HomeMy WebLinkAbout1991-14 Reuter Contract Replaced by Ordinance 1992-19
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RESOLUTION NO. lr--1.f
A RESOLUTION OF THE CITY COMMISSION OF THE
CITY OF PARKLAND ADOPTING AND APPROVING A
CONTRACT WITH REUTER RECYCLING OF FLORIDA,
INC. FOR THE DISPOSAL OF SOLID WASTE IN THE
CITY OF PARKLAND, CONTAINING A SEVERABILITY
CLAUSE, CONTAINING AN EFFECTIVE DATE
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WHEREAS, the City Commission of
studied alternatives available for
generated in the City of Parkland; and
WHEREAS, the City of Parkland is also
responsibility to attempt to recycle the solid
wi~hin the City of Parkland; and
the City
disposal
of
of
Parkland has
solid waste
aware of its
waste generated
WHEREAS, the City of Parkland believes that the Reuter
Recycling of Florida, Inc. contract attached hereto provides the
best and most environmentally sensitive, and cost effective method
for the disposal of the City's solid waste and for recycling as
much of that solid waste as possible; and
WHEREAS, the City of Parkland believes that participation in
the Broward County Resource Recovery Facility being constructed by
Broward County would not be the most cost effective alternative
for the City of Parkland; and
WHEREAS, the City of Parkland City Commission finds and
declares that the participation by the City of Parkland in the
Reuter Recycling of Florida, Inc. recycling facility as
contemplated in the attached contract would not have any
materially adverse impact upon the financial viability or
operating capability Broward County Resource Recovery program or
the ability of Broward County to function and operate its Resource
Recovery or payoff the bonds thereon; and,
Whereas, the City's participation in the Reuter Recycling
facilities will not result in significantly increased solid waste
costs to the remaining persons residing in the county but not
served by the Reuter Recycling facility;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF PARKLAND, AS FOLLOWS:
Section 1. The above recitations are true and correct and
made a part of this Resolution.
Section 2. That the attached contract and consent agreement
between the City of Parkland and Reuter Recycling of Florida, Inc.
is hereby approved by the City Commission. The proper City
officials are authorized to enter into said contract subject to
execution by all other signatories thereto and adoption of the
Flow Control Ordinance and to make the necessary arrangements for
participation in the program as provided for in the attached
contract.
Section 3. Should any provision of this Resolution be
declared unenforceable that shall not reflect the remainder
thereof.
ADOPTED THIS
DAY OF
, 1991.
SAL PAGLIARA, MAYOR
ATTEST
SUSAN ARMSTRONG, CITY C~
TO:
FROM:
DATE:
RE:
MEMORANDUM
,;
Harry Mertz
Andrew S. Maurodis
April 24, 1991
Waste Supply Agreement/Parkland
The above-referenced agreement is enclosed along with Exhibit A,
the Consent and Agreement. I have retained a copy for review .
WASTE SUPPLY AGREEMENT--PARKLAND
THIS AGREEMENT, made and entered into this day
of , 1991, by and among Reuter Recycling of
Florida, Inc., a Florida corporation (hereinafter the ,~
"Corporation"), and the City of Parkland, a municipal corporation
organized under the laws of the State of Florida (the "City").
WIT N E SSE T H:
WHEREAS, the Corporation plans to construct, own, and
operate a resource recovery facility in Broward County, Florida
in order to reduce the amount of solid waste disposed of in area
land~ills; and
WHEREAS, the Corporation has entered into that certain
Solid Waste Disposal Agreement with the municipalities of Dania,
Hallandale, Pembroke Pines and Pompano Beach (the "Cities")
pursuant to which the Cities have agreed to deliver all of their
waste to the proposed facility during the term of said Agreement;
and
WHEREAS, the Corporation desires to supplement the
supply of waste it will be receiving from the Cities with solid
waste collected within the City; and
WHEREAS, the City desires to contract with, the
Corporation to cause to be delivered to its facility or transfer
station all of the solid waste collected within the City, subject
to the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the conditions and
covenants expressed herein, the parties hereto, their successors
and assigns, agree as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section l.l. Definitions. The terms defined in this
Section l.l shall, for all purposes of this Agreement, have the
meanings herein specified, unless the context clearly otherwise
requires:
Acceptable Waste shall mean garbage, refuse, and other
solid waste from residential, commercial, light industrial and
community activities which is generated and collected in
aggregate. This term shall include Non-Processable Waste (as
defined herein) but shall not include Unacceptable Waste (as
defined herein).
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Aareement shall mean this Waste Supply Agreement with
Parkland, Florida, as it may hereinafter be amended or
supplemented.
Cities shall mean the municipalities of Dania,
Hallandale, Pembroke Pines and Pompano Beach.
City shall mean the municipality of Parkland.
Completion Date shall mean the date on which the
Facility begins to accept Waste from the City in commercial
quantities, as determined by the Corporation and communicated in
writing to the City.
Consent and Aareement shall mean that certain Consent
and Agreement of even date herewith, a copy of which is attached
hereto as Exhibit A, by and among the City, the Corporation and
U S WEST Financial Services, Inc., as agent for itself and other
lending institutions that become Senior Lenders and Subordinated
Lenders.
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Desianated Hauler shall mean any hauler of Waste
authorized to collect Waste within the boundaries of the City.
Discount Rate shall mean the charge on loans to
depository institutions by the Minneapolis Federal Reserve Bank.
Facility shall mean the resource recovery and compost
facility, structures, machinery, equipment, improvements and
ancillary facilities, to be constructed and operated by the
Corporation in Broward County.
Fiscal Year shall mean the twelve (l2) month period
commencing October I and ending September 30.
Flow Control Ordinance shall mean the ordinance adopted
or to be adopted by the governing body of the City requiring that
all Acceptable Waste collected within the boundaries of the City
be delivered to the Corporation or its agent for disposal in
accordance with this Agreement.
Minimum Guaranteed Tonnage shall mean 3,000 tons of
Acceptable Waste per Fiscal Year, excluding all amounts of Non-
processable Waste delivered by the City or its designated
haulers. The number of tons comprising the Minimum Guaranteed
Tonnage shall increase two percent (2%) per year, commencing with
the Fiscal Year beginning October I, 1991.
Non-processable Waste shall mean that portion of the
Waste stream that is not capable of being processed at the
Facility but that the Corporation agrees to accept and landfill
at no additional cost to the party delivering such Waste (other
than the Tipping Fee required under Section 2.3 hereof, including
all "pass-through" costs). This term shall include metal
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furniture and appliances, concrete rubble, mixed roofing
materials, rock, gravel and other earthen materials, equipment,
wire and cable, tree limbs, logs or lumber not more than four
feet long or six inches in diameter, occasional tires, and
demolition and construction debris and material, none of which_
are delivered to the Corporation in quantities that constitute
Unacceptable Waste, as defined below.
Ooerator shall mean the person or persons in charge of
the Facility.
Point of Deliverv shall mean the location(s) identified
on Exhibit A attached hereto, or other location(s) designated at
any time by the Corporation to the City, to which the City is to
deliver Acceptable Waste.
Processable Waste shall mean that portion of the Waste
stream that is capable of being processed in the Corporation's
resource recovery and compost facility, including all Acceptable
Waste other than Non-Processable Waste (as defined herein).
~ shall mean that certain Solid Waste Disposal
Agreement, dated as of August 19, 1988, by and among the Cities
and the Corporation, as amended by letter agreement dated
February IS, 1989, and that certain Consent and Agreement dated
as of February l, 1990.
Tiooina Fee shall mean the charge payable by the City
to the Corporation under Section 2.3 of this Agreement for the
disposal of a ton of Waste.
Ton shall mean a unit of weight equal to two thousand
(2,000) pounds or .907 metric tons.
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Transfer Station shall mean the site and receiving
facility in Pompano Beach that will be operated by the
Corporation for the acceptance of Waste for transfer to its
processing and composting facility.
Unacce~table Waste shall mean Waste which would likely
pose a threat to health or safety or which may cause damage to or
materially adversely affect the operation of the Facility as
determined by the Corporation, including, but not limited to,
hazardous waste of any kind or nature, such as explosives,
radioactive materials, cleaning fluids, crankcase oils, cutting
oils, paints, acids, caustics, poisons, or drugs; pathological
and biological wastes; ashes, foundry sand; sanitary sewage and
other highly diluted water-carried materials or substances;
sludges, including sewage sludge and septic and cesspool
pumpouts; human and animal remains; auto hulks and other motor
vehicles, including such major motor vehicle parts as
transmissions, rear-ends, springs and fenders; agricultural and
farm machinery and equipment and other bulky items of machinery
and equipment; liquid wastes; demolition debris; street
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sweepings; mining waste; tires in excess of the quantities
allowed by the Corporation as Acceptable Waste; incinerator
residue; human wast~; animal waste; marine vessels and major
parts thereof; transformers; batteries; trees and lumber more
than four feet long or six inches in diameter; and truckloads of
Waste delivered to the Corporation which consist predominantly
(i.e., in excess of 50% by volume) of items of Non-Processable
Waste, in which case the entire load shall be deemed to be
Unacceptable Waste. Unacceptable Waste shall also include any
other material not permitted by law or regulation to be disposed
of at a landfill unless such landfill is specifically designed,
constructed and licensed or permitted to receive such material.
Unforeseen Circumstance means any act, event or
condition that has had, or may have, a material adverse effect on
the rights or obligations of the City or the Corporation, if such
act, event or condition is beyond the reasonable control of the
party relying thereon as justification for not performing an
obligation or complying with any condition required of such party
under this Agreement. Such acts or events may include, but shall
not be limited to, and are qualified by the following:
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a. An act of God, landslide, lightning, earthquake,
flood, hurricane, sinkhole, fire, explosion, sabotage or similar
occurrence; acts of public enemy, extortion, war, blockade or
insurrection, riot or civil disturbance;
b. The order and/or judgment of any.,federa~, state or
local court, administrative agency or governmental body, if it is
not also the result of the willful or negligent action or
inaction of the party relying thereon; provided, that neither the
contesting in good faith of any such order and/or judgment nor
the failure to so contest shall constitute or be construed as a
willful or negligent action or inaction of such party;
c. The failure to issue, suspension, termination,
interruption, denial or failure of renewal of any permit,
license, consent, authorization or approval essential to the
design, construction, start-up, conduct of acceptance testing or
operation of the Facility; provided, that such act or event shall
not be the result of the willful or negligent action or inaction
of the party relying thereon and that neither the contesting in
good faith of any such order nor the reasonable failure to so
contest shall be construed as a willful or negligent action or
inaction of such party;
d. A change in law;
e. The failure of any appropriate federal, state,
county or city public agency or private utility having
operational jurisdiction in the area in which the Facility is
located, to provide and maintain utilities, services, water and
sewer lines, and power transmission lines to the Facility site
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which are required for and essential to the construction, start-
up, conduct of acceptance testing or operation of the Facility;
f. During any period prior to the Completion Date, the
failure of any subcontractor or supplier to furnish labor"
services, materials or equipment to a party on the dates agreed
to; provided that such failure is caused by an Unforeseen
Circumstance and materially adversely affects the ability of such
party to perform its obligations, and such party is not able
reasonably to obtain substitute labor, services, materials or
equipment on the agreed-upon dates;
g. Contamination of the Facility by'Hazardous Waste
due to an incident occurring beyond the control of the
Corporation or its employees or agents which results in the
shutdown of the Facility for health or safety reasons for a
period longer than four days; and
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h. A "Non-Company Strike".
Agreement a "Non-Company Strike" means
stoppage, or similar action other than
the employees of the Corporation.
For purposes of this
a strike, lockout, work
one which is initiated by
i. A recession or severe downturn in the economy which
jeopardizes the financial viability of the Facility's operations.
Waste shall mean all materials delivered or caused to
be delivered to the Facility or Transfer Station by the City and
other parties with whom the Corporation has contracted for the
delivery of materials.
Section l.2. References. All references in this
Agreement to designated "articles", "sections" and other
subdivisions are to the designated Articles, Sections and other
subdivisions of this Agreement as originally executed. The words
"herein", "hereof" and "hereunder" and other words of similar
import refer to this Agreement as a whole and not to any
particular article, section or other subdivision unless the
context clearly indicates otherwise.
Section 1.3. Other References. The terms defined in
Section l.l include the plural as well as the singular. All
accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles. All computations provided for herein shall be made
in accordance with generally accepted accounting principles.
Section 1.4. Reoresentations by the City. The City
makes the following representations as the basis for its
covenants herein:
a. Oraanization. The City is a duly organized and
existing municipal corporation and is in good standing under the
laws of the State of Florida, and has all requisite power and
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authority to enter into this Agreement and any agreement related
hereto (including the Consent and Agreement), to adopt the Flow
Control Ordinance and to carry out the transactions contemplated
hereby.
b. Authorization. Execution and Delivery. The Flow
Control Ordinance of the City will have been duly adopted by the
City and be in full force and effect prior to the Completion
Date. The execution and delivery of this Agreement and the
Consent and Agreement have been duly authorized by a resolution
or ordinance adopted at a duly called meeting of the City
Commission by the requisite vote of its members, and each of this
Agreement and the Consent and Agreement is a legal, valid, and
binding obligation of the City enforceable against the City in
accordance with its terms. Except for such action as has already
been taken, no approval, authorization, or order of, or any
consent or declaration, registration or filing with, any
governmental authority with the State of Florida or any
referendum or other action of voters is required for the valid
execution, delivery and performance of this Agreement or the
Consent and Agreement by the City.
c. Compliance with Other Instruments. The execution
and delivery of this Agreement and the Consent and Agreement, the
consummation of the transactions contemplated hereby and thereby,
and the fulfillment of the terms and conditions hereof and
thereof do not and will not conflict with or result in a breach
of any of the terms or conditions of the articl,es, of
incorporation or bylaws of the City, or of any restriction or of
any agreement or instrument to which the City is now a party, and
do not and will not constitute a default under any of the
foregoing, 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.
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d. Authority for Solid Waste Services. The City is
duly authorized to collect Waste within Broward 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 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 the
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 collected within its territorial boundaries
in accordance with the terms of this 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 or Transfer Station. No
representation is made with respect to whether the City's
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designated haulers have obtained any governmental approvals that
may be necessary for their Waste collection activities.
e. Solid Waste Charaes. The City has all requisite
power and authority to fix, charge and collect fees and
assessments for the Waste collection and disposal services
provided by the City or its designated haulers and to make
payments due pursuant to this Agreement from the revenues derived
from such services or other legally available funds. Such fees
and assessments may be revised by action of the governing body of
the City without the approval of any other governmental body.
The City has not created, and there does not exist, any pledge,
lien, security interest or other encumbrance upon any portion of
the revenues 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 2.4 hereof and that the City may use such
revenues to make payments to its designated haulers for waste
collection services.
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f. 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 this
Agreement, other than the approval of the CityCommis.sion.
g. Averaae Tonnaae. Based upon its delivery records
or other evidence, the City collects (or causes to be collected)
an average annual tonnage of Acceptable Waste of approximately
3,000 tons.
ARTICLE II
RIGHTS AND OBLIGATIONS OF THE CITY
Section 2.l. Deliverv of Acceptable Waste.
a. The City hereby agrees that it shall cause to be
delivered to the Corporation at its Facility or Transfer Station
(as designated by the Corporation), commencing on the Completion
Date and continuing thereafter during the term of this Agreement,
all of the Acceptable Waste that is generated within the City's
boundaries and collected by the City or its designated haulers,
in accordance with the terms of this Agreement and with such
reasonable delivery instructions and procedures as the
Corporation may from time to time prescribe. The foregoing
commitment by the City shall not impede the ability of City
residents to continue to voluntarily divert recyclable materials
from the Waste that is made available for collection, subject to
the limitations of Subsection 2.I.c below.
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b. In addition to the commitment described in Section
2.l.a, the City agrees that in all events it shall deliver or
cause to be deliver,ed to the Corporation during each Fiscal Year
the Minimum Guaranteed Tonnage. The obligation of the City to
deliver the Minimum Guaranteed Tonnage shall not be excused for
any reason, including the occurrence of an Unforeseen
Circumstance affecting the City or its designated 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
Facility is accepting Waste from the City in commercial
quantities. If the City fails to deliver or cause to be
delivered the Minimum Guaranteed Tonnage in any Fiscal Year, the
City agrees to 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 the Minimum
Guaranteed Tonnage that were not delivered. Such amount shall be
payable within thirty (30) days after the end of each Fiscal
year. The City's commitment to pay for the Minimum Guaranteed
Tonnage shall in no way be deemed to limit the City's obligation
to deliver or cause to be delivered all of the Acceptable Waste
collected within its boundaries.
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c. Notwithstanding the implementation of one or more
recycling programs that affect the Waste generated within the
City, the City agrees that it shall deliver or cause to be
delivered to the Corporation all recyclable Acceptable Waste
generated within its boundaries, in its mixed form_o.r_,as
separated at its source, commencing on the Completion Date and
continuing thereafter during the term of this Agreement, except
that the Corporation shall exclude from this requirement
newspapers generated within the City 'if the City institutes a
newspaper recycling program that diverts newspapers from the
Waste stream that would otherwise be delivered to the
Corporation. The City shall not be required to pay the
Corporation a Tipping Fee for source-separated recyclable
Acceptable Waste delivered to the Facility: provided, however,
amounts of recyclable Acceptable Waste for which the City does
not pay a Tipping Fee shall not be counted towards the Minimum
Guaranteed Tonnage required to be delivered pursuant to Section
2.I.b. The City acknowledges and agrees that its obligation to
deliver the Minimum Guaranteed Tonnage shall not be affected by
the implementation of recycling programs of any kind, whether
legislatively mandated or voluntarily implemented.
The Corporation acknowledges that certain charitable
and civic organizations have previously engaged to a limited
extent in the collection of source-separated Waste from residents
of the City in order to finance their charitable and civic
activities, and the Corporation agrees that such charitable and
civic organizations and other charitable and civic organizations
with comparable nonprofit purposes shall continue to be entitled
to collect source-separated Waste from residents of the City in
the manner in which they have done so in the past: provided, that
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the amount of recyclable Waste collected by such nonprofit
organizations does not materially increase during the term of
this Agreement to such an extent that the Corporation's revenues
are materially adversely affected thereby.
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Section 2.2. Deliverv of Unacceptable Waste. The City
agrees to use its best efforts to cause to be delivered only
Acceptable Waste to the Facility. The Corporation or Operator
shall not be required to accept any Waste which does not
constitute Acceptable Waste. The Corporation or Operator shall
have the right, but not the obligation, to inspect all vehicles
delivering Waste to the Facility. No inspection by the
Corporation or Operator shall limit the obligation of the City,
or its designated haulers to use their best efforts to deliver
only Acceptable Waste to the Facility. If the Corporation or
Ope'rator in the exercise of its reasonable judgment determines
that a vehicle contains any Unacceptable Waste, the Corporation
or Operator may (i) reject the entire delivery and the
responsible hauler shall forthwith remove such entire delivery
from the Facility for disposal elsewhere, or (ii) if not
unreasonably expensive or time-consuming, require that the party
delivering such load isolate the items of Unacceptable Waste and
remove them from the load prior to acceptance thereof by the
Corporation. All costs of removal and disposal of items of
Unacceptable Waste or loads containing such items shall be borne
by the party that delivered such items or loads. In addition,
such party shall reimburse the Corporation for all costs incurred
by the Corporation in handling such rejected" Waste and
supervising or directing the removal and disposal of the same.
Each party delivering Waste to the Facility shall have
the sole responsibility to remove from the Facility Unacceptable
Waste it has delivered (or caused to be delivered) and pay the
resulting cost, notwithstanding any prior acceptance of such
Waste by the Corporation or Operator. Such removal shall be
accomplished promptly after notice, verbal or written, is given
by the Corporation or Operator that any Waste previously
delivered is Unacceptable Waste. However, either before or after
such notice, the Corporation,or Operator may remove and dispose
of the Unacceptable Waste and charge the costs of such removal
and disposal to the responsible party on the next invoice to such
party.
In the event that the Corporation is unable to identify
the source of any Unacceptable Waste that has been delivered to
the Transfer Station or the Facility, the Corporation shall be
authorized to remove and/or dispose of such Waste
("Unidentifiable Waste") and may charge the costs of such removal
and disposal to the City, the Cities, and their designated
haulers, in proportion to the respective tonnages of Waste
accepted by the Corporation from such parties during the month in
which the Unacceptable Waste in question was delivered to the
Corporation. Such costs may be invoiced by the Corporation on a
monthly basis and payment therefor shall be made in accordance
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with Section 4.2. hereof. In the event the Corporation contracts
with parties other than the City and the Cities for the delivery
of Waste to the Facility, the Corporation shall use its best
efforts to contractually obligate such additional parties to
share in the costs of removing and disposing of Unidentifiable~
Waste in the same manner as set forth in this paragraph, and this
paragraph shall be deemed to be amended to include such
additional party or parties without further action by the parties
hereto upon written notice from the Corporation that it has
contracted with another party who agrees to share in the costs of
removing and disposing of Unidentifiable Waste delivered to the
Corporation.
Section 2.3. Tipoina Fee: Pass-Throuah Costs.
a. The City shall pay the Corporation a Tipping Fee
for each ton of Waste delivered to the Facility equal to the
tipping fee payable by the Cities pursuant to the SWDA, as
adjusted from time to time pursuant to the provisions of the
SWDA. The Tipping Fee payable by the City shall include all
Pass-Through Costs (as defined in the SWDA) charged to the Cities
under the SWDA, including the charge set forth in Section
2.3.c(S) of the SWDA for certain disposal costs associated with
the delivery of Non-Processable Waste (the "Non-Processable Waste
pass-Through Costs"). The City agrees that the Non-Processable
Waste Pass-Through Costs shall be determined as follows: within
ten days after the end of each month the Corporation shall
determine the total tonnage of Non-Processab1e Waste and
Acceptable Waste that the Corporation accepted from the City, the
Cities and their designated haulers during such month. As part of
the Pass-Through Costs, the Corporation shall be entitled to
charge the City for its proportionate share (as described below)
of, tipping fees or landfill surcharges paid by the Corporation in
excess of $30.00 per ton in connection with its disposal of any
amount of Non-processable Waste in excess of three percent (3%)
of the total Acceptable Waste accepted by the Corporation from
the City, the Cities and their designated haulers.
Such charges shall be accounted for separately and
invoiced to the City, the Cities, and their designated haulers on
a monthly basis in proportion to the respective tonnages of Waste
accepted by the Corporation from such parties during the month
immediately preceding the invoice date. Such invoices shall be
paid pursuant to the terms of Section 4.2. In any month in which
the tonnage of Non-processable Waste delivered by the City, the
Cities and their haulers is less than three percent (3%) of the
total Acceptable Waste delivered by such parties, the City and
the Cities shall receive a credit in an amount equal to the
product of (i) the difference (expressed in tons) between three
percent (3%) of the tonnage of Acceptable Waste delivered by such
parties to the Corporation and the tonnage of Non-Processable
Waste actually delivered by such parties, and (ii) $30.00. Such
credit shall be applied against (and only against) subsequent
Non-processable Waste Pass-Through Costs invoiced to the City,
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the Cities and their designated haulers pursuant to this Section
2.3 that result from tipping fees or landfill surcharges paid by
the Corporation in ,excess of $30.00 per ton in connection with
the disposal of Non-Processable Waste. In the event the
Corporation contracts with parties other than the City and the~
Cities for the delivery of Waste to the Facility, the Corporation
shall use its best efforts to contractually obligate such
additional parties to share in the costs of removing and
disposing of Non-Processable Waste in the same manner as set
forth in this Section 2.3, and this Section shall be deemed to be
amended to include such additional party or parties without
further action by the parties hereto upon written notice from the
Corporation that it has contracted with another party who agrees
to share in the costs of removing and disposing of Unidentifiable
Waste delivered to the Corporation.
b. The Corporation hereby agrees that from and after
the fifteenth (l5th) anniversary of the Completion Date, the
Tipping Fee payable by the City hereunder shall not exceed (i)
the average tipping fee charged by Broward County at the Broward
County Resource Recovery Plants (the "County Plants") described
in that certain Broward County Interlocal Agreement dated
November 25, 1986, increased by (ii) a per ton charge reflecting
the amount of funds contributed, directly or indirectly, as a
subsidy toward the construction and operation of the County
Plants from other revenue sources including without limitation
contributions from tax revenues, surcharges, governmental
subsidies of any kind, or amounts in excessof.the.mack.et rate
received from the sale of energy produced at the County Plants.
The foregoing "per ton charge", if applicable, shall be
determined by the independent public accountants regularly
engaged by the Corporation. Should the Cities disagree with said
determination, any differences shall be resolved by arbitration
as provided in Section ll.l.
c. In order to mitigate any potential cost
differential, the Corporation further agrees that if, during the
first twelve (12) months following the Completion Date, the
Tipping Fee exceeds the average disposal fee charged by the
Broward County landfills (or the County Plants, if they are
operational during such period), the Corporation shall reimburse
the City and the Cities an amount equal to the product derived by
multiplying (x) the amount of processable Waste processed by the
Corporation during said twelve month period in excess of 175,000
tons, regardless of the source, by (y) $5.00. The resulting
product (the "Reimbursed Amount") shall be paid to the City and
the Cities within thirty (30) days after expiration of said
twelve month period in proportion to the respective tonnages of
Acceptable Waste delivered by the City and the Cities during said
period. The Reimbursed Amount shall be repaid to the Corporation
in accordance with Section 2.3.d. In all events, the
reimbursements to the City and the Cities shall be limited to an
amount equal to the product of (x) the total tons of processable
Waste processed by the Corporation during the twelve (12) months
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,"
provided to the Corporation by the City or its haulers. Upon
notice from the Corporation that it is again able to receive the
City's Acceptable Waste, the City shall again promptly cause its
haulers to commence delivering its Acceptable Waste to the
Transfer Station.
Section 3.3. Reaulatorv Reauirements. The Corporation
shall operate the Facility in a manner which will not violate any
federal, state or local law or regulation. The Corporation shall
not be deemed to have breached this obligation if it is in good
faith contesting the validity or application of any such law or
regulation or diligently attempting to comply therewith.
Section 3.4. Transfer Station. The Corporation shall
at its expense, as part of its resource recovery system, operate
one Transfer Station within the City of Pompano Beach. The
Corporation acknowledges the City's desire to deliver Acceptable
Waste to the Transfer Station and agrees to use its good faith
efforts to route deliveries of the City's Waste through the
Transfer Station.
ARTICLE IV
OPERATIONAL ASPECTS
Section 4.1. Deliverv Conditions. The City agrees
that all Acceptable waste shall be delivered in accordance with
the following terms and conditions:
a. Hours and Days of Delivery. The Corporation,
unless it notifies the City otherwise, shall accept deliveries
from the City during the following operating hours (except for
the legal holidays listed below, during which no deliveries will
be accepted unless the Corporation agrees with the City
otherwise):
7:00 am. to 6:00 p.m., Monday-Friday
7:00 a.m. to 1:00 pm., Saturday
Such operating hours may be changed or extended upon
thirty (30) days notice to the City by the Corporation; provided,
however, the operating hours during which the Corporation accepts
deliveries from the City shall not be materially more limited
than those available to the Cities. Legal holidays are New
Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day.
In the event that, due to a natural disaster or other
emergency condition, the City requests the Corporation to accept
the delivery of Waste other than during normal receiving hours,
the Corporation will use reasonable efforts to accept such
deliveries and may charge an additional fee for such emergency
service.
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b. Form of Waste. All Waste shall be in substantially
the same form and consistency as when it came under the control
of the City and its. haulers, except that such Waste may be
compacted when compaction is desirable for transportation and the
City shall be excused from this requirement to the extent that~
newspaper is diverted from its Waste stream as contemplated by
Section 2.l.c. hereof.
c. TransDortation to Facilitv. The City
or its haulers shall be solely responsible for the provision, at
their expense, of all personnel and equipment necessary to
conduct and transport all Waste to be delivered to the
Corporation under this Agreement and to deliver the same to the
Facility or Transfer Station for disposal in accordance with such
reasonable regulations relating to the manner of delivery as the
Corporation may from time to time establish.
d. EauiDment. All equipment used by the City and its
haulers for collection and transportation of Waste for delivery
pursuant to this Agreement shall be enclosed with no open loads
permitted and shall be licensed'pursuant to and comply with all
ordinances and regulations which may from time to time be enacted
with respect thereto, and shall comply with such equipment
specifications as may be established by the Corporation or other
regulatory agencies. The Corporation may reject any delivery of
Waste delivered by equipment in violation of this Section 4.l.c.
In the event of such a rejection, the Corporation reserves the
right to charge the party delivering such Was.t.e a,.r,eas.onable fee
to cover the costs incurred by the Corporation in connection
therewith. The City shall maintain with the Corporation such
information concerning equipment of the City (or its haulers) as
may be requested from time to time by the Corporation.
e. Delivery Rules. The City agrees to comply, and
cause its haulers to comply, with all rules and regulations
posted or otherwise reasonably available at the Facility or
Transfer Station.
Section 4.2. Monthlv Invoices: Payments. The
Corporation shall, on a monthly basis, submit to the City a
statement of the total tonnage of Acceptable Waste delivered (or
caused to be delivered) to the Corporation by the City during the
preceding month. The Tipping Fee for each month during the term
of this Agreement shall be computed on the basis of the
applicable rate of payment times the total tonnage of Acceptable
Waste delivered (or caused to be delivered) by the City to the
Corporation during such month or part of any month. The monthly
statement shall include the total Tipping Fee due and any other
fees and charges due and owing to the Corporation pursuant to
this Agreement. Fees for each month's deliveries shall be paid
to the Corporation on or before the tenth (lOth) day from the
date of the invoice. Fees not paid when due shall incur daily
interest until paid at an annual rate equal to the Discount Rate
existing on the due date plus lOt, but not less than 12%, or the
-16-
maximum interest rate permitted by law if less than said interest
rate. provisions in this Agreement regarding monthly invoices
for fees shall also apply to separate invoices.
If the Corporation at any time determines that the ~
amount due listed on the invoice for a particular month was less
than the actual amount due, the Corporation may issue a separate
invoice for the amount not previously billed or add the amount
not previously billed to the next subsequent monthly invoice as a
separate item with an accompanying explanation
Section 4.3. Weiahina of Waste. The Corporation shall
provide and maintain at the Facility and Transfer Station
certified truck weighing scales operated by a certified scale
operator. The tonnage of Waste delivered to the Facility or
Transfer Station shall be determined by weighing the vehicle
immediately prior to depositing the Waste and immediately after
depositing the waste and subtracting the second weight from the
first weight. However, the Corporation reserves the right not to
weigh the vehicle immediately after depositing the Waste;
provided that the vehicle in question has been appropriately
registered by a vehicular identifying mechanism which records,
among other things, the identity of the vehicle by previously
assigned vehicle number and owners and the gross weight of the
loaded vehicle. The Corporation shall provide to the driver of
each vehicle making a delivery of Waste a receipt setting forth
the first weight, the weight after depositing the waste, date,
time, truck identification, and total tonnag.e,.,of ,Waste determined
to have been delivered by such vehicle. All such receipts shall
be prepared in duplicate, with the Corporation retaining one copy
or a suitable machine record. Such receipts shall be used by the
Corporation as the basis for determining the payments required by
Section 2.3. The City through its authorized representatives
shall have the right from time to time to audit at its expense
the weight records relating to the City, provided such audits are
made at reasonable times and upon prior written notice and do not
in any way interfere with the orderly operation of the Facility.
For purposes of this Section 4.3 the term "Corporation" shall
mean either the Corporation or the Operator.
ARTICLE V
OTHER COVENANTS OF THE CITY
Section S.l. Title to Waste. The City and its
designated haulers shall relinquish any and all title and
interest in Waste upon delivery thereof to the Transfer Station
or Facility pursuant to this Agreement and shall defend,
indemnify and hold the Corporation harmless from any and all
claims of ownership brought against the Corporation with respect
to said Waste which may affect the clear title of the Corporation
to said Waste at the time of its acceptance by the Corporation.
The City (and its designated haulers) shall retain all rights,
title and responsibility with respect to Waste until such time as
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the Waste is delivered to the Transfer Station or Facility,
dumped into or (as provided below) adjacent to the receiving pits
at the Transfer Station or Facility and accepted by the
Corporation. The Corporation may, for purposes of inspection,
require that the Waste be deposited next to the receiving pits~
for transfer to the pits by the Corporation. When the Waste is
deposited at the Transfer Station or Facility and accepted by the
Corporation as Acceptable Waste, all rights and title with
respect thereto shall thereupon be transferred from the party
delivering such Waste to the Corporation, except to the extent
the Corporation subsequently rejects previously accepted Waste as
Unacceptable Waste as provided in Section 2.2. For purposes of
this Section 5.1 the term "Corporation" shall mean either the
Corporation or the Operator.
Section 5.2. Indemnification.
,;
a. The City shall defend, indemnify and save the
Corporation harmless from and against all liabilities, losses,
damages and claims of damages (including all reasonable costs and
other expenses incident thereto) suffered or incurred by the
Corporation that may arise by reason of delivery of any
Unacceptable Waste or of any act or omission on the part of the
City, its agents, employees, independent contractors, or any
other party delivering Waste to the Corporation pursuant to this
Agreement while engaged in the performance of this Agreement
including, but not limited to, damages and claims of damages
caused by "hot loads" (i.e., loads containing smoldeI:ing or
burning material) delivered by the City or its haulers, fires
caused by "hot loads" after delivery, driver caused damage to any
part of the Facility and the cost of clean up of Waste
contaminated by the City or its haulers. The City also shall
defend, indemnify and save the Corporation harmless from and
against all liabilities, losses, damages, costs and expenses,
causes of action, suits, claims, demands and judgments of any
nature arising from violation of any representation, agreement,
warranty, covenant or condition of this Agreement; provided, that
such indemnity shall be no greater than that permitted under
Florida law.
b. The Corporation shall defend, indemnify and save
harmless the City from and against all liabilities, losses,
damages and claims of damages (including all reasonable costs and
other expenses incident thereto) suffered or incurred by the City
that may result from any act or omission on the part of the
Corporation, its agents, employees, or independent contractors,
while engaged in the performance of this Agreement. The
Corporation also shall defend, indemnify, and save the City
harmless from and against all liabilities, losses, damages, costs
and expenses, causes of action, suits, claims, demands and
judgments of any nature arising from violation of any
representation, agreement, warranty, covenant or condition of
this Agreement.
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Section 5.3. Insurance.
a. The City shall cause all parties delivering Waste
to the Corporation pursuant to this Agreement to obtain and
furnish to the Corporation evidence of all insurance required ~
under this Section covering all vehicles to be used and all
operations to be performed by such parties in performing this
Agreement. Each policy of insurance required under this Section
5.3 shall name the Corporation as an additional insured.
Existence of the insurance required herein shall be established
by furnishing certificates of insurance issued by insurers duly
licensed to do business within the State of Florida, in force on
the date of commencement of any performance under this Agreement,
and continuing for a policy period of at least one (l) year and
providing the following coverages (which coverages may be
adjusted from time to time by the parties to reflect increases in
the cost of living):
(i) Public liability insurance, including general
liability, automobile liability, completed operations liability,
and loading and unloading liability.
(ii) Bodily injury liability in the amount of at least
$lOO,OOO for injury or death of anyone person in anyone
occurrence.
,"
(iii) Bodily injury liability in the amount of at least
$300,000 for injuries or death arising out of. any one,occurrence.
(iv) Property damage liability in the amount of at
least $100,000 for anyone occurrence, and in the unencumbered
aggregate amount of at least $300,000.
Such general liability and automobile liability
insurance policy or policies shall provide contractual liability
insurance, specifically referring to and covering the obligation
of the City, or its subcontractor haulers and independent
contractor haulers to defend, indemnify and save harmless the
Corporation, its officers, agents and employees from alleged
claims or causes of action for bodily injury or property damage
as provided in Section 5.2 hereof.
Said general liability and automobile liability policy
or policies shall contain an endorsement as follows:
The policy to which this endorsement is attached is
intended to comply with and furnish the coverages required by
Section 5.3 (Insurance) of that certain Waste Supply Agreement
dated , 1991 between Reuter Recycling of
Florida, Inc. and the City of Parkland. If anything in any other
attachment, endorsement or rider conflicts with the provisions of
said Section 5.3, then the provisions of said Section 5.3 shall
prevail.
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Any deductible amount provided for in any part of the
policy will be paid by the insurer upon establishment of legal
liability of any insured, and the insurer shall be entitled to
reimbursement from the insured for such deductible amount.
Said policies of insurance shall be furnished to the
Corporation by each party proposing to deliver Waste pursuant to
this Agreement for examination and approval prior to the doing of
any work by any insured party pursuant to this Agreement;
together with a certificate or certificates executed by an
authorized representative of the insurer, certifying to the
insurance coverage herein required, and stipulating that the
policy will not be cancelled, nor any material-Change effected,
without first giving thirty (30) days written notice to the
Corporation. After examination and approval of said policies by
the Corporation, they will be returned to the City or the
appropriate subcontractor or independent contractor, but the
certificates of insurance will be retained by the Corporation.
Upon request by the Corporation, the City or any of its
subcontractors or independent contractors under this project
shall promptly furnish to the Corporation for examination at any
time all contracts of insurance required herein.
,
Each subcontractor hauler and independent contractor
hauler shall, on each anniversary date of this Agreement, furnish
Corporation with evidence satisfactory to Corporation's
representative of the insurance required hereunder.
b. The Corporation shall obtain and maintain
comprehensive general liability and property damage insurance
providing such coverages and with such limits as are reasonable
for projects of a type similar to the Facility. As of the
Completion Date, the City will be provided with certificates of
insurance evidencing such coverages, and will be furnished with
renewal certificates of insurance on each subsequent anniversary.
Section 5.4. Compliance with Regulatorv Reauirements.
a. The City and its designated haulers shall at all
times operate the business of collecting, transporting and
disposing of municipal solid waste in compliance with all local,
state, and federal laws.
b. The City and its designated haulers shall obtain
and maintain all the necessary licenses, permits, or other
authority required by each city or county in which it operates,
the Florida Department of Environmental Regulation and any other
governmental agency having jurisdiction over its activities.
Section 5.5. Compliance bv Desianated Haulers. The
City agrees to cause the terms and conditions of any agreement
that it may have with a hauler of Waste to conform with the terms
and conditions of this Agreement. If requested to do so by the
Corporation, the City shall cause its designated haulers to agree
-20-
in writing with the Corporation to be bound by such terms and
conditions. If any hauler does not comply with the terms and
conditions of this Agreement, the City shall either take such
action as is required to cause such hauler to comply or cause the
Waste collected by such hauler to be collected by another hauler
and delivered to the Corporation in accordance with the terms and
conditions of this Agreement.
Section 5.6. Execution of Consent and Agreement.
Contemporaneously with the execution of this Agreement, the City
shall execute the Consent and Agreement in the form attached
hereto as Exhibit A.
,
ARTICLE VI
EVENT OF DEFAULT: REMEDIES
Section 6.l. Events of Default bv the City. Unless
excused by the occurrence of an Unforeseen Circumstance, each of
the following shall constitute an Event of Default on the part of
the City:
a. Failure to promptly deliver (or cause to be
delivered) Acceptable Waste as required by Section 2.1; or
b. Failure to make due and punctual payment of any
amounts due pursuant to Section 4.2; or
c. If the City enters voluntary bankruptcy or
insolvency, or seeks reorganization, arrangement, adjustment or
composition under the Federal Bankruptcy Act or any other
applicable federal or state law, or makes any general assignment
for the benefit of its creditors, or suffers any order
adjudicating it to be a bankrupt or insolvent or appointing a
receiver, liquidator, assignee, trustee, sequestrator or other
similar official for the City; or
d. Failure to perform or observe any other of the
covenants, agreements or conditions on the part of the City in
this Agreement, and such default shall have continued for a
period of thirty (30) days after written notice thereof given by
the Corporation to the City, unless the Corporation shall agree
in writing to an extension of such time prior to its expiration
for such longer period as may be reasonably necessary to remedy
such default, provided that the City is proceeding with
reasonable diligence to remedy the same.
Section 6.2. Events of Default bv the Corporation.
Unless excused by the occurrence of an Unforeseen Circumstance,
each of the following shall constitute an Event of Default on the
part of the Corporation:
a. The persistent or repeated failure or refusal by
the Corporation to operate, repair or maintain the Facility; or
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b. If the Corporation enters voluntary bankruptcy or
insolvency, or seeks reorganization, arrangement, adjustment or
composition under the Federal Bankruptcy Act or any other
applicable federal or state law, or makes any general assignment
for the benefit of creditors, or suffers an order adjudicating~it
to be bankrupt or insolvent, or appointing a receiver,
liquidator, assignee, trustee, sequestrator or other similar
official for the Corporation; or
c. Failure to perform or observe any other of the
covenants, agreements, or conditions on'the part of the
Corporation in this Agreement, and such default shall have
continued for a period of thirty (30) days after written notice
thereof given by the City to the Corporation, unless the City
shall agree in writing to an extension of such time prior to its
expiration for such longer period as may be reasonably necessary
to remedy such default, provided that the Corporation is
proceeding with reasonable diligence to remedy the same.
Section 6.3. Riaht to Cure Defaults. In the event of
an Event of Default under this Agreement, the non-defaulting
party shall have the right, but not the obligation, to cure such
default and to charge the defaulting party for the cost of curing
said default.
,"
Section 6.4. Other Remedies. Upon the occurrence of
an Event of Default, the non-defaulting party may pursue any
available remedy by suit at law or equity to enforce the
covenants of the defaulting party herein, including, without
limitation, such appropriate judicial proceedings as the non-
defaulting party shall deem most effective to protect and enforce
or aid in the protection and enforcement of the covenants and
agreements in this Agreement. In addition, upon the occurrence
of an Event of Default by the City (or its haulers, as the case
may be), the Corporation may (a) refuse to accept any further
deliveries of Waste by the City (or its haulers, as the case may
be), and/or (b) terminate this Agreement by written notice to the
City, effective on the date specified in such notice.
Section 6.5. Manner of Exercise. No remedy by the
terms of this Agreement conferred upon or reserved to any party
is intended to be exclusive of any other remedy, but each and
every such remedy shall be cumulative and shall be in addition to
any other remedy given now or hereafter existing at law or in
equity or by statute. The assertion or employment of any right
or remedy hereunder shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
NO delay or omission to exercise any right or power
accruing upon any Event of Default shall impair any such right or
power or shall be construed to be a waiver of any such Event of
Default or acquiescence therein.
-22-
Section 6.6. Effect of Waiver. In the event any
agreement contained in this Agreement should be breached by
either party and th~reafter waived by the other party, such
waiver shall not be deemed to waive any other breach hereunder.
Section 6.7. No Set-Off. The obligation of the City
to make payments under this Agreement is not subject to
dimunition by reason of any set-off, abatement, counterclaim, or
any other reason which might otherwise constitute a legal or
equitable defense to the City's liabilities hereunder; provided,
however, nothing herein shall effect the right of the City to
pursue independently any claim it may have against the
Corporation, including, without limitation, any claim based on
the non-performance by the Corporation of its obligations
hereunder.
,;
Section 6.8. Limitation of Consequential Damaaes. In
no event, whether based upon contract, tort, warranty or
otherwise arising out of the performance or non-performance by
the Corporation of its obligations under this Agreement, will the
Corporation be liable or obligated in any manner to pay special,
consequential, punitive, incidental or similar damages.
ARTICLE VII
General Terms
Section 7.l. Term and Termination., This Agreement
shall be effective from the date of execution for a period ending
twenty (20) years from the Completion Date (the "Initial Term").
This Agreement may be extended, upon the mutual agreement of the
Corporation and the City, for up to two additional five-year
terms by the execution by the parties of an extension agreement~
The parties agree that at least one year prior to the
expiration date of this Agreement, they will attempt to
renegotiate this Agreement and to extend its term. Both parties
agree to negotiate in good faith with the intent to continue this
Agreement.
Section 7.2. Successors and Assianment. No transfer
or assignment of the rights and/or obligations of the City under
this Agreement shall be effective without the prior written
consent of the Corporation.
The Corporation shall have the right, without prior
written consent of the City, but subject to all rights of the
City hereunder: (i) to assign or create a security interest in
its rights hereunder as collateral for, or in connection with,
any arrangements for the financing or refinancing of the
construction of all or part of the Facility; or (ii) to assign
any or all of its rights and interests hereunder and/or delegate
any or all of its obligations hereunder to a separate entity
controlled by, under common control with, or controlling the
-23-
following the Completion Date, and (y) the difference between the
Tipping Fee and the average disposal fee charged by Broward
County landfills (o.r the County Plants, if they are operational
during such period).
d. The City, the Cities and their haulers shall repay
to the Corporation the Reimbursed Amount, less the Corporation's
share of Excess Tipping Fee Revenues (as defined in
Section 9.2.a) received during the twelve month period following
the Completion Date, in the following manner: the per ton
Tipping Fee during the second twelve month period following the
Completion Date shall be adjusted by allocating the Reimbursed
Amount, as reduced by the Corporation's share of Excess Tipping
Fee Revenues, over the Minimum Guaranteed Tonnage required to be
delivered during such period by the City and the Cities. In the
event the revenues generated under this paragraph exceed the
Reimbursed Amount, as reduced by the Corporation's share of
Excess Tipping Fee Revenues, the Corporation shall reimburse such
excess to the City and the Cities in the same manner as provided
in paragraph c. above.
Section 2.4. Assistance with Landfill. The City
agrees to use its reasonable best efforts to assist the
Corporation in its efforts to secure agreements acceptable to the
Corporation for the disposal of the residue from its Facility and
all Non-Processable Waste.
Section 2.5. Rate Covenant: Flow Contro~ Ordinance:
Negative Pledge. The 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. If, by
the date hereof, the City has not adopted its Flow Control
Ordinance, it agrees to adopt such Ordinance prior to the
Completion Date. The City agrees that during the term of this
Agreement it will not amend or repeal its Flow Control Ordinance
and will take all reasonable actions available to it to enforce
the t~rms thereof. The City agrees that during the term of this
Agreement it will not create or permit to exist any pledge, lien,
security interest or other encumbrance upon all or any portion of
the revenues derived from the fees and assessments for its solid
waste services except that the City may make a secondary pledge
of the revenues of its solid waste system to secure indebtedness
of the City. For this purpose, a pledge of the revenues of the
City's solid waste system to secure indebtedness shall be deemed
to be a "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 solid waste system. Nothing
-12-
,
herein shall preclude the city from making payments to its
designated haulers for waste collection services.
Section 2.6. Not a General Indebtedness. The
obligations of the City pursuant to this Agreement will not
constitute a general indebtedness of the City within the meaning
of any constitutional or statutory provision or limitation and
the City is not obligated to levy any ad-valorem taxes for the
payment thereof. Neither the full faith and credit nor the
taxing power of the City, the State of Florida or any political
subdivision thereof is pledged to such payment. The 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.
,"
ARTICLE III
RIGHTS AND OBLIGATIONS OF THE CORPORATION
Section 3.1. Acceotance of Waste. On and after the
Completion Date, the Corporation shall, unless there has been an
Event of Default by the City or its designated haulers, accept
from the City and its designated haulers, all Acceptable Waste
delivered to the Facility or the Transfer Station. The City
acknowledges, however, that the Facility will be constructed with
an initial processing capacity of 200,000 tons per year and that
the Corporation likely will be required to incur additional
processing or disposal costs if the City deLivers materially more
than its projected tonnage of processable Waste. Accordingly,
the City agrees that in the event that the City and its
designated haulers deliver to the Corporation more than 193 tons
of processable Waste (the "Projected 'Weekly Tonnage") during any
one (l) week period prior to the time that the Corporation has
increased its plant capacity beyond 200,000 tons per year, the
Corporation shall be entitled to charge the City, and the City
agrees to reimburse the Corporation, for the additional costs, if
any, reasonably incurred by the Corporation with respect to the
processing and/or disposal of the tonnage of Processable Waste in
excess of the Projected Weekly Tonnage, provided reasonable
documentation of such costs is provided to the City in support of
any supplemental invoice. Such costs may be invoiced to the City
and its designated haulers on a monthly basis. The Corporation
may, but shall not be obligated to, aggregate such costs with
additional processing and/or disposal costs resulting from
deliveries of excess Waste by the Cities, in which case the
Corporation may invoice all such additional costs to such parties
(including the City) in proportion to the respective tonnages of
Waste accepted by the Corporation from such parties during the
month immediately preceding the invoice date. The Corporation
acknowledges that no such additional costs shall be charged to
the City for any week during which the City's deliveries of
processable Waste do not exceed the Projected Weekly Tonnage,
notwithstanding that the Cities may have delivered more than the
4,000 ton per week amount described in Section 3.1 of the SWDA.
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The Corporation and the City agree that the number of
tons comprising the Projected Weekly Tonnage shall increase two
percent (2%) per Fiscal Year, commencing with the Fiscal Year
following the first Fiscal Year in which the City delivers or
causes to be delivered to the Corporation at least 10,000 tons_of
Processable Waste. In the event that the City and its designated
haulers deliver to the Corporation an amount of Processable Waste
in excess of the Projected Weekly Tonnage such that the
Corporation is unable to process such excess Waste at its
Facility, the Corporation shall promptly notify the City. Upon
receipt of such a notice, the City may divert its excess Waste
directly to an alternate disposal site until such time as the
Corporation notifies the City (verbally or in writing) that it is
again able to receive all of the City's Waste, at which time the
City shall immediately commence delivering its Waste to the
Corporation.
If, during any Fiscal Year following the Completion
Date, the City delivers to the Corporation more than lO,OOO tons
of Processable Waste, the City and the Corporation agree to
adjust the Minimum Guaranteed Tonnage for subsequent Fiscal Years
such that it will be comparable to the tonnage of Processable
Waste actually delivered by the City to the Corporation during
such Fiscal Year. Such adjustment shall be effective for the
Fiscal Year immediately following the Fiscal Year during which
the City delivered (or caused to be delivered) more than said
lO,OOO tons of Processable Waste.
In the event that the Corporation increas,es its plant
capacity beyond 200,000 tons per year, the Projected Weekly
Tonnage shall be equitably adjusted by the Corporation and the
City, with such adjustment evidenced by an amendment to this
Agreement. As a condition to such adjustment, the Corporation
and the City shall adjust the Minimum Guaranteed Tonnage in an
effort to make it comparable to the tonnage of Processable Waste
actually being delivered by the City to the Corporation.
Section 3.2. Inabilitv to Accent Waste. The City
further acknowledges that, as a result of equipment failure or
other unexpected problems, at some point the Corporation may be
unable to receive all or part of the City's Acceptable Waste at
the Facility or Transfer Station. In that event, the Corporation
shall bear all costs associated with the disposal of the City's
Acceptable Waste at an alternate disposal site that are in excess
of those that would otherwise have been incurred by the City or
its designated haulers had they delivered such Waste to the
Corporation. The City agrees to cooperate with the Corporation
in minimizing the disposal costs associated with the Acceptable
Waste that the Corporation is unable to receive, which efforts
will include the City directing its haulers to alternate disposal
sites identified by the Corporation. Any increased tipping costs
payable by the City or its haulers will be reimbursed to the City
(or its haulers, as the case may be) by crediting such costs
against the amounts due on the next succeeding invoices, provided
that adequate supporting documentation of such increased costs is
-14-
Cor~oration. From and after any such assignment: (a) the
ass1gnee may enforce the provisions of this Agreement, to the
extent so assigned, as though the assignee had been a party
hereto, taking the place of the Corporation~ (b) the City will
make all payments required of it by this Agreement directly to_
the assignee~ and (c) no amendment or modification of this
Agreement and no waiver of any provisions hereof shall be valid
unless joined in, in writing, by the assignee. Such assignment
may provide that it does not constitute an assumption of any
obligation by the assignee. Except as described in clauses (i)
and (ii) above, the Corporation shall not be entitled to assign
its rights and/or obligations under this Agreement without the
written consent of the City.
The City acknowledges that the Corporation intends to
assign this Agreement to U S WEST Financial Services, Inc.
pursuant to the terms of an Assignment Agreement, a copy of which
has been delivered to the City, and by its execution of the
Consent and Agreement, the City consents to such assignment.
Section 7.3. RelationshiD of the Parties. No party to
this Agreement shall have any responsibility whatsoever with
respect to services provided or contractual obligations assumed
by the other party to third parties, and nothing in this
Agreement shall be deemed to constitute either party a partner,
agent or local representative of the other party, or to create
any fiduciary relationship between the parties.
Section 7.4. Unforeseen Circumstance. Whether or not
the Corporation shall have completed construction of the Facility
or shall have commenced performance under this Agreement, the
Corporation and the City shall not be liable for failure to
perform or for delay in performing their obligations under this
Agreement if such failure or delay is a result of Unforeseen
Circumstance, except as otherwise provided in Section 2.I.b. with
respect to the delivery of the Minimum Guaranteed Tonnage. A
party claiming any excuse under this Section 7.4 shall give
prompt notice thereof to the other party.
Upon the happening of any event referred to in the
preceding paragraph, each party hereto shall devote its best
efforts to commence or resume performance of its obligations
under this Agreement as promptly as practicable (unless such
efforts could not reasonably be expected to succeed). Upon the
occurrence of an Unforeseen Circumstance that has an adverse
impact on the Corporation, the parties hereto agree that, upon
thirty (30) days notice from the Corporation describing the
Unforeseen Circumstance and the impact thereof, they will meet to
discuss the same in an effort to agree on the impact to the
Corporation. If within thirty (30) days after such first meeting
the parties are unable to reach agreement on the adjustment(s)
required to compensate the Corporation for the impact of the
Unforeseen Circumstance, such issue shall be submitted to
arbitration as provided in Section ll.l.
-24-
Section 7.5. Additional Termination Riqhts. This
Agreement may be terminated by either party upon thirty (30) days
written notice to the other party upon the occurrence of one of
the following circumstances:
a. A decision by a court of competent jurisdiction
having the effect of determining that the City cannot lawfully
contract with the Corporation for the disposal of its Waste or
that the City is legally bound to participate in the Broward
County Resource Recovery Facility or dispose of its Waste at a
Broward County approved or operated landfill, transfer station,
or resource recovery facility.
~
b. A decision by a court of competent jurisdiction
having the effect of prohibiting the City's designated hauler,
Waste Management, Inc., or any other hauler which the City
chooses to collect its Waste, from either collecting,
transferring or disposing of any material part of the Waste
stream of the City in accordance with the terms and conditions of
this Agreement.
c. A decision by a court of competent jurisdiction
having the effect of prohibiting the Corporation, or its
successors and assigns, from accepting any material part of the
Waste stream of the City, in accordance with the terms and
conditions of this Agreement.
The right to terminate described in this Section ,7.S shall be
deemed to be waived in the event it is not exercised within sixty
(60) days after the occurrence of the circumstance giving rise to
such termination rights.' In addition, the City agrees to use its
reasonable best efforts to contest any litigation which could
result in the occurrence of one of the circumstances described in
this Section 7.5.
ARTICLE VIII
CONDITIONS TO THE PARTIES' OBLIGATIONS
The obligations of the parties under this Agreement
shall be contingent upon the performance or satisfaction of the
following conditions within the respective time frames specified
below, unless said performance or satisfaction is waived in
writing by the parties:
a. Within eighteen (l8) months after execution of this
Agreement, the Corporation shall have received all licenses,
permits, and approvals required for the acquisition, construction
and operation of the Facility and the Transfer Station that are
reasonably obtainable as of such date, except certificates of
occupancy or other approvals which are not obtainable until
completion of construction.
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In the event that the condition set forth above is not
satisfied in a timely manner, either party hereto shall have the
right to terminate .this Agreement upon 30 days written notice to
the other party,' and in the event of such termination, the
parties hereto shall have no further obligation or liability to
the other by reason of this Agreement: provided, however, that
such right to terminate shall be deemed to be waived in the event
it is not exercised within sixty (60) days after the last day
upon which the applicable condition may have been satisfied.
.;
ARTICLE IX
ADDITIONAL COVENANTS OF THE CORPORATION
Section 9.l. Contracts with Additional Municioalities
or Haulers. From and after the date of this Agreement the
Corporation may contract with any municipal corporation existing
under the laws of the State of Florida or any private hauler for
the delivery of Waste to the Facility provided that the following
conditions are satisfied:
a. Such contract shall in no way impair the ability of
the Corporation to meet its obligations to the City hereunder:
and
b. Without the approval of a majority of the Cities,
the Corporation shall not charge any such new municipality or
private hauler a Tipping Fee that is less than $l.OO in excess of
the Tipping Fee charged to the City.
Section 9.2. Sharina of Excess Tipping Fee Revenues
from Third Parties. In the event that the Corporation accepts
Waste at this Facility from any party other than the City and the
Cities at a tipping fee that is greater than the Tipping Fee
payable by the City hereunder, the Corporation agrees to share
any Excess Tipping Fee Revenues (as defined below) with the City
and the Cities as follows:
a. Within thirty (30) days after the end of each
Fiscal Year, the Corporation shall determine the amount of
"Excess Tipping Fee Revenues" for such Fiscal Year, which shall
equal the amount of tipping fees paid by parties other than the
City and the Cities in excess of the amount such parties would
have paid had they been charged the Tipping Fee payable by the
City.
b. Within said thirty (30) day period, the Corporation
shall remit to the City and the Cities an amount equal to fifty
percent (50%) of the Excess Tipping Fee Revenues less all costs
that have been previously incurred by the Corporation for the
provision of the Letter of Credit (as defined in the SWDA) during
the term of the SWDA (except to the extent such costs have
already been reimbursed to the Corporation pursuant to the offset
mechanism described in this Subsection 9.2.b.). Notwithstanding
-26-
the foregoing, the computation of Excess Tipping Fee Revenues
shall not include any tonnage of Processable Waste delivered by
parties other than ,the City or the Cities (and their haulers) to
the extent that such tonnage was credited against the Minimum
Guaranteed Tonnage required to be delivered by the City or the~
Cities. Unless otherwise agreed to by the City and the Cities,
the City shall share in such remittances by the Corporation in
proportion to the relative tonnages of Waste accepted by the
Corporation from the City and the Cities during the prior Fiscal
Year.
,...
c. In all events the Corporation shall pay the City
and the Cities a minimum of $l.OO for each ton'of processable
Waste delivered by parties other than the City or the Cities and
their haulers, except for tonnage that is described in
Section 9.2.b. Any such payment shall be shared by the City and
the Cities in such manner as they shall mutually agree.
Section 9.3. DisDosition of ComDost. In the event
that the Corporation is unable to sell all of the compost
produced at the Facility, the Corporation shall, prior to
disposing of any such compost, first offer such compost to the
City and the Cities at no cost. In the event that the City
desires to use a portion of such compost it shall notify the
Corporation of its intent and promptly arrange to pick up the
compost at the Facility at the City's expense.
Section 9.4. Right of First Refusal.., ,. ,In the event
that the Corporation desires to sell the Facility to a third
party during the term of this Agreement, or any extension thereof
as contemplated by Section 7.l, it shall first offer the City and
the Cities the option to buy the Facility by delivering to the
City and the Cities written notice of its intention to sell.
Said notice (the "Sale Notice") shall contain all material terms
of the proposed disposition. For a period of sixty (60) days
following the date of mailing of the Sale Notice (the "Option
Period"), the City and the Cities shall have the right to accept
the Corporation's offer to sell the Facility on the terms and
conditions contained in the Sale Notice. The City and the Cities
shall give the Corporation written notice of acceptance or
rejection of their option before the expiration of the Option
Period. If the City or the Cities do not accept the
Corporation's offer within the Option Period, the Corporation
shall be free to sell the Facility to the proposed purchaser
named in the Sale Notice; provided, however, the Corporation may
not sell the Facility at a price materially less than that
proposed in the Sale Notice without first re-offering the
Facility to the City and the Cities pursuant to this Section 9.4.
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AR~ICLE X
MISCELLANEOUS
Section 10.1. Notices. All notices, consents and
other communications required or permitted by this Agreement, _
unless otherwise specified, are required to be in writing and
shall be deemed delivered when tendered to the other party by
hand to such party's designated representative, or, if mailed,
shall be deemed to have been given when dispatched by certified
mail, return receipt requested, postage prepaid, and addressed as
follows:
~
If to the Corporation:
Reuter Recycling,of Florida, Inc.
c/o Reuter, Inc.
410 lIth Avenue South
Hopkins, MN 55343
Attn: President
If to the City:
City of Parkland
or to such other addresses as the parties hereto may, from time
to time, designate in writing by notice to the other party.
Section 10.2. Entire and Complete Aareement. This
Agreement constitutes the entire and, complete Agreement of the
parties, exclusive of all prior or contemporaneous
understandings, arrangements and commitments, all of such,
whether oral or written, having been merged herein.
Section lO.3. Severability. In case anyone or more
of the provisions contained in this Agreement 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 Agreement, but this
Agreement shall be construed as if such invalid, illegal or
unenforceable provision had never been contained herein.
Section 10.4. Applicable Law. The laws of the State
of Florida shall govern the validity, interpretation,
construction and performance of this Agreement.
Section 10.5. Construction. The parties hereto
acknowledge and agree that each party has participated in the
drafting of this Agreement and that the normal rule of
construction to the effect that any ambiguities are to be
resolved against the drafting party shall not be employed in the
interpretation of this Agreement.
Section 10.6. Applicable Law. The laws of the State
of Florida shall govern the validity, interpretation,
construction and performance of this Agreement.
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ARTICLE XI
ARBITRATION
Section ll.l. All claims, disputes and other matters
in question arising out of, or relating to, this Agreement or ~he
breach thereof, shall be decided by arbitration at a location
within the State of Florida reasonably acceptable to the parties
to such dispute in accordance with the Arbitration Rules of the
American Arbitration Association then obtaining unless the
parties mutually agree otherwise. This agreement to arbitrate
shall be specifically enforceable under the prevailing
arbitration law. Notice of the demand for arbitration shall be
filed in writing with the other party to this Agreement and with
the American Arbitration Association. The demand for arbitration
shall be made within a reasonable time after the claim, dispute
or other matter in question has arisen, and in no event shall it
be made when institution of legal or equitable proceedings based
on such claim, dispute or other matter in question would be
barred by the applicable statute of limitations. The award
rendered by the arbitrators shall be final and judgment may be
entered upon it in accordance with applicable law in any court
having jurisdiction thereof.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives
as of the day and year first above written.
REUTER RECYCLING ,OF FLORIDA,
INC.
By
Its
Approved as to form
and execution.
CITY OF PARKLAND
City Attorney
By
Its Mayor-Commissioner
Attest:
City Clerk
-29-
EXHIBIT A
CONSENT ~ AGREEMENT
CONSENT AND AGREEMENT (this "Consent"), dated as of
, 1991, by and among Reuter Recycling of Florida,
Inc., a Florida corporation (hereinafter the "Corporation"); the
municipality of Parkland, Florida (the "City") an existing
municipal corporation organized under the laws of the State of
Florida; and 0 S WEST Financial Services, Inc., ("Agent") 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 Waste Supply Agreement--Parkland, of even date
"herewith (the "Waste Disposal Agreement").
RECITALS
A. The Corporation and the City 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 City has agreed, among other things, to
deliver or cause to be delivered to the Corporation or its agent,
commencing on the Completion Date and continuing thereafter
during the term of the Waste Disposal Agreement, all of the
Acceptable Waste that is generated within its boundaries and
collected by (or available for collection by) the City or its
designated 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, together 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").
D. Nothing herein shall be deemed to abrogate or,
except to the extent set forth in Sections 2 and 3 hereof, amend
the Waste Disposal Agreement.
E. Pursuant to Section 7.17 of the Construction and
Senior Term Loan Agreement and Section 2.2 of the Assignment
Agreement, the Corppration has agreed to assign to the Agent,
among other things, all of its rights, title and interests in, to
and under the Waste Disposal Agreement to secure the Loans.
NOW, THEREFORE, in consideration of the benefits to the
Corporation and the City 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 hereto hereby consent and agree as follows:
Section I. DEFINITIONS.
,",
As used in this Agreement and unless otherwise
expressly indicated, or unless the context clearly requires
otherwise:
(a) All the agreements or instruments herein defined
shall 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.
(b) The terms "Agent" , "Assignment", "City",
"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.
Section 2. CONSENT TO ASSIGNMENT: RELATED MATTERS.
(a) Consent to Assianment. The City hereby
acknowledges receipt of a copy of the Assignment and consents to
the assignment of the Waste Disposal Agreement to the Agent on
terms substantially similar to those set forth in the Assignment.
(b) Riahts of Citv 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 and obligations of the
Corporation under the Waste Disposal Agreement, then the Waste
Disposal Agreement shall continue in full force and effect and
the rights of the City thereunder shall not be disturbed. The
City and the Transferee shall be bound under the terms and
conditions of the Waste Disposal Agreement for the balance of the
term thereof.
-2-
(c) Lender Liabilitv 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 Agent or the Senior Lenders or the
Subordinated Lenders, or any person acting on behalf of any of
them, owing to the 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
Wa~te Disposal Agreement or make any claims with respect to any
payments, deliveries or other obligations under the Waste
Disposal Agreement.
(d) Notices. The City will furnish to the Agent at
its address at 6300 South Syracuse Way, Suite 700, Englewood,
Colorado 80lll, 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, concurrently 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 the City to deliver such a notice to the Agsnt
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) The City agrees that, notwithstanding any
right it may have under the Waste Disposal Agreement, it shall
not terminate the Waste Disposal Agreement unless it shall have
given the Agent at least 60 days' prior written notice of its
intent to terminate 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 City (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, the
City agrees that it will not take any action to terminate the
Waste Disposal Agreement as a result of such default provided
-3-
..;
that the Agent or the Lenders are diligently pursuing foreclosure
proceedings or other remedies under the Security Documents (such
proceedings to have commenced within 60 days); provided, however,
that the City shall not be required to delay termination of the
Waste Disposal Agreement for such reason for more than one year~
without its consent (which consent shall not be unreasonably
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 successor statute) or pursuant to a valid order or decree of
a court of competent jurisdiction.
,",
(iii) Notwithstanding the foregoing, following an
Event of Default by the Corporation under the Waste Disposal
'Agreement (giving effect to applicable grace periods), the City
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 City 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 City's haulers to dispose of such Waste at
alternate disposal sites identified by the Corporation
in accordance with Section 3.2 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 or Transfer Station as a
result of which the City is 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
payable under the Waste Disposal Agreement had such
Acceptable Waste been accepted at the Facility or
Transfer Station; provided, however, that termination
in this circumstance shall take effect only if the City
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 orovided further, that such
requests shall be made no more often than monthly.
-4-
(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 City agrees that-
should a Transferee acquire title to the Collateral, the City
shall waive any default under the Waste Disposal Agreement as
against the Transferee, the Agent or the Lenders that occurred
prior to the date of such acquisition which is incapable of being
cured by the payment or advance of money to the City or in
connection with the collateral, including but not limited to, the
bankruptcy, reorganization or insolvency of, or the assignment
for the benefit of creditors by, the Corporation, Drovided that
nothing herein shall excuse the Transferee from otherwise
complying with all terms and conditions of the Waste Disposal
Agreement.
-"
(v) The Lenders may assign their rights and
interests 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 the 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 the
City of any such assignment and of the proposed purchaser or
transferee and the City shall be deemed to have made the
foregoing determination unless it shall 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 paragraph 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,OOO,OOO or (C) it has the benefit of a guarantee 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 obligations 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 otherwise 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, the 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
-5-
Consent, which shall be for the balance of the rema1n1ng 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
sale thereunder by the Agent or any Lender, whether by judicial
proceeding or any power of sale, or any conveyance from the
Corporation in lieu thereof, shall not require the consent of the
City or constitute a breach of the Waste Disposal Agreement.
Upon such foreclosure, sale or conveyance, the City (A) shall
recognize the Lenders or their 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, the City hereby agreeing to look
solely to the Corporation.
Section 3.
COVENANTS.
The 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) The City shall request its counsel to deliver to
the Agent, concurrently with the execueion of this Consent, an
opinion of such counsel addressed to the Agent and the Lenders
substantially in the form attached hereto as Exhibit A.
(b) 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.
(c) 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 City and
its 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 accordance with the Loan Agreements
and Security Documents.
(d) For all purposes of the Waste Disposal Agreement,
Waste that is diverted to disposal sites other than the Facility
or Transfer Station shall be deemed to have been accepted by the
Corporation if the Corporation pays the costs of disposing of
such Waste at the alternate disposal site.
Section 4. OBLIGATIONS ABSOLUTE AND UNCONDITIONAL
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This 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 5.
MISCELLANEOUS
(a) Amendments, Waiver. The Waste Disposal Agreement,
including this Consent, shall not be terminated, amended,
supplemented, 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) Severabilitv of Provisions. In case anyone 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 contained herein.
(c) Governina Law. This Consent shall be governed by
and construed in accordance with the laws of the State of Florida
and shall be binding on, and inure to the benefit of, the
Corporation, the City and the Agent and their successors and
assigns.
(d) Further Assurances.
hereby agree to execute and deliver
all such action as may be necessary
purposes of this Consent.
The Corporation and the City
all such instruments and take
to effectuate fully the
(e) Ratification. Etc. The Waste Disposal Agreement
is hereby ratified and confirmed in all respects, and all terms,
conditions and provisions of the Waste Disposal Agreement, as
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) Counteroarts. 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.
By:
Its:
-7-
By:
City Manager
Its:
Approved as to form and
correctness
City Attorney
CITY OF PARKLAND
By:
Its: Mayor
Attest:
City Clerk
U S WEST Financial Services,
Inc.
By:
Its:
-8-
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EXHIBIT A to
Consent and Agreement
U S WEST Financial Services, Inc.
as Agent for the lending institutions under the Loan
Agreements referred to herein
6300 South Syracuse Way, Suite 700
Englewood, Colorado 80111
Ladies and Gentlemen:
I have acted as counsel to the City of Parkland, Florida (the
"City") in connection with the execution and delivery of the Waste
Supply Agreement--Parkland ("Waste Disposal Agreement") dated as of
, 19 , between Reuter Recycling, of Florida, Inc.
(the "Company") and the City of Parkland, Floria, as modified by the
Consent and Agreement of even date therewith (the "Consent") among the
Company, such City and U S West Financial Services, Inc. as agent (the
"Agent") for the lending institutions that become parties to the Loan
Agreements referred to below. This opinion is being delivered to you
pursuant to the Consent.
In so acting as counsel to the City, I have examined, among other
things, the Waste Disposal Agreement, the charter of the City and its
ordinances and resolutions, and such certificates and other documents,
and have made such investigations of law, as I have deemed relevant
and necessary for the opinions hereinafter expressed.
Based on the foregoing, I am of the opinion that:
(a) The City is a duly organized and existing municipal corpora-
tion validly existing under the laws of the State of Florida and,
subject to the statements below, has all requisite power and authority
to enter into the Waste Disposal Agreement and to carry out the
transactions contemplated thereby.
(b) The Flow Control ordinance of the City has been duly adopted
by the City and, subject to the statements below, is in full force and
Page 2
effect. The execution and delivery of the Waste Disposal Agreement
have been duly authorized by one or more resolutions or ordinances
adopted at duly called meetings of the governing body of the City by
the requisite vote of its members. The Waste Disposal Agreement has
been duly executed and is a legal, valid and binding obligation of the
City enforceable against the City in accordance with its terms except
as the enforcement thereof may be limited by (i)bankruptcy, insolven-
cy, reorganization, moratorium or similar laws affecting the enforce-
ment of creditors rights generally or (ii) general principles of
equity.
(c) Subject to the statements below, the execution 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, violate 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 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 property.
(d) Subject to the statements below, the City is duly authorized
to collect solid waste within Broward CountYJ and no approvals of any
local governmental bodies are 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. No opinion is expressed with respect to
whether the City's designated haulers have obtained any govenmental
approvals that may be necessary for their solid waste collection
activities.
(e) Subject to the statements below, 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 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 and adoption of a Flow
Control Ordinance.
The City of Parkland has been informed by representatives of
Broward County that it is their belief that the City may not legally
contract with Reuter Recycling of Florida, Inc. or enact the Flow
Control Ordinance. These representatives have also indicated that the
City must participate in the County's resource recovery program and
deliver its waste to County facilities. All the above representations
(
. f
Page 3
are therefore made subject to these claims which may effect the
accuracy of this opinion statements above d~pending on their validity.
No opinion is offered in this letter as to their validity or invalidi-
ty and the City's obligations under Chapter 403, Florida Statutes.
Further, the City presently has a contract for the collection of
its solid waste with Waste Management, Inc. which is valid to 1996.
That contract provides that Waste Management takes title to all solid
waste upon collection. However the City does,not impose individual
charges for its solid waste collection services but instead pays for
such services from general revenues. The representations contained
-herein are also made subject to these facts.