
Guarantor due to any of the matters specified in subparagraphs (1) through (13) above, then,
in any such case, such money, together with all additional sums due hereunder, shall
nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor
in place of the Company pursuant to the terms of the Service Contract and not merely a
guarantor and shall be paid by the Guazantor forthwith subject to the terms of this Guazanty.
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~ Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty (^w
shall be deemed to amend, modify, clazify, expand or reduce the Company's rights, benefits,
duties or obligations under the Service Contract. To the extent that any of the matters
specified in subparagraphs (1) through (5) and (7) through (13) would provide a defense to,
release, discharge or otherwise affect the Company's Obligations, the Guarantor's obligations
under this Guaranty shall be treated the same.
SECTION 3.4. DEFENSES. SET-OFFS AND COUNTERCLAIMS. The Guazantor
shall be entitled to exercise or assert any and all legal or equitable rights or defenses which the
Company may have under the Service Contract or under Applicable Law (other than
bankruptcy or insolvency of the Company and other than any defense which the Company has
expressly waived in the Service Contract or the Guazantor has expressly waived in Section 3.5
hereof or elsewhere hereunder), and the obligations of the Guarantor hereunder are subject to
such counterclaims, set-offs or deductions which the Company is permitted to assert pursuant
to the Service Contract if any.
SECTION 3.5. WAIVERS BY THE GUARANTOR. The Guarantor hereby
unconditionally and irrevocably waives:
(1) notice from the County of its acceptance of this Guaranty; f..,w,
l (2) notice of any of the events referred to in Section 3.3 hereof except to the "
extent that notice is required to be given as a condition to the enforcement of
Obligations;
(3) to the fullest extent lawfully possible, all notices which may be required
by statute, rule of law or otherwise to preserve intact any rights against the Guazantor,
except any notice to the Company required pursuant to the Service Contract or
Applicable Law as a condition to the performance of any Obligation;
(4) to the fullest extent lawfully possible, any statute of limitations defense
based on a statute of limitations period which may be applicable to guazantors (or
parties in similar relationships) which would be shorter than the applicable statute of
limitations period for the underlying claim;
(SJ any right to require a proceeding first against the Company;
(6) any right to require a proceeding first against any person or the security
provided by or under any Transaction Agreement except to the extent such Transaction
Agreement specifically requires a proceeding first against any person (except the
Company) or security;
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{ +ry,i (7) any requirement that the Company be joined as a party to any
proceeding for the enforcement of any term of any Transaction Agreement;
(8) the requirement of, or the notice of, the filing of claims by the County in
the event of the receivership or bankruptcy of the Company; and
(9) all demands upon the Company or any other person and all other
formalities the omission of any of which, or delay in performance of which, might, but
for the provisions of this Section 3.5, by rule of law or otherwise, constitute grounds for
relieving or dischazging the Guarantor in whole or in part from its absolute, present,
irrevocable, unconditional and continuing obligations hereunder.
SECTION 3.6. PAYMENT OF COSTS AND EXPENSES. The Guarantor agrees to
pay the County on demand all reasonable costs and expenses, legal or otherwise (including
counsel fees), incurred by or on behalf of the County in successfully enforcing by Legal
Proceeding observance of the covenants, agreements and obligations contained in this
Guaranty against the Guazantor, other than the costs and expenses that the County incurs in
performing any of its obligations under the Service Contract, or other applicable Transaction
Agreement, where such obligations aze a condition to performance by the Company of its
C~ Obligations.
SECTION 3.7. SUBORDINATION OF RIGHTS. The Guazantor agrees that any
right of subrogation or contribution which it may have against the Company as a result of any
payment or performance hereunder is hereby fully subordinated to the rights of the County
hereunder and under the Transaction Agreements and that the Guarantor shall not recover or
seek to recover any payment made by it hereunder from the Company until the Company and
the Guarantor shall have fully and satisfactorily paid or performed and dischazged the
Obligations giving rise to a claim under this Guazanty.
SECTION 3.8. SEPARATE OBLIGATIONS; REINSTATEMENT. The obligations of
the Guazantor to make any payment or to perform and discharge any other duties, agreements,
covenants, undertakings or obligations hereunder shall (1) to the extent permitted by
Applicable Law, constitute separate and independent obligations of the Guazantor from its
other obligations under this Guaranty, (2) give rise to sepazate and independent causes of
action against the Guazantor and (3) apply irrespective of any indulgence granted from time to
time by the County. The Guazantor agrees that this Guazanty shall be automatically
reinstated if and to the extent that for any reason any payment or performance by or on behalf
of the Company is rescinded or must be otherwise restored by the County, whether as a result
~'r,,,,,, of any proceedings in bankruptcy, reorganization or similaz proceeding, unless such rescission
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or restoration is pursuant to the terms of the Service Contract, or any applicable Transaction i'"~'"°
Agreement, or the Company's enforcement of such terms under Applicable Law.
SECTION 3.9. TERM. This Guaranty shall remain in full force and effect from
the date of execution and delivery hereof until all of the Obligations of the Company have been
fully paid and performed.
C r~
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ARTICLE IV
GENERAL COVENANTS
SECTION 4.1. MAINTENANCE OF CORPORATE EXISTENCE. (A) Consolidation,
Merger, Sale or Transfer. The Guarantor covenants that during the term of this Guaranty it
will maintain its corporate existence, will not dissolve or otherwise dispose of all or
substantially all of its assets and will not consolidate with or merge into another entity or
permit one or more other entities to consolidate with or merge into it unless the successor is
the Guarantor; provided, however, that the Guarantor may consolidate with or merge into
another entity, or permit one or more other entities to consolidate with or merge into it, or sell
or otherwise transfer to another entity all or substantially all of its assets as an entirety and
thereafter dissolve if the successor entity (if other than the Guarantor) (a) obtains the written
consent of the County, which consent shall not be unreasonably withheld, (b) assumes in
writing all the obligations of the Guazantor hereunder and, if required by law, is duly qualified
to do business in the State of Hawaii, and (c) delivers to the County an opinion of counsel to
the effect that its obligations under this Guazanty are legal, valid, binding and enforceable
subject to applicable bankruptcy and similaz insolvency or moratorium laws, in the courts of
the State.
C`'..w (B) Continuance of Obligations. If a consolidation, merger or sale or other
transfer is made as permitted by this Section 4.1, the provisions of this Section 4.1 shall
continue in full force and effect and no further consolidation, merger or sale or other transfer
shall be made except in compliance with the provisions of this Section 4.1. No such
consolidation, merger or sale or other transfer shall have the effect of releasing the initial
Guarantor from its liability hereunder unless a successor entity has assumed responsibility for
this Guaranty as provided in this Section 4.1.
SECTION 4.2. ASSIGNMENT. Without the prior written consent of the County,
this Guazanty may not be assigned by the Guazantor, except pursuant to Section 4.1 hereof.
SECTION 4.3. QUALIFICATION IN HAWAII. The Guazantor agrees that, so long
as this Guazanty is in effect, if required by law, the Guarantor will be duly qualified to do
business in the State of Hawaii.
SECTION 4.4. CONSENT TO JURISDICTION. The Guazantor irrevocably:
(1) agrees that any Legal Proceeding arising out of this Guazanty shall be brought in the county
or federal courts in the [County of Hawaii, Hawaii] having appropriate jurisdiction; (2) consents
to the jurisdiction of such court in any such Legal Proceeding; (3) waives any objection which it
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' may have to the laying of the jurisdiction of any such Legal Proceeding in any of such courts;
and (4) waives its right to a trial by jury in any Legal Proceeding in any of such courts.
SECTION 4.5. BINDING EFFECT. This Guaranty shall inure to the benefit of the
County and its permitted successors and assigns and shall be binding upon the Guazantor and
its successors and assigns.
SECTION 4.6. AMENDMENTS, CHANGES AND MODIFICATIONS. This
Guaranty may not be amended, changed or modified or terminated and none of its provisions
may be waived, except with the prior written consent of the County and of the Guarantor.
SECTION 4.7. NOTICES. All notices, demands, requests and other
communications hereunder shall be deemed sufficient and properly given if in writing and
delivered in person to the following addresses or sent by first class mail and facsimile, to such
addresses:
(a) If to the Guazantor:
[Company] President
With a copy to:
[Company] Corporation Counsel
(b) If to the County:
Name:
Address:
Facsimile No.:
Attn:
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457571.3 025493 AGMT
With acopy to:
Name:
Address:
Phone:
Facsimile:
Either party may, by like notice, designate further or different addresses to which subsequent
notices shall be sent. Any notice hereunder signed on behalf of the notifying party by a duly
authorized attorney at law shall be valid and effective to the same extent as if signed on behalf
of such party by a duly authorized officer or employee. Notices and communications given by
mail hereunder shall be deemed to have been given 5 days after the date of dispatch; all other
notices shall be deemed to have been given upon receipt.
A-14
487571.3 025493 AGMT
~ IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed in its i
name and on its behalf by its duly authorized officer as of the date first above written. ` "
COMPANY
as Guarantor
By
Printed Name:
Title:
SEAL
(IMPRESSED ON
EXECUTION COPIES)
Accepted and Agreed to by:
COUNTY OF HAWAII, HAWAII
By:
Printed Name:
Title:
(
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TRANSACTION FORM B
FORM OF CONSTRUCTION PERFORMANCE BOND
`.err
487571.3 028493 AGMT
~ TRANSACTION FORM B
FORM OF CONSTRUCTION PERFORMANCE BOND
KNOW ALL MEN BY THESE PRESENTS, that [Company], as Principal, and with
underwriting office at to which all communications in regazd to this
bond should be addressed, a corporation organized and existing under the laws of the State of
and duly authorized to do business in the State of Hawaii, as Surety, are held and
firmly bound unto the County of Hawaii, Hawaii, as Obligee, in the penal sum of
Dollars (the "Bonded Sum"~, for the payment which well and truly made,
we hereby jointly and severally bind ourselves, our heirs, executors, administrators, successors
and assigns, firmly by these presents.
WHEREAS, the Principal has by the Service Contract for the County of Hawaii
Solid Waste Reduction Facility, dated 2007, entered into a contract with the
Obligee for the design, construction, starting up, acceptance testing and obtaining
governmental approvals for the Project in the County of Hawaii, Hawaii, which contract is by
reference made a part hereof, and is hereinafter referred to as the Service Contract;
NOW, THEREFORE, the condition of this obligation is such that, if the Principal
shall promptly and faithfully do and perform all of the Principal's obligations under the Service
Contract through completion of construction and Acceptance of the Facility, then this
obligation shall be null and void, otherwise it shall remain in full force and effect, it being
expressly understood that the liability of the Surety for any and all claims hereunder shall in
no event exceed the Bonded Sum.
1. Whenever the Principal shall be, and shall be declazed by the Obligee to
be, in default under the Service Contract, the Obligee having performed the Obligee's material
obligations thereunder, the Surety shall promptly remedy the default whatever it may be or
shall promptly:
(a) Perform the Service Contract in accordance with all of its terms and
conditions; or
(b) Obtain bids for submission to the Obligee for performing the Service
Contract in accordance with its terms and conditions, and upon mutual
determination by the Obligee and the Surety of the lowest responsible bidder,
arrange for a contract between such bidder and the Obligee and make available
as work progresses (even though there will be a default or a succession of
defaults under the contract or contracts for performance arranged under this
B-1
487571.3 028493 AGMT
r
paragraph) sufficient funds to pay the costs of performance of the Service '
Contract, less the unpaid balance of the contract price; but not exceeding,
including other costs and damages for which the Surety may be liable to Obligee
hereunder, the amount set forth in the first pazagraph hereof. Notwithstanding
the Principal's obligations under any provisions of the Service Contract, it is
understood that any payment made by the Surety in good faith under this bond
shall reduce the penal sum by a like amount. The term "balance of the contract
price" as used in this pazagraph, shall mean the total amount due and payable
by the Obligee to the Principal under the Service Contract and any amendments
thereto, less the amount paid by the Obligee to the Principal in accordance with
the terms of the Service Contract.
2. Any suit under this bond must be instituted before the expiration of two
yeazs from the date on which fmal payment under the Service Contract falls due.
3. No alteration, modification or supplement to the terms of the Service
Contract or any subcontracts or the nature of the work to be performed thereunder, including
any extension of time for performance, shall in any way affect the obligations of the Surety
under this bond. The Surety waives notice of any alteration, modification, supplement or j''~4
extension of time.
Signed and sealed this _ day of
IN PRESENCE OF: [NAME OF PRINCIPAL]
[Affix Corporate Seal of Principal]
By:
Name:
Title:
IN PRESENCE OF: [NAME OF SURETY]
[Affix Corporate Seal of Principal]
By:
Name:
Title:
i
B-2
487571.3 028493 AGMT
TRANSACTION FORM C
rrr
FORM OF PAYMENT BOND
V
487571.3 028493 AGMT
TRANSACTION FORM C
FORM OF PAYMENT BOND
KNOW ALL MEN BY THESE PRESENTS, that as Principal, and
with underwriting office at to which all communications
in regard to this bond should be addressed, a corporation organized and existing under the
laws of the State of and duly authorized to do business in the State of ,
as Surety, are held and firmly bound unto the County of Hawaii, Hawaii, as Obligee, for the use
and benefit of claimants (as hereinafter defined), in the penal sum of Dollars
(the "Bonded Sum"), for the payment which well and truly made, we hereby jointly and
severally bind ourselves, our heirs, executors, administrators, successors and assigns, firmly
by these presents.
WHEREAS, the Principal has by the Service Contract for the Design, Construction and
Operation of the County of Hawaii Solid Waste Reduction Facility (the "Project") dated
2007, entered into a contract with the Obligee to design, construct, start up,
acceptance test and obtain governmental approvals for the Project, all in accordance with the
terms of such contract, which contract is by reference made a part hereof, and is hereinafter
referred to as the Service Contract;
NOW, THEREFORE, the condition of this obligation is such that, with respect to
Obligee, if the Principal shall promptly make payment to all claimants hereinafter defined, for
all labor and materials used or reasonably required for use in the performance of the Service
Contract then this obligation shall be null and void, otherwise it shall remain in full force and
effect, it being expressly understood that the liability of the Surety for any and all claims
hereunder shall in no event exceed the Bonded Sum. However, this obligation shall be subject
to the following conditions:
1. A claimant is defined for purposes hereof as one having a direct contract
with the Principal, or with a Subcontractor of the Principal for labor, materials, or both, used
or reasonably required for use in the performance of the Service Contract; labor and materials
being construed also to include that part of water, gas, power, light, heat, oil, gasoline,
telephone service or rental of equipment directly applicable to the Service Contract.
2. The Principal and Surety hereby jointly and severally agree with the
Obligee that every claimant as herein defined, who has not been paid in full before the
expiration of a period of 90 days after the date on which the last of such claimant's work or
labor was done or performed, or materials were furnished by such claimant, may sue on this
C-1
487571.3 028493 AGMT
bond for the use of such claimant, prosecute the suit to final judgment for such sum or sums {
as may be justly due claimant, and have execution thereon. The Obligee shall not be liable for
the payment of any costs or expense of any such suit.
3. No suit or action shall be commenced hereunder by a claimant:
(a) Unless claimant, other than one having a direct contract with the
Principal, shall have given written notice to any two of the Principal, the
Obligee, or the Surety, within 120 days after such claimant did or
performed the last of the work or labor, or furnished the last of the
materials for which the claim is made, stating with substantial accuracy
the amount claimed and the name of the party to whom the materials
were furnished, or for whom the work or labor was done or performed.
Such notice shall be served by mailing the notice by registered mail or
certified mail, postage prepaid, in an envelope addressed to the Principal,
the Obligee or the Surety, at any place where an office is regularly
maintained for the transaction of business, or served in any manner in
which legal process may be served in the state in which the aforesaid
project is located, save that such service need not be made by a public
OfflCei; ~
(b) After the expiration of one year following the date on which Principal ~~~.ww~~~???
ceased work on said Service Contract or after the expiration of one year
following the date of completion of the Facility, whichever is later, it being
understood, however, that if any limitation embodied in this bond is
prohibited by any law controlling the construction hereof such limitation
shall be deemed to be amended so as to be equal to the minimum period
of limitation permitted by such law; and
(c) Other than in a state court of competent jurisdiction in and for the
county or other political subdivision of the state in which the project, or
any part hereof, is situated, or in the United States District Court for the
district in which the project, or any part thereof, is situated, and not
elsewhere.
4. No alteration, modification or supplement to the terms of the Service
Contract or any subcontracts or the nature of the work to be performed thereunder, including
any extension of Ume for performance, shall in any way affect the obligations of the Surety
C-2
487571.3 028493 AGMT
under this bond. The Surety waives notice of any alteration, modification, supplement or
~ extension of time.
5. Upon request by any person or entity appearing to be a potential
beneficiary of this bond, the Principal shall promptly furnish a copy of this bond or shall permit
a copy to be made.
6. The amount of this bond shall be reduced by and to the extent of any
payment or payments made in good faith hereunder, inclusive of the payment by Surety of
mechanics' liens which may be filed of record against the Facility, whether or not claim for the
amount of such lien be presented under and against this bond.
l~
ra..-
C-3
487571.3 025493 AGMT
~w
Signed and sealed this _ day of
IN PRESENCE OF: [NAME OF PRINCIPAL]
[Affix Corporate Seal of Principal)
By:
Name:
Title:
IN PRESENCE OF: [NAME OF SURETY]
[Affix Corporate Seal of Principal]
By:
Name:
Title:
C-4
457571.3 028493 AGMT
TRANSACTION FORM D
FORM OF LETTER OF CREDIT
[HDW TO SUPPLY]
487571.3 028493 AGMT
~ TRANSACTION FORM E
FORM OF TECHNOLOGY SUPPLY AGREEMENTS
[HDW TO SUPPLY]
487571.3 025493 AGMT
TRANSACTION FORM F
FORM OF CONFIDENTIALITY AGREEMENT
[HDW TO SUPPLY]
\ `~.r
~
487571.3 028493 AGMT
~ DRAFT
REQUEST FOR STAGE 2 PROPOSALS
VOLUME III
County of Hawaii
Department of Finance
Waste Reduction Facility
Design-Build-Operate Project
July 3, 2006
RFP No. 2210
APPENDIX 1 -PERMITTING AND OTHER
APPROVALS
1.1 PURPOSE OF APPENDIX
This Appendix defines the responsibilities of the Company and the County for
obtaining permits and approvals, identifies those permits necessary to close the
Development Period, and describes Company responsibilities for complying with
permit conditions.
1.2 OVERALL RESPONSIBILITIES FOR OBTAINING PERMITS
Except for those permits specifically indicated as the County's responsibility in
Table 3-1, the Company shall act as the County's agent and be responsible for
obtaining all permits and approvals necessary for the development, design, and
construction of the Project.
County will assist the Company during the permitting process by attending
agency meetings, providing available data and responses to questions and
attendance at public hearings and other associated meetings.
1.3 REQUIRED PERMITS/APPROVALS
Notwithstanding the Company's obligations to obtain all permits, the County will
°i~' assist the Company by providing supporting information for permit applications,
reviewing permit applications within the time frames specified in Appendix 7,
Section 7.3, and attending key permitting agency meetings at the request of the
Company. Supporting information shall include information that the County has
already developed or that is readily available to the County. In addition to the
design packages required under Appendix 7, the Company shall be responsible
for developing any design packages required by permitting agencies.
The Company shall notify the County in a timely manner regarding upcoming
permitting meetings and shall coordinate with the County during the planning and
scheduling of such meetings. The Company shall also notify the County when it
believes it will be important for the County to attend.
i, ~ Hawaii County 1-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-0perate Project Appendices to the Draft Service Contract
APPENDIX 2 -PERFORMANCE GUARANTEES
2.1 PURPOSE OF APPENDIX
This Appendix defines the Pertormance Guarantees that the Project must meet.
The Company shall demonstrate, through Acceptance Testing, that the Project
meets these standards.
2.2 PERFORMANCE GUARANTEES OVERVIEW
The purpose of the Performance Guarantees is to identify the elements of the
Company proposed Mass Balance, energy production rate, and environmental
control standards that must be met to reach acceptance of the facility. See
Appendix 6 for more detail on Acceptance Testing.
Table 2-1 lists the Pertormance Guarantees for the Waste Reduction Facility.
They are also described in detail in Sections 2.3 through 2.8.
Table 2-1: Performance Guarantees Applicability
The amount of Processible Waste, as measured in
Throughput Tons, that the Facility is capable of processing in a
~'w~ 24-hour period.
The amount of electrical energy, as measured in
Energy Production kWhr/ton, that the Facility will produce at the time of
measurement.
Operational Reliability The availability of the facility due to scheduled and
unscheduled outages.
The physical and chemical composition of the
Residue Quantity and Residue. Particular focus is given to specific
Quality components indicative of incomplete combustion,
and contaminants deemed harmful to human health
or to the final disposal facility.
The emissions from the Facility as a result of the
Air Emissions Waste Reduction Process. Emission levels must
comply with all applicable local, state, and federal
requirements.
Noise that is a specific and direct result of the
Noise Emissions operation of the Waste Reduction Facility. Noise
emissions must meet all local, state and federal
requirements.
~°°'r Hawai'i County 2-1 July 3, 2006
Waste Redudion Fadliry Request for Proposals -Vol. III
Design-Build-Operate Projed Appendices to the Draft Service Contrad
2.3 THROUGHPUT PERFORMANCE GUARANTEES
The Facility must be designed to process a minimum of 200 tons per day and
75,000 tons per year of MSW.
2.4 ENERGY PRODUCTION PERFORMANCE GUARANTEES
The Facility must process waste with sufficient efficiency to meet the Energy
Recovery Performance Guarantee outlined in Table 2-2 below.
Table 2-2: Energy Recovery Performance Guarantees
200 Net kWhr/ton
2.5 OPERATIONAL RELIABILITY
The Facility must be available for operation a minimum of [X°/a] [to be provided
based on Company's proposal] of the time in a year. Availability is a function
of the number of days the facility is closed due to scheduled and unscheduled
outages and is calculated using the following equation:
Availability = 1365 - Davs Closedl X 100%
365
2.6 RESIDUE QUALITY PERFORMANCE GUARANTEES „mod
The Facility shall produce combustion residue having:
¦ Not more than 5.0% (by dry weight) combustible matter
¦ Not more than 2.0% (by dry weight) putrescible content
¦ A moisture content of not more than 20.0%
2.7 AIR EMISSIONS PERFORMANCE GUARANTEES
At a minimum, the Facility shall be capable of meeting the applicable Federal
NSPS for MWCs (Municipal Waste Combustors) in 40 GFR 60. These minimum
conditions are based on an analysis of conditions that could be imposed on the
Facility taking into account U.S. EPA's guidance on BACT requirements, Hawaii
State Department of Health requirements, and the emissions that have been
reported to have been achieved at other plants of comparable size and
complexity throughout the U.S. The Facility, as proposed, must comply with all
applicable regulations. However, this does not imply that the Facility will be
required to meet only these conditions. The following is intended to be a
summary of key regulatory conditions that will be utilized to evaluate the
Proposers. Should the conditions in the final permit approvals be more stringent
r
Hawaii County 2-2 July 3, 2006
Waste Redudion Facility Request far Proposals - V°I. III
Design-Build-Operele Projed Appendices to the Drafl Service Contrad
'r.w than the following, the relevant provisions of the Service Contract will be
amended.
2.7.1 MONITORING REQUIREMENTS
Continuous emission monitoring (CEM) and recording meeting 40 CFR 60 part
75 will be required.
2.7.2 EMISSION TESTING REQUIREMENTS
Emission tests on the equipment shall be conducted by the Company to
demonstrate compliance of actual emission rates with emission limits in the
permit.
All methods and procedures shall be consistent with Federal Rules and
Regulations and those acceptable to the Hawaii State Department of Health.
Each combustion train shall be tested individually for all pollutants.
2.S NOISE EMISSIONS PERFORMANCE GUARANTEES
The Facility shall comply with applicable Federal, State and local noise
regulations, guidelines, ordinances and codes. At a minimum the following
should be complied with:
[TO COME]
Hawai i County 2-3 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
APPENDIX 3 -MINIMUM TECHNICAL
REQUIREMENTS
3.'I PURPOSE OF APPENDIX
This Appendix sets forth certain minimum technical requirements for the Project,
including codes and standards to be used, functional requirements, basis of design
information, material specifications, and other technical requirements.
These minimum technical requirements are not intended to be all-inclusive of the
design requirements, including those needed to meet the Performance Guarantees set
forth in Appendix 2. Nothing in this Appendix relieves the Company of its obligation to
design and construct the Project to meet the Appendix 2 Performance Guarantees or
to satisfy Appendix 6 Acceptance Testing requirements.
3.2 APPLICABILITY AND OBJECTIVES
3.2.1 OVERALL OBJECTIVES AND GENERAL REQUIREMENTS
The Company shall site, design, construct, commission, acceptance test, operate and
maintain the Facilities in compliance with all applicable laws, standards, and
regulations, to meet the Performance Guarantees established in Appendix 2, and to
r meet the following overall objectives:
3.2.1.1 Minimize the Quantity of Waste Requiring Landfilling
3.2.1.2 Quality and Service Life
¦ Materials and equipment shall be selected and installed based on the
County's expectation of ahigh-quality, durable facility consistent with
expectations of long service life and infrequent need for replacement or
repair.
¦ Buildings and structures that are part of the Facilities shall be designed
consistent with a minimum Fifty (50) year physical service life based on
County and industry standard practices.
¦ Major new equipment shall be Industrial Grade, and be consistent with a
Thirty (30) year service life, a low incidence of failure, ease of operations
and maintenance, and with a high expectation of continued manufacturer
support and service.
3.2.1.3 Life-Cycle Cost
¦ The selection of equipment, materials, and overall design of the Facilities
shall consider overall Life-Cycle Cost and not result in operations and
maintenance costs above those typical of similar facilities.
Hawai'i County 3-1 July 3, 2006
Waste Retluction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
t
¦ The Facilities shall provide for easy and efficient operations,
maintenance (including access to equipment), monitoring, and the
storage and use of operating data.
$.S CODES, STANDARDS, AND GUIDELINES
The Company shall follow the most current applicable industry codes and standards
as referenced in this and other Appendices, unless otherwise indicated in these
Technical Specifications. Societies, industry groups, organizations, institutes, and
agencies issuing these standards include, but are not limited to, the following:
¦ Acceptance Testing Specifications for Electrical Power Distribution
Equipment and Systems (NETA)
¦ Air Moving and Conditioning Association (AMCA)
¦ Aluminum Association (AA)
¦ American Association of State Highway and Transportation Officials
(AASHTO)
¦ American Boiler Manufacturers Association (ABMA)
¦ American Concrete Institute (ACI)
¦ American Gear Manufacturers Association (AGMA)
¦ American Institute of Steel Construction (AISC) i
¦ American Iron and Steel Institute (AISI)
¦ American Institute of Timber Construction (AITC)
¦ American National Standards Institute (ANSI)
¦ American Petroleum Institute (API) for Storage Tanks
¦ American Society of Civil Engineers/Structural Engineering Institute
¦ American Society of Mechanical Engineers (ASME)
¦ American Society for Testing and Materials (ASTM)
¦ American Society of Heating, Refrigeration and Air Conditioning
Engineers (ASHRAE)
¦ American Wood Preservers Association (AWPA)
¦ American Welding Society
¦ American Water Works Association (AWWA)
¦ Antifriction Bearing Manufacturers Association (AFBMA)
I
Hawaii County 3-2 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
¦ Applicable local or state laws and codes involving public safety, health
and environmental agencies, under whose jurisdiction work is being
performed.
¦ Commercial Standard for Industrial Aluminum and Galvanized Steel
¦ Chain Link Fencing
¦ Concrete Reinforcing Steel Institute Handbook and Supplements (CRSI)
¦ Conveyor Equipment Manufacturers Association (CEMA)
¦ Crane Manufacturers Association of America (CMMA)
¦ Cooling Tower Institute (CTI)
¦ Environmental Protection Agency (EPA)
¦ Factory Mutual Engineering Corporation (FM)
¦ Federal Aeronautics Authority (FAA)
¦ Heat Exchangers Institute (HEI)
¦ Hydraulic Institute
¦ Illuminating Engineering Society of North America, Lighting Handbook
( Industrial Gas Cleaning Institute
t
¦ Insulated Cable Engineer's Association (ICEA)
¦ Institute of Electrical and Electronics Engineers (IEEE)
¦ Instrument Society of America (ISA)
¦ International Building Code (IBC)
¦ International Conference of Building Officials (ICBO)
¦ International Fire Code (IFC)
¦ International Mechanical Code (IMC)
¦ International Standards Organization (ISO)
¦ Masonry Institute of America (MIA)
¦ National Board of Fire Underwriters (NBFU)
¦ National Bureau of Standards (NBS)
¦ National Electrical Code (NEC)
¦ National Fire Protection Association (NFPA)
¦ National Electrical Manufacturers Association (NEMA)
¦ National Electrical Safety Code (NESC)
Hawaii County 3-3 July 3, 2006
Wasfe Reduction Facility Request for Proposals -Vol. III
Design-BUiltl-Operate Project Appendices to the Draft Service Contract
¦ National Institute of Occupational Safety and Health (NIOSH)
¦ Occupational Safety and Health Act (OSHA)
¦ Pre-cast/Pre-stressed Concrete Institute (PCI)
¦ Portland Cement Association (PCA)
¦ Rubber Manufacturers Association
¦ Sheet Metal and Air Conditioning Constructors National Association
¦ Steel Deck Institute (SDI)
¦ Steel Structures Painting Council (SSPC)
¦ Standard Building Code (SBC)
¦ Thermal Insulation Manufacturers Association
¦ Tubular Exchange Manufacturers Association
¦ Underwriters Laboratory, Incorporated (UL)
¦ Uniform Plumbing Code (UPC)
[Note to Proposers: If a Proposer wishes to vary from these requirements,
alternative design standards shall be identified by the Proposer and approved
by the County.]
[Modifications or additional Standards to be included based on Company's
Proposal Subsection 2.3]
3.4 REQUIREMENTS FOR FACILITIES
3.4.1 GENERAL REQUIREMENTS
The Company shall design the Facilities and Systems to comply with all applicable
codes, standards, regulations and guidelines. The Company shall be responsible for
designing, building, commissioning, testing, and operating all Facilities.
3.4.1.1 Good Engineering Practice
The Facility shall be designed, constructed and operated in accordance with good
engineering practice. All equipment and materials shall be new and unused.
3.4.1.2 Utility Grade Equipment
All Facility equipment shall be of utility grade where utility grade is defined to be of
heavy-duty construction, of a quality suitable and commonly used for high availability,
long-term service in utility applications.
Hawaii County 3-4 July 3, 2006 `
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
~ 3.4.1.3 Generally Accepted Industry Standards
The Facility shall be designed, constructed and operated in accordance with generally
accepted industry standards.
3.4.1.4 Minimum Useful Life of the Facility
The minimum useful life of the Facility shall be thirty (30) years for major systems and
pieces of equipment and fifty (50) years for buildings and structures.
3.4.1.5 Environmental Requirements
The Facility shall be designed, constructed and operated to comply with mitigation
measures outlined in the Waste Reduction Technology Facility Environmental Impact
Statement.
3.4.1.6 Design Margin Criteria
All equipment shall be designed with operating and capacity margins in accordance
with generally accepted practice in industry.
3.4.1.7 Power Design and Operation
The Company shall design, furnish, and install equipment of a design, size, and type
which has been previously built and proven in satisfactory operation to meet the stated
performance. Prototype designs are not acceptable.
3.4.2 FACILITY SIZE
The Facility shall be sized to process approximately 200 tons per day of MSW
averaged over a month. The Facility shall be capable of (and the Company shall
guarantee) processing a minimum of 70,000 tons per year of MSW.
3.4.3 WASTE PROCESSING
The Facility must be designed to continuously process MSW having a Higher Heating
Value ("HHV") of 4800 Btu/lb at its rated capacity. The Facility must be capable of
processing MSW with a HHV that may fluctuate between 3,800 and 7,000 Btu/lb. A
waste firing diagram showing waste throughput versus unit heat release over the
range of HHVs must be provided and guaranteed by the Company.
3.4.4 AVAILABILITY OF SPARE PARTS
The Company must demonstrate that an adequate supply of spare parts for one (1) full
year of operation after acceptance testing will be available as part of the Fixed Design-
Build Price and that additional spare parts can be obtained from equipment
manufacturers in a timely manner so as not to cause additional downtime of the
Facility. The Company shall provide a list of all spare parts provided in its Fixed
Design-Build Price. In addition, a description shall be provided of the availability of key
system components, particularly those of foreign manufacturers.
Hawai'i County 3-5 July 3, 2006
Waste Retludion Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
Via.
3.4.5 NOISE MITIGATION
The Facility shall be constructed, designed, and operated to minimize ambient noise to
the maximum extent possible, so that ambient noise levels at the property line meet
pertinent standards (as stated in Section 2.8).
3.4.6 ODOR CONTROL
The design of the enclosed MSW receiving area, in conjunction with the combustion
units, processing and control system, shall provide continuous odor control by
negative pressure.
3.4.7 VENTILATION
All work areas shall be adequately ventilated, and the control of the plant environment
shall comply with all state, county, and federal regulations.
3.4.8 ACCEPTANCE TEST
An Acceptance Test will be conducted pursuant to the provisions and procedures set
forth in the Service Contract and Appendix 6. The County and its Consulting
Engineer will observe all Acceptance Test activities. Refer to Appendix 6 for a
discussion of the proposed acceptance test procedure.
3.4.9 SITE PREPARATION t
3.4.9.1 General
The design of the Facility shall take into account the existing site conditions as
modified by the completed Reload Facility. The Company shall be responsible for all
site preparation. The Company shall be fully responsible for all preferred site
development necessary to render the Facility and the site usable and constructible
including but not necessarily limited to the following:
• Establishment of lines and grades,
• Site clearing and grubbing,
• Initial and finish grading,
• Site drainage and control,
• Boundary fencing,
• On-site access,
• All provisions for acceptance of deliveries,
• All landscaping,
• Retention ponds, and
• All other mitigation measures necessary to assure a quality Facility.
Hawaii County 3-8 July 3, 2006
Waste Reduction Facility Request for Proposals - Vol. II I
Design-Build-Operate Project Appendices to the Drafl Service Contract
i
3.4.9.2 Subsurface Investigation
The County has provided all available geotechnical information to the Company (see
Attachment B). If the Company finds differing conditions, it would be entitled to
substantiated adjustments to price and schedule.
3.4.9.3 Survey
The Company shall furnish all labor, materials, tools, equipment and all work and
services necessary for or incidental to the performance and completion of survey work
for the construction of the Facility. The Company shall establish and maintain lines,
grades, and benchmarks, make measurements to verify location of completed
construction, and survey alignment to existing property boundaries.
3.4.9.4 Site Preparation
The Company shall be fully responsible for all site preparation necessary to render the
site usable and suitable for construction. The Company shall be responsible for
appropriate off-site disposal of all cleared materials.
3.4.9.5 Excavation, Fitting and Backfilling
The Company shall be fully responsible for all earthwork required to render the Facility
and the site usable and constructible, including the following:
j • Excavation,
t Relocation or removal to an approved location of all materials necessary for site
development,
• Purchase, transportation and proper placement and compaction of all selected
backfill material, and
• All materials, equipment, labor and supervision necessary to perform
compaction tests, and to assure proper placement of all materials.
The Company shall be responsible for all costs associated with the inspection and
testing of the earthwork.
3.4.9.6 Erosion and Dust Control
The Company shall take all steps necessary during design, construction and operation
to control soil erosion on site and to minimize dust emanating therefrom. This shall
include design and operation of equipment associated with handling lime and other
chemicals used in the operation of the Facility. Settling ponds and control ditches
shall be employed to control runoff. The procedures used shall be in accordance with
state and local laws and provisions.
Hawaiti County 3-7 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appentlices to the Drafl Service Contrail
f
3.4.9.7 Construction Parking
On street parking will not be permitted. Construction parking sites are the
responsibility of the Company. The Company shall maintain responsibility for traffic
control of the construction work force.
3.4.9.8 Temporary Utilities
The Company shall arrange and provide for all temporary and interim power, water,
and sanitary facilities for work during construction. Temporary power systems shall
meet NEC requirements.
3.4.10 CIVILAND STRUCTURAL
3.4.11 STRUCTURAL AND ARCHITECTURAL MATERIALS
The following minimum requirements shall be required for structural and architectural
materials:
Concrete:
Concrete shall be provided from Type I or Type II Portland cement with a minimum of
28 day compressive strength as follows:
Structural concrete - 4000 psi
Water tight concrete - 5000 psi r r~
Special type concrete such as Type V - As required. 'w'`}
Reinforcing Steel:
Reinforcing steel bars shall be ASTM A615, Grade 60. Maximum bar size - No, 9
where practical.
Welded wire fabric where used shall conform to ASTM AIBS.
Structural Steel:
All structural steel shall be ASTM-A36. Bolted connections shall be ASTM-A325.
Anchor bolts shall be ASTM-A307 or A36.
Handrail. 5tairwavs. Ladders. Platforms. Accesswavs:
All handrails, stairways, ladders, platforms, and accessways shall be in conformance
with the latest requirements of OSHA and the State of Hawaii.
Wind Loads, Seismic loads:
All buildings must be designed in accordance with the most severe case for the area
under consideration, as described in UBC-88, ANSI A58.1, or the Hawaii State
Building Code, whichever is most stringent.
I ~
Hawaii County 3-8 July 3, 2006 Wyr'
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
3.4.11.2 Road Construction Criteria
Roads shall be designed with proper turning radii and shall be curbed, with catch
basins and drop inlets used to control storm runoff. Roads for trucks shall be designed
using the [HS 20-44] standards, and all roads shall conform to the standards of the
Hawaii State Department of Transportation. The Company can utilize the proposed
entrance and exit of the Reload Facility as shown in the construction drawings in
Attachment B.
3.4.11.3 Utility Interconnection
Net electrical energy produced by the Facility will be sold to HELCO. The Company
shall be responsible for the siting and installation of a switching station meeting the
requirements set forth in Appendix 3.4.16. The cost of the switching station shall be
included in the Fixed Design-Build Price. Operation and maintenance of the switching
station shall be turned over to HELCO upon its completion. Power shall be delivered
to HELCO at a transmission level of 13.8 kV.
Regarding water service for the Facility, Proposers are instructed to include in their
proposal the cost of bringing service from the Facility to the property line for water
service and sanitary sewer. The County will be responsible for implementing the water
connection off site. The County will also be responsible for implementing a sanitary
sewer connection off site.
3.4.11.4 Outdoor Lighting
Sufficient outdoor lighting of roads, walkways and parking areas shall be provided to
ensure the safety and security of the operation of the Facility, the safe movement of
people and vehicles, and adequate security. In addition, the lighting system should be
designed to minimize nuisance lighting on any neighboring residential or otherwise
sensitive areas.
3.4.11.5 Fencing and Gates
The site shall be fenced in its entirety with a minimum eight foot high chain-link fence
with three barbed wires on top. Gates shall be an automatic closure design, sturdy
and lockable remote locking and unlocking controls and visual monitoring equipment
shall be provided to allow monitored control of personnel access during non-delivery
hours.
3.4.11.6 Signage
In addition to traffic control signage, there shall be a sign erected during the
construction phase describing the nature of the Facility and authorizing authorities. A
permanent sign, approved by the County and constructed of masonry materials with
non-deteriorating letters, compatible with the architecture of the Facility, shall be
erected prior to, or upon acceptance, describing the facilities.
`.r~ Hawai'i County 3-9 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Bulltl-Operate Project Appentlices to the Draft Service Contract
i
3.4.12 ARCHITECTURAL \
The Selected Proposer shall develop a Facility pleasing to the public yet capable of
blending into the surrounding terrain and natural setting. An architectural format shall
be developed and included in the Proposer's proposal together with an architect's
sketch displaying the appearance of the structure from at least the side(s) visible from
any public roads. Clean functions and attractive lines shall be presented to those
passing by, arriving to and viewing the Facility. Areas such as ash handling shall be
located behind the structure or be blocked from view by appropriate screening
devices. The WRF should also use consistent architectural and aesthetic concepts as
those used in the Reload Facility to ensure consistency and achieve pleasing
contextual characteristics.
3.4.12.1 Buildings
Main Process Building
The main process building shall enclose the tipping floor and all process and process-
related equipment except the electrical switchyard, air pollution control equipment,
stack, cooling tower, chemical storage and miscellaneous storage tanks and any other
equipment requiring outdoor or remote location. The main process building shall also
include the Central Control Room, offices and employee and visitor areas.
Central Control Room
The Central Control Room shall be provided with full environmental conditioning for ~
temperature and humidity. Filtered, positive pressure outside makeup air systems
shall be provided to hold down dust penetration.
Control Room lighting shall be 70 foot-candles minimum on horizontal operating areas
and shall utilize extra low brightness parabolic diffusers to minimize CRT station glare.
Control rooms shall be provided with low static, raised floors for cable access and air
circulation plenum.
All duct, tray and cable penetrations into Control Room shall be sealed and firestopped
to prevent air or water entry into Control Room or cable flame spread.
The Central Control Room shall be provided with an individual bathroom with basin
and water closet.
Administrative Office and Emolovee Areas
The administrative offices shall include suitable office space and furnishings to
accommodate the Company's staff.
At a minimum, the Company shall provide a conference room of adequate size to
accommodate a meeting of 30 people or more; a visitor reception area; male and
female employee locker rooms with showers; wash rooms; male and female toilets
and lockers; an employee lunch room; offices for the Company's staff; and toilets for
Hawaii County 3-70 July 3, 2008
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
~ staff and visitors. These spaces shall be furnished with all customary furniture and
equipment and shall be air conditioned and heated.
Maintenance and Storage Areas
The Facility shall include a fully equipped maintenance and machine shop and
adequate storage for spare parts, supplies and raw materials, sufficient to provide for a
regular program of maintenance for all Facility buildings and grounds.
Visitor Accommodations
Special design attention shall be given to accommodating visitors (including the
handicapped), including viewing areas of key Facility operations, visitor parking,
conference room and provision for tours of the Facility.
3.4.3 WASTE RECEIVING
3.4.13.1 Generallnformation
MSW will be transported to the Facility in local collection vehicles, and transfer station
vehicles. Private citizens will not be permitted to dump at the Facility. Based on the
existing waste collection practice, the minimum anticipated receiving schedule is
7 days per week, 6:30 a.m. through 4:15 p.m. The Facility shall be designed for a
maximum delivery vehicle turn-around time of (20 minutes], even during peak traffic
periods. Turn-around time is defined as the elapsed time between when the truck
enters the scale facility and the time the truck exits the scale facility.
3.4.14 WASTE STORAGE AND HANDLING SYSTEM
The Facility shall have a storage capacity at least equivalent to 2 times the Facility
daily nameplate capacity. The number of bays and/or arrangements for truck
unloading should be based on the peak truck flow queuing requirements. The tipping
floor area should be designed to minimize turn-around time. The tipping floor and pit
area shall be totally enclosed and kept under negative pressure by drawing the air off
to use for the furnace combustion air. The Company shall protect walls from potential
damage due to unloading and maneuvering equipment.
3.4.14.1 Cranes and Grapples System
General Description
There shall be at least two 100 percent (one working, one spare) heavy duty electric
overhead traveling cranes, suitable for continuous service in an indoor dusty
environment. The cranes shall be designed to operate in a resource recovery plant
and have a minimum of two years of demonstrated successful experience in a waste-
to-energy plant. The cranes shall be capable of feeding the furnaces and rehandling
(mixing) the incoming MSW. The cranes shall be designed for semi-automated
operation.
~"y Hawai'i County 3-11 July 3, 2006
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Design-Build-Operate Project Appendices to the Draft Service Contract
i f
Operator's Station
There shall be a minimum of one (1) remote stationary operator station centrally
located which shall allow a full unobstructed view of the tipping floor and furnace
charging hoppers (television monitors shall be included, as appropriate). The
operating station shall contain one operator's control pulpit for each operating crane.
The station shall be equipped with a heating, ventilating and air conditioning system.
Grapples
One (1) spare grapple shall be provided, in addition to the one on the spare crane.
3.4.15 OTHER
Minimum deaerating feed water heater storage below overflow, 10 minutes.
Minimum main steam condenser condensate storage above submergence required by
condensate pumps, six minutes.
Gauge glasses shall be furnished for all heaters, condensers, storage tanks; also high
and low water alarms.
Rapid air evactor for startup shall be furnished with main steam condenser in addition
to main air evactors.
V-belt drives permitted only on air compressors, heating and ventilating equipment and
C small pumps such as chemical feed sets. ~
Flanges and unions to be provided in all piping where equipment is located to facilitate
maintenance.
Automatic level control system for condenser, deaerator, closed feedwater heaters.
Oil-free air compressors if air controlled instrument and controls furnished.
Compressed air dryer based on 40 degree dew point.
Metal guards on all couplings and drive belts.
Underground piping to be protected by cathodic protection system.
Sprinkler system for cooling tower fire protection.
Bypass around all control valves required for operation of Facilities. Critical control
valves to have handjacks.
Bridge crane to be provided for turbine generator for handling heaviest piece after
installation.
Trolley rails for chain hoists at locations where disassembly and handling of equipment
requires such rails and hoists.
Service air compressed air system to be separate from control air system.
Piping, boiler, vessels and equipment to be insulated to thickness which limits exterior
surface to 140°F.
Imo,
Hawaii County 3-12 July 3, 2006 ~d
Wasfe Reduction Facility Request for Proposals -Val. III
Design-Build-Operate ProjeIX Appendices to the Drafl Service Confrad
Closed feedwater heater tubes; 90-10 copper nickel, 18 BWG.
Chemical treatment system for cooling tower circulating water.
3.4.16 ELECTRICAL
3.4.16.1 General
The electrical systems shall consist of equipment and arrangements commonly found
in power generating stations and outdoor utility substations and switchyards, in
accordance with ANSI, IEEE, and NEMA standards. Broad categories of equipment to
be used include liquid-filled power transformers, outdoor power circuit breakers, metal
clad medium voltage switchgear, metal enclosed low-voltage switchgear, unit
substations, and transmission feeders and terminating potheads & structures. Control
equipment shall be utility/ industrial class.
3.4.16.2 Electricallnterconnect
The Company shall develop with HELCO specific requirements for this Facility
including metering and relaying. Utility service shall be included to feed the Facility
auxiliaries during startup and when the generator is off-line (Refer to
Section 3.4.16.3.)
3.4.16.3 Plant Electrical
{ The plant electrical systems shall be arranged for appropriate reliability and
redundancy. The Facility shall include, as necessary, medium voltage power
distribution; low voltage power distribution; lighting; grounding; raceway and cable;
control, security and communication systems. The sizing of the emergency power
supply system must consider the ability to safely shut down the system and burn out
all waste materials on the grate, as well as fight a fire for 3 hours. Proposers shall
define the equipment in the system. Critical power requirements shall be met by
batteries and/or battery back-up uninterruptible AC power systems. Adequate
protection for generator, transformers and all electrical equipment to be provided in
accordance with IEEE guidelines.
3.4.16.4 Motors
Motors for pumps shall be non-overloading over the entire head range of the pumps.
In general, motors to be sized so as to operate within the basic rating of the motor
brake horsepower. Service factor 1.15 minimum, above the rated horsepower of the
motor.
Motors located in areas subject to dust and debris to be totally enclosed, fan cooled.
Other equipment in such areas to be suitably enclosed.
Motors to be rated for 40°C maximum rise above ambient.
Hawai'i County 3-13 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
i
3.4.17 COMBUSTION SYSTEM 'w"''
The components of the combustion system proposed shall be of a proven design with
a minimum successful operating experience of 2 years. Scaling up of previously
demonstrated and proven major components and subsystems shall not exceed
20 percent.
The Facility shall be designed so that the combustion system is isolated from the
waste receiving and storage areas.
All furnace equipment and auxiliary equipment shall be manufactured and constructed
in accordance with ASME boiler and furnace construction codes.
3.4.17.1 Boiler/Furnace System
Furnace design shall be of the mass burn type, capable of firing MSW on a continuous
basis without auxiliary fuel burning and incorporating the following criteria:
• Combustion air to under stoker to be zoned, with adequate provisions for
adjustment.
• Overfire air to have flexibility of adjustment.
• Balanced draft.
• Cast steel alloy grates -air passages in grates to be non-plugging design
with provisions for easy cleaning. ~
• Maximum carryover of solids from drum, shall not exceed one ppm.
• Auxiliary burner to have flame monitoring and fail safe provisions and
automatic ignition.
• Wide tube spacing to prevent plugging of gas passages.
• Furnace waterwall gastight with membrane type construction.
• Furnace walls above the stoker are to be designed to protect the metal
surfaces from attack via corrosion caused by oscillating combustion
conditions (oxidizing/reducing) or other corrosion and/or erosion caused by
particulates.
• Boil out and blow out steam line after completion of erection.
• Exterior of boiler to have metal lagging.
• Retractable temperature probe for measuring gas temperature at point of
superheater.
• All fan volume control by inlet vanes or speed control.
• Auxiliary burners using light oil, natural gas, or propane for startup,
shutdown, and minimum temperature requirements. Proposers are
responsible for selection of the burner fuel.
Hawaii County 3-14 July 3, 2006
Waste Retludion Facility Request for Proposals -Vol. III
Design-Builtl-Operate Project Appendices to the Draft Service Contract
Observation ports to allow complete overview of furnace, fuel bed, overtire
air nozzles and furnace outlet.
• Adequate access doors.
• Adequate number and type of soot blowers. Automatic soot blowers shall
be provided.
• Finned tubes not allowed.
• Maximum Grate Heat Release Rate: 400,000 Btu/sq. ft./hr.
• Maximum Gas Temperature Entering Superheater: 1400°F
• Maximum Superheater Outlet Temperature: 830°F
• Maximum Gas Velocity through convection sections, superheater and
economizer: 20 ft/sec.
• Furnace-welded membrane wall, extend below grate line.
• Lower furnace wall studded and lined with high temperature refractory.
• Separate adjustable overtire air system.
3.4.17.2 Boiler Auxiliary System
The Company shall provide all required auxiliary systems to make the boiler complete,
operable, and maintainable. Boiler auxiliary systems including but not limited to, all
steam piping, boiler feedwater pumps, treated water pumps, raw water pumps,
condensate pumps, tanks and accessories, water treatment and deaeration systems,
boiler feedwater heaters, process piping systems, etc. shall be designed and furnished
by the Company in accordance with all applicable codes and standards.
3.4.17.3 Boiler Feedwater Pumps
A minimum 100 percent capacity steam driver backup to the boiler feedwater pump(s)
shall be provided. The backup pump(s) shall be capable of providing the full
feedwater flow required for full capacity plant operation as well as providing partial flow
to individual boilers if one or more boilers are shut down. The Company shall certify
that computations have been pertormed to determine that adequate NPSH is available
to the boiler feed pumps during transient load conditions, including turbine trip at full
load, using the method of Karassik or another approved method.
3.4.17.4 Makeup Water Treatment
Boiler makeup water treatment shall, at a minimum, provide ion exchange equipment
to treat the raw water supply to be used for boiler makeup. The water shall be
demineralized to provide proper operation of the boilers, and additional treatment
equipment necessary to attain this goal shall be furnished by the Company.
~ Hawai'i County 3-15 July 3, 2006
Waste Reduction Facility Request for Proposals - Vol. II I
Design-Build-Operate Project Appendices to the Drafl Service Contract
3.4.'I8 TURBINE-GENERATOR
The turbine generator should have the capacity required to produce energy based on
the Facility's throughput at the MCR when firing MSW with a range of HHV. In-plant
power requirements shall be met from the turbine-generator, except under startup and
emergency conditions. The generator shall meet the requirements of the ANSI C50
series. The maximum turbine RPM shall be 3,600. The generator shall be designed
fora 400°C maximum temperature rise. A heat rate diagram for 100 percent, 75
percent, and 50 percent of rated load shall be furnished.
Water induction prevention equipment shall be furnished in accordance with ASME
standard Recommended Practices for the Prevention of Water Damage to Steam
Turbines Used for Electric Power Generation.
The following shall be provided:
Lube oil purification system.
Turning gear.
• Startup panel.
3.4.18.1 Cooling Tower
A demonstrated air cooled condenser will be provided. The minimum design
standards shall include:
heat transfer bundles conform to ASME VIII
• condense full flow of steam while maintaining a back pressure on the turbine of
not more than 3" Hg when operating at summer design temperature of 700°F
• if used as a dump condenser, this unit must be capable of condensing the full
load of all boilers
• design shall include provisions for variable air flow
3.4.18.2 Dump Condenser
A dump condenser shall be provided to allow for continued MSW combustion at full
load during turbine generator and/or condenser outages. Use of the dump condenser
should allow bypass of all steam Facility Equipment except the deaerator and the
boiler feedwater pumps. This requirement may be met by using an air cooled
condenser with full load dump capability. See Section 5.4.18.1 for minimum
requirements.
3.4.19 RESIDUE HANDLING AND STORAGE SYSTEM
3.4.19.1 General
Automatic residue handling systems shall be provided to collect and transport the
various residues from the incinerator, boiler, and flue gas cleaning equipment to the
ash storage facilities. The residue collection and handling systems shall be designed
~ i~
Hawaii County 3-16 July 3, 2006 ~
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contrail
J
utilizing demonstrated technology and equipment. The residue removal systems shall,
furthermore, be designed to ensure maximum incinerator availability and to prevent
any dust emissions.
The Facility must be designed, constructed, operated, and maintained so that the ash
handling systems ensure that the ash residue is properly wetted or contained to
ensure that dust emissions are controlled during on-site and off-site storage, loading,
transport, and unloading. The ash residue must be wet enough so the surface of the
ash remains damp after unloading at the landfill. In any event, no free moisture shall
result during transport of the ash residue to the landfill for disposal. The Proposers
shall present an estimate of their design moisture levels.
Fly ash and bottom ash should be thoroughly mixed into one stream prior to storage,
either in the main process equipment building or in the ash storage building.
Provisions should be made so that the fly ash and bottom ash could be handled
separately, if required, without requiring building modifications.
All ash mixing and/or handling areas should be fully enclosed and well ventilated. In
addition, all such areas should be designed to facilitate cleanup and good
housekeeping.
The components of the residue handling system proposed shall be of a proven design
with a minimum successful operating experience with MSW of two years.
3.4.19.2 Bottom Ash
Each incinerator/boiler unit shall have its own independent bottom ash removal train
from the grate discharge to the ash storage facilities. This train shall be made up of a
series of conveyors, as required, to collect ash from the incinerator grate discharge
and siftings areas, boiler hopper, and economizer hopper. If it is necessary to quench
the ash this shall be done in route to the ash storage facilities. The method of
transport technology proposed by the contractor shall be that for which he has
demonstrated experience.
The Proposer may propose dual ash handling trains, each capable of handling
100 percent of the maximum system capacity. These trains may start at the ash
discharge from the boiler and end at the ash storage building. If the Proposer chooses
this approach, a narrative comparing the availability of the two approaches must be
submitted by the Proposer using actual data supporting this decision on a technical
and economic basis.
Whatever method the contractor chooses to use, the conveyor equipment shall comply
with the following requirements:
1. Equipment shall be water/dust proof so as not to present a hazard to either
operations or maintenance personnel
2. Equipment shall be capable of handling ash containing glass, steel packing
bands, wire, bed springs, metal rods, steel cans and drums, aluminum slag,
rocks, bricks, concrete, and other materials commonly found in MSW
residue without causing choking or plugging of the system.
Hawaii County 3-17 July 3, 2006
Waste ReduGion Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
3. Equipment shall be reliable and easily maintained.
4. If water quenching of the ash is proposed, the equipment shall be capable
of utilizing wastewater from other Facility operations.
3.4.19.3 Fly Ash
Each flue gas cleaning unit (a unit may have multiple hoppers) shall have its own
independent fly ash removal train from the unit hopper discharges to the ash storage
facilities, this train shall be made up of a series of conveyors, as required, to transport
the ash. If it is necessary to quench the ash this shall be done in route to the ash
storage facilities. The method of transport technology proposed by the contractor shall
be that for which he has demonstrated experience.
Whatever method the contractor chooses to use, the conveyor equipment shall comply
with the following requirements:
1. Equipment shall be water/dust proof so as not to present a hazard to either
operations or maintenance personnel.
2. Equipment shall be reliable and easily maintained.
3. If water quenching of the ash is proposed, the equipment shall be capable
of utilizing wastewater from other Facility operations.
/ 3.4.19.4 Residue Storage
t, The Company shall propose an ash storage facility that the Company is familiar with
and has in successful operation at other plants. This facility may consist of any of the
following concepts:
1. One common concrete pit for ash from all units, from which afront-end-loader
may load trucks for transport to the landfill.
2. Individual/grouped concrete pits for ash from one or more units, from which a
front-end-loader may load trucks for transport to the landfill.
3. One common loadout station for ash from all units where the ash is
discharged from the conveyors directly into either a truck or a roll-off container
for transport to the landfill.
4. Individual/grouped loadout stations for ash from one or more units where the
ash is discharged, from the conveyors, directly into either a truck or a roll-off
container for transport to the landfill.
5. Any other concept which the Company chooses to propose and which he fully
describes, in his proposal, as to equipment to be used, method of operation,
and personnel required for operation. Concepts under this category will be
subject to the County's review.
Whatever concept the contractor chooses to use, the ash storage facilities shall
comply with the following requirements:
l i.r+y,,
Hawaii Counly 3-18 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Deft Service ConVact
- 1. Concrete ash pits, roll-off containers, or trucks shall be enclosed, watertight
and dust proof so as not to present a hazard to either plant personnel or the
general public while ash is being loaded and transported to the landfill. An
enclosure over the loading stations is required. In general, all ash loading and
unloading systems shall be designed to be dust free.
2. The ash storage facilities shall have the capacity to store a minimum of four
(4) days of plant ash production, at the design burn rate, in either concrete pits
or roll-off containers.
3. For purposes of this proposal it should be assumed that the fly ash and bottom
ash from the Facility will be mixed together prior to storage and during
subsequent transportation.
4. Arun-off management system shall be provided to collect and control the free
liquid that is allowed to drain from the ash residue.
5. The Proposer shall provide, operate, and maintain equipment necessary to
segregate ferrous metals from bottom ash.
6. The design of the Facility shall not preclude the separate handling and storage
of the bottom ash and flyash.
3.4.20 AIR POLLUTION CONTROL SYSTEM
3.4.20.1 General Description
The air pollution control system will consist of an acid gas scrubber, Nox control,
mercury control, and a particulate collection system. The particulate control system
shall be a fabric filter. One air pollution control system shall be installed for each
combustion train in the Facility. Proposers should note that any type of dump stack,
where the flue gases are released into the atmosphere untreated, will not be accepted.
Proper air seals and insulation and lagging shall be provided to prevent undue
condensation.
3.4.20.2 Acid Gas Scrubber
Each combustion train shall be equipped with an acid gas scrubber so that all exiting
flue gases are in compliance with the conditions set forth in the air quality permit.
Likely minimum requirements are established in 40 CFR 60. The Proposers shall
include in the Technical Proposal a complete description of the proposed system
including the manufacturer's specifications. The Proposers shall describe the
proposed methods and design features for achieving high availability of the scrubber
by avoiding caking inside the reactor vessel walls and by avoiding problems
associated with the reagent storage, slurry preparation, if applicable, and delivery
system. It is anticipated that several types of acid gas scrubbers may be capable of
achieving necessary performance, including dry injection of reagent into ductwork, dry
injection of reagent into a vessel, and slurry injection of reagent into a vessel. Only
information appropriate to the selected acid gas scrubber should be provided.
Hawai'i County 3-19 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operete Project Appendices to the Draft Service Contract
Proposers shall also plan for and describe methods to be utilized to minimize dust
deliveries from receipt of lime deliveries.
3.4.20.3 Particulate Collection System
Each combustion train shall be equipped with a flue gas particulate collection system
(as discussed in Section 3.4.20.1) so that all exiting flue gases are in compliance with
40 CFR 60. The Proposers shall include in the Technical Proposal a complete
description of the proposed systems including the manufacturer's specifications.
3.4.20.4 Stack
The stack shall have one flue per combustion line and be self-supporting. Flue gas
monitoring ports, platforms and access ways shall be provided with the stack.
3.4.21 CONTROL SYSTEM
The Facility shall be provided with instruments, meters, gauges, manual controls and
automatic controls to a level consistent with safe, efficient and economic operation of
the Facility. Overall monitoring and control of the Facility shall be accomplished from a
centralized control room. Manual overrides for all systems and equipment with
automatic controls shall be provided. The controls shall be based on a modern
distributed microprocessor based, combination control system.
/ 3.4.22 WASTEWATER TREATMENT SYSTEM ~
This is a zero water discharge facility so all wastewater will have to be handled on-site. 1
The Company should show how this is to be achieved considering wastewater will
include boiler blowdown, floor drains, demineralizer and water treatment wastes,
process area wash down, and other wastewater streams.
3.4.23 MOBILE EQUIPMENT
The Company shall furnish, at a minimum, the following vehicles and mobile
equipment:
• Ash residue transport vehicles
• Wheeled loaders (as required for ash load-out and tipping floor)
3.4.24 FIRE PROTECTION
The fire protection and control systems shall meet or exceed the requirements and
recommendations of the NFPA and state and local codes. Sprinkler system shall be
provided for cooling tower fire protection. Standpipes, fire pumps, and hose stations
shall be provided where prudent.
Fire protection measures shall be reviewed throughout the design, construction, and
operation of the Facility with local city and county fire officials.
Fiawai'i County 3-20 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-BUiltl-Operate Project Appendices to the Draft Service Contrail
r... 3.5 REFERENCE VALUES
For the purpose of the Proposal, the Proposers shall use the reference values listed
below. It should be noted that these values are being used to provide a basis for
comparison and should be used for informational purposes in the preparation of the
Proposal only. These values are not guaranteed by the County nor will they be
guaranteed in the final Service Contract.
Annual Average Ambient Temperature = 74° F
Average annual relative humidity = 74%
~M.
' Hawaii County 3-21 July 3, 2006
Waste ReduGion Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service ConVact
`
APPENDIX 4 -CONSTRUCTION REQUIREMENTS
4.'I PURPOSE OF APPENDIX
This Appendix identifies and establishes minimum requirements for Project
construction, including verification of site conditions, safety and environmental
controls, the Company's responsibilities related to maintenance of plant
operations during construction, and restoration of disturbed areas.
4.2 SURVEYS/LIMITS OF CONSTRUCTION/SIGNAGE
The Company shall pertorm all work and services necessary for or incidental to
the performance and completion of survey work necessary for construction. This
work shall include surveys needed to establish and maintain benchmarks, to
establish the limits of construction, and to make measurements to verify the
location of completed construction.
Prior to construction, the Company shall conduct surveys and other activities
necessary to define the limits of the construction and lay out the work on the site.
The Company shall adhere to the limits of construction as shown in Figure 4-1
[to come from Company's Proposal Subsection 2.6] and shall provide
adequate worker training, flagging, staking, and monitoring to assure that the
limits of construction are observed in the field. The Company shall be
~ti,,,. responsible for obtaining any modifications to existing easements across the site
as further described in Appendix 1.
For any work located outside of the site, the Company shall be responsible for
gaining all rights-of-entry, easements, or other approvals necessary from the
property owner. For work potentially affecting existing easements, the Company
shall comply with the requirements of Appendix 1. The Company shall provide
the County with copies of ali easements.
4.3 COORDINATION OF CONSTRUCTION WORK
4.3.1 CONSTRUCTION TESTING
The Company shall be responsible for pertorming all inspections and tests as
required to verify compliance with the Company's construction specifications and
minimum requirements of the Service Contract. The Company shall engage the
services of independent inspection and testing agencies, including testing
laboratories, which are pre-qualified as complying with "Recommended
Requirements for Independent Laboratory Qualification" by the American Council
of Independent Laboratories. The testing laboratory shall specialize in the types
of inspections and tests to be pertormed, shall be authorized by authorities
having jurisdiction to operate in the State of Hawaii, and shall be approved by
the County.
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Design-Build-Operate Projed Appendices to the Draft Service Conlrad
i ~
The Company shall provide the results of all inspections and tests to the County y„
for review, including retests verifying that a subsequent test has passed for work
previously identified as out of compliance with specified criteria.
4.4 MANAGEMENT OF ON-SITE WATER DURING CONSTRUCTION
4.4.1 SOURCES OF CONSTRUCTION WATER
The Company shall provide for the detention; treatment, and discharge of all
water generated during construction. Construction water will include surface
water runoff and water removed from excavated areas. The Company shall plan
and schedule its construction activities to reduce the amount of construction
water to be managed in a given period.
4.4.2 TEMPORARY DRAINAGE FEATURES
The Company shall conform to the requirements of its NPDES General Permit for
Stormwater Discharges Associated with Construction Activities. The Company's
design of temporary detention, treatment, and discharge facilities shall account
for the maximum disturbed area and maximum amount of construction water to
be generated. At a minimum, temporary features shall be sized on the basis of
the 10-year storm.
4.4.3 SURFACE WATER QUALITY t
C The Company shall take no actions leading to a violation of surface water quality t
standards, including but not limited to any requirements that are made part of any
permits or approvals for the Project or part of the South Hilo Sanitary Landfill
Industrial Stormwater NPDES permit.
The Company shall reduce water quality impacts associated with construction
water by using sheet piling to limit excavation areas and other measures to
control erosion and sedimentation.
The Company shall be responsible for installing and maintaining adequate
drainage to prevent soil erosion at construction areas. Prior to the beginning of
construction, drainage/erosion control measures sufficient to contain and treat
runoff shall be installed. As construction progresses, soil erosion features shall
be maintained with the changing site conditions. Temporary erosion contro{ and
protection measures shall be in place at all times, and shall be inspected
throughout the year. Soil stockpiles shall be immediately covered. As
permanent drainage structures are installed, the Company shall protect the
intakes to avoid clogging. The Company shall monitor and maintain the
effectiveness of the runoff protection at all times, but particularly during and after
anticipated rains. The Company shall maintain an adequate supply of erosion
control materials on-site for immediate use.
Construction runoff shall be collected, detained, treated, and discharged in an
approved manner necessary to keep sediments and other pollutants from being
transported from construction areas and to keep sediments and other pollutants ~
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I from being transported to the existing site stormwater system. Discharges from
detention and treatment facilities shall be routed through the existing on-site
surtace water drainage system.
The Company shall provide tire cleaning for all construction vehicles that may
track mud, prior to leaving the construction area and returning to public roads.
Dirt loads shall be covered and secured during off-site travel.
The Company shall employ all measures needed to comply with the South Hilo
Sanitary Landfill's Industrial stormwater NPDES Permit and its SWPP Plan
requirements.
4.5 OTHER CONSTRUCTION MEASURES
4.5.1 DUST CONTROLIBURNING
The Company shall be responsible for dust control during construction and shall
comply with all applicable Hawaii Department of Health (DOH) regulations.
Spraying with dust control chemicals shall be prohibited on-site. Street flushing
is prohibited.
The Company shall dispose of construction debris at permitted disposal facilities.
Burning shall be prohibited.
4.5.2 NOISE CONTROL
~w.- The Company shall comply with all applicable County of Hawaii and State of
Hawaii noise regulations. Construction work will be allowed from 7:00 AM to
6:00 PM, seven days per week. Construction will also be allowed at night with
notification to and approval by the County and provided that appropriate security
measures are employed.
4.5.3 SITE SECURITY AND MAINTENANCE
The Company shall be responsible for providing an adequate level of security
during construction of the Facility. Such security shall, at a minimum, be
implemented in a manner designed to prevent unauthorized individuals from
entering the site, for safety and security reasons, seven days per week, twenty-
fourhours per day.
The Company shall also be responsible for maintaining the Facility in a
presentable state at all times. Access to the site for the County and its agents
shall be maintained at all times. Storm or heavy rain damage to the site shall be
the responsibility of the Company, and shall be restored to a presentable state.
Hawai'I County 4-3 July 3, 2006
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Design-Build-Operate Project Appendices to the Dratl Service Contract
1
4.5.4 SPILL PREVENTION AND CONTROL
The Company shall handle all petroleum and chemical products and provide
suitable measures for the prevention and control of spills in accordance with its
Construction Spill Containment and Response Plan. Petroleum-based products
shall not be thrown, spread, or otherwise discharged on or beneath the surface of
the ground.
4.5.5 SOILS DISPOSAL
The Company shall test all soils requiring off-site disposal for contaminants in
accordance with minimum requirements established by the DOH, and as
required by the designated disposal site. Soil shall be disposed of at
appropriately permitted facilities with records maintained by the Company and
copies provided to the County. [Note to Proposers: Proposers are to price
their Proposals as if off-site disposal is for clean fill. If Company testing
results in the need for disposal as contained soil, the County will pay the
incremental cost difference per ton based on the unit price proposed in
Proposal Submittal Form 16.]
~
Hawaii County 4-4 July 3, 2006
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Design-Build-Operate Project Appendices to the Draft Service Contract
APPENDIX 5 -QUALITY MANAGEMENT PLAN
5.'I PURPOSE OF APPENDIX
This Appendix describes the minimum requirements for the Company's overall
Quality Program including its Design-Build-Operate Quality Management Plan.
The Design-Build-Operate Quality Management Plan shall define quality control
(QC) and quality assurance (QA) procedures that shall be implemented during
permitting, design, construction, startup, commissioning, Acceptance Testing,
and Operation.
5.2 COUNTY'S QUALITY OBJECTIVES
The Company's overall Quality Program, including quality control and quality
assurance, shall be consistent with and support the County's overall expectation
of high quality and the following overall quality objectives:
¦ Ensure that the Company implements awell-developed quality
program to help meet the County and Company's objectives for the
Project.
¦ Ensure that permitting, design, construction, transition planning,
startup, testing, commissioning, Acceptance Testing, and operation
are consistent with the Service Contract and result in a project that
r... meets the overall Pertormance Guarantees for the Project.
¦ Provide durable, dependable, and high-quality materials,
installation, and equipment compatible with and proven in waste-to-
energy applications.
¦ Develop systems to assure that problems are discovered early,
corrected adequately, and do not recur.
¦ Provide independent oversight equipped with adequate resources
to assure that quality is not compromised by production goals.
5.3 COMPANY'S QUALITY MANAGEMENT RESPONSIBILITIES
The development and implementation of the overall Quality Program shall be the
responsibility of the Company, which recognizes the County's emphasis on high
quality for the Project. The Quality Program shall integrate permitting, design,
construction, and operation, and shall include detailed quality control and
assurance programs, staffing assignments and communication protocols,
training, and other aspects as defined below.
The Company's Quality Program shall define how the Company will ensure that
the County's quality objectives are met, including provisions for involving County
representatives in discussions related to quality and provisions for reporting
quality assurance findings to the County. In addition, the Company's Quality
Program shall ensure that:
~ Hawai'i County 5-1 July 3, 2006
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Design-Build-Operate Project Appendices to the Draft Service Contract
r a.N.,
¦ Project staff, including subcontractors, are qualified to perform their
duties and meet all necessary regulatory and project-specific
training requirements.
¦ A strong emphasis is placed on selection of quality materials and
equipment during the design and on quality workmanship during
construction.
¦ Items and services procured for the Project meet all necessary
quality requirements.
¦ Quality control work is documented and documents are properly
managed and controlled.
¦ Work is properly planned and implemented according to
established procedures.
• Work is reviewed and quality processes are audited by the
Company for effectiveness.
¦ Deficiencies are documented and effective corrective action is
promptly completed (Quality Assurance program).
¦ Work processes are continually improved through analysis of root
causes and feedback of lessons learned.
To achieve these goals, the Company shall:
t Develop an overall Design-Build-Operate Quality Management ~
Plan. The Design-Build-Operate Quality Management Plan shall
describe in detail the Company's comprehensive program to ensure
that the Company's Quality Program responsibilities and the County's
quality objectives will be met.
Provide adequate resources dedicated exclusively to the Design-
Build-Operate Quality Management Plan's implementation.
QA/QC staff must function independently of production staff and be
empowered to enforce the Quality Program's objectives, define quality
expectations, independently verify quality, and investigate the causes
of poor-quality work.
Define Roles/Responsibilities. Clearly defining and communicating
the roles and responsibilities and quality standards among all parties
working on the Project, including subcontractors, to ensure quality
standards are met.
Manage Documentation. Accurate and complete documentation and
records management using a comprehensive document management
system and project record filing system.
Hawai i County 5-2 July 3, 2006 rprl~`
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Design-Build-Operate Project Appendices to the Draft Service Contract
~ 5.4 SUBMITTALS
The Company's Initial Draft Design-Build-Operate Quality Management Plan
meeting the requirements of Section 5.3 and submitted as part of its Proposal, is
attached as Exhibit 5-1. [From Company's Proposal Subsection 3.3]
The Company shall submit a revised draft Design-Build-Operate Quality
Management Plan, including expanded construction and operation QA/QC
programs, for County review by the time indicated in Appendix 10. These plans
shall show how quality will be managed for all construction and operation
activities. The County shall respond with questions and comments within the
time frame specified in Appendix 10. Final construction and operation QA/QC
programs, incorporating the County comments, shall be submitted prior to Notice
to Proceed and are a Construction Commencement Date Condition.
Revisions and updates to the Company's Quality Program may be proposed by
the Company as the Project progresses. Changes to the Quality Program shall
require the approval of the County. These revisions and updates may occur in
one or more iterations within the time frames established in Appendix 10. The
Company shall not initiate any of the work under a proposed change to the
Quality Program until reviewed and an acceptable Quality Program change is in
place.
5.5 MINIMUM REQUIREMENTS FOR COMPANY'S QUALITY MANAGEMENT
PLAN
t,w,..~
5.5.1 OVERALL PROGRAM REQUIREMENTS
The Company's Initial Draft Design-Build-Operate Quality Management Plan and
subsequent revisions shall include, at a minimum, the following information for
each phase of the Project:
¦ The Company's overall quality approach, including its QC and QA
philosophy and approach for each phase and a discussion of
methods that will be used to assure that contracting and
subcontracting relationships will support the Company's and the
County's quality objectives.
¦ Minimum staffing and resource commitments for QC and QA
activities for each phase, including fully explained responsibilities
and authorities.
¦ Organization charts for each phase showing the relationship and
reporting plan for the QC manager, special inspectors, field
engineers, design engineers, subcontractors, the County, and
others. This shall include descriptions of the relationships of QC
and QA staff to the monitored organizations pertorming the work.
~ Hawai'i County 5-3 July 3, 2006
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Design-Build-Operate Project Appendices to the Draft Service Contract
(
¦ Definition of design change process during construction describing
the sequence of events to implement a design change ,and
documentation of the design change.
¦ A description of the Company's process to identify, document, and
reach concurrence on corrective action for incidents of construction
nonconformance.
¦ Other QA and OC procedures and documentation requirements in
detail.
5.5.2 PERMITTING QAIQC PROGRAM
The Company's permitting QA/QC program shall also be described in detail in its
Design-Build-Operate Quality Management Plan.
The permitting QA/QC program shall, at a minimum, address the following:
¦ Roles and responsibilities for permitting
¦ Documentation of assumptions
¦ Standards and methods to be used
¦ Procedures for communicating permitting-related information and
design constraints to the design engineer
¦ Procedures for ensuring that permit requirements are incorporated
into design and construction documents and for verifying
compliance during construction and operation
5.5.3 DESIGN QAIQC PROGRAM
The Company's design QA/QC program shall be described in detail in its Design-
Build-Operate Quality Management Plan.
The design QA/QC program shall identify the roles, responsibilities, and
procedures necessary to ensure that design quality is maintained during the
development, review, and approval processes. The firm serving as the Engineer
of Record for the design of the Project shall be identified as well as the
individual(s) serving as the Engineer in Responsible Charge of the design work.
Controls shall be established to ensure design development is coordinated with
permit requirements and to obtain input from the Company's construction and
permitting teams.
Coordination shall include all internal and external parties involved in the design
development and review process, including inter-discipline reviews and
constructability reviews, as well as the verification process used to ensure that
changes are clearly and consistently shown on all affected design documents.
Methods shall be incorporated to ensure that all design issues and reviewer
comments are identified and tracked until they have been addressed and/or
incorporated into the design. Tracking documents showing resolution of internal/ ~
Hawaiti County 5-4 July 3, 2006
Waste ReduUion Facility Request far Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
external reviewer comments shall be developed, maintained, and be available to
the County for review.
The design QA/OC program shall assure that documents are not provided for
County review until all internal inter-discipline and constructability reviews have
been completed.
The design QA/QC program shall specifically include provisions meeting the IBC
requirements of seismic QA plans.
Measures shall be taken to ensure that designs are not released to construction
until authorized and approved by the Engineer of Record. Design documents
shall clearly show detailed quality requirements such as: construction tolerances;
requirements from codes and standards that are to be followed during
construction; equipment model numbers; ASTM and industry standards; material
requirements; and any test reports or certifications required from the
manufacturers.
5.5.4 CONSTRUCTION QAIQC PROGRAM
The Company's construction QA/OC program shall be described in its Initial Draft
Design-Build-Operate Quality Management Plan and shall be revised in more
detail prior to construction.
The Company shall be responsible for controlling the quality of all work, including
work of its subcontractors and suppliers, and for ensuring that the required
t «,w,„. quality is achieved. The Construction QA/QC Program shall describe the
Company's approach to:
¦ On-site quality
¦ Off-site quality (manufacturing, fabrication, and assembly)
¦ Construction QA/OC organization
¦ Programs for orienting and training staff and subcontractors
¦ Methods and procedures used to assure that quality is achieved
during all stages of construction
¦ Quality Control, including inspection and testing
Procedures shall clearly define QA/QC activities, including responsible parties,
roles, and work products ensuring that the work is constructed as specified and
required. The Construction QA/OC Program shall include a QA/OC work plan
that details the QA/OC submittals for construction. These requirements shall be
written with sufficient clarity to allow the County to verify that the Construction
QA/QC Program is being fully implemented, all work is inspected, and that all
deficiencies are being identified and resolved promptly. The Company shall
provide sufficient notice to the Authorized County Construction Representative in
advance of covering any work to allow the Authorized County Construction
Representative to verify the work conforms to Service Contract requirements.
Hawai i County 5-5 July 3, 2006
Waste Redudion Facility Request for Proposals -Vol. III
Design-Build-Operate Projed Appendices to the Draft Service ConVad
The Construction QA/QC Program shall include the details of the Company's ~
Construction Quality Control Program (CQCP). Instructions for performing
inspections must be clearly defined, including:
¦ The work attributes to be inspected and tested
¦ Pertormance Guarantees
¦ Frequency of inspections and testing
¦ The requirements for documenting the inspection results
Inspection and test records shall be kept current (not less frequently than daily),
and shall have sufficient detail to enable the County's representative to identify
inspections and tests that have been performed, and the results. The CQCP
shall show methods to be implemented to identify and track all unsatisfactory,
deviating, and nonconforming work until the required repair, rework, or
replacement is pertormed, and the work has been re-inspected and accepted.
The County shall be informed of all unsatisfactory and nonconforming conditions,
and the Company's plan for corrective action.
The CQCP shall assure the quality of all material and equipment. Procedures
shall be implemented to verify that the procurement documents meet all design
requirements, and that quality has been controlled during the manufacture and
testing of all major or critical equipment being fabricated specifically for this
Project. The CQCP shall require receipt inspection of all material and equipment
to ensure that it meets all design requirements. The County shall be given
access to all off-site manufacturer and storage locations for the purpose of
observing fabrication and off-site testing and storage. The Company shall advise
the County of the schedule for all off-site testing of equipment and materials.
The CQCP shall include monitoring procedures to ensure that material and
equipment is being stored and maintained according to requirements of the
designer and the manufacturer. Documentation such as material test reports,
certifications, and equipment test results must be received to demonstrate
compliance with the approved design. The Company shall organize all results for
archiving by the County consistent with the file coding system provided by the
County.
The Company shall provide full-time construction inspection and testing for the
Project. Construction inspectors, who shall be provided with the latest designs
released to construction, shall perform initial verification of procurement and
construction activities, so that any nonconforming work will be identified at an
early stage. In this regard, the CQCP shall clearly identify the circumstances
under which the Company's soils engineer will be involved in construction quality
oversight.
Controls shall be provided to ensure that inspections and testing are being
pertormed using the latest approved design documents and shop drawings.
Procedures shall ensure that an adequate number of inspection personnel (as
defined by the Company's Design-Build-Operate Quality Management Plan as
Hawaii County 5-6 July 3, 2000 w--
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Drag Service Contract
approved by the County) are available at all times, and that all inspectors are
qualified, trained, and proficient in performing inspections for the work to which
they are assigned.
The Company shall pertorm all testing and inspections as required by the Service
Contract, approved design documents, codes, regulations, and standards (such
as ACI and ASTM) which may be referenced in various sections of
Appendices 3, 4, and 6. If there are any conflicts in the testing requirements
between the Service Contract and the design documents, and recommendations
or requirements shown by codes, regulations, or standards, the more stringent
testing requirements shall apply as determined by the County.
All testing shall be performed by individuals who are qualified and experienced in
providing these testing services. Equipment used to pertorm tests shall be of the
stipulated type and model, and shall have been calibrated according to
requirements in the testing procedure. The Company shall hire a Certified
Independent Testing Laboratory to perform all laboratory testing. Lab tests
include:
¦ The proposed concrete mix design
¦ Concrete aggregate tests
¦ Strength of concrete field test cylinders
¦ Gradation and moisture density relationship of soils
L~,~w
¦ Others as required by the Company's Engineer of Record
The Certified Testing Laboratory(s) shall also perform on-site tests that the
Company is not experienced, qualified, or certified to perform. On-site tests
include:
¦ Concrete slump
¦ Concrete air entrainment
¦ Concrete temperature
¦ Casting of concrete test cylinder specimens
¦ In-place testing of concrete strength
¦ Compaction density testing of soils
¦ Coating thickness measurements
¦ Anchor bolt pull tests
¦ Structural bolting torque
¦ Welds
Hawaii Counly 5-7 July 3, 2006
Waste ReduGion Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contrail
r
¦ Coatings ~
¦ Others as required by the Company's Engineer of Record
5.6 OPERATION QA/QC PROGRAM
The Company's Operation QA/QC Program shall be described in the Design-
Build-Operate Quality Management Plan. The Operations QAlQC program shall,
at a minimum, address the following:
Rules and responsibility for operation,
Record Keeping and other documentation,
How Performance Guarantees will be met, and
Procedures for addressing operations problems and/or permit
requirements.
5.7 COUNTY ROLE IN QUALITY ASSURANCE
The County intends to have afull-time representative during construction. The
County intends this individual to be a part of the County's independent Quality
Assurance program. The Company shall be fully responsible for implementing its
own comprehensive Quality Program (including Quality Assurance and Quality
Control) and shall not depend in any way on the observations of the County's
representative to substitute for its own obligations.
The County shall be provided in a timely manner with duplicate copies of all •",d
Quality Program documentation including:
¦ Quality control inspection reports ,
¦ Quality control test reports
¦ Nonconformance reports
¦ Quality assurance reports
¦ Pile driving blow count records
¦ Equipment test reports
¦ Material test reports
¦ Quality control personnel qualifications and certifications
r r~
HawaYi County 5-8 July 3, 2006 ~w?r'~
Wasle ReduCion Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contred
APPENDIX 6 -ACCEPTANCE TESTING
6.1 GENERAL
The intent of the Acceptance Test is to demonstrate that the Facilities can meet
the Performance Guarantees in Appendix 2 and the environmental permit
conditions outlined in Appendix 1. The County's goal is to have achievement of
the Appendix 2 Performance Guarantees clearly and unquestionably
demonstrated during the Acceptance Test, to the maximum extent possible. To
the extent this cannot be accomplished due to insufficient waste quantities the
Company shall identify modeling or other mechanisms to provide this additional
demonstration.
6.2 MINIMUM TESTING REQUIREMENTS
All testing shall be pertormed in accordance with the applicable local, state and
federal regulatory agencies rules, regulations, and methods, and the
requirements of sections of this Stage 2 RFP. The Guiding Principles set forth in
ASME PTC 4.1 and 33 will generally apply.
At least one hundred twenty (120) days prior to the commencement of any
testing activities to determine the ability of the Facility to satisfy the Performance
Guarantees, notice to the County shall be given in the form of a preliminary
Acceptance Test Protocol, which will incorporate the guidelines established in
` " this Section and will contain the Company's best estimate of the amount of waste
required for testing on a daily basis, and the schedule and procedures of the
Acceptance Tests. Processible Waste quantities needed for preliminary runs will
also be specified as closely as possible. The County shall deliver or cause to be
delivered such amounts of Processible Waste. The Company shall notify the
County at least five (5) working days prior to the start of any test described
herein.
It is the objective of these tests to determine whether the facility meets the
Performance Guarantees, Technical Specifications, and operates at its design
capacity.
During the Acceptance Test period, all equipment will operate at its normal mode
and capacity, and the operating personnel and supplies shall be those proposed
to be available during normal operation of the Facility -all to demonstrate the
capability of the Facility under normal operating conditions. During the
Acceptance Tests, the Company shall operate the Facility in conformance with all
Applicable Law. The test will be conducted with Processible Waste and will allow
for all procedures to occur concurrently.
Prior to Acceptance Testing, the Facility must have completed start-up as defined
in the Service Contract and each unit will have been operated for a minimum of
three (3) weeks at or above 75 percent capacity to attempt to bring the heat
transfer surfaces to a normal operating condition. If cleaning of the heat transfer
Hawai'i County 6-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Dratl Service Contract
l';:.,,
surfaces with the exception of normal rapping and/or soot blowing is pertormed
after the three week start-up period has been established, an additional three
weeks of operation at or above 75 percent capacity will be undertaken by the
Company.
Following start-up and shakedown operation of the Facility and before conducting
Acceptance Testing, all key instrumentation and controls will be calibrated by
technicians provided by the Company, its subcontractors, or suppliers. In
addition, all continuous emissions monitors will be certified.
The Company shall maintain weigh scale records of the quantity of waste
delivered to the Facility for testing purposes. In addition, the Company shall
maintain records of the quantity of waste processed during each test. All
weighing devices shall be calibrated immediately prior to the start of testing, in
accordance with State requirements. At the end of the tests, the weighing
devices shall be recalibrated to determine if there was any change in accuracy.
6.3 ADJUSTMENTS PERTAINING TO THROUGHPUT CAPACITY AND ENERGY
RECOVERY RATES
It is recognized that the waste delivered to the Facility for Acceptance Test
purposes may not have the same composition as the Reference Fuel as defined
in Section 2.2.2 of Volume I of this Stage 2 RFP and that throughput capacity
and energy recovery are dependent upon the waste composition, particularly its
C moisture content and heating value. For example, the processing of lower Btu
content waste than that of the Reference Fuel will allow higher throughput rates '
but will result in a lower energy yield and may, therefore, appear to demonstrate
higher throughput capacity but lower per ton energy yields than that which would
have been obtained had the Facility been tested with reference fuel. Similarly, if
the waste furnished for Acceptance Test purposes has a higher Btu content than
that which would have been obtained with Reference Fuel, the demonstrated
throughput capacity may be less than that which would have been obtained with
Reference Fuel but the per ton energy yield would be higher.
It is further recognized that it is difficult to obtain an accurate measurement of the
heating value of the waste through sampling of the waste being processed during
the Acceptance Test. It is, therefore, proposed that the combustion system be
used and a calorimeter, following, in general, the principles described in the
ASME Power Test Code 4.1 for Steam Generating Units (1964, reaffirmed 1979)
and 33 for Large Incinerators (1978, reaffirmed 1985) and PTC 33a (1980,
reaffirmed 1987). The heating value of the waste used during the Energy
Recovery Tests shall be used to correct the throughput and energy production
which would have been obtained using Reference Fuel.
One purpose of the Energy Recovery tests is to determine the higher heating
value ("HHV") of the waste processed during the test and determine the boiler
steaming rate and associated efficiency. The boiler efficiency and steaming rate
determined during the Energy Recovery Tests can be used to estimate the
average HHV of the waste during the Throughput Endurance Capacity Test and
i
Hawaii Courtly 6-2 July 3, 2006
Waste ReduGion Facility Request for Proposals -Vol. III
Oesign-Build-Operate Project Appendices to the Draft Service Conirad
~ the Throughput Performance Capacity Test. Due to the fact that the boiler
efficiency should not vary much during the course of Acceptance Testing
(providing excess air and combustion temperatures are held fairly constant) a
straight-line relationship between steam production per pound of waste and the
HHV of waste can be assumed. The amount of steam generated and the
amount of waste processed for a specific period can be used to estimate the
HHV which can, in turn, be used to adjust the throughput of the Facility during the
Throughput Endurance Capacity Test and the Throughput Performance Capacity
Test. The adjusted throughput values should be indicative of the throughput that
would have occurred if the Facility had processed Reference Fuel and shall be
used to determine compliance with the appropriate Performance Guarantees.
The adjusted throughput rates shall be obtained by multiplying the actual
throughput rate by a factor which shall be based on the steaming rate and the
amount of throughput realized during the Energy Recovery Tests.
6.4 PRE-ACCEPTANCE TEST CONFERENCE
There shall be apre-Acceptance Test conference to provide a forum for all
individuals associated with approval of testing of the Facility so that the Company
can clearly discuss responsibilities of the participants during the Acceptance
Test. The conference shall be held at the Facility within thirty (30) days after the
Acceptance Test Protocol is submitted to the County for approval. The Company
shall notify the County of the date of the pre-Acceptance Test conference in
writing at least twenty-one (21) days in advance of such date. Notice to the
authorities shall include a copy of the Acceptance Test Protocol.
At the pre-Acceptance Test conference, the Acceptance Test Protocol shall be
reviewed, and any changes relating to the Acceptance Test Protocol shall be
discussed and, if agreed upon, incorporated into the Acceptance Test Protocol.
F).S START-UP AND SHAKEDOWN
During this phase of construction, the Company shall gradually start-up and
phase-in all process operating equipment. The Company shall:
a) at least 90 days prior to commencement of Start-up activities, submit a
Start-up protocol procedure and schedule to the County. The schedule
should outline major equipment initial operation dates, as well as the
Company's best estimate of the amount of waste, on a daily basis,
required to support Start-up activities.
b) notify the County ten (10) days prior to Start-up. Such notification shall
serve as confirmation of the Company's intentions to initiate Start-up
activities and notify the County of any changes in the schedule and/or
waste delivery schedule referred to in Part (a) above.
c) have designed, constructed, and equipped the Facility in accordance with
this Contract and he able to demonstrate that the Facility's systems and
operating equipment have satisfied all hydrostatic, pneumatic, electrical,
Hawai'i County 6-3 July 3, 2006
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Design-Build-Operate Project Appendices to the Drag Service Contract
and other tests required to demonstrate mechanical operation, all prior to '
commencing Start-up activities.
d) be responsible for all costs of repairs, modifications, testing, and operation
and maintenance of the Facility during Start-up.
e) substantially complete the training of all personnel required for commercial
operation of the Facility.
The Start-up and Shakedown Protocol shall comprise, as a minimum, the
following provisions:
a) during the Start-up and Shakedown period, the Facility shall be operated
for a minimum of three (3) consecutive weeks at or above 75 percent of
rated capacity. The Company shall provide copies of records, logs, and
data that are necessary to substantiate compliance with this requirement.
b) during Start-up and Shakedown, the Company shall operate the Facility in
accordance with good power plant operating practice.
c) all instrumentation and controls shall be calibrated by technicians provided
by the Company, its subcontractors, or suppliers. The Company shall
notify the County of the date and time specific calibration evolutions are to
occur. The County reserves the right and option to monitor the calibration
of any instrument and/or control equipment. The Company shall maintain
an instrument/controls calibration log for each instrument and control loop
C that is calibrated. The Company shall provide the County a copy of the
calibration log prior to commencing Acceptance Tests.
6.6 TEST PLAN STRUCTURE
The Acceptance Tests will be composed of the five individual, but concurrent,
tests outlined in Table 6-1 and described below.
Table 6-1: Acceptance Testing Required Tests
Throughput Endurance Operation of the Facility for thirty (30) consecutive days.
Ca aci Test
Throughput Pertormance Operation of the Facility at full load for seven (7) days.
Ca aci Test
Each unit to be tested three times for twelve (12) hours.
Energy Recovery Test One test is to be concurrent with the Throughput Pertormance
Ca aci Test.
In accordance with requirements established by the US EPA and
Emissions Compliance the Hawaii Department of Health.
Test Test shall be performed prior to and CEMs certified for use
Burin the Endurance Ca aci Test
Hawaii County 6-4 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
To verify vehicle turnaround time of 20 minutes after delivery
trucks enter the scale facility
Turnaround Time Test
Test will be performed during the Throughput Performance
Ca aci Test Burin eak traffic eriods.
6.7 THROUGHPUT ENDURANCE CAPACITY TEST
This shall be a thirty (30) consecutive day test of the Facility at an average
processing level of 95 percent of design rating while operating under automatic
combustion control, performed by the permanent plant operating personnel.
The firing rate shall be determined by the daily amount of steam produced and
waste processed.
The amount of steam produced shall be determined by in-plant instrumentation
with preference given to instruments that incorporate totalizers. The steaming
rate shall be determined by dividing the amount of steam produced (fora 24-hour
period) by the amount of waste processed (fora 24-hour period).
The daily amount of waste throughput shall be adjusted to indicate the
throughput that would have been obtained using Reference Fuel. The adjusted
reference throughput shall be determined in accordance with the following
/ equation:
Adjusted Actual ERT HHV SRA
1) Reference = Daily X X
Throughput Throughput REF HHV SR ERT
Where:
Adjusted Reference Throughput =the daily amount of Reference Fuel that would
have been processed if available (tons/day).
Actual Daily Throughput =the actual amount of waste processed in a 24-hour
period (tons/day).
ERT HHV =the HHV of the waste determined during the Energy Recovery Tests
(Btu/Ib).
REF HHV =the HHV of the Reference Fuel (Btu/Ib).
SRA =the actual steaming rate fora 24-hour period (Ib steam/Ib waste).
SRA =total amount of steam produced during 24 hours
total amount of waste processed during 24 hours
The HHV (actual) is estimated as follows:
Adiusted Reference Throughput
HHV (actual) = X SR ERT
REF HHV Actual Daily Throughput
Hawai'i County 6-5 July 3, 2006
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Design-Build-Operate Project Appendices to the Drafl Service Conirad
Where:
SR ERT =the average steaming rate determined during the Energy Recovery Tests
(Ib steam/Ib waste).
The Adjusted Reference Throughput quantities calculated for each individual day
shall be added to obtain the Total 30-Day Adjusted Reference Throughput. The
Total 30-Day Adjusted Reference Throughput shall be a minimum of
[6,000 tons] of Reference Fuel.
No cleaning of the boiler will be permitted other than normal rapping and soot-
blowing at regular intervals. Other than normal plant operating data and weight
measurements described above, no special data acquisition will be required.
6.8 THROUGHPUT PERFORMANCE CAPACITY TEST
The objective of this test is to demonstrate the capacity of each waste processing
unit to consume waste and produce steam during a seven (7) day test period
while operating at design capacity. One Energy Recovery Test shall be
conducted concurrently with this test.
The Facility will be operated for one 188-hour period, which shall be part of the
Throughput Endurance Capacity Test, during which the Facility will process at
least [To be based on Selected Proposal] of Reference Fuel. The amount of
Reference Fuel processed shall be determined by using Equation 1 which is
/ discussed in the Throughput Endurance Capacity Test above and included here
for reference purposes.
Adjusted Actual ERT HHV SRA
1) Reference = Daily X X
Throughput Throughput REF HHV SR ERT
If the Adjusted Reference Throughput (as certified by the Company and
concurred with by the Consulting Engineer) results in a throughput capacity
meeting the guarantee, the Facility will have passed the Throughput
Performance Capacity Test, provided it meets the ash residue guarantees
discussed below. If the heating value of the waste burned is determined to have
an HHV below 3,800 Btu/Ib, the waste supplied shall be considered as not
representative of Reference Fuel and the test will then be repeated at the
County's expense.
The Facility shall not have passed the Throughput Pertormance Capacity Test,
even though the tonnage processed meets the capacity requirements stated
above, if the percentage of ferrous, combustible, and putrescible matter in the
residue exceeds those specified in the Pertormance Guarantees.
6.9 MINIMUM ACCEPTANCE STANDARD
If the Company does not demonstrate compliance with the Throughput
Endurance Capacity Test requirement of processing [6,000 tons] of Reference
Fuel in the 30 day test period and/or demonstrate an average daily throughput of
Hawaii Counfy 6-6 July 3, 2006
Waste Reduction Facility Request for Proposals -Val. III
Design-Build-Operate Project Appendices to the Draft Service Contraq
[200 tons] of Reference Fuel as required by the Throughput Performance
Capacity Test, but does demonstrate the ability to process at least [5,700 tons]
of Reference Fuel during the Throughput Endurance Capacity Test and a
minimum of [190 tons] per day of Reference Fuel during the Throughput
Performance Capacity Test, then the Company shall have achieved Minimum
Acceptance Standard, provided all other Acceptance Tests and Performance
Guarantees have been satisfied.
6.10 ENERGY RECOVERY TEST
The purpose of the Energy Recovery Test is to demonstrate the steam and
power generation rates for each unit and compliance with the Maximum
Continuous Rating Guarantee. Three Energy Recovery Tests shall be pertormed
during the 30-day Endurance Pertormance Test period.- One of these tests shall
be pertormed during the Throughput Pertormance Capacity Test. The tests shall
incorporate using the furnace as a calorimeter to determine the HHV of the waste
processed during the tests. The basic formulas shall include:
1) Heat Input = Heat to + Losses
Steam
Heat Input
2) HHV of Burned Waste =
Lbs of Burned Waste
Heat to Steam
' 3) Boiler Efficiency =
Heat Input
Lbs of Steam
4) Steaming Rate =
Lbs of Burned Waste
5) Electric Generation Rate = Net kWh
Lbs of Burned Waste
The determination of Heat to Steam will require the steam and feedwater
pressure, temperature, and flow measurements. From these, the enthalpy rise
from feedwater to outlet steam will be determined.
The losses will be determined in accordance with the procedures outlined in
ASME PTC 4.1 and 33 and require primarily an ORSAT analysis or certified
stack gas monitoring system to determine excess air; a traversing of the flue duct
or stack to determine gas flow rates and temperatures; determination of moisture
content in the flue gas; assumption or radiation losses from PTC 4.1, Figure S
ABMA Standard Radiation Loss Chart; temperature of residue ash and fly ash;
temperatures and quantities of quench water; flow, pressure, temperature, and
humidity of combustion air, blowdown flow, and some other measurements or
determinations of minor losses.
Each Energy Recovery Test shall extend over a [twelve-hour] test period for
each unit. One test shall be conducted during the Throughput Pertormance
Capacity Test. Pertinent test data shall be recorded at appropriate intervals in
accordance with the test code. More specifically, the readings taken and
Hawai'i County ~ 6-7 July 3, 2006
Waste Reduction Fadlity Request for Proposals -Vol. III
Design-Build-Operate Project Appentlices to the Draft Service Contract
r
recorded during the test will include, but will not necessarily be limited to, the `
following:
¦ Waste feed rate
¦ Boiler outlet steam rates, temperatures, and pressures feedwater rates,
temperatures, and pressures
¦ Attemperator water rates, temperatures, and pressures boiler drum
pressures
Flue gas rates and temperatures at the economizer outlet
Carbon dioxide, oxygen, carbon monoxide, and water in the flue gas at the
outlet of the economizer
• Residues and fly ash quantities and unburned carbon content barometric
pressures
¦ Ambient wet/dry bulb temperatures
¦ Residue quench water quantities (if applicable) moisture in residue
Boiler blowdown rate and temperature turbine generator output
¦ Turbine generator output net electrical output
¦ In-house power consumption
Test measurements will be taken from installed plant instruments which will have
been previously calibrated shortly before the test and agreed accurate by the l.~
County Representative. Special portable instrumentation may also be used
where required and agreed upon.
All data and measurements for the test will be read and recorded separately for
each combustion unit.
The Residue (1) moisture content, (3) percent unburned carbon, (4) percent
putrescibles, and (5) HHV as identified in Section 2.6 shall be determined during
each of these tests. The residue sampling procedure and test plan shall include
provisions for determination of the amount of combustible and putrescible matter
in the residue. Residue sampling and testing shall be conducted in accordance
with ASME PTC 33. The testing shall be included in the Acceptance Test
Protocol which shall be submitted to the County at least one hundred, twenty
(120) days prior to the start of the Acceptance Test for approval.
6.11 ENVIRONMENTAL COMPLIANCE TEST
6.11.1 AIR EMtssloNs
During or prior to Throughput Endurance Capacity Test, each combustion unit
shall be stack-tested. The testing shall consist of a minimum of three
consecutive tests for each processing unit to be pertormed at specified operating
conditions, in accordance with Federal, EPA, and State regulations and approved
protocol and the requirements set forth in Section 2.7 of this Stage 2 RFP.
i
Hawai i County 6-8 July 3, 2006 ,w„
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Dratt Service Contract
vr,,,,, If the regulations in effect at the time of Acceptance Testing shall differ from
those specified in this procedure, the Facility shall be tested in accordance with
all current State regulations to determine compliance with pertinent
environmental regulations and testing procedures in effect at the time the actual
test is performed.
Testing shall be performed as directed by the regulatory agency having
jurisdiction.
6.~~.2 NOISE EMISSIONS TEST
A Noise Emissions Test will be conducted during the Throughput Endurance
Capacity Test. This test shall be conducted in accordance with the approved
protocol and the requirements set forth in Section 2.8 of this Stage 2 RFP.
6.11.3 TURNAROUND TIME TEST
This test shall be conducted during the Throughput Endurance Capacity Test
during peak traffic conditions. A protocol for determining mean queueing time
after the waste delivery trucks enter the scale facility shall be submitted as a part
of the Acceptance Test Protocol. The turnaround time shall not exceed twenty
(20) minutes.
6.12ACCEPTANCE TEST REPORT
After completion of the Acceptance Test, an Acceptance Test Report shall be
{ prepared by the Company and, within 45 calendar days, [X] copies shall be
submitted to the County. The Report shall contain, but not be limited to, the
following information and certifications:
¦ Copies of all data and log sheets.
¦ Copies of all laboratory analyses.
A listing of all federal, state, county, and other regulatory agency
requirements and the respective test results indicating conformance and
compliance or lack of conformance/compliance with these requirements.
All necessary certificates relating to calibrations, testing, evaluation,
analyses, and performance required pursuant to the Acceptance Test
Protocol
A summary of test results supported by calculations demonstrating the
ability to meet the requirements relating to the Throughput Performance
Capacity and Energy Recovery Tests.
¦ A certification signed by an officer of the Company stating that the
Acceptance Tests were conducted in accordance with the Acceptance
Test Protocol; the requirements of the Acceptance Test were satisfied or
the extent to which they were not satisfied; and the Acceptance Test
demonstrated that the Facility met each of the Performance Guarantees
specified in the Service Contract.
~'w+' Hawai'i County 6-9 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices fo the Dratl Service Contrail
6.'I3 FACILITY ACCEPTANCE TEST PASSAGE CRITERIA ~
The Facility will have been judged to have passed the Acceptance Test if the
Acceptance Test demonstrates that, in addition to the further requirements as
stipulated in the Service Contract, each of the following criteria have been met or
exceeded:
• [6,000 tons] of Reference Fuel are processed during the 30-day
continuous test period; the resulting residue complies with the Residue
Quantity and Quality Standard Guarantee; and environmental permit
requirements are complied with during the test period.
¦ The throughput capacity guarantee is demonstrated during the
Throughput Performance Capacity Test.
¦ The average net energy produced during the three [twelve-hour] Energy
Recovery Tests adjusted for the average actual HHV of Processible
Waste processed during the tests meets or exceeds the [X net kWhr/ton]
Performance Guarantee.
¦ The DOH shall have issued a final permit approval to fully operate the
Facility.
In the event that it is determined that the Facility has not passed the Acceptance
Test as performed, then, in any re-testing of the Facility, all individual test
activities will be performed, and the successful passage of the Acceptance Tests
will be dependent upon passage of all tests during any single attempt.
i~
Hawai i county 6-10 Jury 3, zoos ."~i
Waste Redudion Facility Request for Proposals -Vol. III
Design-Build-Operate Projed Appendices to the Draft Service ConVad
APPENDIX 7 -COUNTY REVIEW/SUBMITTALS
7.1 PURPOSE OF APPENDIX
The purpose of this Appendix is to describe the County's overall intent with
respect to the review of Project documents including items such as permit
applications, design packages (i.e., 30%, 60%, and 90% plans and specifications
for components packaged together for the purpose of obtaining building permits),
various plans and reports, and other required submittals. In general, the primary
purpose of the County's review is to assure that the Project documents conform
to the requirements of the Service Contract and Appendices.
7.2 GENERAL
7.2.1 COUNTY AND COMPANY OBLIGATIONS GENERALLY
The Company shall provide required Project documents for review consistent
with the submittal dates included in the Company's Project schedule. The
Company acknowledges that County review will often involve input from a
number of individuals. Therefore, should submittal dates to the County be
delayed from those shown on the monthly updated critical path schedule required
under Appendix 9, the Company shall provide prompt notice to the County's
- Contract Administrator of the delay. In no case shall this notice be given less
than [10] calendar days prior to the scheduled submittal date.
The County will provide timely review and comment on all required submittals in
order not to delay the progress of the work. Unless otherwise specified herein or
waived by the County during the course of the Project, the County acting as
Owner will review all submittals and return consolidated comments to the
Company within [14] calendar days of receiving the submittal.
7.2.2 MONTHLY PROGRESS REPORTS -DEVELOPMENT AND CONSTRUCTION PERIODS
Throughout the Development and Construction Periods, the Company shall
furnish the County with a Monthly Progress Report that summarizes all aspects
of the completed months and cumulative work progress.
The objectives of the Monthly Progress Report are to:
¦ Provide a reliable and readily accessible summary record of Project
activities and accomplishments during the month, including copies
of any permits or approvals obtained and photos of construction
progress.
¦ Provide a detailed description of all Design-Build Work actually
completed to date; revisions to the progress schedule which shall
reflect changes in the Company's construction schedule since the
date of the last Requisition; and revisions to the critical path
schedule required under [Article X of the Draft Service Contract
HawaPi County 7-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appentlices to the Draft Service Contract
and Appendix 9], which shall reflect changes in the critical path
schedule since the date of the last Requisition.
¦ Address short- and long-term scheduling and cash-flow forecasting.
¦ Identify issues and problems requiring action by the County or
Company, including issues of conflicting priorities.
¦ Provide information to help substantiate monthly pay request.
A sample Monthly Progress Report Outline to be substantially followed by the
Company is attached to this Appendix as Exhibit 7-1.
The Company shall prepare and distribute the Monthly Progress Report at least
[7] calendar days in advance of monthly management meetings that the
Company shall hold with the County throughout the Development and
Construction Periods.
7.2.3 QUARTERLY PROGRESS REPORT INFORMATION
The Company shall provide the County information to support the County's
quarterly progress report. The Company shall also provide information
requested by permitting and regulatory agencies.
7.2.4 MONTHLY INVOICING REQUIREMENTS
C The Company shall identify the following types of work on its monthly invoices, {
as applicable:
¦ Development Work, which will be paid for based on achievement of
the milestones identified in Table 9-1.
¦ Extra Work that has been negotiated subsequent to the Contract
Date.
¦ Construction Period Work, which will be paid for based on
estimated percent complete for the month being invoiced, provided
that the cumulative drawdown in that month does not exceed the
amount shown in Table 9-2.
For Development Work, invoices shall append sufficient information to
demonstrate achievement of the milestones identified in Table 9-1.
r.3 PERMIT APPLICATION REVIEWS
The Company will act as the County's agent in obtaining Project permits and
approvals or amendments thereto as defined in Appendix 1. The Company
must obtain certain permits as part of their Development Period obligations, while
other permits may be obtained during the Construction Period.
The Company shall provide draft copies of permit or permit amendment
applications to the County for review and comment. The County will provide its
comments on permit and permit amendment applications review as Owner,
i ""'e
Hawa7i County 7-2 July 3, 2006
Waste Redudion Facility Request for Proposals -Vol. III
Design-Build-Operate Projed Appendices to the Drafl Service Contrad
y,,,, within [7] calendar days except for Building Permit Applications, which the
County will review in accordance with the time provisions set forth in Table 7-2 of
this Appendix.
The County may wish to attend and observe Company meetings with permitting
agencies and is available to assist the Company in arranging for agency reviews
and meetings. If the Company wishes the County to attend such meetings or the
County wishes to attend, they shall follow the procedures set forth in the
Company's Communication Plan.
7.4 DESIGN REVIEWS
7.4.1 DESIGN REVIEW INTENT -COUNTY REVIEW AS OWNER
As Owner, the County will review design documents (see Section 7.4.2) for
consistency with the Performance Guarantees and Design Requirements of the
Service Contract, including but not limited to Design Requirements related to
allowable equipment and materials. The Company shall identify any change
from the design concept included in the Company's Proposal in its design
submittal, accompanied by the rationale behind the Company's requested
change. All changes shall require County approval. Such approval will not,
however, relieve the Company of its performance obligations under the Service
Contract.
The County will also provide detailed design input on selected Project submittals
including:
¦ Selection of finishes
¦ Color choices
¦ Layout of employee work areas
¦ Traffic circulation and parking
¦ Electronic O&M Manual
¦ Landscaping
7.4.2 REQUIRED DESIGN•RELATED SUBMITTALS
The County recognizes that the design-build process requires that the Company
and the County work cooperatively to assure timely design review and that
design work will continue after the Notice to Proceed is issued. The County also
recognizes that the Company may decide to segregate the Project into various
work packages and that multiple 50% or 90% submittals may be provided by the
Company to correspond to the way it has segregated the work.
At a minimum, the Company shall provide the following design submittals to the
County (for each package of work for which the Company contemplates
preparing separate permit applications) for review and comment:
Hawai'i County 7-3 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-BUiltl-Operate Project Appendices to the Draft Service Contrail
¦ Project conceptual design (roughly 30%) including all design
standards and bases of design, and internal/external facility layouts
¦ Approximately 50°1° design including drawings and specifications
¦ Approximately 90% complete or at the point sufficient to support
Building Permit Applications including drawings and specifications
¦ "As permitted for construction" drawings and specifications
including a complete set of Building Official comments
7.4.3 DESIGN CHANGES REQUESTED BY THE COUNTY
The County may request design changes where the Company's design does not
conform to the requirements of the Service Contract. In those cases, no change
to the Fixed Design-Build Price will be granted the Company.
If the Company believes a design change requested by the County falls outside
of these parameters and that a change to the Fixed Design-Build Price is
warranted, the Company shall promptly notify the County in accordance with the
requirements of [Article X of the Draft Service Contract].
7.5 CONSTRUCTION REVIEWS
7.5.1 CONSTRUCTION REVIEW INTENT
The County intends to assign a full-time Authorized County Construction
Representative to the Project. The Authorized County Representative will, in
accordance with the terms and conditions of the Service Contract, periodically
review construction activities and participate in construction progress meetings
as needed to verify Company compliance with the Service Contract, including
construction quality and workmanship, and to verify pay items.
The County's review and involvement during construction is intended to be an
independent Quality Assurance program and shall not be viewed by the
Company as an integral part of the Company's Quality Program.
Notwithstanding the possible intermittent nature of the County's oversight of
construction progress given the overall duties of the County's representative, the
County may provide verbal and/or written observations whenever it observes that
the progress or quality of the construction is believed not to be in conformance
with the Design Requirements.
When the Company receives such comment from the County, the Company shall
act promptly to investigate the circumstances and merits of County comments
and act to rectify those aspects of the work that are not in conformance with the
Design Requirements. The Company shall promptly report to the County on
Company actions taken in response to such County comments. When
disagreements cannot be resolved directly between the County and Company,
they sha{I be resolved in accordance with [Article X of the Draft Service
Contract].
Hawaii County 7-4 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Dratl Service Contrail
'+r,,, 7.5.2 DESIGN CHANGES DURING CONSTRUCTION
Design work on a given Project component occurring after construction has been
initiated on that component shall be issued under a Design Change Notice (DCN)
process that accurately tracks and documents changes to the design. DCN logs
shall be maintained by the Company and provided to the County. The Company
shall provide the County with a minimum of 14 days for review and comment in
advance of the affected work. A similar procedure shall be used for Design
Clarifications during Construction.
7.5.3 DESIGN CHANGE AUTHORITY OF THE ENGINEER OF RECORD
The Company's Engineer of Record (EOR) shall be responsible for authorizing
design changes during construction necessary to complete all Project elements
for their intended purposes. All such changes shall be implemented in
accordance with the DCN process described above. The Company's FOR is not
authorized to unilaterally institute changes that result in a deviation from the
Project requirements established in the Service Contract or the approved
Building Permits, unless such changes have been reviewed and approved in
advance by the County and all government entities with jurisdiction.
7.5.4 CONSTRUCTION RECORD DRAWINGS
As the construction work progresses, the Company shall maintain a minimum of
two duplicate updated sets of design documents, including the design drawings,
~L,,,,, specifications (or Service Contract Appendices as appropriate), equipment
vendor design drawings, and construction drawings. These sets will be updated
on a continuous basis, and shall never be more than [14] calendar days behind
the current state of the design and construction. The two sets shall be
maintained in sufficiently separate locations, with equally well-protected
measures, such that fire, flood, vandalism, or other calamity shall not imperil both
sets simultaneously.
The County will verify the up-to-date maintenance of both sets of documents on a
monthly basis or more frequently as part of the condition precedent to approving
the monthly progress payment disbursement process.
Upon completion of all construction work, and as part of the Design-Build
Closeout Requirements, the Company shall submit to the County a set of Record
Drawings and specifications.
Record Drawings shall be on Mylar (22" x 34") and on compact discs in the
AutoCAD Release 2002 format or the latest edition then in use by the County.
Record Drawings shall be on County cover block and drafted in accordance with
County standards.
The drawings shall be designated in the revision block as "construction record"
drawings and shall be checked and signed by the Engineer of Record to verify
that the field changes shown are accurate and consistent with the design intent.
Any applicable specifications or Contract Appendices shall be on compact discs,
''or` Hawaii County 7-5 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contrail
modified to clearly and accurately show all changes made during construction. I
The Record Documents submittal shall also include a complete set of all Design
Change Notices, numbered and bound in chronological order of issuance.
7.G OTHER SUBMITTALS REQUIRING COUNTY REVIEW
7.6.1 APPLICABILITY
Other required submittals, in addition to the submittals described above, are
listed in Table 7-2. The Company shall provide revised drafts of documents as
needed to address County comments.
Table 7-2: Other Required Submittals
~ -
Pro'ect Mana ement
( Construction
l
Transition and Acce tance
Other
7.7 SUBMITTAL PROTOCOLS
No later than the time specified in Table 7-2, the Company shall submit submittal
protocols for the Project. The submittal protocols shall identify the key submittal
packages to be prepared by the Company and the expected submittal dates,
Hawaii County 7-6 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
number of copies, and distribution of the submittals by the Company based on
distribution information provided by the County. The County will designate the
number of copies of the submittals, which will not exceed [15], and their
distribution. Design drawings to be included as part of the design submittals
shall be submitted in 11" X 17" format.
`ws Hawal'i County 7-7 July 3, 2006
Waste Reduction Facility Repuesl for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
Exhibit 7-1
Sample Monthly Progress Report Outline
Table of Contents
1. Monthly Brief I'j
II. Project/Contract Management c2j
A. Summary of Work Activities for Previous Month
B. Summary of Work Activities for Current (Upcoming) Month
C. Cash Flow Forecasting
III. Permitting jsj ~s>
A. Summary of Work Activities for Previous Month
B. Summary of Work Activities for Current (Upcoming) Month
IV. Design jaj ~s>
A. Summary of Work Activities for Previous Month
B. Summary of Work Activities for Current (Upcoming) Month
C. County Activities for Current (Upcoming) Month
V. Construction (6>
A. Summary of Work Activities for Previous Month
B. Summary of Work Activities for Current (Upcoming) Month w-~•
C. County Activities for Current (Upcoming) Month
VI. Activities Affecting Operations o)
A. Summary of Work Activities for Previous Month
B. Summary of Work Activities for Current (Upcoming) Month
VII. Status Synopsis t8j
A. Key Issues
B. Critical Path
VIII. Status of Submittals jg)
A. Previous Month Submittals
B. Current (Upcoming) Month Submittals
IX. Compliance with Other County Requirements
A. Summary of Previous Month Work Activities
B. Summary of Current (Upcoming) Month Work Activities
X. Schedule ~10j
A. General Highlights
Hawaii County 7-8 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service ConVact
B. Current and Upcoming Near Critical Construction Activities
C. Changes in Schedule Since Last Update
Notes:
(1) The "Monthly Brief' shall be written in a manner that it can be copied and provided to County
Council or to an external party for them to have a general understanding of the overall
status, and recent and upcoming project activities.
(2) Project/Contract Management shall provide a summary of the activities led by the
Company's Project Director, and such reports as quality assurance, partnering activities,
and communications. During construction, this shall also include a report covering on-site
safety.
(3) Permitting shall provide a report on each of the permits that are being pursued by the
Company, and include status, scheduled activities, and a contact name and phone number
for the project person responsible for each.
(4) Design shall provide a report on status of design activities, scheduled activities, and design
issues affecting permitting or construction.
(5) During the Development Period (design and permitting) the report shall include aone-page
attachment that lists the upcoming on-site activities. If there will be any geotechnical work,
and wetlands work, any site visits with regulators, etc., the Company shall identify it on this
attachment.
(6) Level of detail will be minimal until construction starts.
(7) Operations should be reported on throughout the Development and Construction periods to
provide the County with information on what integration activities are occurring.
(8) Key Issues shall include a listing of critical business, policy, and technical items (may be
repeated from the prior sections) to be used by the County's Project Manager to
communicate Project issues. Critical path should list the critical path and near critical path
items.
(9) Summary of Submittals shall list the status of submittals that are currently in development
and in review. This section shall provide the County advance notice of soon-to-arrive
submittals that it will need to be reviewed or otherwise require action. The Company shall
list the project team person responsible, and the amount of time that the County will have to
review. If a shorter turn around is desired than provided in the Service Contract and
Appendices, the Company shall highlight such a request in this section.
(10) Provide general highlights in narrative form, focusing on items for which there is little or no
float, those that have changed, and whatever else would be helpful to point out. Attach the
schedule.
L+n~ Hawai'i County 7-9 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
APPENDIX 8 -WASTE REDUCTION FACILITY
OPERATIONS
8.1 PURPOSE
The purpose of this Appendix is to describe certain operational requirements for
the Waste Reduction Facility and intertaces with County Operations. This
section describes how the Waste Reduction Facility and Reload Building will
generally operate under normal and certain emergency conditions, after the
Waste Reduction Facility is complete.
$.2 GENERAL OPERATIONS
$.2.1 GENERAL
The Company shall operate and maintain the Waste Reduction Facility in
accordance with [Article X of the Draft Service Contract] and following the
procedures defined in the approved Operations and Maintenance Manual.
8.2.2 NORMAL OPERATIONS
8.2.2.1 Waste Receiving
The County shall manage all waste receiving operations at the Site, including
direction of vehicles to unloading areas, monitoring the safety and security of
unloading operations and ensuring that vehicles leave the unloading areas with
vehicles fully unloaded and not likely to track or drop any remaining debris or
waste on the site roads or on public roads.
Once the waste has been received by the Company (i.e. placed on the Reload
Building Tipping Floor), all further screening, processing, reload, transport and
disposal will be the responsibility of the Company.
8.2.2.2 Waste Screening
The Company shall screen all incoming waste loads at the Reload Building for
the. purpose of identifying and removing any Non-Processible Waste from the
waste to be processed. The Company shall keep any Non-Processible Waste
that is sent to the WRF separate from Processible Waste and shall be
responsible for disposal of the Non-Processible Waste. Non-Processible Waste
shall be included as a separate line item in the Company's monthly invoice. The
cost for disposal of Non-Processible Waste will be reimbursed to the Company
by the County at a rate of [$X] /per ton. [To be provided based on Proposal]
Hawaii County 8-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service CantraG
8.2.2.3 Waste Reduction Process ~
After the Company has diverted recyclables and Non-Processible Waste, the
Company shall process the waste to maximize productivity, waste reduction and
energy production.
8.2.2.4 Waste Reload
The Company shall transfer Non-Processible Waste from the tipping and
receiving floors to the transfer trailers or hauling containers separately. The
Company will also be responsible for moving empty containers or trailers from
the trailer yard to their reload area and hauling loaded trailers or containers from
the WRF to West Hawaii Landfill (or other location in the case of recyclables).
The Company shall be responsible for clearing the floor of waste by the end of
each day so that all waste received is loaded into containers or trailers. The
Company shall wash down the tipping floor at the end of each day. Any residual
waste that is insufficient to fill a trailer or container to the specified minimum
payload may be left in a trailer or container which shall be covered and parked in
the trailer loading bay.
8.2.2.5 Waste Hauling
The Company shall haul all loaded transfer trailers or hauling containers from the
WRF to the designated disposal site and shall haul empty containers or trailers to
the transfer trailer yard at the WRF. The schedule for hauling shall be sufficiently ,
frequent to avoid a public nuisance at the trailer yard and to avoid exceeding the ~
specified limit on the number of loaded containers or trailers at the trailer yard.
The Company shall only use the routes designated in Exhibit 1 [to be included
based on the selected proposal] when transporting waste from the Reload
Building or WRF to the disposal site. The approved routes shall not be changed
without the prior approval of the County.
8.2.2.6 Normal Operating Hours
The Company shall open the Reload Building tipping floor for receipt of waste
from 7:00 a.m. to 5:00 p. m., seven days a week. It will be closed completely
during approximately six holidays per year.
8.2.2.7 Housekeeping
The Company shall implement the following housekeeping procedures:
Litter Control (daily) in the vicinity of the Reload Building and Waste
Reduction Facility
Reload Building tipping floor cleaning and wash down (daily)
• Monitoring and Cleaning loaded container area of the Reload Building
(daily)
Hawari County 8-2 ~ July 3, 2006 •.,.rm
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appentlices to the Draft Service Contrail
Building cleaning including interior and exterior walls, skylights, light
fixtures, etc. (as specified in Operations Plan)
Sweeping of all Facility roads and areas of significant vehicle activity (at
least weekly) as required to be maintained free and clear of litter and dirt.
8.2.2.8 Noise, Odor, and Vector Control
The Company shall operate the Waste Reduction Facility to comply with all
regulatory requirements for noise and odor control as defined in Appendix 2.
The Company shall take immediate corrective action to all citations from
regulatory agencies for noise and odor violations.
The Company shall implement all procedures for vector control (including
diminishing attraction for rats and birds) identified in its Operating Plan and the
permit.
8.2.2.9 Performance Guarantees
As part of its operating responsibilities, the Company shall be responsible for
achieving the Performance Guarantees set forth in Table 8-1 below.
Table 8-1: Operations Performance Guarantees
The amount of Processible Waste, as measured in
Throughput Tons, that the Facility is capable of processing in a
24-hour period.
The amount of electrical energy, as measured in
Energy Production kWhr/ton, that the Facility will produce at the time of
measurement.
Operational Reliability The number of days per year the facility is closed
due to scheduled or unscheduled outages.
The physical and chemical composition of the
Residue Quantity and Residue. Particular focus is given to, specific
Quality components indicative of incomplete combustion,
and contaminants deemed harmful to human health
or to the final disposal facility.
The emissions from the Facility as a result of the
Air Emissions Waste Reduction Process. Emissions must be
below certain thresholds for specific contaminants
as defined in regulations and this document.
Noise that is a specific and direct result of the
Noise Emissions operation of the Waste Reduction Facility. Noise
emissions must be below certain thresholds as
defined in regulations and this document.
`a..~ Hawai'I County 83 July 3, 2006
Waste Reduction Facility Request for Proposals -Val. III
Design-Build-Operate Project Appendices to the Drag Service Contrail
` i
8.3 OPERATING RESPONSIBILITY FOR WASTE REDUCTION FACILITY ~
The following Table 8-2 is a summary of the responsibilities for operation and
maintenance (O&M) of the Waste Reduction Facility. Operation and
Maintenance Responsibilities are further defined in the Service Contract and
Appendices 8, 17, and 18.
Table 8-2: Operation and Maintenance Responsibilities
~
Initial Visual Ins ection Yes No
Weighing and Recording yes No
Load at Scale Facili
Off-Loading of Waste from
collection vehicles to Yes No
Reload Building Tipping
Floor
Screening for Non- No Yes
Processible Waste
Removal of Non- No Yes
Processible Waste
Removal of Re clables No Yes
Processin of Waste No Yes
Reload /Marketing of No Yes
Re clables
Reload /Disposal of Non- Cost only Yes
Processible Waste
Reload /Disposal of No Yes
Process Residue
$.4 OPERATION AND MAINTENANCE PLANS AND LOGS
The Company shall prepare O&M Manuals for all components and operations
included in the project. These manuals shall be developed during the
construction phase of the project and be completed by the time of startup of the
Facility. These manuals should be sufficiently detailed and complete so as to be
suitable for personnel training, conducting start-up activities, and operating the
Facility.
In addition, for individual items of equipment, the Company shall maintain
equipment operating manuals, spare parts lists, equipment drawings,
specifications, and current catalogs.
The Company shall maintain a current and complete maintenance schedule and
log.
i ~,t
Hawaii County 8~ July 3, 2008 "~r/
Wasle Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Prged Appendices to the Draft Service Contract
il.r All personnel training shall be conducted and substantially completed prior to
start-up of the Facility so that personnel will be trained and capable in the
activities required for plant operations during start-up and acceptance testing.
During operation of the Facility, a weekly operating log shall be prepared
showing the following:
• hours of operation of each incinerator unit waste received
• tonnage burned
• auxiliary fuel consumed
• electricity consumed
• water consumed
• OBW removed, non-processibles rejected
Notes on weather, precipitation, and unusual waste characteristics will be made
on a daily basis and included in the log. The log shall include hourly records of
incinerator conditions, including temperature, oxygen concentration, draft,
pressure, and flue gas opacity and continuous emission monitors (CEM) data
should be included. Sufficient data should also be included to allow calculation
and recording of the Facility capacity factor.
H.5 LONG-TERM ENVIRONMENTAL COMPLIANCE PROGRAM
The Company shall assure long-term compliance with all applicable
environmental regulations and permit conditions.
The Company shall operate the Waste Reduction Facility to be consistent with
the maximum noise design standards established in Appendix 3, and shall
monitor for noise consistent with the requirements of its Noise Monitoring Plan.
[To Be Based on Selected Proposal]
At the Waste Reduction Facility, there shall be on-going training and
environmental education of staff and operators for long-term environmental
sensitivity, awareness, and compliance.
Annually, the Company shall pertorm an environmental review of the Waste
Reduction Facility that will include confirming compliance with environmental
regulations and permits. The review shall also include reports (i.e., quarterly and
annual) and monitoring data, as necessary. Any compliance and reporting
issues shall be reported to the facility operators and the County immediately.
The Company shall routinely conduct energy audits to ensure that equipment is
running efficiently as part of its predictive maintenance program.
8.6 SECURITY
The Company shall be responsible for the long-term security of the Waste
Reduction Facility and the Reload Building and shall implement specific security
- measures to ensure the continuous operation of the Facility. The Company shall
Hawai'i County 8-5 July 3, 2006
Wasle Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
coordinate provisions for emergency entry to the Facility with the County and with i yam'
appropriate emergency response providers.
H.7 WASTE REDUCTION FACILITY MANAGEMENT AND COMPANY STAFFING
8.7.1 GENERAL REQUIREMENTS
The Waste Reduction Facility shall, at all times, be operated in accordance with
Federal and State Requirements. It shall be supervised by a qualified manager
and with supervisory controls that are capable of responding immediately and
effectively to any and all anticipated and unanticipated circumstances posed by
the operating objectives listed in this Appendix. The appropriate combination of
automated and human oversight shall assure appropriate fail-safe procedures to
achieve compliance with the Performance Guarantees, Project Specifications
and operating requirements, and protect the asset value of the Facility.
The appointment of the Waste Reduction Facility Manager as superintendent
shall be as required by [Article X of the Draft Service Contract]. In addition,
the Waste Reduction Facility shall maintain staffing levels based on the
Company's Proposal.
8.7.2 TRAINING PROGRAM
The Company shall provide training programs for all personnel employed at the
Waste Reduction Facility. Such training shall consist of both hands-on
apprenticeship training and classroom instruction. The hands-on training wilt ~
concentrate on the daily routine operation of the Waste Reduction Facility,
allowing the trainee to observe the Waste Reduction Facility operators'
responses to certain actions/reactions and to develop the necessary skills to
efficiently operate the Waste Reduction Facility.
The training shall concentrate on both the basic theory of operation and
maintenance procedures, as well as all technical details associated with the
operation and maintenance of all equipment and machines. The training shall
include, but not be limited to, the following:
System Operations Theory and Guidelines;
• System Performance Guarantees;
¦ General Safety and Emergency Response Procedures;
Administrative Procedures;
¦ Shutdown and Start-up Procedures; and
Equipment Operation and Maintenance.
Equipment training for both operation and maintenance shall include, but not be
limited to, the following:
¦ Process Equipment;
• Onsite Vehicles;
I,
Hawaii County 8E July 3, 2006 ,M„.«.-
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contrecl
~.n
it ¦ Emergency and Safety Systems;
¦ Instrumentation and Controls;
• Site and Building maintenance Systems;
• Electrical Systems; and
• Other Equipment/Systems (as may be installed in the Waste Reduction
Facility over the Contract Term).
Operating and Maintenance manuals reflecting the most up-to-date procedure
and practical operations guides for new personnel shall be available to all Waste
Reduction Facility employees at all times.
Hawai'i County 8-7 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service ConUad
r~
APPENDIX 9 -PROJECT SCHEDULES
9.1 PURPOSE
The purpose of this Appendix is to define the Company's implementation
schedules for the permitting, design, construction, startup, and Acceptance
Testing of the Project.
9.2 DEVELOPMENT SCHEDULE
The Company shall prepare a Critical Path Schedule for the Development Work.
A copy of the Company's preliminary Project Development Schedule is attached
to this Appendix as Exhibit 9-1. [To be added based on Company's Proposal
Subsection 3.2] Updates to that schedule shall be prepared on a monthly basis
and provided to the County along with the Company's Monthly Progress Report
(see Appendix 7).
At a minimum, the Company's Development Period Critical Path Schedule shall
include:
¦ Contract Date
¦ For other permits required to close the Development Period:
Submittal Date(s) for County Review and Application Date(s) to
permitting agencies
¦ Major Design Package Submittals required under Appendix 7 and
planned to occur during the Development Period, and County
review periods
¦ Commercial Building Permit Application Date (if proposed to occur
during the Development Period)
¦ Development Period Closing Date
9.$ PROJECT CONSTRUCTION SCHEDULE
The Company shall prepare an overall Critical Path Schedule for the Project from
the Contract Date through Final Completion, but focusing on the Construction
Period. Updates to the schedule shall be prepared on a monthly basis during the
Construction Period and provided to the County along with the Company's
Monthly Progress Report (see Appendix 7).
At a minimum, the Company's Project Construction Period Critical Path Schedule
shall include the following milestones:
¦ Contract Date
¦ Major Design Package Submittals required under Appendix 7 and
County review periods (except for those submitted during the
Development Period)
Hawaiti County 9-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
llesign-Build-0perate Project Appendices to the Oratl Service Contract
i
¦ Commercial Building Permit Application(s) Date(s) (if obtained
during the Construction Period)
¦ Assumed Notice to Proceed /Construction Commencement Date
¦ Major Construction Milestone Completion Dates for all facilities and
systems as well as startup dates and dates for completion of
equipment commissioning
¦ Startup and Commissioning
¦ Startup, commissioning, and functional testing for major facility
components completed prior to Acceptance Testing
• O&M Manual
¦ Staff Training
¦ Acceptance Test
The Construction Period Critical Path Schedule shall also illustrate available float
for all major schedule activities.
i
HawaPi County 9-2 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Drag Service Contract
'v.. -
Exhibit 9-1
Project Development Schedule
[To be included based on Company's Proposal Subsection 3.2]
~.«w
Hawaii County 93 July 3, 2006
Waste Retluction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appentlices to the Draft Service Contract
Exhibit 9-2 ~
Project Construction Schedule
[To be included based on Company's Proposal Subsection 3.2]
C
Hawaii County 9-4 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contrail
~ Y_
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APPENDIX 10 -PAYMENT SCHEDULES
10.1 PURPOSE
The, purpose of this Appendix i ,io defne.the maximum cumulative drawdown
that the County, will pay for tf,Q'Development Period and. Construction Period
tNork (including. colt. of~ all war[arify. obligations) and to define the milestone
~~~irpents'thaf the County will pay for, this work.
10.2 DEVELOPMENT WORK DRAWDOWN SCHEDULE AND MILESTONES
The items listed in Table 10-1 are included in the Fixed Development Fee, which
is part of the Fixed Price Design-Build Price, and cover all Development Work for
the Project. Table 10-1 constitutes the maximum payment that will be made for
each major milestone during the Development Period.
Table 10-1: Maximum Development Period Drawdown Schedule and Milestones
, .
-
Closin Develo ment Period 5%
TOTAL FIXED DEVELOPMENT FEE 100.0%
[Note: Table 10-1 to be filled out based on Company's Proposal Form 19A.]
10.3 CONSTRUCTION WORK DRAWDOWN SCHEDULE AND MILESTONES
The costs listed in Table 10-2 are included in the Fixed Construction Price, which
is part of the Fixed Design-Build Price, and cover ail Design-Build Work to be
conducted during the Construction Period and all Warranty Work. Table 10-2
Hawaii County 10-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Drafl Service ConUad
j
constitutes the maximum payment that will be made for each major milestone
during the Construction Period.
Table 10-2: Maximum Construction Drawdown Schedule and Milestones
C
Successful Completion of Acceptance Test 5%
Acce lance Date
TOTAL FIXED CONSTRUCTION PRICE 100.0%
[Note: Table 10-2 to be filled out based on Company's Proposal Form 19B.]
~'~'1
Hawaii County 10-2 July 3, 2006
Waste Retluclion Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
APPENDIX 11 -GUARANTEED MAXIMUM
ELECTRICITY UTILIZATION/DEMAND
Exhibit 11-1
Guaranteed Maximum Electricity UtilizationlDemand
[To be included based on Company's Proposal Form 18]
~ it
Hawaiti County i t-7 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project - Appendices to the Dratl Service Contract
~ mow'
APPENDIX 12 -CONSTRUCTION PERIOD AND
OPERATION PERIOD PRICE ESCALATION
INDICES
'I2.'I PURPOSE
The purpose of this Appendix is to define the percentage of the Construction
Period Price Escalation Index that will be used to adjust the Fixed Construction
Price, should the Construction Commencement Date be delayed beyond the
Scheduled Construction Commencement Date due to uncontrollable
circumstances or County fault.
'I 2.2 CONSTRUCTION PERIOD ESCALATION
12.2.1 FIXED CONSTRUCTION PRICE INDEX
The Fixed Construction Price Index shall be used to adjust the Fixed
Construction Price (except for the Steel and Cement Components) from [insert
Scheduled Construction Commencement Date from Proposal] to the actual
Notice to Proceed Date. The Fixed Construction Price Index shall be equal to
the 20-City Average Index of the Construction Cost Index (CCI) as published
each month by Engineering News-Record. For purposes of this calculation, the
CCI index represents a value for the 15th day of each month in which it is
published. The numerator of the fraction will be the calculated weighted average
daily value for the CCI index determined using the CCI values which immediately
precede and follow the date on which the actual Notice to Proceed is given. The
denominator of the fraction will be the calculated weighted average daily value
for the CCI index determined using the CCI values which immediately precede
and follow the date on which the assumed Notice to Proceed is given.
In the event components of the Fixed Construction Price Index are not available
at the time the Fixed Construction Price, exclusive of work conducted during the
Development Period, is to be escalated, the calculation shall be made using
comparable components mutually agreed-upon by the County and the Company.
12.2.2 STEEL AND CEMENT PRICE INDEX
The Steel and Cement Components of the Fixed Construction Price will be
escalated using the Producer Price Index for Construction Materials (PPI-CM) as
published monthly by the U.S. Bureau of Labor Statistics. For purposes of this
calculation, the PPI-CM index represents a value for the 15~' day of each month
in which it is published. The numerator of the fraction will be the calculated
weighted average daily value for the PPI-CM index determined using the PPI-CM
values which immediately precede and follow the date on which the actual Notice
to Proceed is given. The denominator of the fraction will be the calculated
weighted average daily value for the PPI-CM index determined using the PPI-CM
Hawai'i County 12-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-BUiltl-Operate ProjeM Appentlices to the Draft Service ConVad
values which immediately precede and follow the date on which the assumed ~
Notice to Proceed is given.
In the event components of the Steel and Cement Price Index are not available
at the time the Steel and Cement Component, exclusive of work conducted
during the Development Period, is to be escalated, the calculation shall be made
using comparable components mutually agreed-upon by the County and the
Company.
12.3OPERATION PERIOD PRICE ESCALATION INDEX
The Operation Period Price Index shall be used to adjust the Base Fee,
Incremental Fee, and Non-Processible Fee components of the Service Fee
annually. The Base Fee, Incremental Fee, and Non-Processible Fee
components shall be initially multiplied by the change in the Consumer Price
Index for Urban Consumers (CPI-U) for Honolulu Consolidated Metropolitan
Statistical Area as published bi-monthly by the U.S. Bureau of Labor Statistics
(Operation Period Price Index) from the Construction Commencement Date to
the Acceptance Date where the change shall be equal to a fraction the numerator
of which is the calculated weighted average daily value for the CPI-U index
determined using the CPI-U values which immediately precede and follow the
Acceptance Date. The denominator of the fraction will be the calculated
weighted average daily value for the CPI-U index determined using the CPI-U
values which immediately precede and follow the Construction Commencement
Date. ;,rte
Thereafter, beginning on the Acceptance Date, the Base Fee, Incremental Fee, -~`7
and Non-Processible Fee shall be escalated annually by the Operation Period
Price Index.
If the index defined above is not available or published, or if the index as it is
constituted on the date of Base Fee and Incremental Fee Escalation is thereafter
substantially changed, there shall be substituted for such index another
comparable index or price as shall be mutually agreed upon by the County and
the Company.
t
Hawaii County 12-2 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service ConVact
~ .u
APPENDIX 13 -KEY PERSONNEL AND PRE-
APPROVED SUBCONTRACTORS
13.1 PURPOSE OF APPENDIX
The purpose of this Appendix is to define the Company's commitment of key
personnel and subcontractors and to identify those personnel and subcontractors
for whom County approval of any changes shall be required.
13.Z KEY PERSONNEL
Exhibit 13-1 presents the key personnel, their Project assignments, and the
percentages of their time that, at a minimum, they are expected to spend on the
Project during the Development Period, the Construction Period, and Startup and
Acceptance Testing and Operations Period. Percentage of time estimates are
based on 100 percent of the hours available over the entire phase, assuming
40 hours per week, minus time for vacations, sick leave, training, and
professional societies and conferences as a basis. [Note: To be filled out
based on Company's Proposal Tab 6 and Proposal Form 5.]
The Company shall obtain County approval for any changes in personnel in
accordance with [Article X of the Draft Service Contract].
Exhibit 13-2 provides an organization chart indicating the reporting relationships
of these key personnel. [Note: Add based on Company's Proposal Tab 1]
13.3 PRE-APPROVED SUBCONTRACTORS
The following subcontractors have been pre-approved by the County [To be
based on Selected Proposal]. The County shall have the right to reject
substitutions and/or additions to subcontractors, based on criteria provided in
[Article X of the Draft Service Contract].
Design Subcontractor
Process Design Subcontractor
Construction Subcontractor(s)
Civil Subcontractor
Mechanical Subcontractor
I&C Subcontractor
Electrical Subcontractor
Hawai'i County 13-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-BUiltl-Operate Project Appendices to the Draft Service ContraG
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Exhibit 13.2
Company's Project Organization Chart
[To be included based on Company's Proposal Tab 1]
°..r
HawaiS County 13-6 July 3, 2006
Wasfe Reduction Facility Request for Proposals -Val. III
Design-Build-Operate Project Appendices to the Drag Service Contrail
APPENDIX 14 -INSURANCE
'14.'I REQUIRED CONSTRUCTION PERIOD INSURANCE
14.1.1 INSURANCE COVERAGE.
The Company shall obtain, pay for and maintain the insurance coverage listed below
during the Design/Build Period with respect to any construction of the Facility without
any reimbursement obligation on the part of the County:
a. workers' compensation insurance required by the laws of the State covering all
of the employees of the Company;
b. employer's liability insurance with limits of $1,000,000 per accident or employee
disease;
c. commercial general liability and property damage insurance, with contractual
liability and products completed operations coverage, with combined single limit
of liability of $1,000,000 for bodily injury and for property damage with a
deductible amount not to exceed (without the express written consent of the
County) $100,000, $2,000,000 general aggregate limit, $2,000,000 products
and completed operations aggregate limit, $1,000,000 personal injury and
advertising injury limit and $50,000 fire damage legal limit;
d. comprehensive automobile liability insurance, including owned, non-owned and
leased or hired vehicles, with a $1,000,000 combined single limit for bodily
injury and property damage with a deductible to be determined by the
Company;
e. excess liability insurance above the required commercial general, automobile
and employer's liability insurance to result in an overall liability coverage in the
amount of $10,000,000 per occurrence and an annual aggregate limit of
$10,000,000;
f. pollution liability insurance shall be written on a Contractor's Pollution Liability
form or other form acceptable to the County providing coverage for sudden,
accidental and gradual pollution and remediation with a policy limit of no less
than $5,000,000 per claim and an annual aggregate limit of $10,000,000;
g. "builder's risk" insurance covering loss, damage or destruction to the Facility
(including machinery coverage) caused by physical damage in an amount equal
to the Facility Fixed Design/Build Price, as adjusted pursuant to the Service
Contract, of the Facility with no co-insurance provisions written on a completed
value form, subject to sublimity in coverage for inland transit ($5,000,000
sublimity, off-site storage ($5,000,000 sublimity, and earthquake and flood
($10,000,000 sublimity; and further subject to deductibles of $100,000 for
d..~
Hawaii County 141 Juty 3, 2006
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Design-Build-Operate Project Appendices to the Draft Service Contrail
earthquake, flood and "hot (operational) testing" and $50,000 for all other perils; '
and
h. professional liability insurance on a policy form appropriate to company's
profession (must provide coverage for architects, engineers, and other licensed
professionals providing work on the project) with limits of no less than
$10,000,000 per claim and a project aggregate of $20,000,000.
14.1.2 ADDITIONAL ~N$UREDS.
The Company shall name the County and its officers, elected officials, agents,
volunteers (agents and volunteers, but only with regard to this work) and employees,
as additional insureds during the Design/Build Period (the "Additional Insured") on all
policies required under this Part 1 of this Appendix (other than paragraphs 1(a), 1(b)
and 1(e) hereof). The Company shall obtain from its insurance carriers endorsements
waiving their respective subrogation rights in favor of the County. Additional insured
status should be evidenced through an additional insured endorsement (ISO 2010
1188 or prior) or its equivalent. Notices to the County as an additional insured shall be
given to the County in accordance with the Service Contract. The County will consider
additional insured endorsements on a case-by-case basis at the County's sole
discretion.
14.1.3 ~N$URANCE CERTIFICATES.
Insurance, and any renewal thereof, shall be evidenced by certificates of insurance
and appropriate endorsements issued or countersigned by a duly authorized
representative of the issuer and delivered to the County for its approval prior to the
commencement of the Design/Build Period or, in the case of a renewal, as reasonably
provided by the insurer. The certificates of insurance shall provide for 60 days' written
notice to the County of cancellation, intent not to renew, or reduction it its coverage by
the insurance company.
14.1.4 NON-RECOURSE PROVISION.
All insurance policies shall contain a severability of interest provision in regard to
mutual coverage liability policies. The coverage provided by mutual coverage liability
insurance policies required pursuant to the Service Contract shall be the primary
source of any restitution or other recovery for any injuries to or death of persons or
loss or damage to property incurred as a result of an action or inaction of the Company
or its Subcontractors, or their respective suppliers, employees, agents,
representatives, or invitees, that fall within this coverage and also within the coverage
of any liability insurance orself-insurance program maintained by the County.
14.1.5 DEDUCTIBLES.
All deductibles applicable to the Design/Build Period insurance coverage shall be
agreed upon by the Company and the County if different from those specified in Part 1
of this Appendix and shall be paid by the Company.
(,"'R,
Hawaii County 142 July 3, 2006 „Wy„+
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Design-Build-Operate Project Appendices to the Draft Service Contract
If there are deductible coverage endorsements for policies of insurance related to the
Contract Services, as the named insured on any insurance policy provided under Part
1 of this Appendix, the County shall not be obligated to pay any premium or deductible
amount payable under such policies. With respect to the deductibles under such
policies of insurance:
a. such policies shall be written with no premium and no deductible amount
payable by the County; or
b. such policies shall contain "deductible coverage endorsements" that obligate
the insurer to pay all sums that is becomes obligated to pay up to the limit of
insurance (irrespective of any provision for deductibles). While such policies of
insurance may obligate the Company or the Guarantor (but not the County) to
reimburse the insurer up to the deductible limit for any amounts the insurer has
paid under the policy, the endorsement shall specify that the obligation of the
insurer to pay all such sums shall not be contingent on any reimbursement with
regard to any claim or loss. Any such endorsement provided pursuant to this
Section shall be subject to the approval of the County.
14.1.6 SUBCONTRACTORS.
The Company shall be responsible for ensuring that all subcontractors of the Company
performing Design/Build Work secure and maintain all insurance coverages (including
f ~ workers' compensation insurance), licenses, and other financial sureties required by
the laws of the State in connection with their presence and the performance of their
duties pursuant to the Service Contract. The Company shall deliver evidence of such
insurance coverages for each of the subcontractors prior to Acceptance.
14.1.7 SPECIFIC PROVISIONS FOR COMMERCIAL GENERAL LIABILITY INSURANCE.
Commercial general liability insurance, as required under paragraph 1 (c) above, shall
include premises-operations, blanket contractual, products and completed operations,
personal injury and advertising injury, host liquor liability, explosion, collapse,
underground hazards, broad form property damage including completed operations,
fire damage legal, supplementary payments and independent contractors coverages.
14.1.8 SPECIFIC PROVISIONS FOR PROPERTY DAMAGE INSURANCE.
Property damage coverage, as required under paragraph 1 (g) above, shall include a
loss payee endorsement in favor of the County, without construction and shall insure
the interests of the County regardless of any breach or violation of warranties,
declarations or conditions contained in any such policies, any action or inaction of the
Company, the County or others, or any foreclosure relating to the Facility or a change
in ownership of all or any portion of the Facility.
Hawai'i County 143 July 3, 2006
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Design-Build-Operate Project Appendices to the Draft Service Contrail
14.1.9 SPECIFC PROVISIONS FOR WORKERS' COMPENSATION COVERAGE.
Workers' compensation insurance shall be in accordance with the requirements of the
laws of the State, as amended from time to time. The required workers' compensation
insurance shall include other states' statutory coverage, voluntary compensation
coverage, and federal longshoreman and harborworkers coverage.
14.1.10 SPECIFIC PROVISIONS FOR CONTRACTOR'S POLLUTION LEGAL LIABILITY
INSURANCE.
Coverage for pollution legal liability required by paragraph 1 (g) of this Part 1 shall
include coverage for bodily injury sustained (including death); property damage
including physical injury to or destruction of tangible property including the resulting
loss of use thereof, cleanup costs and the loss of use of tangible property that has not
been physically injured or destroyed; defense, including costs, charges and expenses
incurred in the investigation, adjustment or defense of claims; and losses that arise
from the Facility. Coverage shall apply to a pollution event arising from a covered or
completed operation including the discharge, dispersal, release or escape of smoke,
vapors, soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials
or other irritants, contaminants or pollutants into or upon land, the atmosphere or any
watercourse of body of water, which results in bodily injury and property damage.
14.1.11 SPECIFIC PROVISIONS FOR PROFESSIONAL LU\BILITY INSURANCE.
During the Design/Build Period, the Company shall maintain professional liability 1
insurance for damages alleged to be as a result of errors, omissions or negligent acts
of the Company.
14.1.12 QUALIFICATIONS OF INSURERS.
The Company shall obtain the insurance set forth herein with insurance companies
that carry an AM Best "A-,VII" equivalent rating or better. In addition, insurance may
not be obtained or maintained with insurers which are prohibited from conducting
business in the State.
14.2 REQUIRED OPERATION PERIOD INSURANCE
14.2.1 INSURANCE COVERAGE.
The Company shall obtain, pay for and maintain the insurance coverage listed below
during the Operation Period with respect to the operation of the Facility without any
reimbursement obligation on the part of the County.
c. workers' compensation insurance required by the laws of the State covering all
of the employees of the Company;
d. employer's liability insurance with limits of $1,000,000 per accident or employee
disease;
Hawaii County 14-4 July 3, 2006 .,e„e
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
i
e. commercial general liability and property damage insurance, with contractual
liability, with limits of liability of $2,000,000 general aggregate, $1,000,000
personal injury and advertising injury, $1,000,000 per occurrence for bodily
injury and for property damage with a deductible amount not to exceed (without
the express written consent of the County) $100,000 and $50,000 fire damage
legal liability;
f. comprehensive automobile liability insurance, including owned, non-owned and
leased or hired vehicles, with limits of $1,000,000 combined single limit, with a
deductible amount to be determined by the Company;
g. excess liability insurance above the required commercial general liability,
automobile and employer's liability insurance in the amount of $10,000,000;
h. all risk physical damage insurance covering loss, damage or destruction to the
Facility (including machinery coverage) caused by physical damage in an
amount equal to the full replacement value of the Facility with no co-insurance
provision and subject to the following deductibles:
Earthquake $100,000
Flood (excess of Federal flood limits) $100,000
All Other Perils $50,000
i. business interruption and extra expense insurance in an amount equal to the
annual Service Fee and loss of income and other expenses, for twelve months,
subject to a deductible waiting period of 90 days; and
j. pollution liability insurance shall be written on a Contractor's Pollution Liability
form or other form acceptable to the County providing coverage for sudden,
accidental and gradual pollution and remediation with a policy limit of no less
than $5,000,000 per claim and an annual aggregate limit of $30,000,000.
k. professional liability insurance on a policy form with limits of no less than
$1,000,000 per claim.
'I4.2.2 /~DDITIDNAL INSUREDS.
The Company shall name the County and its officers, officials, agents, volunteers and
employees as additional insureds (the "Additional Insureds") on all insurance policies
required pursuant to Part 2 of this Appendix (other than paragraphs 1(a) and (b)
hereof). The Company shall obtain from its insurance carriers endorsements waiving
their respective subrogation rights in favor of the County. Additional insured status
should be evidenced through an additional insured endorsement (ISO 2010 1188 or
prior) or its equivalent. Notices to the County as an additional insured shall be given to
the County in accordance with the Service Contract. The County will consider
to,,,..
- Hawaii County 14-5 July 3, 2006
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Design-BUiltl-Operate Project Appendices to the Draft Service Contract
additional insured endorsements on a case-by-case basis at the County's sole ~
discretion.
14.2.3 INSURANCE CERTIFICATES.
Insurance, and any renewals thereof, shall be evidenced by certificates of insurance
and appropriate endorsements issued or countersigned by a duly authorized
representative of the issuer and delivered to the County for its approval 30 days prior
to the Acceptance Date or, in the case of a renewal, as reasonably provided by the
insurer. The certificates of insurance shall require 60 days' written notice to the
County of cancellation, intent not to renew, or reduction in its coverage by the
insurance company.
14.2.4 NON-RECOURSE PROVISION.
All insurance policies shall contain a severability of interest provision in regard to
mutual coverage liability policies. The coverage provided by mutual coverage liability
insurance policies required pursuant to the Service Contract shall be the primary
source of any restitution or other recovery for any injuries to or death of persons or
loss or damage to property incurred as a result of an action or inaction of the Company
or its Subcontractors, or their respective suppliers, employees, agents,
representatives, or invitees, that fall within this coverage and also within the coverage
of any liability insurance or self-insurance program maintained by the County.
14.2.5 DEDUCTIBLES. i
All deductibles applicable to the Operation Period insurance coverage shall be agreed ~•~•w
upon by the Company and the County if different from those specified in Part 2 of this
Appendix and shall be paid by the Company.
If there are deductible coverage endorsements for policies of insurance related to the
Contract Services, as the named insured on any insurance policy provided under Part
1 of this Appendix, the County shall not be obligated to pay any premium or deductible
amount payable under such policies. With respect to the deductibles under such
policies of insurance:
a. such policies shall be written with no premium and no deductible amount
payable by the County; or
b. such policies shall contain "deductible coverage endorsements" that obligate
the insurer to pay all sums that is becomes obligated to pay up to the limit of
insurance (irrespective of any provision for deductibles). While such policies of
insurance may obligate the Company or the Guarantor (but not the County) to
reimburse the insurer up to the deductible limit for any amounts the insurer has
paid under the policy, the endorsement shall specify that the obligation of the
insurer to pay all such sums shall not be contingent on any reimbursement with
regard to any claim or loss. Any such endorsement provided pursuant to this
Section shall be subject to the approval of the County.
Hawaii County 14-6 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-BUiltl-Operate Project Appendices to the Draft Service Contrail
r
~ 14.2.6 SUBCONTRACTORS.
The Company shall be responsible for ensuring that all subcontractors which are
working on the Facility secure and maintain all insurance coverages (including
workers' compensation insurance) and other financial sureties required by the laws of
the State in connection with their presence and the performance of their duties at or
concerning the Facility.
14.2.7 SPECIFIC PROVISIONS FOR COMMERCIAL GENERAL LIABILITY INSURANCE.
Commercial General Liability insurance, as required under paragraph 1 (c) of this
Part 2, shall include premises-operations, blanket contractual, products and completed
operations, personal injury and advertising injury, host liquor liability, explosion,
collapse, underground hazards, broad form property damage including completed
operations, fire damage legal, supplementary payments and independent contractors
coverages.
14.2.H SPECIFIC PROVISIONS FOR WORKERS' COMPENSATION COVERAGE.
Workers' Compensation insurance shall be in accordance with the requirements of the
laws of the State, as amended from time to time. The required workers' compensation
insurance shall include other states' coverage, voluntary compensation coverage, and
federal longshoreman and harborworkers coverage.
14.2.9 SPECIFIC PROVISIONS FORALL RISK PHYSICAL DAMAGE INSURANCE.
Coverage for all risk physical damage required under paragraph 1 (f) of this Part 2
shall be on an all risk basis and shall protect against loss of, damage to and
destruction of the Facility. Such insurance shall also cover loss, damage or
destruction caused by flood, earthquake and volcanic eruption, provided that
earthquake and volcanic eruption insurance may have sublimits of $10,000,000. All
policies obtained may be subject to normal exclusions relating to nuclear risks, war
risks and such other perils as are generally imposed by insurers on similar properties.
14.2.10 SPECIFIC PROVISIONS FOR BUSINESS INTERRUPTION INSURANCE.
Coverage for business interruption required by paragraph 1 (g) of this Part 2 shall be
for the total or partial suspension of, or interruption in, the operation of the Facility
caused by loss or damage to or destruction of any part of the Facility as a result of the
perils insured against pursuant to paragraph 1 (f) of this Part 2.
14.2.11 SPECIFIC PROVISIONS FOR CONTRACTOR'S POLLUTION LEGAL LIABILITY
INSURANCE.
Coverage for pollution legal liability required by paragraph 1 (h) of this Part 2 shall
include coverage for bodily injury sustained (including death); property damage
including physical injury to or destruction of tangible property including the resulting
loss of use thereof, cleanup costs and the loss of use of tangible property that has not
~`°f Hawaii County 14-7 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operafe Project Appendices to the Drafl Service Contrail
i -
been physically injured or destroyed; defense, including costs, charges and expenses
incurred in the investigation, adjustment or defense of claims; and losses that arise
from the Facility. Coverage shall apply to sudden and accidental non-sudden pollution
conditions including the discharge, dispersal, release or escape of smoke, vapors,
soot, fumes, acids, alkalis, toxic chemicals, liquids or gases, waste materials or other
irritants, contaminants or pollutants into or upon land, the atmosphere or any
watercourse of body of water, which results in bodily injury and property damage.
14.2.12 CHANGES IN INSURANCE COVERAGE.
The Company shall use its best efforts to obtain such additional insurance as the
County may request from time to time, and the costs of such additional insurance shall
be a pass through cost to the County.
14.2.13 QUALIFICATIONS OF INSURERS.
The Company is required to obtain the insurance set forth herein with insurance
companies that carry an AM Best "A-,VII" equivalent rating or better. In addition,
insurance may not be obtained or maintained with insurers which are prohibited from
conducting business in the State.
14.2.14 COST OF INSURANCE.
If the County chooses to arrange for the insurance outlined in this Part 2, the County
may elect to obtain such insurance, provided that: j
,...d
a. written notice is received by the Company at least 90 days prior to the Contract
Year during which the County will assume this responsibility or 90 days prior to
the expiration date of the insurance placed by the Company;
b. the County may at any time during the term of the Service Contract, upon 90
days' written notice prior to any Contract Year, require the Company to assume
the responsibility to obtain the Required Operation Period Insurance;
c. the County names the Company and the Guarantor as additional insureds upon
assumption of such responsibility;
d. the County pays any cancellation penalty (or short-rate) arising out of canceling
the Company provided coverage required by this Part 2, prior to this expiration
date; and
e. the Company shall reduce its Fixed Component of the Service Fee in proportion
to the costs of such insurance as the Company has been providing to the
County.
Hawai i County 148 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
14.2.15 ADJUSTMENTS TO COVERAGE LIMITS.
Except with respect to the pollution legal liability annual aggregate limit set forth in this
Appendix, which shall not be escalated, the coverage requirements provided herein
shall be escalated each Contract Year throughout the Term by multiplying (1) the
coverage requirements for the previous Contract Year, times (2) the Operations Period
Price Escalation Index.
t`~,,,.
Hawai i County 14-9 Juty 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service ConVact
APPENDIX 15 -PREVAILING WAGES
15.1 PuRPOSe
The purpose of this Appendix is to provide the Prevailing Wages in effect at the time of
Service Contract execution. The Company will have to comply with the Prevailing
Wages in accordance with County policies.
[TO BE PROVIDED BY PROPOSER DURING CONTRACT NEGOTIATIONS]
~'r..-
Hawai'i County 75-t July 3, 2006
Waste Reduction Fadlity Request for Proposals -Vol. III
Design-Build-Operate Project Appentlices to the Draft Service Contract
APPENDIX 16 -EXAMPLE SERVICE FEE
CALCULATION
16.1 PURPOSE
The purpose of this Appendix is to provide an example Service Fee calculation. Such
calculation is intended to minimize questions during the Operating Period as to how
the fee is calculated.
16.2 SERVICE FEE COMPONENTS
The Service Fee is paid monthly by the County to the Company and consists of five
components: the Base Fee (BF); Incremental Fee (VF); Non-Processible Fee (NP);
Pass Through Costs (PT); Energy Credit (EC); and Other Adjustments (OA), where
SF=BF+IF+NP+PT-EC+OA
16.2.1 BASE FEE
The Base Fee is the yearly fee that is paid to the Company in twelve equal monthly
payments by the County for processing a set tonnage of waste each year (Base
Tonnage). The Base Fee and the Base Tonnage are set during Contract Negotiations
and are fixed from month to month. It should be noted that adjustments to the Base
Fee will be made annually pursuant to [Article X of the Draft Service Contract].
16.2.2 INCREMENTAL FEE
The Incremental Fee is the monthly fee that is paid to the Company by the County for
the processing of the Variable Tonnage of waste (tons of waste processed during the
month above the Base Tonnage divided by 12). The Variable Tonnage is determined
based on the monthly statement provided to the County by the Company outlining the
tons of waste processed at the Facility. The Incremental Fee per ton is determined in
Contract Negotiations and is multiplied by the Variable Tons to determine the
Incremental Fee.
16.2.3 WON-PROCESSIBLE FEE
The Non-Processible Fee is the monthly fee that is paid to the Company by the County
for the handling and disposal of the Non-Processible Waste delivered to the tipping
floor. The Non-Processible Tonnage is determined based on the monthly statement
provided to the County by the Company. The Non-Processible Fee per ton is
determined in Contract Negotiations and is multiplied by the Non-Processible Tonnage
to determine the Non-Processible Fee.
16.2.4 PASS-THROUGH COSTS
Pass-Through costs include items such as insurance premiums, [OTHER PASS-
_ THROUGH COSTS].
fir.- Hawai i County 16-1 July 3, 2006
Waste Retluction Facility Request for Proposals - Vol. II I
Design-Build-Operate Project Appendices to the Drag Service Contract
i ~a
'I6.2.5 ENERGY CREDIT
The Energy Credit is the Company portion of the revenue from the sale of the Energy
produced at the Facility. This will be 10% of the revenue for up to and including the
Guaranteed Net Power Production, and 50% for energy produced over the
Guaranteed Net Power Production.
1G.2.G OTHER ADJUSTMENTS
Other adjustments may include Liquidated Damages, Uncontrollable Circumstance
Credits or Charges, and any Facility Modifications that were required by the County.
16.3 SAMPLE CALCULATION
[TO BE DEVELOPED DURING CONTRACT NEGOTIATION]
}
Hawaii County 16-2 July 3, 2006 ~~W
Waste Reduilion Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Drag Service Contrail
APPENDIX 17 -EQUIPMENT MAINTENANCE AND
REPAIR AND REPLACEMENT REQUIREMENTS
'I7.'I PURPOSE
The purpose of this Appendix is to address maintenance and repair and replacement
requirements.
'I~7.ZPRELIMINARY FACILITY MAINTENANCE, REPAIR AND REPLACEMENT PLAN
OUTLINE
This preliminary Facility maintenance, renewal and replacement plan outline shall
serve as the framework for developing the detailed maintenance plan within the
Operations and Maintenance (O&M) Manual. Nothing in this Appendix shall relieve
the Company from performing all Facility maintenance as required by [Article X of the
Draft Service Contract], or meeting the Appendix 2 Performance Guarantees.
17.2.1 EQUIPMENT STATUS REPORTING
The Company shall prepare equipment maintenance status sheets on major pieces of
equipment, a summary of regular preventive maintenance requirements, and an
Overall Removal and Replacement Plan.
During the Operating Period, this document shall be delivered to the County on at
least an annual basis during Facility operations via updates to the O&M Manual. The
report shall also provide a major portion of the data to be included in the computerized
maintenance management system, which shall be implemented during the initial
stages of the Facility operation.
17.2.2 ONGOING AND PREVENTATIVE MAINTENANCE
The Company's maintenance plan within the O&M Manual shall reflect procedures and
standards for modern Waste-to-Energy facilities. The O&M Manual shall reflect than in
no event shall maintenance be less frequent and less comprehensive than that
specified in manufacturers' warranties and manuals. It shall also address the
maintenance and repair procedures for all water-bearing structures.
The Company shall develop and implement a comprehensive computer-based
maintenance management program that develops readily available historical data,
including an inventory of spare parts and provision for enforcing warranties on
equipment or materials purchased. The Company maintenance management program
to be included in the O&M Manual shall address:
¦ Buildings, grounds, and structures
• Electrical systems and instrumentation
• Mechanical equipment
HawaiS County 17-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
~ ~
• Mobile equipment
• Laboratory, monitoring, and sampling equipment
• Heating, ventilation, and air conditioning
• Communication equipment (e.g., telephone, facsimiles, etc.)
• Computer systems
¦ Septic system
• SCADA facilities
• Other specialized tools and equipment
The grounds, facilities, and infrastructure shall be maintained at a level adequate for
the efficient, long-term reliability and preservation of the County's capital investment.
The Company shall at a minimum perform the following activities relevant to the
buildings and grounds:
a. Maintain the buildings, grounds, and landscaping in an aesthetically
attractive and clean condition.
b. Mow the grass, including trimming of any edges, to maintain an attractive
appearance of the facilities.
c. Wash all windows twice a year, or more frequently, on an as-needed
{ basis.
d. Repair all roof leaks within five (5) days of discovery.
e. Implement regularly scheduled pest control measures.
f. Damp mop all floors twice per week or more frequently on an as-needed
basis with a cleaning solution appropriate for use in such facilities. All
spills must be cleaned immediately.
g. Strip all floors and apply new floor finish on a periodic basis.
h. Wash down walls and wall tiles at least every six months, or more
frequently, as appropriate.
i. Apply paint as necessary to all painted surfaces, as appropriate. All
painted surfaces within the facilities shall be painted at least every five
(5) years, except for such surfaces that have maintained their original
condition and would be adversely affected by frequent painting.
j. Clear offices and restrooms daily, except on weekends if not subject to
extensive use.
k. Provide for daily collection of solid waste from all receptacles within the
Facility and remove solid waste from the Facility at least once per week.
I. Periodically prune trees to minimize interterence with or damage to the
Facility and site work during storm events.
Hawaii County 17-2 July 3, 2006
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Design-Build-0perate Project Appentlices to the Draft Service ConVac[
:,A..
m. Repair cracks, erosions, depressions, and potholes, and slab shifts on
paved areas, sidewalls, and other areas, as necessary. Periodically
resurface paved areas, if necessary.
17.2.$ PRELIMINARY RENEWAL AND REPLACEMENT FLAN
A detailed renewal and replacement plan based on the specifics of the equipment and
systems constructed shall be finalized and included in the O&M Manual and updated
periodically as required by [Article X of the Draft Service Contract].
Expenditures for the Company's renewal and replacement plan shall be covered either
as part of the Company's ordinary maintenance activities, which includes repair and
replacement items of [$25,000] or less, or major maintenance renewal, and
replacement events that are above this [$25,000] threshold limit. Replacement of
major items (over [$25,000] per replacement or renewal) will be done following the
Maintenance, Repair, and Replacement Plan. All maintenance shall be covered within
the Base Fee component of the Service Fee. The [$25,000] threshold amount shall
be in effect for the first Contract Year, and thereafter escalated by the Operation
Period Price Index of Appendix 72.
The Company's overall approach for renewal and replacement is below. Incorrect
assumptions by the Company that may require expenditures beyond those budgeted
within the Base Fee shall not relieve the Company of meeting the operation and
/ maintenance obligations of the Service Contract.
At the conclusion of the service period, the Company shall return the Facility to the
County in good repair and in a sound, proper and well-maintained condition without
the necessity for the County to undertake a major overhaul when assuming facility
management responsibilities.
The Company's preliminary renewal and replacement plan is as follows:
• Electrical. All motor control centers and associated metering and transformers
are assumed to have a minimum useful life in excess of 25 years. As such, the
equipment has not been scheduled for replacement during the term of the
Service Contract, and shall be in good repair at the conclusion of the Operation
Period.
• Instrumentation. The instrumentation devices entailing analyzers, switches,
transmitters, sensors, controllers, indicators, etc., which are presented in the
Process and Instrumentation Drawings are capable of attaining a useful life in
excess of 25 years. However, since the technology will change for various
systems, (e.g., analyzers) during the term of the contract, the Company shall
replace the majority of the instrumentation devices during approximately the
12th year of the Operating Period.
• SCADA. The SCADA system will entail various hardware and software
components, which as a result of technological advances will be replaced on a
regular basis. The Company shall replace the hardware (printers, computers,
_ and peripherals) and software approximately every 5 years, thereby maintaining
t
Hawaii County 17-3 July 3, 2006
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Design-Build-Operate Project Appendices to the Draft Service ContraG
i ~
current versions of the required software and hardware. Although the PLCs ~
may be capable of attaining a useful life of the Operating Period, the Company
believes that the parts for the units may not be available at the end of the
Operating Period. Consequently, the Company shall replace these units in
approximately year 12 of the Operating Period.
Combustions Equipment. The Company assumes that the major components
are capable of attaining a useful life in excess of the Operating Period. This is
based on many facilities having valves, blowers and pumps of similar size,
capacity and supplier that have exceeded a 25-year useful life, provided that
routine maintenance is performed.
¦ Emissions Control System. The useful life of the main items (i.e. ash
handling systems, continuous emission monitoring systems, emissions testing
equipment) is such that there will be a requirement to overhaul the units on a
regular basis, (every 2-3 years) and replace the units every 8-10 years.
• Chemical Systems. The useful life of the main items (i.e., pumps, controllers,
valves, etc.) is such that there will be a requirement to overhaul the units on a
regular basis, (every 2-3 years) and replace the units every 8-10 years. The
chlorine system requires on-going (annual) replacement of piping systems, due
to the corrosivity of the chemical.
Power Generation Equipment. All power generation equipment are assumed
to have a minimum useful life in excess of 25 years. As such, the equipment
has not been scheduled for replacement during the term of the Service !
Contract, and shall be in good.
HVAC. The heating, ventilation, and air-conditioning systems are simplified
systems based on LPG fuel in a standard boiler system. Other than on-going
scheduled maintenance, there is no need to replace the equipment during the
Operating Period.
Hawaii County 17-4 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Projecf Appendices to the Draft Service ConVacf
APPENDIX 18 -ASSET EVALUATION PROTOCOL
The purpose of this Appendix is to detail the protocol and procedures to be followed by
the Company to assess the condition of the Waste Reduction Facility pursuant to
[Article X of the Draft Service Contract] for compliance with its obligations under
[Article X of the Draft Service Contract].
18.1 BASELINE FACILITY RECORD AND ANNUAL INSPECTIONS
Within 180 days following the Acceptance Date, as required by [Article X of the Draft
Service Contract], the Company shall develop a Baseline Facility Record (the
"Baseline Facility Record"). The Baseline Facility Record shall be a complete listing of
all assets that constitute the Facility on a completed and installed basis. The Baseline
Facility Record shall consist of two sections that indicate whether the asset is
considered part of (1) the Facility Equipment, or (2) the Facility Structures.
The Company shall perform annual inspections of the Facility in accordance with
[Article X of the Draft Service Contract] and update the Baseline Facility Record
accordingly. All newly added assets shall be entered in the Baseline Facility Record
together with their evaluation designators, installation date, and installation cost. All
assets that are removed from the Facility shall be deleted from the Baseline Facility
Record. Assets that are removed from service but left in place shall continue to be
shown in the Baseline Facility Record. The Company shall provide the County a
t hardcopy and electronic copy of all updated Baseline Facility Record listings along
with a written summary of the changes made in the Baseline Facility Record since it
was last updated.
Each asset shall be assigned a unique asset number that is entered into the Baseline
Facility Record along with a name or short verbal description of the asset. The asset
numbers, naming conventions and nomenclature used in the Company's computerized
maintenance management system shall be used in developing the Baseline Facility
Record.
The Company shall compile the Baseline Facility Record using Microsoft Excel®,
Microsoft Access® or some other computer software program mutually agreed to by
the parties. The master copy of the Baseline Facility Record shall be prepared in hard
copy form, each page of which shall be initialed by both parties. The County shall
keep the master copy of the Baseline Facility Record. The Company shall also
provide the County an electronic copy of the Baseline Facility Record.
18.1.1 FACILITY EQUIPMENT
The Company shall provide the County with a baseline status of the Facility Equipment
including asset number, asset name, asset manufacturer and model number, date
installed, price of installed equipment, service life (in years), condition/status and any
additional descriptions of condition/comments. The Company's estimation of service
life (in years) shall be subject to the approval of the County. The Company shall keep
_ a record of documentation supporting the data provided in the Baseline Facility Record
Hawai'i County 18-1 July 3, 2006
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Design-Build-Operate Project Appendices to the Draft Service Contrail
and maintain this record through the performance of the Final Asset Evaluation. Such { -+eq
documentation shall include records of labor and material costs, vendor invoices, etc.,
to substantiate the price of installed equipment. A copy of the record of
documentation shall be provided to the County along with the Baseline Facility Record.
In accordance with [Article X of the Draft Service Contract], all Facility Equipment
shall have a baseline condition/status as "New equipment, fully functioning in excellent
condition." In accordance with [Article X of the Draft Service Contract], the
Company shall continue to inspect the Facility Equipment annually during the
Operations Period and update the Baseline Facility Record and the record of
supporting documentation accordingly.
18.1.2 FACILITY STRUCTURES
The Company shall make an initial record of the Facility Structures. As part of the
initial record, a photographic and video record shall be made of the exterior and
interior of the Facility Structures, where possible. In accordance with [Article X of the
Draft Service Contract], the Company shall perform the evaluations of Facility
Structures annually during the Operations Period and update the Baseline Facility
Record accordingly. If new structures are added, the photographic and video record
shall also be updated by addition of the new structures. All Facility Structures shall
have an initial functionality and structural integrity rating of 5 based on the rating
system presented in Section 18.2.2.1 hereof. The Company shall also provide the
C County with record copies of photographs and videos on CD as requested.
18.2 FINAL EVALUATION OF THE FACILITY
Not more than 12 months prior to and not later than six months prior to the end of the
Initial Term, as required by [Article X of the Draft Service Contract], the Company
shall perform a final evaluation of the Facility. As provided by [Article X of the Draft
Service Contract], the Facility Equipment are required to be returned to the County in
a condition and state of repair such that, in the aggregate, the weighted average useful
life of the Facility Equipment at the end of the Initial Term is equal to or greater than
seven years and each piece of Facility Equipment having a Replacement Value in
excess of $25,000 (as adjusted from the Contract Date to the evaluation date by the
Operations Period Price Escalation Index) shall have a Remaining Life at the end of
the Initial Term of not less than five years. Except as otherwise agreed to by the
parties, the required weighted average useful life and Remaining Life values shall be
equal to the sum of (a) the required value for the Facility Equipment and (b) [X] years.
Pursuant to [Article X of the Draft Service Contract], the Facility Structures are
required to be returned to the County in good condition, working order and repair as
when new, with ordinary wear and tear excepted as determined in light of the
Company's maintenance, repair and replacement obligations under the Service
Contract.
Hawaii County 18-2 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service ConUacl
~r 18.2.1 FINAL FACILITY EQUIPMENT EVALUATION
18.2.1.1 Step 1: Estimate Service Life and Remaining Life of Facility
Equipment
For the final Facility Equipment evaluation, the Company, the County, and an
Independent Evaluator shall verify the accuracy, including the proper designation of
each asset, and the completeness and accuracy of the Baseline Facility Record
prepared and maintained by the Company in accordance with Section 18.1 hereof.
Assets removed from service but left in place shall continue to be shown in the
Baseline Facility Record. However, the initial value, Replacement Value and
Remaining Life of these assets will be set to zero. These assets shall be designated
as not included in the evaluations. An Independent Evaluator shall then estimate, for
the purposes of the Final Asset Evaluation, the Service Life and the Remaining Life of
all the Facility Equipment having a Replacement Value equal to or greater than $2,500
(as adjusted by the change in CPl from the Contract Date to the evaluation date) listed
in the Baseline Facility Record, as provided below.
Remaining Life at the end of the Initial Term Evaluation and Method of
Calculation
The Independent Evaluator shall estimate the Remaining Life at the end of the Initial
Term (in years, rounded to the nearest whole number) of all the Facility Equipment
- using the following methods and procedures.
The parties shall pre-agree on a method for converting the Remaining Life of an asset
to its Remaining Life at the end of the Initial Term. If the parties cannot agree, the
Remaining Life at the end of the Initial Term for an asset shall equal the Remaining
Life for that asset at the time of the evaluation (prior to rounding) minus the time period
in years rounded to one decimal place between the time of the evaluation and the end
of the Initial Term. After this calculation is performed, Remaining Life after the Initial
Term shall be determined by rounding. In addition, should the length of the Initial
Term be less than 15 years for any reason, this calculation shall be performed as if the
length of the Initial Term is equal to 15 years.
The Remaining Life of an asset shall be based upon its ability to perform its intended
function, taking into consideration its performance history, physical condition,
availability, replacement costs and maintenance costs. In determining the Remaining
Life of an asset, the Independent Evaluator shall not consider whether an asset is
outmoded and, if replaced, would enhance the capabilities of the Facility.
The Independent Evaluator shall conduct the following procedures to establish the
Remaining Life of the Facility Equipment:
¦ visually inspect the Facility Equipment;
¦ monitor related instrumentation to determine the assets' physical condition and
operation characteristics;
¦ collect any measurements, readings, or other pertinent information which the
Independent Evaluator deems appropriate;
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Design-Bulld-Operate Projed Appendices to the Draft Service Contrad
¦ review all repair, rebuild and replacement records, and consult with
manufacturers; and
¦ inspect all readily accessible parts and surfaces for any installation problems;
excessive vibration, noise or temperature; the condition of coatings; signs of
wear or corrosion; and leakage of any fluids.
These inspection activities shall be conducted while motor-driven equipment is in
operation.
For Facility Equipment with an installed cost of $100,000 (as adjusted by the change in
CPI from the Contract Date to the evaluation date) or greater (as indicated in the
Baseline Facility Record) or Facility Equipment designated as "Critical Assets" (as
designated by the parties), diagnostic testing shall be performed to supplement and
enhance the information obtained through the visual inspections with photographic and
video recording and review of repair and replacement records. Such diagnostic testing
may include, but is not limited to, vibration analysis, oil sampling and testing, and
motor circuit analysis. In such cases, the diagnostic testing shall be conducted by
manufacturer-approved personnel or other appropriate qualified service technicians. If
the County and the Company agree that such diagnostic testing is unwarranted for any
asset, then the Independent Evaluator may determine the Remaining Life without
performing such tests.
If the Independent Evaluator cannot estimate the Remaining Life of any asset using
the procedures detailed above, then, as a last resort and only with the concurrence of
the County and the Company, the Independent Evaluator may calculate the
Remaining Life by subtracting the age of the asset from the original Service Life of the
asset as determined by the Independent Evaluator. If the age of the asset is greater
than the Service Life, then the Remaining Life shall be equal to zero years. The age of
the asset shall be the number of days between the date it was placed into service and
the date of the evaluation divided by 365, rounded to the nearest whole number.
The Service Life and Remaining Life at the end of the Initial Term of the Facility
Equipment shall be added to the Baseline Facility Record. The development of the
Service Life and Remaining Life shall take into consideration the following:
¦ Spare parts and Consumables included in the spare parts and Consumables
inventory are not included in the calculation of the Weighted Average Useful
Life.
¦ Obsolete and unused assets are not included in the calculation of the
Weighted Average Useful Life.
¦ Assets comprising the Facility Structures are not included in the calculation
of the Weighted Average Useful Life.
Service Life Evaluation.
The Independent Evaluator shall estimate the original Service Life value (in years,
rounded to the nearest whole number) of all Facility Equipment using Company
provided information, other available vendor information, and trade/professional
reference materials.
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Design-Build-Operate Project Appendices to the Drag Service Contract
[To Be Based on Selected Proposal]
18.2.1.2 Step 2: Determining Weights to be Applied to Each Asset
The "Weighting Factor" for an asset is the current replacement value of the asset (the
"Replacement Value") divided by the sum of the Replacement Values of all Facility
Equipment. Weighting factors to be applied to each asset shall be calculated using
the following equation:
Where:
F; = Weighting Factor of asset "i"
V; = Replacement Value of asset "i" in current dollars as of the evaluation date
E V; =the sum of the Replacement Values of all assets comprising the Facility
Equipment
Note: Weighting Factors should not be rounded when calculating the Weighted Remaining
Life.
The Independent Evaluator shall determine the Replacement Value of each piece of
Facility Equipment using standard valuation techniques. If the Replacement Value of
an asset cannot be readily determined, then the Independent Evaluator shall inflate
the initial installed cost of the asset by the same rate of change as the Engineering
News Record Construction Cost Index from the year the asset was installed (or
purchased if equipment was not installed) to the year for which the Replacement Value
is being calculated. The initial installed cost for an asset may be estimated using the
following methods that are listed in order of preference:
¦ Actual, as-built vendor information (that is, labor and materials invoices);
¦ Historical vendor bid and quotation documents; or
¦ Other means of determining initial value of various assets, if approved by all
parties.
It is expected that initial installed cost will be provided by the Company with labor and
invoice documentation as part of the record of documentation for both the Baseline
Facility Record and as part of annual updates any new installed (or purchased if not
installed) equipment.
18.2.1.3 Step 3: Determine Weighted Remaining Life
The Weighted Remaining Life shall be calculated by multiplying the Remaining Life at
the end of the Initial Term of an asset by the Weighting Factor for that asset as shown
in the following equation:
Wi = (Fi)(Li)
Where:
Wi = Weighted Remaining Life of asset "i" in years
Li = Remaining Life of asset "i" in years
Note: Independent Evaluator shall not round the Weighted Remaining Life for any asset
when calculating the Weighted Average Useful Life for all of the Facility Equipment.
I .
Hawai i County 16-5 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Drafl Service Contract
{
The Weighted Average Useful Life is the sum of the Weighted Remaining Life values
for assets constituting the Facility Equipment having a Replacement Value greater
than, $2,500 (as adjusted by the change in CPI from the Contract Date to the
evaluation date).
The Weighting Factor and Weighted Remaining Life of the Facility Equipment shall be
added to the Baseline Facility Record.
1H.2.Y FINAL FACILITY STRUCTURES EVALUATION
18.2.2.1 Functionality Evaluation
The functionality evaluation shall determine if the operating Facility Structures operate
properly and perform the function for which they were intended. As part of the
functionality evaluation of each Facility Structure, a functionality rating of 1 to 5 will be
assigned to each of the applicable Facility Structures. The rating shall utilize the
following criteria:
¦ 5 -Excellent overall condition. Asset fully functional as designed with no
visible defects or wear.
¦ 4 -Good overall condition. Asset functions as needed for current operating
conditions, visible signs of minor defects, and wear is less than expected.
¦ 3 -Fair overall condition. Asset functions as needed for current operating
conditions, visible sign of moderate defects and expected wear.
( ¦ 2 -Poor overall condition. Asset operable, but does not function as needed ,
\ for current operating conditions. Visible signs of major defects, wear is more
than expected. There may be personnel safety issues.
¦ 1 - Inoperable. Asset is non-functional, requires major repair or
replacement to restore operation.
The findings of the functionality evaluation shall be tabulated on a spreadsheet such
as in the Baseline Facility Record.
18.2.2.2 Structural Integrity Evaluation
The structural integrity evaluation shall include visual inspection with photographic and
video recording of all Facility Structures, including, but not limited to:
¦ Buildings and concrete structures, both above and below ground, including
doors, hatches, stairways, and windows;
¦ Walkways, roads and other paved areas;
¦ Fencing;
¦ Finish system -paint, sealants and other liquid applied finishes; and
¦ Floor, ceiling, roofs and wall system -tiles, carpeting, raised floors and drop
ceilings.
Structures and paved areas shall be checked for structural defects and damage, such
as cracks and concrete deterioration that could reduce their Service Life. Finish
systems shall be visually inspected to assure that they provide adequate coverage and
afford the desired protection. Occurrence of flaking, corrosion, rot and inadequate
Hawai i County 18-6 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-0perate Project Appendices to the Draft Service Contract
`tir? coverage should be noted. Floor, ceiling, roofs and wall systems shall be visually
inspected for excess wear and damages.
As part of the structural integrity evaluation of each Facility Structure, a structural
integrity rating of 1 to 5 shall be assigned to each of the applicable Facility Structures.
The rating shall utilize the following criteria:
¦ 5 -Excellent overall condition. No visible defects, cracking or wear.
¦ 4 -Good overall condition. Visible signs of minor defects, and wear is less
than expected.
¦ 3 -Fair overall condition. Visible sign of moderate defects and expected
wear.
¦ 2 -Poor overall condition. Visible signs of major defects and wear is more
than expected.
¦ 1 -Imminent Failure. Extremely poor overall condition; may be significant
safety or structural concerns.
The findings of the structural integrity evaluation shall be tabulated on a spreadsheet
such as in the Baseline Facility Record. Videotape records made of the initial
condition of assets, whether or not structural or other physical defects are revealed,
shall be included as part of the Final Asset Evaluation. The location on the videotape
corresponding to any listed defect shall be entered in the spreadsheet with each
listing.
( 'I H.$ EVALUATION REPORTS AND PRODUCTS
l
The procedures followed, together with the findings and results of the final asset
evaluation process, shall be presented in a final asset evaluation report (the "Final
Asset Evaluation"). Text, spreadsheets and databases shall all be prepared using a
computer software program mutually agreed to by the parties. The Independent
Evaluator shall provide the County and the Company with preliminary drafts of all
documents for review and comment.
Both parties shall sign final documents on each page for authentication and shall
receive an authenticated copy of all final reports, databases, spreadsheets, video
documentation and handwritten notes.
The Final Asset Evaluation shall consist of at least the following clearly delineated
sections:
¦ The Initial Baseline Facility Record;
¦ The Final Baseline Facility Record;
¦ Weighted Average Useful Life of the Facility Equipment;
¦ Functionality and Structural Integrity of the Facility Structures; and
¦ Supplemental information as may be determined by the Independent
Evaluator.
Hawaii County 18d July 3, 2006
Waste Reduction Facility Request far Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service Contract
i
15.3.1 BASELINE FACILITY RECORD l
This section of the Final Asset Evaluation shall include the Initial Baseline Facility
Record and the Final Baseline Facility Record.
15.3.2 FACILITY EQUIPMENT
The Facility Equipment section of the Final Asset Evaluation shall include the listing of
all assets to be included in the calculation of the Weighted Average Useful Life
together with their corresponding Service Life, Remaining Life and Remaining Life at
the end of the Initial Term values. The procedures used to determine which assets to
include in or exclude from the schedule shall be detailed. The basis for establishing
Service Life for each asset shall be described. This section of the Final Asset
Evaluation shall provide the Weighted Remaining Life of the Facility Equipment and
summarize the steps followed by the Independent Evaluator to establish the Weighted
Average Useful Life at the End of the Initial Term. All calculations performed to
determine Weighting Factors and the Weighted Average Useful Life at the End of the
Initial Term shall be included with the Final Asset Evaluation.
15.3.3 FACILITY STRUCTURES
The Facility Structures section of the Final Asset Evaluation shall provide the results of
the functionality evaluation and the structural integrity evaluation of the Facility
C Structures. Those assets that do not exhibit physical or structural defects shall be
noted as such in the Final Asset Evaluation with a statement regarding the overall
condition. The findings of the functionality evaluation shall be tabulated on a
spreadsheet. For the purposes of determining the Company's obligations pursuant to
[Article X of the Draft Service Contract], the Independent Evaluator shall, for
structures with a functionality or structural integrity rating less than 3 as defined in
Section 18.2.2.2 hereof, indicate in each instance what repairs would be needed to
bring both functionality and structural integrity ratings to a minimum level of 3.
15.3.4 SUPPLEMENTAL INFORMATION.
This section of the Final Asset Evaluation shall include all supplemental information
used by the Independent Evaluator, including, but not limited to, results of diagnostic
testing, values of Engineering News Record Construction Costs indices used,
equipment supplier information, and notes and calculations to support its findings and
conclusion. This supplemental information may be included as appendices or
attachments to the Final Asset Evaluation.
Hawai i County 18-8 July 3, 2006
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Waste RetluGion Facility Request for Proposals -Vol. III
Design-Build-Operate Prajed Appendices to the Draft Service Contract
APPENDIX 19 -EXIT TEST PROCEDURES AND
STANDARDS
19.1 PURPOSE
This Appendix sets forth the requirements for Exit Testing of the Facility required
under [Article X of the Draft Service Contract].
19.2 EXIT TEST PLAN
As required by [Article X of the Draft Service Contract], the Company shall prepare
and submit to the County for its review and approval an Exit Test Plan that includes
the following minimum requirements:
1. Procedures for demonstrating Waste Throughput at a continuous rate equal to
the Facility design capacity.
2. Procedures for testing all waste processing, waste transfer and ancillary
systems, including combustion and waste handling systems;
3. Procedures for testing the standby power capabilities of the Facility, including
operation of the Facility on standby power;
_ 4. Use of permanent and temporary instrumentation;
[',y,~, 5. Organization of the test team, including responsibilities, authority, and decision
making protocols;
6. Response procedures for unsuccessful test results including definition of
threshold results that constitute overall Exit Test failure;
7. Testing schedule;
8. Operating and maintenance schedule during testing; and
9. Procedures for demonstrating compliance with every Exit Test Standard.
10. Descriptions of methods for demonstrating compliance with Pertormance
Guarantees, including:
¦ A list of all parameters to be monitored and measurements to be made that
states sampling frequencies and includes but is not limited to:
¦ A list of all Residue parameters to be monitored and a schedule of
monitoring, describing analytical methods and sampling frequencies at
which parameters will be monitored on a continuous or other defined basis.
¦ Identification of equipment calibrations to be performed, descriptions of all
calibration techniques to be used and timing of calibrations relative to Exit
Testing (All instruments used in Exit Testing operations and to monitor and
evaluate Exit Testing shall be calibrated in accordance with manufacturer's
requirements.), QA/QC procedures, including those to be utilized for all
Hawai'i County 19-1 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appendices to the Draft Service ContraG
~ equipment used for testing and measuring different parameters within the
treatment process and at the in-house laboratory and contract laboratories.
The description shall address the calibration practices, including the
frequency and accuracy requirements. The calibration procedures shall
consider intermediate spot and cross checks, in addition to the formal
calibration periods.
¦ A full description of any analytical methods and techniques that will be
utilized to ensure that all Applicable Law and Performance Guarantees are
met. In addition, descriptions of how data collected will be compared with
Performance Guarantees shall be provided and shall be in a manner that
complies with County requirements and regulatory requirements. Provide
examples of any tools such as flow charts, check sheets or any other data
presentation and evaluation techniques that will be utilized.
¦ SCADA system monitoring and control functions.
¦ A list of real-time data fields that will be provided to the County during Exit
Testing.
¦ A listing of all samples requested by the County and a protocol for delivering
samples to the County for the County's own testing program should the
County elect to have such a program during Exit Testing.
The Exit Test Plan shall also specify the form and contents of the Exit Test Report and
include specific, detailed sampling protocols to be utilized while conducting the Exit
Tests. Preliminary tests may be conducted at the Company's expense; however, the
results of such tests shall not be made part of the Exit Test Report.
The Exit Test Plan shall describe the Company's approach and details for meeting the
requirements of this Appendix.
If the 14-Day Exit Test is terminated, it shall be restarted at the beginning of Day 1 of
the 14-Day Exit Test and the entire 14-Day Exit Test shall be run.
The Exit Tests shall demonstrate the ability to process waste of the composition
anticipated over the life of the Facility. The Exit Test Plan shalt describe how the tests
will demonstrate the ability of the Facility to achieve the Performance Guarantees
under the extreme ranges of waste quantity and composition expected during the life
of the Facility. The County shall have the right to approve the Exit Test period.
The Exit Test shall have a minimum duration of 14 days and shall also have a duration
sufficient to demonstrate that all Facility operations over the Exit Test period are in full
and continuous compliance with the Performance Guarantees.
During the tests, the Company shall operate all systems within the Facility under
normal operating conditions, including, but not limited to, routine equipment operation,
maintenance services and electrical usage.
!
Hawaii County 19-2 July 3, 2006 -
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate Project Appentlices to the Drag Service Contrect
i
19.3 EXIT TEST PROCEDURES
19.3.1 GENERAL
Exit Testing includes:
¦ Demonstration of the ability of all components of the Facility to meet the
minimum design capacity fora 24-hour period;
¦ Determination of the ability of the Facility to produce Residue that meets the
Performance Guarantees for an uninterrupted period of at least 14 days at
Throughputs requested by the County, which will be equal to or less than
the design capacity of the Facility (i.e., 14-Day Testing);
¦ Determination of the ability of the Facility to produce electricity that meets
the Pertormance Guarantees for an uninterrupted period of at least 14 days
at Throughputs requested by the County, which will be equal to or less than
the design capacity of the Facility (i.e., 14-Day Testing);
¦ Demonstration of the proper function of the Facility upon loss of power, loss
of control system, manual startup and shutdown, and automatic shutdown;
¦ Demonstration that the waste handling systems function as intended;
¦ Demonstration that the control systems function as intended without
interruption; and
¦ Demonstration that the Facility otherwise complies with all of the
Performance Guarantees.
„ Processible Waste and Residue testing shall be pertormed in accordance with the Exit
Test Plan and this Appendix.
19.3.2 14-Dar TESTING
Pertormance Guarantees shall be demonstrated continuously during the 14-Day Test,
which shall include a minimum of ten (either consecutive or non-consecutive),
continuous 24-hour periods when the Facility is operating at design capacity with all
normally operating units in continuous service.
The County may deliver to the Facility different sources or blends of sources of Waste
to reflect as best as possible the full future range of waste composition the Facility is
required to treat.
19.3.3 MONITORING REQUIREMENTS
During the Exit Tests, the Company shall regularly monitor the Processible Waste and
Residue for specified key parameters in order to evaluate the performance of the
Facility. These key parameters include those needed to demonstrate compliance with
the Performance Guarantees. Residue shall be sampled and analyzed at least two
times per day. The following samples shall be analyzed by a State-certified,
independent laboratory agreed to by both the Company and the County, using
laboratory analytical quality control standard procedures. Sample analyses pertormed
Hawai'i County 193 July 3, 2006
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Design-Build-Operate Project Appendices to the Draft Service Contract
~
during the Acceptance Test shall be performed by an independent State-certified
laboratory pre-approved by the County.
The County may collect its own samples and analyze them during Exit Testing to
confirm the results of the Company's analyses.
19.3.4 REPORTING REQUIREMENTS
The Exit Test Report shall be prepared in accordance with the Exit Test Plan and
include at a minimum:
¦ A certification that testing was conducted in accordance with the approved
Exit Test Plan;
¦ A certification of the results of the testing with respect to each of the Exit
Test Standards. Each Exit Test Standard shall be addressed separately
and the basis for the determination presented. This certification of the
results of the testing shall include (a) a determination of the extent to which
the Facility complies with the applicable Contract Standards and
requirements and (b) for each Pertormance Guarantee a determination of
the extent to which the Facility complies with the Performance Guarantee;
¦ All data measured and recorded during the tests including laboratory
analyses, instrument calibrations, and measurements;
¦ Record of equipment outages, failures and preventative maintenance;
¦ Summary of test results and conclusive evidence of compliance with all test '
requirements;
¦ All calculations used in determining test results;
¦ Any other data reasonably requested by the County to be included in such
reports; and
¦ All certifications shall be signed by the Company.
19.4 EXIT TEST STANDARDS
The ability of the Facility to meet the following Exit Test Standards shall be
demonstrated during Exit Testing:
¦ The Facility operated properly with only the normal compliment of
employees included in the Company's staffing plan for the Facility, with the
exception of additional Company staffing related to collection and analysis of
samples and other test data.
¦ Compliance with the Performance Guarantees and applicable Governmental
Approvals at all times.
¦ Operation of the Facility at Throughputs consistent with the Throughput
Guarantee.
¦ Performance Guarantees in Table 2-1. The results of all samples taken
( during Exit Testing shall be reported and included in the calculation of 4
HawaPi County 19-4 July 3, 2006
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Design-Build-Operate Projed Appendices to the Draft Service Contrad
A.....
reported averages or other evaluations applicable to determining
compliance with Performance Guarantees.
¦ All operations are consistent with Contract Standards.
¦ The Project operates properly during manual and automatic shutdown and
start-up.
¦ The Project can deliver Electricity in accordance with [Article X of the Draft
Service Contract].
¦ The waste handling system operates as intended and all non-processible
waste is removed from the Facility Site in accordance with the Operating
Protocol.
'I9.5 FAILURE OF THE EXIT TEST
Failure to continuously demonstrate the Exit Test Standards during the period of the
Exit Test shall constitute a failure of the Exit Test. Any failure of an Exit Test shalt
require (a) correction of those components or conditions that resulted in the failure, (b)
performance of a retest of the Exit Test after proper notification is provided to the
County.
Except as noted below, any failure to meet an Exit Test Standard during the 14-Day
Testing shall require a repeat of the 14-Day Test.
~`w, .
Hawai'i County 1 &5 July 3, 2006
Waste Reduction Facility Request for Proposals -Vol. III
Design-Build-Operate ProjeG Appendices to the Draft Service Contract