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1991-14 Reuter Contract Replaced by Ordinance 1992-19 6;/91" /1( 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 ~ 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). -1- 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. ," 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 -2- 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. f 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 -3- 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: \' , 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 -4- 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 ,.f- 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 -5- 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. ,'" 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 -6- 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. ,", 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. -7- 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. ,", 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 -8- 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. ,- 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 -9- ,.- 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, -10- 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 -11- ," 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. -15- 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 -17- 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. -18- 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. -19- 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 -21- 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. -13- 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. -25- 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. -27- 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. -28- 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 -6- 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- ( j""' r:~,:'~ ~2?',~C-~ ~,~~ ~.;..~~. '."''I-;~. ~"!';',;l"""" "Ih.~" \h,~;n., ,""ll:l'~\ ,{~, ~~,: l(:j ffiJ 'fj.~ &'il .t~ ,,:!~. ~ ",,", _.., I,~ s: '" .';.' " . 1J!IIl.... .....;..,;,.' ~..::! .., -.!.'. .~ f.}~ .' -: 1J,'~ ..,,L..;,;', ti.'. '{"'I ~" ",,",-~ ~~'. t'\: '~1 ~:~:i:".,~i M'}~--:; r;~~ II'" ':$ ,<<. ~.;; c~,.- "'<:' I,. "', .,.~ ',-," '. " -~.,., i';>;; '., '1'-. ' :'~"""''Q~'' ~ti , .... .. ~_' ~.4 " ..' _~.''',--:'''''' ..~,r. .... .~; t.,;::L~t' ' ,>:0 .. , ,.- 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.