RFQ_Proposed_Term_Sheet_DRAFT-08202024.docx

FACILITY MANAGEMENT, OPERATIONS AND MAINTENANCE AGREEMENT TERM SHEET BETWEEN PINELLAS COUNTY AND QUALIFIED RESPONDERS

1) Parties: The County and the selected qualified Contractor, ("Contractor”)) .

2) Purpose: Pinellas County ("County") is seeking the services of a technically and financially qualified Contractor to manage the operations and maintenance of the Pinellas Waste-to-Energy ("Facility") at 3001 110th Ave N, St. Petersburg, FL 33716 ("Facility”) in a manner that meets the County's expectations as described in this Term Sheet. The County is seeking a Facility Management, Operations and Maintenance Agreement ("Agreement") with a Contractor to provide the following services. Comment by Embree, William: This is the address of our admin offices. Do we want to indicate the address of the facility? Comment by Howard, Keith: updated.

3) Term:

c) During the balance of the first year and succeeding years of this Agreement, the Contractor shall operate and maintain the Facility as provided herein.

d) The Agreement may be renewed upon six-months' notice by mutual agreement of the Parties for up to two five-year (5) extensions upon the same terms and conditions.

4) Scope of Services:

a) Execute the Transition Plan as described.

b) Operate and maintain the Facility 24 hours per day each day of the year and receive acceptable solid waste during the hours agreed upon by the County and the Contractor.

c) Provide the necessary staff and materials to perform the Services to meet the Facility Performance Standard and expectation of the County. Services shall be provided in a manner that meets the following:

i) Meets all conditions that are required by applicable law.

ii) Conforms to all owner approved or modified manufacturers’ manuals and maintenance schedules applicable for all equipment at the Facility.

iii) Maintains the Facility at a level at or above industry standards.

iv) Ensures that all work, repairs or replacement of any equipment, facilities, improvements, or other items are at a level at or above industry standards.

vi) Properly staffed and equipped such that these service conditions and truck tipping can be met in a timely manner and that operations limit the need for diversion of waste from the facility due to facility operations.

vii) Operates consistently with good Industry practices with respect to waste-to-energy and electric generating facilities.

d) Process up to nine hundred thirty thousand (930,000) tons of processable waste on a yearly basis. Comment by Miller, Joshua: Do we want to incentivize the contractor to process more than baseline delivery?

Bruce spoke with a rep from Veolia this week about their interest in this upcoming RFQ/RFP - comment on the Vancouver RFQ that none of the respondents were willing to take on KPIs. Comment by Sacco, Paul S: I recommend leaving this open and let them propose options during the RFP phase. Comment by Embree, William: Normal monthly generation exceeds 500kwhpt, however the average for this calendar year is 487 kwhpt. This takes into account the Spring outage.

e) Generate at a minimum on an average fiscal year basis four hundred ninety (490) kilowatt-hours per ton of processable waste (net of electric energy used by the facility while the facility is generating electric energy and not inclusive of years that include scheduled major turbine generator overhauls)

f) Renewable energy credits (and potential e-RINs) shall be fully retained by the County associated with the energy generated at the Facility.

g) The facility shall produce residue with less than four percent (4%) by weight of Unburned Carbon (dry basis) excluding the amount of carbon reagent in the Residue that results from the operation of the activated carbon injection system AND less than thirty percent (30%) by weight of water.

h) One hundred percent (100%) of the residue shall be processed through the plus five (5) inch separation system. If the plus five (5) inch separation system is not in service, all residue must be stockpiled and run through the plus five (5) inch separation system once it is returned to service.

i) A minimum of ninety-eight percent (98%) of the Residue produced downstream of the plus five (5) inch separation system shall have a maximum particle size of five (5) inches in diameter.

k) The Process Wastewater discharged from the Facility into the sanitary sewer shall comply with the maximum concentrations and restrictions shown in Table 1. Comment by Miller, Joshua: Per Schedule 2, Table 1, of the current SA. Have these concentrations changed? Any impacts of PFAS? Comment by Sacco, Paul S: I'll send the most recent permits limits to you. Comment by Howie, Bruce: Alternatively...do we just cite the permit and say they have to meet the limits within versus listing them out? We don't list the air permit limits but expect the Contractor to meet those nonetheless.

Table 1

l) Comply with standards of maintenance and repair and replacement (including housekeeping, site, and litter standards) to keep the Facility up to the standards of maintenance required. Specific standards, requirements, procedures, and enforcement mechanisms will be Included in the Agreement.

m) Plan, execute and report the results of semi-annual maintenance outages of each boiler unit.

i) Contractor shall provide a Staffing Plan for County approval setting forth the Contractor's organizational structure for its work force (managers and employees) and its minimum staffing requirements (by position, function, and classification) for the performance of the work. Staffing may be increased or decreased with the County's prior approval. The County may require Contractor to increase staffing. The staffing plan and the individuals, managers and employees, serving as the Contractor's workforce, shall be updated annually and provided to the County. Such provision, at the County's request, shall include evidence that all such personnel are properly licensed, trained and educated. Such County request may also include a criminal background check and information relative to such personnel. If such background check evidences criminal felony convictions, Contractor shall not hire such individuals without the prior approval of the County. Finally, the County may request other personnel information not protected by applicable law. Contractor shall comply with the foregoing.

ii) Contractor shall retain as operators and maintainers of the Facility, qualified, experienced, and licensed individuals skilled in all aspects of the work to serve as employees of the Contractor, including interviewing current operations personnel to retain qualified individuals. For Contractors who must transition to facility operations, all efforts will be expended to retain existing staff as part of the Contractor’s staffing plan. Comment by O'Hara, Valerie: Need to be clear that Contractor will be required to first retain current/existing employees of the Facility (all positions?) that meet requirements since the County has stated this intent and then hire qualified, experienced and licensed individuals skilled in all aspects of the work for balance of positions. Comment by Sacco, Paul S: Yes, see my comment above

iii) Contractor may remove a facility manager for good cause (to be more definitely defined in the Agreement) and at the request of the County upon the presentation to Contractor for reasonable justification therefore. Any replacement manager shall be subject to the prior approval of the County.

iv) The facility manager shall designate and make available at the reasonable request of the County for meetings with the County, himself, operations manager, the environmental compliance manager; the health and safety manager; the accountant; and the maintenance manager.

v) The Contractor shall staff the Facility consistent with the staffing plan which shall be developed as part of the annual budgeting process, with the number of people assigned and listed consistent with the needs and size of the Facility as agreed to by the County. Failure to replace staffing promptly shall cause withholding penalties.

vi) The Contractor shall ensure that personnel employed at the Facility are appropriately trained and suitably certified to conduct their duties in accordance with applicable law and other applicable requirements.

p) Provide and/or manage transportation of collected ash residue to the landfill for disposal or other uses in accordance with applicable law. The hauling and landfill disposal responsibility and charge for the same shall be vested with the County.

q) The Contractor shall collect, handle, and transport Ferrous and Non-Ferrous metals from the Facility plant to a designated facility for sale. They shall ensure compliance with all relevant laws and regulations, maintain quality standards during handling and processing, and provide regular reports to the County on quantities, profit, and transactions. The County reserves the right to audit the Contractor's records and facilities for compliance. The County shall not be liable for cost sharing in the event of a deficit.

r) The County intends to develop and implement an Enhanced Metals Recovery Facility on the Facility site. Plans for this facility are in development and will replace other Ferrous and Non-Ferrous metals recovery. Plans may entail importing materials from other area facilities for processing. Plans may also entail processing Facility and possibly other facilities’ ash for reuse applications. Comment by Miller, Joshua: The current Ferrous cleaning operation may be going away at the current Term expiration. This language may not be needed. Comment by Sacco, Paul S: I think it is good to list this language so that there are no surprises later on during the process. Comment by Howard, Keith: concur - resolved.

s) Perform all corrective, predictive, preventive, and routine maintenance to the Facility, including repairs and replacements (capital and otherwise), to maintain the Facility in a good physical and operational condition and appearance consistent with the maintenance and capital repair and replacement requirements below, provided that the County, as noted below, shall have the right to perform all or a portion of such work at the County's election and at the County's cost and expense.

t) Provide for, monitor, calibrate, and maintain all meters at the Facility or at the delivery points in accordance with the Agreement. At least once during each twenty-four (24) month period, or more frequently if recommended by the meter manufacturers, the Contractor shall have all meters tested, calibrated, re-calibrated, and certified by an independent testing agency, acceptable to the County. If any meter is found to be inaccurate it shall be restored to an accurate condition or replaced. The Contractor shall maintain a complete record of all meter calibrations and meter histories and provide them to the County when requested.

u) Maintain the roads, grounds, and other Facility appurtenances ("Facility Site") in good repair and in a neat, orderly, and litter-free condition, provided that the County, as noted below, shall have the right to perform all or a portion of such work at the County's election and at the County's cost and expense.

v) Perform all testing and prepare all reports and file the same as required by the Agreement, except to the extent an independent expert is required to so perform under applicable law.

w) Implement a waste pit management plan for full turnover at least once every three (3) months including removal of standing water from the pit, if present, and treat, dilute or blend such water as necessary to discharge into the sewer manhole at the Facility site to meet the applicable pretreatment standards of applicable laws and permits.

x) Coordinate monthly punch list inspections with the County's Authorized Representative or designee. Enforcement and adjustments to operating costs will include standards of maintenance and a timeframe for completion.

y) Work with the County to develop and maintain a life cycle plan on an annual basis.

z) Develop and provide to the County, condition reports and OEM vendor and other third-party reports and recommendations from inspections.

5) Performance Standards and Failure to Meet Such Standards:

a) Annual Processing Guarantee: If the amount of Processible Waste Processed by the Facility is below the Annual Processing Guarantee and the County met its Base Delivery Amount, then the Contractor shall pay to the County its Lost Electric Energy Revenues and Lost Recovered Materials Revenues equal to the amount that would have been produced if the processing guarantee was met. The compensation would be based on the difference between the actual amount of processable waste and the annual processing guarantee.

b) Annual Electric Energy Recovery Guarantee Damages: If the amount of Electric Energy generated for sale by the Facility does not meet or exceed the Electric Energy Recovery Guarantee, then the Contractor shall pay to the County its Lost Electric Revenues

c) Ferrous Metal Recovery System Availability Guarantee Damages: If the Ferrous Metal recovery system availability does not meet its respective guarantee, the Contractor shall pay to the County an amount to be determined by an approved method.

d) Non-Ferrous Metal Recovery System Availability Guarantee Damages: If the Non-Ferrous Metal recovery system availability does not meet its respective guarantee, the Contractor shall pay to the County an amount to be determined by an approved method.

e) Excess Reagent and / or Utility Usage: If the quantity of any Reagents or Utilities, or both, consumed by the Facility exceeds the Maximum Reagent Utilization Allowance or the Maximum Utility Utilization Allowance, or both, the Contractor shall be liable for and pay to the County the costs for all such excess Reagent or Utility usage, or both.

Pass-through costs may include:

Other pass-through costs include utility and reagent use allowance; cost to cover any loss resulting from marketing recovered materials; taxes and fees (for example, user fees or assessments or increases thereto arising from a change In Law), environmental permit costs and fees and maintenance, capital repair and replacement costs performed by Contractor and insurance premiums.

The County reserves the right to procure pass-through cost components on a competitive basis. Comment by Embree, William: ?

The management fee is compensation for the Contractor to manage all aspects of the contract. The management fee includes overhead costs as well as the Contractor’s profit and will be paid on a per processible ton of waste basis.

Incentive opportunities shall be developed and negotiated during the RFP process. Incentives could include, but not limited to, the Contractor having exceeded certain obligations. These obligations may include meeting performance requirements (environmental compliance, throughput and energy targets, reagent usage); responsiveness, submittals; meeting schedules; lack of fines and penalties caused by the Contractor; and performance as measured by an annual service checklist. Comment by Miller, Joshua: Does the county want to drop this? Depends on excess tonnage fee and whether its discounted or whole? Comment by Sacco, Paul S: See edits Comment by Howard, Keith: noted

6) Insurance and Indemnification:

The County will secure and maintain Insurance on the Facility. Insurance requirements may include deductibles, which will be the Contractor’s liability to the extent the event gives rise to the payment of insurance proceeds that was a result of Contractor fault.

Contractor shall defend, indemnify, and hold harmless County, its present and former officials, officers, agents, volunteers and employees from any liability, claims, causes of action, judgments, damages, losses, costs, or expenses, including reasonable attorney's fees, resulting directly or indirectly from any act or omission of Contractor, a subcontractor, anyone directly or indirectly employed by them, and/or anyone for whose acts and/or omissions they may be liable in the performance of the services required by this Agreement, and against all loss by reason of the failure of Contractor to perform any obligation under this Agreement. For clarification and not limitation, this obligation to defend, indemnify and hold harmless includes but is not limited to any liability, claims or actions resulting directly or indirectly from alleged infringement of any copyright or any property right of another, the employment or alleged employment of Contractor personnel, the unlawful disclosure and/or use of protected data, or other noncompliance with the requirements of the data practices.

7) Regulatory Compliance:

c) Comply with all permits and administrative permit requirements, including the management of the operations and maintenance of the air pollution control (APC) systems of the Facility, to ensure compliance.

d) Establish and administer a safety program as follows: Comment by Embree, William: Although LOTO procedures not specifically identified, is it assumed contained within the general safety procedures? Comment by Howard, Keith: agreed

i) The Contractor shall ensure that all employees and subcontractors comply with applicable laws and to the extent available to the Contractor manufacturer's procedures and recommendations concerning safety related issues.

ii) The Contractor shall develop safety documents and ensure all employees and subcontractors are trained in safety, health, industrial hygiene and environmental regulations and procedures specific to the Facility.

iii) The Contractor shall take reasonable precautions consistent with prudent industry practices, to prevent damage, injury, or loss, by reason of or related to the operation and maintenance of the Facility, to any persons or property on or adjacent to the Facility Site, including trees, shrubs, lawns, walks, pavements, roadways, equipment, structures, and utilities. Comment by Embree, William: Does structures include decking and handrails? Comment by Howard, Keith: this is related to things outside of the facility. Hand rails and decking are part of maintenance of the facility.

iv) The Contractor shall establish and maintain safety procedures for the Facility for the protection of employees and all other entities, including invitees and permitted personnel at the Facility in connection with the operation and maintenance thereof, at a level consistent with applicable law and prudent industry practices.

v) The Contractor shall provide the County with a plan of action to be implemented by. Contractor in the event an emergency occurs. Such plan shall specify the emergency procedures to be followed as required by law and County policy. As part of any such plan, the plan shall provide that the County may, at its election, intercede and take, or direct the Contractor to take, any actions reasonably necessary or appropriate to respond to an emergency.

vi) The Contractor shall comply will all applicable laws relating to the safety of third parties and property at the Facility and their protection at the Facility from damage, injury, or loss, and perform or supervise, as determined by the County, the performance of all tests required by applicable law.

e) Comply with all regulatory requirements relative to the Facility, including all energy transmission reliability standards and rules.

f) The Facility shall, at a minimum, always meet all requirements pertaining to the Facility specified in the County’s State of Florida Electrical Power Plant Site Certifications, No. PA 78-11 (Units 1 and 2) and PA 83-18 (Unit 3) and the County’s Florida Department of Environmental Protections Title V Air Operations Permit No. 1030117-019-AV.

8) Termination:

a) Event of Default. Either Party may terminate the Agreement arising from an uncured event of default by the other Party. Defaults shall include the failure to pay within a prescribed period of time, repeated and persistent failure to meet such Party's material obligations under the Agreement, bankruptcy, failure of the applicable Party to maintain insurance, failure of Contractor to secure and maintain a Performance Bond consistent with the Agreement, default under the Parent Guaranty, any fraudulent act by the Contractor, among others. There will be no cure periods for some events of default such as bankruptcy or failure to maintain required insurance.

b) Limitation of Liability. Unless otherwise specifically recognized, damages will be limited to actual damages and each Party shall waive any right to consequential, special, compensatory, indirect, punitive and any other damages.

c) Termination for an Uncontrollable Circumstance. If an Uncontrollable Circumstance occurs, preventing performance or is reasonably anticipated to prevent performance of all or a significant portion of Contractor's material obligations for 180 days or which prevents operation or is reasonably anticipated to prevent operation of the Facility for a period of 120 days, the County upon notice to Contractor may terminate the Agreement without payment, damage or penalty. The Parties may mutually agree to extend the number of specified days above.

d) Termination for a Change in Law. If a change in law results in or is reasonably anticipated to result in a County budget increase of 10% to perform its payment obligations under the Agreement, the County may terminate the Agreement with a 30-day notice to Contractor. In the event of such a change in law, the Parties may mutually agree to amend the terms of the Agreement.

9) Confidentiality: Both parties acknowledge that, in the course of performing their obligations under this agreement, they may have access to confidential information belonging to the other party. Each party agrees to maintain the confidentiality of such information and not to disclose it to any third party without the prior written consent of the disclosing party, except as required by law. This obligation of confidentiality shall survive the termination or expiration of this agreement. Additionally, both parties agree to take reasonable measures to protect the confidentiality of the information, including but not limited to implementing appropriate security measures and restricting access to authorized personnel only.

10) Governing Law: This agreement shall be governed by and construed in accordance with the laws of the State of Florida, without regard to its conflict of laws principles. Any dispute arising out of or relating to this agreement shall be subject to the exclusive jurisdiction of the courts located in Pinellas County, Florida. The parties hereby irrevocably consent to the jurisdiction of such courts and waive any objection to venue therein. In the event that any provision of this agreement is found to be invalid or unenforceable, the remaining provisions shall remain in full force and effect.

11) Dispute Resolution: Non-binding mediation by the independent engineer / expert as a mediator. For purposes of mediating a disagreement, the Parties agree to hire an outside engineer or other expert relative to the issue in dispute to make a recommendation for resolution.

12) Assignment: Neither party shall assign, transfer, or delegate any rights or obligations under this agreement without the prior written consent of the other party, which consent shall not be unreasonably withheld, delayed, or conditioned. Any attempted assignment, transfer, or delegation in violation of this provision shall be null and void. Notwithstanding the foregoing, either party may assign this agreement to an affiliate or to a successor in connection with a merger, acquisition, or sale of all or substantially all of its assets, provided that the assignee assumes all rights and obligations under this agreement. This agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.

13) Force Majeure: Either party shall be excused from the performance or its applicable obligations under this Agreement to the extent it is prevented or, individually, or in the aggregate, delayed from performing such obligations due to the occurrence of the Force Majeure. If either party claims the occurrence of a Force Majeure as a basis for not performing its obligations under the Performance Standards, then the Party making such claim shall:

a) Provide written Notice to the other party within twenty-four (24) hours. This notice should include as many details as possible of the event and its potential implications.

b) Provide Notice to the other Party as soon as reasonably possible after the occurrence of the Force Majeure:

i) Describing, in reasonable detail, its probable effect on the performance of its’ obligations.

ii) Providing an estimate of its expected duration and cost impact on the relevant provisions.

c) Exercise all reasonable efforts to continue to perform its’ obligations to the extent:

i) Not prevented by the Force Majeure.

ii) There is no increase in cost or decrease in revenues to the affected Party to perform its obligations not prevented by the Force Majeure.

d) Exercise all reasonable efforts to mitigate or limit damages to the other Party.

14) General Provisions:

a) The Contractor will provide the County and its agents unlimited access to and unlimited rights to visit and inspect the Facility and Facility Site, at any time for any reason, including, photography, sampling and testing provided that any such sampling and testing shall be conducted in accordance with the protocols established in writing therefor by the Parties and provided further, that the frequency of such sampling and testing does not unreasonably interfere with the Contractor's management obligations.

b) The County and its representatives, with the full cooperation of the Contractor, shall, at the County's expense, have, during normal business hours and upon reasonable notice to the Contractor, access to review, in accordance with applicable law, all documents, papers and letters, in electronic form or otherwise, that are made or received by the Contractor in connection with this Agreement and shall have computer access to records and data that form the basis for any and all monthly operating costs, access to year-end audited financial statements, access to all operation and maintenance records and access to any other records and data necessary to verify basis for payments made by County. The aforesaid documents, papers and letters (collectively, "Record") will be made available by the Contractor for audit, inspection and copying purposes by the County.

c) The Contractor shall comply with Pinellas County security, implement, or arrange for implementation of security measures in accordance with the Facility security plan, which includes locking gates after hours, notification to the County of any suspicious activities, communicating with the County's WTE Operations Manager.

The Parties agree that this document is neither a contract nor an obligation to enter into a contract, and that the foregoing are simply preliminary understandings of material concepts. The preliminary understandings expressed herein are subject to, and conditioned on, the negotiation, execution and delivery of a definitive and final contract. Each Party shall be responsible for its own expenses prior to the execution of a definitive and final contract, and any actions taken by the other parties in reliance on the preliminary understands expressed herein shall be at that party’s own risk.

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