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;
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(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
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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.
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(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.
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(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
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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
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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
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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.
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(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:
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"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.
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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.
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(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.
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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.
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(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