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Home My WebLink About2015-1427"/`//S /5 09.2 2 o/r- /i/ FIRST AMENDMENT TO AND ASSIGNMENT OF RECYCLABLES TRANSFER, PROCESSING & MARKETING SERVICES AGREEMENT AND ESTOPPEL THIS FIRST AMENDMENT TO AND ASSIGNMENT OF ("Amendment") to Agreement for Recyclables Transfer, Processing & Marketing Services Agreement (the "Agreement") AND ESTOPPEL, is trade and entered into as of this _ day of July, 2015, by and 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, FL (hereinafter "SWDD"), Resource Recovery Systems, LLC, d/b/a ReCommunity, 809 West Hill Street, Charlotte, NC, 28208 (hereinafter "ReCommunity") and Tropical Exchange Corp., a Florida Corporation, d/b/a Tropical Recycling, 2625 Electronics Way, West Palm Beach, FL, 33407 (hereinafter "Tropical" or the "Processor"). WHEREAS, on August 21, 2012, SWDD and ReCommunity entered into the Agreement; and WHEREAS, pursuant to Section 9.8 of the Agreement, ReCommunity may assign the Agreement with the prior express written consent of SWDD; and WHEREAS, under Section 5.3 of the Agreement, SWDD could convert from Dual Stream recycling to Single Stream recycling with a Processor's Fee of $78.00/ton; and WHEREAS, ReCommunity has provided notice to SWDD that it is unable or unwilling to convert to Single Stream recycling; and WHEREAS, Tropical has offered SWDD to provide Single Stream recycling services under the Agreement beginning October 1, 2015; and WHEREAS, in order to provide SWDD with a smooth transition from Dual Stream recycling to Single Stream recycling, SWDD, ReCommunity and Tropical agree that ReCommunity be authorized to assign the Agreement and all of the rights and responsibilities contra; Underlining denotes addition to existing text. Page 1 of 5 under the Agreement to Tropical with Tropical being paid a Processor's Fee of $88.00/ton and a revenue share of 75.1% for Single Stream recycling under the extended initial term; and NOW, THEREFORE, in consideration of the mutual undertakings herein, and other good and valuable consideration, the parties agree as follows: Section 1. Recitals. The above recitals are true and correct and are incorporated herein. Section 2. Assignment. Effective immediately, but commencing on October 1, 2015, pursuant to Section 9.8 of the Agreement, SWDD and ReCommunity mutually agree to expressly consent to the assignment of this Agreement to Tropical. Section 3. Single Stream Recycling. Notwithstanding any other provision in the Agreement, Tropical shall be able to accept and process SWDD Single Stream recycling beginning October 1, 2015. Section 4. Agreement Term. Article II is hereby amended as follows: 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 extended initial term of this Agreement (the "Term") shall terminate five (5) eight (8) years from the Commencement Date. The District and Processor, by written mutual agreement, may extend the Term for an additional five (5) two (2) 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) two (2) year term. Section 5. County MRF Operations. Section 3.3 of the Agreement is hereby amended in part to delete the following sentence, "SWDD and the Processor shall share equally in the costs of these improvements." Section 6. Program Recyclables Revenue - Generally. Section 5.1(d) and Section 5.3(c)(iv) of the Agreement is hereby amended as follows: cnow,v, Underlining denotes addition to existing text. Page 2 of 5 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. However, Processor will be entitled to apply any negative balance to offset future payments with the understanding that any negative balance will be reset at month thirty (30). SWDD shall not be responsible for any negative balance upon termination of this Agreement. Section 7. Single Stream Program Recyclables Revenues. Section 5.3(c)(ii) of the Agreement is hereby amended as follows: The Processor's Fee, - _ . • .; ! eighty-eight dollars ($88.00) as adjusted by Section 5.5, shall be deducted from the AMV calculated for the month for which payment is being made. Section 8. Recycling Awareness and Education. Article VII is deleted in its entirety. Section 9. Notices. Section 9.1 of the Agreement shall be amended as follows: If to Processor: Tropical Exchange Corp. 2625 Electronics Way West Palm Beach, FL 33407 Attention: Brian Katz with a copy to: McDonald Hopkins LLC 505 S. Flagler Drive, Suite 300 West Palm Beach, FL 33401 Attention: John T. Metzger, Esq. Section 10. Representations. As ofJuly 1, 2015, SWDD represents, certifies, covenants, warrants, and affirms that: (i) the Agreement is in full force and effect, that all amounts due thereunder have been paid and are current; (ii) to its knowledge, neither party to the Agreement is in default thereunder, and no event exists which with the passage of time or giving of notice, or both, would constitute a default under the Agreement, and no notice of default under the Agreement has been given which has not been cured; (iii) the Agreement has not been terminated and that it is the only agreement of this type between the SWDD and ReCommunity; (iv) to its knowledge, there are no outstanding defenses, counterclaims or offsets against ReCommunity under the Agreement; (v) neither party to the Agreement has transferred or assigned any rights or obligations under the Agreement nor entered into any license, use occupancy or concession agreements with respect thereto; (vi) after October 1, 2015, ReCornmunity shall have no further responsibilities under the Agreement and shall have no liabilities for acts or omissions occurring Underlining denotes addition to existing text, Page 3 of 5 after said date; (vii) SWDD has not, and will not during any term of this Agreement, enter into any agreement for the transfer or disposal of Recycled Materials or take any action, or fail to take any action, which would divert any Recycled Materials which would otherwise be delivered to Processor under the Agreement; (viii) SWDD will assure the continued operation of the County MRF during any term of the Agreement (except in the event of force majeure event or circumstance provided that a termination of any agreement for the operation of the County MRF shall not constitute a force majeure event); and (ix) Upon approval of this Amendment, SWDD will be authorized, and shall have taken all requisite action, to execute and deliver this Amendment. Section 11. Indemnification. Tropical agrees that it will indemnify, defend and hold ReCommunity harmless from any claims, damages, losses or expenses arising from acts or omissions related to the Agreement occurring after October 1, 2015. ReCommunity agrees that it will indemnify, defend and hold Tropical harmless from any claims, damages, losses or expenses arising from acts or omissions related to the Agreement occurring before October 1, 2015. Section 12. Counterparts. The Amendment may be executed in multiple counterparts, each of which shall constitute an original, but all of which taken together shall constitute one and the same agreement. Counterparts may be delivered via facsimile, electronic mail (including pdt) or other transmission method and any counterpart so delivered shall be deemed to have been duly and validly delivered and be valid and effective for all purposes. All other provisions of the Agreement shall remain in full force and effect. (Remainder of this page is intentlally left blank) come Underlining denotes addition to existing text. Page 4 of 5 ATTEST: Jeffrey R. Smith, Clerk of By: Court . nd Comptrol Deputy lerk APPROVED: By: osep1 A. Baird County Administrator WITNESSES: i5 t. Piacte,( c/ CODING. Underlining denotes addition to existing text. INDIAN RIVER COUNTY SOLID WASTE DISPOSAL DISTRICT B J ' Wes ey S. Davis, Chairman BCC approved: 3-U-1 It , ,2.()15 Da e APPROVED AS TO LEGAL FORM AND SUFFICIENCY By: an Reingold County Attorney RESOURCE RECOVERY SYSTEMS, LLC By: Name: /�9�� r/ Title: 441 Dated: •7"- --2 /'— J TROPIC • . XCHANGE CORP. II 1116 By: Name: Title: Dated: Page 5 of 5