HomeMy WebLinkAboutCity of Tamarac Resolution R-2009-1611
Temp. Reso. # 11726
November 13, 2009
Page 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-2009-
A RESOLUTION OF THE CITY COMMISSION OF THE CITY
OF TAMARAC, FLORIDA APPROVING THE TERMS OF THE
MEMORANDUM OF UNDERSTANDING (MOU) AMONG
BROWARD COUNTY, THE BROWARD SOLID WASTE
DISPOSAL DISTRICT, WHEELABRATOR SOUTH BROWARD,
INC., AND WHEELABRATOR NORTH BROWARD, INC.
PROVIDING THAT THIS RESOLUTION SHALL BE BINDING
ONLY UPON APPROVAL OF AN ADDITIONAL RESOLUTION
APPROVING A NEW INTERLOCAL AGREEMENT FOR THE
BROWARD SOLID WASTE DISPOSAL DISTRICT;
PROVIDING FOR CONFLICTS; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN EFFECTIVE
DATE.
WHEREAS, the City of Tamarac, through an Interlocal Agreement with Broward
County for Solid Waste Disposal Services (Interlocal Agreement) is a member and one
of the Contract Communities that make up the Broward Solid Waste Disposal District
(District), incorporated herein by reference and on file in the office of the City Clerk; and
WHEREAS, the District utilizes two (2) Waste -to -Energy plants, which are mass
burn resource recovery facilities for the incineration of processable waste generated by the
Member Communities of the District; and
WHEREAS, Wheelabrator South Broward, Inc. and Wheelabrator North Broward,
Inc. (both hereinafter Wheelabrator) maintain and operate the waste -to -energy plants; and
WHEREAS, the Agreements with Wheelabrator for the operation of the waste -to -
energy plants will expire on August 4, 2011 for the South plant and on March 22, 2012 for
the North plant; and
WHEREAS, the continued operation of the Waste -to -Energy plants is a financially
viable and environmentally responsible means of disposing of processable waste; and
Temp. Reso. # 11726
November 13, 2009
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WHEREAS, the City Commission of the City of Tamarac finds that approval of the
terms of the MOU among Broward County, the District, and Wheelabrator is in the best
interest of the City of Tamarac, a copy of the MOU is hereto attached as Exhibit 1.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE
CITY OF TAMARAC, FLORIDA, THAT:
SECTION 1: The Memorandum of Understanding (MOU) attached hereto
reflects the material terms agreed to among Broward County, the Broward Solid Waste
Disposal District, Wheelabrator South Broward, Inc. and Wheelabrator North Broward Inc.,
and forms the basis of an amended Service Agreement to replace the current Service
Agreements between Broward County and Wheelabrator and all amended versions of
same.
SECTION 2: The City Commission of the City of Tamarac, Florida, hereby
approves the terms of the MOU attached hereto for a term of ten years from August 4,
2011, with an option for a ten (10) year extension by mutual agreement.
SECTION 3: The City Manager is authorized to execute the Memorandum of
Understanding and any other documents necessary to effectuate the intent of this
Resolution.
SECTION 4: The appropriate City Officials are authorized to do all things
necessary to effectuate the intent of this resolution.
SECTION 5: This resolution shall be binding only upon the passage of an
additional resolution approving a new Interlocal agreement for the Broward Solid Waste
Disposal District.
SECTION 6: The City Clerk is hereby directed to send a certified copy of this
Temp. Reso. # 11726
November 13, 2009
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resolution to the Resource Recovery Board and Broward County Board of County
Commissioners.
SECTION 7: All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 8: If any provision of this Resolution or the application thereof to
any person or circumstance is held invalid, such invalidity shall not affect other provisions
or application, and to this end the provisions of this Resolution are declared to be
severable.
SECTION 9: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this Z5 day of /y1-U , 2009.
ATTEST:
MARION SWEKLSON, CIVIC
CITY CLERK
I HEREBY CERTIFY that
I have approved this
RESOLUTION as to form.
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NEY
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BETH PLANS BAUM-TALABISCO
MAYOR
RECORD OF COMMISSION VOTE:
MAYOR FLANSBAUM-TALABISCO
DIST 1: COMM BUSHNELL
DIST 2: COMM ATKINS-GRAD
DIST 3: COMM GLASSER
DIST 4: COMM DRESSLER
MEMORANDUM OF UNDERSTANDING
1-0- y
This Memorandum of Understanding (M.O.U.) dated this 144 day of2009
is among Broward County (County), Broward Solid Waste Disposal District, a dependent special district
of Broward County (District) and Wheelabrator South Broward Inc. and Wheelabrator North Broward
Inc. (both hereinafter Wheelabrator). This M.O.U. reflects the material terms agreed to and negotiated
by their respective staffs and forms the basis of an amended Service Agreement which will replace the
Service Agreements between Broward County and Wheelabrator; and all amended versions of same
along with amendments thereto (the Agreements). The Service Agreement shall include the following
material terms:
1). The term shall be ten years from August 4, 2011, with a 10 year extension by
mutual agreement.
2). The County, the District and the communities that are parties to the new interlocal
agreement with the District will maintain the current flow control ordinances and
system. The District, the County and the participating communities will agree to
deliver all acceptable waste generated within the system, consistent with present
practice (including the present exception for waste destined for out of state disposal)
to the Wheelabrator Broward waste to energy facilities, but will not guarantee to
deliver any minimum number of tons, provided the flow control ordinances remain in
effect. If the flow control ordinances are no longer in effect then the District and the
participating communities shall guarantee to deliver a minimum number of tons based
on the historical deliveries of solid waste to the Wheelabrator facilities by such
communities, as adjusted to reflect changes in law.
3). The County, the District and all participating contract communities agree to use best
efforts to enforce the ordinances described in paragraph 2) above.
4). Wheelabrator will accept all waste generated in the system up to the present
capacity at both the North and South plants. Wheelabrator and the District will
mutually agree on how much waste is delivered to each plant.
5). Wheelabrator will have the right to accept waste -from any party other than the
District provided (a) Wheelabrator shall divert such waste from the plants if necessary
in order to accept District waste in accordance with paragraph 4 and (b) Wheelabrator
shall not charge any non -District municipality -located within the County a service fee
less than the service fee charged to the District.
6). Wheelabrator shall charge the District a service fee of $49.75 a ton for each ton
tipped at the North or South Plant. The service fee will escalate annually via a CPI/PPI
index as described in Addendum A attached hereto. The service fee shall escalate
annually by such index up to a maximum of 5% per year but no less than 1% per year.
The first CPI/PPI adjustment shall take place on January 1, 2011, based upon the change
in CPI/PP1 from October, 2009 to January, 2011.
7). Property, real estate, sales taxes and all other non -income taxes shall be a direct
pass through expense to the District. In the event of any inability to pass through such
taxes to the District the service fee shall be adjusted to reflect the portion of such taxes
that Wheelabrator cannot pass through to the District or the District shall otherwise
compensate Wheelabrator, in a manner reasonably satisfactory to Wheelabrator, for
the financial impact to Wheelabrator of such event . Neither party shall be required to
provide representations or warranties as to the enforceability of the pass through
provision.
8). The service fee shall be adjusted for new capital costs, increased operating and
maintenance costs or reduced revenues of Wheelabrator due to a change in law
occurring after the date of the new service agreement. If Wheelabrator realizes any
cost savings due to a change in law, the service fee shall be adjusted to reflect such
savings. The adjustment to the service fee shall reflect a pro rata portion of such
increased costs, reduced revenues or cost savings based on a fraction (a) the numerator
of which is the average number of tons that the District delivered to the North and
South facilities during the I year period prior to the date the change in law occurred
and (b) the denominator of which is the total capacity of such facilities.
If the service fee increases by more than 40% from the prior year's service fee due to a
change in law, the District may terminate the Service Agreement. If Wheelabrator has
additional costs or reduced revenues due to a change in law that are not reimbursed by
the District and such costs or revenue reductions are greater than 40% of the prior
year's service fee, then Wheelabrator may terminate the service agreement.
9). Wheelabrator shall pay rent for the South waste to energy plant site at the rate of
$1,000,000.00 pursuant to an amendment to the present site lease for the South
facility. Rent shall escalate yearly, subject to the same CPI/PPI adjustment as provided
for in the service fee adjustment, with a minimum of 1% and a maximum of 5%. The
first CPI adjustment shall be on January 1, 2011, based upon the change in CPI from
October, 2009 to January, 2011.
The District shall pay Wheelabrator all costs with respect to the real property located
at the South site (excluding the plant), including without limitation, all capital and
operating costs of the ash monofil, that the County was obligated to pay during the
initial term of the agreements with Wheelabrator that are presently in effect for the
South plant; provided, however, any costs or credits for changes of law shall be
determined pursuant to the formula in the previous paragraph.
10). The provision in the current Agreements that provides the County and/ or District
disposal rights at the facilities at a discount to third party disposal prices if the
Agreements are not renewed shall be deleted.
11). The District shall propose to reduce the tipping fees it charges participating
contract communities to no more than $12 a ton above the amount Wheelabrator
charges the District.
12). The service agreement contemplated pursuant to this M.O.U. shall have an
effective date of August 4, 2011. The service fee contemplated herein shall take effect
on August 4, 2011 for all District waste delivered to both plants.
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The District shall pay to Wheelabrator within 60 days from April 1, 2012 an amount
equal to (a) the difference between the service fee for the period ended March 22,
2012 under the existing North -site service agreement, and the service fee under the
new service agreement (drafted pursuant to this M.D.U.) multiplied by (b) the actual
deliveries by the District to the North facility during theperiod from August 4, 2011 to
March 22, 2012. The District shall continue to make deliveries to the North facility
consistent with the County's historical practice through March 22, 2012.
13. Wheelabrator's obligations under the new service agreement with the District are
subject to the delivery to it, on or prior to August 4, 2011, of evidence reasonably
satisfactory to it that the District has the authority and means to perform its obligations
hereunder, including without limitation, (a) the adoption and implementation by the
District and the County of an effective system for the enforcement of the rules of the
District and (b) the District having or the County making available to the District the
assets and personnel necessary to perform its obligations under the service agreement.
Each of the District and the County shall use their best efforts to satisfy such conditions
on or prior to such date.
14. Wheelabrator shall pay a bonus on August 4, 2011 directly to each community
that approves this M.O.U., as provided in paragraph 18 below, and also, on or prior to
June 30, 2010, enters into a new interlocal agreement with the District that reflects the
terms hereof. The total bonus shall be $12,000,000 and will be pro -rated for each
community based on the proportion that its deliveries to the Wheelabrator plants bears
to the total deliveries from the County/District to the Wheelabrator plants during the
12 months prior to August 4, 2011. Any community that does not approve this M.O.U.
shall not be paid any bonus, and such portion of the $12,000,000 remaining shall be
paid by Wheelabrator to the District instead.
15. The terms within this M.D.U. shall not be considered binding as to the County and
the District unless and until first approved by the Broward Resource Recovery Board, as
the governing body of the District and the Broward County Board of County
Commissioners.
16. The terms within this M.O.U. shall not be considered binding as to Wheelabrator
until and unless first approved by the Board of Directors of Waste Management, Inc.
17. The terms contained within this M.O.U., if approved pursuant to paragraphs 15 and
16, shall remain in effect until January 1, 2010.
18. The parties agree that this M.O.U. shall be binding upon the County, the District,
and Wheelabrator upon passage by January 1, 2010 of resolutions approving the terms
contained herein by communities within the County whose deliveries of solid waste to
the Wheelabrator plants represented at least 80% of the County's/District's historical
deliveries to the plants. This M.O.U. shall be superseded by a service agreement to be
negotiated between the District and Wheelabrator and an amended site lease for the
South site which shall contain the terms contained herein.
If communities within the County whose deliveries of solid waste to the Wheelabrator
plants represented at least 80% of the County's/District's historical deliveries to the
plants have not (a) approved this M.O.U. by January 1, 2010, or (b) entered into a
binding interlocal agreement with the District reflecting the terms hereof by June 30,
2010, this M.O.U. shall nevertheless be binding upon the County, the District, and
Wheelabrator, including paragraph 14, unless 1). Wheelabrator terminates this
M.O.U. by notifying the Executive Director of the Broward Solid Waste Disposal District
within 60 days after the applicable date in clause (a) and (b) above. The notice shall be
sent by certified mail or overnight courier to Ron Greenstein, the Executive Director of
the Broward Solid Waste Disposal District at One North University Drive, Plantation,
Florida 33324 or 2). The District terminates this M.O.U. by notifying Wheelabrator
within 60 days after the applicable date in clause (a) and (b) above. This notice shall be
sent by certified mail or overnight courier to Wheelabrator Technologies Inc., ATTN:
General Counsel, 4 Liberty Lane West, Hampton, N.H. 03842.
For Wheelabrator South Broward Inc. rUK&--MK,4Dat%'05
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