HomeMy WebLinkAboutExhibit CEXHIBIT C
WASTE DISPOSAL AGREEMENT BY AND BETWEEN WHEELABRATOR
SOUTH BROWARD AND THE CITY OF MIAMI
THIS AGREEMENT,. made as of the 24 day of May 199'5, 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 can accept at the Facility. In
all events, 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
("SWDS,), 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. In
addition, notwithstanding its inclusion within the definition of
Processable Waste, the Customer will not deliver and the Company is
not required to accept trash as defined in Appendix B attached
hereto, except only in the event Customer has requested and Company
has given prior consent to deliveries of trash. Further, the fact
that Company consents to and/or accepts trash from time to time
shall not constitute a waiver of strict compliance with the terms
hereof regarding future deliveries, nor constitute a consent to
allow or accept any future deliveries of trash.
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3. Terms of Agreement. This Agreement shall commence on
October 1, 1995 (the "Effective Date") and shall continue in full
force and effect for a period of one (1) year, unless terminated in
accordance with the provisions set forth in this Agreement.
4. Rates for Disposal. Solid waste, as described in
Paragraph 2 above, shall be disposed of by Company for a fee of
$32/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.
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(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.
(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 to
Company all the waste which is under Customer's control and which
is collected by Customer, semi-weekly from commercial accounts (if
any) and residences at curbside, as well as similar materials
otherwise collected (e.g., at special events), except that such
deliveries shall be subject to the provisions of Paragraph 2 above.
7. Billing and Payment; Agreement Amendment. Customer shall
pay all invoices in accordance with the Florida Prompt Payment Act,
Chapter 218, Part VII, Florida Statutes, as amended. Not
withstanding any other provision in the Waste Disposal Agreement by
and between Wheelabrator South Broward and the City of Miami
bearing the Effective Date of October 1, 1994 (the 1994 Agreement),
the Company hereby agrees the Customer shall satisfy all of its
obligations under paragraph 6 of the 1994 Agreement by its delivery
of all waste as described in paragraph 6 hereof which is under the
Customer's control between July 13, 1995 and the Effective Date
hereof.
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 25 miles of the facility or 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
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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.
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
failures) 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.
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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 obligation is materially
affected or is prevented by an act of force majeure . Force maj eure
events shall include, but are not limited to: acts of God; acts of
war; riot or similar civil disturbance; fire; explosion; accident;
equipment failure; 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: WHEELABRATOR SOUTH BROWARD, INC.
Attn.
*Thomas D. Kirk, Plant Manager*
400 South State Road 7
Ft. Lauderdale, Florida
Fax:*581-5705
With Copy to: RONALD A. SHAPO, ESQ.
Shapo, Freedman & Fletcher, P.A.
2100 South Biscayne Boulevard
Suite 4750
Miami, FL. 33131
Fax: (3 05) 388-0521
For Customer: *City -of Miami*
*Attn: *Ron Williams*
*Assistant City Manacer*
*1390 N.W. 20th St. , Miami, FL*
Fax: *575-5187
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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.
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 Aclreement. 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.
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(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.
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 all 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
199, 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. Nondelectability. 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 Ric-hts. 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 employee
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.
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(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.
22. Independent 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 classified _or unclassified
employees; further he/she shall to be deemed entitled to the
Florida Workers' Compensation benefits as an employee of Customer.
23. 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
under 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.
24. 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.
25. Contingency Clause. 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.
Also please note:
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.-
ATTEST:
A-Z-Z'�'�aTter Faemn
City Clark
ATTEST:
9 A/
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rporate
THOMAS W. KOEPPL
WITNESSES:
(As to COM )
(NOTE: If COMPANY 's not
a Corporatio two
witnesses mus sign.)
APPROVED S TO INSURANCE
REQUI ME Sj/�
r -k FRANK K. ROLLASON, Deputy Fire Chief
Risk Management
CITY OF MIAMI, a municipal
Corporation of the State of
Florida
By
CESAR H. ODIC,
City Manager
COMPANY:
B /
Y
(Title)
THOMAS( SBal k IRK
APPROVED AS TO FORM AND
CORRECTNESS:
Cit tt r y
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
with the regulatory and permit requirement applicable to the
processing 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
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• w �
That portion of the waste stream that is collected at curbside by
City cranes and deposited in rubbish trucks for transportation to
disposal sites. This portion of the waste stream may include but
not be limited to yard trash, rubbish, discarded furniture and
clothing, construction and demolition material, white goods,
industrial items, or any material discarded by businesses or
residents outside of normal twice per week waste collection as
referenced in paragraph 6.
950613B.TDK.ch
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