HomeMy WebLinkAboutR-1997-080 CITY OF DANIA, FLORIDA
j RESOLUTION NO. 80-97
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A RESOLUTION OF THE CITY OF DANIA, FLORIDA,
RELATING TO AN AGREEMENT WITH REUTER
RECYCLING OF FLORIDA, INC. INVOLVING THE
DEVELOPMENT AND OPERATION OF A RESOURCE
RECOVERY AND COMPOST FACILITY AND THE
PROCESSING OF SOLID WASTE GENERATED WITHIN
DANIA AND OTHER PARTICIPATING MUNICIPALITIES;
DIRECTING AND AUTHORIZING THE CITY MANAGER TO
INVESTIGATE AND EVALUATE THE STATUS OF THE
AGREEMENT AND PERFORMANCE OF REUTER
RECYCLING OF FLORIDA, INC.; DIRECTING AND
AUTHORIZING THE CITY MANAGER TO ENGAGE LEGAL
COUNSEL AND EXPERT ASSISTANCE TO PREPARE AND
NEGOTIATE A MODIFICATION TO THE AGREEMENT
WHICH ADDRESSES THE CONSEQUENCES OF
APPARENT FAILED TECHNOLOGY, THE CITY'S
CONCERNS RELATIVE TO FAILURE OF PERFORMANCE
OR UNDOCUMENTED CHARGES, AUTHORIZES AND
CLARIFIES THE CITY'S ABILITY TO REDUCE ITS WASTE
STREAM THROUGH INDEPENDENT RECYCLING
EFFORTS, AND PROVIDES FOR A REVISED RATE
STRUCTURE FOR THE DISPOSAL OF SOLID WASTE FOR
THE REMAINING TERM OF THE AGREEMENT;
DIRECTING AND AUTHORIZING THE CITY MANAGER TO
DEVELOP AN ALTERNATIVE STRATEGY AND
LITIGATION PLAN FOR ENFORCEMENT OF THE
AGREEMENT IN THE EVENT THE NEGOTIATED
SETTLEMENT CANNOT BE ACHIEVED WITHIN 120 DAYS;
AND PROVIDING AN EFFECTIVE DATE.
WHEREAS, the City of Dania, together with the municipalities of Hallandale,
Pembroke Pines and Pompano Beach, entered into an agreement with Reuter Recycling
of Florida, Inc., a Florida corporation, on or about August 1988, with said agreement
being extended by Letter Agreement dated February 15, 1989, and modified by a
Consent Agreement dated February 1, 1990, which added U S WEST Financial Services,
Inc., a Colorado corporation (the "Reuter Agreement"), which addresses the development
and operation of a resource recovery and compost facility and the processing of solid
waste generated within Dania and the other participating municipalities.
WHEREAS, apparently after litigation between Reuter Recycling of Florida, Inc.,
U S WEST Financial Services, Inc., Waste Management of Florida, Inc., and Chambers
Waste Systems of Florida, Inc., the parties to the litigation entered into a settlement,
which has not been made available to any of the municipalities participating in the
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Reuter Agreement, resulting in Waste Management of Florida, Inc. or an affiliated entity,
acquiring all of the shares of Reuter Recycling of Florida, Inc., purchasing and canceling
the "Adjustable Tender Solid Waste Industrial Development Revenue Bonds, Series 1993
(Reuter Recycling of Florida, Inc. Project)" in the initial aggregate principal amount of
$25,000,000 (the "Bonds").
WHEREAS, the City has not received the benefit of the bargain by having its solid
waste composted and recycled, but it is charged a premium disposal fee for a service
it does not receive.
WHEREAS, the City is unsure of the status of the Reuter Agreement, the
performance of Reuter Recycling of Florida, Inc. or its successors in interest thereunder,
and is desirous of a clarification of responsibilities and obligations under the Reuter
Agreement in light of the apparent failed composting technology which was at the heart
of the agreement and the issuance of the Bonds.
WHEREAS, the City desires the opportunity to fulfill its public and statutory
obligation to provide for the cost effective and environmentally safe processing, recycling
and disposal of solid waste generated within the City.
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NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF DANIA, FLORIDA:
SECTION 1. AUTHORITY. This Resolution is adopted pursuant to the provisions
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of sections 166.021 and 166.041, Florida Statutes, and other applicable provisions of
law.
SECTION 2. INVESTIGATION AND MODIFICATION OF REUTER AGREEMENT.
(A) The City Manager is hereby directed and authorized to investigate and
determine the status of the Reuter Agreement, performance thereunder, and identify,
where possible, any material modifications or change in position or ownership of the
parties thereto. The City Manager is also directed and authorized to arrange to meet
with the parties to the Reuter Agreement, and to propose a written modification to the
Reuter Agreement which includes, but is not limited to, (1) the elimination of residual
fees or charges relating to composting, (2) the clarification and adjustment or elimination
of any "put or pay" provisions, (3) the clarification and authorization of the City's ability
to independently reduce its solid waste stream through recycling efforts at the City's sole
expense and option, (4) the development of a reasonable rate structure for the disposal
of solid waste for the remaining term of the Reuter Agreement, and (5) the consideration
of any past overcharges or undocumented fees and charges imposed or collected by
Reuter Recycling of Florida, Inc. Such activities are expected to be undertaken and
substantially completed within 120 days of the effective date of this Resolution.
(B) Any modification of the Reuter Agreement shall be in writing and subject
to the prior approval and adoption by the City Commission.
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(C) The City Manager is directed and authorized to employ the use of Earl G.
Gallop & Associates, P.A., and Nabors, Giblin & Nickerson, P.A., to assist in the
negotiation and development of a modification to the Reuter Agreement pursuant to the
correspondence from Nabors, Giblin & Nickerson, P.A., and Earl G. Gallop & Associates,
P.A., dated May 19, 1997 and May 20, 1997, which are attached hereto and
incorporated herein by reference.
SECTION 3. DEVELOPMENT OF ENFORCEMENT STRATEGY AND
LITIGATION PLAN. Concurrently with the development of a negotiated clarification and
modification of the Reuter Agreement, the City Manager is directed and authorized to
prepare an alternative strategy to enforce or to terminate the Reuter Agreement and a
litigation plan and budget for such purposes. Any such documentation associated
therewith shall be prepared by or at the direction of counsel to the City with the
assistance of the City Manager in anticipation of litigation or other adverse proceedings.
SECTION 4. EFFECTIVE DATE. This Resolution shall take effect immediately
upon its passage and adoption.
PASSED, ADOPTED AND APPROVED THIS 27 day of May 1997.
i' —
MAYOR-CO ISSIONER
ATTEST:
APPROVED AS TO FORM AND CORRECTNESS :
By:Frank C. Adler, City Attorney
CITY CLE -AUDITOR ��
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RESOLUTION NO. 80-97
APPENDIX A
SPECIAL COUNSEL ENGAGEMENT
05/21/97 USED 10:46 FAX L V
EARL G. GALLOP & ASSOCIATES, P.A.
2601 S. Bayshore Drive, Suite 1600
�I Coconut Grove, Florida 33133
Parl G. Gallop
Telephone(305)860-7229
Teresa 1. Urda Facsimile (305)6584777
May 20, 1997
Michael Smith, City Manager
l City of Dania
P.O. Box 1708
Dania, FL 33004
Re: Proposed Concurrent Engagement with Nabors, Giblin & Nickerson, P.A.
Concerning Reuter recycling of Florida, Inc. Agreement
Dear Mike:
1 am pleased to acknowledge that I have worked with Mark Lawson of Nabors, Giblin
&Nickerson, P.A., to jointly develop a proposed engagement to assist the City of Dania in
addressing its agreement with Reuter Recycling of Florida, Inc. 1 concur with the terms of
the engagement articulated in the correspondence from Mark to you dated May 19, 1997 and
look forward to working with the City and Nabors, Giblin & Nickerson, P.A., on this
important project.
Very truly yours,
Earl G. Gallop
EGG/sgs
cc: Frank C. Adler, Esq.
Mark G. Lawson, Esq.
c.UWJL5S0ANJAVSNIIiHs.7R
NABORS, GIBLIN & NICKERSON, P.A.
ATTORNEYS AT LAW
BARNETT BANK BUILDING SUITE BOO
315 SOUTH CALHOUN STREET
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TALLAHASSEE. FLORIDA 32301
SARAH M. BLEAKLEY TELEPHONE 19041224 4090
WARREN S. BLOOM TELECOPY 19041 224 4093 THE POINTE. SUITE 1060
HARRY F. CHILES 2502 ROCKY POINT DRIVE
MAUREEN MCCARTHY DAUGHTON TAMPA. FLORIDA 33607
VIRGINIA SAUNDERS DELEGAL 16131 28, 2222
L. THOMAS GIBLIN
lE LECO PY 1B13� 261-0129
MARK G. LAWSON
AMY E LETTELLEIR SIGNATURE PLAZA. SUITE 1060
STEVEN E. MILLER
20150UTH ORANGE AVENUE
MARK T. MUSTIAN ORLANDO. FLORIDA 32801
ROBERT L, NABORS
GEORGE H. NICKERSOW JR. 14DT,426 T595
$TEN T. SLIGER TELECOPY 14O71426-8022
JOSEPH B. STANTON
GREGORY T. STEWART May 19, 1997
JOHN R. STOKES WILLIAM J. ROBERTS
WILLIAM D. TYLER OF COUNSEL
MICHAAN E.
WILSON E L. WATKINS VIA FEDERAL EXPRESS
JEAN
Michael Smith
City Manager
City of Dania
100 West Dania Beach Blvd.
Dania, Florida 33004
Re: Agreement with Reuter Recycling of Florida, Inc.
Dear Mike:
This correspondence has been jointly developed by Earl G. Gallop & Associates,
P.A., and Nabors, Giblin & Nickerson, P.A. In that you initially sought the independent
evaluation of both Earl G. Gallop & Associates, P.A., and Nabors, Giblin & Nickerson,
P.A., concerning the Reuter Agreement, received substantially similar responses and
have continued to collectively address this issue with both firms, we are providing you
a joint engagement letter for the purposes of assisting you with the investigation and
negotiation of a written modification aimed at settling disputes, claims or uncertainties
relating to the operator's performance under the Reuter Agreement.
At your suggestion, we are providing you with an estimate of the professional fees
and costs to assist you in investigating the situation, preparing a proposed modification
to the agreement, meeting with representatives of the apparent owners of all the shares
of Reuter Recycling of Florida, Inc. -- Waste Management, Inc., and alternatively,
presenting and explaining a negotiated modification to the City Commission, or
developing an enforcement strategy which involves a litigation plan and budget for
presentation to the City Commission in the event negotiations prove unsatisfactory. It
is our expectation that this phase of our engagement should be accomplished within a
90 to 120 day period.
An agreement for a presentation to the operator (or other affected parties) should
„� be available for your review and discussions with the operator within 45 days of your
Michael Smith
May 19, 1997
Page 2
notice to proceed. Obviously, the expedience and effectiveness of the development of
any agreement and subsequent negotiations also substantially depend upon the
cooperation and willingness of the operator to take part in a serious, amicable, and
responsive dialog on this issue.
Although a lump sum arrangement has merit in this circumstance, we are pleased
to offer our legal services on an hourly basis with an estimate not to exceed $45,000,
with the understanding that the City will allow our firms to recover any documented time
and actual costs we have expended on this issue prior to formal engagement.
In addition to the professional fees which would be billed at our standard hourly
rates, our firms will seek reimbursement for actual costs incurred, including by way of
i example and not limitation, photocopies, long distance telephone charges, overnight
delivery services, and travel expenses. Any travel expenses shall be in accordance with
Section 112.061, Florida Statutes. In the event we would need solid waste related
consulting expertise, we would propose to use David M. Griffith & Associates, Ltd.
("DMG"). We would only employ the use of DMG's experts with your prior approval and
incorporate the actual cost of same on a subsequent invoice. Exclusive of any costs
associated with DMG, we do not expect costs under this engagement to exceed 5% of
the estimated professional fees.
Any billing to the City under this engagement would be under a single cover letter
with professional fee invoices from our firms for concurrent periods. We will make every
effort to coordinate our billing and in no event will we collectively exceed the estimated
professional fee cap without first receiving your authorization and direction to do so.
Sincerely,
Mark G. Lawson
MGL:sib
Enclosures
cc: Frank C. Adler
Earl G. Gallop
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