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INTERLOCAL AGREEMENT ESTABLISHING A CURBSIDE RECYCLING PROGRAM INTERLOCAL AGREEMENT JAr This Agreement entered into this ~ day of -00-, 2007, by and between the CITY OF CLEARWATER, Florida, a municipal corporation of the State of Florida, (hereinafter referred to as the "Buyer") and the CITY OF SAFETY HARBOR, Florida, a municipal corporation of the State of Florida, (hereinafter referred to as the "Supplier"). WITNESSETH WHEREAS, the Supplier is establishing a curbside recycling program within its city limits hereinafter referred to as the "Project"; and WHEREAS, the Buyer desires to accept, process and market the recovered materials collected by the Supplier for a fee; and WHEREAS, the Supplier and the Buyer desire to enter into this Agreement pursuant to Section 163.01, Florida Statues, for the purpose of cooperatively working together on the Project; and WHEREAS, the Supplier and the Buyer have determined that it is in their best interest to cooperate in this matter under certain conditions and provisions. WHEREAS, the Project and the mutual cooperation of the Supplier and Buyer serves a public purpose, and is in the best interest of the residents of the Buyer and Supplier; and NOW THEREFORE, in consideration of the promises and mutual covenants contained herein, the parties hereto agree as follows: 1. Introduction 1.1 The above recitals are true and correct and incorporated herein as if set forth in full. 1.2 This agreement is entered into in accordance with Chapter 163, Florida Statues. 1.3 The purpose of this Interlocal Agreement is to define the obligations and responsibilities of the Supplier, and the Buyer with respect to the following service: 1.3.1 Processing recovered materials collected by the Supplier and delivered to the Buyer at 1701 N. Hercules Ave., Clearwater, FL 33765 (hereinafter referred to as the "Location"). 1.3.2 Marketing of those same recovered materials collected by the Supplier and delivered to the Buyer. 1.3.3 Provide payment and documentation to the Supplier for recovered materials collected by the Supplier and delivered to the Buyer. 2. Definitions 2.1 Contaminants: Any materials that are not recovered materials collected by the Supplier and delivered to the Buyer. 2.2 Net Revenue: Revenue derived from the sale of recovered materials after deductions for Processing Fees and, if any, contaminants. 2.3 ProcessinQ Fee: Fee charged by the Buyer for processing recovered materials. Processing fees are subject to change with thirty (30) days written notice by mail or email. The Supplier shall have (30) days after receipt of such notice to terminate this contract should the processing fee increase by ten percent (10%) or greater of what the previous processing fee was. Current processing fees are: Newspaper $20.50 per ton; Cardboard $20.50 per ton; Mixed Paper $21.50 per ton; Plastic Bottles $20.50 per ton; Steel Cans $20.50 per ton; Aluminum Cans $0.20 per pound. If the Supplier elects to terminate this agreement due to the aforementioned increased processing fee, the Supplier shall notify the Buyer of its intent to terminate the contract in writing. All other provisions under the Agreement shall apply. 2.4 Recovered Materials: Newspaper, cardboard, mixed paper, plastic bottles, steel cans, and aluminum cans. 3. Recovered Materials to be Processed and Marketed 3.1 Newspaper - Includes only clean, dry, non-sun-bleached newspaper and its inserts. 3.2 Cardboard - Includes only clean corrugated cardboard. 3.3 Mixed Paper - Includes all other clean paper (e.g., any clean paper product that can be torn by hand). 3.4 Plastic Bottles - Includes only #1 and #2 narrow-neck plastic bottles. 3.5 Steel Cans 3.6 Aluminum Cans 4. Responsibilities of the Supplier 4.1 Contact Person: The Supplier shall designate in writing a person or persons through whom the Buyer will communicate regarding this Agreement. (See Appendix A). 4.2 Recovered Materials: The Supplier shall provide uncontaminated and properly sorted recovered materials to the Buyer. Should the recovered materials be contaminated or not sorted properly, the Buyer may deduct a percentage of the materials as contaminated. 3.2 Processino and Marketino Services: If the Buyer determines that a delivery contains an excessive amount of contamination (10% or greater), the Buyer may charge the Supplier to dispose of the contaminants. 3.2 Risk, Liability, and Indemnity: The Supplier assumes, and, to the fullest extent allowed by State law (Constitutional and/or Statutory, as amended), shall defend, indemnify, and hold the Buyer harmless from and against all liability, which the Buyer may incur or in any way be subjected to, on account of death of or injury to any person whomsoever (including officers, agents, employees or invitees of the Buyer), and for damage to or loss of or destruction of any property whatsoever, arising out of, resulting from, or in any way connected with the Supplier's delivering of recovered materials to the Location, EXCEPT when such liability is proven to have been caused solely by the willful misconduct or negligence of the Buyer. 5. Responsibilities of the Buyer 5.1 Commencement of Duties: The Buyer shall begin providing the services defined within this Agreement on October 1,2007. 5.2 Hours of Operation: The Buyer shall accept delivery of recovered materials from the Supplier between the hours of 7:00 a.m. and 3:00 p.m. on weekdays excluding Buyer's recognized holidays for Thanksgiving, Christmas and New Years. 5.3 ProcessinQ and MarketinQ Services: 5.3.1 The Buyer shall process and market all recovered materials. 5.3.2 The Buyer shall share revenue generated from the sale of recovered materials received from the Supplier in accordance with Section 6.1. 5.3.3 The Buyer is responsible for the disposal of a nominal amount (less than 10%) of non-toxic contaminants included in the recovered materials delivered by the Seller. 5.4 ReportinQ: The Buyer shall provide a monthly report by the 10th business day of the month for the immediately preceding month in accordance with Section 6.2. 5.5 Contact Person: The Buyer shall designate in writing a person or persons through whom the Supplier will communicate about this Agreement. (See Appendix A). 6. Compensation and Net Revenue Share 6.1 Net Revenues: The Buyer shall compensate the Supplier for recovered materials based on the market price that the Buyer receives and the following formulas: 6.1.1 Newspaper: 75% of the Market Price per ton less the Processing Fee per ton. For Example: Market Price = $100 per ton Processing Fee = $20.50 per ton Formula: 75% of ($100-20.50) Or 75% of $79.50 Or $59.63 per ton 6.1.2 Cardboard: 75% of the Market Price per ton less the Processing Fee per ton. 6.1.3 Mixed Paper: 60% of the Market Price per ton less the Processing Fee per ton. 6.1.4 Plastic: 60% of the Market Price per ton less the Processing Fee per ton. 6.1.5 Steel Cans: 60% of the Market Price per ton less the Processing Fee per ton. 6.1.6 Aluminum Cans: Market Price per pound less $0.20 per pound after a 5% contamination deduction by weight is made. (NOTE: This 5% deduction is based on the historical deduction that Clearwater's market partner makes on shipments of clean, sorted aluminum cans.) For Example: Market Price = $0.70 per pound Processing Fee = $0.20 per pound Pounds Delivered = 1,000 pounds Formula: ($0.70 - $0.20) x (95% of 1,000 pounds) Or ($0.50 x 950 pounds) Or $475.00 6.1.7 All revenue shall be credited or paid to the Supplier in accordance with Section 6.1.1 through 6.1.6. 6.2 ReportinQ: By the tenth (10th) business day of each month, the Buyer shall send via fax or email a recap of recovered materials processed and marketed for the immediately preceding month to the Supplier. This recap will state the total weight of each recovered material type collected, the market price at which each material was sold, and net revenues due to the Supplier. The Buyer will at the same time request a check to pay to the Supplier the amount identified as the net revenues due to the Supplier. All the payments shall be made in accordance with Section 9218.70, Florida Statutes. 6. Audit The Supplier may audit all Buyer records with respect to this contract. Records shall be maintained for three years from date of payment. 8. Term This Agreement shall be in effect for a period of thirty-six (36) months from the effective date of the Agreement. This Agreement shall renew for successive terms, only upon written approval by both parties prior to expiration of this Agreement. 9. Assianment and Termination The rights and obligations of either party under this Agreement shall not be assigned without prior written consent of the other party. Further, this Agreement may be terminated by either party at the end of any term without cause upon providing thirty (30) days prior written notice to the other party; This Agreement may be terminated, should either party fail substantially to perform in accordance with the terms of this Agreement through no fault of the other party or if conditions arise, such as lack of available funding, that dictates that it is in the public interest to terminate. Upon breach of this Agreement by a party, the party will give written notice of the termination of this Agreement specifying the claimed breach and the action required to cure the breach. If the breaching party fails to cure the breach within ten (10) days from receipt of said notice, then this Agreement will terminate fifteen (15) days from receipt of the written notice. 10. Waiver of Breach The failure of any party hereto to enforce any provision of this Agreement shall not be construed to be a waiver of such or any other provision, nor in any way to affect the validity of all or any part of this Agreement or the right of such party thereafter to enforce each and every such provision. No waiver of any breach of this Agreement shall be held to constitute a waiver of any other or subsequent breach. 11. Hold Harmless Subject to Florida Statutory limits on the Waiver of sovereign immunity, the parties agree that each will save the other, hold harmless and defend the other of, from and against all liability and expenses, including reasonable attorney's fees on account of the negligent acts of its employees, servants or agents in any way related to or in connection with the recycling program. Each party will agree to provide each other, if requested, proof of insurance coverage or self-insurance in the amounts set forth in Florida Statutes. Nothing contained herein shall be construed as a waiver of any immunity from or limitation of liability the Supplier or the Buyer may be entitled to under the doctrine of sovereign immunity or Section 768.28, Florida Statutes. 12. Relationship of the Parties Nothing contained herein shall be deemed or construed by the parties hereto, nor by any third party, as creating 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 between the parties hereto other than the relationship of Buyer and Supplier. 13. Notice All notices and communications regarding this Agreement shall be addressed to the respective party at the following addresses: The Buyer: Solid Waste/General Services Department 1701 N. Hercules Avenue Clearwater, FL 33765-1112 The Supplier: Public Works Department 1200 Railroad Avenue Safety Harbor, FL 34695 Unless otherwise expressly stated elsewhere in this Agreement, all such notices shall be in writing and sent via Certified or Registered Mail, Return Receipt Requested, or by courier, and shall be effective upon (a) actual receipt, or (b) date of refusal of such delivery. 14. RecordinQ This Interlocal Agreement and all amendments shall be effective immediately upon filing a fully executed copy of this Interlocal Agreement with the Clerk of the Circuit Court for Pinellas County, Florida pursuant to Section 163.01 (11), Florida Statutes. 15. Unforeseen Question The Buyer and the Supplier agree that in the event of unforeseen questions arising of the relationship of the parties in connection with the curbside recycling program, the question will be settled in writing between the City Managers or their respective designees for resolution of such questions concerning this Agreement. In the event that the unforeseen question is not resolved, either party may elect to have the dispute heard before a court of local jurisdiction according to paragraph 20 of this agreement. 16. Amendment This Agreement shall be amended only by mutual written agreement by and between the Buyer and the Supplier. 17. Headinas The headings of this Agreement are for convenience and reference only and in no way define, limit or describe the scope of the intent of this Agreement or any part hereof, or in any way affect the same, or construe any provision thereof. 18. Entire Aareement 18.1 This Agreement together with the attached appendix embodies the whole agreement of the parties hereto. There are no promises, terms, conditions or allegations other than those contained herein and this document shall supersede all previous communications, representations and/or agreements, whether written or verbal, between the parties hereto. This Agreement may be modified only in writing, executed by all parties. This Agreement shall be binding upon the parties, their successors, assigns and legal representatives. 18.2 Except as otherwise provided herein, neither the form of this Agreement, nor the language herein, shall be interpreted or construed in favor of or against either party hereto as the sole drafter thereof. 19. Severability This Agreement is executed under current interpretation of applicable Federal, State, County, Municipal or other local statute, ordinance or law(s). However, each separate provision herein shall have independent and severable status for the determination of legality, so that if any separate provision is determined to be void or unenforceable for any reason, such determination shall have no effect upon the validity or enforceability of each other separate provision, or any combination thereof. 20. Governina Law and Venue 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. [Remainder of page intentionally left blank] IN WITNESS WHEREOF, said City of Safety Harbor, Florida, acting by and through its governing body, the Board of City Commissioners of Safety Harbor, Florida, its corporate seal to be hereunto affixed, attested by the Clerk of said City acting as City Clerk of Safety Harbor, Florida; and said City of Clearwater, Florida acting by and through its City Council, has caused this Agreement to be executed in its name and on behalf by its Mayor/Councilmember, and its corporate seal to be hereunto attached, and attested by its City Clerk. ATTEST: CATHY BENSON, CLERK CITY OF SAFETY HARBOR, FLORIDA by and through its City Mayor By: ~ ~/td,) Ity Clerk 'Dat By: By: COUNTERSIGNE FLORIDA CITY OF CLEARWATER, By: .:j~ ~Y:~~3- Fran1<"Hibbard William B. Horne II Mayor- City Manager APPROV AS TO FORM: ATTEST: By: By: Camilo Soto Assistant City Attorney 10 APPENDIX A CO NT ACT LIST NAME/TITLE Contact Reason Office # CELL # City of Clearwater Thomas King Weight Tickets/ 562-4920 224-7394 Recycling Supervisor Contamination Processing Center David Powers Contract Amendments/ 562-4938 224-7386 Senior Accountant Contract Negotiations/ Billing Thomas Glenn Contract Amendments/ 562-4923 224-7388 Program Coordinator Contract Negotiations/ Processing Center Earl Gloster Contract Amendments/ 562-4930 224-4109 Assistant Director, Contract Negotiations Solid Waste/General Services Department City of Safety Harbor John Crayton Sanitation Supervisor Delivery Issues/ Contamination Concerns 724-1550 Sherri Kennedy Recycling Coordinator Contract Amendments/ Contract Negotiations/ Recycling Information 724-1550 Ext. 224 Charles Brewer Director of Public Works Contract Amendments/ Contract Negotiations 724-1550 1