2001-09
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MUCK REMOVAL AND DISPOSAL AGREEMENT
THIS AGREEMENT is made and entered into this --'..2 day of ..j~" e.
2001, by and between Reliable Peat Company, J.V., a Florida joint venture (hereinafter
"Reliable") and the City of Clermont (hereinafter "Clermont").
WITNESSETH:
WHEREAS, Reliable is in the business of mining and removing peat and muck from
real property and re-selling it as a reusable garden product; and
WHEREAS, Clermont is the owner of Center Lake, a 9.7 acre lake located north of
Highway 50 between West Avenue and 8th Street (hereinafter "Lake"); and
WHEREAS, the Lake has muck ranging in depth from 5 to 17 feet; and
WHEREAS, the parties hereto wish to enter into an Agreement whereby Reliable
would collect, transport and dispose of the muck in the Lake according to the terms of this
Muck Removal and Disposal Agreement (hereinafter "Agreement");
NOW, THEREFORE, in consideration of the foregoing mutual covenants and
Agreements set forth herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, do
hereby covenant and agree as follows:
1. SERVICES.
1.1
During Term of Agreement. During the terms of this Agreement, Reliable
shall collect, transport and dispose of all muck on or about the Lake. In
addition, Reliable shall then sell the muck to third parties on terms and
conditions agreed upon solely by and between Reliable and said third parties.
Reliable shall remove the muck first from the outer edges of the lake and work
Muck Removal and Disposal Agreement
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toward the center. With Clermont approval as to location, Reliable shall have
the right to use any of the city-owned surface property surrounding the Lake
to the extent that it may be necessary to collect, transport and dispose of the
muck and shall have the right to remove any vegetation (except trees, without
obtaining Clermont's approval) and other materials that may hinder the
collection, transport and disposal of the muck. Reliable shall have the right to
construct a driveway, ramp(s) or other facility as may be necessary or
convenient, on the city-owned surface property surrounding the Lake for the
purpose of collecting and transporting the muck.
Reliable shall collect,
transport and dispose of the muck as soon as is practical, continuously and
without unnecessary delay.
1.2
Completion of Agreement. Upon completion Reliable will re-grade and re-
slope edges according to the Department of Environmental Protection's
permit and remove all temporary access. If re-planting of any vegetation is
required by any parties, then Clermont shall have the sole responsibility of the
re-planting.
2. FEE FOR SERVICES RENDERED.
2.1
Mobilization Fee.
Clermont shall pay to Reliable the sum of Fifteen
Thousand Dollars ($15,000.00) as a Mobilization Fee once Reliable has
moved all of its equipment to the Lake in order to begin conducting its
services. Clermont shall pay Reliable said monies within fourteen (14) days
of receiving written notice that all of Reliable's equipment is in place.
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2.2
Rim Ditch Fee. As part of the Services to Clermont, Reliable will construct a
rim ditch. Within fourteen (14) days of receiving written notice that the rim
ditch is completed, Clermont shall pay Reliable the sum of Ten Thousand
Dollars ($10,000.00).
2.3
Removal Fee. Clermont shall pay Reliable the sum of three dollars & 54/100
($3.54) per cubic yard for any muck collected and transported from the Lake.
The Removal Fee is based on an off road diesel price not to exceed one dollar
& 15/100 ($1.15) per gallon. The parties agree that every $.05 increase in the
off road diesel price will increase the Removal fee by one percent (1 %).
3. DISPOSAL OF MUCK. Reliable will transport and deposit the muck collected
from the Lake either at its processing site in Okahumpka, Florida, or at Reliable's or
Scott's processing site near O'Brien Road at Highway 19 and U.S. Highway 27 in
Howey-in-the-Hills, Florida.
4. TERM. Reliable shall have a period of six (6) months from the date hereof, to
collect, transport and dispose of all the muck from the Lake, unless an extension is
agreed to by the parties hereto. Clermont shall have the option to terminate this
Agreement once the minimum amount stated in Paragraph 5.5 is met; however, if
Clermont terminates this Agreement, it shall not receive any amounts under
Paragraph 5 following the termination of this Agreement.
5. SALE OF MUCK. Pursuant to paragraph 3 above, Reliable will store the muck at
either its location in Okahumpka, Florida at Reliable's or Scott's site near O'Brien
Road at Highway 19 and U.S. Highway 27 in Howey-in-the-Hills, Florida. After the
muck dries and shrinkage occurs, Reliable will sell the muck to third parties on terms
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and conditions that are negotiated and agreed upon solely by Reliable and said third
party purchasers. The gross proceeds received by Reliable from the sale of the muck
shall be distributed as follows:
1. The first $1.00 per cubic yard of gross proceeds shall be distributed to
Reliable.
2. The gross proceeds from the sale of the first fifty thousand (50,000) cubic
yards shall be distributed equally between the parties hereto after the
application of paragraph 1 above.
3. The gross proceeds from the sale of fifty thousand and one (50,001) cubic
yards to sixty-five thousand (65,000) cubic yards shall be distributed sixty
percent (60%) to Clermont and forty percent (40%) to Reliable.
4. The gross proceeds from the sale of sixty-five thousand and one (65,001)
cubic yards and above shall be distributed eighty percent (80%) to
Clermont and twenty percent (20%) to Reliable.
5. Notwithstanding the above paragraphs, (i) the minimum amount that will
be distributed to Reliable from the mobilization fee, rim ditch fee, removal
fee and gross proceeds obtained by Reliable from the sale of the muck,
shall total One Hundred Seventy-Eight Thousand One Hundred Fifty
Dollars ($178,150.00) and (ii) the maximum per cubic yard payable to
Clermont is $2.05 per cubic yard with a total maximum amount that
Clermont shall receive equaling one hundred and eighty-two thousand
four hundred and thirty-five dollars ($182,435.00).
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6. Example 1: If Reliable removes 65,000 cubic yards of muck from the
Lake and then sells 40,000 cubic yards of the muck at $4.00 per cubic
yard, then Clermont shall pay to Reliable and receive from Reliable the
following amounts, determined as follows:
65,000.00
x $3.54
$230,100.00
+$15,000.00
+$10.000.00
$255,100.00
cubic yards
per cubic yard
mobilization fee
rim ditch fee
amount paid by Clermont to Reliable
40,000.00 cubic yards sold
x $4.00 per cubic yard sold
$160,000.00 gross proceeds
Reliable receives $40,000.00 from the gross proceeds ($1.00 x 40,000 cubic
yards of muck sold) and $60,000.00 (fifty percent (50%) of gross proceeds
remaining after allocation pursuant to paragraph 1 above.)
Clermont receives $60,000.00 from the gross proceeds (fifty percent (50%) of
gross proceeds remaining after allocation pursuant to paragraph 1 above),
thus, reducing Clermont's overall project cost to $195,100.00.
7. Example 2: If Reliable removes 65,000 cubic yards of muck from the
Lake and then sells 60,000 cubic yards of the muck at $4.00 per cubic
yard, then Clermont shall pay to Reliable and receive from Reliable the
following amounts, determined as follows:
65,000.00
x $3.54
$230,100.00
+$15,000.00
j:$10.000.00
$255,100.00
Muck Removal and Disposal Agreement
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cubic yards
per cubic yard
mobilization fee
rim ditch fee
amount paid by Clermont to Reliable
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60,000.00 cubic yards sold
x $4.00 per cubic yard sold
$240,000.00 gross proceeds
Reliable receives $60,000.00 from the gross proceeds ($1.00 x 60,000 cubic
yards of muck sold). The balance of the gross proceeds ($180,000.00) is
distributed as follows:
. 50,001 cubic yards/60,OOO cubic yards sold = 83%
$180,000.00 x 83% = $149,400.00
$149,400.00 split equally between the parties
. 9,999 cubic yards/60,OOO cubic yards sold = 17%
$180,000.00 x 17% = $30,600.00
$30,600.00 split 60% to Clermont and 40% to Reliable
. Reliable receives:
$60,000.00 ($1.00 x 60,000 cubic yards of muck sold)
$74,700.00 (50% of gross proceeds from the first 50,000 cubic
yards sold)
$12.240.00 (gross proceeds from the sale of 50,001 cubic yards
to 60,000 cubic yards)
$147,040.00 total
. Clermont receives:
$74,700.00 (50% of gross proceeds from the first 50,000 cubic
yards sold)
$18.360.00 (gross proceeds from the sale of 50,001 cubic yards
to 60,000 cubic yards)
$93.060.00 total
Clermont's overall project cost is $162,040.00
6. ACCOUNTING. Reliable shall maintain consecutively numbered tickets for each
truck load of muck collected and transported from the Lake. Reliable agrees to
provide duplicates of the tickets to Clermont, upon request. In addition, Reliable
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shall furnish Clermont with a written report showing the total number of cubic yards
of muck removed from the Lake during the preceding calendar month and receipts
concerning the price per gallon of off road diesel fuel. With respect to the sale of
muck that is removed and transported from the Lake, all books and records and
numbered invoices of Reliable shall be open to inspection by Clermont at all
reasonable times and upon reasonable notice and Clermont shall have the right to
examine such records. Reliable Agrees to comply with the Public Records Law of
Chapter 119 of Florida Statutes regarding the records maintained concerning this
agreement.
7. PAYMENT.
7.1. Payment of Muck Removal Fee. All payments for removal of the muck
as contained in paragraph 2.3, shall be paid by Clermont to Reliable on every
other Friday for all payment requests received by Clermont seven. (7) days
prIor.
7.2 Payment of Proceeds from Sale of Muck. All payments for sale of the
muck as contained in paragraph 5 above, shall be paid by Reliable to
Clermont on the 20th day of the month following a month in which muck
from the Lake has been sold.
8. REPRESENTATIONS AND WARRANTIES OF CLERMONT. Clermont hereby
represents and warrants to Reliable the following.
8.1 Existing Agreements and Government Approvals.
1. The execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated by it do not
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and will not violate any provisions of law applicable to Clermont
and/or Reliable. In Clermont's knowledge, the execution, delivery
and performance of this Agreement does not and will not result in
the creation of any encumbrance on any of the properties, assets or
business of Reliable.
2. No approval, authority or consent of, or filing by, Clermont with
notification to any federal, state or local court, authority, or
governmental or regulatory body or agency is known to be
necessary as a prerequisite to the execution and delivery of this
Agreement for the consummation of the transactions contemplated
by it. Any additional permits that may be necessary shall be the
sole responsibility of Clermont pursuant to Paragraph 10.3 below.
8.2
Status of Muck. Tests have been conducted and shared with Reliable
that reveals that the muck located in the Lake is not contaminated. Further,
Clermont is not aware of any environmental problems with the muck or any
other problems that would limit Reliable's ability to sell and market the muck.
9. REPRESENTATIONS AND WARRANTIES OF RELIABLE.
9.1
Authorization. Reliable hereby represents and warrants to Clermont
that the execution and delivery of this Agreement by Reliable and the
performance of Reliable's obligations hereunder, will not violate, with or
without the giving of notice and/or the passage of time, any provision of law
now applicable to Reliable.
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9.2
Insurance. Reliable agrees to obtain throughout the term of this
Agreement general liability, auto and workers' compensation insurance in
amounts required by law. Reliable agrees to provide Clermont with proof of
the said insurance upon request by Clermont.
9.3
Performance Bond. Reliable agrees to obtain a performance bond in
the amount of fifty thousand dollars ($50,000.00).
10. ACTIONS TO BE TAKEN BY CLERMONT. Clermont shall take the following
actions to insure Reliable's ability to render the services contemplated herein:
10.1 Water Storage Area. The parties understand that in order to remove
the muck from the Lake, the water in the Lake must be drained. Thus,
Clermont shall provide Reliable with a water storage area. Clermont is solely
responsible for any and all costs associated with the water storage area
(including, but not limited to: lease payments, permitting fees, engineering
fees, etc.). Reliable is responsible for the cost of pumping the water out of the
Lake and transporting the water to the water storage area. Reliable shall erect
earthen crossovers over any roads in which the pipe transporting the water
from the lake crosses and Reliable agrees to maintain the earthen crossovers
with adequate flashing lights. Clermont agrees to pay the additional expenses
and costs incurred by Reliable due to the relocating of the water storage area.
10.2 Fencing. If it is determined by Clermont that the Lake should have a
fence surrounding it either before or after Reliable has mobilized its
equipment to the Lake, then Clermont, at its own expense, shall immediately
construct a fence around the Lake. If Reliable determines that the Lake
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should have a fence surrounding it, then Reliable shall have the option to
construct the fence itself at its own expense.
10.3 Permits. Clermont shall acquire at its own cost and expense all permits,
certificates, licenses, approval, consents and other authorizations necessary to
allow Reliable to conduct the services contemplated by this Agreement.
l1.RIGHT TO TERMINATE AGREEMENT.
Reliable shall have the option to
terminate this Agreement prior to the expiration of the term stated in paragraph 4
above if any of the following events occur:
i. An extraordinary weather event occurs making it impractical to
complete the project contemplated herein within the term stated.
ii. It is determined at any time that the muck is contaminated, with
hazardous materials or foreign substances rendering the muck
unsaleable, according to empirical data.
iii. Any federal, state or local court ruling or order; or any federal, state or
local authority, governmental or regulatory body or agency rwing or
order requiring the project to be permanently or temporarily (thirty
(30) days or longer) shut down.
12. METHODS OF COLLECTION. TRANSPORT AND DISPOSAL OF MUCK.
12.1 According to Appropriate Laws. Reliable shall conduct its services
rendered herein in accordance with the laws, rules and regulations of the State
of Florida and the United States of America in a good and workman like
manner, and in such a way as to insure full recovery of all the muck that may
practically and profitably be collected or removed from the Lake.
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12.2 Truck Route. All trucks arriving and leaving the Lake will avoid the
Clermont downtown business district and will utilize highway 50.
13. RIGHT TO REMOVE EQUIPMENT AND ASSETS AT TERMINATION OF
AGREEMENT. Reliable shall be given thirty (30) days within which to remove all
equipment and assets from the Lake.
14. INDEMNIFICATION.
14.1. Matters Indemnified Against by Clermont. Clermont agrees to the
extent allowed by law to indemnify and hold Reliable harmless against and in
respect of:
1.
Any loss, liability or damage suffered or incurred by Reliable
because any information, representation of warranty contained herein or
in any document furnished or to be furnished pursuant to this Agreement
by Clermont to Reliable or any of its representatives shall be false or
misleading in any material or respect, or because of the breach or non-
fulfillment of any obligation on the part of Clermont contained in this
Agreement.
2.
Any breach of the representations, warranties and actions set
forth in paragraphs 7 ~nd 9 above.
3.
If the services contemplated herein are shut down due to any
action or inactions on behalf of Clermont, then Clermont shall pay to
Reliable another mobilization fee as outlined in paragraph 2.1 above to re-
start the services contemplated herein.
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15.
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4.
Any changes to the location of the water storage area that result
in additional costs and expenses to Reliable shall be borne entirely by
Clermont.
14.2. Matters Indemnified Against by Reliable. Reliable agrees to indemnify
and hold Clermont harmless against and in respect of:
1.
Any loss, liability or damage suffered or incurred by Clermont
because any information, representation of warranty contained herein or
in any document furnished or to be furnished pursuant to this Agreement
by Reliable to Clermont or any of its representatives shall be false or
misleadin~ in any material or respect, or because of the breach or non-
fulfillment of any obligation on the part of Reliable contained in this
Agreement.
2.
Any breach of the representations, warranties and actions set
forth in paragraph 8 above.
15. MISCELLANEOUS PROVISIONS.
15.1. Notices. Any notice or other communication required or permitted
pursuant to this Agreement shall be in writing and shall be delivered
personally, or by certified, registered or express delivery via the United States
Postal Service or a reputable express delivery courier which maintains records
of delivery, postage or freight prepaid, to the relevant addxess set forth below
or to such other addxess as may be designated by notice from the addxessee.
Any such notice or communication shall be deemed given when so delivered
personally, or, if mailed or delivered by express delivery courier, on the earlier
Muck Removal and Disposal Agreement
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of the date of receipt or one business day after the date of mailing or the
sender's delivery to the express delivery courier.
If to Reliable:
Jack M. Reiner, Jr.
Reliable Peat Company, J. V.
Post Office Box 491440
Leesburg, Florida 34749
With a copy to:
Charles W. Cramer, Esquire
Cramer, Price & de Armas, P .A.
1420 Edgewater Drive
Orlando, Florida 32804
If to Clermont:
Tamara Richardson, City Engineer
City of Clermont
Post Office Box 120219
Clermont, Florida 34712-0219
15.2. Representations and Warranties. All representations, warranties, and
Agreements made by the parties pursuant to this Agreement shall survive the
consummation of the transactions contemplated by this Agreement, without
limitation as to time.
15.3. Severability. If anyone or more provisions of this Agreement or of any
instrument or other document delivered pursuant to this Agreement, or the
application thereof to any person or circumstance, shall to any extent be
invalid or unenforceable, the validity, legality and enforceability of the
remainder of this Agreement, or the application of such provision to persons
or circumstances other than those as to which it is invalid or unenforceable,
shall not be affected or impaired thereby, and each provision of this
Muck Removal and Disposal Agreement
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Agreement shall be valid and enforceable to the fullest extent permitted by
law.
15.4. Construction of Language. The language used in this Agreement and
all parts hereof shall be construed as a whole according to its fair meaning,
and not strictly for or against any party. The words "herein," "hereof,"
"hereunder," and other words of similar import refer to this Agreement as a
whole and not to any particular Section of this Agreement unless specifically
stated otherwise. References to a Section of this Agreement (such as "this
Section") shall mean the entire Section of the Agreement in which that
reference is made (so that a reference in this sentence to "this Section" would
refer to this entire Section 1 0) unless the reference is to a specific subsection of
a Section (such as "this Section 10.4").
15.5. Knowledge. For purpose of this Agreement, "knowledge" shall be
imputed to a party only if the individual representatives of the party to be
charged with such knowledge are actively involved in this transaction and
possess such knowledge at the time of closing hereon.
15.6. Entire Agreement. This instrument, including the Exhibits attached
hereto, which are made a part of this Agreement, contains the entire
Agreement between the parties with respect to the subject matter hereof and all
prior negotiations and Agreements with respect to that subject matter are
merged herein. This Agreement may not be amended or modified except in a
writing signed by both parties.
Muck Removal and Disposal Agreement
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15.7. Choice of Law: Venue. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of Florida.
In the event of any legal or equitable action arising under this Agreement, the
parties hereto hereby agree that jurisdiction and venue for such action shall lie
exclusively within either the state courts of Florida located in Lake County,
Florida, or the United States District Court for the Middle District of Florida,
Orlando Division.
The parties hereby specifically waive any other
jurisdiction and venue.
15.8. Number and Gender. Where appropriate to the construction hereof,
the singular and plural number, and the masculine, feminine and neuter
gender, shall be interchangeable.
15.9. Captions. The headings of the Sections in this Agreement are for
convenience only and shall not be used to construe or interpret the scope or
intent of this Agreement or in any way affect the same.
14.10. Rights Cumulative. All of the parties' rights and remedies under this
Agreement are cumulative and nonexclusive.
15.11. Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed an original for all purposes and
all of which, when taken together, shall constitute a single counterpart
instrument. Executed signature pages to any counterpart instrument may be
detached and affixed to a single counterpart, which single counterpart with
multiple executed signature pages affixed thereto shall constitute the original
counterpart instrument. All of such counterpart pages shall be read as though
Muck Removal and Disposal Agreement
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one and they shall have the same force and effect as if all of the parties had
executed a single counterpart page.
15.12. Binding Effect. This Agreement shall be binding upon and shall inure
to the benefit of the parties and their respective heirs, personal representatives,
successors and assigns.
15.13. Time. Time is of the essence with respect to all matters contained in
this Agreement.
15.14. Dates. In the event any date is specified in this Agreement, or is
computed in accordance with the provisions of this Agreement, as the date by
which the performance of some act is required, and such date falls on a
weekend or legal holiday, the date by which the performance of the act is
required shall be deemed to be the next day which is not a weekend or legal
holiday.
15.15. Attorneys Fees and Costs. In the event of any litigation between the
parties arising .out of or relating to this Agreement, the prevailing party shall
be entitled to recover from the non-prevailing party all costs incurred and
reasonable attorneys' fees, including attorneys' fees in all investigations, trials,
banlcruptcies and appeals.
15.16. Authority to Execute Agreement. The signature by any person to this
Agreement shall be deemed a personal warranty by that person that he or she
has the full power and authority to bind any corporation, partnership, Seller
or other entity on behalf of which he or she purports to act hereunder, and
that the execution, delivery and performance of this Agreement by the entity
Muck Removal and Disposal Agreement
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on behalf of which he or she purports to act hereunder has been du1y
authorized by that entity.
15.17. Additional Representations and Warranties and Satisfaction of
Conditions. Each party hereto will immediately advise the other parties in
writing if (a) any of the representations or warranties of the said party is
untrue or incorrect in any material respect, or (b) said party becomes aware of
the occurrence of any event or state of facts that resu1ts in any of the
representations and warranties of said party being untrue or incorrect as if
said party were then making them.
15.18. Effective Date. The Effective Date hereof shall be the date upon which
the last of Reliable and Clermont have executed this Agreement.
15.19. Joint Drafting. The parties hereby agree that each have played an
equal part in the negotiations and drafting of this Agreement. In the event
any ambiguities should be realized in the construction or interpretation of this
Agreement, the result of those ambiguities shall be equally assumed and
realized by each of the parties to this Agreement.
15.20. Waiver. The waiver of one or more defau1ts by any party to this
Agreement shall not be deemed a waiver of any subsequent default of that
provision of the Agreement or of a default under any other provision of this
Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement or have
caused this Agreement to be executed by and through their authorized representatives,
. effective as of the day and year first set forth above.
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CITY OF CLERMONT
STATE OF FLORIDA
COUNTY OF --L~k..o.
By: ~
P~int Name: ~c::::-~ -. LlLl"'~
TItle: c.. +"1 Me..... "'J~
SWORN TO AND SUBSCRIBED before me this Z. 2. day of JUI\L, 2001, by
-1A.)r.,u SAu-~ , as the tJ+y trljI""SV" of City of Clermont, who /.JL/ is personally
known to me / / produced as identification.
- 4u4. ~~P.~Q
NOTARY PUBLIC
My commission expires:
TERESA S1\JOOARD
MY COMMISSION It CC 948213
EXPIRES: June 25, 2004
Bonded Thru Nollry Public Underwrllllnl
RELIABLE PEAT COMPANY, J. V.
By:d4 m /Z~ ¿
Print Name: JackM. Reiner. Jr.
Title: General Manager
STATE OF FLOJ.UDA
COUNTY OF "'"'ha-I::.R-
SWORN TO AND SUBSCRIBED before me this ~~ day of X, 'i '
20~ by Jack M. Reiner, Jr. as the General Manager of Reliable Peat Company, J.V., who
/ _/ is personally known to me / ~ Produœ~ ~tification.
~~, TERESAS1\JDDARD NOTARY PUBLIC l
š*; :~ MY COMMISSION # cc 948213 My commission expires: I ~ (;2..S ~
. . . - EXPIRES: June 25, 2004 4"
Bonded Thru NoteIY Public Underwrftllrs
Muck Removal and Disposal Agreement
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1 Westgate Plaza
P.O. Box 120219
Clermont, FL
34712-0219
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Phone: 352-394-4081 x300
Fax: 352-394-1452
CITY OF CLERMONT
¡FAX COVER SHEEl
FAX NUMBER TRANSMITTED TO:
326-3688
To:
From:
Re:
Date:
Number of Pages
Including Cover: 19
Jack Reiner, Reliable Peat
Teresa, Deputy City Clerk
Muck Removal & Disposal Agreement
June 22, 2001
Mr. Persons -
Following is copy of the agreement you requested.
Please call if I can be of further assistance.
L~ m~~I~ Æ~T Fffi ~ F~700 SffiI~
~ NAME:
. NUMBER:
D8IE
22-JUN
IlME REMOTE FAX NAME AND NUMBER
16:09 S 3523263688
DURATION EG RESULT
0:08:06 19 OK
VERSION: 01.02
DATE: 22-JUN-01
TIME: 16: 17
DIAGNOSTIC
66384010016A
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