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Home My WebLink AboutR-2003-219 BFI Agreement and Assignment RESOLUTION NO. 2003-219 A RESOLUTION OF THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA, AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE AN ASSIGNMENT AND ASSUMPTION OF CONTRACT, SUCH CONTRACT BEING KNOWN AS THE "RESIDENTIAL SOLID WASTE AND RECYCLING COLLECTION SERVICES CONTRACT, EXISTING BETWEEN THE CITY AND BFI WASTE SYSTEMS OF NORTH AMERICA, INC., SUCH CONTRACT TO BE ASSUMED BY AND ASSIGNED TO WASTE MANAGEMENT, INC. OF FLORIDA; PROVIDING FOR CONFLICTS; FURTHER, PROVIDING FOR AN EFFECTIVE DATE. WHEREAS, on November 9, 1999 the City of Dania Beach ("City") entered into a "Residential Solid Waste and Recycling Collection Services Contract which now exists between the City and BFI Waste Systems of North America, Inc., ("BFI) (the "Contract"); and WHEREAS, BFI has contracted with Waste Management, Inc. of Florida (Waste Management"), for the sale and purchase of certain BFI assets in South Florida, including the Contract; and WHEREAS, pursuant to Section 39 of the Contract, both BFI and Waste Management have requested that the City consent to the assignment of the Contract from BFI to Waste Management; and WHEREAS, the Contract is to be assigned and assumed pursuant to the Contract referred in this Resolution and incorporated by this reference and subject to the sale and purchase of assets described above, subject to the approval of the City Commission; NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF DANIA BEACH, FLORIDA: Section 1: That the City Commission approves and consents to the assignment of the Contract from BFI to Waste Management, subject to the asset sale and purchase between the companies, and pursuant to the Contract identified above. Section 2: That the appropriate City officials are authorized to execute all necessary documents to effectuate the intent of this Resolution. Section 3. That the City Manager and City Attorney are authorized to make revisions to such contract documents as are deemed necessary and proper for the best interests of the City. Such documents shall not be deemed accepted or approved by the City unless and until the City has completed its execution. 1 RESOLUTION NO. 2003-219 Section 4: That all resolutions or parts of resolutions in conflict with this resolution are repealed to the extent of such conflict. Section 5: That this resolution shall be in force and take effect immediately upon its passage and adoption. PASSED AND ADOPTED on September 23, 2003. BO ANTON MAYOR-COMMISSIONER ATTEST: ROLL CALL: COMMISSIONER CHUNN- YES COMMISSIONER FLURY - YES C"_174A COMMISSIONER MIKES - YES CHARLENE J H SON VICE-MAYOR MCELYEA- YES CITY CLERK MAYOR ANTON - YES APPROVED AS TO YPRM AND CORRECTNESS: BY: TH'OMAS�j. A14SBRO CITY ATTORNEY 2 RESOLUTION NO. 2003-219 ASSIGNMENT.AND ASSUMPTION OF CONTRACT THIS ASSIGNMENT AND ASSUMPTION OF CONTRACT (this "Assignment") is made this 4 day of oc.L-o6e,r , 2003, between BFI Waste Systems of North America, Inc., a Delaware corporation and successor-in-interest to Browning-Ferris Industries of Florida, Inc. ("Assignor"), and Waste Management, Inc. of Florida, a Florida corporation ("Assignee"). RECITALS A. Assignor is a party to that certain residential Solid Waste and Recycling Collection Services Contract dated November 9, 1999 (the "Contract") existing by and between Assignor and the City of Dania Beach, Florida, a Florida municipal corporation ("Customer"), whereby Assignor provides waste collection, recycling and transportation for disposal services for Customer(the "Services"). B. Assignor desires to assign the Contract to Assignee in accordance with the terms and conditions set forth below. TERMS AND CONDITIONS IN CONSIDERATION of the foregoing, and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties covenant and agree as • follows: 1. Effective as of the closing (the "Closing") of the purchase by Assignee or its affiliates of the operations referred to as `BFI Waste Services of Fort Lauderdale" as contemplated by that certain Asset Purchase Agreement by and among Assignor, Assignee and certain of their respective affiliates (the "Purchase Agreement"), Assignor hereby assigns to Assignee all of Assignor's rights, title and interests in, to and under the Contract. Effective as of Closing, Assignee agrees to perform all of Assignor's obligations and accept all liabilities under the Contract (provided that such obligations, liabilities or both did not arise as a result of a breach by Assignor of the Contract on or prior to the Closing or a breach of Assignor's or its affiliates' representations, warranties, covenants and agreements under the Purchase Agreement). 2. The terms of this Assignment shall bind and inure to the benefit of the parties to this document and their respective heirs, legal representatives and successors and assigns. 3. This Assignment may be executed in any number of counterparts which, collectively, shall constitute one and the same instrument. Facsimile signatures shall be effective as original signatures with regard to this Assignment. Each party represents to the other that the execution and delivery of this Assignment by such party have been properly authorized and that all signatures appearing in this document are genuine. ® 4. Notwithstanding anything to the contrary in this document, in the event that the purchase transaction referenced in paragraph 1 above fails to close, this Assignment shall be of no force and effect. IN WITNESS OF THE FOREGOING, Assignor and Assignee have executed this Assignment as of the date and year first written above. ASSIGNOR: BFI Waste Systems of North America, Inc. By& Its: "�•'tom. ASSIGNEE: Waste Manna ement, c. of Florida n By: Its: CONSENT OF CUSTOMER Pursuant to the authorizing Resolution date _ a-� , 2003 by the City of Dania Beach, Florida, Customer consents to the foregoing Assi ent. CITY: City of Dania Beach, a Florida municipal corporation ATTEST: By: C ENEJ SON 90B ANTO CITY CLERK MAYOR- S ONER By: i IVAN 0 APPROVED FOR FORM r' CITY MANAGER AND CORREC SS: By: - Dated: a� , 2003 TH S ANSBRO, ESQ. CITY TTORNEY RESIDENTIAL SOLID WASTE AND RECYCLING COLLECTION SERVICES CONTRACT BETWEEN THE CITY OF UANIA BEACH, A MUNICIPAL CORPORATION OF THE STATE OF FLORIDA, ® AND FI WASTE SYSTEMS OF NORTH AMERICA, INC., A DELAWARE CORPORATION AUTHORIZE® TO DO BUSINESS IN THE STATE OF FLORIDA • City of Dania Beach,FL Residential Solid Waste and Recycling Collection Contract Page 44 1266 A. In cases where compensatory damages are sought, and where the prevailing I 1267 party is awarded compensatory damages from the non-prevailing party, the amount of 1268 attorneys' fees shall not exceed the amount of compensatory damages. No attorneys' fees 1269 shall be recoverable by a prevailing party in the absence of an award of compensatory 1270 damages, other than nominal damages. If no such compensatory damages are awarded, 1271 the-party succeeding in its defense is entitled to reasonable attorneys' fees for the defense 1272 against the non-prevailing party's claim, which shall not exceed the amount demanded by 1273 the plaintiff in any pleading or correspondence either before or after filing of the lawsuit. 1274 B. In cases where compensatory damages are not sought (such as, but not limited 1275 to, cases for injunctive, declaratory, equitable relief or specific performance) the prevailing 1276 party's recovery of attorneys' fees shall not exceed $50,000.00, including all attorneys' 1277 fees incurred as a result of any and all appellate proceedings. �278 SECTION 37. COMPLIANCE WITH LAWS 1279 The CONTRACTOR shall conduct its operations under this Contract in compliance 1280 with all applicable Federal, State and local laws and regulations. 1281 SECTION 38. SEVERABILITY 1282 If any provision of this Contract or the application of it to any person or situation 1283 shall to any extent be held invalid or unenforceable, the remainder of this Contract and the 1284 application of such provisions to persons or situations other than those as. to which it shall 1285 have been held invalid or unenforceable, shall not be affected, shall continue in full force 1286 and effect, and shall be enforced to the fullest extent permitted by law. 1287 SECTION 39. ASSIGNMENT AND SUBLETTING 1288 No assignment of this Contract or any right occurring under this Contract shall be 1289 made in whole or in part by the CONTRACTOR without the express written consent of the 1290 City Commission. The CITY shall have full discretion to approve or deny, with or without �291 cause, any proposed or actual assignment by the CONTRACTOR. Any assignment of this Citv of Dania Beach, FL • Residential Solid Waste and Recycling Collection Contract- Page 45 1292 Contract made by the CONTRACTOR without the express written consent of the City 1293 Commission shall be null and void and shall be grounds for the CITY to declare a default of 1294 this Contract and immediately terminate this Contract by giving written notice to the 1295 CONTRACTOR, and upon the date of such notice this Contract shall be deemed 1296 immediately terminated, and upon such termination all liability of the CITY under this 1297 Contract to the CONTRACTOR shall cease, and the CITY shall have the right to call the 1298 performance bond and shall be free to negotiate with other contractors, the CONTRACTOR, 1299 or any other person or company for the service which is the subject of this Contract. In 1300 the event of any assignment, the assignee shall fully assume all the liabilities of the 1301 CONTRACTOR. 1302 SECTION 40. MODIFICATION 1303 This Contract constitutes the entire Contract and understanding between the parties 1304 hereto, and it shall not be considered modified, altered, changed or amended in any respect ® 1305 unless in writing and signed by the parties hereto. 1306 SECTION 41 . LEGAL REPRESENTATION 1307 It is acknowledged that each party was, or had the opportunity to be, represented 130S by counsel in the preparation of and contributed equally to the terms and conditions of this 1309 Contract and, accordingly, the rule that a contract shall be interpreted strictly against the 1310 party preparing the same shall not apply herein due to the joint contributions of both 4311 parties. 1312 SECTION 42. FUND APPROPRIATION 1313 The CONTRACTOR understands and agrees that the CITY, during any fiscal year, is 1314 not authorized to expend money, incur any liability or enter into any contract which, by its 1315 terms, involves the expenditure of money in excess of the amounts budgeted as available 1316 for expenditure during such fiscal year and that any contract, verbal or written, made in 1317 violation of this subsection is null and void and that consequently, no money may be paid • 1318 on such contract beyond such limits. Nothing contained in this Contract shall prevent the 7 WEISS SEROTA HELFMAN A PASTORIZA GUEDES COLE Sc BONISKE, P.A. - \ ATTORNEYS AT LAW MITCHELL A.BI ERMAN BROWARD OFFICE JENNIFER A.GOLDBERG NINA L.BONISKE 3107 STIRLING ROAD, SUITE 300 DOUGLAS R.GONZALES JAMIE ALAN COLE MARK B.KRAVITZ EDWARD G.GUEDES FORT LAUDERDALE, FLORIDA 33312 CHRISTOPHER F. KURTZ STEPHEN J. HELFMAN HARRIET R.LEWIS* JOHN R. HERIN,JR. JAMIE ALAN COLE PETER A. LICHTMAN GILBERTO PASTORIZA KAREN LIEBERMAN* MANAGING SHARE HOLDER-BROWARD OFFICE GARY I. RESNICK MATTHEW H. MANDEL JOSEPH H.SEROTA BERNARD S. MANDLER' NANCY E.STROUD TELEPHONE (954) 763-4242 MICHAEL J. MARRERO RICHARD JAY WEISS TELECOPIER (954) 764-7770 ALEXANDER L. PALENZUELA-MAURI DAVID M.WOLP IN WWW.WSH-FLALAW.COM MICHAEL S. POPOK* STEVEN W.ZELKOWITZ ANTHONY L. RECIO MIAMI-DADE OFFICE MARK A. ROTHENBERG 2665 SOUTH SAYSHORE DRIVE • SUITE 420 SCOTT A. ROBIN THOMAS J.ANSBRO* MIAMI, FLORIDA 33133 -DANA J.SCHINDLER LILLIAN ARANGO DE LA HOZ* TELEPHONE(305)854-0800 • TELECOPIER (305)854-2323 GAIL D.SEROTA' JEFFREY P.SHEFFEL ALISON S.BIELER MITCHELL J.BURNSTEIN MIA M.SINGH ELAINE M.COHEN �OF COUNSEL JOSE S.TALAVERA STEPHANIE DEUTSCH* SUSAN L.TREVARTHEN September 16, 2003 Tony Spadaccia Manager of Government Affairs Waste Management 2700 NW 48th Street Pompano Beach, FL 33073 Re: Proposed BFI Assignment of Dania Beach Residential Hauling Contract Dear Mr. Spadaccia: Enclosed are copies of an authorizing Resolution and a revised "Assignment and Assumption Contract" document. Also enclosed is a "marked-up" copy of the document you furnished for City review. Please refer to Section 39 of the subject Contract if you have any questions as to the revisions I have made. If you have any additional questions, please feel free to contact me. Very truly your Thomas J. Ansbr' V 566.028 TJA:slw Enclosure - cc: Ivan Pato, City Manager Patty Varney, Finance Director Charlene Johnson, City Clerk