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HomeMy WebLinkAboutR-1990-024 RESOLUTION NO. 24_ g_ 0 A RESOLUTION OF THE CITY OF DANIA, FLORIDA, APPROVING CONSENT AND AGREEMENT BETWEEN REUTER RECYCLING OF FLORIDA, INC. , A FLORIDA CORPORATION AND THE MUNICIPALITIES OF DANIA, HALLANDALE, PEMBROKE PINES AND POMPANO BEACH; AND PROVIDING FOR AN EFFECTIVE DATE. BE IT RESOLVED BY THE CITY COMMISSION OF THE, CITY OF DANIA, FLORIDA: Section 1 . That that certain Consent and Agreement between Reuter Recycling of Florida, Inc. , a Florida corporation and the municioalitt_s of Dania, Hallandale, Pembroke Pines and Pompano Beach, a copy of which is attached hereto as Exhibit "A", be and the same is hereby approved, and the appropriate city officials are hereby directed to execute same. Section2. That this resolution shall be in force and take effect immediately upon its passage and adoption. PASSED and ADOPTED this 28th day of _ February 1990. OR COMMISS 0 R ATTEST: ' i CITY CLERK AUDITOR APPROVED AS TO FORM AND CORRECTNESS: FRANK C. ADLER, City Attorney Resolution No. 24-90 I J J CONSENT AND AGREEMENT CONSENT AND AGREEMENT (this "Consent") dated as of February 1, 1990, by and among Reuter Recycling of Florida, Inc. , a Florida corporation (hereinafter the "Corporation") ; the municipali- ties of Dania , Hallandale, Pembroke Pines and Pompano Beach (collectively the "Cities" or individually a "City") , each of which is an existing municipal corporation organized under the laws of the State of Florida; and U S WEST Financial Services, Inc. , as agent for itself and the other lending institutions that become Senior Lenders and Subordinated Lenders (as each such term is defined in Section 1 hereof) . Capitalized terms not otherwise defined herein shall have the meanings given to such terms in that certain Solid Waste Disposal Agreement dated August 19 , 1988 between the Corporation and the Cities , as amended by letter agreement dated February 15, 1989 (together with this Consent and Agreement, the "Waste Disposal Agreement") . RECITALS A. The Corporation and the Cities have entered into the Waste Disposal Agreement. B. Pursuant to the terms and conditions of the Waste Disposal Agreement, the Corporation will construct, own and operate the Facility and each City has agreed, among other things, to deliver or cause to be delivered to the Corporation or its agent at the Point of Delivery, commencing on the Completion Date and continuing there- after during the term of the Waste Disposal Agreement, all of the Acceptable Waste that is generated within its boundaries and col- lected by (or available for collection by) such City or its desig- nated haulers. C. The Corporation intends to finance the Facility with proceeds of loans ( the "Senior Loans " ) made pursuant to a Construction and Senior Term Loan Agreement among the Corporation, each lender that becomes a party thereto (the "Senior Lenders") and U S WEST Financial Services, Inc. , as agent for the Senior Lenders, and proceeds of loans (the "Subordinated Loans" and, together with the Senior Loans , the "Loans") made pursuant to a Subordinated Term Loan Agreement among the Corporation, lenders that become a party thereto (the "Subordinated Lenders" and, toaether with the Senior Lenders, the "Lenders") and U S WEST Financial Services, Inc. , as agent for the Subordinated Lenders (the foregoing loan agreements being herein called the "Loan Agreements" and U S WEST Financial Services, Inc. , in its capacities as agent for the Senior Lenders and the Subordinated Lenders, being herein called the "Agent") . 7812 . 2 . 1175 . 96 : 15 EXHIBIT "A" D. Nothing herein shall be deemed to abrogate or, except to the extent set forth in Sections 2, 3, 4 and 5 hereof, amend the Waste Disposal Agreement. E. The Corporation proposes to enter into an Assignment Agreement (the "Assignment") with the Agent pursuant to the Loan Agreements pursuant to which the Corporation will assign to the Agent, among other things, all of its rights, title and interests in, to and under the Waste Disposal Agreement. F. The Loans will be secured by the Assignment, a mort- gage and security agreement creating a lien on and security interest in the Facility and certain other assets (the "Collateral") and cer- tain other security documents (the "Security Documents") . G. The making of the Loans by the Senior Lenders and the Subordinated Lenders will facilitate performance by the Corporation of its obligations under the Waste Disposal Agreement and accordingly each City is willing to enter into this Consent. H. The Corporation and the Cities desire to hereby restate and clarify certain of the terms and copditions of their respective contractual obligations set forth in the Waste Disposal N Agreement. I . It is a condition to the obligations of the Senior Lenders and the Subordinated Lenders to make Loans under the Loan Agreements that the Corporation and each City shall execute and deliver this Consent. NOW, THEREFORE, in consideration of the benefits to the Corporation and each of the Cities under the Waste Disposal Agreement and other good and valuable consideration, the receipt of which is hereby acknowledged, and intending to be legally bound, the parties c... hereto hereby consent and agree as follows : Section 1. DEFINITIONS. As used in this Agreement and unless otherwise expressly indicated, or unless the context clearly requires otherwise: (a) All the agreements or instnimpntc herein Hofinori ah�ii mean such agreements or instruments as the same may from time to time be supplemented or amended or the terms thereof waived or modified to the extent permitted by, or in accordance with, the provisions thereof and of this Consent. -2- 7812 . 2 . 1175 . Q6 : 15 L (b) The terms "Agent " , "Assignment " , " Cities ,,"Collateral" , "Consent" ' "Corporation" , "Loan Agreements", "Loans""Security Documents", "Senior Lenders", "Senior Loans", "Subordinated Lenders" and "Subordinated Loans" have the meanings assigned to such terms in the preamble and the recitals -to this Consent. hereof. (c) Additional definitions are set forth in Section 4 (a) Section 2 . CONSENT TO ASSIGNMENT; RELATED MATTERS. receipt ofa Consent a copyof the AAssignment and acon consents torthe termswthere- of, including, without limitation, the terms thereof relating to the assignment of the Waste Disposal Agreement and the Capital Cost and Operating Support Agreement between Reuter, Inc. and the Corporation, and each City agrees that the limitations in the Capital Cost and Operating Support Agreement that otherwise limit the Agent ' s or Lender' s ability to enforce the same shall not apply. (b) Cities Rights Not Disturbed If the interest of the Corporation in the Facility shall be acquired by a person (a "Transferee") by reason of foreclosure of the Security Documents or $� other proceedings brought to enforce the rights of the beneficiaries thereof, by deed in lieu of foreclosure, by exercise of power of sale or by any other method, and if the Transferee succeeds to the rights f and obligations of the Corporation under the Waste Disposal t Agreement, Waste and effect and therights of the gCities t t l u thereundershallnot ll forcell be 11 disturbed. The Cities and the Transferee shall be bound under the terms and conditions of the Waste Disposal Agreement for the balance of the term thereof. (c) Lender Liability Waiver Neither the Agent nor the Senior Lenders, nor the Subordinated Lenders, nor any person acting on behalf of any of them, shall be liable for the performance or observance of any of the obligations or duties of the Corporation under the Waste Disposal Agreement, nor shall any assignment of the Waste Disposal Agreement to the Agent or the Senior Lenders or the Subordinated Lenders, or any person acting on behalf of any of them, give rise to any duties or obligations whatsoever on the part of the Aaent or tho - - ur the subordinated Lenders, or any Person acting on behalf of any of them, owing to any City except insofar as the Agent or the Senior Lenders or the Subordinated Lenders, or any person acting on behalf of any of them, exercise any of their rights under the Waste Disposal Agreement or make any claims with respect to any payments, deliveries or other obligations under the Waste Disposal Agreement. -3- 7812 . 2 . 1175 . 06 : 15 l� `� J (d) Notices. Each City will furnish to the Agent at its address at 6300 South Syracuse Way, Suite 700, Englewood, Colorado 80111, Attention: Joe E. Blankenship, with a copy to its counsel, Mudge Rose Guthrie Alexander & Ferdon, at its address at 180 Maiden Lane, New York, New York 10038, Attention: Michael J. Hannigan, con- currently with the delivery thereof to the Corporation, a copy of each notice or demand delivered by such city to the Corporation under the Waste Disposal Agreement. The failure of any City to deliver such a notice to the Agent shall not be deemed a default under the Waste Disposal Agreement. However, no such notice shall be deemed to have been duly given until a copy thereof has been received by the Agent. (e) Termination and Default. (i) Each City agrees that, notwithstanding any right it may have under the Waste Disposal Agreement, it shall not termi- nate the Waste Disposal Agreement unless it shall have given the Agent at least 60 days ' prior written notice of its intent to termi- nate the Waste Disposal Agreement and the Agent shall not have cured the condition giving rise to such right of termination within such time period. ?`. (ii) If a default under the Waste Disposal Agreement is of a non-monetary nature (i . e. not susceptible of being cured by advancement of money) and is not reasonably susceptible of being cured within such 60-day period, a longer period to effect a cure shall, and hereby is, granted so long as the Agent or the Lenders shall proceed with reasonable diligence to cure such non-monetary default, provided that such longer period shall in no event exceed one year without the further consent of the Cities (which consent shall not be unreasonably withheld) . In addition, if such a default is not susceptible of being cured by the Agent or the Lenders until the Agent, the Lenders or a Transferee has possession of the Collateral, each City agrees that it will not take any action to ter- minate the Waste Disposal Agreement as a result of such default pro- vided that the Agent or the Lenders are diligently pursuing foreclo- sure proceedings or other remedies under the Security Documents (such proceedings to have commenced within 60 days) ; provided however, that the Cities shall not be required to delay termination of the Waste Disposal Agreement for such reason for more than one year with- <„* (which consent shall not be unreasonably Out withheld) . Neither the Agent nor the Lenders shall be deemed to have failed to proceed with due diligence if any attempt to cure, in the opinion of their counsel , might be prohibited or precluded under applicable provisions of the Federal Bankruptcy Code (or any succes- sor statute) or pursuant to a valid order or decree of a court of competent jurisdiction. -4- 7812 . 2 . 1175. 96 : 15 Notwithstanding the foregoing, following an Event of Default by the Corporation under the Waste Disposal Agreement (giving effect to applicable grace periods) , the Cities may, by written notice to the Corporation and the Agent, exercise such termination rights as they may have under the Waste Disposal Agreement if the circumstance described in either (A) or (B) below shall occur and be continuing: (A) Acceptable Waste shall accumulate at the Facility or in the Cities due to the failure of the Corporation or the Agent to accept such Waste at the Facility or Transfer Station and the inability of the Cities ' haulers to dispose of such Waste at alternate dis- posal sites identified by the Corporation in accordance with Section 3 . 3 of the Waste Disposal Agreement, so as to cause a health hazard and such health hazard is not removed within ten days after notice thereof is given to the Corporation and the Agent; or (B) Acceptable Waste shall not be accepted at the Facility as a result of which the Cities are required to pay tipping fees at alternative disposal sites which exceed (such excess being herein called the "tipping fee differential") the Tipping Fees that would have been pay- able under the Waste Disposal Agreement had such Acceptable Waste been accepted at the Facility; provided, however, that termination in this circumstance shall take effect only if the Cities shall make a written request to the Corporation and the Agent for reimbursement of the tipping fee differential and neither the Corporation nor the Agent shall make such reimbursement within five business days of receipt of such request; and provided further, that such requests shall be made no more often than monthly. (iv) Neither the Agent nor the Lenders shall be required to continue to proceed to obtain possession, or to continue in possession , of the Collateral pursuant to the foregoing subparagraph (ii) , if and when such default shall be cured. Except as described in Section 2 (c) , the Cities agree that should a Transferee acquire title to the Collateral , the Cities shall waive any default under the Waste Disposal Agreement as against the TrangfPYPp t-ho �ncnf- nv fhe Tenri r.vn ♦l.�♦ --I -- "'--'- �' _••- •�9�••`� �� �••�- •-�-.. .c a.� usu., v�.�.ua.icu prier l.V 1.11C UdCe of such acquisition which is incapable of being cured by the payment or advance of money to the Cities or in connection with the Collateral, including but not limited to, the bankruptcy, reorganiza- tion or insolvency of, or the assignment for the benefit of creditors by, the Corporation, provided that nothing herein shall excuse the Transferee from otherwise complying with all terms and conditions of the Waste Disposal Agreement. -5- 7812 . 2 . 1175. p6 : 15 (v) The Lenders may assign their rights and inter- ests and the rights and interests of the Corporation under the Waste Disposal Agreement to any purchaser or transferee of any Collateral, if such purchaser or transferee shall assume the obligations of the Corporation under the Waste Disposal Agreement and if each City shall have reasonably determined that such purchaser or transferee is a financially 'responsible person experienced in the operation of solid waste processing facilities. The Lenders shall give advance written notice to each City of any such assignment and of the proposed pur- chaser or transferee and each City shall be deemed to have made the foregoing determination unless it :;hall have reasonably objected to the proposed purchaser or transferee within 30 days of receipt of such notice, any such objection to be because the proposed purchaser or transferee is not a financially responsible person experienced in the operation of solid waste processing facilities. A person shall be deemed to be financially responsible for purposes of this para- graph if (A) it has an "investment grade" rating from a nationally recognized credit rating institution or (B) it has a consolidated net worth of at least $12 , 000, 000 or (C) it has the benefit of a guaran- tee of its obligations under the Waste Disposal Agreement by a person meeting the requirements of the foregoing clause (A) or (B) . Each City shall be bound by any such assignment and assumption. Upon such assignment and assumption, the Lenders shall be relieved of all obli- gations arising under the Waste Disposal Agreement. (vi) In the event that the Waste Disposal Agreement is rejected by a trustee or debtor-in-possession in any bankruptcy or insolvency proceeding or terminates prior to the date it would other- wise expire, for any reason other than with the consent of the Agent, and if , within 90 days after such rejection or termination, the Lenders or their designee(s) shall so request, each City will execute and deliver to the Lenders or such designee(s) , a new waste disposal agreement on substantially the terms provided in the Waste Disposal Agreement and this Consent, which shall be for the balance of the remaining term under the original Waste Disposal Agreement (except for any requirements which have been fulfilled by the Corporation prior to such rejection or termination) . References in this Consent - and Agreement to any "Waste Disposal Agreement" shall be deemed also to refer to such new waste disposal agreement. (vii) Foreclosure of any Security Document, or any _d_•• by t ., a.....,� .. env TcnAar whothPr by ludlclal oro- Shcd 111CL e1111U C1 by ..++c r+y cu.. ..r ..•v -.-••---- . ' --- ----- ceeding or any power of sale, or any conveyance from the Corporation in lieu thereof, shall not require the consent of any City or consti- tute a breach of the Waste Disposal Agreement. Notwithstanding any other provision of the Waste Disposal Agreement, no such foreclosure, sale or conveyance shall be subject to the provisions of Section 9.4 of the Waste Disposal Agreement. Upon such foreclosure, sale or conveyance, each City (A) shall recognize the Lenders or their -6- 7812 . 2 . 1175 . 06 : 15 transferee, as the case may be, as the party to the Waste Disposal Agreement and (B) agrees that the Lenders or their transferee, as the case may be, shall have no obligation to provide indemnity under Section 5 . 2 of the Waste Disposal Agreement in respect of matters arising before such foreclosure, sale or conveyance, each City hereby agreeing to look solely to the Corporation. Section 3. COVENANTS. Each City covenants and agrees that, so long as the Waste Disposal Agreement is in effect, it shall perform and comply with the following covenants: (a) Lecral Opinions. Each City shall request its counsel to deliver to the Agent, concurrently with the making of the first Loan, an opinion of such counsel addressed to the Agent and the Lenders substantially in the form attached hereto as Exhibit A. (b) Additional Tipping Costs Any tipping fees and/or landfill surcharges paid by the Corporation in excess of $30.00 per ton in connection with the Corporation's disposal of the residue from its operations shall be paid by the Cities with respect to an amount of waste equal to fifteen percent (15%) of the total tonnage of Acceptable Waste accepted by the Corporation from the Cities and/or 3 their designated haulers in accordance with the terms of Section 2 . 3 (c) (4) of the Waste Disposal Agreement. Such costs shall be charged to the Cities and their designated haulers by immediately (to the extent consistent with applicable law and the Waste Disposal Agreement) increasing the Tipping Fee in respect of each and every ton of Acceptable Waste delivered to the Corporation in an amount equal to the product of (A) one hundred percent (100%) of any land- fill tipping fees and/or surcharges (including without limitation, surcharges by way of toll, tax or other levy) in excess of $30.00 per ton and (B) fifteen percent ( 15%) . (c) The parties acknowledge and agree that no Unforeseen Circumstance shall affect the obligation of any party to the Waste Disposal Agreement to make timely payment of any amount due and owing pursuant to the terms of the Waste Disposal Agreement. (d) The Cities acknowledge and agree that (i) the provi- sions of Section 9. 4 of the Waste Disposal Agreement under which the r« , -- =-1� •=u= ceLtaiii rights with respect to the purchase of the Facility in the event the Corporation desires to sell the Facility are subordinate to the provisions of the Loan Agreements and the Security Documents and (ii) any purchase of the Facility by the Cities pursuant to Section 9.4 of the Waste Disposal Agreement would be subject to (A) satisfaction and release of the liens and security interests created by the Security Documents or (B) , upon consent of -7- 7812 . 2 . 1175 . 06 : 15 the Agent (which shall not be unreasonably withheld or delayed) , assumption by the Cities of the obligations of the Corporation under the Loan Agreements . (e) If so directed by the Agent upon an Event of Default by the Corporation under either Loan Agreement, the Tipping Fee and other amounts required to be paid by the Cities and their designated haulers pursuant to the Waste Disposal Agreement shall, to the extent payable under the Waste Disposal Agreement, be paid directly by such parties to a depositary or other fiduciary for application in accor- dance with the Loan Agreements and Security Documents. (f) For all purposes of the Waste Disposal Agreement, Waste that is diverted to disposal sites other than the Facility shall be deemed to have been accepted by the Corporation if the Corporation pays the costs of disposing of such Waste at the alter- nate disposal site. Section 4 . ADDITIONAL PROVISIONS (a) The following definitions are hereby added to Section 1 . 1 of the Waste Disposal Agreement: Designated hauler, with respect to any City, shall mean any hauler of Waste authorized to collect Waste within the boundaries of such City. Flow Control Ordinance, with respect to any City, shall mean the ordinance adopted or to be adopted by the governing body of such City requiring that all Acceptable Waste collected within the boundaries of such City be delivered to the Corporation or its agent for disposal in accordance with the Waste Disposal Agreement. Pro Rata Share of a City shall mean (a) through the first full Fiscal Year following the Completion Date, the percentage set forth opposite such City ' s name below: Dania 6. 5% Hallandale 19 . 6% Pembroke Pines 31 . 4% Pompano Beach 42 . 5% and (b) during each Fiscal Year thereafter, a percentage determined by dividing the tonnage of Acceptable Waste delivered by such City to the Facility during the next preceding Fiscal Year by the aggregate tonnage of Acceptable Waste delivered by all the Cities to the -8- 7812 .2 . 1175 . 06 : 15 Facility during such preceding Fiscal Year, and multiplying the result by 100 . (b) The third and fourth sentences of Section 2 . 1 .a are hereby restated to read as follows: In addition to the foregoing, each City agrees that in all events it shall deliver or cause to be delivered to the Corporation during each Fiscal Year its Pro Rata Share of the Minimum Guaranteed Tonnage. The obligation of each City to deliver or cause to be delivered its Pro Rata Share of the Minimum Guaranteed Tonnage shall not be excused for any reason, including the occurrence of an Unforeseen Circumstance affecting one or more of the Cities or their haulers, and shall be prorated during any partial Fiscal Year during the term of this Agreement (and after the Completion Date) based on the number of full months in such Fiscal Year during which the Corporation ' s Facility is operational . (c) Section 2 . 1 .b is hereby restated to read as follows: b. If any City fails to deliver or cause to be deliv- ered its Pro Rata Share of the Minimum Guaranteed Tonnage in any Fiscal Year, such City shall pay to the Corporation an amount equal to the Tipping Fee described in Section 2.3 that is in effect at the end of the Fiscal Year in question for those tons of its Pro Rata Share of the Minimum Guaranteed Tonnage that are not delivered. Such amount shall be payable within 30 days after the end of each Fiscal Year. Each City 's commitment to pay for its Pro Rata Share of the Minimum Guaranteed Tonnage shall in no way be deemed to limit its obligation to deliver or cause to be delivered all of the Acceptable Waste generated within its boundaries and collected by (or available for collection by) the Cities or their designated haulers . For purposes of this Section 2 . 1.b. only, (a) all Processable Waste delivered to the Corporation during a ----- a iJC 1.1 CdllCli tuwdru the minimum Guaranteed Tonnage in calculating the amount of any City's shortfall except that the first 8, 000 tons of Waste generated and delivered to the Corporation by Broward County or its des- ignated haulers each Fiscal Year shall not be so credited; and (b) if , after giving effect to any such credit, it shall be determined that the tons of Acceptable Waste -9- 7812 . 2 . 1175. 06 : 15 delivered by any one or more Cities exceeded its or their respective Pro Rata Shares of the Minimum Guaranteed Tonnage ( such excess of a City being herein called its "Excess Tonnage") and that one or more other Cities failed to deliver its or their respective Pro Rate Shares of the Minimum Guaranteed Tonnage (such deficiency of a City being herein called its "Deficiency Tonnage") , then the aggregate Excess Tonnage of all Cities shall be credited against the Deficiency Tonnages in proportion to the Pro Rata Shares of the Cities that had Deficiency Tonnages . The Excess Tonnage to be so credited against a City ' s Deficiency Tonnage shall be limited to the amount of such City ' s Deficiency Tonnage, with any balance to be credited against other Cities ' Deficiency Tonnages in accordance with the foregoing . (e) A new Section 2 . 5 is hereby added to the Waste Disposal Agreement as follows: Section 2 . 5 . Rate Covenant ; Flow Control Ordinances Negative Pledge . Each City covenants that it will fix, charge and collect fees and assessments for its solid waste services which, together with all other funds legally available therefor, other than ad-valorem tax revenues, will be sufficient to provide for the payment when due of all amounts payable by it hereunder and all other amounts payable from such fees and assessments. Each City that has not adopted its Flow Control Ordinance agrees to adopt it. Each City agrees that during the term of the Waste Disposal Agreement it will not amend or repeal its Flow Control Ordinance and will take all reasonable actions available to it to enforce the terms thereof. Each City agrees that ..F during the term of the Waste Disposal Agreement it will not create or permit to exist any pledge, lien, security inter- est or other encumbrance upon all or any portion of the revenues derived from the fees and assessments for its solid waste services except that any City may make a sec- ondary pledge of the revenues of its solid waste system to secure indebtedness of such city. For this purpose, a pledge of the revenues of a city' s solid waste system to secure indebtedness shali be deemed to be d "secondary pledge only if moneys of such City other than the revenues of the solid waste system are legally available to be used to pay such indebtedness, such moneys will be used for such purpose prior to using the revenues of the solid waste system for such purpose and such moneys are reasonably projected by the City to be sufficient to pay such indebtedness, without resorting to the revenues of the -10- 7812 . 2 . 1175. 06: 15 solid waste system. Nothing herein shall preclude any City from making payments to its designated haulers for waste collection services. (f) A new Section 2 . 6 is hereby added to the Waste Disposal Agreement to read as follows : Section 2 . 6. Not a General Indebtedness. The obliga- tions of each City pursuant to this Waste Disposal Agreement will not constitute a general indebtedness of such City within the meaning of any constitutional or stat- utory provision or limitation and no City is obligated to levy any ad-valorem taxes for the payment thereof. Neither the full faith and credit nor the taxing power of any City, the State of Florida or any political subdivision thereof is pledged to such payment. Each City agrees that its obligations hereunder are payable from the revenues from its solid waste system and other legally available funds, other than ad-valorem tax revenues. (g) Notwithstanding Section 2 . 1 . a of the Wasted Disposal Agreement, the City of Dania shall not be required to deliver or cause to be delivered to the Corporation or its agent at the Point of Delivery any Acceptable Waste that is generated and collected within any territory that becomes a part of such City after the date hereof through annexation, provided that such annexation is contemplated on the date hereof. (h) Nothing herein shall preclude any City from institut- ing a newspaper recyling program which, in accordance with Section 2 . 1. c of the Waste Disposal Agreement, diverts newspapers from the Waste stream that would otherwise be delivered to the Corporation. Section 5. WAIVERS Article VIII of the Waste Disposal Agreement provides that the Waste Disposal Agreement is contingent upon the Corporation ' s satisfaction of certain conditions, including, among others, (i) the acquisition of a site for the Facility, (ii) the receipt of required licenses, permits, and approvals, (iii) the Corporation's receipt of financing and (iv) the execution of a contract for a transfer station facility. Notwithstanding any provisions in the Waste Disposal Agreement to the contrary, the Cities hereby waive any failure to satisfy the conditions precedent in Article v11I (b) , (cj , (dj and (e) of the Waste Disposal Agreement and any right to terminate the Waste Disposal Agreement on the basis of any failure to satisfy such conditions ; provided , that this waiver is conditioned on the following: -11- 7812 . 2 . 1175. 06 : 15 1� (a) the Corporation shall have executed the Loan Agreements with the Lenders on or before March 31, 1990 ; and (b) the Corporation shall have received a permit to con- struct the Facility from the Florida Department of Environmental Regulation on or before December 1 , 1990 . Should the Corporation fail to satisfy the conditions set forth in clauses (a) and (b) above within the respective timeframes specified above, each City shall have the right to withdraw this waiver upon thirty (30) days written notice to the Corporation and such withdrawal shall become effective on the expiration of such notice period unless the Corporation satisfies such conditions by the expiration of such period and notifies the Cities of same. Section 6. OBLIGATIONS ABSOLUTE AND UNCONDITIONAL The Consent is absolute and unconditional , and no party hereto has any right, nor shall have any right, to terminate this Consent or to be released, relieved or discharged from this Consent (except as provided by law) so long as the Waste Disposal Agreement is in effect. Section 7 . REPRESENTATIONS AND WARRANTIES OF CITIES Each of the Cities hereby reconfirms as of the date hereof all representations and warranties made by it in the Waste Disposal Agreement and makes the following representations and warranties on the date hereof: (a) Organization of City. The City is a duly organized municipal corporation validly existing under the laws of the State of the Florida, and has all requisite power and authority to enter into - the Waste Disposal Agreement, to adopt the Flow Control Ordinance and to carry out the transactions contemplated thereby. (b) Authorization. The Flow Control Ordinance of the City has been duly adopted by the City and is in full force and effect or, prior to the making of the first loan under the Loan Agreements, will have been duly adopted by the City and be in full force and effect. The execution, delivery and performance by the City of the Waste Disposal Agreement have been duly authu lLed Zs cne cr mo -_--- tions or ordinances adopted at duly called meetings of the governing body of the City by the requisite vote of its members. (c) Execution Delivery ; Binding Agreements . The requi- site , authorized officers of the City have duly executed and delivered the Waste Disposal Agreement, and the Waste Disposal -12- 7812 .2 . 1175. 06: 15 Agreement is a legal , valid and binding obligation of the City enforceable against the City in accordance with its terms. (d) Litigation. There is no action, suit, inquiry, inves- tigation or proceeding, at law or in equity, before or by any court, public board or body pending or, to the City's knowledge, threatened against or involving .the City wherein an unfavorable decision, ruling or finding would adversely affect the validity or enforceability of the Waste Disposal Agreement or the performance by the City of its obligations thereunder. (e) Authority for Solid Waste Services . T h e City is duly authorized to collect solid waste within Brcward County; no approval of the State of Florida or other federal, state, regional or local governmental bodies is required to be obtained by the City for the collection of the solid waste collected by it or its designated haulers, except such approvals, if any, as have been obtained and are in full force and effect; pursuant to its Flow Control Ordinance, the City has, or will have upon the adoption of such Flow Control Ordinance, all requisite power and authority to deliver or cause to be delivered to the Corporation all Acceptable Waste (as defined in the Waste Disposal Agreement) collected within its territorial bound- aries in accordance with the terms of the Waste Disposal Agreement; and the City will take all reasonable actions available to it to enforce the terms of the Flow Control ordinance and is not a party to any agreement with any designated hauler under which such designated hauler has been granted the right to deliver Acceptable Waste to a disposal site other than the Facility. No representation is made with respect to whether the City ' s designated haulers have obtained any governmental approvals that may be necessary for their solid waste collection activities. (f) Solid waste Charges. The City has all requisite power and authority to fix, charge and collect fees and assessments for the solid waste collection and disposal services provided by the City or its designated haulers and to make payments due pursuant to the Waste Disposal Agreement from the revenues derived from such ser- vices or other legally available funds, other than ad-valorem tax revenues. Such fees and assessments may be revised by action of the governing body of the City without the approval of any other govern- mental body. The City maintains a separate account with respect to its solid waste system under applicable law and regulations . The Citv has not created . and there does not Pxist . anv n1PdnP . liPn security interest or other encumbrance upon any portion of the reve- nues derived from the fees and assessments charged for solid waste services, it being understood that the City may make a secondary pledge of such revenues to secure indebtedness in accordance with Section 4 (e) hereof and that the City may use such revenues to make payments to its designated haulers for waste collection services. -13- 7812 . 2 . 1175 . 96: 15 L� (g) Compliance with other Instruments , etc. The execu- tion and delivery of the Waste Disposal Agreement, the consummation of the transactions contemplated thereby, and the fulfillment of the terms and conditions thereof do not and will not conflict with, vio- late or result in a breach of or default under any of the terms or conditions of the charter, ordinances or resolutions of the City, or of any agreement or other instrument to which the City is now a party, and do not and will not conflict with, violate or result in a breach of any provisions of the Constitution or any statute of the State of Florida or other existing law, rule or regulation, judgment, court order or consent decree to which the City is subject or result in the creation or imposition of any liens, charges or encumbrances of any nature upon any of the property or assets of the City contrary to the terms of any instrument or agreement. (h) Government Consent. No consent, approval , order or authorization of, or registration, declaration or filing with, .or giving of notice to, obtaining of any license or permit from, or taking of any other action with respect to, any Federal, state, county or local government or public body, authority or agency is required in connection with the valid authorization, execution, delivery and performance by the City of the Waste Disposal Agreement, other than the approval of the city Commission which has already been duly obtained. Section S. MISCELLANEOUS (a) Amendments , Waiver. The Waste Disposal Agreement, including this Consent, shall not be terminated, amended, supple- mented, waived or modified except by an instrument in writing duly signed by the parties thereto and with the prior written consent of the Agent. (b) Severability of Provisions. In case any one or more of the provisions contained in this Consent shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Consent, but this Consent shall be construed as if such invalid, illegal or unenforceable provision had never been con- tained herein. (c) Governing Law. This Consent shall be governed by and ; ,, >nnn rrl>nr`P with the laws of the State of Florida and shall jbey binding-on, and inure to the benefit of, the Corporation, the Cities and the Agent and their successors and assigns. -14- 7812 . 2 . 1175 . 06 : 15 -1 (d) Further Assurances . The Corporation and the Cities hereby agree to execute and deliver all such instruments and take all such action as may be necessary to effectuate fully the purposes of this Consent. (e) Ratification , Etc. The Waste Disposal Agreement is hereby ratified and confirmed in all respects, and all terms, condi- tions and provisions of the Waste Disposal Agreement, as amended, clarified and consented to herein, shall be in full force and effect. In the event of a conflict between the terms, conditions and provisions of the waste Disposal Agreement and this Consent, the terms , conditions and provisions of this Consent shall control . (f) No Defaults. The Cities and the Corporation each rep- resents that no default on its part or, to the best of its knowledge, on the part of any other party to the Waste Disposal Agreement exists thereunder. (g) Counterparts . This Consent may be executed in any number of counterparts, each of which when so executed and delivered shall be deemed an original, but all such counterparts together shall constitute but one and the same instrument. REUTER RECYCLING OF FLORIDA, INC. 4 By: Its: CITY OF DANIA .�,...AY By: By: Its: City Manager Its: Mayor Approved as to form and Attest: correctness City Clerk City Attorney -15- 7812 . 2 . 1175 . 06 : 15 J CITY OF HALLANDALE By: Its : City Manager i Approved as to form and Attest: execution City Clerk i City Attorney CITY OF PEMBROKE PINES By: Its: Mayor By: Its: City Manager By: Its: Finance Director Approved as to form and Attest: execution City Clerk City Attorney -16- 7812 . 2 . 1175 . 06 : 15 J CITY OF POMPANO BEACH By: Its : Mayor By: Its : City Manager Approved as to form and Attest correctness City Clerk City Attorney U S WEST Financial Services, Inc. By: Its: ti. -17- 7812 . 2 - 1175 . 06 : 15