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SECONDARY FIBER PURCHASE AGREEMENT (2)SECONDARY FIBER PURCHASE AGREEMENT THIS AGREEMENT is made as of this 5th day of June, 2010, between THE NEWARK GROUP, INC., a New Jersey corporation d/b/a NEWARK RECYCLED FIBERS, SOTHEASTERN REGION having offices at 1750 9T" Street Brookley Field Complex, Mobile Alabama 36615 ("Buyer"), and THE CITY OF CLEARWATER DEPARTMENT OF SOLID WASTE/GENERAL SERVICES, a Florida Municipality, having its principal place of business at 1701 N. Hercules Avenue Clearwater, FL 33765-1112 ("Seller') The parties agree as follows: 1. Purchase and Sale. Buyer agrees to buy, and Seller agrees to sell, on the terms and conditions set forth below, all secondary fiber produced by Seller at the following location(s): 1701 N. Hercules Avenue Clearwater. FL 33765-1112 r- Check this box if additional locations are attached 2. Price. The purchase price ("Price") will be determined by Buyer based upon the prevailing market conditions for purchasing the relevant grade of secondary fiber. Buyer shall endeavor to notify Seller of the Price by the 151h day of each calendar month. That Price shall be effective for purchases made, or to be made, during that full calendar month, unless Buyer notifies Seller of a Price change due to changes in market conditions. If the Price for the relevant grade of secondary fiber should be a negative Price, Seller shall pay that Price to Buyer as consideration for Buyer's services in removing the secondary fiber from Seller's premises. 3. Quantity and Quality. Seller agrees to sell to Buyer at least the following amounts of the following grades of secondary fiber, in accordance with the standards in the then current Scrap Specification Circular Guidelines for Paper Stock--Domestic Transactions, published by the Institute of Scrap Recycling Industries, Inc., as such publication may be amended or superseded (the "PS Circular'): Grade Minimum Tons Per Month PS Circular # or Other Standard Baled Only (x) May be non- baled x MIX 280 # 1 Baled OCC 245 # 11 Baled 4. Term. The initial term of this Agreement will begin on June 5'h, 2010 and continue until May 315', 2013. The term of this Agreement will continue to renew automatically thereafter for successive terms of (1 )year(s) each unless either party gives written notice of its intent to terminate at least 90 days prior to the last day of the term then in effect. 5. Payment Terms; Statements.- A. Buyer shall provide to Seller a monthly purchase statement reflecting the amount Buyer owes to Seller. That statement will reflect the scale weight determined by the receiving mill for secondary fiber accepted by that mill. Any adjustments made by a receiving mill due to the quality of the secondary fiber shall be charged to Seller, Upon Seller's request, Buyer shall make available to Seller copies of the mill's statement of the weight of each shipment that is covered by the current monthly statement. Buyer's monthly purchase statement shall be deemed to be accurate and approved by, and binding on, Seller unless Seller delivers to Buyer specific written objections within 20 days of the date of the statement. B. Buyer will a Seller: Check applicable box r within _ days of Buyer's monthly purchase statement r within ___. days of receipt of Seller's invoice 1v by the 25th day of each calendar month for purchases made in the prior calendar month C. Should Seller have any indebtedness or other obligations that are due and owing to Buyer, Buyer may offset those obligations against the payments that are due Seller under this Asreement. If, however, Seller's obligations to Buyer should exceed any such offset, Seller shall pay the difference to Buyer by the 25' day of the calendar month for sales made in the prior calendar month. 6. Miscellaneous. A. Neither Buyer nor Seller shall be liable for disruption, failure, or delay in the performance of this Agreement arising from an act of God, storms, floods, fires, explosions, or other catastrophes, act of war (declared or undeclared), riot, revolution, act of public enemy, terrorism, civil insurrection, strikes, lockouts, labor unrest, or sabotage disputes (of or involving the affected party's employees only), mill shutdowns or slowdowns, inability of Buyer due to market conditions to sell the secondary fiber at an economically viable price, government action (foreign or domestic), including, but not limited to, laws, regulations, rules, ordinances, orders, embargoes that unavoidably and directly prevent performance under this Agreement, act or failure to act of the other party to this Agreement, epidemic or quarantine, or any other cause beyond the reasonable control of the affected party. B. Each party waives any claim against the other (and its officers, employees and agents) relating in any way to the terms or performance of this Agreement for any special, indirect or consequential damages and, to the fullest extent permitted by law, for any punitive damages. The unsuccessful party in any litigation arising under this Agreement shall pay the prevailing party's reasonable attorneys' fees and costs. Nothing contained herein shall be construed as a waiver of any immunity from or limitation of liability the Seller may be entitled to under the doctrine of sovereign immunity or section 768.28, Florida Statutes. C. Buyer and Seller acknowledge that the quantity, pricing, and specifications of secondary fiber sold and purchased hereunder, along with other proprietary information that may be disclosed by one party to the other hereunder in connection with this Agreement is competitively sensitive and not generally known to the public ("Confidential Information"). Each party undertakes to: (i) maintain the other party's Confidential Information in strict confidence; (ii) use at least the same degree of care in maintaining the secrecy of the other party's Confidential Information as it uses in maintaining the secrecy of its own proprietary, secret or confidential information, but in no event less than a reasonable degree of care; and (iii) use the other party's Confidential Information only to fulfill its obligations under this Agreement. Such obligation shall survive expiration or termination of this Agreement for a period of one (1) year. D. This Agreement constitutes the entire agreement between Buyer and Seller with respect to the transactions contemplated by this Agreement and supersedes all prior agreements and understandings with respect to the subject matter of this Agreement. Neither Buyer nor Seller has made any agreements, representations or warranties with respect to the subject matter of this Agreement, except as specified in this Agreement, This Agreement may not be amended nor may compliance with its terms be waived, except pursuant to a writing signed by both parties. F. This Agreement shall be binding upon and inure to the henefit of each party's successors but shall not he assignahle by either party except in connection with a merger of a party or the sale of substantially all of the assets of a party to which this Agreement relates. F. All notices or other communications required or permitted under this Agreement shall be in writing and may be given by depositing the same in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, by overnight courier, or by delivering the same in person to such party at its address listed above. G. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Florida. Venue for any dispute pertaining to this Agreement shall lie exclusively in Pinellas County, Florida. H. Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating a the Relationship of principal and agent, or a partnership or joint venture between the parties hereto, it being understood and agreed that neither the method of computation of purchase price, nor any other provision contained herein, nor any acts of the parties Herein shall be deemed to create any relationship ho r-olatieeship between the parties other than the relationship of Buyer and Seller. This Agreement may be executed in counterparts. r Check box if a Rider is attached. If a Rider is attached, any reference to this Agreement shall be deemed to include the Rider. IN WITNESS WHEREOF, Buyer and Seller each has caused this Agreement to be executed by its duly authorized representative as of the date first written above. SELLER: THE CITY OF CLEARWATER/ DEPARTMENT OF SOLID WASTE/ GENERAL SERVICES Narpd-': EARI, GLOSTER Title: SOLID WASTE DIRECTOR Date: BUYER: THE NEWARK GROUP, INC. RECYCLED FIBERS DIVISION SOUTHEASTERN REGION 9 r ?By: Name: WILLIAM S. SEALE Title: GENERAL MANAGER Date: - Z -./0 PRICE FORMULA RIDER Dated: 6-5-10 SELLER: The City of Clearwater Department of Solid Waste/ General Services BUYER: THE NEWARK GROUP, INC., a New Jersey corporation, d/b/a, RECYCLED FIBERS DIVISION, SOUTHEASTERN REGION. Seller and Buyer hereby agree that the following provision is hereby made part of the attached Secondary Fiber Purchase Agreement ("Purchase Agreement") of this date between Buyer and Seller: 1. Price. The "Price" as defined in the first sentence of paragraph LA of the Purchase Agreement shall, for secondary fiber purchased in any calendar month, be the Transacted Paper Stock Price published in The Yellow Sheet of the Official Board Markets ("Published Price Schedules") as of the first issue of that month for the relevant grade of secondary fiber as determined by Buyer and subject to the following adjustment: Determination of Published Price High Side / Southeast Region + $7.50 OCC and Mix Paper IN WITNESS WHEREOF, the undersigned have executed this Rider as of the date first written above. SELLER: THE CITY OF CLEARWATER DEPARTMENT OF SOLID WASTE/ GENERAL SERVICES By. Na e: E GLOSTER Title: SOLID WASTE DIRECTOR Date: G / G BUYER: THE NEWARK GROUP, INC. RECYCLED FIBERS DIVISION SOUTHEAST REGION By. _ Name: WILLIAM S.SEALE Title: GENERAL MANAGER Date: ?' _ Z / Cl TO BE USED WITH SECO\DARI' FIBER PURCHASE AGREEMENT MINIMUM PRICE RIDER Dated: 06-5-10 SELLER: THE CITY OF CLEARWATER DEPARTMENT OF SOLID WASTE/ GENERAL SERVICES BUYER: THE NEWARK GROUP, INC., a New Jersey corporation, d/b/a NEWARK RECYCLED FIBERS, SOUTHEASTERN, REGION. Buyer and Seller hereby agree that the following provisions are part of the attached Secondary Fiber Purchase Agreement ("Purchase Agreement") of this date between Buyer and Seller: 1 Minimum Price. Notwithstanding the provisions in the attached Purchase Agreement that establish the Price for secondary fiber, Buyer agrees to pay the following minimum price ( "Minimum Price" ) per ton for the following grades of secondary fiber, provided that the Minimum Price Shall be limited to the average number of tons of such grade sold monthly by Seller to Buyer during the three-month period immediately preceding the effective date of the Minimum Price GRADE MINIMUM PRICE MIX PAPER GRADE # 1 S60.00 OCC GRADE # 11 $60.00 2. Suspension of Minimum Price. Notwithstanding paragraph 1 of this Rider, if the Minimum Price for any Grade of secondary fiber should exceed the Price that would otherwise be in effect pursuant to the attached Purchase Agreement for three consecutive months, that Minimum Price for that grade shall be suspended and no longer applicable. The suspension of the Minimum Price shall be lifted once the Price exceeds the Minimum Price. IN WITNESS WHEREOF, the undersigned has executed this Rider as of the date first written above. SELLER: THE CITY OF CLEARWATER DEPARTMENT OF SOLID WASTE/ GENERAL SERVICES BY: lf- NAME: EARL GLOSTER TITLE: SOLID WASTE DIRECTOR DATE: G X l j u T? BUYER: THE NEWARK GROUP INC NEWARK RECYCLED FIBERS SOUTHEAST REGION BY: r' NAME: WILLIAM S. SEALE TITLE: GENERAL MANAGER