Broward County Solid Waste and Recycling Issues Study...recycled and which would otherwise be...

AGREEMENT CHECKLIST FORM

AGREEMENT TOPIC REUTER RECYCLING OF FLORIDA INC

DATE OF AGREEMENT 0611704

DATE OF EXPIRATION 010112022

COMMISSION MINUTES PERTAINING TO AGREEMENT

061604 ITEM NO 22

ORIGINAL SIGNATURE YES

MICROFILMED

AGREEMENT NUMBER 5i5Di04

SPECIAL CONDITIONSI REQUIREMENTS OF AGREEMENT

AGENDA REQUEST FORM City of Pembroke Pines Florida

AGENDA ITEM NO MEETING DATE 6116104 22

TITLE SETTLEMENT OF PENDING ARBITRAll0N WITH REUTER RECYCLING OF FLORIDA INC

REQUESTED ACTION f MOTION TO AUTHORIZE SETTLEMENT WITH REUTER BY APPROVING A NEW HOST FEE AGREEMENT WITH REUTER RECYCLING OF FLORIDA INC AND CORRESPONDING SETTLEMENT DOCUMENTS

SUMMARY EXPLANATION AND BACKGROUND

1 A Solid Waste Disposal Agreement (SWDA) between Reuter Recycling and the City was signed on or about August 19 1988 and expires on January 1 2012

2 The City of Pembroke Pines Is currently in arbitration with Reuter regarding the SWDA Pursuant to the direction of the City Commission the City desires to resolve this dispute with Reuter

3 It is understood by the parties that the City and Reuter agree to terminate the SWDA and replace it with this Host Fee Agreement

4 In addition to executing the Host Fee Agreement the City shall enter Into a Joint Stipulation to dismiss the arbitration and both parties shall execute mutual General Releases

5 Recommend approval of this agreement

EXHIBITS (LIST) I 1 Host Fee Agreement between City of Pembroke Pines and Reuter Recycling of Florida

Inc 2 Joint Stipulation and Proposed Order 3 Mutual General Releases

PREPARED BY I SOURCE OF ADDITIONAL INFORMATION I

NAME Rene Gonzalez Name Rene Gonzalez Finance Director Phone 435-6515

SUBMITTED BY

~~~ ~~~~ Charles F Dodge ~ ReneGonz

City Manager Finance Director

COMMISSION ACTION Motion Passed 61604

~~~--Eileen Tesh City Clerk

06-09-04

HOST FEE AGREEMENT

THIS IS A DISPOSAL AGREEMENT made as of j 4IJf 11 2004 by and between REUTER RECYCLING OF FLORIOA INC 20701 Pembroke Road Pembroke Pines Florida 33029 a Florida corporation (Reuter) and the CITY OF PEMBROKE PINES FLORIDA a municipal corporation (City)

WHEREAS Reuter presently operates a resource recovery facility and transfer station at its Pembroke Pines facility (Reuter Facility or the Facility) and

WHEREAS Reuter agrees to accept for disposal Acceptable Waste from City (as hereinafter defined) which is delivered to the Reuter Facility as the case may be by City or its DeSignated Hauler on the terms and conditions hereinafter set forth and

WHEREAS City and Reuter desire to enter into this Host Fee Agreement in replacement of that certain Solid Waste Disposal Agreement dated 1988 (the SWDA) which is hereby terminated as to City

NOW THEREFORE in consideration of the material covenants contained herein and for other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged the parties agree as follows

1 (a) The parties acknowledge that the City and Reuter are parties to that certain Solid Waste Disposal Agreement signed on or about August 19 1988 (rfSWDA) The SWDA currently expires January 1 2012 It is understood by the parties that the City and Reuter agree to terminate the SWDA and replace it with this Host Fee Agreement

(b) Term The term of this Agreement shall commence on JYNE IJ 2004 and shall continue through January 1 2022 (Initial Term) Upon expiration of the Initial Term this Agreement may be renewed for additional terms by mutual written agreement of the parties

(c) Dismissal and Release Additionally City and Reuter are presently engaged in arbitration in that certain matter captioned ttln the Matter of the Arbitration Between the City of Dania Beach the City of Hallandale Beach the City of Pembroke Pines and the City of Pompano Beach Claimants and Reuter Recycling of Florida Inc Respondent (the Arbitration) The parties agree that the City shall withdraw from the Arbitration and shall dismiss its claims with prejudice and in so doing acknowledges that Reuter has not admitted or conceded the truth of any of the allegations contained in the Arbitration and specifically denies any wrongdoing or liability Simultaneously with the execution of the documents set forth herein the Parties shall execute and deliver mutual releases releasing the other party from all claims that were or could have been raised in the above captioned Arbitration or any litigation as well as any and all counterclaims defenses crossclaims or third-party claims that could have been filed andor raised in said Arbitration or litigation

(d) Further Reuter shall defend indemnify and hold the City (including its elected offiCials employees agents and representatives) harmless from any and all

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liabilities losses or damages (Damages) of any kind that the City may suffer as a result of the termination of the SWDA and execution of the Disposal Agreement that replaces the SWDA Reuter will provide experienced counsel of its choosing to defend the City provided that such counsel shall not have a conflict of interest and shall be reasonably acceptable to the City City shall cooperate with Reuter in providing a defense to any such claim for which indemnification is provided herein Such cooperation shall include but shall not be limited to providing documents data and information within the control of the City its elected officials and employees access to and cooperation of employees agents and officials and similar matters reasonably requested by Reuter to defend such actions Compensation to City employees in cooperating with Reuter in the defense of claims shall not be considered Damages for purposes of this provision The obligations to defend indemnify and hold harmless set forth herein shall survive termination of this Agreement

2 Definitions

a) Acceptable Waste means Curbside Recyclables and non-hazardous Solid Waste (including but not limited to Class I Class III and CaD) that does not require the Reuter Facility to incur any handling costs in excess of those attributable to Class I Solid Waste and each of which shall be expressly authorized pursuant to any and all laws regulations authorizations permits contracts registrations and notices of intent (and any related applications) registrations notices of intent and any administrative orders or agreements (Authorizations) at the Reuter Facility Acceptable Waste shall not contain any regulated quantity of (i) infectious waste (ii) Hazardous Waste (iii) other waste which is required by a governmental authority or by its general nature to be handled or disposed of other than in accordance with the Reuter Facilitys normal operating procedures or (iv) waste that does not strictly conform to the descriptions of waste materials that the Reuter Facility is authorized to accept under its Authorizations The Reuter Facility in its sole but reasonable discretion shall have the right to reject or any material or any load containing material that does not conform to the definition of Acceptable Waste set forth herein Any handling costs associated with disposal of waste accepted by Reuter but not deemed to be Acceptable Waste shall not be borne by City Acceptable Waste shall only include that which is generated within the municipal boundaries of City

b) Hazardous Waste means waste listed characterized or designated as hazardous by the United States Environmental Protection Agency pursuant to the Resource Conservation and Recovery Act 42 USc 6901 et seq as amended from time to time and its implementing regulations as well as by any analogous Florida statute or rules

c) Solid Waste means non-hazardous and non-special muniCipal solid waste as defined in 62 FAC 701200 to the extent that such materials are of the type and consistency to be lawfully accepted at the Facility under applicable federal state and local laws and regulations and Authorizations

d) Class III solid waste means Solid Waste that is composed of carpet cardboard paper glass plastic furniture other than appliances (including White Goods- CFC and White Goods-Non-CFC) and other bulky materials

e) Class I solid waste means Solid Waste that contains substantial amounts or primarily consists of putrescible household and commercial non-industrial waste generated in the ordinary course of business by office retail and similar establishments

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f) Change in Law means (i) the adoption promulgation or modification or reauthorization after the date of this Agreement of any law regulation order statute ordinance rule or binding judiciaL or administrative ruLing that was not adopted promulgated modified or reissued on or before the date of this Agreement or (ii) the imposition of any material conditions in connection with the issuance renewal or modification of any permit license registration notice of intent or approval after the date of this Agreement which in the case of either (i) or (il) establishes requirements affecting a partys operation under this Agreement more burdensome than the requirements that are applicable to such party and in effect as of the date of this Agreement A change in any federal State county tax law or workers compensation law shall not be a Change of Law

g) ffCurbside Recyclables means those materials which are capable of being recycled and which would otherwise be processed or disposed of as residential or commercial Solid Waste and which are collected by the CityS Designated Hauler at curbside These materials will be as defined by the City from time-to-time Curbside Recyclables shall include unless otherwise agreed by the parties newsprint clear green and brown glass containers steel cans aluminum beverage containers 1 PETE PVC3 and 2 HOPE plastic containers

h) Authorizations means those permits licenses registrations approvals certificates contracts credentials warrants and authorizations issued by any applicable federal state and local governmental agency body jurisdiction or unit

l) White Goods -- CFe means appliances or other devices that contain or may release freon or chlorofluorocarbons including but not limited to refrigerators freezers air conditioning units dehumidifiers

j) White Goods -- Non-CFe means appliances that either are not designed to and do not contain freon or chlorofluorocarbons or have had same removed by an authorized licensed and certified operator in compliance with all applicable laws and regulations and are duly tagged

k) Designated Hauler means the hauler or haulers that collect solid waste and Curbside Recyclables or either of them on behalf of the City within the City limits of Pembroke Pines FL

l) Fiscal Year means the twelve (12) month period commencing October 1 and ending September 30

m) Construction and Demolition Debris or CampD means that material defined in FAC 62-701200 as amended from time to time As of the date of this Agreement CaD is defined in FAC 62-701200 as discarded materials generally considered to be not water soluble and non-hazardous in nature including but not limited to steel glass brick concrete asphalt material pipe gypsum wallboard and lumber from the construction or destruction of a structure as part of a construction or demolition project or from the renovation of a structure including such debris from construction of structures at a site remote from the construction or demolition project site The term includes rocks soils tree remains trees and other vegetative matter which normally results from land clearing or land development operations for a construction project clean cardboard paper plastic wood and metal scraps from a construction project except as provided in Section 403707(12)(j) FLorida Statutes unpainted non-treated wood scraps from facilities manufacturing materials used for

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construction of structures or their components and unpainted non-treated wood paLlets provided the wood scraps and pallets are separated from other solid waste where generated and the generator of such wood scraps or pallets impLements reasonable practices of the generating industry to minimize the commingling of wood scraps or pallets with other solid waste and de minimis amounts of other non-hazardous wastes that are generated at construction or demolition projects provided such amounts are consistent with best management practices of the construction and demolition industries Unprocessed CaD shall mean construction and demolition debris that has not been subject to picking screening for removal of component materials recyclables and other materials CaD is Solid Waste to the extent that it is not classified as Recovered Materials as defined pursuant to FAC 62shy701200 or otherwise by state law now or in the future

3 Citys Delivery Obligations City shall deliver andor require its contracted or Designated Haulers to deliver to the Reuter Fadlity all Acceptable Waste generated within the City limits During the term of this Agreement Reuter guarantees disposal capadty within the Waste Management family of companies for the Citys waste City represents that it will take reasonable steps to enforce the delivery obligations set forth herein

4 Schedules and Processing Except as otherwise provided herein Reuter shall accept and process all Acceptable Waste delivered or caused to be delivered to Reuter by City or its DeSignated Hauler at the Facility All deliveries shall be made by self-powered mechanical unloading vehicles Vehicles shall be weighed upon entering the Fadlity loaded Vehicles may be re-weighed after unloading to validate the true weight of the vehicles City and Citys DeSignated Hauler shall comply with all applicable federal state and local safety and administrative rules and regulations as well as those promulgated by Reuter

5 Billing and Payment Reuter shall tender to the City or the Citys Designated Hauler as the case may be a statement of the compensation due Reuter resulting from processing Citys waste monthly City or its Designated Hauler shall pay the statements in compliance with the Florida Prompt Payment Act as set forth in Part VII Chapter 218 Florida Statutes Provided however that invoices which are legitimateLy disputed by the City shall not be subject to interest while being disputed Failure to make timely payment of undisputed invoices may be grounds for suspension by Reuter of acceptance of material from City andor for termination of this Agreement by Reuter pursuant to Section 9 below in addition to all other rights and remedies Reuter may have at law or in equity However neither suspension nor termination may be initiated without first providing City with notice pursuant to Section 10 below and 30 days from such date of notice for an opportunity to cure

6 Rate City or its Designated Hauler as the case may be shall pay Reuter Sixty Seven and 69100 ($6769) per ton of Acceptable Waste delivered to the FadUties The rate for Unprocessed CaD shall be $3500 per ton

Currently the rates are not subject to federal state or local governmentally imposed fees related to the handling or disposal of Solid Waste recyclable materials or other materials governed by this Agreement (ffFees) In the event that Fees may be imposed by a governmental entity they shall be passed through and borne by the Designated Hauler

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7 Adjustment to Rate

a) The rates set forth in Section 6 shall be adjusted automatically as of October 1 of each Fiscal Year of the term of this Disposal Agreement (the Adjustment Date) by adding to the then current Fiscal Years rate the amount obtained by multiplying such current rate by the average change expressed as a percentage of the following two indices as determined as follows

(1) From the Producer (Wholesale) Price Index for Durable Goods for the region including Broward County as determined and recorded by the United States Department of Labor Bureau of Labor Statistics for March (final) prior to the expiration of the Fiscal Year immediately preceding the Adjustment Date subtract the amount of such index for the same date in the next preceding Fiscal year The difference shall be expressed as a percentage

(2) The change expressed as a percentage for said period in the Consumer Price Indexmiddot All Urban Consumers (CPI-U) for the region including Broward County as determined and recorded by said Bureau of Labor Statistics for the month of April prior to the expiration of the Fiscal Year immediately preceding the Adjustment Date shall be similarly calculated

The percentage change of each of the foregoing indices so determined shall be added together The sum of those numbers shall then be divided by two to determine the average change expressed as a percentage of the two indices (the Average Change) The rate shall be adjusted by seventy five percent (75) of the Average Change for each Fiscal Year during the term of this Disposal Agreement Notwithstanding the foregoing if the Average Change is a negative number the Average Change shall first be reduced by twenty-five percent (25) to exclude labor costs from the calculation before applying the foregoing percentages For example if the Average Change for the Fiscal Year ending September 30 2003 is a negative 4 the Average Change shall first be reduced by 1 (Le 25 of 4) before calculating the adjustment to the rate described above Under that example the then current rate would be multiplied by the product of 75 and 3 and the rate would be reduced by the resulting amount

In the event that either or both of said indices shall no longer be available during the term of this Disposal Agreement the parties hereto shall mutually select a replacement index or indices as required provided that any such replacement shall in the best judgment of the parties be as nearly the same as the replaced index or indices

The rate provided for in this section shall be calculated and established by Reuter each Fiscal Year utilizing the tndices described hereinabove and shall be effective for the next ensuing Fiscal Year The first such adjustment shall be effective October 1 2004 based on the Average Change for the period January 1 2003 through September 30 2003

b) In addition Reuter may request the City to adjust the rate based upon unusual and unanticipated increases in the cost of doing bUSiness including but not Umited to a change in law or regulation (Change in Law) Any such request shall be supported by full documentation establishing the increase in operating costs and the reasons therefor The City shall be entitled to audit Reuters financial and operational records directly related to Reuters request in order to verify the increase in costs and the reasons therefor

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Upon the receipt of such information the City promptly shall review the information

and within thirty (30) days of such receipt shall respond to Reuter in writing stating whether it agrees or disagrees with the request The City shall use its reasonable discretion in considering the request under this provision and may grant the request in whole or in part or may deny the request in its entirety The City may in its sole discretion impose reasonable conditions on any relief granted The Citys determination shall be final

8 Force Majeure The performance of this Agreement may be suspended and the obligations of either party excused in the event of and during the period that such performance is prevented or delayed by a Force Majeure occurrence Force Majeure shall mean

(a) An act of God including hurricanes tornadoes landslides earthquakes fire flood explosion sabotage or similar occurrence acts of a public enemy extortion war blockade or insurrection riot or civil disturbance but shall not include fire or explosions that are due to the act omission or negligence of Reuter its agents or employees

(b) The order or judgment of any federal State or local court administrative agency or governmental body (excluding decisions of federal courts interpreting federal tax laws and decisions of State courts interpreting State tax laws) if it is not also the result of the willful misconduct or negligent action or inaction of the party relying thereon or of a third party for whom the party relying thereon is responsible provided that neither the contesting in good faith of any such order or judgment nor the failure to so contest shall constitute or be construed as a measure of willful misconduct or negligent action or inaction of such party

(c) The failure to issue suspension termination interruption denial or failure of renewal of any Permit or approval essential to the operation of one or more of the Facilities provided that such failure does not arise from the Facilities negligence or failure to comply with rules regulations permits or licenses

(d) A Change in Law

(e) The failure of any appropriate federal State County or local public agency or private utility or similar entity having operational jurisdiction in the area in which the Facility is located to provide and maintain utilities services water and sewer lines transportation or similar function and power transmission lines which are required for and essential to the operation of one or more of the Facility

(f) The condemnation taking seizure involuntary conversion or requisition of title to or use of the designated facility or any material portion or part thereof taken by the action of any federal State or local governmental agency or authorities

As a condition precedent to the right to claim excuse of performance the party experiencing a Force Majeure event shall

(a) Promptly notify the other party verbally and

(b) As soon as practical but in no event more than ten (10) days thereafter prepare and deliver to the other party a Notice with a written description of (1) the

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middot - ~-------------------------------------

commencement of the Force Majeure event and (2) its estimated duration and impact on the partys obligations under this Agreement

Whenever a Force Majeure event shall occur the parties shall as quickly as possible to the extent reasonable eliminate the cause and resume performance under this Agreement Additionally either party shall provide prompt Notice to the other of the cessation of a Force Majeure event

9 Termination for Default If either party defaults in the performance of this Disposal Agreement for thirty (30) days after the other party has given the defaulting party written notice thereof the non-defaulting party may elect to terminate this Agreement andor pursue any other remedies at law or in equity with respect to such default The rights of the non-defaulting party hereunder shall be in addition to and not in substitution of any rights it may have at law or in equity

10 Notice Notices shall be given hereunder by certified mail return receipt requested with postage prepaid thereon or by private courier service requesting evidence of receipt as a part of its service addressed to the parties at their respective addresses appearing below (or at such other address as may be designated in a notice pursuant hereto)

As to Reuter John Casagrande Market Area Vice President Waste Manapoundement Inc of Florida 2700 NW 48 Street Pompano Beach FL 33073 Telephone No (954)984-2001 Facsimile No (954) 984-2057

Copy to Ronald Kaplan Florida Counsel Waste Manaement Inc of Florida 2700 NW 48 Street Pompano Beach FL 33073 Telephone No (954)984-2021 Facsimile No (954)984-2057

As to City Charles F Dodge City Manager City of Pembroke Pines 10100 Pines Boulevard Pembroke Pines Florida 33026 Telephone No (954) 431-4884 Facsimile No (954) 437-1149

With copy to Samuel S Goren City Attorney Goren Cherof Doody 8 Ezrol P A 3099 East Commercial Boulevard Suite 200 Fort Lauderdale Florida 33308 Telephone No (954) n1-4500 Facsim1le No (954) n1-4923

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11 Governing Law This Agreement shall be governed by and construed in accordance with the laws of the State of Florida applicable to contracts made and to be performed in that state In the event of any litigation related to this Agreement the prevailing party shall be entitled to recover reasonable attorneys fees and costs related to the action

12 Assignment This Agreement may not be assigned by either party without the prior written consent of the other party which may be withheld in its sole discretion provided however that Reuter may assign this Agreement to its parent or affiliated company without the consent of the City An allowed assignment shall not relieve the assignor of liability hereunder An assignment that is made or attempted without consent of the other party hereto is void and of no effect

13 Successors This Agreement shall inure to the benefit of and be binding upon the respective successors and allowed assigns of the parties

14 Entire Agreement This Agreement embodies the entire agreement of the parties as to the subject matter hereof It may not be modified varied altered or discharged except by written agreement signed by the parties hereto

15 Waiver Failure to enforce any provision hereof shall not constitute a waiver by either party and any such provision shall remain in full force and effect and may be asserted by either party at any time during the period of this Agreement

16 Severability If any clause provision or part of this Agreement is declared unenforceable or void it shall not affect the enforceability of the balance of such clause provision or part thereof with the Agreement as a whole

17 Captions The captions herein are solely for the convenience of the parties and shall not be used to modify amplify decrease or otherwise interpret the provisions herein

18 Insurance

(a) Reuter shall procure and maintain for the term of this Agreement and any extension thereof the following insurance coverages

Workers Compensation Coverage A Statutory Coverage B $1000000

Automobile Liability Bodily Injury $1000000 each person $1000000 each accident

Property Damage $1000000 each accident

Comprehensive General Liability $1000000 each occurrence Bodily Injury $1000000 aggregate

Property Damage $1000000 each occurrence $1000000 aggregate

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Environmental Impairment $1000000 aggregate

Umbrella coverage $5000000 aggregate

(b) The City represents and warrants that it is selfmiddotinsured

(c) Certificates of Insurance reflecting evidence of the required insurance shall be filed with the Citys Risk Manager prior to the commencement of this Agreement These Certificates shall contain a provision that coverages afforded under these policies will not be cancelled until at least fortymiddotfive days (45) prior written notice has been given to the CITY Policies shall be issued by companies authorized to do business under the laws of the State of Florida Financial Ratings must be not less than AmiddotVI in the latest edition of Best Key Rating Guide published by AM Best Guide

(d) Insurance shall be in force until the obligations required to be fulfilled under the terms of the Agreement are satisfied In the event the insurance certificate provided indicates that the insurance shall terminate and lapse during the period of this Agreement then in that event Reuter shall furnish at least forty-five (45) days prior to the expiration of the date of such insurance a renewed certificate of insurance as proof that equal and like coverage for the balance of the period of the Agreement and extension thereunder is in effect Failure to comply with this provision shall constitute a breach of this Agreement which may result in the termination of this Agreement pursuant to Section 9 after the City has provided Reuter with notice and 30 days to cure

19 Representations and Warranties

(a) If at any time City discovers any non-conforming waste or other materials it shall promptly notify Reuter of any information it obtains or has obtained indicating that nonshyconforming waste or other materials were delivered Citys activities hereunder shall be in compliance with all applicable federal state and local governmental laws regulations ordinances licenses permits orders directives and rules relating to the collection and transportation of Solid Waste

(b) Reuter represents that the equipment and facilities provided by it to perform services are suitable to perform such services and that aU personnel are trained in accordance with applicable laws and rules Reuter shall perform all services in full compliance with all applicable federal state and local governmental laws regulations ordinances licenses permits orders directives and rules relating to collection transportation and disposal of Solid Waste Reuter shall dispose of all Acceptable Waste delivered to it within the Waste Management system of waste management facilities Despite which facility is utilized by Reuter the parties shall be obligated to pay the amounts due hereunder for all Acceptable Waste delivered to Reuter by City or its Designated Hauler Reuter represents and warrants that sufficient capacity within the Waste Management system shall be maintained to accommodate the Citys Acceptable Waste throughout the term of this Agreement at such levels as may be delivered by or on behalf of City to Reuter

20 Indemnity

(a) To the extent not prohibited by law City shall indemnify and hold harmless Reuter its affiliates respective officers directors and employees from and against all

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liabilities and expenses (including but not limited to reasonable attorneys fees and expenses of investigation and litigation) claims damages fines and penalties which Reuter may at any time suffer or sustain or become liable for by reason of or resulting from the breach of misrepresentation in untruth in or known inaccuracy in any representation warranty or covenant of City set forth in this Agreement Reuter shall promptly provide written notice to City within 10 calendar days of any and all claims disputes or notices of intent to raise such claims or disputes arising out of this indemnity provision Reuter shall not settle such claim or dispute that is covered by this indemnity provision unless City has received appropriate notice of such claim and is authorized to pay such claim by City Citys obligations hereunder shall be subject to its right to sovereign immunity and Ch 76828 FS as applicable and nothing herein shall constitute a waiver of sovereign immunity by City

(b) Reuter shall indemnify and hold harmless City and its affiliates respective officers directors and employees from and against all liabilities including without limitation of any strict liabilities arising under any federal state or local laws or rules including without limitation those relating to the environment expenses (including but not limited to reasonable attorneys fees and expenses of investigation and litigation) claims damages fines and penalties which any person or entity may at any time suffer or sustain or become liable for by reason of the improper disposal of any Solid Waste accepted by Reuter including without limitation violations of any applicable laws and rules contamination impacts upon the environment that violate applicable laws rules directives orders or AuthOrizations property damage injuries resulting in death or injury to either persons or property real or personal or both of City and its affiliates or the employees of any such party or to any other persons in any manner caused by or resulting from the acts omissions or willful misconduct of Reuter any designee or any entity engaged by Reuter including Reuters contractors or any employees or agents of such entities or resulting from the breach of misrepresentation in untruth in or known inaccuracy in any representation warranty or covenant of Reuter its officers agents directors or employees as set forth in this Agreement City shall promptly provide written notice to Reuter within 10 calendar days of any and all claims disputes or notices of intent to raise such claims or disputes arising out of this indemnity provision City shall not settle such claim or dispute that is covered by this indemnity provision unless Reuter has received appropriate notice of such claim and is authorized to pay such claim by Reuter

(c) Neither City nor Reuter as the case may be shall be liable for consequential incidental or punitive damages The indemnification obligations herein shall survive termination of this Agreement

21 TitleAcceptance of Solid Waste

(a) Title and risk of loss and responsibility to Acceptable Waste delivered to one of the Facilities by City or its Designated Hauler shall pass to Reuter at the time the waste material is removed from the delivery vehicle at such Facility Title to waste material which does not conform to the definition of Acceptable Waste shall remain with City or its Designated Hauler as the case may be and shall not be deemed to pass to Reuter

(b) City or its Designated Hauler shall tender Curbside Recyclables and Solid Waste to Reuter and Reuter shall accept Curbside Recyclables and Solid Waste pursuant to the terms of this Agreement Curbside Recyclables and Solid Waste shall be considered accepted at the time the material is removed from Citys or its Designated Haulers vehicle at the Fadlity

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Acceptance of Curbside Recyclables and Solid Waste shall not impair or operate as a waiver of any remedy available to Reuter including revocation of acceptance in the event that the Curbside Recyclables and Solid Waste is later discovered to be nonconforming Reuter may inspect sample analyze and test any Solid Waste however exercise or a failure to exercise such right shall not relieve the City or its Designated Hauler as the case may be of its indemnity or other obligations under this Agreement to deliver only Acceptable Waste

(c) If City or its Designated HauLer delivers to the Facility any material failing to conform to the definition of Acceptable Waste in this Agreement or to the requirements of any authorization or applicable government law regulation rule directive or order and if Reuter notifies City or its Designated Hauler as the case may be of the delivery of and requests removal of such non-conforming materials City or its Designated Hauler as the case may be shall make available to the Facility or cause to be made available to the Facility within two (2) days of such notice containers and vehicles suitable for transporting such nonshyconforming material and City shall thereafter remove or cause to be removed within three (3) days of such notice such nonconforming material from the Facility in accordance with applicable laws and reguLations

(d) If at any time City or its Designated Hauler as the case may be shall learn that Solid Waste it delivered to the Facility was not Acceptable Waste it shall promptly notify Reuter and provide the basis for its understanding

22 Facility Operations

(a) Subject to its operational requirements and other bUsiness needs Reuter shall use reasonable discretion during the term of this Agreement to cause the Facility its transferees contractors and affiliates to be open for operation during the Facilitys regular business hours If the operating hours are restricted by a third party then Reuter shall use its reasonable discretion to cause the Facility to be open for operation during such reduced hours Reuter shall give City prompt notice of any attempt to restrict business hours City acknowledges the right of Reuter to make and enforce reasonable safety rules and regulations as are necessary regarding the Facility and City and its Designated Hauler will abide by such rules as established from time to time Reuter shall furnish a copy of such rules and regulations upon their adoption or implementation to City and its Designated Hauler and notify City and its Designated Hauler of any changes as they occur

(b) Reuter shall cause to be furnished and reasonably maintained during the term of this Agreement internal access roads to the Facility so as not to cause damage to vehicles of City or its Designated Hauler beyond normal wear and tear customary to accepted industry standards or as may otherwise be regulated by any governmental entity If any vehicles of City or its Designated Hauler entering the Facility become incapacitated or unable to move on the Facility premises for causes other than those attributable to the condition of the access roads Reuter may but shall have no obligation to provide assistance in moving the vehicle all at the sole cost and expense of City or its Designated Hauler as the case may be In such drcumstances City and its Designated HauLer as the case may be agrees that Reuter shall have no liability for damage to any incapacitated vehicle or property resulting from rendering such assistance

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(c) The City shall cooperate with Reuter to the extent permitted by law in securing renewing and maintaining aLL Authorizations as that term is defined in this Agreement City shaLL not unreasonably interfere with the operation of the Fadlity however the parties acknowledge that the City shall at all times take all measures necessary to comply with and enforce all federal state and local laws rules and regulations including the Citys own Code of Ordinances

23 Host Fee As set forth herein Reuter will pay the City as follows

a) Base Host Fee Commencing October 1 2004 Reuter will pay the City an annual host fee of $45000000 per year (ffBase Host Fee) In the event that Solid Waste volumes from the City exceed 105000 tons per year Reuter will pay in addition to the fixed $45000000 host fee an additional host fee of $300 per ton for each ton of Solid Waste in excess of 105000 annually (Additional Host Fee) The Additional Host Fee shall be paid annually in arrears within ten (10) days upon the expiration of the fiscal year

b) Third Party Tons Host Fee Reuter will pay the City a host fee of $150 per ton for all third party Solid Waste tons delivered to Reuter from third parties (Hfhird Party Tons Host Fee) Hfhird Party Solid Waste tons do not include those tons delivered to Reuter by any company owned by controlled by or affiliated with Waste Management Inc of Florida Reuter guarantees that at a minimum 120000 tons of third party tons will be delivered annually Accordingly the annual Third Party Tons Host Fee shall be no less than $18000000 and such minimum sum shall be paid each October 1 commencing October 1 2004 The Third Party Tons Host Fee on third party tons in excess of 120000 per year will be paid annually in arrears within ten (10) days upon the expiration of the fiscal year

c) Enhanced Host Fee Provided that the City either delivers in its own vehicles or causes its Designated Haulers to deliver to Reuter all of the Acceptable Waste volumes generated in the City Reuter will pay the City an annual enhanced host fee of $75000000 (the Enhanced Host Fee) The Enhanced Host Fee shall be subject to the same annual adjustment as is applicable to Rate pursuant to Section 7 herein The Enhanced Host Fee if any shall be payable each October 1 commencing October 1 2004 Should the City fail to meet its obligation as set forth herein Reuter will be entitled to a pro rated return of such Enhanced Host Fee already paid

d) Prorated Payment of Host Fees Reuter shall prorate the Base Host Fee Enhanced Host Fee and Third Party Tons Host Fee for the period commencing upon the execution and approval by the City of this Host Fee Agreement and General Release through September 30 2004 and shaLL pay such prorated sums forty-five (45) days after such execution and approval

e) Reuter shall provide City with quarterly reports detailing the current volumes of Solid Waste and Third Party Tons pelivered to Reuter by City its Designated Hauler or third parties and the amounts due to be paid to City in each fiscal year by Reuter for the Additional Host Fee and Third Party Tons Host Fee for tonnage delivered in excess of minimums guaranteed by Reuter

24 Independent Contractor This Agreement does not create an employeeemployer relationship between the Parties It is the intent of the Parties that the Reuter is an independent contractor under this Agreement and not the Citys employee for any purposes including but not limited to the application of the Fair Labor Standards Act minimum wage

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and overtime payments Federal Insurance Contribution Act the Social Security Act the Federal Unemployment Tax Act the provisions of the Internal Revenue Code the State Workers Compensation Act and the State Unemployment Insurance law The Reuter shall retain sole and absolute discretion in the judgment of the manner and means of carrying out Reuters activities and responsibilities hereunder provided further that administrative procedures applicable to services rendered under this Agreement shall be those of Reuter which policies of Reuter shall not conflict with City State or United States policies rules or regulations relating to the use of Reuters funds provided for herein The Reuter agrees that it is a separate and independent enterprise from the City that it had full opportunity to find other business that it has made its own investment in its business and that it will utilize a high level of skill necessary to perform the work This Agreement shall not be construed as creating any joint employment relationship between the Reuter and the City and the City will not be liable for any obligation incurred by Reuter including but not limited to unpaid minimum wages andor overtime premiums

25 Audit Right and Retention of Records Reuter shall keep and maintain any and all records as may be required to substantiate and enforce the terms of this Agreement City shall have the right to audit the books records activities and accounts of Reuter that are related to this Agreement Reuter shall keep such books records and accounts as may be necessary in order to record complete and correct entries related to this Agreement

Reuter shall preserve and make available at reasonable times for examination and audit by City all financial records supporting documents statistical records and any other documents or activities pertinent to this Agreement for the required retention period of the Florida Public Records Act (Chapter 119 Florida Statutes) if applicable or if the Florida Public Records Act is not applicable for a minimum period of three (3) years after termination of this Agreement If any audit has been initiated and audit findings have not been resolved at the end of the retention period or three (3) years whichever is longer the books records and accounts shall be retained until resolution of the audit findings If the Florida Public Records Act is determined to be applicable to the records Reuter shall comply with all requirements thereof however no confidentiality or non-disclosure requirement of either federal or state law shall be violated Any incomplete or incorrect entry in Reuters books records and accounts shall be a basis for Citys disallowance and recovery of any payment by Reuter upon such entry to the extent of such error or incompletion To the extent such error or incompletion results in additional monies owed to City by Reuter City may recover such outstanding balance along with interest at the maximum rate allowed by law accrued from the date such monies were due and owing to the date of such payment by Reuter

26 In the event that any court of competent jurisdiction determines that the requirement herein that City direct its Acceptable Waste to be delivered to Reuter to be unenforceable or unconstitutional that portion of this Agreement shall be severed and the remainder of this Agreement and the application of such provisions to persons or situations other than those as to which it shall have been held invalid or unenforceable shall not be affected thereby and shall continue in full force and effect and be enforced to the fullest extent permitted by law Reuter further agrees to indemnify City for and against any suit or claim raised against City based upon the requirement that City direct its Acceptable Waste be delivered to Reuter as required herein

27 Third Party Beneficiaries Neither party to this Agreement intends to directly or substantially benefit any third party by this Agreement Therefore the Parties agree that

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there are no third party beneficiaries to this Agreement and that no third party shall be entitled to assert a claim against either party based upon this Agreement The Parties expressly acknowledge that it s not their intent to create any rights or obligations in any third persons or entity under this Agreement

28 This Agreement may be executed in multiple counterparts each of which shall be deemed an original and aU of which together shall constitute one and the same instrument

IN WITNESS WHEREOF the parties have executed this Agreement as of the date first above written

City of Pembroke Pines a Rorida municipal oration

7 gt

CITY CLERK

By ~lIkJd ~ APPROVED AS TO LE~AifORM CITY MANAGER

Dated p 1 7 2004BY~~__~-M~~~~ OFFI

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AGENDA REQUEST FORM City of Pembroke Pines Florida

AGENDA ITEM NO MEETING DATE 6116104 22

TITLE SETTLEMENT OF PENDING ARBITRAll0N WITH REUTER RECYCLING OF FLORIDA INC

REQUESTED ACTION f MOTION TO AUTHORIZE SETTLEMENT WITH REUTER BY APPROVING A NEW HOST FEE AGREEMENT WITH REUTER RECYCLING OF FLORIDA INC AND CORRESPONDING SETTLEMENT DOCUMENTS

SUMMARY EXPLANATION AND BACKGROUND

1 A Solid Waste Disposal Agreement (SWDA) between Reuter Recycling and the City was signed on or about August 19 1988 and expires on January 1 2012

2 The City of Pembroke Pines Is currently in arbitration with Reuter regarding the SWDA Pursuant to the direction of the City Commission the City desires to resolve this dispute with Reuter

3 It is understood by the parties that the City and Reuter agree to terminate the SWDA and replace it with this Host Fee Agreement

4 In addition to executing the Host Fee Agreement the City shall enter Into a Joint Stipulation to dismiss the arbitration and both parties shall execute mutual General Releases

5 Recommend approval of this agreement

EXHIBITS (LIST) I 1 Host Fee Agreement between City of Pembroke Pines and Reuter Recycling of Florida

Inc 2 Joint Stipulation and Proposed Order 3 Mutual General Releases

PREPARED BY I SOURCE OF ADDITIONAL INFORMATION I

NAME Rene Gonzalez Name Rene Gonzalez Finance Director Phone 435-6515

SUBMITTED BY

~~~ ~~~~ Charles F Dodge ~ ReneGonz

City Manager Finance Director

COMMISSION ACTION Motion Passed 61604

~~~--Eileen Tesh City Clerk

06-09-04

HOST FEE AGREEMENT










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CITY CLERK


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06-09-04

HOST FEE AGREEMENT










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CITY CLERK


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CITY CLERK


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CITY CLERK


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CITY CLERK


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CITY CLERK


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Broward County Solid Waste and Recycling Issues Study...recycled and which would otherwise be...

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Transcript of Broward County Solid Waste and Recycling Issues Study...recycled and which would otherwise be...