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HomeMy WebLinkAboutPre-AgreementPROFESSIONAL SERVICES AGREEMENT BY AND BETWEEN BROWNING-FERRIS INDUSTRIES OF FLORIDA, INC., AND THE CITY OF MIAMI THIS AGREEMENT made as of the 15thday of March, 1 4g "• , by and between Browning -Ferris Industries of Florida, Inc., a Delaware Corporation authorized to do business in the State of Florida, with offices as 2380 College Avenue, Davie, Florida 33317 ("Company") and the City of Miami, a Florida municipal corporation, with offices at 1290 NW 20 Street, Miami, Florida 33142 ("Customer"). .WITNESSETH: WHEREAS, the Company and its affiliates are experienced, and have been engaged in the recycling business for approximately 20 years, currently having approximately 100 Materials Recovery Facilities in North America and processing approximately 200,000 tons per day. WHEREAS, Customer desires that Company provide a materials recovery facility in Davie, Florida (the "Facility"), for the acceptance of Commingled Recyclable Materials (as the term is defined herein below) to be collected and transported by Customer, from Miami to the Facility; and WHEREAS, Customer and Company wish to enter into this Agreement to set forth the terms and conditions pursuant to which Customer will deliver to Company and Company will accept and sell all recyclable materials collected from the Customer's curbside residential recycling program. 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. Definitions: The following definitions will apply to all newspaper and commingled materials accepted by the Company as these terms are used in this Agreement. n "Aluminum Cans" means aluminum beverage cans but does not include bi-metal containers. "Aseptic Packages" means poly -coated paperboard containers with aluminum linings, for example, drink boxes. "Commingled Materials" means a mix of Designated Recyclables other than Paper Loads. "Corrugated" means corrugated containers having liners of either test liner, jute, or haft. "Designated Recyclables" means aluminum cans, aseptic packages, corrugated, gable -topped containers, HDPE, Kraft bags, newspaper, PE1'.N, and PVC. "Gable -topped Containers" means clear, brown and green glass cleaned and rinsed. "Kraft Bags" means brown paper grocery or shopping bags used to contain newspaper only. "Newspaper" means newspapers, supplements, advertising and magazine sections (all of which has been included). "Paper Load" means mixed loads of Newspaper, Kraft Bags, and Corrugated and other paper based products or containers. Type 1 Plastic Containers - means containers made of polyethylene terephtalate (PET) such as two liter soda bottles. Type 2 Plastic Containers - means containers made of high density polyethylene (HDPE) such as milk, juice, water jugs and detergent bottles. 2 Type 3 Plastic Containers - means containers made of vinyl (PVC, V) such as shampoo bottles and crystal clear food containers. TIN -STEEL based cans - means all cans used for food and beverage only. Cleaned and rinsed. 2. Acceptance of Commingled Materials. The Customer will deliver to the Facility and Company shall accept from Customer all of Customer's daily collected Designated Recyclables and Newspaper with no more than 50% to be comprised of Commingled Material. Customer will guarantee to deliver to the Facility a minimum of 625 tons and a maximum of 900 tons per month of Recyclable Materials; and 3. Terms of Agreement. This Agreement shall commence on April 19 199-, 1996 (the "Effective Date") and shall continue in full force and effect for 'a period of one (1) year, unless_temiinated-in-accordance_with-the-provisions-set-forth-in-this-Agreement.—Tliis-Agrcement shall automatically renew for additional one (1) year terms unless either party notifies the other in writing of its intent not to renew no less than sixty (60) days prior to the expiration of the then current term. 4. Operating Rules. 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, 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 delivering recyclables at the Facility. Vehicles delivering materials to the Facility on behalf of the Customer shall comply with all of said rules and regulations. 3 (�� 5. Material Standards. Ail deliveries of Paper Loads and Commingled Materials shall meet the minimum daily- standards set by the most current standards available for Paper Loads and Commingled Materials and the Company will have the right to reject any loads that contain more than 35 'on -recyclable materials. The Customer shall not deliver to the Facility any contaminated or hazardous materials and shall be solely responsible for its disposition. 6. Payments. In consideration for the obligations of the parties under this Agreement, Customer and Company agree as follows A. Customer agrees to pay to Company -tie fotlowin (i) $23.67 Processing Fee of�-2-1:75.3-per ton for all Commingled Materials and Paper Load delivered to the Facility. (n) Residue Credit equal to the disposal fee charged by tl%Broward 77.32 05 County Resource Recovery Plant (currently - -13-7-/tan) tons for all materials delivered by Customer to said Plant. B. Company agrees to pay to Customer a Revenue Payment in an amount equal to 80% of all revenues received by Company from the sale of each To .95 365 ton of Designated Recyclables delivered by Customer to the Facility. The Revenue Payment shall be calculated using the actual tonnage `delivered by Customer to the Company for materials of the same composition as the materials sold by the Company to third parties. The 4 share of Revenue Payment shall be reviewed and negotiated by the parties before the renewal of each term of this Agreement. 7. 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. Subject to the limits of Section 768.28(5), Florida Statutes as to Customer's indemnity obligations 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 ofpersons 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 preceding paragraph regarding limitation of liability and of this paragraph shall survive termination of the Agreement. 8. 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. 9. Conditions Precedent. This Agreement shall be of no legal force or effect unless and until it shall be executed and delivered by both parties. 5 10. 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 canceling or revoking this Agreement the ,canceling 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 canceling party shall have the right to cancel this Agreement. 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 bar to other or further remedies. C. Any obligation for the payment of money by Customer, or otherwise arising from the conduct or 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. 11. Excuse of Performance. The performance of any obligation 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 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 6 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 (imitations 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. 12. Notice. Whenever either party desires to give notice to 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 provisions of this paragraph. Notice shall be effective upon receipt of a telefax_offrve_(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: Browning -Ferris Industries Attn: Roaime-Stanley District Manager 2380 College Avenue Davie, Florida 33317 Fax: (305) 474-3677 For Customer: City of Miami Attn: Ron E. Williams Assistant City Manager 1390 NW 20 Street Miami, Florida 33142 Fax: (305) 575-5187 7 13. 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 any 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 acicnowledged in writingby 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. 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. F. Headings. The Section headings in this Agreement are for the convenience and reference only and in no way define or limit the scope or content of this Agreement or in any way affect its provisions. G. 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. H. Attorney's Fees. In the event of any action at law or inequity between the parties to enforce any provision of this Agreement, the party to such litigation shall pay to the prevailing party all reasonable costs and expenses incurred by such prevailing party; and if such prevailing party shall recover a judgment in any such action of proceeding, such expenses shall be included in and as a part of such judgment. I. 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. 14. Nondeleaability. The obligations undertaken by either party pursuant to this Agreement shall not be delegated or assigned to any other person or firm unless the other party shall first consent in writing to the performance or assignment of such service or any part thereof by another person or firm. 15. Conflict of Interest. The Company covenants that no, person under its employ has any personal financial interest, direct or indirect, in the work product of this Agreement. The 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 the Company or its employees, must be disclosed in writing to the Customer. The 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 will fully comply in all respects with the terms of said laws, 9 16. Non -Discrimination. The Company agrees that there shallbe no discrimination because of race, color, sex, religion, age, handicap, marital status or national origin, in connection with its performance under this Agreement. 17. Minority Procurement Compliance, The Company acknowledges that it has been 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. 18. Audit Rights. The Customer reserve the right to audit the records of the Company pertaining to its performance and payment under this Agreement at any time during the term hereof and for a period of three (3) years after final payment is made hereunder. LN WITNESS WHEREOF, the parties hereto have caused this Agreement to be signed by their respective authorized officers as of the day and year just above written. r CITY OF MIAMI, a Municipal Al JEST: Corporation of the State of Florida WALTER FOEMAN CESAR H. ODIO City Manager City Clerk ATTEST: Corporate Secretary APPROVED AS TO INSURANCE REQUIREMENTS: `FRANK K. ROLLASON Chief of Risk Management 10 EGA o; r BROWNING-FERRIS INDUSTRIES, B C. a Corporation of the State of Delaware (Title) (Seal) APPROVED AS TO FORM AND CORRECTNESS: A. QUIININ JONES, III City Attorney