HomeMy WebLinkAboutR-2003-235 waste management services-hauling-SWDA RESOLUTION NO. 2003-235
A RESOLUTION OF THE CITY OF DANIA BEACH, FLORIDA,
AUTHORIZING THE PROPER CITY OFFICIALS TO EXECUTE THE
FOLLOWING DOCUMENTS: 1)AN "AGREEMENT TO EXTEND HAULING
CONTRACT AND TERMINATE SWDA" (WITH REUTER RECYCLING OF
FLORIDA, INC. AND WASTE MANAGEMENT, INC. OF FLORIDA); 2) A
"SECOND AMENDMENT TO RESIDENTIAL SOLID WASTE AND
RECYCLING COLLECTION SERVICES CONTRACT" (WITH WASTE
MANAGEMENT, INC. OF FLORIDA); 3)A"DISPOSAL AGREEMENT'WITH
REUTER RECYCLING OF FLORIDA, INC.AND 4)A"GENERAL RELEASE
BY THE CITY OF DANIA BEACH, FLORIDA", TO BE GIVEN TO REUTER
RECYCLING OF FLORIDA, INC. AND WASTE MANAGEMENT, INC. OF
FLORIDA; PROVIDING FOR SEVERANCE; PROVIDING FOR CONFLICTS;
FURTHER, PROVIDING FOR AN EFFECTIVE DATE.
WHEREAS, in order to resolve differences which exist between the City and Reuter
Recycling of Florida, Inc. as well as Waste Management, Inc. of Florida, the parties wish to
execute certain documents which are intended to resolve such differences;
NOW THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA BEACH, FLORIDA:
Section 1. That the appropriate City officials are authorized to execute the
following documents: 1) an "Agreement to Extend Hauling Contract and Terminate SWDA"
(with Reuter Recycling of Florida, Inc. and Waste Management, Inc. of Florida); 2) a
"Second Amendment to Residential Solid Waste and Recycling Collection Services
Contract" (with Waste Management, Inc. of Florida); 3)a"Disposal Agreement"with Reuter
Recycling of Florida, Inc. and 4) a "General Release by the City of Dania Beach, Florida",
to be given to Reuter Recycling of Florida, Inc. and Waste Management, Inc. of Florida,
copies of each of which documents are attached to this Resolution.
Section 2. That the City Manager and City Attorney are authorized to make
revisions to such documents as are deemed necessary and proper for the best interests of
the City. Such documents shall not be deemed or approved by the City unless and until the
City has completed the execution of all of them.
Section 3. That all resolutions or parts of resolutions in conflict with this resolution
are repealed to the extent of such conflict.
1 RESOLUTION NO. 2003-235
Section 4. That this resolution shall be in force and take effect immediately upon
its passage and adoption.
PASSED AND ADOPTED on October 14th 2003.
BO NTON
MAYOR — COMMISSIONER
ATTEST: ROLL CALL: )
COMMISSIONER CHUNN
COMMISSIONER MIKES -�
RLENE J H SON COMMISSIONER FLURY -�E
CITY CLERK VICE-MAYOR MCELYEP�-C7
MAYOR ANTON
APPROVED AS TO�FO M AND CORRECTNESS:
BY:
THOMAS J. ANSBRO
CITY ATTORNEY
•
2 RESOLUTION NO. 2003-235
GENERAL RELEASE BY
THE CITY OF DANIA BEACH, FLORIDA
KNOW ALL MEN BY THESE PRESENTS:
THAT, the City of Dania Beach, Florida, a Florida municipal corporation,
together with its officials, successors, assigns, agents, employees, representatives,
attorneys, divisions and any and all persons acting by, through or in concert with it
(collectively, "Releasor"), for and in consideration of Ten Dollars and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged,
hereby unconditionally remise, release, acquit, satisfy and forever discharge, from any
and all claims, rights, damages, costs, losses, suits, actions, causes of action, attorneys'
fees, obligations, liabilities, promises, agreements, controversies, debts, expenses,
accounts, bills, contracts, counterclaims, crossclaims, and demands of any nature
whatsoever, in law or in equity, whether in contract or tort or otherwise, and whether
federal or state claims, which Releasor ever had, or now has or which any personal
representative, successor, heir or assign of Releasor can, shall or may have against
REUTER RECYCLING OF FLORIDA, INC., WASTE MANAGEMENT INC. OF
FLORIDA, or both of them together with their subsidiaries, affiliated companies,
divisions, owners, predecessors, successors, assigns, agents, directors, officers,
employees, representatives, attorneys, and any and all persons acting by, through or in
concert with any of them ( collectively "Companies"), for, upon or by reason of any
matter, cause or thing whatsoever, from the beginning of the world to the date of these
presents, including but not limited to, any claims which in any way relate to or arise out
of the Arbitration captioned "In the Matter of the Arbitration Between the City of Dania
Beach, the City of Hallandale Beach, the City of Pembroke Pines, and the City of
Pompano Beach, Claimants, and Reuter Recycling of Florida, Inc., Respondent" (the
"Arbitration") and all claims which were raised or could have been raised in any
arbitration or lawsuit between the parties; provided, however, Releasor does not
release claims (i) that may arise from the failure to comply with the terms and
conditions set forth in the Settlement Agreement executed contemporaneously herewith
and (ii) that concern personal injuries, wrongful death or property damage which were
incurred prior to the date of this General Release.
The parties to this General Release understand and agree that this General Release is
being given in compromise of disputed claims and is not to be construed as an
admission of liability on the part of any party hereto.
This General Release shall be governed by and construed under the laws of Florida.
With respect to each claim released, Releasor represents and warrants that it has not in
any manner assigned, pledged or otherwise transferred to anyone any interest in any
claim, and that all claims governed by this General Release are hereby fully and finally
discharged, settled and satisfied.
IN WITNESS WHEREOF, I have hereunto set my hand and seal this on;; '� /,��
• 2003.
CITY
City of Dania Beach, a Florida
municipal corporation
ATTEST:
By:
CHARLENE JOH SON OB NTO �
CITY CLERK MAYOR-C M SLONER.
By:
IVAN PTO`
APPROVED FOR FORM CITY MANAGER
AND CORRECTNESS:
i
By: \ Dated(.� 2003
THOMAS'J' ANSBRO, ESQ.
CITY ATTORNEY
STATE OF FLORIDA )
SS:
COUNTY OF BROWARD )
THIS IS TO CERTIFY, that on C / 2003, before me, the undersigned
authority, who personally appeared , as
of /�:,a--z/executed the Release
for the pure ses specified in it and who (ch6ck one) �is personally known to me or [ ]
produced as identification.
NOTARY PUBLIC
i� . /�/�
My Commission Expires: Print Name: /��f. .,.—,��
MIRIAM NASSER
• notary Public, State of Florida
My comm. exp. July 9, 2007
Comm. No. DD 230214
•
i
CITE' OF DANIA BEACH
MEMORANDUM
TO: Mayor and City Commissioners
CC: Ivan Pato, City Manager
Patty Varney, Finance Director
FROM: Tom Ansbro, City Attorney
DATE: October 10, 2003
RE: Municipal Garbage Hauling and Disposal Services; Proposed Agreements and
• Documents Submitted By Waste Management, Inc. of Florida and Reuter
Recycling of Florida, Inc. for Execution by City
The following is a report on the contents of the various documents submitted by the
referenced companies for review, approval and acceptance by the City. Each of the documents
is interrelated to the others.
I. "Agreement to Extend Hauling Contract and Terminate SWDA"
This Agreement is a proposed extension of the City's residential hauling contract,
which until recently was a contract between BFI and the City. It is currently set to expire
September 30, 2004. The proposed new agreement provides for the following:
1. The term would be extended to September 30, 2009.
2. The contract would expire in September, 2009 unless renewed upon mutual
written consent. The Agreement provides for "successive five (5) year renewal terms at the
mutual written consent" of the parties.
3. The 1988 "SWDA" (the "Solid Waste Disposal Agreement") originally entered
• into among Reuter, the City and the Cities of Hallandale (as then known), Pompano Beach and
Pembroke Pines would be terminated and replaced with a new "Disposal Agreement". The
Mayor & Commissioners
• October 10, 2003
Page 2
current disposal agreement expires on January 1, 2012; the new Agreement would expire on
January 1, 2022.
4. Upon signing all of the applicable documents, either or both of the companies
would pay the City a total payment of $855,000.00. This sum would not be required to be
refunded if the City chooses not to renew the hauling agreement (which would otherwise
expire on September 30, 2009).
5. The hauling rate schedules which exist in the BFI agreement remain unchanged.
6. The City would agree to withdraw from the currently pending arbitration
proceeding.
7. Sixty (60) days after all documents are signed, Reuter will pay the City
$25,000.00 to defray costs and expenses related to the arbitration proceeding.
11. "Second Amendment to Residential Solid Waste and Recycling
Collector Service Contract"
• 1. This document amends the Agreement which originally was entered into on
October 1, 1999 between the City and BFI for residential garbage hauling services. As
mentioned above, this Agreement was recently assigned by BFI to Waste Management, which
assignment the City approved.
2. The document reiterates the proposed extension of the length of the term, so that
it expires on September 30, 2009 (instead of September 30, 2004). The residential hauling
contract document also reiterates that the parties may renew the Agreement for "successive
periods of five (5) years" if the parties mutually agree to do so.
111. "Disposal Agreement"
This Agreement, to be entered into between the City and Reuter Recycling of Florida,
Inc., is intended to terminate and replace the "Solid Waste Disposal Agreement" ("SWDA")
existing between Reuter and the cities of Dania Beach, Hallandale Beach and Pembroke Pines.
Pompano was a party to that 1988 agreement, but recently withdrew from it (on April 22,
2003). The principal terms of the new agreement are as follows:
1. The term shall begin on or about October 14, 2003 and continue until that date
in 2022 (i.e., a term which is approximately ten (10) years longer than the current SWDA's
• term, which is set to expire July 1, 2012).
2
Mayor & Commissioners
October 10, 2003
Page 2
2. Reuter may, but is not required, to weigh the waste delivered to the disposal
facility by the hauler. At its "option and in its sole discretion, it may utilize the listed capacity
of the vehicle to determine quantity of materials delivered" (page 3, paragraph 4).
3. Reuter will be paid $68.33 per ton of waste delivered to its facility, subject to a
$7.50 per ton rebate payable to the City (discussed below in paragraph 5).
4. The per ton rate will be automatically adjusted as of each October 1 of the term,
based upon the average of two price indices (the latest "Producers (Wholesale) Price Index for
Durable Goods", subject to other provisions, and the "Consumer Price Index - All Urban
Consumers (CPI-U)". In addition, Reuter "may request the City to adjust the rate based upon
unusual and unanticipated increases in the cost of doing business, including, but not limited to
a change in laws or regulation" (page 4, subparagraph 7(b)).
5. Reuter offers to provide a $7.50 per ton "rebate" for waste delivered to the
Reuter Facilities. Based upon an assumption that the City will have delivered 19,000 tons of
acceptable waste to Reuter Facility on an annual basis (based on past experience), the annual
rebate would be $141,500.00 (19,000 tons X $7.50 per ton). However, there will be an annual
• reconciliation or "true-up" which may affect the calculation, depending upon whether more or
less waste was actually delivered for the particular year.
Since the City has expressed a willingness to extend the "hauling contract" (discussed
above, under Part I), Reuter will agree that within sixty (60) days after the "hauling contract"
is approved and signed, Reuter will "aggregate" the first ten (10) years of the rebates (10 years
X 19,000 tons X $7.50 per ton) and pay the City a lump sum rebate of 1,425,000.00. For the
balance of the term, an annual rebate of$67,058.83 will be paid. The foregoing payments are,
however, subject to a reconciliation or "true-up" as mentioned above, which will depend upon
the amount of waste actually delivered annually.
IV. "General Release by the City of Dania Beach, Florida".
This document would release Reuter Recycling of Florida, Inc. and Waste
Management, Inc. of Florida from all claims of any kind that the City may have against either
or both such companies, including all claims that relate or arise out of the arbitration
proceedings mentioned above, initially instituted by the four cities. Any claim of the City for
personal injury, wrongful death or property damage would not be included.
566.028
TJA:slw
• Attachment
3
SECOND AMENDMENT TO RESIDENTIAL SOLID WASTE AND RECYCLING
COLLECTION SERVICES CONTRACT
THIS SECOND AMENDMENT to that certain Residential Solid Waste and
Recycling Collection Services Contract dated October 1, 1999, existing between BFI
Waste Systems of North America, Inc. ("BFI") and the City of Dania Beach (the
"Residential Hauling Contract") is made and entered this --q Y day of C c 7-- 2003,
by and between the City of Dania Beach ("City") and Waste Management Inc. of Florida
("WMIF").
WITNESSETH:
WHEREAS, the City and BFI entered into the Residential Hauling Contract on
October 1, 1999, and subsequently amended same on May 27, 2003 (the "First
Amendment"); and
WHEREAS, the Residential Hauling Contract as amended is valid, in effect and
no party thereto is in default thereon; and
WHEREAS, WMIF and BFI have contracted for the transfer by BFI to WMIF of
the Residential Hauling Contract and the City has consented to such transfer; and
WHEREAS, the City and WMIF have negotiated and are desirous of making
certain changes to such Residential Hauling Contract as amended to extend the term
for an additional five (5) years beyond its current expiration date and to provide for
successive renewal periods of five years;
NOW, THEREFORE, City and WMIF, for and in consideration of the mutual
covenants and conditions set forth herein, and for other good and valuable
consideration, do covenant and agree as follows:
1 . Section 1A Initial Term is hereby amended to read as follows:
The term of the Contract shall be for a ten (10) year period beginning retroactive
to October 1, 1999 and terminating on September 30, 2009, unless further
extended by the parties by mutual written agreement.
2. Section 1 B Option to Renew is hereby amended to read as follows:
This Contract between the CITY and the CONTRACTOR may be renewed for
successive periods of five (5) years at the mutual written consent of the parties.
3. In all other respects, except as amended, the Contract is ratified and reaffirmed
and remains in full force and effect.
IN WITNESS WHEREOF, the parties have executed these presents as of the day and
year first above written.
CITY
City of Dania Beach, a Florida
municipal corporation
ATTEST:
1
ti R,9�� By:
—FrARLENE JO NSON *�OBANTO�NV
CITY CLERK MAYOR-CO O
By:
IVAN ATO
APPROVED FOR FORM CITY MANAGER
AND CORRECTN SS:
�- i
By: � ' \ A� �'/) Dated: � -1 l,-�'2003
THOMAS J! ANSBRO, ESQ.
CITY ATTORNEY
WASTE MANAGEMENT INC. OF FLORIDA
By: _ .
Printed Name
Title
Attest:
2'i
AGREEMENT TO EXTEND HAULING CONTRACT AND TERMINATE SWDA
THIS AGREEMENT TO EXTEND HAULING CONTRACT AND TERMINATE
SWDA (the "Agreement") is made and entered into this -2Y day of 6?c i
2003, by and between the City of Dania Beach, Florida, ("City"), and REUTER
RECYCLING OF FLORIDA, INC., a Florida corporation ("Reuter) and WASTE
MANAGEMENT INC. OF FLORIDA, a Florida corporation ("WMIF") collectively
"Companies").
RECITALS
WHEREAS, in consideration of the covenants and mutual promises contained in
this Agreement, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby expressly acknowledged, the parties agree as follows:
1. The above recitals are true and correct and incorporated herein.
2. Solid Waste and Recycling Collection Agreement. The City and BFI Waste
Systems of North America, Inc. ("BFI") are parties to that certain Residential Solid
Waste and Recycling Collection Services Contract dated October 1, 1999, and
amended May 27, 2003 (the "Residential Hauling Contract"). WMIF and BFI have
contracted for the sale of this asset to WMIF. The City has consented to an assignment
by BFI of the Residential Hauling Contract to Waste Management Inc. of Florida. The
City and WMIF agree that after the Residential Hauling Contract is assigned to WMIF it
will be amended (i) to extend its term so that it expires (unless further extended) on
September 30, 2009 and (ii) to allow for successive five (5) year renewal terms at the
mutual written consent of the City and WMIF. The City and WMIF agree to execute a
Second Amendment to the Hauling Contract substantially in the form attached hereto.
3. Solid Waste Disposal Agreement. The parties acknowledge that the City
and Reuter are parties to that certain "Solid Waste Disposal Agreement" signed on or
about August 19, 1988 ("SWDA"). The SWDA currently expires January 1, 2012. The
City acknowledges that the SWDA can be modified (and has been modified previously)
or terminated as to and between the City and Reuter as long as such modification or
termination is in writing and signed by the parties to such modification or termination, in
this case the City and Reuter. It is understood by the parties that the City and Reuter
agree to terminate the SWDA and replace it with a Disposal Agreement which will have
a term that expires January 1, 2022 and contains a provision that guarantees the City
disposal capacity within the network of companies owned or affiliated with WMIF during
the term of the Disposal Agreement. The Disposal Agreement shall be substantially in
the form attached hereto. The City agrees that it will not claim that the termination of
the SWDA is not effective or is otherwise not valid because it has not been signed by
Pembroke Pines, Hallandale Beach, and/or Pompano Beach.
4. Hauling Contract Extension Fee. Upon the execution and approval of this
• Agreement, the Disposal Agreement and the Assignment and Second Amendment to
the Residential Hauling Contract by the necessary and required City officials to make
each of those documents binding and enforceable, WMIF or Reuter or a combination of
them shall pay the City a one time payment of Eight Hundred Fifty Five Thousand
Dollars ($855,000.00).
5. Annual Rebate. After the execution and approval of this Agreement and the
Disposal Agreement by the necessary and required City officials to make each of those
documents binding and enforceable, Reuter will pay the Annual Rebate as set forth in
the Disposal Agreement attached hereto.
6. Rates. The rate schedules for payment by the City for services rendered
by Reuter pursuant to the SWDA shall be unchanged in the new Disposal Agreement.
The rate schedules for services rendered by WMIF pursuant to the Hauling Contract
shall be unchanged in the amended and restated agreement.
7. Dismissal and Release. Additionally, City and Reuter are presently engaged in
arbitration in that certain matter captioned "In the Matter of the Arbitration Between the
City of Dania Beach, the City of Hallandale Beach, the City of Pembroke Pines, and the
City of Pompano Beach, Claimants, and Reuter Recycling of Florida, Inc., Respondent"
(the "Arbitration"). The parties agree that the City shall withdraw from the Arbitration
and shall dismiss its claims with prejudice, and, in so doing, acknowledges that Reuter
has not admitted or conceded the truth of any of the allegations contained in the
Arbitration and specifically denies any wrongdoing or liability. Simultaneously with the
execution of the documents set forth in Section 4 above, the City shall execute and
deliver a release releasing all claims that were or could have been raised in the above
captioned Arbitration or any litigation, as well as any and all counterclaims, defenses,
crossclaims, or third-party claims that could have been filed and/or raised in said
Arbitration or litigation, except the parties' compliance with the terms and conditions of
this Settlement Agreement.
Further, Reuter shall defend, indemnify and hold the City (including its elected officials,
employees, agents and representatives) harmless from any and all liabilities, losses or
damages ("Damages") of any kind that the City may suffer as a result of the termination
of the SWDA and execution of the Disposal Agreement that replaces the SWDA. Reuter
will provide experienced counsel of its choosing to defend the City provided that such
counsel shall not have a conflict of interest and shall be reasonably acceptable to the
City. City shall cooperate with Reuter in providing a defense to any such claim for which
indemnification is provided herein. Such cooperation shall include but shall not be
limited to providing documents, data, and information within the control of the City, its
elected officials and employees, access to and cooperation of employees, agents, and
officials, and similar matters reasonably requested by Reuter to defend such actions.
Compensation to City employees in cooperating with Reuter in the defense of claims
shall not be considered Damages for purposes of this provision. The obligation to
defend, indemnify and hold harmless set forth herein shall survive termination of this
Agreement.
•
2
8. Costs and Fees. Each party shall pay its own attorneys' fees, costs,
® expenses, professional and consulting fees; provided, however, Reuter shall pay to the
City the sum of $25,000.00 towards the City's costs and expenses related to the
Arbitration. Said sum shall be paid sixty days after the execution and approval of all
documents stated herein.
9. Negotiation. The parties hereto mutually acknowledge and agree that this
Agreement and the matters memorialized herein have been fully negotiated with the
assistance of qualified legal counsel at arms length and, consequently, no rule of
interpretation or construction that would result in an interpretation or construction in
favor of or to the detriment of one party over another party shall apply. In executing this
Agreement, the parties have not relied on representations of the other parties or the
counsel for those parties.
10. Jurisdiction and Enforcement. In the event that a party hereto finds it
necessary to assert a claim for breach of a provision of this Agreement, such claim shall
be asserted in the Circuit Court in Broward, Florida. In any such claim, the prevailing
party shall be entitled to recover the reasonable fees and expenses of its counsel and
other costs and expenses incurred in connection with such action.
12. Execution of Other Documents.The parties shall execute such other
documents as may be typical for settlements of this type and as may reasonably be
• requested by a party hereto to implement or further assure the terms hereof.
13. Governing Law. This Agreement shall be governed, interpreted and enforced
under the laws of the State of Florida, without regard to Florida's conflict of law
principles.
14. Binding Effect. This Agreement shall be binding upon and shall inure to the
benefit of the parties, their respective heirs, beneficiaries, executors, administrators,
personal representatives, successors and assigns.
15. Entire Agreement. This Agreement shall constitute the entire agreement among
the parties and may not be amended or modified except in writing and executed with the
same formality as set forth herein.
16. Counterparts: This Agreement may be executed in counterparts,
each of which shall be deemed to be an original and all of which, taken together, shall
constitute a single agreement. A duly executed facsimile copy of this Agreement shall
be as effective as an original.
17. Headings. The headings and captions used herein are for the convenience of
the parties and shall not be used to interpret, expand, contract, add, delete or modify
the text.
•
3
® IN WITNESS WHEREOF, the parties hereto have executed this Agreement on
and as of the date first above written.
CITY
City of Dania Beach, a Florida
Municipal Corporation
ATTEST:
C ARLENE A SON OB ANTO11
CITY CLERK MAY IS NER
IUA ,PATO
APPROVED FOR FORM CITY MANAGER
AND CORRECT E
I _
By: � � ,`'�� Dated / 2003
THOMAS j. AN`S8BRO, ESQ.
CITY ATTORNEY
® Attest' REUTER RECYCLING OF FLORIDA, INC.
By:
Printed Name:
Title: V i c e P 2 F S, ,� ,,7-
Atte WASTE MANAGEMENT INC. OF
FLORID
By:
Printed Name: h/4 b/,44
Title: yt c- �- s<
4
DISPOSAL AGREEMENT
THIS IS A DISPOSAL AGREEMENT made as of OWZ4.el L¢
2003, by and between REUTER RECYCLING OF FLORIDA, INC., 20701 Pembroke
Road, Pembroke Pines, Florida 33029, a Florida corporation ("Reuter") and the CITY
OF DANIA BEACH, FLORIDA, a municipal corporation ("City").
WHEREAS, Reuter presently operates a resource recovery facility and transfer
station at its Pembroke Pines facility ("Reuter Facility") and has contractual and
business rights to utilize facilities at Recycle America at Pompano Beach, FL ("RA-
Pompano") for processing Curbside Recyclables and Central Landfill at Pompano
Beach, FL ("Central")for disposal of Solid Waste (collectively, the "Facilities") ; and
WHEREAS, Reuter agrees to accept for disposal Acceptable Waste from City (as
hereinafter defined) which is delivered to the Reuter Facility, RA-Pompano or Central,
as the case may be by City or its Designated Hauler on the terms and conditions
hereinafter set forth; and
WHEREAS, City and Reuter desire to enter into this Disposal Agreement in
replacement of that certain Solid Waste Disposal Agreement dated 1988 (the SWDK)
which is hereby terminated as to City;
NOW, THEREFORE, in consideration of the material covenants contained herein
® and for other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the parties agree as follows:
1. Term. The ter of this Agreement shall commence on D , 2003 and shall
continue through /7/, 2022. Upon expiration of the original term, this Agreement
may be renewed for additional terms by mutual written agreement of the parties.
2. Definitions.
a) "Acceptable Waste" means Curbside Recyclables and non-hazardous
Solid Waste (Class I and Class III) that does not require the Facilities to incur any
handling costs in excess of those attributable to Class I Solid Waste and each of which
shall be expressly authorized pursuant to any and all laws, regulations, authorizations,
permits, contracts, registrations and notices of intent (and any related applications),
registrations, notices of intent and any administrative orders or agreements
("Authorizations"), at the Facilities hereunder. Acceptable Waste shall not contain any
regulated quantity of (i) infectious waste; (ii) Hazardous Waste, (iii) or other waste which
is required by governmental authority or by its general nature to be handled or disposed
of other than in accordance with the Facilities' normal operating procedures; or (iv)
waste that does not strictly conform to the descriptions of waste materials that the
Facilities are authorized to accept under their respective Authorizations. The Facilities,
in their sole but reasonable discretion, shall have the right to reject or any material or
1
any load containing material that does not conform to the definition of Acceptable Waste
set forth herein.
b) "Hazardous Waste" means waste listed, characterized, or designated as
hazardous by the United States Environmental Protection Agency, pursuant to the
Resource Conservation and Recovery Act, 42 U.S.C. 6901, et seq. as amended from
time to time, and its implementing regulations, as well as by any analogous Florida
statute or rules.
c) "Solid Waste" means non-hazardous and non-special municipal solid
waste as defined in 62 F.A.C. 701.200 to the extent that such materials are of the type
and consistency to be lawfully accepted at the Facility under applicable federal, state
and local laws and regulations, and Authorizations.
d) "Class III solid waste" means Solid Waste that is composed of carpet,
cardboard, paper, glass, plastic, furniture other than appliances (including White Goods-
CFC and White Goods-Non-CFC), and other bulky materials.
e) "Class I solid waste" means Solid Waste that contains substantial amounts
or primarily consists of putrescible household and commercial, non-industrial waste
generated in the ordinary course of business by office, retail and similar establishments.
f) "Change in Law" means (i) the adoption, promulgation, or modification or
reauthorization after the date of this Agreement of any law, regulation, order, statute,
ordinance, rule or binding judicial or administrative ruling that was not adopted,
promulgated, modified or reissued on or before the date of this Agreement, or (ii) the
imposition of any material conditions in connection with the issuance, renewal, or
modification of any permit, license, registration, notice of intent or approval after the
date of this Agreement, which in the case of either (i) or (ii) establishes requirements
affecting a party's operation under this Agreement more burdensome than the
requirements that are applicable to such party and in effect as of the date of this
Agreement. A change in any federal, State, county tax law or workers compensation
law shall not be a Change of Law. However, in the event that a federal, state or local
entity imposes a fee, charge or tax after the date of this Agreement that applies to a
party's operations per se, such fee, charge or tax shall be treated as a Change in Law.
g) "Curbside Recyclablesn means those materials, which are capable of
being recycled and which would otherwise be processed or disposed of as residential or
commercial Solid Waste and which are collected by the City's Designated Hauler at
curbside. These materials will be as defined by the City from time-to-time. Curbside
Recyclables shall include, unless otherwise agreed by the parties, newsprint, clear,
green, and brown glass containers, steel cans, aluminum beverage containers, #1
PETE, PVC#3, and #2 HDPE plastic containers.
h) "Authorizations" means those permits, licenses, registrations, approvals,
certificates, contracts, credentials, warrants and authorizations issued by any applicable
• federal, state, and local governmental agency, body, jurisdiction or unit.
2
1) 'White Goods -- CFC" means appliances or other devices that contain or
may release freon or chlorofluorocarbons, including but not limited to refrigerators,
freezers, air conditioning units, dehumidifiers.
j) 'White Goods -- Non-CFC" means appliances that either are not designed
to and do not contain frreon or chlorofluorocarbons or have had same removed by an
authorized, licensed and certified operator in compliance with all applicable laws and
regulations and are duly tagged.
k) "Designated Hauler" means the hauler or haulers that collect Solid Waste
and Curbside Recyclables or either of them on behalf of the City within the City limits of
Dania Beach, FL.
1) "Fiscal Year" means the twelve (12) month period commencing October 1
and ending September 30.
3. City's Delivery Obligations. City shall deliver and direct its contracted or
Designated Haulers to deliver to the Facilities as determined by Reuter all Acceptable
Waste generated within the City limits. Waste delivered to Central may be transferred
for disposal at another landfill or solid waste management facility at no additional charge
or cost to City. During the term of this Agreement Reuter guarantees disposal capacity
within the Waste Management family of companies for the City's waste. City represents
that it will take reasonable steps to enforce the delivery obligations set forth herein.
® 4. Schedules and Processing. Except as otherwise provided herein, Reuter shall
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accept and process all Acceptable Waste delivered or caused to be delivered by City.
All deliveries shall be made by self-powered mechanical unloading vehicles. Vehicles
may be weighed at the Facility. Vehicles may be reweighed after unloading to validate
the true weight of the vehicles. At Reuter's option and in its sole discretion, it may
utilize the listed capacity of the vehicle to determine quantity of materials delivered. The
conversion from cubic yards to tons shall be determined by the average of the loads
delivered to Reuter by City for the prior seven working days in which loads were
delivered hereunder. City and City's Designated Hauler shall comply with all applicable
federal, state and local safety and administrative rules and regulations as well as those
promulgated by Reuter.
5. Billing and Payment. Reuter shall tender to the City or the City's Designated
Hauler, as the case may be, a statement of the compensation due Reuter resulting from
processing City's waste monthly. City or its Designated Hauler shall pay the statements
in full within 30 days after receipt. City or its Designated Hauler shall pay interest on the
unpaid balance at a rate of 1 '/z% per month not to exceed the highest lawful rate under
Florida law. Provided however, that invoices which are legitimately disputed by the City
shall not be subject to interest while being disputed. Failure to make timely payment of
undisputed invoices shall permit Reuter to suspend acceptance of material from City
3
and/or terminate this Agreement pursuant to Section 9 below, in addition to all other
® rights and remedies Reuter may have at law or in equity.
6. Rate. City or its Designated Hauler, as the case may be, shall pay Reuter Sixty
Eight and 33/100 Dollars ($68.33) per ton of Acceptable Waste delivered to the
Facilities.
Currently, the rate is not subject to federal, state or local governmentally
imposed fees related to the handling or disposal of Solid Waste, recyclable materials or
other materials governed by this Agreement ("Fees"). In the event that Fees may be
imposed by a governmental entity, they shall be passed through and borne by the City.
7. Adiustment to Rate.
a) The rate set forth in Section 6 shall be adjusted automatically as of
October 1 of each Fiscal Year of the term of this Disposal Agreement (the "Adjustment
Date") by adding to the then current Fiscal Year's rate the amount obtained by
multiplying such current rate by the average change, expressed as a percentage, of the
following two indices as determined as follows:
(1) From the latest Producer (Wholesale) Price Index for Durable Goods
for the region including Broward County, as determined and recorded by the
United States Department of Labor, Bureau of Labor Statistics, as available 180
® days prior to the expiration of the Fiscal Year immediately preceding the
Adjustment Date, subtract the amount of such index for the same date in the next
preceding Fiscal year. The difference shall be expressed as a percentage.
(2) The change, expressed as a percentage, for said period in the
Consumer Price Index - All Urban Consumers (CPI-U) for the region including
Broward County, as determined and recorded by said Bureau of Labor Statistics,
shall be similarly calculated.
The percentage change of each of the foregoing indices so determined shall be
added together. The sum of those numbers shall then be divided by two to determine
the average change, expressed as a percentage, of the two indices (the "Average
Change"). The rate shall be adjusted by seventy-five percent (75%) of the Average
Change for each Fiscal Year during the term of this Disposal Agreement.
Notwithstanding the foregoing, if the Average Change is a negative number, the
Average Change shall first be reduced by twenty-five percent (25%) to exclude labor
costs from the calculation before applying the foregoing percentages. For example, if
the Average Change for the Fiscal Year ending September 30, 2003 is a negative 4%,
the Average Change shall first be reduced by 1% (i.e. 25% of 4%) before calculating the
adjustment to the rate described above. Under that example, the then current rate
would be multiplied by the product of 75% and 3%, and the rate would be reduced by
® the resulting amount.
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In the event that either or both of said indices shall no longer be available during
the term of this Disposal Agreement, the parties hereto shall mutually select a
replacement index or indices as required, provided that any such replacement shall, in
the best judgment of the parties, be as nearly the same as the replaced index or
indices.
The rate provided for in this section shall be calculated and established by
Reuter at least 150 days preceding the beginning of each Fiscal Year and shall be
effective for the next ensuing Fiscal Year. The first such adjustment shall be effective
October 1, 2004, based on the Average Change for the period January 1, 2003 through
September 30, 2003.
b) In addition, Reuter may request the City to adjust the rate based
upon unusual and unanticipated increases in the cost of doing business, including but
not limited to a change in law or regulation (Change in Law"). Any such request shall
be supported by full documentation establishing the increase in operating costs and the
reasons therefor. The City shall be entitled to audit Reuter's financial and operational
records directly related to Reuter's request in order to verify the increase in costs and
the reasons therefor.
Upon the receipt of such information, the City promptly shall review the
information and, within thirty (30) days of such receipt, shall respond to Reuter in
writing, stating whether it agrees or disagrees with the its request. The City shall use its
reasonable discretion in considering the request under this provision, and may grant the
request in whole or in part or may deny the request in its entirety. The City may impose
reasonable conditions on any relief granted.
8. Force Maieure. The performance of this Agreement may be suspended and
the obligations of either party excused in the event of and during the period that such
performance is prevented or delayed by a Force Majeure occurrence. "Force Majeure"
shall mean:
(a) An act of God, including hurricanes, tornadoes, landslides, lightning,
earthquakes, fire, flood, explosion, sabotage or similar occurrence, acts of a public
enemy, extortion, war, blockade or insurrection, riot, or civil disturbance;
(b) The order or judgment of any federal, State, or local court, administrative
agency or governmental body (excluding decisions of federal courts interpreting federal
tax laws, and decisions of State courts interpreting State tax laws) if it is not also the
result of the willful misconduct or negligent action or inaction of the party relying thereon
or of a third party for whom the party relying thereon is responsible; provided that
neither the contesting in good faith of any such order or judgment nor the failure to so
contest shall constitute or be construed as a measure of willful misconduct or negligent
action or inaction of such party;
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(c) The failure to issue, suspension, termination, interruption, denial, or failure
® of renewal of any Permit or approval essential to the operation of one or more of the
Facilities, provided that such failure does not arise from the Facilities' negligence or
failure to comply with rules, regulations, permits or licenses;
(d) A Change in Law;
(e) The failure of any appropriate federal, State, County, or local public
agency or private utility or similar entity having operational jurisdiction in the area in
which the Landfill is located, to provide and maintain utilities, services, water and sewer
lines, transportation or similar function and power transmission lines which are required
for and essential to the operation of one or more of the Facilities;
(f) The condemnation, taking, seizure, involuntary conversion, or requisition
of title to or use of the designated facility or any material portion or part thereof taken by
the action of any federal, State or local governmental agency or authorities.
As a condition precedent to the right to claim excuse of performance, the party
experiencing a Force Majeure event shall:
(a) Promptly notify the other party verbally; and
(b) As soon as practical, but in no event more than ten (10) days thereafter,
® prepare and deliver to the other party a Notice with a written description of (1) the
commencement of the Force Majeure event and (2) its estimated duration and impact
on the party's obligations under this Agreement.
Whenever a Force Majeure event shall occur, the parties shall, as quickly as
possible, to the extent reasonable, eliminate the cause and resume performance under
this Agreement. Additionally, either party shall provide prompt Notice to the other of the
cessation of a Force Majeure event.
9. Termination for Default. If either party defaults in the performance of this
Disposal Agreement for thirty (30) days after the other party has given the defaulting
party written notice thereof, the non-defaulting party may elect to terminate this
Agreement and/or pursue any other remedies at law or in equity with respect to such
default. The rights of the non-defaulting party hereunder shall be in addition to, and not
in substitution of, any rights it may have at law or in equity.
10. Notice. Notices shall be given hereunder by certified mail, return receipt
requested, with postage prepaid thereon, or by private courier service requesting
evidence of receipt as a part of its service, addressed to the parties at their respective
addresses appearing below (or at such other address as may be designated in a notice
pursuant hereto).
6
11. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida applicable to contracts made and to be
performed in that state. In the event of any litigation related to this Agreement, the
prevailing party shall be entitled to recover reasonable attorneys fees and costs related
to the action.
12. Assignment. This Agreement may not be assigned by either party without the
prior written consent of the other party which may be withheld in its sole discretion;
provided, however, that Reuter may assign this Agreement to its parent or affiliated
company without the consent of the City. An allowed assignment shall not relieve the
assignor of liability hereunder. An assignment that is made or attempted without
consent of the other party hereto is void and of no effect.
13. Successors. This Agreement shall inure to the benefit of and be binding upon
the respective successors and allowed assigns of the parties.
14. Entire Agreement. This Agreement embodies the entire agreement of the
parties as to the subject matter hereof. It may not be modified, varied, altered or
discharged except by written agreement, signed by the parties hereto.
15. Waiver. Failure to enforce any provision hereof shall not constitute a waiver
by either party and any such provision shall remain in full force and effect and may be
asserted by either party at any time during the period of this Agreement.
® 16. Severability. If any clause, provision or part of this Agreement is declared
unenforceable or void, it shall not affect the enforceability of the balance of such clause,
provision or part thereof, with the Agreement as a whole.
17. Captions. The captions herein are solely for the convenience of the parties
and shall not be used to modify, amplify, decrease or otherwise interpret the provisions
herein.
18. Insurance. Reuter shall procure and maintain for the term of this Agreement
and any extension thereof, the following insurance coverages:
Workers' Compensation: Coverage A Statutory
Coverage B $1,000,000
Automobile Liability: Bodily Injury $1,000,000 each person
$1,000,000 each accident
Property Damage: $1,000,000 each accident
Comprehensive General Liability $1,000,000 each occurrence
Bodily Injury: $1,000,000 aggregate
•
7
Property Damage: $1,000,000 each occurrence
$1,000,000 aggregate
Environmental Impairment: $1,000,000 aggregate
Umbrella coverage: $5,000,000 aggregate
The City represents and warrants that it is self-insured and such self-insurance
provides coverage substantially similar to that provided by Reuter.
19. Representations and Warranties.
(a) If at any time City discovers any non-conforming waste or other materials,
it shall promptly notify Reuter of any information it obtains or has obtained indicating
that non-conforming waste or other materials were delivered. City's activities hereunder
shall be in compliance with all applicable federal, state and local governmental laws,
regulations, ordinances, licenses, permits, orders, directives and rules relating to the
collection and transportation of Solid Waste.
(b) Reuter represents that the equipment and facilities provided by it to
perform services are suitable to perform such services and that all personnel are trained
in accordance with applicable laws and rules. Reuter shall perform all services in full
compliance with all applicable federal, state and local governmental laws, regulations,
ordinances, licenses, permits, orders, directives, and rules relating to collection,
transportation and disposal of Solid Waste. Reuter shall dispose of all Acceptable
Waste delivered to it within the Waste Management system of waste management
facilities. Reuter represents and warrants that capacity within the Waste Management
system for the City's Acceptable Waste shall be maintained throughout the term of this
Agreement.
20. Indemnity.
(a) City shall cause its Designated Hauler to indemnify and hold harmless
Reuter and its affiliates, respective officers, directors and employees, from and against
all liabilities, including without limitation strict liabilities arising under any federal, state or
local laws or rules, including, without limitation, those relating to the environment,
expenses (including but not limited to reasonable attorneys' fees and expenses of
investigation and litigation), claims, damages, fines and penalties which any person or
entity may at any time suffer or sustain or become liable for by reason of the delivery of
any material that fails to conform to the definition of Acceptable Waste, including without
limitation, violations of any applicable laws and rules, contamination or impacts upon the
environment that violate applicable laws, rules, directives, orders or Authorizations,
property damage, injuries resulting in death or injury to either persons or property, real
or personal or both, of Reuter, its affiliates or the employees of any such party or to any
other persons in any manner caused by or resulting from the acts, omissions or willful
Smisconduct of City's Designated Hauler, including its contractors, or any employees or
8
agents of such entities. City shall indemnify and hold harmless Reuter, its affiliates,
® respective officers, directors and employees, from and against all liabilities and
expenses (including but not limited to reasonable attorneys' fees and expenses of
investigation and litigation), claims, damages, fines and penalties which any person or
entity may at any time suffer or sustain or become liable for by reason of or resulting
from the breach of, misrepresentation in, untruth in, or known inaccuracy in any
representation, warranty or covenant of City set forth in this Agreement. City's
obligations hereunder shall be subject to its right to sovereign immunity and Ch. 768.28
F.S., as applicable. In the event that City delivers waste to the Facilities in its own trucks
and with its own employees, the indemnification obligation set forth herein applicable to
City's Designated Hauler shall apply to City.
(b) Reuter shall indemnify and hold harmless City and its affiliates, respective
officers, directors and employees, from and against all liabilities, including without
limitation strict liabilities arising under any federal, state or local laws or rules, including,
without limitation, those relating to the environment, expenses (including but not limited
to reasonable attorneys' fees and expenses of investigation and litigation), claims,
damages, fines and penalties which any person or entity may at any time suffer or
sustain or become liable for by reason of the improper disposal of any Solid Waste
accepted by Reuter, including, without limitation, violations of any applicable laws and
rules, contamination impacts upon the environment that violate applicable laws, rules,
directives, orders or Authorizations, property damage, injuries resulting in death or injury
to either persons or property, real or personal or both, of City and its affiliates or the
employees_ of any such party or to any other persons in any manner caused by or
resulting from the acts, omissions, or willful misconduct of Reuter, any designee or any
entity engaged by Reuter, including Reuter's contractors, or any employees or agents of
such entities or resulting from the breach of, misrepresentation in, untruth in, or known
inaccuracy in any representation, warranty or covenant of Reuter set forth in this
Agreement.
(c) Neither City nor Reuter as the case may be shall be liable for
consequential, incidental or punitive damages. The indemnification obligations herein
shall survive termination of this Agreement.
21. Title/Acceptance of Solid Waste.
(a) Title and risk of loss and responsibility to Acceptable Waste delivered to
one of the Facilities by City or its Designated Hauler shall pass to Reuter at the time the
waste material is removed from the delivery vehicle at such Facility. Title to waste
material which does not conform to the definition of Acceptable Waste shall remain with
City or its Designated Hauler, as the case may be, and shall not be deemed to pass to
Reuter.
(b) City or its Designated Hauler shall tender Curbside Recyclables and Solid
Waste to Reuter and Reuter shall accept Curbside Recyclables and Solid Waste
pursuant to the terms of this Agreement. Curbside Recyclables and Solid Waste shall
9
be considered accepted at the time the material is removed from City's or its
Designated Hauler's vehicle at the receiving Facility. Acceptance of Curbside
Recyclables and Solid Waste shall not impair, or operate as a waiver of any remedy
available to Reuter, including revocation of acceptance in the event that the Curbside
Recyclables and Solid Waste is later discovered to be nonconforming. Reuter may
inspect, sample, analyze and test any Solid Waste; however, exercise or a failure to
exercise such right shall not relieve the City or its Designated Hauler, as the case may
be, of its indemnity or other obligations under this Agreement to deliver only Acceptable
Waste.
(c) If City or its Designated Hauler delivers to one or more of the Facilities
any material failing to conform to the definition of Acceptable Waste in this Agreement
or to the requirements of any authorization or applicable government law, regulation,
rule, directive or order, and if Reuter notifies City or its Designated Hauler, as the case
may be, of the delivery of, and requests removal of such non-conforming materials, City
or its Designated Hauler, as the case may be, shall make available to the applicable
Facility, or cause to be made available to the Facility, within two (2) days of such notice,
containers and vehicles suitable for transporting such non-conforming material and City
shall thereafter remove, or cause to be removed, within three (3) days of such notice,
such non-conforming material from the Facility in accordance with applicable laws and
regulations.
(d) If at any time City or its Designated Hauler, as the case may be, shall
• learn that Solid Waste it delivered to a Facility was not Acceptable Waste, it shall
promptly notify Reuter and provide the basis for its understanding.
22. Facility Operations.
(a) Subject to its operational requirements and other business needs, Reuter
shall use reasonable discretion during the term of this Agreement to cause the
applicable Facility, its transferees, contractors, and affiliates to be open for
operation during the Facility's regular business hours. If the operating hours are
restricted by a third party, then Reuter shall use its reasonable discretion to
cause the Facility to be open for operation during such reduced hours. Reuter
shall give City prompt notice of any attempt to restrict business hours. City
acknowledges the right of Reuter to make and enforce reasonable safety rules
and regulations as are necessary regarding the Solid Waste Facility and City and
its Designated Hauler, will abide by such rules as established from time to time.
Reuter shall furnish a copy of such rules and regulations upon request and notify
City of any changes as they occur.
(b) Reuter shall cause to be furnished and reasonably maintained during the
term of this Agreement internal access roads to the Facilities so as not to cause
damage to vehicles of City or its Designated Hauler beyond normal wear and
tear customary to accepted industry standards. If any vehicles of City or its
Designated Hauler entering a Facility become incapacitated or unable to move
10
on the Facility premises for causes other than those attributable to the condition
• of the access roads, Reuter may, but shall have no obligation to, provide
assistance in moving the vehicle, all at the sole cost and expense of City or its
Designated Hauler, as the case may be. In such circumstances, City and its
Designated Hauler, as the case may be, agrees that Reuter shall have no liability
for damage to any incapacitated vehicle or property resulting from rendering such
assistance.
23. Payment by Reuter.
(a) Reuter shall pay to the City on an annual basis commencing on
September 15 of the year following the execution of this Agreement by all parties,
a rebate of $7.50 per ton of Acceptable Waste delivered by or on behalf of the
City to the Facilities. The rebate will be paid annually over the term of this
Agreement (the "Annual Rebate"). For convenience, Reuter assumes that the
City will provide 19,000 tons of Acceptable Waste per year. The Annual Rebate
will therefore be $142,500 per year; provided, however, that the Annual Rebate
will be subject to an annual "true-up" for actual delivered tonnage. For example,
on September 15 of the second year following execution of the Agreement,
Reuter will pay $142,500. Actual tonnages will be determined for that year and
an actual rebate will be calculated based on such tonnage (the "Revised Annual
Rebate"). In the event the Revised Annual Rebate is less than that paid by
• Reuter, the difference will be deducted from $142,500 and that amount will be
used for the Annual Rebate for the third year. If the Revised Annual Rebate is
greater than $142,500, the difference will be added to $142,500 and used for the
Annual Rebate in the third year. The Annual Rebate used in the third year would
then be "trued-up" for the fourth year and so on. The Annual Rebate shall be
subject to adjustment by the change in CPI as set forth in Section 7. Reuter's
obligation to make this payment shall cease on September 15, 2022, or on such
earlier date that this Agreement shall terminate.
(b) The City has consented to an assignment by BFI of that certain
Residential Solid Waste and Recycling Collection Services Contract between the
City and BFI Waste Systems of North America, Inc. dated October 1, 1999, and
amended May 27, 2003 (the "Residential Hauling Contract"), to Waste
Management Inc. of Florida. The City has agreed to amend the Residential
Hauling Contract to provide for an extension of the term of that agreement for a
period of five years with an option at the mutual written agreement of the parties
for additional successive five year renewals. Within sixty days of execution and
approval of the amendment to the Residential Hauling Contract, Reuter will
aggregate the first ten (10) years of Annual Rebates (based on an assumed
19,000 tons per year) and pay to the City the Annual Rebate so aggregated in a
lump sum less any annual payments previously made. It is contemplated that no
annual payments will have been made and, accordingly, a payment of
$1,425,000.00 will be made. Having made such lump sum payment in the first
11
year of the term of this Agreement, the Annual Rebate over the remaining 17
years of the term would be $67,058.83, subject to "true-up".'
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first
above written.
q'RE Reuter Recycling of Florida, Inc.
By: _
Its: 1! , (-rZ P-eAs, ()r.1
CITY
City of Dania Beach, a Florida
municipal corporation
A ES
® By.
CHARLENE J H SON BOB ANTO
CITY CLERK MAYO I TONER
By' _
APPROVED FOR F OM CITY MANAGER
AND CORRECTNE I S:
By: J 7
/ Dated:XZ�- -) /� , 2003
THOMAS J. ANSBRO, ESQ.
CITY ATTORNEY
1 Total Annual Rebate payment based on 19,000 tons per year is$2,565,000($142,500 X 18 years). Aggregated 10
year lump sum payment of$1,425,000 in year one of the term leaves$1,140,000 over the remaining 17 years of
the term. $1,140,000 divided by 17=$67,058.83 per year.
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