HomeMy WebLinkAbout2012-151 8 -ZI • IZ
RECYCLABLES TRANSFER,
PROCESSING & MARKETING
SERVICES AGREEMENT
BY AND BETWEEN
SOLID WASTE DISPOSAL DISTRICT,
INDIAN RIVER COUNTY, FLORIDA
AND
RESOURCE RECOVERY SYSTEMS , LLC,
d / b/a RECOMMUNITY
DATED AS OF august 21 , 2012
TABLE OF CONTENTS
ARTICLE I . DEFINITIONS , . 0 0 a 0 5 a 0 a a 0 a a 9 0 a 0 a 1 0 a a * a 0 6 1
ARTICLE II , AGREEMENT TERM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
ARTICLE III , SWDD RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Section 3 . 1 . Delivery of Program Recyclables . . . . . . . . . . . . . . . . . . . . . . . . . 5
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 3 . 2 . Scalehouse . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . 6
Section 3 . 3 . County MRF Operations . 0 0 9 a 0 0 0 a a 1 0 a a 0 9 a a a * 0 P 1 0 6 6 0 0 0 a a 0 a 0 6 a 0 0 4 a 6
b a 0 a a a 0 9 a a 0 9 a 0 a s d 6
Section 3 . 4 . Loading of Vehicles & Monthly Reports , . 0 0 0 a a 0 4 0 a a a 0 a a 0 a 0 a 0 0 6 a a a a a a 0 0 0 0
a a 0 4 0 0 a a 0 0 0 0 0 9 8 a 0 a a 0 a 0 a a a 0 a 6
ARTICLE IV, PROCESSOR RESPONSIBILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4 . 1 . Processor May Monitor Activities . . . . . . . . . . . . . . . . . . . . . . . . 7
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 4 . 2 . Material Rejection . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Section 4 . 3 . Transportation , . 6 0 a a a 0 0 a 0 d a 1 0 8 0 a a 0 0 0 a 8 a 6 a 0 0 4 0 0 a 0 a a 6 0 0 a a * a d 0 8
Section 4 . 4 . Processing and Marketing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Section 4 . 5 . Disposition of Recyclable Materials . a 0 0 0 a a 0 0 1 a 0 a a 0 a a I a a a a 0 0 0 a 8 a 0 9 0 a d & 9 P
0 0 a a 8 0 0 0 0 6 & a 0 0 0 a a a a 8
Section 4 . 6 . Compliance with Applicable Law; Recovered Material Certification . . . . . . . . . . . . . . . . 8
Section 43 . SWDD Access and Right to Inspect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ARTICLE V . PAYMENTS TO SWDD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . 9
Section 5 . 1 . Dual Stream Program Recyclables Revenue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 5 . 2 . Composition Study . 8 0 a 0 9 a a 0 0 0 0 4 0 0 a 0 a W 9 0 a 0 a 0 9 1 1 a a 6 a 0 0 1 0 a a 6 9 0
0 0 8 6 0 a 0 4 a a & 0 0 9 0 9 a a a 0 9 0 a 0 a & a 0 0 0 0 6 6 0 0 0 0 a 0 a a 4 a 0 a 0 a a a 10
Section 5 . 3 . Single Stream Program Recyclables Revenue11
Section 5 . 4 . Market Index . a 0 9 0 6 a 0 0 a 4 1 4 0 0 a 0 a 0 0 a a a a 0 a 0 a 0 6 a 0 0 0 s 11
Section 5 . 5 . Adjustment to Processor' s Fee . . . . . . 12
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Section 9 . 17 . Waiver of Jury Trial . . . . . . . . . 21
. . . . . . . . . . . . . . . . . . . . . . . . . .
Section 9 . 18 . Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . 21
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Section 9 . 19 . Binding Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . 21
. . . . . . . . . . . . . . . . . . . . . . .
Section 9 . 20 , Reasonableness Standard . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section9 . 21 , Attorney Fees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Section9 . 22 . Time of Essence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Section 9 . 23 . Cooperation and Release of information . d 1 0 4 V a 6 M 0 0 & a 0 0 0 a a a 0 0 0 V 9 0 * a 0 a 0 9
0 0 0 0 a 1 0 D 0 6 a I a a 6 0 0 6 0 0 a a a 22
Section 9 . 24 . Sovereign Immunity , . a 1 6 6 6 0 0 0 a a 0 0 a 0 a a a 0 0 0 1 N a A 0 0 6 0 0 4 0 0 a & a a M * 0 0 0 a
M a 0 0 6 0 6 0 0 a 0 6 * 0 a 0 4 0 a M 4 a 0 a a M 0 0 a a 6 0 a 0 a 0 0 a R a a 8 0 22
Section 9 . 25 . Records Retention . 1 9 0 0 9 5 1 a 0 0 a 0 0 0 a a 6 0 9 a 0 4 a a I I # I a a 0 9 0 6 0 6 a a 0 0 0 0 a 0
0 a 0 a w a 9 0 0 0 0 6 a P 4 9 a 0 a . a 0 0 0 6 a a 0 22
Section9 . 26 . Counterparts . . 0 0 a a 0 d a 0 0 w 6 6 0 0 0 5 0 a 0 * a 0 0 9 0 a 0 a 0 6 0 6 a a 0 0 0 a 9 9 a 0 * M 0 0 0 6 M
* 0 a 0 a 0 6 M M a 9 0 a a a a 0 0 0 a a a 4 4 a a a 6 0 0 0 a 0 & 0 0 0 a a a a 22
Section 9 . 27 . Confidential Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
Schedules
Schedule A Program Recyclables . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Schedule B Composition Percentages of Program Recyclables Used for Calculation of AMV . . . . . 26
Schedule B - 1 Example Calculation of Revenue for Dual Stream Program Recyclables . . . . . . . . . . . . . . . 27
Schedule B - 2 Example Calculation of Revenue for Single Stream Program Recyclables . . . . . . . . . . . . . 28
RECYCLABLES TRANSFER, PROCESSING, & MARKETING
SERVICES AGREEMENT
This RECYCLABLES TRANSFER, PROCESSING, & MARKETING SERVICES AGREEMENT
( "Agreement" ) is entered into this day of , 2012 ( " Effective Date " ) between the
INDIAN RIVER SOLID WASTE DISPOSAL DISTRICT, a dependent special district of Indian River
County, Florida , whose address is c/o Department of Utility Services, 1801 27th Street, Vero
Beach , Florida 32960 ( hereinafter referred to as the " District" or "SWDD" ) , and RESOURCE
RECOVERY SYSTEMS, LLC, d/ b/a ReCommunity, whose address is 809 West Hill Street,
Charlotte , NC 28208 ( hereinafter referred to as the " Processor, " with the District and Processor
individually a " Party" and collectively the " Parties" ) .
WITNESSETH :
WHEREAS, the District issued a Request for Proposals, RFP #2012023 , on December 2 ,
2011 and subsequently selected the Processor to provide recyclables transfer, processing and
marketing services ( the "Services" ) ; and
WHEREAS, the Processor has reviewed the services required pursuant to this
Agreement and is qualified , willing and able to provide and perform all such services in
accordance with the terms herein , and
WHEREAS, the District desires to enter into this Agreement on such terms and
conditions as are set forth herein ;
WHEREAS, the Parties wish hereunder to provide for their respective rights and
obligations with respect to the Services;
NOW, THEREFORE, in consideration of these premises, and other good and valuable
consideration , the receipt and sufficiency of which are hereby acknowledged, the Parties
hereto, intending to be legally bound , covenant and agree to as follows :
ARTICLE I . DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below :
Agreement or Contract — This agreement between SWDD and the Processor, including
the schedules, attachments and any written amendments .
Applicable Law — means any act, statute, law, regulation , permit, license, ordinance,
rule, judgment, order, decree, directive, guideline or policy ( to the extent mandatory ) or any
similar form of decision or determination by, or any interpretation or administration of, any of
the foregoing by any governmental authority with jurisdiction over the Facilities, the
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performance of the Parties obligations hereunder and the transactions contemplated
hereunder . With respect to state law, the law of the State of Florida shall be applicable .
Average Market Value (AMV) — A market index used to determine the revenue paid by
the Processor to SWDD for Program Recyclables transferred from the County MRF to the
Processing Facility based on monthly fluctuations in the commodity market . Specifically the
market index is defined as the sum of Regional Average commodity prices ( U . S . Dollar per Ton )
posted on the first week of the month for the Southeast United States of America ( USA) in
SecondaryMaterialsPricing . com and SecondaryFiberPricing . com multiplied by the estimated
composition percentages of SWDD ' s Recyclables as defined in this Agreement .
Business Hours — means the hours of 7 : 00 a . m . to 5 : 00 p . m . every day other
than
Saturdays and Sundays, New Year' s Day, Independence Day, Labor Day, Thanksgiving Day and
Christmas Day .
Commencement Date — The date on which the Processor shall commence to accept for
transporting, processing and marketing Program Recyclables in accordance with this
Agreement . The Commencement Date shall in no event be later than the later of ( a )
September 1 , 2012 or ( b ) fifteen ( 15 ) days after the Effective Date .
County — means Indian River County, Florida .
County MRF — The County- owned facility, located at 1325 74th Avenue, SW, Vero Beach ,
FL 32968, at which the Processor receives Recyclable Materials hereunder for transportation to
Processor' s Processing Facility. Operation of the County MRF is contracted under separate
agreement, which terminates on December 31, 2017, but which may be extended for one ( 1 )
additional period of seven ( 7) years at the mutual agreement between the MRF Operator and
SWDD .
Customer Convenience Center — A site owned by SWDD and operated by an SWDD
contractor at which residents and businesses may drop off Recyclable Materials .
Dual Stream — A Recycling process in which Recyclable Containers ( one stream ) are
collected separately from Recyclable Fibers ( the other stream ), each as defined under Program
Recyclables and as set forth under the respective , applicable headings in Schedule A attached
hereto .
Effective Date — means the date on which the last of the Parties has executed this
Agreement .
Facilities — means, collectively, the County MRF and the Processing Facility .
Force Majeure — Means the following events or circumstances to the extent that they
delay or prevent SWDD or Processor from performing any of its obligations ( other than
payment obligations ) under this Agreement : strikes and work stoppages unless caused by a
negligent or willful act or omission of Processor or its agents or assigns; acts of God , tornadoes,
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hurricanes, floods, sinkholes, fires, and explosions ( except those caused by negligence of
Processor, its agents, and assigns ) , landslides, earthquakes, epidemics, quarantine, pestilence,
and extremely abnormal and excessively inclement weather; and acts of public enemy, acts of
war, terrorism , effects of nuclear radiation , blockades, insurrection , riots, civil disturbances,
national or international calamities, or any suspension of services or closure at the landfill not
caused by the Processor, its contractors, subcontractors, agents, or employees .
Franchised Hauler(s) — The solid waste and Recyclable Materials collection service
providers contracted by SWDD to provide such services for the residents in the unincorporated
area of the County . These providers may also provide recyclable materials collection service to
one or more of the Municipalities within Indian River County under the associated Interlocal
Agreement ( ILA ) with that Municipality .
Hazardous Waste — shall have the meaning as defined in Florida Statutes, section
403 . 703 , and Florida Administrative Code, Rule 62- 730 . 020, and their respective successor
provisions .
Household Hazardous Waste — Leftover household products that contain corrosive,
toxic, ignitable, or reactive ingredients , including products such as paints , cleaners, oils,
batteries and pesticides that contain potentially hazardous ingredients .
Interlocal Agreement or ILA — means each and every interlocal agreement the District
has in effect with each Municipality that provides for the Municipality to deliver or cause to be
delivered to the County MRF all Recyclables under control of the Municipality .
MRF Operator — The private company with which the County contracts to operate the
County MRF .
Municipality — means each municipality located in Indian River County, Florida ( i . e ., City
of Vero Beach , City of Sebastian , Town of Orchid , Town of Indian River Shores , and City
of
Fellsmere ) .
Processing — The manual or mechanical separation of commingled Recyclables to
conform to the specifications for each marketable Recovered Material .
Processor — The person , business, firm , corporation , or agency with whom SWDD enters
into this Agreement .
Processor's Fee — The fee to Processor ( as a deduction from the payment due the
District under Sections 5 . 1 and 5 . 3 ) for transportation, Processing, and marketing of Program
Recyclables . The Processor' s Fee for Dual Stream Program Recyclables is fifty- nine dollars and
forty- nine cents ( $ 59 . 49 ) as adjusted by Section 5 . 5 . The Processor' s Fee for Single Stream
Program Recyclables is seventy- eight dollars ( $ 78 . 00 ) as adjusted by Section 5 . 5 .
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Processing Facility — The Processor' s materials recovery facility located in Sarasota ,
Florida or any other facility at which Processor performs the Processing and marketing of
Recyclables pursuant to this Agreement .
Program Recyclables — Recyclable Materials received at the County MRF that are
transported and processed by the Processor . Program Recyclables include Recyclable
Containers and Recyclable Fiber as defined in Schedule A and other Recyclable Materials
mutually agreed upon by SWDD and the Processor during the Term .
Recovered Materials — Recyclable Materials that have been diverted or removed from
the solid waste stream for sale, use or reuse as raw materials, whether or not the materials
require subsequent processing, but does not include materials destined for any use that
constitutes disposal .
Recyclable Materials (Recyclables) — Materials that are capable of being recycled and
would otherwise be processed or disposed of as solid waste .
Recycling — Any process by which materials that would otherwise have been solid waste
are collected , separated or processed and reused or returned to use in the form of raw
materials or products .
Recyclable OCC — means recyclable old corrugated cardboard that is delivered to the
County MRF separate from other Recyclable Materials .
Rejects — Materials, other than Residue, that cannot be processed into Recovered
Materials .
Residue — That portion of the Recyclable Materials stream accepted by the Processor
that is not converted to Recovered Materials due to breakage and/or transportation or
processing inefficiencies .
Scalehouse - SWDD' s landfill scalehouse located at 1325 74th Avenue, SW , Vero Beach ,
FL 32968 ,
Single Stream — A Recycling process that allows for commingled collection of Recyclable
Fibers and Recyclable Containers in a single collection container or vehicle with no sorting
required by residents, businesses or haulers .
SWDD Director — means the Director of Utilities Services or designee who shall serve as
the SWDD' s Agreement Administrator for this agreement .
Ton — A unit of weight equal to 2 , 000 pounds , also referred to as a " short ton . "
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ARTICLE II , AGREEMENT TERM
Except as otherwise provided for herein , the obligations of the Parties shall take effect on the
Effective Date and Processor shall commence accepting Recyclable Materials for transportation ,
Processing and marketing in accordance with this Agreement on the Commencement Date .
The term of this Agreement ( the "Term " ) shall terminate five ( 5 ) years from the
Commencement Date , The District and Processor, by written mutual agreement, may extend
the Term for an additional five ( 5 ) year term . Any written agreement to extend the Term shall
be made not less than 180 days prior to the expiration of the then current Term . Nothing
herein shall create a legal right in either party to renew or extend the Term for an additional
five ( 5 ) year term .
ARTICLE III . SWDD RESPONSIBILITIES
Section 3 . 1 . Delivery of Program Recyclables
( a ) At all times during the Term , SWDD shall direct the delivery of all
Recyclable Materials collected by its Franchised Hauler ( s ) in the
unincorporated County or at its Convenience Centers to the County MRF .
SWDD does not guarantee the specific tonnage of Recyclable Materials
that will be delivered . SWDD shall use reasonable efforts to assure that
loads delivered to the County MRF do not contain contaminants .
( b ) Recyclable Materials collected by the Franchised Hauler ( s ) from the
Municipalities are currently delivered to the County MRF under Interlocal
Agreements ( ILAs ) between SWDD and the Municipality; however, SWDD
does not guarantee specific tonnages since the Municipalities have the
right to terminate the ILA with a written 90-day notice . SWDD
acknowledges that it has recently approved a 200 home Single Stream
pilot program in the City of Fellsmere through a Memorandum of
Understanding ( MOU ) . This MOU allows for the transfer of Single Stream
recyclables out- of-county up to September 30, 2015 or until SWDD
changes to a Single Stream program , whichever is earlier .
( c) Recyclable Materials shall be delivered to the County MRF in a Dual
Stream unless the District decides to convert to or also include Single
Stream Recyclables . The District shall provide the Processor at least one
hundred and eighty ( 180 ) days advance written notice of its intent to
convert to or include Single Stream Recyclables . Within five ( 5 ) business
days of such notification , the Processor shall respond in writing to the
District confirming its ability to accept and process Single Stream
Recyclables within that timeframe . If the Processor is not able or willing
to accept and process Single Stream Recyclables, the District may seek
Single Stream Processing services from another vendor . As of the
effective date of any agreement with another vendor for Single Stream
Processing services, this Agreement shall terminate . The Processor shall
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not be in violation of this Agreement if it is unable or unwilling to accept
and process Single Stream Recyclables ,
Section 3 . 2 . Scalehouse
The Scalehouse shall be used to weigh all in - coming and out-going Recyclable
Materials . The Processor' s vehicles shall be weighed going in and out at the
Scalehouse, and the driver will be provided a weigh ticket . Actual and not stored
tare weights shall be used . Out-going tonnages shall be the starting basis of
payment to SWDD . The District shall staff and maintain the Scalehouse and
associated equipment at its expense during all Business Hours in accordance
with generally accepted industry standards and as required under Applicable
Law . The Scalehouse shall be calibrated in accordance with the requirements of
the Florida Bureau of Weights and Measures . Processor shall have the right to
be present during each calibration and shall be given not fewer than five ( 5 ) days
notice thereof.
Section 3 . 3 . County MRF Operations
( a ) During the Term the County MRF shall be open Monday through Friday
from 7 a . m . to 5 p . m . , closed on Saturdays and Sundays and shall be
closed on New Year' s Day, Independence Day, Labor Day, Thanksgiving
Day, and Christmas Day .
( b ) If during the Term SWDD converts its Recyclables collection to Single
Stream , then SWDD will create a tipping and holding space at the County
MRF acceptable for holding all Single Stream Recyclables and for the
County MRF Operator to load the Single Stream Recyclables into
Processor' s vehicles . SWDD and the Processor shall share equally in the
costs of these improvements .
Section 3 . 4 . Loading of Vehicles and Monthly Reports
( a ) Processor shall cause transfer vehicles to be brought to the County MRF
for loading of Recyclables . Each driver shall identify to the Scalehouse
operator that the vehicle is being loaded on behalf of Processor .
( b ) The MRF Operator will load Recyclable Materials into Processor' s transfer
vehicles upon arrival at the County MRF . The District shall use its best
efforts to ensure the vehicles are loaded promptly and to maximize load
weights, within legal limits . Notwithstanding anything in this Agreement
that may be construed to the contrary, Processor shall be excused from
any responsibility under this Agreement ( including but not limited to
liquidated damages ) where the inability to perform such responsibility is
materially caused by the MRF Operator' s failure to properly or timely
load Processor' s vehicles .
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( c ) Recyclable Fibers and Recyclable Containers shall be maintained
separately and loaded as such in separate vehicles . Recyclable OCC shall
be maintained and loaded separately unless Processor chooses to
manage Recyclable OCC in another way at the County MRF .
( d ) The District shall provide Processor with monthly reports with respect to
Recyclables loaded on Processor' s trucks the previous month that show
scale ticket number; truck number; date ; and gross, net and tare weights
( in Tons ) . Such reports shall be delivered no later than the fifth ( 5th )
business day of each month with respect to the previous month .
( e ) Processor shall have the right to have Recyclable Materials from third
parties delivered to the County MRF and loaded by the MRF Operator on
Processor' s trucks . Processor shall pay SWDD $ 10 . 00 per Ton of
Recyclable Materials so loaded .
ARTICLE IV, PROCESSOR RESPONSIBILITIES
Section 4 . 1 . Processor May Monitor Activities
( a ) Processor shall have the right, at its expense and without interfering with
SWDD and operations at the County MRF, to have personnel at the
County MRF to monitor activities relating to the services included in this
Agreement .
( b ) Processor shall work with the MRF Operator in a collaborative manner
related to the Processor' s delivery of vehicles , preference for loading of
vehicles, and identification and removal of rejects . Processor shall
communicate any issues in writing directly to the SWDD Director .
( c ) Further, upon approval by SWDD through an amendment or an MOU , the
Processor may install such equipment as Processor deems necessary or
advisable to process Recyclables at the County MRF in whatever manner
Processor determines, so long as it is done at Processor' s expense, does
not interfere with other operations, and does not create additional safety
concerns at the County MRF . Processor shall remove such equipment
within thirty ( 30) days after the end of the Term and shall leave the
County MRF in substantially the same condition as before such
installations .
Section 4 . 2 . Material Rejection
( a ) Processor shall have the right to inspect Recyclables before loading at the
County MRF . Processor shall have the right to reject Recyclables that
contain more than twenty percent ( 20 % ) Rejects by volume, or which
contain any amount of Hazardous Waste . Processor shall immediately
notify the SWDD Director if any materials are rejected .
. 7 -
( b ) The District will direct the MRF Operator to keep any materials rejected
by the Processor segregated from other materials . Upon inspection ,
should the SWDD Director concur with the Processor, the District will be
responsible for disposal of such materials at its cost . Should the SWDD
Director determine that such Recyclables do not contain more than
twenty percent ( 20 % ) Rejects by volume , the materials will be loaded for
transport and Processing by the Processor .
Section 4 . 3 . Transportation
( a ) Processor shall provide a sufficient number of transfer vehicles at the
County MRF so that no more than thirty ( 30 ) tons of Recyclable Materials
are stockpiled at the end of each day . At the SWDD Director' s reasonable
request, Processor shall provide additional transfer vehicles prior to a
pending major storm or hurricane event should SWDD deem it necessary
to empty the County MRF prior to the event .
( b ) Processor shall be responsible for and shall bear all costs of transporting
all Recyclable Materials from the County MRF to the Processing Facility .
( c ) Title to all Recyclables shall pass from the District to Processor upon
loading onto Processor' s vehicles .
Section 4 . 4 . Processing and Marketing
( a ) Processor shall process and market SWDD' s Program Recyclables and
Recyclable OCC and provide a monthly revenue payment to SWDD, if
applicable, in accordance with this Agreement .
( b ) Processor, at its expense, is responsible for the proper disposal of any
Residue and Rejects resulting from the Processing by Processor of
Recyclable Materials .
Section 4. 5 . Disposition of Recyclable Materials
Unless the Processor has prior written permission from the SWDD, the Processor
shall not dispose of or landfill any Recyclables or Recovered Materials processed
pursuant to this Agreement . The Processor shall not sell Recyclables or
Recovered Materials to another agent that landfills or disposes of material other
than through Recycling . The prohibition stated in the immediately prior sentence
does not apply to disposal of Rejects and Residue .
Section 4 . 6 . Compliance with Applicable Law; Recovered Material Certification
( a ) Processor shall comply at all times with all Applicable Law and regulations
concerning the acceptance , transfer, and Processing of Recyclable
Materials, and the temporary storage and marketing of Recovered
Materials .
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( b ) Processor shall provide a copy of its current Recovered Materials Dealer
Certification Form from the State of Florida Department of Environmental
Protection to certify that it is qualified , approved and licensed to accept
and process Recyclables and market Recovered Materials . Processor shall
maintain this certification and annually provide SWDD with a copy
throughout the Term .
( c ) Processor shall provide the SWDD Director with a copy of each quarterly
Reporting Form for Recovered Materials that is submitted to the Florida
Department of Environmental Protection .
Section 4 . 7 . SWDD Access and Right to Inspect
SWDD shall have the right at any time and with reasonable prior notice during
the Processor' s hours of operation to inspect both the operating and
maintenance practices and records of the Processor at the Processing Facility .
ARTICLE V. PAYMENTS TO SWDD
Section 5 . 1 . Dual Stream Program Recyclables Revenue
Processor shall pay SWDD monthly for each Ton of Dual Stream Program
Recyclables transferred from the County MRF to the Processing Facility as
measured out- bound at the Scalehouse . The payment per Ton of Dual Stream
Program Recyclables shall be a percentage of the Average Market Value ( AMV)
of a Ton of Program Recyclables less the Processor' s Fees for transportation ,
Processing and marketing . The payment per Ton shall be calculated as follows :
( a ) Each month , SWDD shall calculate the Average Market Value ( AMV) of a
Ton of Program Recyclables, defined as the sum of the Southeast USA
regional average commodity prices ( U . S . Dollar per Ton ) first posted in
the month for which payment is being made in
SecondaryMaterialsPricing . com and SecondaryFiberPricing . com
multiplied by the composition percentages of Program Recyclables, as
defined in Schedule B . Schedule B- 1 also provides a sample calculation of
the AMV based on the defined market indexes for November 2011 .
( b ) The Processor' s Fee, fifty- nine dollars and forty- nine cents ( $ 59 . 49 ) as
adjusted by Section 5 . 5, shall be deducted from the AMV calculated for
the month for which payment is being made .
( c ) Processor shall remit to SWDD seventy-five and one -tenth percent
( 75 . 10 % ) of the remaining amount (AMV less Processor' s Fee ) times the
number of Tons of Dual Stream Program Recyclables transferred from the
County MRF during the month for which payment is being made .
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( d ) The Processor' s Fee shall be payable solely from the AMV . If the AMV is
less than the Processor' s Fee for any month , no payment shall be due for
that month from the Processor to SWDD ; nor shall SWDD owe any
additional Processor' s Fee ( in addition to the fee deducted from the
AMV ) to the Processor for that month .
Section 5 . 2 . Composition Study
( a ) The material percentages provided in Schedule B and their use for
calculating the AMV shall remain in effect for the first year of the Term .
( b ) Within the first year of the Term , Processor or SWDD may perform a
study to obtain a current measurement of the composition of Program
Recyclables ( " Initial Composition Study" ) . The cost of this Initial
Composition Study shall be the responsibility of the Party requesting such
study unless the Parties agree to share in the cost . The Initial
Composition Study methodology and selection of a qualified entity to
conduct the study are subject to written approval by the SWDD Director,
such approval not to be unreasonably withheld or delayed . SWDD staff
and/or representatives and Processor' s representatives may be present
to observe the study . The material percentages provided in Schedule B
and utilized to calculate the AMV shall be adjusted based on the results
of the Initial Composition Study effective the beginning of the second
year of the Term .
( c ) Subsequent to the Initial Composition Study, Processor or SWDD may
request additional Composition Studies, but changes to the material
percentages in Schedule B may not be made more frequently than
annually . The cost of each Composition Study shall be the responsibility
of the Party requesting such study unless the Parties agree to share in the
cost . Each Composition Study, its methodology, and selection of a
qualified entity to conduct the study are subject to written approval by
the SWDD Director, such approval not to be unreasonably withheld or
delayed . SWDD staff and/or representatives and Processor' s
representatives may be present to observe the study . A copy of each
final Composition Study report shall be provided to the SWDD Director .
The material percentages provided in Schedule B shall be adjusted based
on the Composition Study results and shall become effective the
following month and the remainder of the Term , or until further adjusted
by a future Composition Study, if any . A method for aggregating results of
multiple Composition Studies, if any, shall be mutually agreed upon by
both Parties .
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Section 5 . 3 . Single Stream Program Recyclables Revenue
( a ) If the District decides to convert to Single Stream recycling, the Processor
shall commence the acceptance of Single Stream Program Recyclables
under the conditions agreed below . If the Processor does not agree to
these conditions, the District may seek Single Stream Processing services
from another vendor pursuant to Section 3 . 1 ( c) .
( b ) SWDD and Processor shall expand , if appropriate, the Program
Recyclables identified in Schedule A and continue with the composition
percentages at the time of the transition until such time that a new
Composition Study is performed for Single Stream Program Recyclables .
The procedure for a Composition Study shall be the same as outlined in
Section 5 . 2 .
( c) Processor shall pay SWDD monthly for each Ton of Single Stream
Program Recyclables transferred from the County MRF as measured out-
bound at the Scalehouse . The payment per Ton of Single Stream
Program Recyclables shall be a percentage of the Average Market Value
( AMV) of a Ton of Program Recyclables less the Processor' s Fees for
transportation , Processing and marketing . The payment per Ton shall be
calculated as outlined below . An example of this calculation is provided
in Schedule B -2 .
( i ) The monthly ( AMV) shall be calculated as outlined in Section 5 . 1 ( a ) .
( ii ) The Processor' s Fee, seventy- eight dollars ( $ 78 . 00 ) as adjusted by
Section 5 . 5, shall be deducted from the AMV calculated for the
month for which payment is being made .
( iii ) Processor shall remit seventy-five and one -tenth percent ( 75 . 10% ) of
the remaining amount ( AMV less the Processor' s Fee ) times the
number of Tons of Single Stream Program Recyclables transferred
from the County MRF to the Processing Facility during the month for
which payment is being made .
( iv) The Processor' s Fee shall be payable solely from the AMV . If the
AMV is less than the Processor' s Fee for any month , no payment
shall be due for that month from the Processor to SWDD; nor shall
SWDD owe any additional Processor' s Fee ( in addition to the fee
deducted from the AMV) to the Processor for that month .
Section 5 . 4 . Market Index
( a ) The formulas outlined in Article V for payment by the Processor to SWDD
shall be used regardless of the location of the Processing Facility utilized
by the Processor.
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( b ) The market index and AMV calculation is used solely as an index and is
not based on actual revenue received by the Processor.
( c ) If at any time during the Term , SecondaryMaterialsPricing . com or
SecondaryFiberPricing . com no longer post or otherwise provide the
applicable market indices, then the Parties shall mutually and in good
faith select an appropriate replacement source for the required
information from among the sources Recycling industry professionals
utilize to obtain reliable secondary pricing information .
Section 5 . 5 . Adjustment to Processor' s Fee
( a ) The Processor shall be permitted annually to request a price adjustment
to the Processor' s Fee and both the Processor and SWDD acknowledge
and agree that the first price adjustment shall be effective , if granted , on
January 1 , 2014 . Such request shall not be unreasonably refused . The
Processor shall submit a written request and appropriate documentation ,
no later than July 1 of each year and any such adjustment granted by
SWDD shall become effective on January 1 of the following year .
( b ) The adjustment shall not exceed 75 percent of the change of the
Consumer Price Index ( CPI ) , specifically, the Urban Consumers Index,
published by the U . S . Department of Labor, Bureau of Labor Statistics, for
the Southern States . Rates may be adjusted as calculated herein , subject,
however, to a maximum of three percent ( 3 %) per year . Downward
adjustments resulting from a negative CPI shall be made by SWDD, when
appropriate, without a request from the Processor .
( c ) The adjustment shall be computed as follows : For each subsequent year
of the Term , the net percentage change shall be 75 percent of the
difference between the CPI as of the immediately preceding January and
the second preceding January divided by the CPI as of the second
preceding January . The following formula shall be used for the cost
adjustment :
CostAdjustment = ( X2 - X 1 x 0. 75) + I
X1
Where, X1 = CPI for second preceding January;
XZ = CPI for immediately preceding January .
ARTICLE VI , INVOICING AND PAYMENT
Section 6 . 1 . Monthly Invoice
SWDD shall send the Processor a monthly invoice and report detailing the total
Tons of Dual Stream Program Recyclables , Single Stream Program Recyclables,
and Recyclable OCC transferred from the County MRF to the Processing Facility
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during the previous month and the total revenue due to SWDD for such
Recyclables .
Section 6 . 2 . Payments
Processor shall remit payment of said revenue to SWDD within thirty ( 30 )
calendar days from the date of the invoice . Interest shall accrue on all past due
invoices and any other amounts that may be due and owing hereunder at the
rate of one - half percent ( 0 . 5 % ) per month from the date due until the date paid ,
and the Party owing such overdue amounts shall pay any and all costs incurred
by the other Party for collection of unpaid balances, including without limitation
costs of investigation and attorneys' fees .
ARTICLE VII , RECYCLING AWARENESS AND EDUCATION
In its response to the Request for Proposals referenced on page 1 of this
Agreement, the Processor represented that ( a ) it would provide education and
promotion support to SWDD to increase participation in the Recyclables
Program ; ( b ) the support may take the form of strategic planning, access to video
feeds, media support, education tools and equipment, recycling education
videos, promotion programs, social media tools, and other such activities ; and ( c)
the Processor' s estimated value of the support exceeded $ 100, 000 . SWDD relied
upon this representation in selecting the Processor from among the entities
responding to the Request for Proposals . Within thirty ( 30) days after each
yearly anniversary of this Agreement, the Processor shall provide a written
report to SWDD setting forth the support activities undertaken by the Processor
during the prior year, and the Processor' s estimate of the value of such
activities . The estimated value shall average approximately $ 20, 000 per year
and shall total approximately $ 100, 000 or more for the five ( 5 ) year term of this
Agreement . It shall not be a default hereunder if SWDD believes that the value
of such support is less than $ 20, 000 per year or $ 100, 000 in the aggregate .
ARTICLE VIII . LIQUIDATED DAMAGES
Section 8 . 1 . Basis for Liquidated Damages
( a ) Processor and SWDD acknowledge and agree that it is difficult or
impossible to accurately determine the amount of damages that would
or might be incurred by SWDD due to those failures or circumstances
described in this Article VIII and for which the Processor would otherwise
be liable . Accordingly, the Processor and SWDD have negotiated the
terms and amounts of the liquidated damages set forth herein , and the
Parties agree that the liquidated damages are reasonable under the
circumstances . The Processor and SWDD also have consulted with their
legal counsel and confirmed that these liquidated damages are
appropriate . Therefore, the following administrative assessments shall
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constitute liquidated damages, not penalties, for the Processor' s breach
of this Agreement .
( b ) SWDD shall not assess and the Processor shall not be required to pay
liquidated damages in those cases where the delay or failure in the
Processor' s performance was ( i ) excused in advance by the SWDD
Director or ( ii ) due to unforeseeable causes that were beyond the
Processor' s reasonable control and without any fault or negligence of the
Processor .
Section 8 . 2 . Procedure for Assessing Liquidated Damages
( a ) Prior to assessing liquidated damages, the SWDD Director shall provide
written notice to the Processor, indicating SWDD' s intent to assess
liquidated damages and the basis for SWDD ' s position .
( b ) If a protest is filed within five ( 5 ) business days of delivery of written
notice to Processor, the matter shall be referred to the County
Administrator for resolution . The County Administrator shall review the
issues in a timely manner and then provide a written decision to the
Processor . The County Administrator' s decision shall be the final
administrative decision , but may be appealed in any proper court .
( c ) If a protest is not timely filed by the Processor, or if the County
Administrator concludes that liquidated damages should be assessed and
such decision is not appealed or is upheld on appeal , the amount of
liquidated damages shall be added to the Processor' s next payment to
SWDD .
( d ) The procedures in this Article VIII shall be used in lieu of the procedures
in Section 9 . 6 when resolving disputes concerning liquidated damages;
however, the procedures in Section 9 . 6 will be used , upon the Processor' s
request, if the dispute involves an assessment of liquidated damages that
exceeds twenty thousand dollars ( $ 20, 000 ) in one calendar month .
Section 8 . 3 . Liquidated Damages During Term of Agreement
During the Term , the SWDD Director may assess liquidated damages as follows :
Performance Standard Violation Liquidated
Damages
Failing to provide a sufficient number of
transfer vehicles at the County MRF so that no
more than thirty ( 30 ) tons of Recyclable $ 100 per day
Materials are stockpiled at any given time .
( Section 4 . 3 . ( a ) )
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Disposing of Program Recyclables or Recovered
Materials, other than through Recycling, and $ 500 per
with the exception of Rejects and Residue , occurrence
without prior SWDD approval . ( Section 4 . 5 . )
ARTICLE IX , STANDARD TERMS AND CONDITIONS
Section 9 . 1 . Notices
All notices to be given under this Agreement shall be in writing and delivered
personally or shall be sent by recognized overnight courier, in each case with
signature required , as follows :
If to Processor : with a copy to :
Resource Recovery Systems, LLC David Sturgess, General Counsel
809 West Hill Street Re Community Holdings II , Inc .
Charlotte, NC 28208 809 West Hill Street
Attention : Sean P . Duffy Charlotte, NC 28208
if to the District : with a copy to :
Indian River Solid Waste Disposal District County Attorney at the same address
County Administrator Phone : ( 772 ) 226- 1424
180127 th Street Fax : ( 772 ) 569 - 4317
Vero Beach , FL 32960
Phone : ( 772 ) 226- 1408
Fax : ( 772 ) 978- 1822
Notices shall be deemed received when actually received .
Section 9 . 2 . Insurance
( a ) Requirements . At all times during the Term , Processor shall maintain the
following insurance coverages with an insurance company or companies
reasonably acceptable to the District :
( i ) Worker' s compensation insurance, covering liability under
applicable worker' s compensation law, employer' s liability insurance
of not less than one hundred thousand dollars ( $ 100, 000 . 00 ) per
accident; and
( ii ) Commercial general liability with a single occurrence limit of
coverage of not less than one million dollars ( $ 1, 000, 000 . 00 ) for
death or injury to any person ( s ) or property damage .
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Automobile liability with a combined single limit ( each accident) of
not less than one million dollars ( $ 1 , 000, 000 . 00 ) .
( iv ) Umbrella liability with a single occurrence limit of coverage of not
less than five million dollars ( $ 5, 000, 000 . 00 ) and an aggregate limit
of not less than five million dollars ( $ 5 , 000, 000 . 00 ) for death or
injury to any person ( s ) or for property damage as a result of any one
occurrence which may arise out of or in connection with
ReCommunity' s operations at the County MRF or otherwise in the
performance of its obligations hereunder .
( b ) Processor shall provide thirty ( 30 ) days' written notice to the District in
advance of any expiration , cancellation , non - renewal or material change
in coverage and notice within twenty- four ( 24 ) hours of any notice of
expiration , cancellation , non - renewal or material change from the
insurer .
( c ) Processor shall name the District as an additional insured with respect to
any policies it procures pursuant to this Article IX, except with respect to
Subsection ( i ) ( worker' s compensation coverage ) ;
( d ) Insurance Certificates . Processor shall provide the County certificates of
insurance to evidence that the required insurance coverage is in effect at
all times during the Term .
Section 9 . 3 . Force Majeure
( a ) A delay or failure of performance hereunder by either Party shall not
constitute an event of default or cause for any liability under this
Agreement to the extent caused by a Force Majeure event. Such delay or
failure shall be excused at any time performance is materially and directly
affected by a Force Majeure and during such period thereafter as may be
reasonably necessary for the Party so affected , using Commercially
Reasonable Efforts, to correct the adverse effects of such Force Majeure .
( b ) The Party relying on a Force Majeure event as justification for a delay or
failure of performance hereunder shall give the other Party notice by
telephone as soon as reasonably practicable , followed by written notice
within seven ( 7 ) days, of the Force Majeure event . The notice shall
identify the event, the anticipated effect on the Party' s performance, the
anticipated duration of any non - performance , and the measures being
taken to reduce or eliminate the cause of the non - performance .
( c ) The provisions of this Section 9 . 3 shall not relieve a Party from its
obligation to use reasonable efforts to overcome or remove the effects of
such Force Majeure .
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Section 9 .4 . Default and Termination
( a ) Events of Default . Either Party may immediately terminate this
Agreement for cause , without prejudice to any other rights or remedies
the terminating Party may have under the law, except as provided herein ,
when there is an event of default by the other Party . An event of default
shall occur if the other Party shall ( 1 ) fail to perform any material
provision of this Agreement within fifteen ( 15 ) days of receipt of written
notice to cure , ( 2 ) become insolvent or subject to a petition of
involuntary bankruptcy and the appointment of a trustee or receiver, in
any such case which is not dismissed within 120 days, or ( 3 ) make an
assignment for the benefit of creditors, other than as permitted in
Section 9 . 8 .
( b ) Remedies . In the event of a breach by a Party of any of its obligations
hereunder after any applicable notice and cure period , the other Party
shall have the rights specified herein , and any remedy to which it is
entitled at law or in equity for such breach , subject to Subsection 9 . 4 . ( c ) ,
below .
( c ) Exclusivity of Remedies . Neither Party shall be liable for or obligated to
pay punitive, consequential , special , incidental or indirect damages in
connection with the performance of this Agreement .
( d ) Survival of Obligations . Notwithstanding the expiration or the
termination of this Agreement pursuant to its terms, any duty or
obligation of a Party which has not been fully observed , performed
and /or discharged and any right, unconditional or conditional , which has
been created for the benefit of a Party and which has not been fully
enjoyed , enforced and /or satisfied ( including but not limited to the
duties, obligations and rights, if any, with respect to secrecy, indemnity,
warranty, and guaranty) shall survive such expiration or termination until
such duty or obligation has been fully observed , performed or discharged
and such right has been fully enjoyed , enforced and satisfied .
Section 9 . 5 . Indemnification
( a ) By Processor . To the extent permitted by law, Processor shall defend ,
protect, hold harmless and indemnify District, its Commissioners,
directors, officers, employees, and agents and contractors of any tier, or
any of them ( the " District Indemnified Persons " ) from and against any
cost, expense, loss, claim or liability whatsoever, including the cost of
attorneys' fees and appeals, for injury to any person or loss or damage to
any property arising out of: ( a ) the negligence or wrongful misconduct of
Processor, its directors or partners ( as applicable ) , officers, employees,
other agents or contractors of any tier; ( b ) the failure of or by Processor,
. 17 -
its directors or partners ( as applicable ) , officers, employees , other agents
or contractors of any tier to comply with applicable law or regulations of
federal , state or local governments ; ( c ) the performance or failure to
perform of the Processor under this Agreement ; and ( d ) any breach by
Processor of any representation or warranty made in this Agreement .
Processor is not required to hold harmless or indemnify any District
Indemnified Person for any cost, expense, loss, claim or liability to the
extent caused by any District Indemnified Person ' s negligence or reckless
misconduct .
( b ) To the extent permitted by law, District shall defend , protect, hold
harmless and indemnify Processor, its directors, officers , employees, and
agents , from and against any cost, expense, loss, claim or liability
whatsoever, including the cost of attorneys' fees and appeals for injury to
any person or loss or damage to any property arising out of the
negligence of District, or its officers, employees and agents ; provided ,
however, that nothing herein shall increase District' s liability beyond that
set forth in Section 768 . 28 , Florida Statutes .
Section 9 . 6 . Dispute Resolution
The Parties shall attempt to resolve any and all disputes to the mutual
satisfaction of both Parties by good faith negotiations . Whenever a Party desires
to initiate the dispute resolution process set forth in this section , it shall do so by
delivering a dispute notice to the other Party . Within ten ( 10 ) days after the
delivery of a dispute notice , the Parties shall meet for the purpose of negotiating
a resolution of the dispute . The Parties will use their best efforts to informally
resolve the dispute within forty-five ( 45 ) days after the date of the written
notice . If the dispute has not been resolved to either Party' s satisfaction during
this time period , the requirement for informal negotiations shall be satisfied . The
Parties may, by mutual agreement, extend the period for informal negotiations .
Nothing in this section shall prevent either Party from seeking judicial remedies
in a court of law at any time .
Section 9 . 7 . Representations and Warranties of Parties
The Parties represent and warrant to each other that upon execution of this
Agreement : ( a ) each Party is duly organized and existing and in good standing
under the laws of the state of their creation ; ( b ) the Parties have the power and
authority to enter into this Agreement and to carry out their respective
obligations hereunder; ( c ) the Parties have taken all legal actions necessary to
authorize them to enter into and perform their respective obligations
hereunder ; ( d ) entering into and performing this Agreement does not violate any
statute , rule , regulation , order, writ, injunction , or decree of any court,
administrative agency, or governmental body or violate any agreement by which
a Party is bound ; ( e ) this Agreement has been duly entered into by the Party and
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constitutes a legal , valid , and binding obligation of the Party ; ( f) there is no
litigation or proceeding pending or threatened against a Party which could
materially or adversely affect the performance of this Agreement; and (g ) the
Parties have obtained all permits and approvals as may be required to authorize
their respective performance of the obligations of this Agreement . Except as
expressly provided herein , the Parties make no representations or warranties
and waive no rights or remedies .
Section 9 . 8 . Assignment
This Agreement shall not be assigned by either Party without the prior express
written consent of the other Party, which shall not be unreasonably withheld .
Notwithstanding the above , Processor may assign the Agreement to an affiliate
Processor or to a trustee or lender in connection with the financing or
refinancing of the Facility, without obtaining the District' s prior approval . A
permitted assignment shall neither be effective nor relieve a Party of its
obligations under this Agreement unless this Agreement shall have been
assumed by the assignee .
Section 9 . 9 . Relationship of the Parties ; Beneficiaries
( a ) This Agreement reflects an arms - length transaction . Nothing herein shall
create a fiduciary, partnership, joint venture or employment or other
agency relationship between the Parties .
( b ) This Agreement is not entered into for the benefit of, nor are any rights
granted to , any third party .
( c ) It is recognized that the District will discharge some of its responsibilities
through third party processors or franchisees . The District shall be solely
responsible for executing any necessary contracts with processors and
franchisees . Any such contract shall be entered into by the District as an
independent contractor and not as a representative of Processor .
( d ) It is recognized that the Processor may discharge some of its
responsibilities through subcontractors . The Processor shall be solely
responsible for executing any necessary contracts with subcontractors .
Any such contract shall be entered into by the Processor as an
independent contractor and not as a representative of the District .
Section 9 . 10 . Further Assurances
Each Party agrees to execute and deliver any instruments and to perform any
action that may be necessary or reasonably requested in order to give full effect
to this Agreement . Each Party shall use all reasonable efforts to provide such
information , execute such further instruments and documents, and take such
action as may be reasonably requested by the other Party, not inconsistent with
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the provisions of this Agreement and not involving the assumption of obligations
other than those provided for in this Agreement, to carry out the intent of this
Agreement .
Section 9 . 11 . Waivers
No provision of this Agreement shall be deemed waived without the express
written consent of the Party granting the waiver . The waiver by either Party of a
default or a breach of any provision of this Agreement by the other Party shall
not operate or be construed to operate as a waiver of any subsequent default or
breach . The making or the acceptance of a payment by either Party with
knowledge of the existence of a default or breach shall not operate or be
construed to operate as a waiver of any subsequent default or breach .
Section 9 . 12 . Entire Agreements Modifications ; Exhibits
The provisions of this Agreement ( except captions ) , including the exhibits
annexed hereto, shall ( a ) constitute the entire agreement between the Parties,
superseding all prior or contemporaneous negotiations, understandings or
agreements and ( b ) not be modified in any respect except by express written
agreement executed by the Parties . The exhibits attached hereto are
incorporated by reference . In the event of any conflict between the text of this
Agreement and such exhibits, the text of this Agreement shall govern .
Section 9 . 13 . Headings
Captions and headings in this Agreement are for ease of reference only and do
not constitute a part of this Agreement . Captions and headings shall not be
deemed to affect the meaning or construction of any of the terms or provisions
hereof.
Section 9 . 14 . Counterparts
This Agreement may be executed in more than one counterpart, each of which
shall be deemed to be an original .
Section 9 . 15 . Venue
Any and all suits for breach of this Agreement shall be instituted and maintained
in a state or federal court of competent jurisdiction having jurisdiction over
Indian River County, Florida .
Section 9 . 16 . Governing Law and Construction
This Agreement and any questions concerning its validity, construction and
performance shall be governed by the laws of the State of Florida , without giving
effect to any conflicts - of- law rules requiring the application of the substantive
laws of other jurisdictions . The language of this Agreement shall be construed
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according to its fair meaning, not strictly for or against the Processor or District,
and not against either Party as its drafter, because both Parties agree they had
an equal hand in drafting this Agreement . The singular shall include the plural ;
use of the feminine , masculine , or neuter genders shall be deemed to include
the genders not used .
Section 9 . 17 . Waiver of Jury Trial
Each Party hereby knowingly, willingly, and irrevocably waives its right to a trial
by jury concerning claims arising under this Agreement .
Section 9 . 18 . Severability
In the event that any provision of this Agreement shall , for any reason , be
determined to be invalid , illegal , or unenforceable in any respect, the Parties
shall negotiate in good faith and agree to such amendments, modifications or
supplements of, or to, this Agreement or such other appropriate changes as
shall , to the maximum extent practicable in light of such determination ,
implement and give effect to the intentions of the Parties as reflected herein ,
and the other provisions of this Agreement shall , as so amended , modified ,
supplemented , or otherwise effected by such action remain in full force and
effect .
Section 9 . 19 . Binding Agreement
This Agreement, which has been duly authorized , executed and delivered by the
respective Parties, constitutes a legal , valid and binding obligation enforceable in
accordance with its terms , except as enforcement may be limited by bankruptcy,
insolvency, reorganization , moratorium or similar laws affecting the
enforcement of creditors ' rights generally, or by general equitable principles
concerning remedies .
Section 9 . 20 . Reasonableness Standard
All determinations, consents, reviews and approvals to be granted and
conducted by the Parties under this Agreement and any other acts calling for the
exercise of discretion shall be performed in good faith and , unless otherwise so
specified , under a standard of reasonableness that is consistent with normal
industry practices for the type of work involved . Where time periods are not
specified , a reasonable period of time shall be allowed .
Section 9 . 21 . Attorney Fees
In any civil judicial action brought to enforce the provisions of this Agreement,
the prevailing Party may recover from the non - prevailing Party all reasonable
court costs, including attorney ' s fees and court preparation costs, and including
any appeals thereof.
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Section 9 . 22 . Time of Essence
The Parties each understand and acknowledge that time is of the essence of this
Agreement .
Section 9 . 23 . Cooperation and Release of Information
District shall cooperate with Processor' s requests for public information and
District shall release public records concerning the District, its Processors, and its
Franchisees, when such documents are requested by Processor in compliance
with Chapter 119 , Florida Statutes ,
Section 9 . 24 , Sovereign Immunity
Nothing in this Agreement is or shall be construed as a waiver of the District' s
sovereign immunity or the limitations on liability set forth in Section 768 . 28,
Florida Statutes ,
Section 9 . 25 . Records Retention
All records required to be prepared or maintained by the Processor or District
shall be retained by the Processor or District, respectively, for at least five ( 5 )
years after the date when the records are prepared .
Section 9 . 26 . Counterparts
This Agreement may be executed in one or more counterparts, each of which
will be deemed an original , but which together will constitute one and the same
instrument .
Section 9 . 27 . Confidential Information
( a ) SWDD is a dependent special district of Indian River County, Florida and ,
as such , is subject to the Florida Public Records Act, the Florida Sunshine
Law, and other state or federal laws relating to public records
( collectively "Open Records Law" ) . If Processor maintains that any record
delivered to SWDD by Processor is confidential or exempt under the
Open Records Law, Processor shall stamp or otherwise mark the front
page of such record as "confidential " at the time of production . If any
third party thereafter requests a copy of any such record , SWDD shall
provide notice of such request to Processor and Processor shall have five
( 5 ) business days after receipt of such notice to provide to SWDD a
written summary of its position that such record is confidential or exempt
under the Open Records Law, which summary shall identify the specific
statutory provisions which are relied upon to establish such
confidentiality or exemption ; failure to timely deliver such summary shall
be deemed to be a waiver or abandonment of Processor' s position . If the
County Attorney agrees with the Processor' s position as set forth in the
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written summary, SWDD shall maintain the confidentiality of the record ,
unless and until a final court order is entered requiring production of the
record . If the County Attorney disagrees with Processor' s position as set
forth in the written summary, the County Attorney shall provide written
notice of such disagreement to Processor, and SWDD shall thereafter
produce the record pursuant to the request, unless ( i ) within two ( 2 )
business days of receipt of the County Attorney' s notice of disagreement,
Processor delivers written notice to the County Attorney of Processor' s
intent to file a civil action to determine the validity of Processor' s position
that the record is confidential or exempt, and ( ii ) within seven ( 7 )
business days of receipt of the County Attorney' s notice of disagreement,
Processor files such civil action in the Circuit Court in and for Indian River
County, Florida . SWDD shall comply with any final court order
determining the status of the record as confidential or exempt .
( b ) If ( i ) the County Attorney has provided written notice disagreeing with
Processor' s position that the record is confidential or exempt, ( ii )
Processor, or the third party who requested the record , has filed a civil
action to determine the validity of Processor' s position that the record is
confidential or exempt, ( iii ) a final court order has been entered
determining that the record is not confidential or exempt, and ( iv ) a final
court order has been entered requiring SWDD to pay the attorney' s fees ,
costs or expenses of the third party who requested the record , then
Processor shall , upon written demand by SWDD, pay such attorney' s fees,
costs or expenses to the third party, or, if SWDD has already paid such
fees, costs or expenses to the third party, reimburse SWDD for such
amounts .
( c ) If SWDD receives a subpoena or similar court order ( collectively
"subpoena " ) requiring production of a record which Processor has
stamped or marked as "confidential " ( other than a court order described
in subsections ( a ) and ( b ) above ) , SWDD shall immediately provide a copy
of such subpoena to Processor . Processor, if it elects to do so, shall
thereafter be responsible for obtaining a court order staying, quashing or
otherwise determining that SWDD is not required to comply with the
subpoena . In the absence of such order, SWDD shall comply with the
subpoena .
( d ) For the purposes of this section , the term "SWDD " shall include Indian
River County, Florida .
[ balance of page intentionally left blank]
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[ signature page to Recycling Services Agreement]
IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their
respective authorized representatives .
'+Npnn H .Nnnhh
�#.oGOM6468IM ► SS/0 .•
ATTEST : Jeffrey R . Smith , INDIAN RIVER COUNTY SOLID �.•.`y .q
Clerk of Court ndnptroller WASTE DISPOSAL DISTRICT of?'
g
Deputy Clerk Gary Wheeler , Chairt�na�i ;��
66# 60
Approved : August 21 2A
District A
pp q .. NER C� .• ''
Date a
APPROVED : APPROVED AS TO LEGAL
FORM AND SUFFICIENCY :
By : By :
eph A . Baird Ian .S Polackwich , Sr .
County Administrator County Attorney
COMPANY :
WITNESSES : RESOURCE RECOVERY SYSTEMS,, LLC
i
By : ' r
Name : Sean P . Duffy
Title : President and Chief Operating Officer
Dated
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Schedule A
Program Recyclables
Recyclable Containers
• Aluminum food and beverage containers
• Aluminum foil , pie plates, and trays
• Glass food and beverage containers
• Ferrous cans, including aerosol cans not containing Household Hazardous Waste
• Aseptic cartons, including juice boxes, gable top milk and juice containers, soy milk
and soup cartons .
• All plastic containers except plastic film
• Bulky rigid plastics
• Scrap metal
Recyclable Fiber
• All paper not contaminated by food , including newspaper, magazines, phones books,
junk mail , office paper, cardboard , paper bags, office paper, paperboard , chipboard ,
file folders, envelopes , paperback books, mixed paper, etc .
• Shredded paper placed in clear plastic bag
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Schedule B
Composition Percentages of Program Recyclables Used for Calculation of AMV
(subject to revision in accordance with Section 5 . 2 )
Recyclable Type Percentage
Newspaper 31 . 8 %
Mixed Paper 10 . 9 %
Cardboard 14 . 1 %
Steel Cans 2 . 7 %
HDPE Natural 2 . 5 %
HDPE Color 2 . 5 %
PET 6 . 2 %
Aluminum 2 . 2 %
Mixed Glass 24 . 0 %
Waste 3 . 1 %
Total 100 . 0%
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Schedule 134
Example Calculation of Revenue for Dual Stream Program Recyclables
(subject to revision in accordance with Article V )
Provided below is a sample calculation of revenue for Dual Stream Program Recyclables utilizing
the market index for November 2011 .
Average
Commodity Price Material
Recyclable Type Market Index ($/Ton ) Percentage AMV
Newspaper PS 8 baled, FOB seller' s dock $ 117 . 50 31 . 8 % $ 37 . 37
Mixed Paper PS 1 baled, FOB seller' s dock $ 115 . 00 10 . 9 % $ 12 . 54
Cardboard PS 11 baled, FOB seller' s dock $ 145 . 00 14 . 1 % $ 20 . 45
Steel Cans $/ton, sorted , baled & delivered $ 117 . 50 2 . 7 % $ 3 . 17
HDPE Natural Cents/Ib . , baled and picked up $ 670 . 00 2 . 5 % $ 16 . 75
HDPE Color Cents/Ib . , baled and picked up $ 510 . 00 2 . 5 % $ 12 . 75
PET Cents/Ib ., baled and picked up $ 610 . 00 6 . 2 % $ 37 . 82
Aluminum Cents/Ib . , sorted , baled & delivered $ 1, 620 . 00 2 . 2 % $ 35 . 64
Mixed Glass 3 - Mix, $/ton delivered $ 0 . 00 24 . 0% $ 0 . 00
Waste N/A tizq=00 3 . 1 % LLO . 62
Tota 1 100 . 0% $ 175 . 87
Based on an AMV of $ 175 . 87, the revenue due to SWDD for each Ton of Dual Stream Program
Recyclables transferred from the County MRF to the Processing Facility during that month
would be $ 87 . 40 .
AMV equals $ 175 . 87
Less Processor' s Fee of $ 59 . 49
Equals $ 116 . 38
Times percentage revenue share of 75 . 1 %
Equals $ 87 . 40
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Schedule 13-2
Example Calculation of Revenue for Single Stream Program Recyclables
(subject to revision in accordance with Article V)
Based on an AMV of $ 175 . 87, the revenue due to SWDD for each Ton of Single Stream Program
Recyclables transferred from the MRF to the Processing Facility during that month would be
$ 79 . 89 .
AMV equals $ 175 . 87
Less Processor' s Fee of $ 78 . 00
Equals $ 97 . 87
Times percentage revenue share of 75 . 1 %
Equals $ 73 . 50
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