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HomeMy WebLinkAboutR-94-0695J-94-763 9/22/94 RESOLUTION NO. 9 4_ 695 A RESOLUTION, WITH ATTACHMENT, AUTHORIZING THE CITY MANAGER TO EXECUTE AN AGREEMENT, IN SUBSTANTIALLY THE ATTACHED FORM, WITH WHEELABRATOR SOUTH BROWARD, INC., (WHEELABRATOR), IN AN ESTIMATED AMOUNT OF $4,400,000 AND FOR A PERIOD OF ONE YEAR, FOR THE ACCEPTANCE AND DISPOSAL OF PROCESSABLE WASTE FROM THE CITY OF MIAMI; ALLOCATING FUNDS THEREFOR FROM ACCOUNT CODE NO. 421301-531, PROJECT NO. 422001. WHEREAS, the City of Miami, after competitive negotiations, has determined that it is most advantageous for the City to utilize Wheelabrator South Broward, Inc., (Wheelabrator) facilities for the acceptance and disposal of its processable waste; and WHEREAS, Wheelabrator has offered to dispose of this waste at a proposed cost of $44.00 per ton; and WHEREAS, the City no longer disposes of its waste at Mettopolitan Dade County facilities, where disposal costs are currently $68.00 and $59.00 per ton; and WHEREAS, Wheelabrator's fee is less costly and will result in a considerable savings to the City of Miami; and WHEREAS, funds for said service are available from Account No. 421301-531, Project No. 422001; CITY CONt1wsrox Ill MEETING OF S FP 2 2 1994 94"I'Atm Nei 94- 695 NOW, THEREFORE, BE IT RESOLVED BY THE COMMISSION OF THE CITY OF MIAMI, FLORIDA: Section 1. The recitals and findings contained in the Preamble to this Resolution are hereby adopted by reference thereto and incorporated herein as if fully set forth in this Section. Section 2. The City Manager is hereby authorized to execute an Agreement, in substantially the attached form, with Wheelabrator South Broward, Inc. (Wheelabrator), in an estimated amount of $4,400,000 and for a period of one year, for the acceptance and disposal of City of Miami processable waste, with funds therefor hereby allocated from Account No. 421301-531, Project No. 422001. Section 3. This Resolution shall become effective immediately upon its adoption. PASSED AND ADOPTED this 22nd day of September 1994. STEPHEN P. C ARK, MAYOR ATTE MATTY'HIRAI, CITY CLERK -2- 94- 695 PREPARED AND,APPROVED BY: OLGA MIREZ-SEIJA ASSISTANT CITY ATT RNE APPROVED AS TO FORM AND CORRECTNESS: A.f Qjftft J N S, IT CITY ATTO Y ORS:csk:M4623 94- 695 -3- WASTE DISPOSAL AGREEMENT BY AND BETWEEN WHEELABRATOR SOUTH BROWARD AND THE CITY OF MIAMI THIS AGREEMENT, made as of the _ day of , 1994, by and between, Wheelabrator South Broward a Florida Corporation, with offices at 4400 South State Road 7, Ft. Lauderdale, Florida ("Company") and The City of Miami, Florida, a Florida municipal corporation, with offices at 1390 N.W. 20 St., Miami, FL 33142 ("Customer"). W I T N E S S E T H: WHEREAS, Customer desires that Company provide disposal facilities in Broward County, Florida (the "Facility" as defined herein), for certain residential/household and commercial solid waste (as described herein) which Customer collects in and transports from Miami to the Facility; and WHEREAS, Customer and Company have agreed to this Agreement for disposal of the customer's waste subject to terms and conditions hereinafter set forth; and NOW, THEREFORE, in consideration of the mutual covenants and promises contained herein, and intending to be legally bound, the parties hereto agree as follows: 1. _Solid Waste Disposal. Subject to the terms and conditions contained herein, Company agrees to accept and dispose, at the Facility, Processable Waste delivered by Customer. 2. Processable Waste. The following types of waste are the only types of waste which Company will accept at the Facility, and customer agrees that it shall only seek disposal of, Processable Waste. Processable Waste shall have the definition it has in that certain Solid Waste Disposal Service Agreement by and between WESI and Broward County dated as of March 1, 1989 ("SWDSA"), which primary definition is attached hereto as Appendix A, all of which definition is incorporated herein by reference. In addition, all solid waste delivered to Company for disposal must conform to all applicable federal, state and local laws, regulations, rules, orders and permit conditions relating at anytime to the transportation and disposal of solid waste. The customer will not deliver and the company is not required to accept trash as defined by FAC chapter 17-701. 3. Terms of Agreement. This Agreement shall commence on October 1, 1994 (the "Effective Date") and shall continue in full force and of fect for a period of one (1) year, unless terminated in accordance with the provisions set forth in this Agreement. -1- 94-. 695 4. Rates for Disposal. Solid waste, as described in Paragraph 2 above, shall be disposed of by Company for a fee of $44/ton. 5. Operating Rules. (a) Company reserves the right to make and enforce reasonable rules and regulations concerning the operation of the Facility, the conduct of the drivers and others on the Facility premises, and any other matters necessary or desirable for the safe, legal and efficient operation of the Facility. Said rules and regulations shall be applied in a reasonably equitable manner to all entities disposing of solid waste at the Facility. Vehicles delivering to the Facility on behalf of Customer shall comply with any and all of said rules and regulations. (b) Manner of Deliveries: Hours available for delivery under this Agreement are Monday through Saturday except Christmas, between the hours of 6:00 a.m. and 6:00 p.m. ("Normal Hours"). To make deliveries of Processable Waste at other than the Normal hours, prior approval must be obtained from Company, which approval may be given or withheld from time to time in Company's sole reasonable. discretion. All deliveries shall be made by self - powered mechanical unloading vehicles. All vehicles making deliveries shall be weighed at the Facility prior to being unloaded and shall be reweighed after unloading to establish a tare weight of the vehicle, and in all instances such weights shall be conclusive and binding on the parties providing scales of the Facilities comply with State law. Tare weights will be validated upon request of the customer or company. Only vehicles that have been previously authorized by Customer and identified by Customer to company shall be allowed to make deliveries to the Facilities on behalf of Customer. (c) Inspections: Company reserves for itself the right to inspect any vehicle which it reasonably believes to be delivering waste other than Processable Waste, and to deny admission to any vehicle carrying any waste other than Processable Waste. Should waste other than Processable Waste, delivered by or on behalf of Customer, be unloaded prior to detection, Company shall cause such waste to be promptly removed and disposed of as required by law and Customer shall pay all verifiable costs incurred for such removal, transportation and disposal. Company shall use reasonable commercial efforts to minimize said costs. (d) Company shall have the right to refuse disposal of any waste which does not conform to the requirements of this Agreement or to any applicable law, regulation, rule, order, or permit condition. -2- 94- 695 (e) In the event that Customer's vehicle should become incapacitated or unable to move while on the Facility premises, the Facility may, but shall not be obligated to, provide assistance in moving the vehicle. In such circumstances, Customer agrees that Company shall not have liability for damage to Customer's vehicle or property while providing such assistance. 6. Delivery and Acceptance. Customer shall deliver City of Miami acceptable waste in an amount of 100,000 tons per year delivered in a manner that reflects the normal bi-weekly, residential collection pattern of the City of Miami. The company has the exclusive right to limit customer deliveries to a 6 week rolling average of 1102.- of the base commitment. It is the understanding of the customer and the company that this limit is to protect the company from being required to accept more waste than it has capacity available. The 6 week rolling average and the single week computations shall be performed as of the close of the scale house each Saturday. At the end of the contract term, if the City has failed to deliver 100,000 tons, the company will bill the City for the difference between 100,000 tons and the tons actually delivered during the contract period. 7. Billing and Payment. Customer shall pay all invoices in accordance with the Florida Prompt Payment Act, Chapter 218, Part VII, Florida Statutes, as amended. 8. Rights of Disposal. Company reserves the right to deny to the Customer access to the Facility in the event of breach or violation by Customer of any of: the terms of this Agreement; the Company's operating rules or regulations; or applicable laws, rules, regulations, orders or permit conditions that are applicable to Company or the Customer. For all purposes hereof, Facility shall mean and deliveries shall be made to: the Resource Recovery Plant located at 4400 South State Road 7, Ft. Lauderdale,Florida. If the company is unable to accept the Customer's waste, the Customer's waste may be diverted to another Disposal Facility. In such an unlikely event, the company shall pay all additional costs of the diversion incurred by the City, when diverting to a disposal facility within miles of the City under the direction of the company. 9. Limitation of Liability and Indemnity. Neither Party nor its officers, directors, partners, agents, subcontractors, vendors, servants, employees, affiliates, parent, subsidiaries or respective successors or assigns shall be liable to the other Party for claims for incidental, special, indirect or consequential damages whether such claim for damages is based on a cause of action in warranty, negligence, strict liability, contract, operation of law or otherwise. The Parties agree to use reasonable commercial efforts to mitigate any direct damages. -3- 94- 695 Subject to the limits of Section 768.28(5), Florida Statutes as to City's obligation hereunder, each party shall indemnify, defend and hold harmless the other party, its officers, directors, agents, and employees against all loss, claims, damage, expense, and liability to third persons including employees of either party for injury to or death of persons or damage to property, proximately caused by the indemnifying party's performance or non-performance of its obligations as set out in this Agreement (except to the extent caused by the indemnified party's negligence or willful misconduct). The provisions of the immediately foregoing paragraph regarding limitation of liability and of this paragraph shall survive termination of the Agreement. 10. Insurance. Company recognizes that customer is a self - insured entity under Section 768.28(14), Florida Statutes, and that liability is limited to the amounts specified under Section 768.28(5) Florida Statutes. 11. Conditions Precedent. This Agreement shall be of no legal force or effect unless and until it shall be executed and delivered by both parties. 12. Breach of this Agreement and Remedies. (a) Subject to the right of Customer and Company to cure as provided in this paragraph, Customer or Company may cancel or revoke this Agreement any time upon the failure of Customer or Company to materially comply with any of its provisions. Before cancelling or revoking this Agreement the cancelling party shall send the defaulting party a ten-day written notice specifying the failure (s) to comply with the material terms and conditions of this Agreement. If the defaulting party fails to correct the specified noncompliance, within ten (10) days after said notice, then the cancelling party shall have the right to cancel or revoke this Agreement, so long as the default continues. (b) The remedy set forth above is cumulative and in addition to any other remedies afforded at law or in equity, and any failure to assert a breach or any election of remedies shall not constitute a waiver of any subsequent breach or a bar to other or further remedies. (c) Any obligation for the payment of money by Customer, or otherwise arising from the conduct of either party prior to termination, shall not be affected by such termination and shall remain in full force and effect until satisfied, discharged or waived. 13. Excuse of Performance. The performance of any obligations under this Agreement, except for the payment of money for services already rendered, may be suspended by either party in the event that such performance or obligation is materially -4- 94- 695 affected or is prevented by an act of force majeure. Force majeure events shall include, but are not limited to: acts of God; acts of war; riot or similar civil disturbance; fire; explosion; accident; flood; sabotage; complete inability to obtain adequate fuel or power; changes in governmental laws, regulations, rules, permits (including existing limitations in permits which hereafter become applicable or effective), approvals, requirements (including new fees, assessments or impositions), orders or actions which significantly affect either party; national defense requirements; injunctions or restraining orders; strikes or other labor disputes. 14. Notice. Whenever either party desires to give notice unto the other, it must be in writing and sent by United States Mail, Certified, Return Receipt Requested, or by telefax addressed to the party for whom it is intended at the place last specified pursuant to this article. The address designated for sending notice shall remain such until it shall have been changed by written notice in compliance with the provisions of this paragraph. Notice shall be effective upon receipt of a telefax or five (5) days after deposit into the mail. Notwithstanding the foregoing, notice by fax shall not be effective unless confirmed by a copy of the notice transmitted by certified mail, return receipt requested. The parties designate the following as the respective addresses for sending notice, to wit: For Company: WHEELA13RATOR SOUTH BROWARD, INC. Attn. *Thomas D. Kirk, Plant Manager* 400 South State Road 7 Ft. Lauderdale, Florida Fax:*581-6705 With Copy to:. RONALD A. SHAPO, ESQ. Shapo, Freedman & Fletcher, P.A. 2100 South Biscayne Boulevard Suite 4750 Miami, FL. 33131 Fax: (305) 388-0521 For Customer: *City of Miami* *Attn: *Ron Williams* *Assistant City Manager* *1390 N.W. 20th St., Miami, FL* Fax: *575-5187 * 15. Recovery Energy and Materials. Customer shall have no material interest in and shall not realize any financial benefits from the revenues derived by Company from the sale of any energy or material s recovered or otherwise generated from or by the processing of Processable Waste at the Facility. -5- 94- 695 16. Miscellaneous. (a) Governing Law. This Agreement shall be governed by the laws of the State of Florida. (b) Waiver. No indulgence, consent to or waiver of any breach of any provision of this Agreement by an party hereto shall be construed as a consent to or waiver of any other breach of the same or any other provision hereof unless specifically acknowledged in writing by both parties. (c) Modification. No modification, release, discharge or waiver of any provision hereof shall be of any force, effect or value, unless in writing, signed by all parties to this Agreement. (d) Severability. If any term, covenant or provision of this Agreement shall be held to be invalid, illegal, or unenforceable in any respect, the balance of this Agreement shall remain in effect and be construed without regard to such provision. (e) Assignment. This Agreement and the rights here under are personal to the Customer and may not be assigned. (f) Entire Agreement. This Agreement constitutes the entire understanding between the parties, replacing and amending any prior agreements between the parties, and shall be binding upon all parties hereto, their successors, heirs, representatives and assigns. There are no other agreements or understandings between the parties, except as expressly set forth herein. (g) Headings. The Section headings in this Agreement are for convenience and reference only and in no way define or limit the scope or content of this Agreement or in any way effect its provisions. (h) No Third Party Beneficiaries. This Agreement shall be for the sole benefit of the parties hereto, and no other person or entity shall be entitled to rely upon or receive any benefit from this Agreement or any provision hereof. (i) Attorney's Fees. In the event of any action at law or in equity between the parties to enforce any provision of this Agreement, the unsuccessful party to such litigation shall pay to the successful party all reasonable costs and expenses incurred by such successful party; and if such successful party shall recover a judgment in any such action or proceeding, such expenses shall be included in and as a part of such judgment. (j) Construction. The parties 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. -6- 94- 695 17. Ownership of Documents. All documents developed by Company under this Agreement shall be delivered to Customer by said Company upon completion of the services and shall become the property of Customer, without restriction or limitation on its use. Company agrees that a1.1 documents maintained and generated pursuant to this contractual relationship between Customer and Company shall be subject to all provisions of the Public Records Law, Chapter 119, Florida Statutes. It is further understood by and between the parties that any information, writings, maps, contract documents, reports or any other matter whatsoever which is given by Customer to Company pursuant to this Agreement shall at all times remain the property of Customer and shall not be used by Company for any other purposes whatsoever without the written consent of City. 18. Nondelegability. The obligations undertaken by Company pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless Customer shall first consent in writing to the performance or assignment of such service or any part thereof by another person or firm. 19. Audit Rights. Customer reserves the right to audit the records of Company at any time during the performance of this Agreement and for a period of three (3) years after final payment is made under this Agreement. 20. Award of Agreement. Company warrants that it has not employed or retained any person employed by the Customer to solicit or secure this Agreement and that it has not offered to pay, paid, or agreed to pay any person employed by the Customer any fee, commission percentage, brokerage fee, or gift of any kind contingent upon or resulting from the award of this Agreement. 21. Conflict of Interest. (a) Company convenants that no person under its employ who presently exercises any functions or responsibilities in connection with this Agreement has any personal financial interest, direct or indirect, with Customer. Company further covenants that, in the performance of this Agreement, no person having such conflicting interest shall be employed. Any such interests on the part of Company or its employees, must be disclosed in writing to Customer. (b) Company is aware of the conflict of interest laws of the City of Miami (City of Miami Code Chapter 2, Article V), Dade county Florida (Dade County Code Section 2-11.1) and the State of Florida, and agrees that it shall fully comply in all respects with the terms of said laws. -7- 94- 695 22. Incenendenr. Contractor. Company and its employees and agents shall be deemed to be independent contractors, and not agents or employees of Customer, and shall not attain any rights or benefits under the civil Service or Pension Ordinances of Customer, or any rights generally afforded classiried or unclassified employees; further he/she shall to be deemed entitled to the Florida workers, Compensation benefits as an employee of Customer. 23. Termination of C ntract. Customer retains the right to terminate this Agreement at any time prior to the completion of the services required pursuant to paragraph hereof without penalty to Customer. In that event, notice of termination of this Agreement shall be in writing to Company, who shall be paid for those services performed prior to the date of its receipt of the notice of termination. It is hereby understood by and between Customer and Company that any payment made in accordance with this Section to Company ,shall be made only if said Company is mot .in default under the terms of this Agreement. If Company is in default, then Customer shall in no way be obligated and shall not pay to company any sum whatsoever. 24. Nondiscrimination. Company agrees that it shall not discriminate as to race, Sex, color, religion, national origin, age, marital status or handicap in connection with its performance udder this Agreement. Furthermore that no otherwise qualified individual shall, solely by reason of his/her race, sex, color, religion, national origin, age, marital status or handicap, be excluded from the participation in, be denied benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance. 25. Minority Procurement Compliance. Company acknowledges that it has bene furnished a copy of Ordinance No. 10062, the Minority procurement Ordinance of the city of Miami, and agrees to comply with all applicable substantive and procedural provisions therein, including any amendments thereto. 26. Contingency Cause. Funding for this Agreement is contingent on the availability of funds and continued authorization for program activities and is subject to amendment or termination due to lack of funds, or authorization, reduction of funds, and/or change in regulations. IN WITNESS WHEREOF, the parties hereto have caused their respective names and seals to be affixed to this Agreement by their duly authorized representatives as of the day and year first stated above. -a- 94- 695 ATTEST: MATTY HIRAI City Clerk ATTEST - Corporate Secretary WITNESSES: (As to COMPANY) (NOTE: if COMPANY is not a Corporation, two witnesses must sign.) APPROVED AS TO INSURANCE REQUIREMENTS: CITY OF MIAMI, a municipal Corporation of the State of Florida By CESAR H. ODIO City Manager COMPANY: Sy (�L. -" 2�� �" - 0A4v'4j'f'X` ( Seal) APPROVED AS TO FORM AND CORRECTNESS: SEGUNDO R. PEREZ A. QUINN JONES, III Risk Management city Attorney v -9- 94- 695 APPENDIX A The term "Processable Waste" shall mean that portion of the solid waste stream which is capable of being processed in a mass burn resource recovery facility, including, but not limited to, all forms of household and other garbage, trash, rubbish, refuse, combustible agricultural, commercial and light industrial waste, commercial waste, leaves and brush, paper and cardboard, plastics, wood and lumber, rags, carpeting, occasional tires, wood furniture, mattresses, stumps, wood pallets, timber, tree limbs, tires, and logs, not separated at the source of generation or after collection and held for purposes of recycling, but excluding Unacceptable Waste and Unprocessable Waste, except, to the extent consistent v ;th the regulatory and permit requirement applicable to the p. -3cessing of waste by a mass burn resource recovery facility, such minor amounts of such Unacceptable Waste and Unprocessable Waste (other than hazardous waste) as may be contained in the normal Processable Waste stream. [ILA Section 2.151 940825.TDK.ch ORS/dsl/M04 -10- 94- 695 CITY OF MIAMI, FLORIDA INTER -OFFICE MEMORANDUM 20 TO : Honorable Mayor and Members DATE : SEP 15 1991 FILE : of the City Commission SUBJECT : Authorization to Exezate an Agreement with Wheelabrator South Broward FROM : CeS io REFERENCES: City ger ENCLOSURES: It is respectfully recommended that the City Commission adopt the attached resolution authorizing the City Manager to execute an agreement, in substantially the attached . form, between Wheelabrator South Broward, Inc., (Wheelabrator) a non -minority vendor, at an estimated amount of $440,000 annually. Funds shall be allocated from Account Code No. 421301-531, Project No. 422001. The Department of General Services and Solid Waste, after competitive negotiations, has determined that it is most advantageous to utilize Wheelabrator's facility to dispose of prooessable waste from the City of Miami, at a fee of $44.00 per ton. Previously, the City disposed of its waste at Metropolitan Dade County facilities, at rates of $68.00 and $59.00 per ton, respectively. Wheelabrator's rate is less expensive to dispose of the same type of waste and results in considerable savings to the City. The term of the agreement is one year. Attachments 94- 695 r'� y