Miramar/Sun-Bergeron FINAL 06.15€¦ · THE CITY OF MIRAMAR, FLORIDA FOR SOLID WASTE DISPOSAL...

Miramar/Sun-Bergeron FINAL 06.15.2012

AGREEMENT

BY AND BETWEEN

SUN-BERGERON SOLID WASTE SERVICES JV,

AND

THE CITY OF MIRAMAR, FLORIDA

FOR

SOLID WASTE DISPOSAL SERVICES

This Agreement is made and entered into this __ day of . , 2012, by and between Sun Recycling, LLC, a Florida Limited Liability Company, and Bergeron Environmental And Recycling, LLC, a Florida Limited Liability Company, doing business as SUN-BERGERON SOLID WASTE SERVICES JV, a Florida Joint Venture (hereinafter referred to as "Contractor"), and the CITY OF MIRAMAR, FLORIDA, a municipal corporation of the State of Florida (hereinafter referred to as the "City").

WHEREAS, on March 10, 2011, the City issued Request for Proposal No. 11-03-10 ("RFPn) seeking proposals from qualified firms for solid waste disposal service, in accordance with the terms, covenants and specifications set forth in the RFP; and

WHEREAS, two (2) responses to the RFP were submitted to the City, and on March 20, 2012, the City Commission approved the rankings of the Selection Committee and Contractor was determined to be the top-ranked firm; and

WHEREAS, Contractor and the City desire to enter into this Agreement (the "Agreement'') to provide for the disposal of solid waste generated within the municipal boundaries of the City and to set forth how such solid waste disposal services will be provided; and

WHEREAS, the City has determined that it is beneficial and in the best interests of the public to enter into this Agreement.

NOW THEREFORE, in consideration of the mutual covenants, promises, terms and conditions set forth herein, Contractor and the City do hereby agree as follows:

ARTICLE 1 DEFINITIONS

For the purpose of this Agreement, the following definitions shall apply, unless otherwise specifically stated:

"Additional Waste" shall refer to Bulk Waste, Construction and Demolition Debris, and/or Yard Trash.

"Bulk Waste " shall refer to any non-vegetative item that cannot be containerized, bagged, or bundled including, but not limited to, white goods, discarded refrigerators, ranges, pool heaters, water softeners, pianos, washers, dryers, water heaters, bicycles, and other similar appliances, electronics, mattresses, household goods, furniture, large boxes, barrels and crates, and shall not be commingled with vegetative waste or any other type of refuses and as

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damage caused by Hazardous Waste, explosives or radioactive waste entering a Waste Receiving Facility unless knowingly accepted by Contractor. In any event, Force Majeure shall not include the following:

(a) the failure of any subcontractor or any supplier to furnish labor, services, materials or equipment, unless caused by an event of Force Majeure; (b) the suspension, termination, interruption, denial or failure of renewal of any permit, license, consent, authorization or approval relating to the operation of a Waste Receiving Facility which is the result of any action or inaction or failure of compliance by Contractor or any affiliate; (c) any change in law; (d) loss or unavailability of personnel desired by Contractor to operate or maintain a Waste Receiving Facility; ( e) wear and tear or obsolescence of any parts or equipment; or (t) except as a result of an independent event of Force Majeure, the loss of or inability to obtain or retain any utility services, including water, sewerage, fuel oil, gasoline and electric power necessary for the operation of the Waste Receiving Facility(ies).

"Hazardous Waste" means any waste, substance, object or material deemed hazardous under (i) Section 403.703, Florida Statutes; (ii) RCRA, 42 U.S.C.A § 6901 et seq.; (iii) CERCLA, 42 U.S.C.A. § 9601 et seq; (iv) Toxic Substances Control Act, 15 U.S.C. §2601, et seq., and in each case, applicable regulations promulgated thereunder.

"Licensed City Waste Haulers" shall refer to Licensed Commercial Waste Haulers and Licensed Residential Waste Haulers.

"Licensed Commercial Waste Hauler(s)'' shall refer to the private haulers that are permitted to conduct collection and hauling of Commercial Waste generated from non-residential property within the City and to deliver the Waste to the Waste Receiving Facility.

"Licensed Residential Waste Hauler(s)" shall refer to the private haulers that are permitted to conduct collection and hauling of Residential Waste generated from residential property within the City and to deliver the Waste to the Waste Receiving Facility.

"Person,' means any individual or business entity, including, without limitation, any corporation, limited liability companies, partnership, business trust or partnership.

"Residential Waste" shall refer to all waste, refuse, garbage, trash and rubbish generated within the City from residential property and that is capable of being processed at the Waste Receiving Facility, but shall not include construction and demolition debris, tropical storm or hurricane related debris, recyclable material that is source separated (removed from the waste stream at the point of generation) and recycled, or Unacceptable Waste.

'~Unacceptable Waste" shall refer to (a) Hazardous Waste, (b) cleaning fluids, hazardous paints, acids, caustics, poisons, radioactive materials, fine powdery earth used to filter cleaning fluid, and refuse of similar nature; (c) any item of waste exceeding six feet in any one of its dimensions or being in whole or in part a solid mass, the solid mass portion of which has dimensions such that a sphere with a diameter of eight inches could be contained within such solid mass portion; (d) all large household appliances, commonly referred to as "white goods" including, without limitation, refrigerators, stoves, washing machines, drying machines, water heaters, and the like; (e) any controlled substances regulated under the Controlled Substances Act, 21 USC 801 et seq., or any equivalent state law; (t) non-burnable construction materials and demolition debris; (g) small appliances containing chlorofluorocarbons (CFCs) including, without limitation, air conditioners, water coolers, and dehumidifiers; and (h) all other items of waste which a Company reasonably believes would be likely to pose a threat to health or safety or the acceptance and disposal of which may cause damage to the Facility or be in violation of any judicial decision, order, action, permit, authorization, license, approval or registration of

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payment bond shall be reviewed on an annual basis and the required bond value may by increased or decreased based on an increase or decrease in a Licensed Commercial Waste Haulers' Commercial Waste delivery obligations.

2.3 Weighing Waste. Contractor shall utilize and maintain motor truck scales at the Waste Receiving Facility to weigh the Licensed City Waste Haulers' vehicles delivering City Waste to the Waste Receiving Facility. Contractor shall weigh the Licensed City Waste Haulers' vehicles upon entering and exiting the Waste Receiving Facility site, with the weight difference resulting in the tons of City Waste actually delivered. Contractor shall keep and regularly maintain accurate, calibrated, certified motor truck scales for the weighing of all City Waste. The motor truck scales shall be recalibrated from time to time during the Initial Term and any Renewal Terms of this Agreement, in accordance with the requirements of the Florida Department of Agriculture.

2 .4 Final Disposal. If the Waste Receiving Facility is not also a disposal facility, the Contractor shall legally process the City Waste at the Waste Receiving Facility and transport and deliver the City Waste to a legally permitted disposal facility.

2.5 Monthly Reports. Contractor shall provide monthly reports to the City, within 10 days after the end of the subject month, that include the number of tons of City Waste actually delivered to the Waste Receiving Facility for the subject month listing the delivering party's name (City or Licensed City Waste Hauler(s)), the number of transactions for each delivering party and a copy of the weigh tickets. Such reports shall be provided in a form reasonably acceptable to the City.

2.6 Waste Composition. Upon reasonable notice from City, Contractor shall provide City staff with access to a portion of the Waste Receiving Facility and tipping floor for the purpose of conducting a waste composition study, or other similar studies.

2.7 Additional Waste. Contractor shall, at the option of the City, provide Additional Waste disposal services to the City and shall accept and weigh all Additional Waste delivered by the City or City's Licensed Waste Haulers for processing at the Waste Processing Facilities designated for Additional Waste as set forth on Exhibit "C" attached hereto(" Additional Waste Receiving Facility'') during the Initial Term or any Renewal Term of, and in accordance with, this Agreement.

2. 7. 1 Delivery of Additional Waste. City may deliver or cause to be delivered to the Additional Waste Receiving Facility Additional Waste collected by the City or the Licensed City Waste Hauler(s).

2. 7.2 Additional Waste delivered by City. If City collects the Additional Waste and hauls the Additional Waste to Contractor, City shall be responsible for Unacceptable Waste brought to the Additional Waste Receiving Facility.

2.7.3 Additional Waste delivered by Licensed Additional Waste Hauler. Waste hauling contracts for the collection of Additional Waste, including any renewal of existing waste hauling contracts, entered into by the City and a licensed Additional Waste hauler after the Effective Date of this Agreement shall include the following: (a) the definition of Additional Waste set forth in this Agreement, (b) licensed Additional Waste hauler's obligation to be responsible for Unacceptable Waste brought to the Additional Waste Receiving Facility, (c) licensed Residential Additional Waste hauler's obligation to indemnify Contractor and add Contractor as additional insured for all losses for death, personal injury, and property damage caused by the negligence or intentional misconduct of licensed Additional Waste hauler delivering Additional Waste on behalf of the City, (d) a requirement for the licensed Additional Waste hauler(s) to deliver all collected Additional Waste to the Additional Waste Receiving Facility or as otherwise provided pursuant to Section 5.2, and (e) hours of operation for the

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retain their rights during any such extension to seek damages for material breach or material default of this Agreement by either party.

ARTICLE4 SERVICE CHAR:GE

4.1 Disposal Services Charge. Within 10 days after each operating month, the Contractor shall invoice the City for Residential Waste Disposal Services and the Licensed Commercial Waste Hauler(s) for Commercial Waste Disposal Services (and Additional Waste Services) based upon the per ton (or per cubic yard, as appropriate) Disposal Services Charge, as set forth in attached Exhibit "A".

4.2 Disposal Services Charge adjustments. Beginning on the first October 1 after the one year anniversary of the Disposal Commencement Date of this Agreement, and on each October 1 thereafter, the Disposal Services Charge shall be subject to adjustment by multiplying the Disposal Services Charge by the Disposal Services Charge Inflationary Factor, as set forth in attached Exhibit "B". The result of the calculation shall become the Disposal Services Charge permitted to be charged by Contractor to City for the 12 months following the Disposal Services Charge adjustment.

4.3 Disposal Services Charge Adjustments Due to Unusual Conditions.

4.3 .1 In the event of an unusual condition that is not under the control of any party to this Agreement ("Unusual Condition") that affects a party's ability to perform under this Agreement, the non-performing party shall diligently attempt to mitigate any such circumstance and shall notify the other party of the extent and anticipated duration of the Unusual Condition.

4.3.2 In the event of the occurrence of an Unusual Condition affecting Contractor's ability to perform, the Contractor may request price, schedule and performance relief, as applicable; provided, however, that in order to request an increase in price, the Contractor must demonstrate, by providing the City with audited financial statements or other materials certified by the Contractor and a Certified Public Accountant to be true and accurate, that the change in circumstance must result in at least a 10% percent increase in Contractor's total cost for the previous six months of providing the Disposal Services. The City may~ at its own expense, audit the Contractor's records related to increased total cost. The Contractor shall make such records available to the City upon City's request. To the extent the amount of such increased costs has already been recovered through the Disposal Services Charge Adjustments in Section 4.2, Contractor shall not include such cost in its request for price relief. The City shall have a sixty (60) day period to determine, in its sole discretion, whether to agree to grant Contractor's requested adjustment to the Disposal Services Charge. Contractor's ability to request price, schedule and performance relief shall be limited to one occurrence per 12 month period.

4.3 .3 If the City determines not to grant Contractor the adjustment to the Disposal Services Charge, the City or Contractor may terminate this Agreement by providing the other party with written notice, and this Agreement shall remain in full force and effect under its existing terms until the expiration of the 180111 day from the receipt of the termination notice.

4.3.4 In the event of any Unusual Condition that makes performance of this Agreement by Contractor substantially impossible, the Contractor agrees that the City shall have the right to draw on the Irrevocable Letter_ of Credit immediately, as necessary to provide uninterrupted Disposal Services. The City shall have the right to engage another person, firm or corporation-to provide the necessary Disposal Services, and City may. utilize the proceeds from the Letter of Credit and apply said proceeds to pay any difference between the Disposal Services Charge in effect at the time of occurrence of the Unusual Condition, and the actual cost for Disposal Services charged by the successor company for the Disposal Services.

4.4 Most favored pricing and material terms.

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to Contractor for Commercial Waste Disposal Services as required by this Agreement, Contractor shall notify the City of such non-payment and Contractor shall have the right to make a claim for payment under the performance and payment bond (required by Article 2.2.3) for the properly invoiced outstanding amounts due for Commercial Waste Disposal Services pursuant to this Agreement. If the unpaid amount exceeds 80% of the performance and payment bond provided by the Licensed Commercial Hauler pursuant to Article 2.2.3 and then available to Contractor, Contractor shall be entitled to reject any Commercial Waste delivered by such Licensed Commercial Waste Hauler until such time as all unpaid amounts have been received by Contractor and the Contractor is in possession of a performance bond meeting the requirements of Article 2.2.3.

ARTICLES OPERATION OF WASTE RECEIVING FACILITIES

5.1 Personnel and equipment requirement. Contractor shall provide, at its sole expense, all necessary personnel, materials and equipment for the operation, maintenance and repair of the Waste Receiving Facility. For purposes of this Article, Waste Receiving Facility shall include Additional Waste Receiving Facility.

5.2 Waste Receiving Facility. Contractor shall accept all City Waste delivered to the designated Waste Receiving Facility and all Additional Waste delivered to the designated Additional Waste Receiving Facility. The designated Waste Receiving Facility (currently the College Avenue Waste Receiving Facility) may be replaced by the Contractor with a different facility, subject to the City's written approval, which shall not be unreasonably withheld. In the event Contractor replaces the designated Waste Receiving Facility with a waste receiving facility that is further from Miramar City Hall than the College Avenue Waste Receiving Facility, Contractor shall reimburse the City for any incremental costs the City incurs for transportation of the City's Waste, either directly or indirectly through required payments to the City's Licensed Waste Hauler, due to replacement of the designated Waste Receiving Facility. In lieu of Contractor's reimbursement, the City shall have the right, in its sole discretion, to offset the Disposal Services Charge due with the additional transportation costs the City or the City> s Licensed Waste Hauler incurs due to replacement of the designated Waste Receiving Facility based on the provision of reasonable documentation supporting the additional transportation costs.

5.3 Alternate Waste Receiving Facility.

5.3. l In the event the Waste Receiving Facility or Additional Waste Receiving Facility is rendered incapable, for any reason including Force Majeure, to receive the City Waste or Additional Waste for any length of time, Contractor shall immediately, but in no event more than 24 hours thereafter, provide the City with a designated Alternate Waste Receiving Facility, subject to City's written approval (which shall not be unreasonably withheld), where the City and the Licensed City Waste Hauler(s) shall be required to dispose of City Waste or Additional Waste ("Alternate Waste Receiving Facility"). If Contractor fails to provide the City with an Alternate Waste Receiving Facility within 24 hours of incapacity of the Waste Receiving Facility or Additional Waste Receiving Facility, City may dispose of City Waste or Additional Waste at any disposal facility, and Contractor shall be responsible for any incremental costs the City incurs, either directly or indirectly through required payments to the City's Licensed Waste Hauler, including but not limited to collection, disposal and transportation of the City's Waste or Additional Waste. In lieu of Contractor's reimbursement, the City shall have the right, in its sole discretion, to offset the additional costs against the Disposal Services Charge.

5.3.2 In the event that the Waste Receiving Facility or Additional Waste Receiving Facility is rendered incapable to receive the City Waste or Additional Waste for any length of time for any reason except for Force Majeure or the negligence or intentional misconduct of City or

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Miramar/Sun~Bergeron FINAL 06.15.2012

Waste Receiving Facility to the extent required as a result of any such delivery of Unacceptable Waste. The costs of such removal, transport, disposal and clean-up shall be allocated in the following manner:.

i. Should the Person delivering such Unacceptable Waste be known or identified, and should such Person be a Person delivering waste to the Waste Receiving Facility by or on behalf of the City, the costs associated with such removal, transport, disposal and Waste Receiving Facility clean-up shall be borne by the City, provided that Contractor shall use all commercially reasonable efforts to collect such amounts from the Person delivering Unacceptable Waste to the Waste Receiving Facility before seeking recovery from the City.

ii. Should the Person delivering such Unacceptable Waste be known or identified, and should such Person be a Person delivering waste to the Waste Receiving Facility other than by or on behalf of the City, the costs associated with such removal, transport, disposal and Waste Receiving Facility clean~up shall be borne by Contractor.

iii. Should the Person delivering such Unacceptable Waste be unknown or unidentifiable, the costs associated with such removal, transport, disposal and Waste Receiving Facility clean-up shall be borne by the Contractor.

5. 7 Disposal Facilities. Contractor shall utilize one of the Disposal Facilities set forth in Exhibit "E" to this Agreement, and any other legally permitted Disposal Facility during the Initial Term and any Renewal Term of this Agreement. Prior to Contractor's use of any disposal facility in the performance of this Agreement, Contractor shall provide the City with documentation that the disposal facility to be utilized is legally permitted.

ARTICLE6 CONDITIONS PRECEDENT

6.1 Prior to Contractor's commencement of Disposal Services pursuant to this Agreement, Contractor shall deliver to City, in a form acceptable to the City in its sole discretion, the following documents within 90 days of execution of this Agreement:

a) A Project Guarantee Agreement executed by Southern Waste Systems, LLC, and Bergeron Land Development, Inc., the parent companies of Sun Recycling, LLC, and Bergeron Environmental and Recycling, LLC, respectively, in the form provided in Exhibit "F";

b) A fully executed Letter of Credit attached as Exhibit "D", in an amount equal to six months of Disposal Costs (for Miramar, $1,538,500);

c) All required certificates of insurance; and

d) Satisfactory evidence that Contractor has secured all rights and approvals necessary to provide the Disposal Services.

6. 2 In the event Contractor fails to satisfy the conditions precedent within 90 days of execution of this Agreement, Contractor shall be responsible for liquidated damages in the amount of $250,000.00, and City shall have the immediate right to terminate this Agreement by providing written notice to Contractor. Contractor agrees that the amount of liquidated damages assessed pursuant to this Article 6 .2 is reasonable and does not constitute a penalty. The parties recognize the difficulty of proving the loss or damage suffered by the City due to Contractor's breach. Contractor acknowledges and agrees that the amount of liquidated damages approximate the loss anticipated at the time of execution of this Agreement.

ARTICLE? .I)EFAULT

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Miramar/Sun~Bergeron Fl NAL 06.15.2012

8.6 Premium payment responsibility. Contractor shall be solely responsible for payment of all premiums for insurance contributing to the satisfaction of this Agreement and shall be solely responsible for the payment of all deductibles and retentions to which such policies are subject.

ARTICLE9 LlAB{LITY

9. 1 The City and the Contractor shall each be separately liable and responsible for the actions of their respective officers, agents and employees in the performance of their respective obligations under this Agreement.

9.2 To the extent permitted by law, the Contractor shall protect, indemnify and hold the City, its officials, agents, servants and employees, harmless from and against all liabilities, damages, claims, demands, judgments, losses, costs, expenses, suits, or actions and reasonable attorneys' fees, and shall defend the City in any suit, including appeals, for personal injury to or death of any person(s), or loss or damage to property, or pollution or environmental contamination, arising out of the operation of Contractor's Waste Receiving Facility or Additional Waste Receiving Facility, or the performance (or non-performance) of Contractor of its obligations under this Agreement. Contractor is not, however, required by this Article 9.2 to reimburse or indemnify City for loss or claim due to the negligence or willful misconduct of the City or any Licensed City Waste Hauler(s).

ARTICLE 10 FORCE MAJEURE

In the event of an occurrence of a Force Majeure rendering either party unable to perform, or delaying either party from performing in accordance with this Agreement, such inability or delay shall be excused at any time during which compliance with this Agreement is prevented by such event and during such period thereafter as may be reasonably necessary for the party to correct the adverse effect of the Force Majeure. Both parties shall use their best efforts to remedy the cause(es) of any event of Force Majeure and shall cooperate with each other in such efforts. In addition to finding and notifying the City of an Alternate Waste Receiving Facility, Contractor commits to use all reasonable efforts to reconstruct all or part of the Waste Receiving Facility or Additional Waste Receiving Facility, which may be physically damaged by an event of Force Majeure should such reconstruction be practicable, commercially and otherwise.

ARTICLE 11 LETTER OF CREDIT

11.1 Contractor is required to provide City with a fully executed Irrevocable Letter of Credit, the form of which is attached as Exhibit "D", in order to provide a source of funds to reimburse the City in the event Contractor fails to perform in accordance with this Agreement. The City may draw on the Letter of Credit in the event Contractor fails to comply with any of its obligations hereunder. The City may, at any time after contract award, waive any of the project security provisions, including the Letter of Credit, based on the record of service provided or financial strength or creditworthiness of the Contractor.

11.2 In the event the Letter of Credit amount falls below $250,000.00, City may terminate this Agreement provided that the City gives Contractor written notice of the Letter of Credit deficiency (the "Deficiency Notice") and Contractor fails to replenish the Letter of Credit to the full amount required by Article 6. l(b) within 30 days receipt of the Deficiency Notice.

ARTICLE 12 COST RECOVERY

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effective unless contained in a written document executed with the same formality and of equal dignity herewith by all parties to this Agreement.

14.3 Assignment. Except as provided herein, the Contractor may not assign its obligations as set forth in this Agreement without the prior written consent of the City. The Contractor may (i) without the consent of the City, (a) transfer, assign or pledge Contractor's interest in this Agreement in connection with any financing or re-financing activity or (b) assign this Agreement to another affiliate of Contractor (provided that the parent guaranty remains in place); and (ii) with the consent of the City, which may not be unreasonably withheld or delayed, assign this Agreement in connection with a sale or assignment of its interest in the Waste Receiving Facility, provided that Contractor can reasonably demonstrate that the assignee has a financial strength which is equal to or better than that of Contractor at the time of the proposed assignment. This Agreement shall be binding on any and all successors to Contractor.

14.4 Records. Except as otherwise provided herein, the City and Contractor shall each maintain their own respective records and documents associated with this Agreement in accordance with the requirements for records retention set forth in Chapter 119, Florida Statutes.

14.5 Audit and inspection rights and retention of records. City shall have the right to audit the books, records and accounts of Contractor that are related to this Agreement during normal business hours. Contractor shall keep such books, records, and accounts reasonably required to document and substantiate Contractor,s performance under this Agreement, including, but not limited to, records concerning calibration of the motor truck scales and the monthly reports required under Article 2.5.

Contractor 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 pertinent to this Agreement for the required retention period of the Florida Public Records Act (Chapter 119, Fla. Stat.), 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, unless Contractor is notified in writing by City of the need to extend the retention period. Such retention of such records and documents shall be at Contractor's expense. 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 by City to be applicable to Contractor's records, Contractor shall comply with all requirements thereof; however, no confidentiality or non-disclosure requirement of either federal or state law shall be violated by Contractor. Any incomplete or incorrect entry in such books, records, and accounts shall be a basis for disallowance and recovery of any payment upon such entry.

14.6 Governing law and venue. This Agreement shall be governed, construed and controlled according to the laws of the State of Florida. Any claim, objection or dispute arising out of the terms of this Agreement shall be litigated in the Seventeenth Judicial Circuit in and for Broward County, Florida. The parties expressly waive all rights to trial by jury for any disputes arising from or in any way connected with this Agreement. The parties understand and agree that this waiver is a material contract term. If either party is required to enforce this Agreement by court proceedings or otherwise, whether or not formal action is required, each party shall pay its own attorney's fees and costs.

14.7 Severability. In the event a portion of this Agreement is found by a court of competent jurisdiction to be invalid, the remaining provision shall continue to be effective.

14.8 Independent contractor. Contractor is an independent contractor under this Agreement. Services provided by Contractor pursuant to this Agreement shall be subject to the supervision of Contractor. In providing such services, neither Contractor nor its agents shall act as officers, employees or agents of the City. Personnel policies, tax responsibilities, social

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Mi ramar/Sun~Bergeron Fl NAL 06.15.2012

14.13 Multiple originals. This Agreement may be fully executed in five (5) copies by all parties, each of which, hearing original signatures, shall have the force and effect of an original document.

14.14 Further Assiirances. The City and the Contractor agree to execute and deliver any instruments and petform any acts thatmay be reasonably necessary or reasonably requested in order to give full effect to this Agreement.

ARTICLE· 15 PIGGYBACK

15 .1 It is contemplated that other governmental entities may piggyback upon this Agreement in whole or in part. Such entities may only do so upon the consent of Contractor.

[THIS SPACE INTENTIONALLY LEFT BLANK]

AGREEMENT BY AND BETWE.EN SUN-BERGERON SOLID WASTE SERVICES JV, AND THE CITY OF MIRAMAR, FLORIDA, FOR SOLID WASTE DISPOSAL SERVICES

IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement . on the respective dates under each signature: City, signing. by and through its City Manager, attested to and duly authorized. to execute same by the City Commission of the City of Miramar and by the Contractor,. by and through its , attested to and duly authorized to execute same.

ATTEST:

FORM AND LEGAL THE USE OF AND

{;lTY.

CITY OF MIRAMAR

CITY OF MIRAMAR ONLY:

City Att mey Weiss· rota Helfrn.an Pastoriza Cole · Boniske, P.L.

(CITY SEAL)

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AGREEMENT BY AND BETWEEN SUNRBERGERON SOLID WASTE SERVICES JV, AND THE CITY OF MIRAMAR, FLORIDA, FOR SOLID WASTE DISPOSAL SERVICES

EXHIBIT "A"

DISPOSAL SERVICES CHARGE

INITIAL TERM

City Waste

$45 .25 per ton

Additional Waste

Bulk Waste on a per ton basis at $52.00 per ton.

Revenue share for Bulk Waste of $0.50 on a per ton basis with no minimum annual guarantee.

Construction and Demolition Debris on a per cubic yard basis at $8. 75 per cubic yard.

Revenue share for Construction and Demolition Debris of $0.25 on a per cubic yard basis with no minimum annual guarantee.

Yard Trash on a per cubic yard basis at $6.00 per cubic yard.

Revenue share for Yard Trash $0.25 on a per cubic yard basis with no minimum annual guarantee.

City and Piggybacking Governmental Entities may select any or all of these disposal services under this Agreement.

J.{ENEW AL TERMCS}

Disposal Services Charge shall be established in accordance with Article 3. 2

AGREEMENT BY AND BETWEEN SUN-BERGERON SOLID WASTE SERVICES JV, AND THE CITY OF MIRAMAR, FLORIDA, FOR SOLID WASTE DISPOSAL SERVICES

EXHIBIT "B"

DISPOSAL SERVICES CHARGE INFLATIONARY FACTOR

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AGREEMENT BY AND BETWEEN SUN~BERGERON SOLID WASTE SERVICES JV, AND THE CITY OF MIRAMAR, FLORIDA, FOR SOLID WASTE DISPOSAL SERVICES

EXHIBIT "C"

WASTE RECEIVING FACILITY

College A venue Waste Receiving Facility 2380 College A venue Davie, FL 33317

ADDITIONAL WASTE RECEIVING FACILITIES

Sun 1 2241 NW 1sn1 Court

Dania Beach, Fl 33069 Currently permitted and operational for

Construction and Demolition Debris, but in process of converting to a

Dedicated Metal Processing Facility Sun 2

2281 NW l 6TH Street Pompano Beach, FL 33069

Currently permitted and operational for Construction and Demolition Debris

Sun3 3251 SW 26111 Terrace, Dania Beach, Fl 33312

Currently permitted and operational for Construction and Demolition Debris

and Yard Trash Sun 7

1850 S. Powerline Road Deerfield Beach, FL 33462

Currently permitted and operational for Yard Trash and Bulk Waste

Bergeron Park of Commerce - South 19820 Sylvan Pass

Pembroke Pines, FL 33332 Currently permitted and operational for Yard

Trash

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Miramar/Sun~Bergeron FINAL 06.15.2012

immediately available funds into a designated account that you may establish with us. All drawings under the Irrevocable Letter of Credit will be paid with our own funds.

5. If a demand for payment delivered to us pursuant to the foregoing paragraph does not conform to the terms and conditions of this Irrevocable Letter of Credit we will notify you of our intention to dishonor the same after presentation of the Draft(s) by 5:00 P.M. on the next succeeding Business Day. Such notice of dishonor shall be promptly confirmed by written notice, specifying the number of this Irrevocable Letter of Credit, the date of the non-conforming Draft( s) and the reasons that we are not honoring the same. Upon being notified that the Draft(s) was not affected in conformfty with this Irrevocable Letter of Credit, you may attempt to correct any such non-conforming demand for payment prior to the Expiration Date.

6. Upon the earlier to occur of (a) payment to you or your account of the Irrevocable Letter of Credit Amount, or (b) the Expiration Date, we shall be fully discharged of our obligation under this Irrevocable Letter of Credit with respect to such Draft, and we shall not thereafter be obligated to make any further payments under this Irrevocable Letter of Credit in respect of such Draft(s) to you or to any other person.

7. This Irrevocable Letter of Credit shall be governed by the International Code of Uniform Customs and Practices for Documentary Credits, Publication No. 500 (1993 Revision), including any amendments, modifications or revisions thereto. Communications with respect to this Irrevocable Letter of Credit shall be in writing and shall be addressed to [BANK], [ADDRESS OF BANK], specifically referring to the number of this Irrevocable Letter of Credit. We shall address communications to you at the address noted on the first page of this Irrevocable Letter of Credit unless otherwise advised by you in writing.

8. This Irrevocable Letter of Credit sets forth in full our undertaking, and such undertaking shall not in any way be modified, amended, amplified or limited by reference to any document, instrument or agreement referred to herein (including, without limitation, the Disposal Services Contract), except only the Draft(s) referred to herein; and any such reference shall not (unless otherwise provided herein) be deemed to incorporate herein by reference any such document, instrument or agreement except for such Draft(s).

Very truly yours, [NAME OF BANK] By: Name:

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EXHIBIT "F"

PARENTAL GUARANTY

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Miramar/Sun~Bergeron· - Addendum 1.14.2013

option of any entily that piggybacks on Lhis Contract. So as to implement this change, Exhibit C. J is substituted for

Exhibit C in the Agreement.

3. Secti011 4.3.3 is modified se> as to strike "01· Contractor" thus clarifying that only the City may

terminate this Agreement under the Unusual Conditions clause.

4. Contractor guarantees that it shall achieve an annual recycling rate for all Solid Waste, including

City Waste and Additional Waste, in excess of 75 percent as defined by Chapter 403, Florida Statutes a1td its

applicable regulations 1>ro111ulgated lhereunde1·. Such t•ecycllng rate shall be verified based upon the policies a11d

prnccdm·es of the State of Florida Department of Environmental Protection. Contracto1· shall provided evidence of

such recycling l'ate monthly by pl'oviding copies of materials required to be submitted to the State of Florida

Department of Environmental Protection for such purposes. Should Contractor fail to comt'IY with this recycling

guara11tce of 75 perccnl of Conlractor's operalions on an annual basis, then it shall pay an annual penally of$25,000

to the City of Miramar withit1 30 days of the end of the applicable 12 month pc1'iod, t·egardless of the number of

municipalilies or other government entities that may participate under this Agreement This amount shall not

increase based on the participation of other municipalities to this Agreement.

IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each signature: City, signing by and through its City Manager, attested to and duly authorized t

Miramar/Sun-Bergeron - Addendum 1.14.2013


EXHIBIT "A. I"

DISPOSAL SERVICES CHARGE

INITIAL TERM

City Waste

$45.25 per ton

Additional Waste

Bulk Waste on a per ton basis at $42.00 per ton.

Revenue share for Bulk Waste of$0.50 on a per ton basis with no minimum annual guarantee.

Construction and Demolition Debris on a per cubic yard basis at $8.75 per cubic yard.

Revenue share for Construction and Demolition Debl'is of $0.25 on a per cubic yard basis with no minimum annual guarantee.

Yard Trash on a per cubic yard basis at $6.00 per cubic yard.

Revenue share for Yard Trash $0.25 on a per cubic yard basis with no minimum annual guarantee.

City and Piggybacking Governmental Entities may select any 01· all of these disposal services under this Agreement.

RENEWAL TERM

SECOND ADDENDUM TO AGREEMENT

BY AND BETWEEN

Miramar/Sun-Bergeron Addendum 2 -09.16.2013

SUN-BERGERON SOLID WASTE SERVICES JV,

AND

THE CITY OF MIRAMAR, FLORIDA

FOR

SOLID WASTE DISPOSAL SERVIC:ES

This Second Addendum to the Agreement is made and entered in.to this __ day of ___ __._. ____ , 2013, by an.d between Sun Recycling, LLC, a Florida Limited Liability Company, and Bergeron Environmental And Recycling, LLC, a Florida Limited Liability Company, doing business as SUN-BERGERON SOLID WASTE SERVICES JV, a Florida Joint Venture (hereinafter referred to as "Contractor'), and the CITY OF MIRAMAR, FLORIDA, a municipal corporatio11 of the State of Florida (hereinafter referred to as the "City").

W:HE:REAS, o.n July 3, 2012, the City and Contractor entered into an agreement for the Contractor to provide for the disposal of solid waste generated within the municipal boundaries of the City and to set forth how such disposal. services will be provided (the "Agreement"); and

WHEREAS, onJanuruy 23, 2013, the City and the Contractor entered into the first Addendum to the Agreement to clarify certain Agreement terms and provide for additional benefits to the City; and

WHEREAS, the . City artd Contractor desire to enter into this Second Addendum to the Agreement (the ''Agreement") to modify the project security requirements and provide the City with an annual Hazardous Household Waste/Electronic· Waste Collection event; and

WHEREAS, the City has detennined that it is beneficial and in the best interests of the public to enter into this Second Addendum to the Agreement.

NOW THEREFORE, in consideration of the mutual covenants, promises, terms and conditions set forth herein, City and Contractor do hereby agree as follows:

L language:

Terms to Second Addendum to Agreement

Article 11 "Letter of Credit" is deleted in its entirety and replaced with the following

ARTICLE U PERFORMANCE BOND

Contractor is required to provide City with a fully executed performance bond, in a form and from a company that is acceptable to the City, in an amount equal to 125% of the total annual contract value of the Agreement, in order to secure Contractor's perfonnance in accordance with the· Agreement. The City may, at any time after contract award, waive any of the project security

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Miramar/Sun.:Bergeron Addendum2-09J6;2013

IN WITNESS WHEREOF, the parties hereto have made and executed this Agreement on the respective dates under each signature: City, signing by and through its City Manager, attested .to and duJy authorized to execute same by the City Commission ofthe City of Miramar and by the Contractor, by an.d through its attested to and duly authorized to execute same.

CITY

ATTEST:

Yvette M. McLeary, City Clerk

AP.PROVEDAS TO.FORMANULEGAL SUFFICIENCY FOR THE USE OF AND RELJANCE BY.THE CiTYO.FMIRAMAR. ONLY:

City Attorney Weiss Serota Helfinan Pastoriza Cole & Bo11iske, P.L.

CITY OFMIRAMAR

By: . .. Kathleen Woods-Richardson, City Manager

Date: ____ ~---------

(CITY SEAL)

CONTRACTOR

Witnesses~

SUN~BERGERON SOLID WASTE SERVICES (Sun-Bergeron)~ a Florida Joint Venture

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Miramar/Sun-Bergeron FINAL 06.15€¦ · THE CITY OF MIRAMAR, FLORIDA FOR SOLID WASTE DISPOSAL...

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