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HomeMy WebLinkAboutC2005-063 - 2/22/2005 - ApprovedLANDFILL SERVICES AGREEMENT THIS LANDFILL SERVICES AGREEMENT (the "Agreement") is made effective as of ~lo~uea~/o1"{ , 2005 by and between City of Corpus Christi, a Texas home rule municipal dorporation ("City") acting through its duly authorized City Manager or City Manager's designee, and BFI Waste Services of North America, Inc., a Delaware corporation ("BFI") acting through its duly authorized officer. RECITALS A City and BFI desire to enter into an agreement pursuant to which BFI will provide Services (as defined below) to City at the Landfill (as defined below) in accordance with the terms and subject to the conditions of this Agreement; and B. City has determined that the provision of such Services by BFI to City are in the vital and best interests of City and the health, safety and welfare of its residents and in accordance with public purposes and provisions of applicable federal, state, county and local laws and ordinances. NOW, THEREFORE, in consideration of the mutual promises contained in this Agreement and of other good and valuable consideration, the receipt and sufficiency of which the parties acknowledge, the parties agree as follows: ARTICLE I. DEFINED TERMS AND INTERPRETATIONS 1.01 Defined Terms. Unless the context otherwise requires, capitalized terms used in this Agreement shall have the meanings assigned to them in this Section 1.01. "Affiliate" of a Person means any other Person controlling, controlled by or under common control with such Person. "ARreement" means this Agreement and all the Exhibits to this Agreement. "Business Day" means any day other than Sunday or a Holiday. "BFI" means BFI Waste Services of North America, Inc., a Delaware corporation. "BFI EQuil~ment" means furniture, rolling stock and other moveable equipment placed by BFI onto the Landfill at its expense, but excludes permanent fixtures. "City" means City of Corpus Christi, a Texas home rule municipal corporation. "City Indemnified Parties" means City and its officers, representatives, employees or agents. 2005-063 02~2/05 M2005-070 BFIWaste Services of N. America "City's Resl~onsibilities" means all of City's obligations pursuant to Section 2.03. "Contract Year" means any year measured from the anniversary of the Initial Operation Date to the end of such year. "Director" means City's Director of Solid Waste & Street Services or an individual designated by the Director of Solid Waste & Street Services. "Disposal" means the discharge, deposit, injection, dumping, spilling, leaking, or placing of any solid waste or hazardous waste ("whether containerized or uncontainerized") into or on any land or water so that the solid waste or hazardous waste or any constituent of the solid waste or hazardous waste may enter the environment to be emitted into the air or discharged into any waters, including groundwaters. "Effective Date" means the effective as of date set forth in the introductory paragraph of this Agreement. ''Environment" or "Environmental" means matters relating to surface waters, groundwaters, soil, subsurface strata and ambient air. "Environmental Law(s)" means any Law and any judicial or administrative interpretation of a Law, including any judicial or administrative order, consent decree or judgment, relating to the Environment, health, safety or Hazardous Materials, including the Comprehensive Environmental Response, Compensation, and Liability Act; the Resource Conservation and Recovery Act; the Hazardous Materials Transportation Act; the Clean Water Act; the Toxic Substances Control Act; the Clean Air Act; the Safe Drinking Water Act; the Atomic Energy Act; the Federal Insecticide, Fungicide and Rodenticide Act; and the Federal Food, Drug and Cosmetic Act; and the state or local equivalents of these Laws. "Fee" means $6.92 per ton of waste for all waste received at the Landfill, as adjusted pursuant to this Agreement. "Governmental Authority" means any federal, state or local government, governmental, regulatory or administrative authority, agency or commission or any court, tribunal, or judicial or arbitral body. "Handled" means owned, leased, had an interest in, collected, generated, transported, stored, handled, recycled, reclaimed, processed, disposed of, or contracted for the disposal of. "Hazardous Materials" means: (a) petroleum and petroleum products, radioactive materials, asbestos in any form that is or could become friable, urea formaldehyde foam insulation, transformers or other equipment that contain polychlorinated biphenyls, and radon gas; or (b) any other chemicals, materials or substances defined as or included in the definition of "hazardous materials," "hazardous wastes," "hazardous substances," "extremely hazardous wastes," "restricted hazardous wastes," "toxic substances," "toxic wastes," "to×ic pollutants," "contaminants," "pollutants," "infectious wastes," "medical wastes," "radioactive wastes," "sewage sludges" or words of similar import under any applicable Law. "Holiday" means any of New Year's Day, Independence Day, Thanksgiving Day or Christmas Day. "Initial Ol~eration Date" means the date on which BFI commences providing the Services. "Landfill" means City's J.C. Elliott Landfill located in Corpus Christi, Texas (the "Elliott Landfill"), and, once the Elliott Landfill has reached permitted capacity and been closed, City's Cefe Valenzuela Landfill located in Nueces County, Texas (the "Cefe Landfill"). "Law" means any federal, state or local statute, law, ordinance, regulation, rule, code, governmental order, requirement or rule of common law, including any Environmental Law. "Losses" means claims, costs, losses, liabilities, damages, injuries, fines, penalties, assessments and expenses, including reasonable attorneys' fees. all litigation expenses, and court costs, "Performance Bond" means the form of security furnished by BFI and BFI's surety for the use and benefit of City as further described in Section 8.06. "Permit" means City's operating permit(s) for the Landfill. ''Person" means any individual, partnership, firm, corporation, limited liability company, association, trust, unincorporated organization, Governmental Authority or other entity. ''Plan" means the Landfill's Site Operating Plan. "POC" means BFI's designated onsite point of contact. "Release" means disposing, discharging, injecting, spilling, leaking, leaching, dumping, emitting, escaping, emptying, seeping, placing or otherwise releasing into, upon or under any land, water or air or otherwise entering into the Environment. "Services" means all of BFI's obligations pursuant to Section 2.02. "TCEQ" means the Texas Commission on Environmental Quality, and any of its predecessor or successor agencies, including the Texas Water Comamssion and Texas Natural Resource Conservation Commission. "Term" has the meaning set forth in Section 2.05. "Waste Accel~tance Hours" means Monday through Friday 7:00 a.m. to 6:00 p.m. and Saturday 7:00 a.m. to 5:00 p.m., but excluding any Holiday, or such other time periods totaling 65 hours per week as may be mutually agreed by the parties from time to time 1.02 Interpretations. (a) Captions. The captions in this Agreement are inserted for convenience only, and shall not constitute a part of this Agreement or be used to construe or interpret any of its provisions (b) Include. The term "include" and similar terms shall be construed as if followed by the phrase "without limitation." (c) Time for Performance. Whenever under the terms of this Agreement the time for performance of a covenant or condition falls upon a Sunday or Holiday, such time for performance shall be extended to the next Business Day. Otherwise, all references herein to "days" shall mean calendar days. (d) Construction of Agreement. The parties have participated jointly in negotiating and drafting this Agreement. If a question of interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement. (e) Laws. Any reference to any Law shall be deemed to refer to the Law, as amended, and to all rules and regulations promulgated thereunder, as amended, unless the context requires otherwise. ARTICLE II. LANDFILL SERVICES, CITY'S RESPONSIBILITIES AND TERM 2.01 Exclusive Right to Provide Services. City hereby grants to BFI the exclusive right to provide the Services during the Term. 2.02 Services Provided by BFI. (a) Services Generally. During the Term, BFI shall provide at its expense all labor, supervision, materials, supplies and equipment to push, pack and cover waste at the Landfill. The Services include the following: (i) Push, pack and cover all waste that has been screened and accepted by City at City's scale house in accordance with the Plan; (ii) bury such waste at the Landfill with a minimum compaction rate of 1000 lbs./cy as reported by Contactor via a certified professional engineer; 4 (iii) meet all requirements for daily operations under the Plan, including supervision and placement of waste delivered by all haulers to the Landfill; (iv) process all clean brush at City's designated location at least once every three months by grinding the brush producing a product that is not more than 6" in length for not less than 95% of the contents of the final product; (v) provide daily dust control and routine blade work maintenance on all unpaved roads within the permitted boundary of the Landfill from the scale house to the working area as required by the Plan (except for dust control required by construction of cells, roads and other capital projects); (vi) if necessary, provide a wet weather area that is able to accept waste in all weather conditions; (vii) mow/weed all of the property within the permitted area of the Landfill; (viii) provide erosion maintenance (post rain) for active and intermediate cells filled by BFI (but not for cells filled by City) and for areas in cell 9 of the Elliott Landfill east of Survey Station 14+00; (ix) immediate cover; provide maximum waste grade elevation in all areas prior to (x) maintain the surface water control berm system; (xi) clean litter and wind blown waste and roadways as designated by the Plan; (xii) pull tires and metal from the active areas and transport them to appropriate areas on site (but not grind or split tires); (xiii) provide traffic control onsite after the scale house; (xiv) provide intermediate cover for all operating cells filled after the Initial Operation Date and maintain intermediate cover for all cells already covered at the Ialtial Operation Date (but not for the Elliott Landfill after site closure); (xv) at the Elliott Landfill, transfer small volumes of waste delivered by the general public on wet weather days from the bad weather public pad to the working face; (xvi) if BFI is unable to provide the Services at the Landfill, provide an alternative method of disposal at a disposal facility of BFI or its Affihate that is authorized to accept such waste at a price to be negotiated between the parties that will not exceed the current rate in City's existing supply agreements; and (xvii) provide additional work not specified in this Agreement as requested by City at rates specified in Exhibit A. (b) Hours. BF1 shall provide the Services during Waste Acceptance Hours, but may provide the Services during extended hours if it chooses and if this is in compliance with applicable Laws and the Plan. In addition, City may request that BFI provide the Services during extended hours for the acceptance of waste if this is in compliance with applicable Laws and the Plan. Upon any such request by City, City and BFI shall negotiate in good faith with respect to the extended hours and the Fee applicable to Services provided during extended hours requested by City. (c) Location of Services. Until the Elliott Landfill has reached permitted capacity, BFI shall provide the Services at the Elliott Landfill and thereafter shall provide the Services at the Cefe Landfill. (d) Storms and Other Disasters. The Services include any increased volume resulting from a flood, hurricane or other act of God over which BFI has no control that is not subject to the force majeure provisions of Section 8.05. (e) Complaints. (i) BF1 shall give all customer complaints prompt and courteous attention. BFI shall investigate all complaints and, if the allegations are verified, take reasonable means to correct the complaint within 24 hours after the complmnt is received. The reasonableness of the means to correct the complaint will be determined in the reasonable discretion of the Director. (ii) BFI shall provide a monthly summary of all customer complaints to the Director by the 15th day of each following month. The report must include the customer's name, address, complainffinquiry, investigation summary, and action taken by BFI. (f) Personnel. (i) BFI shall assign a qualified POC to be in charge of the Services at the Landfill and furnish the name or names of the persons to City. The POC must have full authority to immediately respond to and resolve complaints or problems. (ii) BFI employees must at all times wear clean uniforms bearing BFI's (or its Affiliate's name) and some means of identification such as name tag or identification card. (iii) Each of BFI's drivers must carry a valid Texas operator's license for the type of vehicle the driver is operating. (iv) BFI shall at all times have competent personnel managing the Services. BFI shall have a person on site 90% of the Waste Acceptance Hours who holds a current Class A Solid Waste Technician Letter of Competency issued by the TCEQ under Title 31, TAC, Subchapter M, Solid Waste Technician Training and Certification Program. (g) Office. BFI shall maintain an office or other facilities at the Landfill through which BFI can be contacted. At the Elliott Landfill, BFI shall supply its own office trailer for its use and for use of City (with such trailer to be deemed a permanent fixture and, therefore, not to be BFI Equipment). At the Cefe Landfill, City shall supply a maintenance shop and offices for BFI's use. (h) Point of Contact. All dealings, contacts, etc., between BFI and City shall be directed by BFI to the Director and by City to BFI's POC or the District Manager. (i) Health and Safety. (i) BFI shall continuously control and minimize fire, smoke, blowing papers and trash, odor, rodents, flies and all other public health menaces and pests on and around the Landfill. (ii) BFI shall cover the Landfill at the end of each day during which the Landfill is open with alternate daily cover or other TCEQ approved cover. (iii) BFI shall keep the size of the "active face" of the Landfill to a minimum, (iv) BFI shall provide operating and safety training for all employees and comply with all Occupational Safety and Health Administration (OSHA) regulations. City has no liability or responsibility to assure compliance by BFI with any or all OSHA regulations. O) Reports. BFI shall deliver to City a written report regarding airspace volume calculations for the Landfill. The first report shall be submitted on or before December 31, 2006, and reports for each subsequent year shall be submitted on or before December 31st of each year. (k) Comoliance. BFI shall provide all the Services in accordance with the Plan (1) Employment of City Emvloyees. (i) BFI shall offer full-time employment to all full-time City employees who will be displaced by this Agreement as listed on Exhibit B, subject to each such employee meeting BFI's minimum job requirements (which shall be job- related and non-discriminatory). Such employment need not be at the Landfill, but must be within Nueces County, Texas. (ii) BFI may terminate any employee so hired at any time for cause, with "cause" to be determined in BFI's sole and absolute discretion. (iii) The terms of the employees' employment shall be in BFI's sole and absolute discretion, except that: (A) the hourly wage of each such employee shall be the same or higher than the hourly wage shown on Exhibit B for at least one year after the Initial Operation Date (if such employee remains employed that long); (B) there shall be no probationary period; (C) each employee's years of service with City shall be credited as years of service with BFI to the extent permitted under BFI's employee benefit plans; and (D) the employee benefits shall commence with the first day of employment with BFI to the extent permitted under BFI's employee benefit plans. (iv) BFI may interview such employees within 30 days after the Effective Date. City and BFI shall meet with such employees within 20 days after the Effective Date to explain the comparison of City and BFI benefits to the employees. BFI shall leave the offers to such employees open for seven days and may withdraw the offer to a particular employee if the employee does not accept it within such period. 2.03 City's Responsibilities. City shall provide at its expense all labor, supervision, materials, supplies, equipment and resources to perform obligations that include the following with respect to the Landfill: (a) all regulatory programs (other than BFI's compliance with the Plan when BFI provides the Services), including: (i) groundwater, surface water and air monitoring; (ii) construction, operation, and maintenance of storm water facilities, except storm water diversion berms on the active disposal areas; (iii) installation and operation of the methane gas collection system; (iv) preparation and submittal to applicable Governmental Authorities of all reports and documents required by Law to be made and filed for any and all purposes relating to the Landfill, including annual reports and leachate and discharge monitoring reports; and (v) disposal of leachate; (vi) provide all financial assurances required by applicable Environmental Laws or by any Governmental Authority; (b) construction of capital improvements, including: (i) groundwater and landfill gas collection, monitonng and control; (ii) development of waste cells; (iii) construction of roads and bridges; (iv) the Cefe Landfill; design and construction of the maintenance facility and office at (v) construct and perform all repairs to paved roads and, with respect to all other roads, construct and perform all repairs beyond the routine blade work maintenance provided by BFI as part of the Services, with the roads included to be all those necessary for the Landfill, including those from the gate to the scale house to the working area and to the Landfill's office and maintenance shop facilities; (vi) provide any other necessary or desired construction of and capital improvements to the Landfill or the Landfill property; (vii) overall engineering of the Landfill and the Landfill property; and (viii) consulting with BFI in advance and giving BFI an opportunity to comment on all such capital improvements. (c) provide closure and post-closure care of the Landfill; (d) operate the gate and the scale house, including setting disposal rates, billing and collecting tipping and other fees from customers, weighing the incoming waste, screening waste to determine whether it is acceptable for disposal at the Landfill, establishing all rules, regulations and procedures for the Landfill; (e) perform all household hazardous waste and appliance disposal and create a drop-off location for such waste within the Landfill property; (f) mulch wood waste after grinding by BFI and allow BFI to use wood waste for daily cover or other purposes; (g) operate the citizens' transfer/collection station at the Elliott Landfill when the Cefe Landfill opens; (h) provide on the Cefe Landfill property within one half mile of the active face of the Landfill onsite borrow pits or stockpiles containing all cover materials necessary for BFI to push, pack and cover waste, including daily and intermediate cover of the active face of the Landfill, in accordance with the Plan (with it being understood that BFI is satisfied with the current soil recovery at the Elliott Landfill and that the above requirements do not apply to the Elliott Landfill); (i) arrange for proper disposal of tires that BFI pulls from the active areas, and transport such tires to appropriate areas on site; (j) provide all utilities (including basic telephone service but excluding long distance telephone services, which BFI shall provide) necessary for City's operation of the Landfill and BFI's Services; (k) pay all fees, assessments, taxes, and other impositions applicable to all waste disposal at the Landfill to all Govemmentai Authorities to whom such fees, assessments and taxes are payable; (1) pay all other fees, assessments, taxes, and other impositions applicable to the Landfill (other than taxes imposed on the BFI Equipment or any other property of BFI located within the Landfill or taxes imposed by the Federal Government, State of Texas, or a local governmental entity other than City that are attributable to BFI's ~ncome from business operations at the Landfill), including those on the office trailer described in Section 2.02(g); (m) provide adequate access to the Landfill and the Landfill property to customers and to BFI; (n) construct a customer's convenience center for individual non-hazardous small load drop-off; (o) cooperate with BFI in the performance of the Services and be available for consultation with BFI at such reasonable times with advance notice as to not conflict with its other responsibilities; (p) assist BFI in obtaining data or documents from public officers or agencies, and from private citizens and business firms, whenever such material is necessary for the completion of the Services; (q) consult with BF[ before submitting any proposed amendments to the Plan to the TCEQ; and (r) dust control as required by the Plan with respect to the construction of cells, roads and other capital projects. 2.04 Compliance with Permit, Law, Etc. (a) Compliance with Laws and Plan. City is responsible for ensuring that the use and operation of the Landfill complies with ali applicable Laws. BFI, however, shall perform the Services in accordance with applicable Laws and the Plan. (b) Permit and Costs. City shall provide the Permit and BFI shall provide the Services under the authority of City's Permit, with City remaining the "operator" at all 10 times. BFI shall cooperate and assist City, as necessary, in maintaining the Permit. City shall be responsible for the cost of all testing and monitoring required by and associated with Landfill operations and all submittal costs of tests required under existing regulations of any local, state or federal agencies, including the existing requirements of Subtitle D. (c) TCEO Fees. City shall be responsible for the payment of all existing fees required by the TCEQ to operate the Landfill. (d) Violations of Plan. BFI shall be responsible for any violation by BFI of the Plan or applicable Laws. (e) Third Party Inspections. Any state or federal agency having jurisdiction over the health and safety of the Landfill may inspect it at any time or times that may be reasonable for the inspection, preferably during Waste Acceptance Hours. 2.05 Term. Unless earlier terminated pursuant to the provisions of this Agreement, the term of this Agreement (the "Term") commences on the Effective Date and continues for a period of 20 years after the Initial Operation Date. BFI may renew this Agreement for an additional 20 years (which if so renewed shall be deemed part of the "Term") on the same terms and conditions as set out in this Agreement. To exercise its renewal option, BFI must give City written notice of renewal at least six months before the last day of the initial Term. 2.06 City's Rights. (a) Entry. Any officer or authorized employee of City may enter upon the Landfill without notice at any time, for any purpose incidental to City's retained rights of and in the Landfill; provided, however, that any such entry shall not interfere with the Services. (b) Keys; Phone Numbers. BFI shall provide City with keys to the Landfill and a current list of names and phone numbers for use by City in the event of an emergency. (c) Lines and Easements. City retains the right to use or cross the Landfill with utility lines and easements. City shall use reasonable care in locating the utihty lines and easements to minimize damage to the Landfill, and shall consult with BFI to ensure that the work done on such utility lines or easements does not disrupt the operating portion of the Landfill or increase BFI's costs of providing the Services. (d) Examination of Books and Records. (i) City reserves the right to examine or cause to be examined, at any reasonable time upon reasonable request, the books, papers and records of BFI solely to the extent they relate to verifying BFI's compliance with the terms of this Agreement. iI (ii) If City needs copies of any such records it has reviewed, before any copy of a BFI record is removed from BFI's offices, BFI will be requested to review the copy to determine if the copy contains any privileged commercial information, and to mark each sheet of paper that contains any privileged commercial information with a notation that it contains proprietary information that should not be made available to the public. (iii) All copies with the proprietary information notation will be treated by City as privileged commercial information under Section 552.110 of the Texas Public Information Act, Chapter 552, Texas Government Code. (iv) If a request is received for the information, the request and information will be forwarded to the Attorney General for a determination under Section 552.301 of the Act. (v) The City will withhold the information from the requester under Section 552.305 of the Act, until after the Attorney General's decision is received. (vi) The City shall not release any information unless directed to do so by the Attorney General. ARTICLE II1. FEES 3.01 Fees. (a) Generally. During the Term, City shall pay BFI the Fee for all waste received at the Landfill. (i) For purposes of determining the amount due BFI from City, City shall provide BFI with a detailed listing of all transactions at the Landfill within five Business Days after the end of each calendar month, with such listing being sufficient to show the monthly tonnage upon which the Fee for the month is based. BFI shall provide City with a bill based on such listing within five Business Days after receipt of the listing from City. Fee payments shall be due by the last Business Day of the month following the calendar month in which the waste was received at the Landfill. (ii) After reasonable advance notice given [o City, City shall permit BFI's designated representatives to have access to the Landfill records, during Waste Acceptance Hours and at BFI's expense, for inspection and copying of City's books and records pertaining to the determination of the tonnage in question. (iii) The Fee shall not apply to up to 2,000 tons of waste per year from special events to be designated by City The parties may increase this volume for any particular year by mutual agreement. 12 (b) Section 2.02(b) Fee. The Fee applicable to Services provided dunng extended hours requested by City pursuant to Section 2.02(b) shall be governed by Section 2.02(b), and is not the amount set forth in Section 3.01(a). 3.02 Annual Adjustment of Fee. The Fee shall be increased or decreased annually, commencing on the first anniversary of the Effective Date and on that same date for each subsequent year during the term of this Agreement, by the greater of the pementage increase or decrease, if any, in the Consumer Price index published by the Bureau of Labor Statistics of the United States Department of Labor, All Items, for urban wage earners and clerical workers for the South Urban area. 3.03 Volume-Based Adjustment of Fee. (a) Minimum Tonnage. (i) The Fee is based upon a minimum tonnage into the Landfill of 400,000 tons per year. (ii) If the tonnage for any Contract Year is less than 400,000 tons, City shall pay BFI, within one month after the end of such Contract Year, an amount equal to the Fee multiplied by the number of tons less than 400,000 for such Contract Year. Notwithstanding the foregoing, however, the minimum tonnage required by Section 3.03(a)(i) and the preceding sentence is 375,0(10 tons for the first year that the Cefe Landfill accepts waste. (iii) The minimum tonnage under this Agreement, as specified in Sections 3.03(a)(i) and 3.03(a)(ii), includes the tonnage of waste that BFI (or its Affiliate) is required to deliver to the Landfill under the applicable one of the separate waste disposal agreements attached as Exhibit C. (iv) If any Governmental Authority enacts a mandatory recycling Law applicable to the City that reduces the volume of waste that the City is able to direct to the Landfill, then: (A) the parties shall negotiate in good faith an appropriate reduction of the minimum tonnage required by Section 3.03(a)(i) with such reduction to be based on the recycling volumes being collected; (B) the parties shall negotiate in good faith an appropriate reduction of the tonnage of waste that BFI (or its Affiliate) is required to deliver to the Landfill under the applicable one of the separate waste disposal agreements attached as Exhibit C; and (C) the parties shall negotiate in good faith an arrangement pursuant to which BFI (or its Affiliate) is entitled to receive all waste within the City that is diverted for recycling. (b) Maximum Tonnage. (i) The Fee is based upon a maximum tonnage into the Landfill of 1,700 tons per day. (ii) If for four days during any calendar month the tonnage into the Landfill equals or exceeds 1,700 tons per day, the Fee is $10.92 per ton for each ton over 13 1,700 tons per day rather than $6.92 per ton all days in such month (including the first four days) where the tonnage into the Landfill equals or exceeds 1,700 tons per day; provided, however, that the Fee is $9.92 per ton for each ton over 1,700 tons per day rather than $10.92 per ton if the tonnage averages at least 2,200 tons per day for all such days where the tonnage into the Landfill equals or exceeds 1,700 tons per day. (iii) Notwithstanding Sections 3.03(b)(i) and 3.03(b)(ii), City may give BFI 30-day wriUen notice of City's intent to increase the tonnage to mom than 1,700 tons per day for at least one year and, if such notice is given: (A) the Fee reverts to $6.92 per ton during the period specified in City's notice; (B) at the end of each month during the period specified in City's notice, in addition to the Fee owed for tonnage into the Landfill, City shall pay BH the Fee multiplied by the number of tons deficient for the month; and (C) the provisions in Sections 3.03(b)(i) and 3.03(b)(ii) again apply if after the completion of the period specified in City's original notice, City gives BFI 30-day written notice that of City's intent to decrease the tonnage to less than 1,700 tons per day. 3.04 Adjustment of Fee for Change in Laws, Permit or Plan. BFI shall have the right to increase the Fee from time to time to cover any increase in its costs to provide the Services as a result of a change in any applicable Laws, in the Permit or in the Plan. Any such increase shall be effective upon one month's written notice by BFI to City, unless City objects in writing to such increase (with City not to unreasonably object). ARTICLE IV. IMPROVEMENTS AND OWNERSHIP 4.01 Ownership of Improvements and BFI Facility and Equipment- Title to all improvements to the Landfill (including those pursuant to Section 4.02 and the office trmler pursuant to Section 2.02(g)) shall remain the property of City, subject to the rights of BFI to use such improvements as set forth in this Agreement. Notwithstanding the foregoing, however, BFI may bring the BFI Equipment and the BFI Facility onto the Landfill, and such BFI Equipment and BFI Facility shall be the property of BFI and may be removed by BFI at any time. 4.02 Improvements. (a) By City. Without first consulting with BFI, City shall not alter, add to or improve the improvements or the Landfill if the same would (a) increase BFI's costs of providing the Services, or (b) adversely affect the structural integrity, size, overall capacity or daily capacity of the Landfill. In addition, if City does any of the same and it increases BFI's costs of providing the Services, BFI shall have the fight to increase the 14 Fee from time to time to cover such increase in its costs. Any such increase shall be effective upon one month's written notice by BFI to City, unless City objects in writing to such increase (with City not to unreasonably object). (b) By BFI. Without the prior written consent of City, during the Term BFI shall not alter, add to or improve the improvements or the Landfill without the prior written consent of City. To assist City in determining whether to grant such consent, BFI shall submit the plans and specifications for any desired alteration, addition or improvement to City for review. If City consents to the alteration, addition or improvement, then BFI shall obtain all required permits for the construction and the construction shall be subject to inspection by City and its designated representatives. The cost of any alteration, addition or improvement constructed by BFI shall be borne by BFI; provided, however, that City shall promptly reimburse BFI for any of the same that are included within City's Responsibilities. ARTICLE V. ASSIGNMENT 5.01 Assignment. BFI may assign this Agreement or any portion thereof upon first obtaining the prior written consent of City acting through its City Counsel, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, BFI may without notice to or consent of City, collaterally assign the Agreement to any lender to BFI or any of its Affiliates. City may, upon written notice to BFI but without BFI's prior written consent, assign all or any portion of this Agreement for any lawful purpose; provided, however, that such assignment shall not relieve City of any obligation under this Agreement without the consent of BFI. 5.02 Release of BFI's Liability. If an assignment of this Agreement shall be made by BFI or any successor of BFI, the assignee shall be subject to the same terms and conditions contained in this Agreement, and BFI or any successor herein so assigning and conveying shall thereafter be forever released and discharged from this Agreement and from the agreements and covenants contained in this Agreement if the assignee covenants to assume all obligations and duties of BFI under this Agreement. ARTICLE VI. INSURANCE; INDEMNITY 6.01 Insurance. (a) Generally. BFI shall secure and maintain at BFI's expense, during the Term, insurance of the type and with the amount of coverage shown on the attached Exhibit D, which is incorporated in this Agreement by reference. (b) Certificate of Insurance. At least ten Business Days prior to the commencement of any Services at the Landfill, BI:ri shall furnish an original completed Certificate(s) of Insurance to the Director, which have been completed by an agent 15 authorized to bind the named underwriter(s) and their company to the coverage, limits, and termination provisions shown on the Certificate(s) of Insurance, and which furnish and contain all required information referenced or indicated on the certificate(s). (i) The original certificate(s) must have the agent's signature, including the signer's company affiliation, title, and phone number, and be mailed directly from the agent to the Director. (ii) City has no duty to pay or perform under this Agreement until the certificate(s) have been delivered to the Director, and no officer or employee, other than City's Risk Manager or City Manager, have authority to waive this requirement. (c) City reserves the right to review the insurance requirements of this Section during the effective period of this Agreement and any extension or renewal of this Agreement and to modify insurance coverage requirements and their limits when deemed necessary and prudent by the Risk Manager based upon changes in statutory law, court decisions, or circumstances surrounding this Agreement. (d) BFI's financial integrity is of interest to City, therefore, subject to BFI's right to maintain reasonable deductibles in such amounts as are approved by City's Risk Manager, BFI shall obtain and maintain in full force and effect for the duration of this Agreement, and any extension of this Agreement, at BFI's sole expense, insurance coverage written on an occurrence basis, by companies authorized and admitted to do business in the State of Texas and rated B+ or better by A.M. Best Company and/or otherwise acceptable to City. (e) BFI may not allow any subcontractor to commence work until all worker's compensation insurance required of the subcontractor has been acquired. BFI shall see that subcontractors have acquired insurance, otherwise, the payment of monthly Fees under Section 3.01 to BFI will be placed on hold until subcontractor(s) comply with insurance requirements. (f) BFI agrees that with respect to the above required insurance, all insurance contracts and Certificate(s) of Insurance will contain the following required provisions. (i) Show City (City, for this purpose, is defined as the municipal corporation, its elected officials, officers, directors, employees, agents, and representatives) as additional insureds (as the interests of each insured may appear), as to all applicable coverages respects operations and activities of, or on behalf of, the named insured performed under Agreement with City, for the commercial general liability coverage. (ii) BFI's insurance must be deemed primary with respect to any insurance or self insurance carried by City for liability arising out of operations under the Agreement with City. (iii) Workers' compensation and employers' liability policy must provide a waiver of subrogation in favor of City except for the sole negligence of City. I6 (iv) BFI's Insurance Representative shall notify City, in writing, in the event of any notice of cancellation, non-renewal, or material change in coverage. (A) The written notice of any notice of cancellation or non- renewal must be given not less than thirty (30) days prior to the cancellation or non- renewal. (B) The written notice of any cancellation due to non-payment of premiums must be given not less than ten (10) days prior to the cancellation for non- payment of premiums. (C) The written notice for cancellation due to non-payment of premiums must be accompanied by a replacement Certificate of Insurance or Reinstatement Notice of Coverage. (D) All written notices under this subsection shall be given to City at the following address: City of Corpus Christi Director, Solid Waste & Street Services 2525 Hygeia Street P.O. Box 9277 Corpus Christi, Texas 78469-9277 (g) If BFI fails to maintain the insurance coverage required by this Section and Exhibit D, or fails to secure and maintain the required endorsements, City may obtain such insurance, and deduct and retain the amount of the premiums for the insurance from any sums due under the Agreement. (i) However, procuring of insurance by City is an alternative to other remedies City may have, and is not the exclusive remedy for failure of BFI to maintain the insurance or secure an endorsement. (ii) In addition to any other remedies available, City may require BFI to stop Services under this Agreement, or to withhold any payment(s) which become due and payable to BFI under this Agreement, until BFI demonstrates comphance with the requirements of this Section. (h) Nothing in this Section may be construed as limiting in any way the extent to which BFI may be held responsible for payments of damages to persons or property resulting from BFI's or its subcontractors' performance of the Services under this Agreement. (i) City may declare BFI in default of this Agreement if more than 30 days have elapsed since original date of requested insurance documents. (j) If BFI's worker's compensation insurance coverage for its employees working at the Landfill is terminated or cancelled for any reason, and replacement 17 worker's compensation insurance coverage meeting the requirements of this Agreement is not in effect on the effective date of cancellation of the worker's compensation insurance coverage to be replaced, then any BFI employee not covered by the required worker's compensation insurance coverage may not perform any Services at the Landfill. (k) In accordance with other requirements of this Agreement, BFI may not permit subcontractors or others to work at the Landfill, unless all individuals working at the Landfill are covered by worker's compensation insurance and unless the required documentation of such coverage has been provided to BFI and the Director. (1) (i) In the event of an accident resulting from the Services or occurring on the portion of the Landfill on which BFI is providing the Services, BFI shall: (A) promptly provide the City with a brief description of the accident, including the date of the accident and the persons involved; and (B) furnish the City with copies of all non- confidential reports to any independent third parties relating to the accident at the same time that such reports are forwarded to such independent third parties. Independent third parties shall not include BFI or its Affiliates' employees, agents, insurers, attorneys or other representatives, and in no event shall BFI be obligated to provide any internal report, any report that is privileged or constitutes attorney work product, or any report that is not forwarded to an independent third party. It shall be BFI's primary responsibility for immediately notifying the carriers of any or all insurance under this Agreement in the event of a known loss or claim presented to BFI by the City or a third party and resulting from the Services or occurring on the portion of the Landfill on which BFI is providing the Services. (ii) In the event of an accident resulting from the City's Responsibilities or occurring on the portion of the Landfill on which the City is performing the City's Responsibilities, the City shall: (A) promptly provide BFI with a brief description of the accident, including the date of the accident and the persons involved; and 03) furnish BFI with copies of all non-confidential reports to any independent third parties relating to the accident at the same time that such reports are forwarded to such independent third parties. Independent third parties shall not include the City or its employees, agents, insurers, attorneys or other representatives, and in no event shall the City be obligated to provide any internal report, any report that is privileged or constitutes attorney work product, or any report that is not forwarded to an independent third party. It shall be the City's primary responsibility for ~rnmediately notifying the carriers of any or all insurance under this Agreement in the event of a known loss or claim presented to the City by BFI or a third and resulting from the City's Responsibilities or occurring on the portion of the Landfill on which the City is performing the City's Responsibilities. (m) BFI shall obtain an endorsement to the applicable insurance policy, signed by the insurer, stating: "In the event of cancellation, each insurer covenants to mail prior written notice of cancellation to: 18 "1. Name: City of Corpus Christi Director, Solid Waste & Street Services "2. Address: 2525 Hygeia Street P.O. Box 9277 Corpus Christi, Texas 78469-9277 "3. Number of days advance notice: 30" (n) At least ten Business Days prior to the commencement of any Services at the Landfill under this Agreement, BFI shall provide the Director with a certificate of insurance certifying that BFI provides worker's compensation insurance coverage for all employees of BFI employed at the Landfill under this Agreement. (o) BFI shall obtain an endorsement to the applicable insurance policy, signed by the insurer, stating that City is an additional insured under the insurance policy. The City need not be named as additional insured on worker's compensation coverage. 6.02 Indemnification. (a) BFI agrees to indemnify, defend and hold the City Indemnified Parties harmless from and against any and all Losses (and BFI shall bear the cost of one firm of attorneys selected by BF1, but reasonably satisfactory to the City Attorney, in connection with such defense) paid, incurred or suffered by City Indemnified Parties to the extent resulting from or incident to, arising out of, caused by, or in any way connected with, either proximately or remotely, wholly or in part: (i) BFI's performance under this Agreement; (ii) BFI's use of the Landfill and any and all activities associated with BFI's use of the Landfill under this Agreement; (iii) The violation by BFI, its officers, employees, agents, or representatives of any Law pertaining, directly or indirectly, to this Agreement; (iv) The exercise by BFI of its rights under this Agreement; (v) Any intentional or negligent act or omission act or omission on the part of BFI, its officers, employees, agents, or representatives pertaining to this Agreement; or (vi) Any breach of the representations, warranties or covenants of BF1 in this Agreement. 19 The obligation to defend includes the obligation to investigate and settle or otherwise dispose of third party claims. (b) Notwithstanding the foregoing, however, City acknowledges and agrees that BFI shall have no responsibility or liability with respect to: (i) Any Release or Handling of Hazardous Materials or violation of Environmental Laws (other than those caused by the negligent act or omission of BFl), or (ii) Any Environmental condition existing at, on, under or above the Landfill (including those relating to soil and groundwater contamination, on-site waste placement, air emissions, etc.), except to the extent caused by the intentional or negligent act or omission of BFI. ARTICLE VII. REPRESENTATIONS, WARRANTIES AND COVENANTS 7.01 Representations, Warranties and Covenants of City. City makes the following representations, warranties and covenants to, with and for the benefit of BFI, its successors and assigns: (a) City is a home role municipal corporation duly organized and validly existing under the Laws of the State of Texas with full legal right, power, and authority to enter into and perform its obligations under this Agreement. (b) City has fully authorized the execution and delivery of this Agreement and has duly executed and delivered this Agreement. This Agreement constitutes legal, valid and binding obligations of City, enforceable against City in accordance with its terms. (c) No approval, authorization, order or consent of, or declaration, reg/stration or filing with, any Governmental Authority is required for the valid execution, delivery and performance of this Agreement by City, except such as have been duly obtained or made. (d) City has made available to BFI all engineering, geologic and other similar reports, documentation, plats and maps in its possession or control relating to the Landfill and that would affect the provision of the Services by BFI. (e) No encumbrance with respect to Environmental liability has been imposed against City or the Landfill under any Environmental Law or other applicable Law, and no facts or circumstances exist which would give rise to the same. Further, no portion of the Landfill is listed on the CERCLIS list or the National Priorities List of Hazardous Waste Sites or any other similar list maintained by any Governmental Authority, and City: (i) is not listed as a potentially responsible party with respect to the Landfill or as a 20 result of the operation by any Person of the Landfill under any Environmental Law or other applicable Law; (ii) has not received a notice of such listing; and (iii) has no knowledge of any facts or circumstances which could give rise to such a listing. (13 Except as disclosed on Exhibit E, any underground or above-ground storage tanks, and piping associated with such tanks, containing Hazardous Materials, petroleum products or wastes or other hazardous substances regulated by 40 CFR 280 or other Environmental Law or other applicable Law located at the Landfill have been used and maintained in material compliance with all Environmental Laws or other applicable Laws. (g) The Landfill is fully licensed, permitted and authorized to carry on its current and contemplated business under the Permit, all Environmental Laws and all applicable Laws (including zoning and land use requirements). City has furnished BFI with a true and complete copy of the Permit, Permit applications, and subsequent amendments to the Perrmt. All records and correspondence between City and the Texas Department of Health and the TCEQ are of public record and available in Austin, Texas. (h) City knows of no reason that might be the basis for the revocation or suspension of any of the Permit or any of the Landfill's other permits, licenses, zoning variances or other approvals. (i) No action is pending or, to the best of City's knowledge, threatened, against City or any other Person relating to the Landfill or the transactions contemplated by this Agreement, at Law or in equity. City has not received notice of any of the above, and, to the best of City's knowledge, no facts or circumstances exist which would give rise to any of the foregoing. (j) BFI has adopted a Drag Free Workplace and drug testing policy that applies to BFI's employees at the Landfill, which substantially conforms to or exceeds the requirements in the City's policy. 7.02 Representations, Warranties and Covenants of BFI. BFI makes the following representations, warranties and covenants to, with and for the benefit of City, its successors and assigns: (a) BFI is a limited partnership duly organized and validly existing under the Laws of the state of its organization with full legal right, power, and authority to enter into and perform its obligations under this Agreement. (b) BFI has fully authorized the execution and delivery of this Agreement and has duly executed and delivered this Agreement. This Agreement constitutes legal, valid and binding obligations of BFI, enforceable against BFI in accordance with its terms. (c) No approval, authorization, order or consent of, or declaration, registration or filing with, any Governmental Authority is required for the valid execution, delivery and performance of this Agreement by BFI, except such as have been duly obtained or made. 21 (d) BFI shall not use the Landfill for any purpose other than providing the Services or as otherwise contemplated in this Agreement without City Manager's prior written approval. (e) BFI shall not incur any debts or obligations on the credit of City during the Term. (f) BFI shall not permit any mechanic's lien, materialman's lien, personal property tax lien, or any other lien to become attached to the Landfill, or any part or parcel of the Landfill, or the improvements on the Landfill, by reason of any work or labor performed by any mechanic, materials furnished by any materialman, or for any other reason. (g) BFI shall not exhibit, inscribe, paint, erect, or affix any sign at, on, or about the Landfill without City's prior written approval. City may require BFI to remove, repaint, or repair any signs allowed within one month after City's written demand to do so. (h) BFI will not discriminate nor permit discrimination against any person or group of persons, with regard to employment and the provision of services at, on, or ~n the landfills, on the grounds of race, religion, national origin, marital status, sex, age, disability, or in any manner prohibited by the laws of the United States or the State of Texas. BFI acknowledges City reserves the right to take the action as the United States may direct to enforce this covenant. (i) BFI has adopted company wide drug and violence policies that apply to BFI's employees at the Landfill. BFI agrees to implement work roles at the Landfill that will substantially conform to or exceed the requirements in the City's Violence in the Workplace Policy. BFI shall pay City in a lump sum payment concurrently with BFI's commencement of the Services for all equipment that BFI will purchase from City, with the equipment and the prices for such equipment listed on Exhibit F; provided, however, that BFI shall have no obligation to purchase any such equipment that City does not maintain according to the manufacturers' specifications between November 24, 2004 and such commencement of the Services, and that the lump sum price shown on Exhibit F shall be reduced accordingly for any piece(s) of equipment that are not purchased pursuant to this proviso. (k) BFI acknowledges that it shall make its own analysis of the condition of the Landfill and that it is accepting the Landfill in its "AS IS" condition. Notwithstanding the foregoing, however, BFI does not assume, and hereby disclaims, any liability for which it has no obligation or liability pursuant to Section 6.02. ARTICLE VIII. 22 DEFAULT 8.01 Default by City. Any one or more of the following events shall constitute an Event of Default by City under this Agreement: (a) City fails or refuses to pay any money or perform any indemnity or other act which it is obliged to pay or perform under this Agreement which is not cured by City within one month after receipt of written notice from BFI; provided, however, that if such default is of such a nature that it cannot be reasonably cured or remedied within such one month period, but City shall have in good faith cormmenced curing or remedying such default within such period and shall thereafter diligently proceed therewith to completion, the default shall not be an Event of Default until the expiration of any such reasonable period, which, in no event, shall extend longer than four months after receipt by City of such notice; (b) City files for protection under the US Bankruptcy Code and fails to make payments when due to BFI; or (c) Any material representation or warranty made by City to BFI herein is false, incorrect or misleading. 8.02 BFI's Remedies. Upon or after the occurrence of any Event of Default specified in Section 8.01, BFI may, at its option, do any or all or any combination of the following: (a) Perform at City's expense any such act required to be performed by City under the Agreement and any amounts advanced by BPI for such purposes shall be due from City to BPI within one month after notice by BFI to City of any such payment, with interest at the prime interest rate on the date of the default from the date of payment thereof by BFI until repayment thereof to BFI by City. (b) Terminate this Agreement. (c) Pursue against City any remedy available at Law or in equity. 8.03 Default by BFI. Any one or more of the following events shall constitute an Event of Default by BPI under this Agreement: (a) BFI fails to commence the Services within three months after the Effective Date; (b) BFI completely ceases to provide the push, pack and cover Services for a continuous period of 24 hours after the Services have commenced and fails to provide an alternative disposal facility that will accept the waste (from both City and City's Landfill customers) at a rate per ton to City equal to the then current Fee less the documented increase in City's costs resulting from disposing at the alternate disposal facility rather than the Landfill (as such increased costs are offset by any documented decrease in City's costs resulting from disposing at the alternate disposal facility rather than the Landfill); 23 (c) BFI fails to maintain the insurance required by Section 6.01; (d) BFI (or its affiliate) fails to either deliver the volume required by the applicable one of the separate waste disposal agreements attached as Exhibit B or to pay for any deficient volume as required by such agreement, and such default constitutes grounds for termination under such agreement; (e) BFI fails or refuses to pay any money or perform any indemnity or other act which it is obliged to pay or perform under this Agreement which is not cured by BFI within five Business Days after receipt of written notice from City Manager; provided, however, that if such default shall be of such a nature that it cannot be reasonably cured or remedied within such five Business Day period, but BFI shall have in good faith commenced curing or remedying such default within such period and shall thereafter diligently proceed therewith to completion, the default shall not be an Event of Default until the expiration of any such reasonable per/od, which, in no event, shall extend longer than the period agreed to by the parties or, if the parties are unable to agree on such a period, four months after receipt by BFI of such notice; (f) BFI files for protection under the US Bankruptcy Code and fmls to make payments when due to City; or (g) Any material representation or warranty made by BFI to City herein is false, incorrect or misleading. 8.04 City's Remedies. Upon or after the occurrence of any Event of Default specified in Section 8.03, City may, at its option, do any or all or any combination of the following: (a) Perform at BFI's expense any such act required to be performed by BFI under the Agreement and any amounts advanced by City for such purposes shall be due from BFI to City within one month after notice by City to BFI of any such payment, with interest at the prime interest rate on the date of the default from the date of payment thereof by City until repayment thereof to City by BFI. (b) Terminate this Agreement. (c) Pursue against BFI any remedy (other than termination of this Agreement) available at Law or in equity. 8.05 Force Majeure. (a) Generally. No party to this Agreement shall be liable for delays or failures in performance due to any cause beyond their control, including any delays or failures in performance caused by strikes, lockouts, fires, acts of God or the public enemy, common career, severe inclement weather, terrorist acts, riots or interference by civil or military authorities. The delays or failures to perform extend the period of performance until these exigencies have been removed. BFI shall inform City in writing of proof of the force majeure within three Business Days or otherwise waive this right as a defense. 24 (b) Exceptions. With respect to a flood, hurricane, other act of God, or man- made event over which BFI has no control, Section 8.05(a) shall apply only during the existence of such event and shall not apply with respect to the need to handle any increased volume of waste that may result from the event. Further, if BFI cannot provide Services at the Eandfill because of such a force majeure event or a strike or a lockout: (i) BFI shall provide an alternative disposal facility that will accept the waste (from both City and City's Landfill customers) it is authorized to accept during such force majeure event at a rate per ton to City equal to the then current Fee; and (ii) the parties shall offset against such disposal rate the documented increase in City's costs resulting from disposing at the alternate disposal facility rather than the Landfill (as such increased costs am offset by any documented decrease in City's costs resulting from disposing at the alternate disposal facility rather than the Landfill). 8.06 Performance Bond. (a) During the Term, BFI shall provide City with an annually-renewable Performance Bond in the initial amount of $2,768,000. Such amount shall be adjusted on each five-year anniversary of the Effective Date to be an amount equal to the then current Fee multiplied by 400,000. (b) The Performance Bond shall guarantee the full and faithful execution of the Services and performance of the Agreement by BFI. (c) The Performance Bond must provide for the repair and maintenance of all defects due to faulty workmanship that appear within a period of one year from the date of completion and acceptance of the services by City. (d) No surety will be accepted by City from any Surety Company who is now in default or delinquent on any bonds or who has an interest in any litigation against City. (e) The Performance Bond must be issued by an approved Surety Company authorized to do business in the State of Texas. (f) If the Performance Bond is in an amount in excess of ten pement (10%) of the Surety Company's capital and surplus, the Surety Company shall provide certification satisfactory to City Attorney that the Surety Company has reinsured the portion of the bond amount that exceeds ten percent (10%) of the Surety Company's capital and surplus with reinsurer(s) authorized to do business in the State of Texas. (g) The amount of the bond reinsured by any reinsurer may not exceed ten percent (10%) of the reinsurer's capital and surplus. (h) For purposes of this Section, the amount of allowed capital and surplus will be verified through the State Board of Insurance as of the date of the last annual statutory financial statement of the Surety Company or reinsurer authorized and admitted to do business in the State of Texas. (i) The Surety must designate an agent who is a resident of Texas. 25 (j) The Performance Bond must be executed by BFI and the Surety. (k) The Performance Bond must be executed by a Surety Company that is certified by the United States Secretary of the Treasury or must obtain reinsurance for any liability in excess of $100,000 from a reinsurer that is certified by the United States Secretary of the Treasury and that meets all the above requirements. (1) The insurer or reinsurer must be listed in the Federal Register as holding certificates of authority on the date the bond was issued. (m) Should any surety on the Agreement reasonably be determined unsatisfactory at any time by City, notice will be given BFI to that effect, and BFI shall immediately provide a new surety reasonably satisfactory to City. (n) No payment will be made under this Agreement until the new surety, or sureties as required, has qualified and been accepted by City. (o) This Agreement may not be operative nor will any payments be due or paid until approval of the Performance Bond has been made by City. (p) City requires that any Power of Attorney submitted with any Performance Bond be signed with an original signature and properly dated and sealed. (q) In the event a facsimile Power of Attorney is used, City must have on file a sworn statement from an officer of the surety company to the effect that the agent who signs the bond form for the surety is currently in good standing with the surety. (r) In the event a facsimile Power of Attorney is used, the facsimile must be a tree copy of the original Power of Attorney on file among the records of the surety in its home office, not be amended or abridged, still be in full force and effect, and that City will be notified in the event of cancellation of the particular agent. (s) The Performance Bond shall provide that any subsequent contractor used by the bonding company in the event of a default by BFI that results in the bonding company commencing performance of the Services shall be subject to City's approval, which approval shall not be unreasonably withheld. ARTICLE IX. MISCELLANEOUS 9.01 Relationship. (a) No A~enc¥. Neither BFI nor City nor their respective employees, agents, contractors or guests shall be considered employees or agents of the other party or to have been authorized to incur any expense on behalf of the other party or to act for or to bind the other party. 26 Co) No Liability. Neither BFI nor City shall be liable for any acts. omissions or negligence on the part of the other party or its employees, agents, contractors or guests, resulting in either personal injury or property damages. (c) Indevendent Contractor. City and BFI shall not be construed to be landlord and tenant, partners, joint venturers, tenants in common or joint tenants. The relationship created hereby is solely a contractual relationship of an independent contractor, and this Agreement must be construed conclusively in favor of [hat relationship. BFI has exclusive control of and the exclusive right to control the details of its performance of the Services and all persons performing the same. (d) Res¢ondeat Superior. The doctrine of respondeat superior shall not apply as between City and BFI and BFI's employees, agents, contractors and guests. (e) Operator. City shall at all times be deemed to be the "operator" of the Landfill within the meaning of all Environmental Laws and other Laws, and BFI shall in no event be deemed to be the "operator" of the Landfill (including if BFI performs any acts pursuant to Section 8.02(a). 9.02 Title to Landffil. BFI has no possessory or other right, title, interest or estate in the Landfill other than the fights granted to it under this Agreement, and BFI shall in no event be deemed to have any ownership, leasehold or possessory fight in or control over the Landfill. BFI acknowledges that: (i) City does not warrant City's title to the Landfill; (ii) this Agreement and the rights and privileges granted BFI under this Agreement are subject to all covenants, conditions, restrictions, and exceptions of record or apparent; and (iii) nothing contained in this Agreement may be construed to imply the conveyance to BFI of fights in the Landfill that exceed those owned by City. 9.03 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule (whether of the State of Texas or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Texas. 9.04 Severability. (a) If, for any reason, any section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement or the application of this Agreement to any person or circumstance is, to any extent, held illegal, invalid, or unenforceable under present or future Law or by a final judgment of a court of competent jufisdiction, then the remainder of this Agreement, or the application of the term or provision to persons or circumstances other than those as to which it is held illegal, invalid, or unenforceable, will not be 'affected by the Law or judgment, for it is the definite intent of the parties to this Agreement that every section, paragraph, subdivision, clause, provision, phrase, or word of this Agreement be given full force and effect for its purpose. (b) To the extent that any clause or provision is held illegal, invalid, or unenforceable under present or future Law effective during the Term, then the remainder 27 of this Agreement is not affected by the Law, and in lieu of any illegal, invalid, or unenfomeable clause or provision, a clause or provision, as similar in terms to the illegal, invalid, or unenforceable clause or provision as may be possible and be legal, valid, and enforceable, will be added to this Agreement automatically. 9.05 AmendmenL This Agreement may not be amended except by a written instrument executed by each party to this Agreement acting through a person authorized to sign agreements on behalf of such party (which, in the case of City, shall be the Director or City Manager. 9.06 Notices. All notices or other communications required or perrmtted under this Agreement by either party must be in writing and must 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 tatum receipt requested, by overnight courier, prepaid, or by delivering the same in person to such party, addressed as follows: To City: Director of Solid Waste & Street Services The City of Corpus Christi 2525 Hygeia Street P.O. Box 9277 Corpus Christi, Texas 78469-9277 To BFI: By Mail BFI Waste Services of North America, Inc. P.O. Box 9236 Corpus Christi, Texas 78469 Attn: General Manager or By Overnight Delivery or Personally Delivery BFI Waste Services of North America, Inc. 4414 Agnes Street Corpus Christi, Texas 78405 Attn: General Manager In either case with a copy to: Allied Waste Industries, Inc. 15880 North Greenway-Hayden Loop Suite 100 Scottsdale, Arizona 85260 Attn: Corporate Secretary 28 Notice shall be deemed given and effective the day personally delivered, the Business Day after it is given to the overnight courier, subject to signature verification, and two Business Days after deposit in the U.S. mail of a writing addressed and sent as provided above. Either party may change the address for notice by notifying the other party of such change in accordance with this Section. 9.07 Waiver. No delay of or omission in the exercise of any right, power or remedy accruing to either party as a result of any breach or default by the other party under this Agreement shall impair any such right, power or remedy, nor shall it be construed as a waiver of or acquiescence in any such breach or default, or of or in any similar broach or default occurring later. No waiver of any single breach or default shall be deemed a waiver of any other breach or default occurring before or after that waiver. 9.08 Entire Agreement. This Agreement is the final, complete and exclusive statement of the agreement between the parties with relation to the subject matter of this Agreement. There are no oral representations, understandings or agreements covering the same subject matter as this Agreement. This Agreement supersedes and cannot be varied, contradicted or supplemented by evidence of, any prior or contemporaneous discussions, correspondence, or oral or written agreements or arrangements of any kind. 9.09 Counterparts. This Agreement may be executed in two or more original or facsirmle counterparts, each of which shall be deemed an original and all of which together shall constitute but one and the same instrument. 9.10 Further Assurance. The parties each agree to do, execute, acknowledge and deliver all such further acts, instruments and assurances and to take all such further action as shall be necessary or desirable to fully carry out this Agreement and to fully consummate and effect the transactions contemplated hereby. 9.11 No Third Party Beneficiary. This Agreement is not intended to g/ve or confer any benefits, rights, privileges, claims, actions or remedies to any Person, including the public, as a third party beneficiary, under any Laws or otherwise. 9.12 Dispute Resolution. (a) Mediation. If a dispute arises out of or relates to this Agreement, the relationships that result from this Agreement, the breach of this Agreement or the validity or application of any of the provisions of this Section 9.12, and, if the dispute cannot be settled through negotiation, the parties agree to submit the dispute to mediation prior to commencing litigation. The parties will attempt in good faith to agree on a neutral mediator to resolve the dispute. The mediation will follow the procedures set forth in the American Arbitration Association Commercial Mediation Rules. If the parties cannot agree on a mediator within 20 days after mediation has been demanded, they will submit the dispute for mediation to be adrmnistered by the American Arbitration Association under the Commercial Mediation Rules before resorting to litigation. Neither party may commence or pursue arbitration until this non-binding mediation has been conducted and concluded. The parties agree that, upon initiating mediation, they will agree with the 29 mediator on a time at least five days before the mediation to submit and exchange with one another detailed position papers. The position papers shall include a factual recitation of the dispute, each party's position on the facts and the law, the party's assessment of the likely outcome and its/their position on settlement. Each party will bear its own expenses incurred (including attorneys' fees) in connection with the mediation, and will equally share the mediator's fees and expenses. (b) Arbitration. If the parties are unable to resolve their dispute by mediation, a~ter the unsuccessful conclusion of any such mediation, the parties agree to resolve the dispute exclusively through binding arbitration administered by the American Arbitration Association under the Commercial Arbitration Rules. Either party may submit the dispute to such arbitration. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction. Any such dispute shall be submitted to three arbitrators selected pursuant [o the provisions of the American Arbitration Association Commercial Arbitration Rules; provided, however, that each party shall select one arbitrator and the two arbitrators so chosen shall select the third arbitrator. This arbitration agreement applies regardless of the claims or causes of action alleged. The arbitrators' award will be final and binding, but in no event can an award exceed the amount of direct compensatory damages actually incurred by the claiming party, and no party can recover for anything other than the benefit of the bargain under the agreement. The parties further agree that no punitive or exemplary damages can be considered or awarded by the arbitrators. (c) Arbitration Rules. The parties agree that the American Arbitration Association Commercial Arbitration Rules are modified as follows: the procedures set forth in the Federal Rules of Civil Procedure applicable in the State of Texas will govern the arbitration, including those relating to disclosures and listing of witnesses and exhibits, initiation and completion of discovery, and dispositive motions. The parties agree that any arbitration conducted in this case shall be held in Austin, Texas. All proceedings in the arbitration will be governed by the substantive laws of the State of Texas. (d) Fees and Costs. Should any arbitration be commenced under this Agreement, each party (whether the successful party or not) shall bear its own attorneys' fees, expert witness fees, arbitration related expenses, and court or other costs incurred in such arbitration. (e) Waiver of Sovereign Immunity. City waives any sovereign immunity it may have with respect to this Agreement, including any arbitration relating to a breach of this Agreement. 9.13 Expenses. BFI will pay the fees, expenses and disbursements of BFI and its representatives incurred in connection with this Agreement. City will pay the fees, expenses and disbursements of City and its representatives incurred in connection with this Agreement. 30 9.14 No Brokers. City represents and warrants to BFI and BFI represents to City that the warranting party has had no dealings with any broker, agent or other Person so as to entitle such Person to a commission or fee in connection with the transactions contemplated by this Agreement. If for any reason a comrmssion or fee becomes or is claimed to be due with respect to dealings by City, City shall indemnify and hold harmless BFI from all Losses relating to such claim. If for any mason a comamssion or fee becomes or is claimed to be due with respect to dealings by BFI, BFI shall indemnify and hold harmless City from all Losses relating to such claim. 9.15 Estoppel. From time to time within 20 days after request therefor by either of the parties, City or BFI shall deliver to the other party a certificate stating: (a) whether or not this Agreement is in full force and effect; (b) whether or not this Agreement has been modified or amended in any way and attaching a copy of such modification or amendment; (c) whether or not there are any existing defaults under this Agreement to the knowledge of the party executing the certificate, and specifying the nature of such defaults, if any; (d) the status of payments required by this Agreement; and (e) any other facts regarding the operation of the Agreement that the other party may reasonably request. 9.16 Survival. Termination or expiration of this Agreement for any reason does not release either party from any liabilities or obligations under this Agreement that: (a) the parties have expressly agreed survive any the termination or expiration; (b) remain to be performed; or (c) by their nature would be intended to be applicable following the termination or expiration of this Agreement. 9.17 Binding Effect. This Agreement shall be binding upon and inure to the benefit of, to the extent provided herein, City and BFI and all parties having or acquiring or claiming through City and BFI any right, title or interest in or to any portion of, or interest or estate in, the Landfill and all covenants, agreements, conditions and undertakings in this Agreement shall be construed as covenants running with the Landfill site. Notwithstanding the foregoing, however, BFI acknowledges and agrees that this Agreement is not binding on City until properly authorized by City's City Council and executed by the Director or City Manager. [Signatures Appear on Next Page] 31 IN WITNESS WHEREOF, and with the intent to be legally bound, the parties have caused this instrument to be executed as of the Effective Date. ATTEST: CITY The City of Corpus Christi Clerk APPROVED AS TO FORM: R.J~l~i~ ' g, / First Assistant City Attorney By: ~ Narr~ (3obrge K. Noe Its: 'City Manager BFI BFI Waste Services of North America, Inc. 32 EXItlBIT A Rates for Additional Work Not Specified in Agreement Item Rate Per Hour~ Trash compactor $200 D7 or D8 dozer $200 D6 dozer $150 Excavator $150 Articulated dump track $150 Loader and backhoe $100 Motor grader $125 Includes operator, fuel, oil and maintenance/repair of equipment. EXHIBIT B Displaced Employees Positions being considered for BFI job offer due to landfill contract Position Incuml:mnt Grade Hire Date Sala~ LFFmn J. Perea 918 5/13/1985 $35,763.89 Hvy Equip Opr J. Bazan 917 6/14/1988 $32,081.57 R. Adame 917 1/28/2002 $30,905.48 Sr Equip Opr G. Quintero 916 5/13/1985 $26,535.58 J. Whitby 916 4/14/1997 $24,320.51 I LF Opr R. Palacios 1 Sr Equip Mech O. Suarez 8 Santy Fill Attndt 914 4/22/2002 $20,376.90 Vac Accrual as of 12/08/04 600.57 277.64 16.07 291.31 118.64 8.08 916 2/3/1986 $37,244.92 260.45 $18,524.69 $23093.26 $18 524.69 $18 524.69 $18 524.69 $18 524.69 $18 524.69 $18 524.69 J. Luna 913 11/4/1992 J. Bennett 913 7/24/1995 F. Vallejo 913 11/10/1997 M. Cerda 913 3/5/2001 J. Gomez 913 4/22/2002 V. Ayson 913 2/23/2004 D. Jones 913 2/23/2004 S. Limon 913 2/23/2004 I Sr Staff A.sst P delaGarza 16 69.27 207.26 49.6 162.45 117.08 67.69 67.69 67.69 912 2/5/1997 $20,855.96 229.61 Totals $380,850.90 2611.1 EXHIBIT C Waste Disposal Agreements