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HomeMy WebLinkAboutC2005-064 - 2/22/2005 - Approved WASTE DISPOSAL AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND BFI WASTE SYSTEMS OF TEXAS, L.P. 2005-064 02/22/05 M2005-070 BFIWaste Systems of Texas Article 1 2 3 4 5 6 7 8 9 10 11 12 13 14 TABLE OF CONTENTS Subject Page Number General Provisions .................................................................................... 1 Acceptable Waste ...................................................................................... 6 Fees ........................................................................................................... 7 Billing and Payments ................................................................................. 7 Landfill Procedures .................................................................................... 8 Assignments ............................................................................................ 10 Insurance ................................................................................................. 10 Indemnification ........................................................................................ 11 Governmental Regulation ........................................................................ 13 Suspension for Force Majeure ................................................................. 13 Liquidated Damages and Default ............................................................ 14 Representation and Warranties ............................................................... 16 Governing Law and Venue ...................................................................... 17 Miscellaneous Provisions ........................................................................ 17 NewP utorPay'forB Flcontractdr020720051 doc WASTE DISPOSAL AGREEMENT This Waste Disposal Agreement ("Agreement") between the City of Corpus Christi ("the City"), and BFI Waste Systems of Texas, L.P. ("Hauler") requires the City to accept, process, and dispose of acceptable solid waste brought by the Hauler to the City's Cefe Valenzuela Municipal Landfill ("Landfill"), with its entrance on County Road 20 in Nueces County, Texas, and requires the Hauler to deliver to the Landfill and pay for the disposal of a minimum volume of acceptable Solid Waste under the terms and conditions of this Agreement. The padies agree to the following: ARTICLE 1. GENERAL PROVISIONS. 1.1. Definitions. The following words and phrases have the following meanings when used in this Agreement: Acceptable waste means garbage, litter, refuse, rubbish, yard waste, heavy brush, debris, and construction/demolition materials, but does not include hazardous, medical, or unacceptable waste. Act means the Solid Waste Disposal Act, as amended, 42 U.S.C. 6901, et seq. Bulky items means indoor and outdoor furniture, mattresses and box springs, carpet, swing sets, plastic swimming pools, large toys, bicycles, fish aquariums, and large household appliances. CERCLA means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601, et seq. Clean wood waste means individual pieces of wood of the type normally sold by lumber yards and home improvement centers that is free of hardware and other large fasteners, such as hinges, hurricane straps, latches, etc., and is not attached to concrete, wallboard, roofing materials, or other construction materials. Coastal Bend Region means Aransas, Bee, Brooks, Duval, Jim Wells, Live Oak, Kenedy, Kleberg, McMullen, Nueces, San Patricio, and Refugio Counties. Construction/demolition materials means waste resulting from construction or demolition projects, including brick, concrete, concrete rubble, gypsum board, lumber, sheetrock, roofing materials, fixtures (such as bath tubs, shower stalls, sinks, and toilets), and remodeling debris (such as cabinets, ceramic tile, Formica, and similar items). Debris means large waste materials, such as construction/demolition materials, ashes, roofing materials, dirt, automobile frames, tires, or other bulky heavy materials. NewPutorPayforBFIco.ntractdrO20720051.doc Page 1 of 23 Effective date means the first day that the Cefe Valenzuela Landfill is open to accept waste. Force Majeure means any event or condition, whether affecting the Landfill, the City, or the Hauler, that has, or may reasonably be expected to have, a material adverse effect on a party's obligation under this Agreement or on the Landfill, if the event or condition is beyond the reasonable control, based on sound management or industry practices, and not the result of willful or negligent action or a lack of reasonable diligence, of the party ("non-performing party") relying the event or condition as justification for not performing any obligation or complying with any condition required of the party under this Agreement. The following events or condition shall, if they meet the requirements of the preceding sentence, constitute a Force Majeure: (a) An act of God, storm, flood, or similar occurrence (except for weather conditions normal for the area) landslide, earthquake, fire, or other casualty, an act of the public enemy, war, blockage, insurrection, riot, general arrest or restraint of government and people, civil disturbance or similar occurrence. (b) The order or judgment of any Federal, State, or local court, administrative agency, or governmental officer or body, if it is not also the result of willful or negligent action or a lack of reasonable diligence of the non-performing party, and the non-performing party does not control the administrative agency or governmental officer or body, provided that the diligent contest in good faith of any order or judgment does not constitute or may not be construed as a willful or negligent action or a lack of reasonable diligence of the non-performing party. (c) The adoption, promulgation, issuance, material modification, or change in interpretation, after the date of this Agreement, of any Federal, State, or local law, regulation, rule, requirement, or ordinance. (A law, regulation, rule, requirement, or ordinance is duly adopted, promulgated, issued or otherwise officially modified or changed in interpretation, when it is in provisional, interim, or final form and effective or to become effective without any further action by any Federal, State or local governmental body, administrative agency, or governmental official having jurisdiction.) (d) The failure of the City or public utilities having operational jurisdiction in the area of the Landfill to provide, maintain, and assure the maintenance of all utilities, services, sewerage, and water lines essential to the operation of the Landfill, except a failure caused by the gross negligence, willful action, or a lack of reasonable diligence by the City. (e) A strike, lockout, or other similar labor action; NewPutorPayforBFIoontraclrjr020720051 doc Page 2 of 23 (f) The failure to obtain or maintain any essential permit or license from any governmental unit; Garbage means putrescible animal or vegetable matter, such as waste material and refuse usually associated with the preparation of food from kitchens, residences, grocery stores, butcher shops, restaurants, cafes, hotels, rooming houses, and boardinghouses, but does not include sewage, body waste, or industrial byproducts. Hazardous waste means: (a) Any waste, material, or substance, which by reason of its composition or characteristic is regulated as a toxic or hazardous waste or hazardous substance under applicable laws, including without limitation: (i) The Solid Waste Disposal Act, also known as the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. · 6901, et seq., as replaced or amended from time to time, and the rules, regulations, written policies, or written guidelines promulgated the Act (including without limitation, 40 C.F.R. Section 261.4, which generally excepts household waste from the definition of Hazardous Waste). (ii) The Toxic Substances Control Act, 15 U.S.C, 260, et seq., as replaced or amended from time to time, and the rules, regulations and written policies and written guidelines promulgated the Act. (iii) Any State law or regulation of governing the storage, transportation, and disposal of solid waste, hazardous waste, toxic materials, or hazardous substances, including but not limited to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, Chapter 361, and 30 Texas Administrative Code Chapter 330. (b) Radioactive material, which is source, special, nuclear, or by-products material within the meaning of the Atomic Energy Act of 1954, as replaced or amended from time to time, and the rules, regulations, and written policies or written guidelines promulgated under the Act. (c) Any other waste, material, or substance, which is characterized or defined to be toxic or hazardous by the State of Texas, TNRCC, or USEPA with respect to the Landfill or by any other Federal or State regulatory agency having jurisdiction over the Landfill under any written regulation, policy, guideline, or order having the force of law. (d) Notwithstanding the above, if the TNRCC or USEPA determine by written regulation, policy, guideline, or having the force of law in relation to: NewPutorPayforBFIcontractr]rO20720051.doc Page 3 of 23 (i) A waste, material, or substance, which is not considered toxic or hazardous as of the effective date of this Agreement, is toxic or hazardous, then the waste, material, or substance shall, from the effective date of the determination by TNRCC or USEPA, constitutes a hazardous waste for purposes of this Agreement. (ii) A waste, material, or substance, which is considered toxic or hazardous as of the effective date of this Agreement, is not toxic or hazardous, then such waste, material, or substance shall, from the effective date of the determination by TNRCC or USEPA, no longer constitutes a hazardous waste for the purposes of this Agreement. Heavy brush means tree and shrub limbs and trimmings, which are greater than three (3) inches in diameter, tree trunks, root balls, and other large plant matter. Household appliance means general household appliance that will not fit into a refuse receptacle including: Non-metal appliance, such as a television set, stereo system, video cassette recorder (VCR), microwave oven, and other similar item constructed primarily of plastic or other non-metallic pads Metal appliance, such as a stove, cooking range, oven, dishwasher, washing machine, clothes dryer, refrigerator, window air conditioning unit, water heater, lawn mower or edger, and other similar items constructed primarily of metal pads. Household waste means garbage, rubbish, litter, refuse, yard waste, debris, and limited construction/demolition materials commonly generated by a residential household. Jurisdictional waste means waste collected within the City or its industrial districts. Landfill means the City's Cefe Valenzuela landfill located in Nueces County, Texas. Litter means any rubbish, paper, napkins, straws, cups or containers made of paper, plastic, Styrol~oam (or ether similar material), bottles, glass, candy or gum wrappers, remnants of food, cans, or remnants or pads thereof, or any material of an unsanitary nature. Medical waste means waste generated by health-care related facilities and associated health-care activities, including veterinary services, but not including garbage or rubbish generated from offices, kitchens, or other non-health-care activities. NewPutorPayforBFIcontractrj,1320720051.doc Page 4 of 23 Published disposal rate means the published tipping rate for commercial vehicles based on weight published in Section 21-41 (e)(2)A, less the difference between the municipal solid waste system service charge published in Section 21-47(b)(1) and the credit published in Section 21-47(b)(5) and any applicable State or Federal fees. Recyclable means a waste material that has been designated by the Director for inclusion in the City's recycling program, that has a useful physical or chemical property after serving its original purpose, or that may be reused, sold as a commodity, or converted into another product. Refuse means a mixture of garbage, rubbish, and other waste that are normally placed in a receptacle for collection and disposal, but does not include yard waste, heavy brush, debris, or construction/demolition materials. Rubbish means non-decayable solid waste, excluding ashes, that consist of combustible materials, such as paper, rags, cations, wood, rubber, plastics, and similar materials, and noncombustible matter, such as glass, crockery, metal cans, and similar materials that do not burn at ordinary incinerator temperatures. Site Operating Plan means the Site Operating Plan for the City of Corpus Christi J. C. Elliott Landfill generally applicable to customers utilizing the Landfill, as determined by the City. Solid waste means garbage, rubbish, litter, refuse, yard waste, heavy brush, debris, and construction/demolition materials. Tipping fee rate means the rate charged to a commercial vehicle disposing of solid waste at a the City disposal site. TNRCC means Texas Natural Resource Conservation Commission. Ton means 2,000 pounds. Trash means a single item of rubbish, not otherwise defined as debris or construction/demolition material, but including a small household appliance that will not fit into a conventional refuse receptacle. Unacceptable waste means waste that the City is not allowed to accept under the rules issued by the TNRCC or the Site Operating Plan. USEPA means the United States Environmental Protection Agency. Yard waste means grass clippings, weeds, leaves, mulch, small trees and shrub limbs, which are less than three (3) inches in diameter and less than five (5) feet in length, and other similar plant matter. NewPutorPayforBFIconlractdr020720051.doc Page 5 of 23 1.2. Interpretation. In this Agreement, unless the context otherwise requires, words of masculine gender means and include correlative words of feminine and neuter genders and words impoding the similar number means and include the plural number and vice versa. 1.3. Term, 1.3.1. Unless sooner terminated under the terms of this Agreement, this Agreement is in effect until the termination of the Landfill Services Agreement between the City of Corpus Christi and BFI Waste Services of North America, Inc., dated , including any extensions of that agreement. 1.3.2. Upon expiration of the term, the Hauler's obligations to deliver acceptable waste and the City's obligations to accept, process, and dispose of acceptable waste shall terminate. 1.3.3. However, the provisions of Article 8 and Sections 12.3, 14.18, and 14.19 shall survive the termination of this Agreement. 1.3.4. The City will provide at least 12 months notice of the date the City will no longer accept all forms of acceptable waste from permitted haulers at the Landfill. 1.4. Hauler Required to Obtain City Permits. The Hauler must obtain a solid waste hauler's permit as required by applicable City ordinances. ARTICLE 2. ACCEPTABLE WASTE 2.1. Acceptable Waste. 2.1.1. The Hauler shall deliver only acceptable waste. 2.1.2. Any acceptable waste co-mingled with hazardous, medical, or unacceptable waste will be considered unacceptable waste. 2.1.3. At any time, the City and Hauler mutually may agree in writing that any materials, which are defined as unacceptable waste in Section 1.1. of this agreement, should in the future be reclassified as acceptable waste. 2.2. Guaranteed Tonnage. 2.2.1. Commencing on the effective date, the Hauler guarantees to deliver not less than 150,000 tons per year ("guaranteed annual tonnage") of jurisdictional waste and acceptable waste collected outside the City's limits to the Landfill, and the City guarantees that it will accept the waste. This is 80% of the hauler's historical volume delivered to the City. 2.2.1.1. If the hauler wishes to avail itself of a 100% volume supply agreement that is based on all of the solid waste the hauler collects in the NewPutorPs. yforBFIcontractrjrO20720051.doc Page 6 of 23 area defined by the boundaries of the Coastal Bend Council of Governments it must notify the City at least sixty (60) days in advance and upon the City's approval this agreement will be amended to reflect the change. 2.2.1.2. Any volumes the hauler wishes to deliver outside of the aforementioned defined boundaries are exempt from these requirements and minimum volumes and rates may be negotiated with the City on a separate basis. 2.2.2. The Hauler shall deliver the guaranteed annual tonnage. 2.3.3. If the Hauler increases the Hauler's volume by a minimum of an additional 33% or more over the guaranteed annual tonnage established in Subsection 2.2.1., the Hauler is eligible for a discount off of the per ton tipping fee. Once established the discount will apply from the base year in which the discount was first calculated, and will apply to all succeeding years keeping the base tonnage calculation intact. 2.3. Adjustments to Guaranteed Tonnage. 2.3.1. If notwithstanding the Hauler's best efforts and implementation of best business practices, the Hauler documents to the reasonable satisfaction of the City a loss of customers in the Coastal Bend Region, which has resulted in a net decline of more than 10% of the deliveries to the Landfill by the Hauler, and as a result the Hauler is unable to deliver the guaranteed tonnage for a period in excess of a year, the parties will act in good faith to renegotiate the guaranteed tonnage. 2.3.2. The Hauler may request a change in its guaranteed tonnage sixty days before the annual anniversary date of this Agreement. 2.4. Hauler Agrees Not to Deliver Unacceptable Waste. The Hauler agrees that the Hauler will not deliver hazardous, medical, or unacceptable waste to the City. 2.5. Ownership of Solid Waste. Any solid waste delivered to the Landfill remains the property of the generator. Legal title to the solid waste shall never pass to the City. Upon request, the Hauler will make records available to the City to determine the generators of any hazardous, medical, or unacceptable waste delivered to the Landfill. ARTICLE 3. FEES 3.1. Acceptance Fee for Guaranteed Monthly tonnage. 3.1.1. The discounted acceptance fee for acceptable waste delivered by the Hauler to the Landfill, which is based 80% of the hauler's historical volume delivered to the City, is seventy five per cent (75%) of the published disposal rate. NewPutorPayforBFIcontraclrjrO20720051.doc Page 7 of 23 3.1.2. If the hauler requests a change to the agreement to a 100% volume supply agreement as defined in 2.2.1.1, and with the City's approval, the new discounted acceptance rate is seventy two percent (72%) of the published disposal rate. 3.2. Payment of Permitting Fees. The Hauler agrees to pay all solid waste permitting fees imposed by City ordinances. 3.3.3. Discount for Increased Tonnage. If the Hauler increases the Hauler's volume by a minimum of an additional 33% or more over the guaranteed annual tonnage established in Subsection 2.2.1., the Hauler is eligible for a 15% discount off of the published disposal rate in that year. The lower tipping fee will be applied retroactively to the additional waste once 33% threshold is reached. Once a new base tonnage is calculated under Subsection 2.3.3, the City will reduce irs billing to the Hauler at the beginning of each succeeding year. ARTICLE 4. BILLING AND PAYMENTS. 4.1. Billing. After the end of each month, the City will bill the Hauler for the total fees due for the billing period. 4.2. Payments. The Hauler shall make payment to the City of the amount of each bill within 30 days of the billing date ("due date") shown on the bill. 4.3. Overdue Charges. If payment in full is not made on or before the due date, the Hauler shall pay an administrative late fee of $100 and any amount remaining unpaid shall bear interest at the rate of one and one half percent (1-1/2%) per month or the highest rate that may then be lawfully charged and paid, whichever is less, from the due date to the actual date of payment. 4.4. Disputes. 4.4.1. In the event of a dispute as to any monthly payment the Hauler shall pay when due the amount of the bill, less the amount in dispute. 4.4.2. The Hauler shall give the City, at the time payment is made on the bill, written notice of the dispute. 4.4.3. The notice of dispute shall state the amount in dispute and a full statement of the grounds that form the basis of the dispute. 4.4.4. Upon settlement by the parties of the dispute, if the City prevails, the Hauler shall pay interest on any amount not paid by the due date at the interest rate specified in Section 4.3. 4.5. Fees Not Subject to Set-Off. The obligations of the Hauler to pay fees under the terms under this Agreement are not subject to any set-off, abatement, counterclaim, existence of a dispute or any reason, known or unknown, foreseeable or unforeseeable, NewPutorPayforBFIcontractrjrO20720051.doc Page 8 of 23 which might otherwise constitute a legal or equitable defense or discharge of the liabilities of the Hauler under this Agreement or limit recourse to the Hauler. 4.6. Payment of Fees No Bar to Claims for Abatements, Refunds, or Adjustments. Payments made under this Article do not prejudice the rights of the Hauler to claim abatements, refunds or adjustments to which it is entitled under this Agreement. ARTICLE 5. LANDFILL PROCEDURES. 5.1. Acceptance of Solid Waste. The City will accept at the Landfill all acceptable waste delivered by the Hauler under the terms of this Agreement unless the City has rejected the solid waste under Section 5.2. of this Agreement. 5.2. Rejection of Solid Waste. 5.2.1. The City is not obligated to accept waste if the Landfill is closed due to a Force Majeure. 5.2.2. The City is not obligated to accept waste if the Hauler's account is more than 60 days in arrears of the due date. But the City will accept any acceptable waste if the Hauler makes a cash payment at the time of delivery. 5.2.3. The Hauler fails to comply with any published delivery procedures. 5.2.4. If a delivery of solid waste contains both acceptable waste and any hazardous, medical, or unacceptable waste. 5.3. Improper Delivery of Hazardous, Medical, or Unacceptable Waste to Landfill. The Hauler agrees to comply with the provisions in the Site Operating Plan relating to the improper delivery of hazardous, medical, or unacceptable waste and the procedures for removing any hazardous, medical, or unacceptable waste from the Landfill. The Hauler agrees to pay any charges relating to the removal and disposal of hazardous, medical, or unacceptable waste that would be charged to any other permitted hauler that improperly delivered hazardous, medical, or unacceptable waste to the Landfill. 5.4. City Not Required to Screen Waste. Nothing in this Agreement obligates the City to screen waste or to detect hazardous, medical, or unacceptable waste delivered by the Hauler. 5.5. Delivery Schedule. 5.5.1. During the term, the Hauler may deliver acceptable waste to the Landfill during its normal posted hours of operations. 5.5.2. The City will open the landfill for at least 58 hours, during weeks without City holidays. NewPutorPayforBFIcontractrjr020720051.doc Page 9 of 23 5.5.3. The City will consider requests for additional hours based on special needs of the Hauler and the availability of Landfill personnel. 5.5.4. Except in a Force Majeure, the City will provide the Hauler with at least 48 hours advance notice of any changes in the hours or days of operation. 5.6. Delivery Procedures. 5.6.1. The delivery of solid waste to the Landfill shall be regulated by the provisions of the Site Operating Plan. Copies of the relevant provisions will be provided by the City to the Hauler from time to time. The terms and conditions in the Site Operating Plan are intended to reflect the actual procedures and operations at the Landfill. An extract of the relevant provisions of the current Site Operating Plan is attached as Exhibit A. 5.6.2. The City reserves the right to redirect the Hauler's trucks from the working face to an on-site transfer station. 5.7. Delivery Vehicles. 5.7.1. Acceptable waste must be delivered by the Hauler, at its expense, to the Landfill in enclosed container vehicles or enclosed compactor vehicles complying with any applicable State laws and regulations and City ordinances regulating the permitting of haulers, vehicles, and containers, regulating the marking of solid waste vehicles and containers, setting insurance requirements for haulers and vehicles, and identifying the generators of solid waste being delivered to the Landfill. 5.7.2. The City may provide for a system for the identification of delivery vehicles, including, without limitation, identification of the Hauler, identification of the specific vehicle, and tare weight of the vehicle or containers used to haul solid waste to the Landfill. 5.7.3. The City is under no obligation to accept acceptable waste from persons or vehicles not complying with the permitting and marking systems, the insurance requirements, or the delivery procedures established by the City. 5.7.4. The City may enforce compliance with permitting and marking systems and delivery procedures by denial of disposal privileges and such other means as it may reasonably determine to be necessary and appropriate. 5.8. Front of Line Privileges. 5.8.1. The City will provide front of line privileges to the Hauler and other haulers with "put or pay" contracts with the City. NewPutorPayforBFIcontractrjrO20720051.doc Page 10 of 23 5.8.2. The City may at its discretion suspend front of line privileges under this agreement when waiting times to tip for other permitted haulers at the Landfill approach thirty (30) minutes. ARTICLE 6. ASSIGNMENTS. 6.1. Assignment By Hauler. The Hauler may not assign or transfer, directly or indirectly, its interest in and to this Agreement, without the consent of the City Manager, which consent will not be unreasonably withheld, delayed, or subject to unreasonable conditions. 6.2. Assignment By City. The City may, with prior written notice to the Hauler, assign all or any portion of this Agreement for any lawful purpose. The assignment of all or any portion of this Agreement does not relieve the City of any obligation under this Agreement without the consent of Hauler. ARTICLE 7. INSURANCE. 7.1. Insurance Requirements. Insurance requirements are attached to and incorporated into this Contract as Exhibit B attached to and made a pad of this Agreement, and may be revised annually by the City's Contract Administrator upon thirty (30) days written notice to Hauler. 7.2. Insurance Required by Subcontractors. Any subcontractor, which is hired by Hauler to deliver solid waste to the Landfill, must maintain the same insurance as specified in Exhibit B prior to delivering any solid waste to the Landfill. 7.3. Certificates of Insurance. Before activities can begin under this Contract, Hauler's and any subcontractor's insurance company(les) must deliver Certificate(s) of Insurance, as proof of the required insurance coverages to the City's Contract Administrator. 7.4. Notice of Cancellation, Material Change, or Intent Not to Renew. Additionally, the Certificate(s) must state that the City will be given at least thirty (30) days notice by certified mail of cancellation, material change in the coverages, or intent not to renew any of the policies. 7.5. City Named As Additional Insured. The City must be named as an Additional Insured in each policy. The City Attorney must be given copies of all insurance policies within 15 days of the City's Contract Administrator's written request. 7.6. Waiver of Claim of Recovery. The Hauler waives any claim for recovery from the City for any injury, loss, or damage to Hauler resulting from the performance of this Agreement, to the extent compensation for the injury, loss, or damage shall have been recovered under any insurance policy. NewPutorPayforBFIcontraclrjr020720051.doc Page 1 1 of 23 7.7. Written Notice of Injury, Loss, or Damage Required. Immediately upon the occurrence of any injury, loss or damage resulting from the performance of this Agreement, written notice shall be given to the City's authorized representative. ARTICLE 8. INDEMNIFICATION 8.1 Indemnification for Death, Personal Injury, or Property Damage. 8.1.1. To the extent allowed by Texas law, Hauler, its officers, members, partners, employees, agents, subcontractors, and licensees shall fully indemnify, save, and hold harmless the City, its officers, employees, agents, licensees, and invitees ("City indemnitees") against any and all liability, damage, loss, claims, demands, judgments, actions, costs, and expenses (including reasonable attorney's fees and expenses) of any nature whatsoever on account of personal injuries (including, without limitation on the foregoing, workers' compensation and death claims), or property loss or damage of any kind whatsoever, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with the Hauler°s delivery of solid waste to the Landfill under this agreement. 8.1.2. To the extent allowed by Texas law, the City shall fully indemnify, save, and hold harmless the Hauler, its officers, employees, agents, licensees, and invitees ("Hauler indemnitees") against any and all liability, damage, loss, claims, demands, judgments, actions, costs, and expenses (including reasonable attorney's fees and expenses) of any nature whatsoever on account of personal injuries (including, without limitation on the foregoing, workers' compensation and death claims), or property loss or damage of any kind whatsoever, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with the City's delivery of solid waste to the Landfill under this agreement. 8.2. Indemnification for Improper Disposal of Hazardous, Medical, or Unacceptable Waste. If the City elects to dispose of any hazardous, medical, or unacceptable waste, the Hauler shall indemnify and hold the City indemnitees harmless from and against all liabilities, losses, damages, costs, expenses, and disbursements, including reasonable NewPutorPayforBFIcontraclqr020720051.doc Page 12 of 23 legal fees and expenses arising out of the processing or disposal by the person of unacceptable waste or waste not constituting acceptable waste delivered by the Hauler and incidental and consequential damages incurred by the City indemnitees. 8.3. Indemnification for Violations of Any Federal or State Laws and Regulations. The Hauler shall hold harmless and indemnify the City indemnitees from and against any expense, fine, or penalty, including attorneys fees, and shall defend the indemnitees in any proceeding, including appeals, for violation of any Federal or State law, rule, or regulation relating to the collection, transportation, and disposal of solid waste arising out of the any of the following: 8.3.1. The negligence or wrongful misconduct of the Hauler, its directors, officers or partners, employees, contractors, or agents. 8.3.2. The failure by the Hauler, its directors, officers or partners, employees, contractors, or agents to comply with applicable law, rule, or regulation. 8.3.3. The delivery by the Hauler of any Hazardous Waste or hazardous, medical, or unacceptable waste to the Landfill. 8.4. Duty to Investigate, Defend, Settle, and Pay Any Claims and Demands. 8.4.1. Hauler must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions with counsel satisfactory to City indemnitees, and pay all charges of attorneys and all other cost and expenses of any kind arising from any of said liability, damage, loss, claims, demands, or actions. 8.4.2. To extent authorized by law, the City must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions with counsel satisfactory to Hauler indemnitees, and pay all charges of attorneys and all other cost and expenses of any kind arising from any of said liability, damage, loss, claims, demands, or actions. NewPutorPayforBFIcontractrjr020720051 doc Page 13 of 23 ARTICLE 9. GOVERNMENTAL REGULATION. 9.1. Jurisdiction. The City and the Hauler acknowledge that the collection, transportation, and disposal of solid waste is subject to regulation under both Federal and State laws and regulations and the jurisdiction of various governmental agencies, including, without limitation, USEPA, TNRCC, and the Texas Department of Public Safety. 9.2. Compliance with Laws, Regulations, and Ordinances Relating to the Collection, Transportation, and Disposal of Solid Waste. The City and the Hauler agree, at their own expense, (subject to the provisions in this Agreement relating to Change in Law and Force Majeure), to materially comply with all applicable law, statutes, rules, regulations, ordinances, and Site Operating Procedures applicable to them in connection with this Agreement and the transactions contemplated by this Agreement. The law, statutes, rules, regulations, and ordinances may include, without limitation, actions taken by the Texas Depadment of Transpodation and City of Corpus Christi to regulate vehicle traffic associated with the Landfill. 9.3. Compliance with Other Laws and Regulations and Industry Standards by Hauler. Hauler shall comply with all other applicable laws, rules, regulations, ordinances, permits, and requirements of any governmental entity having jurisdiction, including all applicable health and safety, anti-discrimination, affirmative action, and minority business opportunity laws, and all applicable industry codes, specifications, and standards respecting Hauler's business and operation. 9.4. Compliance by Hauler's Agents and Subcontractors. The Hauler agrees to take all necessary action to cause persons delivering waste on its behalf to the City to comply with any law, statute, rule, regulation, order, standard, Site Operating Procedures, or ordinance of the City of Corpus Christi, USEPA, TNRCC, the Texas Department of Public Safety, and any other authorized Federal or State agency or law enforcement organization. ARTICLE 10. SUSPENSION DUE TO FORCE MAJEURE. 10.1. Suspension of Obligations. 10.1.1. A delay or failure of performance under this Agreement by either party shall not constitute an event of default or cause for any liability under this Agreement to the extent caused by Force Majeure. 10.1.2. Any delay or failure caused by a Force Majeure shall be excused at any time performance is affected by a Force Majeure and during the period as may be reasonably necessary for the affect party, using its reasonable efforts to correct the adverse effects of the Force Majeure. 10.1.3. If the Force Majeure causes a reduction, but not a complete suspension in the ability of the City in connection with the operation of the Landfill to accept, process, or dispose of acceptable waste, then subject to then existing NewPutorPayforBFIcontractrjrO20720051.doc Page 14 of 23 commitments of the City with respect to the Landfill, and the requirements of all applicable permits, consents ,and approvals of the USEPA, TNRCC, and other governmental entities, the City shall use its reasonable efforts to allocate a portion of the reduced capacity of the Landfill to the Hauler. The allocation of landfill capacity shall be determined by the City in its sole discretion. 10.1.4. The party relying on a Force Majeure as justification for a delay or failure of performance under this Agreement shall give the other party prompt written notice of the Force Majeure. 10.2. Efforts to Remove Condition. A party whose performance is adversely affected by a Force Majeure shall use its reasonable efforts to overcome or remove the Force Majeure. 10.2.1. After the completion of a suspension due to the Force Majeure and to the extent the City has the capacity to accept and dispose of excess waste, the City shall use its reasonable efforts to accept acceptable waste collected by the Hauler, which the Hauler was unable to deliver to the City during the Force Majeure period. 10.2.2. The City is not obligated to accept acceptable waste to the extent that the acceptance, processing, or disposal of the acceptable waste is contrary to or in violation of or would cause the City to be in violation of any permits and approvals for the Landfill. 10.2.3. In the event that Hauler is prevented from delivering acceptable waste to the Landfill as a result of the Force Majeure, Hauler shall still be required to deliver such tonnage as is reasonably practicable under the circumstances. The parties shall negotiate and agree on the period during which Hauler is entitled to cure any resulting shortfall. 10.3. Change in Taxes, Fees, Assessments, and Charges. The adoption of any law, regulation, rule, or ordinance that imposes or amends any tax, fee, assessment, or charge does not constitute a Force Majeure. ARTICLE 11. LIQUIDATED DAMAGES AND DEFAULT. 11.1. Suspension of Service by City. If the City fails to accept acceptable waste at the Landfill as required by the terms of this Agreement, the Hauler may select an alternate disposal site and be credited for any acceptable waste delivered to an alternate disposal site for the period of the failure by the City. if the conditions continue for more than thirty (30) days, this Agreement automatically terminates. 11.2. Events of Default of the City. The City is in default if it makes a general assignment for the benefit of creditors, files a petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions or applies to any tribunal for any custodian, receiver, or trustee for it or any substantial part of its property, commences any proceeding relating to it under any bankruptcy, reorganization, arrangement, readjustment of debt, NewPutorPayforBFIconiraclrJrO20720051.doc Page 15 of 23 dissolution, or liquidation law or statute of any jurisdiction, whether now or after the effective date of this Agreement is in effect, or if there shall have been filed any such proceeding, in which an order for relief is entered or which is not dismissed for a period of sixty (60) days or more, or if by any act indicates the City's consent to, approval of, or acquiescence in any petition, application, or proceeding or order for relief or the appointment of any custodian, receiver of, or any trustee for the City or any substantial part of the City's property, or suffers any custodianship, receivership, or trusteeship to continue undischarged for a period of sixty (60) days or more. 11.3. Events of Default of Hauler. Each of the following shall be an event of default by the Hauler under this Agreement and are grounds for termination of the Agreement: 11.3.1. The Hauler fails to pay any amounts, including without limitation, the acceptance fee, and any amounts payable under Sections 5.2 or 5.3, which become due under this Agreement, within thirty (30) days of notice of delinquency from the City. 11.3.2. The Hauler fails to observe and perform any other material term, covenant, or agreement contained in this Agreement, the Site Operating Plan, or other agreements or policies to which either the Hauler is subject and the failure continues for a period of thirty (30) days after written notice to the Hauler specifying the nature of the failure and requesting that it be remedied. 11.3.3. The Hauler fails to keep all insurance policies in force for the entire term of this Agreement is grounds for termination. 11.3.4. The Hauler makes a general assignment for the benefit of creditors, files a petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions or applies to any tribunal for any custodian, receiver, or trustee for it or any substantial part of its property, commences any proceeding relating to the Hauler under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or after this Agreement is in effect, or if there is or has been filed any proceeding, in which an order for relief is entered or which is not dismissed for a period of sixty (60) days or more, or if by any act indicates the Hauler's consent to, approval of, or acquiescence in any petition, application, or proceeding or order for relief or the appointment of any custodian, receiver of, or any trustee for the Hauler or any substantial part of the Hauler's property, or suffers any custodianship, receivership, or trusteeship to continue undischarged for a period of sixty (60) days or more. 11.4. Remedies on Default. Whenever any event of default occurs and is continuing, the non-defaulting party has the following rights and remedies: 11.4.1. Upon ten (10) days written notice to the City, if the City is then in default, the Hauler has the option to terminate this Agreement, unless the event of default is fully cured prior to the expiration of ten (10) day period or unless during the period the City has taken remedial steps the effect of which would be to enable NewPutorPayforBFIcontractrjrO20720051.doc Page 16 of 23 the City to cure the event of default within a reasonable period of time (which, if the event of default is a default in the payment of monies and results from restraint by a court or regulatory agency, means the undertaking and prosecution of prompt, diligent, good faith efforts to remove the restraint); 11.4.2. Upon ten (10) days written notice to the Hauler, if the Hauler is then in default, the City shall have the option to terminate this Agreement, unless the event of default is fully cured prior to the expiration of ten (10) day period or unless during the period the Hauler has taken remedial steps the effect of which would be to enable the Hauler to cure the event of default within a reasonable period of time (which, if the event of default is a default in the payment of monies and results from restraint by a coud or regulatory agency, means the undertaking and prosecution of prompt, diligent, good faith efforts to remove the restraint); 1 1.4.3. Upon written notice to the Hauler, if the Hauler has defaulted, the City shall have the option, without terminating this Agreement, to stop accepting acceptable waste delivered or tendered for delivery by the Hauler, until the default is cured or this Agreement is terminated. The City may concurrently pursue any other remedies to which it is entitled at law or in equity for the default. ARTICLE 12. REPRESENTATION AND WARRANTIES. 12.1. Representations and Warranties of the Hauler. 12.1.1. The Hauler by this Agreement represents and warrants to the City that this Agreement has been executed by authorized officers of the Hauler, and has before entering this Agreement delivered to the City evidence of the authority. 12.1.2. The Hauler has the full power and authority to execute and deliver this Agreement to the City and to carry out the obligations and transactions contemplated by this Agreement throughout its term. 12.1.3. There is no claim or litigation pending or to the knowledge of the Hauler, threatened that questions this Agreement or that affects or may affect the obligations and transactions contemplated by this Agreement. 12.2. Representations and Warranties of the City. 12.2.1. The City by this Agreement represents and warrants to the Hauler that the City has the full power and authority to execute and deliver this Agreement to the Hauler and to carry out the obligations and transactions contemplated by this Agreement. 12.2.2. There is no claim or litigation pending or to the knowledge of the City, threatened that questions this Agreement or that affects or may affect the obligations and transactions contemplated by this Agreement. NewPutorPayforBFIcontractrjrO20720051 doc Page 17 of 23 12.3. Liability for Breach. It is understood and agreed that the signatories to this Agreement are liable to each other in the manner and to the extent provided by law for any loss or harm occasioned by the breach of any term, covenant, agreement, undertaking, or obligation of this Agreement. This section shall survive the term of this Agreement. ARTICLE 13. GOVERNING LAW AND VENUE. 13.1. Laws of Texas Applicable. The interpretation and performance of this Agreement shall be under and controlled by the laws of the State of Texas. 13.2. Venue. The sole and exclusive forum for the initial determination of any question of law or fact to be determined in any judicial proceeding relating to this Agreement shall be any court of competent jurisdiction in Nueces County, State of Texas, including the United States District Court for the Southern District of Texas, Corpus Christi Division. 13.3. Agreement Not Affected by Pending Litigation. Except as otherwise specifically provided in this Agreement, the pendency of any claim or litigation does not affect the obligations of the parties to make any payment or render any service required by this Agreement or the rights of the parties under this Agreement. ARTICLE 14. MISCELLANEOUS PROVISIONS. 14.1. Entire Agreement. This Agreement merges and supersedes all prior negotiations, representations, and agreements between the parties. This Agreement and Amendment #1 to this Agreement constitutes the entire agreement between the parties to this Agreement in respect of the subject matter of this Agreement. 14.2. Waiver. No delay in exercising or the failure to exercise of any right or remedy accruing to or in favor of any party under this Agreement impairs any right or remedy or constitutes a waiver of the right or remedy. Every right and remedy given under this Agreement or by law may be exercised from time to time and as often as may be deemed expedient by the parties to this Agreement. 14.3. Amendments and Modifications. This Agreement may not be amended or modified except in writing. The amendment or modification must be signed on behalf of both padies by their duly authorized officers. 14.4. Independent Contractor. Hauler will perform the services hereunder as an independent contractor and will furnish such services in its own manner and method, and under no circumstances or conditions may any agent, servant, or employee of Hauler be considered as an employee of the City. 14.5. Subcontractors. 14.5.1. Hauler may use subcontractors in connection with the work performed under this Agreement. When using subcontractors, however, Hauler must obtain prior written approval from the Contract Administrator. NewPutorPayforBFIcontrac~'jr020720051.doc Page 18 of 23 14.5.2. In using subcontractors, Hauler is responsible for all their acts and omissions to the same extent as if the subcontractor and its employees were employees of Hauler. 14.5.3. All requirements of this Agreement imposed on the Hauler are applicable to all subcontractors and their employees to the same extent as if the Hauler and its employees had performed the services. 14.6. Successors end Assigns. This Agreement inures to the benefit of and binds the respective successors and permitted assigns of the parties to this Agreement. 14.7. Contract Administrator. The Contract Administrator designated by the City is responsible for approval of all phases of performance and operations under this Agreement including deductions for non-performance and authorizations for payment. All of Hauler's notices or communications regarding this Agreement must be directed to the Contract Administrator, who is the City's Director of Solid Waste Services. 14.8. Notices. All written notices, reports, and other documents required or permitted under this Agreement must be in writing and are deemed to have been given when delivered personally or deposited in the mails, postage prepaid, registered or certified mail, return receipt requested, or by commercial overnight courier addressed to the party to whom notice is being given at the party's address set forth below. Either party may change its address by sending written notice that complies with this Section. Hauler: BFI Waste Systems of Texas, L.P. Attn: General Manager P.O. Box 9236 Corpus Christi, Texas 78469-9236 Director of Solid Waste Services City of Corpus Christi 2525 Hygeia Street P.O. Box 9277 Corpus Christi, Texas 78469-9277 14.9. Representatives. For billing purposes, the parties designate the following representatives and addresses: Hauler: BFI Waste Systems of Texas, L.P. Attn: General Manager/Division Comptroller P.O. Box 9236 Corpus Christi, Texas 78469-9236 City of Corpus Christi - Financial Services Accounts Receivables 1201 Leopard Street P.O. Box 9257 Corpus Christi, Texas 78469-9257 NewPutorPayforBFIc~ntraclr~r020720051.doc Page 19 of 23 14.10. Fiscal Year. All padies recognize that the continuation of any contract after the close of any fiscal year of the City, which fiscal year ends on July 31 annually, is subject to appropriations and budget approval providing for such contract item as an expenditure in that budget. The City does not represent that the budget item will be actually adopted, that determination is within the sole discretion of the City Council at the time of adoption of each budget. 14.11. Right to Most Favorable Acceptance or Tipping Fees. 14.11.1. If the City enters into an agreement with any other company, person, or legal entity that provides solid waste hauling services or generates, disposes, or transports solid waste to the City's landfill (or enters into a renewal, modification, extension of any existing agreement with such a party), and the document contains provisions for acceptance or tipping fees more favorable to the other party than those in this Agreement, the Hauler shall have the right either to terminate this Agreement or to amend this Agreement to contain such more favorable terms and provisions. 14.11.2. An agreement that offers an equivalent discounted acceptance fee for a commitment to deliver all tonnage collected within the boundaries of the Coastal Bend Council of Governments ("CBCOG") instead of a guaranteed annual tonnage is considered comparable to this Agreement if the other terms and conditions are similar to this agreement. An agreement based on delivery of all tonnage collected within the CBCOG boundaries will include the right of the City to audit for compliance and penalties for failure to deliver all tonnage from the area. 14.11.3. The City will not offer similar agreements to a hauler that has not had a solid waste hauler permit for at least 12 months. 14.12. City Reserves Legislative Authority. Nothing in this contract restricts the right of the City Council to amend the City's Code of Ordinances, including its authority to regulate, permit, and franchise solid waste haulers operating within the City or using the City's solid waste disposal facilities; regulate the storage, transportation, and disposal of any solid waste generated within the City or its industrial districts; or impose taxes, surcharges, utility fees, or other fees, including generator fees, on residents, commercial and industrial facilities located within the City and industrial districts and customers from outside the City who use any of the City's solid waste disposal facilities or services; and including the setting of disposal or tipping fees at City disposal facilities within and outside the City limits. 14.13. Further Actions. Each party agrees that it will, at its own expense, execute any and all cedificates, documents, and other instruments, and take other actions as may be reasonably necessary to give effect to the terms of this Agreement. 14.14. Duplicate Originals. This Agreement may be executed in duplicate originals,, any one of which is considered to be the original Agreement for all purposes. NewPutorPayforBFIcontractrjr020720051 doc Page 20 of 23 14.15. Severability. In the event that any of the provisions, portions, or applications of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the City and the Hauler shall negotiate an equitable adjustment in the provisions of this Agreement with a view toward effecting the purpose of this Agreement, and the validity and enforceability of the remaining provisions, portions, or applications of this Agreement are not be affected by the defect in the provision, portion, or application of the Agreement that was ruled unenforceable or invalid. 14.16. Rights of Third Parties. Nothing in this Agreement is intended to confer any right on any person other than the parties to this Agreement and their respective successors and assigns; nor is anything in this Agreement intended to modify or discharge the obligation or liability of any third person to any party to this Agreement or give any third person any right of subrogation or action over or against any party to this Agreement. 14.17. Headings for Convenience. The headings in this Agreement are for convenience and reference only and in no way define or limit the scope or content of this Agreement or in any way affect its provisions. 14.18. Publicity and Property Rights. 14.18.1. The Hauler may not advertise or otherwise use its relationship with the City under this Agreement in any public disclosure without the prior written consent of the City. The prohibition includes, without limitation, brochures, listings, references, advertisements, announcements, or other release of information concerning the existence, content or performance under this Agreement to any third party. 14.18.2. The Hauler is not permitted to photograph, film, tape or other make audio or visual recording at, or allow any unauthorized person to enter the Landfill without the express prior written consent of the City's Director of Solid Waste Services. 14.18.3. The Hauler may not use or permit the use of the trade or service names, marks, or Iogos of the City or any of its affiliates in any manner. 14.18.4. The Hauler's obligations under this Section 14.12 shall survive the expiration or termination of this Agreement. 14.19. Survival of Obligations. Notwithstanding the expiration or the termination of this Agreement under its terms, any duty or obligation of Hauler, which has not been fully observed, pedormed, or discharged, and any right, unconditional or conditional, which has been created for the benefit of the City, and which has not been fully enjoyed, enforced, or satisfied (including but not limited to the duties, obligations, and rights, if any, with respect to secrecy, indemnity, warranty, guaranty) shall survive the expiration or termination of this Agreement until the duty or obligation has been fully observed, performed, or discharged and the right has been fully enjoyed, enforced, and satisfied. NewPutorPayforBFIconlractrjr020720051.doc Page 21 of 23 14.20. Exclusivity of Remedies. Neither party shall be liable for or obligated to pay punitive, consequential, special, incidental, or indirect damages in connection with the performance of this Agreement. The parties to this Agreement have caused this Agreement to be executed on the date the City's representative executes this agreement. This Agreement is intended to take effect as a sealed instrument. AGREED TO BY: BFI WASTE SYSTEMS OF TEXAS, L.P. RegiOnal Manager Date: THE STATE OF T~cX-A-S- § (~c £Lq~ ~.c COUN'T-Y OF o ~t ~[~ )¢ 2005 This instrument was acknowledged before me n ' ' ~ , , by, Regional Manager, on behalf of BFI Waste Systems of Texas, E.P., a limited padnership. State of 07/1912~8 New PutorPay for BFIcontractdr 02072005.doc CITY O%~US CHRISTI Geor~Ce ~ Noek'''~ City Manager Date: Attest: Armando Chapa City Secretary Approved as to form: This //~'7/~Jay of ~/""'~'-? First Assistant City Attorney For City Attorney ,2005 THE STATE OF TEXAS § COUN'P(OFNUECES ~,~ ~ This instrument was acknowledged before me on · George K. Noe, City M.~nager of the City of Corpus Christi, a Texas C ° r P ° ~~a~sLl~P ° r at i° n ' Notary Public State of Texas ~~"~1 ,2005, by Municipal New PutorPay for BFIcontraclrjr 02072005 doc Pa.~C 23 or' 23 EXHIBIT A EXTRACTS FROM SITE OPERATING PLAN CITY OF CORPUS CHRISTI J. C. ELLIOTI' LANDFILL PERMIT 423A NewPutorPayforBFIcontractrjr020720051.doc Page 1 of 13 4. OPERATIONAL PROCEDURES 4.1. Access Control Public access to the landfill is limited to one existing main entrance from Ayers Street (State Highway 286). Gate house personnel control access and monitor all vehicles entering and exiting the site. Additionally, two other private entrance/exits gates are located at this site; one gate being at the northwest corner and the other at the southwest corner of the landfill on Greenwood Drive. These gates are used from time to time to move equipment to and from maintenance shops, as construction contractor entrances, and other such activities not directly associated with waste hauling. 4.1.1. Access From Public Road Access to the site will be from Ayers Street (State Highway 286) at the existing site entrance. Ayers Street is a two-way, two-lane asphalt-paved road, with an average pavement width of 20 feet. A site sign is prominently displayed adjacent to the gate entrance. 4.1.2. Vehicle Access All waste-hauling vehicles will deposit their loads at the working face or the designated processing area. Only landfill construction vehicles, landfill personnel vehicles, and the authorized haul vehicles will have access to the active portion of the landfill. 4.1.3. All-Weather Access The existing site entrance is paved asphalt drive that transitions into a caliche road. The caliche on-site roads will be maintained for all-weather access by site personnel. The entrance to the facility from Ayers Street and all interior access roads within the site are all-weather roads. Prior to inclement weather, an all-weather access area will be constructed. All-weather road and access area are provided to the active disposal area, and consist of a minimum of 8 inches of crushed caliche and/or crushed asphalt. A pad (may vary in size) may be constructed by the disposal area so that disposal vehicles will have enough room to maneuver while they are disposing of the waste. The caliche/asphalt materials used for all-weather road construction will be salvaged and reused as the access road locations change across the site. Haulers will dump waste at the edge of this designated area and allow the compactor to push the waste into the fill. Therefore, no separate wet-weather operations area will be necessary. 4.1.4. Traffic Control The entrance to the landfill is located on the southeast corner of the site. The gate attendant will restrict site access only to authorized vehicles and will direct these vehicles appropriately. NewPutorPayforBFIcontractrjrO20720051.doc Page 2 of 13 Solid waste transportation vehicles will be weighed at the gate scale and then directed to the active portion of the landfill. Site personnel, signs, and barricades will provide traffic directions as necessary to expedite safe movement of vehicles. 4.1.5 Site Security Site security measures are designed to prevent unauthorized persons from entering the site, to protect the facility and its equipment from possible damage caused by trespassers, and to prevent disruption of facility operations caused by unauthorized site entry. Unauthorized entry into the site is minimized by controlling access to the landfill site with the perimeter fence and locked gates at all entrances. The main site entrance (Ayers Street) is secured by a gate which is monitored by the office/gate attendants during normal site operating hours. Outside normal operating hours, the gate to the site will be locked. All other entrances will remain locked or attended by site personnel. Entry to the active portion of the site will be restricted to designated personnel, approved waste haulers, and properly identified persons whose entry is authorized by site management. Visitors may be allowed on the active area only when accompanied by a site representative. 4.2. Unloading Wastes The landfill is authorized to receive municipal solid waste and those special solid wastes allowable under ' 330.136 of the Texas Natural Resource Conservation Commission ("TNRCC") Municipal Solid Waste Manaqement Requlations ("MSWMR"), 30 TAC Chapter 330. (Note: Underlined text has been added for clarity.) The site is not authorized to receive regulated hazardous wastes or radioactive wastes. These categories of wastes are prohibited at this site by state and federal regulations (refer to Section 6 - Waste Screening Plan). Special wastes will not be handled at this landfill except in accordance with TNRCC regulations and Section 4.20 -Disposal of Special Wastes of this SOP. The unloading of solid waste will be confined to as small an area as practical. Trained personnel will monitor the incoming waste on the trucks. These personnel are familiar with the rules and regulations governing the various types of waste that can or cannot be accepted into this facility, including knowledge of ' 330.136 of the MSWMR. The personnel also have a basic understanding of both industrial and hazardous waste and their transportation and disposal requirements. Solid waste dumping will be controlled to prevent disposal in locations other than those specified by site management. Unloading of waste in unauthorized areas is prohibited and site personnel shall take the NewPutorPayforBFIcontractrlr020720051.doc Page 3 of 13 necessary steps to ensure compliance with this provision. Any waste deposited in an unauthorized area shall be removed promptly and disposed of properly. Rules for waste disposal and prohibited waste will be prominently displayed on signs at the site entrance. Refer to Section 6 - Waste Screening Plan for specific waste handling procedures. 4.3. Hours of Operation The facility is open for operation six days a week, Monday through Saturday. Normal operating hours for receiving wastes will be between 7:00 a.m. to 7:00 p.m., Monday through Saturday. The site will be closed on Sundays and cedain holidays. Operation on Sundays will be limited and only held in conjunction with special events such as community clean ups. Operation of the site for special occasions, special purpose events, or other special occurrences will also be within the approved times of 7:00 a.m. and 7:00 p.m. Operation on cedain Holidays will be conducted from 6:00 a.m. to 2:00 p.m. to accommodate the needs of customers. 4.4. Site Signs An entrance sign is displayed at the entrance to the site. This sign states the name of the site, type of site, hours and days of operation, and the TNRCC permit number. A sign prohibiting certain types of waste such as hazardous waste, Class I waste, and smoking will be posted outside the landfill entrance. 4.5. Control of Windblown Wastes and Lifter Windblown wastes will be controlled by several means. All waste transportation vehicles using this facility will be required to have in- place adequate covers or other means of containment for the wastes they transport. The adequacy of covers or containment of incoming wastes will be checked at the facility entrance. To further minimize windblown wastes, the facility will provide litter control fences, as necessary, at appropriate locations near the working face and elsewhere. The litter control fence will be at least 5 feet high and will be located as close as practical to the landfilling area. Periodically (at least weekly), as part of the overall site maintenance program, facility personnel will collect windblown waste materials which may have accumulated on-site and on both on and off-site access roads. The working face of the active disposal area shall be covered daily to avoid prolonged exposure of wastes, and to minimize windblown material. NewPutorPayforBFIcontractrjrO20720051.doc Page 4 of 13 4.8. Control of Waste Spilled on Route to the Site The Landfill Superintendent will take steps to ensure that vehicles hauling waste to the site are enclosed or provided with a tarpaulin, net, or other means to properly secure the load. These steps are necessary to prevent the escape of any part of the load by blowing or spilling. Signs stating this policy will be posted and offenders may be reported by the Landfill Superintendent to proper law enforcement officers. The Landfill Superintendent will be responsible for the cleanup of waste materials spilled along and within the right-of-way of all public access roads serving the site for a distance of 2 miles in either direction from any entrance used for delivery of waste to the site. The Landfill Superintendent will consult with officials of the Texas Department of Transportation concerning cleanup of state highways and right-of-ways. 4.9. Disposal of Large Items Large appliances and other heavy items will not be placed within 5 feet of the liner. Items classified as large, heavy, or bulky may include, but are not limited to, white goods (household appliances), air conditioner units, and large metal pieces. In addition the site will maintain a Steel Recycling area near the site main entrance where large appliances and other metallic items can be stored until recycled. CFC removal will be conducted at this area. CFC's will be removed at least semi-monthly. Appropriate house keeping will be maintained at all times. 4.10. Air Quality Control Measures to control air pollution may include, but are not limited to, the following items: $ No open burning of waste will be permitted at the proposed facility $ Freshly landfilled waste will be promptly covered with dirt or approved alternative daily covers. $ Odor masking agents such as sanifoam may be utilized as necessary $ Ponded water at the site will be controlled as detailed in Section 4.19 $ Accidental fires will be controlled as outlined in Section 7 - Fire Protection Plan The Landfill Superintendent will ensure that any unit of the municipal solid waste facility does not violate any applicable requirement of the approved State implementation Plan developed under the Clean Air Act, Section 11 0, as amended. 4.1 1. Disease Vector Control The need for extensive vector control (control of rodents, flies, and mosquitoes) will be minimized through daily site operations, which include the application of daily and final NewPutorPayforBFIcon[ractr~rO20720051.doc Page 5 of 13 cover. The extent of the working face will also be minimized. Site operators will make daily checks for insects or rodents associated with the operations and will report problems to the Landfill Superintendent. If necessary, a licensed professional should apply pesticides to ensure that proper chemicals are used and are properly applied. 4.13. Salvaging and Scavenging Salvaging will not be allowed to interfere with prompt sanitary disposal of solid waste or to create public health nuisances. Salvaged materials will be considered as potential recycled materials. Salvaged items will be removed from the site often enough to prevent the items from becoming a nuisance, to preclude the discharge of pollutants from the area, and to prevent an excessive accumulation of the material at the site. Special wastes received at the site will not be salvaged. Scavenging will be prohibited at all times. 4.20. Disposal of Special Wastes Acceptance of special wastes will be performed in accordance with MSWMR ' 330.136(b) requirements. Special wastes that will be accepted at the site include non- regulated asbestos-containing material (non-RACM), and wastes from health care related facilities. Other special wastes may be accepted. If these wastes are addressed in ' 330.136 of the MSWMR, they will be handled in accordance with the procedures provided therein for that specific waste. Should a different procedure be devised or the specific waste not be addressed therein, then a request will be made in accordance with Section 330.136(a)(2) and approval received prior to acceptance of those wastes. The special wastes that will be accepted at the site and handling procedures are discussed below. Non-Regulated Asbestos Containing Materials (Non-RACM) Non-RACM will be accepted. The non-RACM shall be disposed in the active working face and immediately covered with at least two (2) feet of other solid waste. Precautions shall be taken by site personnel to eliminate the crushing or grinding of non-RACM into a friable state. Wastewater Treatment Plant Sludge Treated wastewater plant sludges will be accepted. Other material will receive TNRCC approval prior to its disposal. The processed material will be required to pass a paint filter test prior to disposal on the working face of the landfill, as prescribed in 30 TAC ' 330.136(b)(7). NewPutorPayforBFIcontractrjr020720051.doc Page 6 of 13 DEAD ANIMALS The site may receive dead animals that are delivered to the site independent of other wastes. Dead animals will be buried and covered with a minimum of 3 feet of solid waste or a minimum of 2 feet of soil immediately upon receipt. Special Waste Report Submittal The Landfill Superintendent will submit to the TNRCC a monthly summary of special wastes received at the landfill. This report will be submitted no later than the 25th day of the month following the month in which the waste was received. The reports will be submitted on forms provided by the TNRCC. Failure to file the repods in a timely manner is considered a violation of the MSWMR. 4.21. Disposal of Industrial Waste Class I industrial waste will not be accepted at the site. Class II and Class III industrial solid waste will be accepted as long as the acceptance does not interfere with normal operations. In the event that a Class I industrial solid waste arrives at the site, the appropriate departments and offices of the TNRCC will be notified. The applicable phone numbers will be included in a list of emergency phone numbers posted in the gate house and the landfill office. If the waste presents an emergency situation, the TNRCC Emergency Response Unit will be contacted. The appropriate agencies will be requested to provide assistance to the City through their respective enforcement capabilities concerning transporters and waste generators in the proper management of unauthorized waste received at the site. Refer to Section 6 - Waste Screening Plan and Section 4.2-Unloading Waste for waste screening procedures. 4.22. Prevention of Discharge of Contaminated Water The Landfill Superintendent will take all steps necessary to control and prevent the discharge of contaminated water from the facility. Should the discharge of contaminated water become necessary, the Landfill Superintendent will obtain specific written authorization from the TNRCC prior to discharge. 4.23 Leachate and Contaminated Water Plan Leachate and contaminated water will be controlled as specified in the Leachate and Contaminated Water Plan. NewPutorPayforBFIconlractrjr020720051.doc Page 7 of 13 6. WASTE SCREENING PLAN Part A - Purpose The purpose of this plan is to prevent the unauthorized entry of waste not approved for disposal at the landfill; to protect both personnel and customers using the landfill; achieve permit compliance; and assure the environment of the landfill and surrounding area is protected from contamination from unauthorized waste. Conformity to the plan will assure efficient and effective processing of all waste at the landfill. The types of wastes that are accepted at the landfill as well as the procedures for waste inspection and handling are outlined in the Site Operating Plan. Part B - Training Training requirements of landfill personnel to recognize and handle unauthorized waste will include the following: Familiarization of the Site Operating Plan Successful completion of formal waste screening training provided by: in-house instruction, the Texas Engineering Extension Service (TEEX), or Solid Waste Association of North America (SWANA) Records of all course attendance will be kept as well as copies of any certificates issued. A periodic review of the information provided in these sources will take place as needed. Part C - Prevention of Unauthorized Disposal Methods used to prevent unauthorized disposal will be accomplished at four (4) levels. Each level will be designed to vidually eliminate random inspections. Level One - Education and Information A sign at the entrance to the landfill will describe wastes that are not accepted for disposal and will inform customers that their waste is subject to inspection. An informational bulletin detailing the waste inspection process will be given once a year to all existing and to new customers. A letter detailing the waste acceptance policy will be mailed to the management of all major firms and municipalities who actively use the landfill. Information on the waste inspection process will be given to the local newspaper for presentation as a public service announcement. NewPutorPay/orBFIconlract~rO20720051.doc Page 8 of 13 Level Two - Random Load Selection The selection of loads for random waste inspection consideration will exclude two groups of transporters: 1. Transporters who provide adequate documentation (as specified in 30 TAC ' 330.32(d) that unallowable wastes are avoided in the residential routing of collection vehicles. These vehicles will be identified by number. 2. Transporters of mixed residential and commercial waste that can provide assurance that the generator properly classifies the waste and is routinely checked by the transporter for compliance. Individual vehicles not associated with any commercial activities or businesses will also be generally exempted from waste screening consideration. All other vehicles will be included in the pool of loads for waste screening consideration. Backup Procedure: In accordance with 30 TAC ' 330.114 (5)(A); If at any time an excluded vehicle outside the pool is found to have suspect waste within a Icad, the exemption status of that vehicle will become null and void, thereby subjecting it to waste screening consideration. Level Three - 30 TAC ' 330.32(d) All transpoders will be required to comply with 30 TAC ' 330.32(d). A surcharge for waste removal will be assessed to any transporter who is discovered to have dumped an unacceptable waste. In all cases the site operator refuses to accept ownership of any unauthorized waste. Level Four - Screening Waste screening will take place in the following three ways: All manifested wastes will be checked for conformance to the manifest. Vehicles transporting manifested wastes will be excluded from the pool of vehicles subjected to random waste screening sampling. All vehicles entering the landfill for disposal purposes including those not related to any business or commercial activity will be screened for unauthorized waste at the entrance gate. The operator maintains the right to question the driver of any vehicle entering the landfill. Any suspect loads will be directed to the waste screening site for inspection. All inspections will be documented in the operating record. Screening at the working face will be done by the attendant and the equipment operator by observing both the offloading and spreading of the waste. NewPutorPayforBFIconlrac'b'jr020720051.docPage 9 of 13 4. Random waste inspection will be accomplished by determining the pool of vehicles available for inspection, including all vehicles not previously mentioned as being excluded. From this pool, one vehicle will be randomly inspected on a weekly basis as recommended by the Texas Engineering Extension Service (TEEX). 5. The random one percent selection from the pool of vehicles available for inspection will be made using random number tables. Part D - Waste Inspection Process The waste screening process will involve the following steps: Step One - Determination of waste load to be screened. (As outlined in Part C.) Step Two - Preparation of the waste screening site. A concrete pad will be constructed at the landfill approximately 50' x 100' in size and windscreen fencing will be utilized to maintain wastes within the designated area. Step Three - A team of people will be selected to conduct the waste screening process. Personnel involved in the waste screening process will include those who meet the following criteria: must have completed the training requirements outlined in Part B (and basic first- aid training) must possess good oral and written communication skills must be free of any physical limitations that would hinder pertormance of screening operations must possess good vision, good sense of smell and the ability to readily detect heat Step Four - The basic equipment needed to pertorm the waste screening process will include the following: rake, hoe, shovel for the purposes of moving and sorting waste wire cutter and pry bar the purpose of opening containers poles and flagging for the-purpose of marking areas of suspected waste contamination inspection forms, watch, camera, clip board for the purposes of recording the inspection results fire extinguisher, absorbent material and soil for the purpose of fire suppression and spill containment NewPu~orPayforBFIcontractr~rO20720051.doc Page 10 of 13 paint filter test kit for the purpose of determining free liquids first-aid kit two-way radio for communication purposes Step Five - Protective equipment needed to perform the waste screening process will include the following: safety goggles for eye protection chemically resistant boots, gloves and tyvek suits hardhat Step Six - Waste screening recording form. (Attached in Section 9) Step Seven - Remediation: In accordance with 30 TAC ' 330.114 (5) (E); the following procedure will be followed in the event that a hazardous or non-allowable waste is found in the waste screening process: Non-allowable wastes will be loaded back onto the vehicle and the transporter will be required to give evidence of where the waste is taken for disposal. Hazardous wastes if identifiable and not an imminent threat to the landfill or human health, will be removed from the screening area and temporarily confined in the hazardous waste storage building of the household hazardous waste facility (located adjacent to the screening area), until such time that arrangements for its removal and subsequent disposal can be made by a hazardous waste contractor. If, however, the waste does pose an imminent threat to the landfill or human health, the City's Fire Department (Hazmat Unit) will be contacted to secure the waste and assure its safe containment. In either case, any costs associated with the proper disposal will be the responsibility of the transporter who brought the waste to the landfill. NewPutorPayforBFIcontractiir020720051.doc Page 1 1 of 13 7. FIRE PROTECTION PLAN The following steps must be taken regularly by designated landfill personnel to prevent fires: Burning waste must be prevented from being dumped in the active area of the landfill. The Gate Attendant and equipment operators must be alert for signs of burning waste such as smoke, steam, or heat being released from incoming waste loads. $ Fuel spills must be contained and cleaned up immediately. Dead trees, brush, or vegetation adjacent to the landfill must be removed immediately, and grass and weeds mowed so that forest, grass, or brush fires cannot spread to the landfill. $ No smoking on the active areas of the landfill site. Specific Fire-Fighting Procedures If a fire occurs on a vehicle or piece of equipment, the first step is to bring the vehicle or equipment to a safe stop. If safety of personnel will allow, the vehicle must be parked away from fuel supplies, uncovered solid wastes, and other vehicles. Shut off the engine, engage the brake, or use some other appropriate method to prevent subsequent movement of the vehicle. If the fire is in the working face, the burning area should be isolated, by pushing the fire, with the wind, out of the working face. Soil should be placed on the fire to smother it. If this is not possible or unsafe, efforts to cover the working face with earth must be initiated immediately to smother the fire. General Rules for Fire Incidents Contact the Fire Department by calling 361/854-9704 or 911. The Cities Fire Department, approximately 3.5 miles away, would respond if necessary. Alert other facility personnel. Assess extent of fire and possibilities for the fire to spread and alternatives for extinguishing the fire. If it appears that the fire can be safely fought with available fire fighting devices until arrival of the Fire Depadment, attempt to contain or extinguish the fire. Upon arrival of Fire Department personnel, direct them to the fire, and provide assistance, as appropriate. NewPutorPa¢orBFIcontractrjr020720051.doc Page 12 of 13 $ Do not attempt to fight a fire alone. $ Do not attempt to fight a fire without adequate personal protective equipment. $ Be familiar with the use and limitation of firefighting equipment. Fire fighting methods include smothering with soil, separating burning material from other waste, and spraying with water from the water truck or pumped from nearby ponds or streams. If detected soon enough, a small fire may be fought with a hand-held extinguisher. Fire extinguishers will be located at the Gate House and on each piece of operating equipment. Generally, the firefighting technique that can be quickly employed to fight a landfill fire is smothering with soil. The faster that soil can be placed over the fire, the more effective this method will be in controlling and extinguishing the fire. Enough cover soil will be stockpiled within 2500 feet of the working face or active disposal area to cover the entire working face. The site must be provided with fire extinguishers, of a type, size, location, and number as recommended by the local Fire Department or the City's insurance carrier. Fire extinguishers must be fully-charged and ready for use at all times. Each extinguisher must be inspected on an annual basis and recharged as necessary. These inspections must be performed by a qualified service company, and all extinguishers must display a current inspection tag. Inspection and recharging must also be performed following each use. The gate house, as well as all landfill equipment and vehicles, will be equipped with fire extinguishers. NewPutorPayforBFIcontractdr020720051.doc Page 13 of 13 EXHIBIT B INSURANCE REQUIREMENTS 1. Hauler Liability Insurance The Hauler may not deliver any solid waste to the City's J. C. Elliott Municipal Landfill under this Agreement until Hauler has obtained all insurance required by this exhibit and the required insurance has been approved by the City. The Hauler may not allow any subcontractor to deliver solid waste to the Landfill until all similar insurance required of the subcontractor has been obtained and approved. The Hauler must furnish to the City's Risk Manager, 2 copies of Certificates of Insurance, with the City named as an additional insured for all liability policies, and a blanket waiver of subrogation on all applicable policies, showing the following minimum coverage by insurance company(s) acceptable to the City's Risk Manager. TYPE OF INSURANCE 30-Day Notice of Cancellation required on all certificates Commercial General Liability including: 1. Commercial Form 2. Premises - Operations 3. Products/Completed Operations Hazard 4. Contractual Insurance 5. Broad Form Property Damage 6. Independent Contractors 7. Personal Injury 8. Pollution Liability AUTOMOBILE LIABILITY--OWNED NON- OWNED OR RENTED WORKERS' COMPENSATION EMPLOYERS' LIABILITY PROFESSIONAL POLLUTION LIABILITY/ENVIRONMENTAL IMPAIRMENT COVERAGE Not limited to sudden & accidental discharge; to include long-term environmental impact for the disposal of contaminants MINIMUM INSURANCE COVERAGE Bodily Injury and Property Damage $1,000,000 COMBINED SINGLE LIMIT AGGREGATE LIMIT OF LIABILI-I-Y FOR EACH POLICY PERIOD $1,000,000 COMBINED SINGLE LIMIT WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION ACT AND PARAGRAPH 2.A. OF THIS EXHIBIT $100,000 $1,000,000 AGGREGATE LIMIT OF LIABILITY FOR EACH POLICY PERIOD NewPutorPayforBFIcontractqr020720051.doc Page 1 of 3 In the event of accidents of any kind, the Hauler must furnish the Risk Manager with copies of all reports of such accidents at the same time that the repods are forwarded to any other interested parties. 2. ADDITIONAL REQUIREMENTS The Hauler and its subcontractors must obtain workers' compensation coverage through a licensed insurance company or through self-insurance obtained in accordance with Texas law. If such coverage is obtained through a licensed company, the contract for coverage must be written on a policy and endorsements approved by the Texas Department of Insurance. If such coverage is provided through self-insurance, then within 10 calendar days after the date the Contract Administrator or his designee requests that the Hauler sign the contract documents, the Hauler must provide the Risk Manager with a copy of its certificate of authority to self- insure its workers' compensation coverage, as well as a letter signed by the Hauler stating that the certificate of authority to self-insure remains in effect and is not subject to any revocation proceeding then pending before the Texas Workers' Compensation Commission. Further, if at any time before the expiration of the Agreement by the City, the certificate of authority to self-insure is revoked or is made the subject of any proceeding which could result in revocation of the cedificate, then the Hauler must immediately provide written notice of such facts to the City, by certified mail, return receipt requested directed to Director of Solid Waste Services, City of Corpus Christi, P.O. Box 9277, Corpus Christi, TX 78469-9277. Whether workers' compensation coverage is provided through a licensed insurance company or through self-insurance, the coverage provided must be in an amount sufficient to assure that all workers' compensation obligations incurred by the Hauler and its subcontractors will be promptly met. B. Certificate of Insurance: The City of Corpus Christi must be named as an additional insured on the liability coverage, except for the Workers' Compensation coverage and a blanket waiver of subrogation on all applicable policies. If your insurance company uses the standard ACORD form, the cancellation clause (bottom right) must be amended by adding the wording "changed or" between "be" and "canceled", and deleting the words, "endeavor to", and deleting the wording after Uleft". The name of the project, e.g., "City of Corpus Christi Solid Waste Hauler Agreement" must be listed under "Description of Operations" NewPutorPayforBFIcontractrjr020720051 doc Page 2 of 3 At a minimum, a 30-day written notice to the City's Risk Manager of change or cancellation is required. If the Certificate of Insurance on its face does not show on its face the existence of the coverage required by items 1 .B.(1 )-(8), an authorized representative of the insurance company must include a letter specifically stating whether items 1 .B.(1)-(8) are included or excluded. NewPutorPayforBFIcontraclrjrO20720051.do~ Page 3 of 3 WASTE DISPOSAL AGREEMENT BETWEEN THE CITY OF CORPUS CHRISTI AND BFI WASTE SYSTEMS OF TEXAS, L.P. R13333AA.doc Article 1 2 3 4 5 6 7 8 9 10 11 12 13 14 TABLE OF CONTENTS Subject Page Number General Provisions .................................................................................... 1 Accepi[able Waste ..................................................................................... 6 Fees ........................................................................................................... 7 Billing and Payments .................................................................................. 7 Landfill Procedures ............................................................................... 8 Assignments ............................................................................................. 10 Insurance ................................................................................................. 10 Indemnification ....................................................................................... 11 Governmental Regula[ion ...................................................................... 13 Suspension for Force Majeure ................................................................. 1 3 Liquidated Damages and Default ............................................................. 14 Representation and Warranties ................................................................ 16 Governing Law and Venue ....................................................................... 17 Miscellaneous Provisions ......................................................................... 17 R13333AA.doc WASTE DISPOSAL AGREEMENT This Waste Disposal Agreement ("Agreement") between the City of Corpus Christi ("the City"), and BFI Waste Systems of Texas, L.P. ("Hauler") requires the City to accept, process, and dispose of acceptable solid waste brought by the Hauler to the City's J. C. Elliott Municipal Landfill ("Landfill"), located at 7001 Ayers in the City of Corpus Christi, Texas, and requires the Hauler to deliver to the Landfill and pay for the disposa~ of a minimum volume of acceptable Solid Waste under the terms and conditions of this Agreement. The parties agree to the following: ARTICLE 1. GENERAL PROVISIONS. 1,1. Definitions. The following words and phrases have the following meanings when used in this Agreement: Acceptable waste means garbage, litter, refuse, rubbish, yard waste, heavy brush, debris, and construction/demolition materials, but does not include hazardous, medical, or unacceptable waste. Act means the Solid Waste Disposal Act, as amended, 42 U.S.C. 6901, et seq. Bulky items means indoor and outdoor furniture, mattresses and box springs, carpet, swing sets, plastic swimming pools, large toys, bicycles, fish aquariums, and large household appliances. CERCLA means the Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended, 42 U.S.C. 9601, et seq. Clean wood waste means individual pieces of wood of the type normally sold by lumbe( yards and home improvement centers that is free of hardware and other large fasteners, such as hinges, hurricane straps, latches, etc., and is not attached to concrete, wallboard, roofing materials, or other construction materials. Coastal Bend Region means Aransas, Bee, Brooks, Duval, Jim Wells, Live Oak, Kenedy, Kleberg, McMullen, Nueces, San Patricio, and Refugio Counties. Construction/demolition materials means waste resulting from construction or demolition projects, including brick, concrete, concrete rubble, gypsum board, lumber, sheetrock, roofing materials, fixtures (such as bath tubs, shower stalls, sinks, and toilets), and remodeling debris (such as cabinets, ceramic tile, Formica, and similar items). Debris means large waste materials, such as construction/demolition materials, ashes, roofing materials, dirt, automobile frames, tires, or other bulky heavy materials. R13333AAdoc Page 1 of 22 Effective date means July 1,2001. Force Majeure means any event or condition, whether affecting the Landfill, the City, or the Hauler, that has, or may reasonably be expected to have, a material adverse effect on a party's obligation under this Agreement or on the Landfill, if the event or condition is beyond the reasonable control, based on sound management or industry practices, and not the result of willful or negligent action or a lack of reasonable diligence, of the party ("non-performing party") relying the event or condition as justification for not performing any obligation or complying with any condition required of the party under this Agreement. The following events or condition shall, if they meet the requirements of the preceding sentence, constitute a Force Majeure: (a) An act of God, storm, flood, or similar occurrence (except for weather conditions normal for the area) landslide, earthquake, fire, or other casualty, an act of the public enemy, war, blockage, insurrection, riot, general arrest or restraint of government and people, civil disturbance or similar occurrence. (b) The order or judgment of any Federal, State, or local court, administrative agency, or governmental officer or body, if it is not also the result of willful or negligent action or a lack of reasonable diligence of the non-performing party, and the non-performing party does not control the administrative agency or governmental officer or body, provided that the diligent contest in good faith or' any order or judgment does not constitute or may not be construed as a willful or negligent action or a lack of reasonable diligence of the non-performing party. (c) The adoption, promulgation, issuance, material modification, or change in interpretation, after the date of this Agreement, of any Federal, State, or local law, regulation, rule, requirement, or ordinance. (A law, regulation, 'rule, requirement, or ordinance is duly adopted, promulgated, issued or otherwise officially modified or changed in interpretation, when it is in provisional, interim, or final form and effective or to become effective without any further action by any Federal, State or local governmental body, administrative agency, or governmental official having jurisdiction.) (d) The failure of the City or public utilities having operational jurisdiction in the area of the Landfill to provide, maintain, and assure the maintenance of all utilities, services, sewerage, and water lines essential to the operation of the Landfill, except a failure caused by the gross negligence, willful action, or a lack of reasonable diligence by the City. (e) A strike, Iockoul, or other similar labor action; (f) The failure to obtain or maintain any essential permit or license from any governmental unit; R13333AA.doc Page 2 of 22 Garbage means putrescible animal or vegetable matter, such as waste matedal and refuse usually associated with the preparation of food from kitchens, residences, grocery stores, butcher shops, restaurants, cafes, hotels, rooming houses, and boardinghouses, but does not include sewage, body waste, or industrial byproducts. Hazardous waste means: (a) Any waste, material, or substance, which by reason of its composition or characteristic is regulated as a toxic or hazardous waste or hazardous substance under applicable laws, including without limitation: (i) The Solid Waste Disposal Act, also known as the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6901, et seq., as replaced or amended from time to time, and the rules, regulations, written policies, or written guidelines promulgated the Act (including without limitation, 40 C.F.R. Section 261.4, which generally excepts household waste from the definition of Hazardous Waste). (ii) The Toxic Substances Control Act, 15 U.S.C. 260, et seq., as replaced or amended from time to time, and the rules, regulations and written policies and written guidelines promulgated the Act. (iii) Any State law or regulation or governing the storage, transpodation, and disposal of solid waste, hazardous waste, toxic materials, or hazardous substances, including but not limited to the Texas Solid Waste Disposal Act, Texas Health and Safety Code, Chapter 361, and 30 Texas Administrative Code Chapter 330. (b) Radioactive material, which is source, special, nuclear, or by-products material within the meaning of the Atomic Energy Act of 1954, as replaced or amended from time to time, and the rules, regulations, and written policies or written guidelines promulgated under the Act. (c) Any other waste, material, or substance, which is characterized or de~ned to be toxic or hazardous by the State of Texas, TNRCC, or USEPA with respect to the Landfill or by any other Federal or State regulatory agency having jurisdiction over the Landfill under any written regulation, policy, guideline, or order having the force of law. (d) Notwithstanding the above, if the TNRCC or USEPA determine by wdtten regulation, policy, guideline, or having the force of law in relation to: (i) A waste, material, or substance, which is not considered toxic or hazardous as of the effective date of this Agreement, is toxic or hazardous, then the waste, material, or substance shall, from the R13333A. A.doc Page 3 of 22 effective date of the determination by TNRCC or USEPA, constitutes a hazardous waste for purposes of this Agreement. (ii) A waste, material, or substance, which is considered toxic or hazardous as of the effective date of this Agreement, is not toxic or hazardous, then such waste, material, or substance shall, from the effective date of the determination by TNRCC or USEPA, no longer constitutes a hazardous waste for the purposes of this Agreement. Heavy brush means tree and shrub limbs and trimmings, which are greater than three (3) inches in diameter, tree trunks, root balls, and other large plant matter. Household appliance means general household appliance that will not fit into a refuse receptacle including: Non-metal appliance, such as a television set, stereo system, video cassette recorder (VCR), microwave oven, and other similar item constructed primarily of plastic or other non-metallic pads Metal appliance, such as a slove, cooking range, oven, dishwasher, washing machine, clothes dryer, refrigerator, window air conditioning unit, water heater, lawn mower or edger, and other similar items constructed primarily of metal parLs. Household waste means garbage, rubbish, litter, refuse, yard waste, debris, and limited construction/demolition materials commonly generated by a residential household. Jurisdictional waste means waste collected within the City or its industrial districts. Landfill means the J. C. EIliott Municipal Landfill located at 7001 Ayers, Corpus Christi, Texas. Litter means any rubbish, paper, napkins, straws, cups or containers made of paper, plastic, Styrofoam (or other similar material), bottles, glass, candy or gum wrappers, remnants of food, cans, or remnants or pads thereof, or any material of an unsanitary nature. Medical waste means waste generated by health-care related facilities and associated health-care activities, including veterinary services, but not including garbage or rubbish generated from offices, kitchens, or other non-health-care activities. Recyclable means a waste material thai has been designated by the Director for inclusion in the City's recycling program, that has a useful physical or chemical property after serving its origina~ purpose, or that may be reused, sold as a commodity, or converted into another product. R13333,~A doc Page 4 of 22 Refuse means a mixture oi'garbage, rubbish, and other waste that are normally placed in a receptacle for collection and disposal, but does not include yard waste, heavy brush, debris, or construction/demolition materials. Rubbish means non-decayable solid waste, excluding ashes, that consist of combustible materials, such as paper, rags, cartons, wood, rubber, plastics, and similar materials, and noncombustible matter, such as glass, crockery, metal cans, and similar materials that do not burn at ordinary incinerator temperatures. Site Operating Plan means the Site Operating Plan for the City of Corpus Christi J. C. Elliott Landfill generally applicable to customers utilizing the Landfill, as determined by the City. Sofid waste means garbage, rubbish, litter, refuse, yard waste, heavy brush, debris, and construction/demolition materials. Tipping fee rate means the rate charged to a commercial vehicle disposing of solid waste at a the City disposal site. TNRCC means Texas Natural Resource Conservation Commission. Ton means 2,000 pounds. Trash means a single item of rubbish, not otherwise defined as debris or construction/demolition material, but including a small household appliance that will not fit into a conventional refuse receptacle. Unacceptable waste means waste that the City is not allowed to accept under the rules issued by the TNRCC or the Site Operating Plan. USEPA means the United States Environmental Protection Agency. Yard Wa'ste means grass clippings, weeds, leaves, mulch, small trees and shrub limbs, which are less than three (3) inches in diameter and less than five (5) feet in length, and other similar plant matter. 1.2. Interpretation. In this Agreement, unless the context otherwise requires, words of masculine gender means and include correlative words of feminine and neuter genders and words importing the similar number means and include the plural number and vice versa. 1.3. Term. 1.3.1. Unless sooner terminated under the terms of this Agreement, this Agreement is in effect and remains in full force and effect the during period from the effective date through the date the City stops accepting all forms of acceptable waste at the Landfill from permitted haulers. R13333AA doc Page 5 of 22 1.3.2. Upon expiration of the term, the Hauler's obligations to deliver acceptable waste and the Cily's obligations to accept, process, and dispose of acceptable waste shall terminate. 1.3.3. However, the provisions of Article 8 and Sections 12.3, 14.18, and 14.19 shall survive the termination or this Agreement. 1.3.4. The City will provide the Hauler with annual notice of the anticipated life span of the Landfill. 1.3.5. The City will provide at least 12 months notice of the date the City will no longer accept all forms of acceptable waste from permitted haulers at the Landfilt. 1,4. Hauler Required to Obtain City Permits, The Hauler must obtain a solid waste hauter's permit as required by applicable City ordinances. ARTICLE 2. ACCEPTABLE WASTE 2.1. Acceptable Waste. 2.1.1. The Hauler shall deliver only acceptable waste, 2.1.2. Any acceptable waste co-mingled with hazardous, medica1, or unacceptabte waste will be considered unacceptable waste 2.1.3. At any time, the City and Hauler mutually may agree in writing that any materials, which are defined as unacceptable waste in Section 1.1. of this agreement, should in the future be reclassified as acceptable waste. 2.2. Guaranteed Tonnage. 2.2.1. Commencing on the erfeclive date, the Hauler guarantees to deliver not less than 150,000 tons per year ("guaranleed annual tonnage") of jufisdictionaI waste and acceptable waste collected outside the City's limits to the Landfill, and the City guarantees that it will accept the waste. 2.2.2. The Hauler shall deliver the guaranteed annual tonnage. The Hauler's targeted monthly tonnage delivery schedule is attached to and incorporated into this Agreement as Exhibit A. 2.3. Adjustments to Guaranteed Tonnage. 2.3.1. If no~ithstanding the Hauler's best afro,ts and implementation of best business practices, the Hauler documents to the reasonable satisfaction of the City a loss of customers in the Coastal Bend Region, which has resulted in a net decline of more than 10% of the deliveries to the Landfill by the Hauler, and as a result the Hauler is unable to deliver the guaranteed tonnage for a period in R13333A.A doc Page 6 of 22 excess of a year, the parties will act in good faith to renegotiate the guaranteed tonnage. 2.3.2. The Hauler may request a change in its guaranteed tonnage sixty days before the annual anniversary date of this Agreement. 2.4. Hauler Agrees Not to Deliver Unacceptable Waste. The Hauler agrees that the Hauler will not deliver hazardous, medical, or unacceptable waste to the City. 2,5. Ownership of Solid Waste. Any solid waste delivered to the Landfill remains the property of the generator. Legal title to the solid waste shall never pass to the City. Upon request, the Hauler will make records available to the City to determine the generators of any hazardous, medical, or unacceptable waste delivered to the Landfill. ARTICLE 3. FEES 3.1. Acceptance Fee for Guaranteed Monthly tonnage. The discounted acceptance fee for acceptable waste delivered by the Hauler to the Landfill is $1 9.50 per ton, plus any mandated Federal or State fees. 3,2. Payment of Permitting Fees. The Hauler agrees to pay all solid waste permitting fees imposed by City ordinances. ARTICLE 4. BILLING AND PAYMENTS. 4.1. Billing. After the end of each month, the City will bill the Hauler for the total fees due for the billing pedod. 4.2. Payments_ The Hauler shall make payment to the City of the amount of each bill within 30 days of the billing date ("due date") shown on the bill. 4.3. Overdue Charges. If payment in full is not made on or before the due date, the Hauler shall pay an administrative late fee of $100 and any amount remaining unpaid shall bear interest at the rate of one and one half percent (1-1/2%) per month or the highest rate that may then be lawfully charged and paid, whichever is less, from the due date to the actual date of payment. 4.4. Disputes. 4.4.1. In the event of a dispute as to any monthly payment the Hauler shall pay when due the amount of the bill, less the amount in dispute. 4.4.2. The Hauler shall give the City, at the time payment is made on the bill, written notice of the dispute. 4.4.3. The notice of dispute shall state the amount in dispute and a full statement of the grounds that form the basis of the dispute. R13333AAdoc Page 7 of 22 4.4.4. Upon settlement by the parties of the dispute, if the City prevails, the Hauler shall pay interest on any amount not paid by the due date at the interest rate specified in Section 4.3. 4.5. Fees Not Subject to Set-Off. The obligations of the Hauler to pay fees under the terms under this Agreement are not subject to any set-off, abatement, counterclaim, existence of a dispute or any reason, known or unknown, foreseeable or unforeseeable, which might otherwise constitute a legal or equitable defense or discharge of the liabilities of the Hauler under this Agreement or limit recourse to the Hauler. 4.6. Payment of Fees No Bar to Claims for Abatements, Refunds, or Adjustments. Payments made under this Article do not prejudice the rights of the Hauler to claim abatements, refunds or adjustments to which it is entitled under this Agreement. ARTICLE 5. LANDFILL PROCEDURES. 5.1. Acceptance of Solid Waste. The City will accept at the LandFill all acceptable waste delivered by the Hauler under the terms of this Agreement unless the City has rejected the solid waste under Section 5.2. of this Agreement. 5.2. Rejection of Solid Waste. 5.2.1, The City is not obligated to accept waste if the Landfill is closed due to a Force Majeure. 5.2.2. The City is not obligated to accept waste if the Hauler's account is more than 60 days in arrears of the due date. But the City will accept any acceptable waste if the Hauler makes a cash payment at the time of delivery. 5.2.3. The Hauler fails to comply with any published delivery procedures. 5.2.4. If a delivery of solid waste contains both acceptable waste and any hazardous, medical, or unacceptable waste. 5.3. Improper Delivery of Hazardous, Medical, or Unacceptable Waste to Landfill. The Hauler agrees to comply with the provisions in the Site Operating Plan relating to the improper delivery of hazardous, medical, or unacceptable waste and the procedures for removing any hazardous, medical, or unacceptable waste from the Landfill. The Hauler agrees to pay any charges relating to the removal and disposal of hazardous, medical, or unacceptable waste that would be charged to any other permitted hauler that improperly delivered hazardous, medical, or unacceptable waste to the Landfill. 5,4. City Not Required to Screen Waste. Nothing in this Agreement obligates the City to screen waste or to detect hazardous, medical, or unacceptable waste delivered by the Hauler. R13333AA doc Page 8 of 22 5.5. Delivery Schedule. 5.5.1. During the term, the Hauler may deliver acceptable waste to the Landfill during its normal posted hours of operations. 5.5.2. The City will open the landfill for at least 58 hours, during weeks without City holidays. 5.5.3. The City will consider requests for additional hours based on special needs of the Hauler and the availability of Landfill personnel. 5.5.4. Except in a Force Majeure, the City will provide the Hauler with at least 48 hours advance notice of any changes in the hours or days of operation. 5.6. Delivery Procedures. 5,6.1. The delivery of solid waste to the Landfill shall be regulated by the provisions of the Site Operating Plan. Copies of the relevant provisions will be provided by the City to the Hauler from time to time. The terms and conditions in the Site Operating Plan are intended to reflect the actual procedures and operations at the Landfill. An extract of the relevant provisions of the current Site Operating Plan is attached as Exhibit B. 5.6.2. The City reserves the right to redirect the Hauler's trucks from the working face to an on-site transfer station. 5.7. Delivery Vehicles. 5.7.1. Acceptable waste must be delivered by the Hauler, at its expense, to the Landfill in enclosed container vehicles or enclosed compactor vehicles complying with any applicable State laws and regulations and City ordinances regulating the permitti0g of haulers, vehicles, and containers, regulating the marking of solid waste vehicles and con(ainers, setting insurance requirements for haulers and vehicles, and identifying the generators of solid waste being delivered to the Landfill. 5.7.2. The City may provide for a system for the identification of delivery vehicles, including, without limitation, identification of the Hauler, identification of the specific vehicle, and tare weight of the vehicle or containers used to haul solid waste to the Landf~ll. 5.7.3. The City is under no obligation to accept acceptable waste from persons or vehicles not complying with the permitting and marking systems, the insurance requirements, or the delivery procedures established by the City. 5.7.4. The City may enforce compliance with permitting and marking systems and delivery procedures by denial of disposal privileges and such other means as it may reasonably determine to be necessary and appropriate. R13333AA doc Page 9 of 22 5.8. Front of Line Privileges, 5.8.1. The City will provide front of line privileges to the Hauler and other haulers with "put or pay" contracts with the City. 5.8.2. The City may at its discretion suspend fronl of line privileges under this agreement when waiting times to tip for other permitted haulers at the Landfill approach thirty (30) minutes. ARTICLE 6. ASSIGNMENTS. 6.1. Assignment By Hauler. The Hauler may not assign or transfer, directly or indirectly, its interest in and to this Agreement, without the consent of the City Manager, which consent will not be unreasonably withheld, delayed, or subject to unreasonable conditions. 6.2. Assignment By City. The City may, with prior written notice to the Hauler, assign all or any portion of this Agreement for any lawful purpose. The assignment of all or any portion of this Agreement does not refieve the City of any obligation under this Agreement without the consent of Hauler. ARTICLE 7. INSURANCE. 7.1. Insurance Requirements. Insurance requirements are attached to and incorporated into this Contract as Exhibit C attached to and made a part of this Agreement, and may be revised annually by the City's Contract Administrator upon thirty (30) days written notice to Hauler. 7.2. Insurance Required by Subcontractors. Any subcontractor, which is hired by Hauler to deliver solid waste to the Landfill, must maintain the same insurance as specified in Exhibit C prior to delivering any solid waste to the Landfill. 7.3. Certificates of Insurance. Before activities can begin under this Contract, Hauler's and any subcontractor's insurance company(les) must deliver Certificate(s) of Insurance, as proof or the required insurance coverages to the City's Contract Administrator. 7.4, Notice of Cancellation, Material Change, or Intent Not to Renew. Additionally, the Certificate(s) must state that the City will be given at least thirty (30) days notice by certified mail of cancellation, material change in the coverages, or intent not to renew any of the policies. 7.5. City Named As Additional Insured. The City must be named as an Additional Insured in each policy. The City Attorney must be given copies of all insurance policies within 15 days of the City's Contract Administrator's written request. 7.6. Waiver of Claim of Recovery. The Hauler waives any claim for recovery from the City for any injury, loss, or damage to Hauler resulting from the performance of this R13333AA dec Page 10 of 22 Agreement, to the extent compensation for the injury, loss, or damage shall have been recovered under any insurance policy. 7.7. Written Notice of Injury, Loss, or Damage Required. Immediately upon the occurrence of any injury, loss or damage resulting from the performance of this Agreement, written notice shall be given to the City's authorized representative. ARTICLE 8. INDEMNIFICATION 8.1 Indemnification for Death, Personal Injury, or Property Damage. 8.;/.1. To the extent allowed by Texas law, Hauler, its officers, members, partners, employees, agents, subcontractors, and licensees shall fully indemnify, save, and hold harmless the City, its officers, employees, agents, licensees, and invitees ("City indemnitees") against any and all liability, damage, loss, claims, demands, judgments, actions, costs, and expenses (including reasonable attorney's fees and expenses) of any nature whatsoever on account of personal in. iuries (including, without limitation on the foregoing, workers' compensation and death claims), or property loss or damage of any kind whatsoever, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with the Hauler's defivery of solid waste to the Landfifl under this agreement. 8.1.2. To the extent allowed by Texas law, the City shall fully indemnify, save, and hold harmless the Hauler, its officers, employees, agents, licensees, and invitees ("Hauler indemnitees") against any and all liability, damage, loss, claims, demands, judgments, actions, costs, and expenses (including reasonable attorney's fees and expenses) of any nature whatsoever on account of personal injuries (including, without limitation on the foregoing, workers' compensation and death claims), or property loss or damage of any kind whatsoever, which arise out of or are in any manner connected with, or are claimed to arise out of or be in any manner connected with the City's delivery of solid waste to the Landfill under this agreement. 8.2. Indemnification for Improper Disposal of Hazardous, Medical, or Unacceptable Waste. If the City elects to dispose of any hazardous, R13333AAdo¢ Page 1 1 of 22 medical, or unacceptable waste, the Hauler shall indemnify and hold the City indemnitees harmless from and against all liabilities, losses, damages, costs, expenses, and disbursements, including reasonable legal fees and expenses arising out of the processing or disposal by the person of unacceptable waste or waste not constituting acceptable waste delivered by the Hauler and incidental and consequential damages incurred by the City indemnitees. 8.3. Indemnification for Violations of Any Federal or State Laws and Regulations. The Hauler shall hold harmless and indemnify the City indemnitees from and against any expense, fine, or penalty, including attorneys fees, and shall defend the indemnitees in any proceeding, including appeals, for violation of any Federal or State law, rule, or regulation relating to the collection, transportation, and disposal of solid waste arising out of the any of the following: 8.3.1. The negligence or wrongful misconduct of the Hauler, its directors, officers or partners, employees, contractors, or agents. 8.3.2. The failure by the Hauler, its directors, officers or partners, employees, contractors, or agents to comply with applicable law, rule, or regulation. 8.3.3. The delivery by the Hauler of any Hazardous Waste or hazardous, medical, or unacceptable waste to the Landfill. 8.4. Duty to lnvestigate, Defend, Settle, and Pay Any Claims and Demands. 8.4.1. Hauler must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions with counsel satisfactory to City indemnitees, and pay all charges of attorneys and all other cost and expenses of any kind arising from any of said liability, damage, loss, claims, demands, or actions. 8.4.2. To extent authorized by law, the City must, at its own expense, investigate all those claims and demands, attend to their settlement or other disposition, defend all actions with counsel satisfactory to Hauler indemnitees, and pay all charges of attorneys and afl other cost and expenses of any kind arising R13333AA doc Page 12 of 22 from any of said liability, damage, loss, claims, demands, or actions. ARTICLE 9. GOVERNMENTAL REGULATION. 9.1. Jurisdiction. The City and the Hauler acknowledge that the collection, transportation, and disposal of solid waste is subject to regulation under both Federal and State laws and regulations and the jurisdiction of various governmental agencies, including, without IJmitalion, USEPA, TNRCC, and the Texas Depadment of Public Safety 9.2. Compliance with Laws, Regulations, and Ordinances Relating to the Collection, Transportation, and Disposal of Solid Waste. The City and the Hauler agree, at their own expense, (subject to the provisions in this Agreement relating to Change in Law and Force Majeure), to materially comply with all applicable law, statutes, rules, regulations, ordinances, and Site Operating Procedures applicable to them in connection with this Agreement and the transactions contemplated by this Agreement. The law, statutes, rules, regulations, and ordinances may include, without limitation, actions taken by the Texas Department of Transportation and City of Corpus Christi to regulate vehicle traffic associated with the Landfill. 9.3. Compliance with Other Laws and Regulations and Industry Standards by Hauler. Hauler shall comply with alt other applicable laws, rutes, regulations, ordinances, permits, and requirements of any governmental entity having jurisdiction, includin9 all applicable health and safety, anti-discrimination, affirmative action, and minority business opportunity laws, and all applicable industry codes, specifications, and standards respecting Hauler's business and operation. 9.4. Compliance by Hauler's Agents and Subcontractors. The Hauler agrees to take all necessary action to cause persons delivering waste on its behalf to the City to comply with anY law, statute, rule, regulation, order, standard, Site Operating Procedures, Or ordinance of the City of Corpus Christi, USEPA, TNRCC, the Texas Department of Public Safety, and any other authorized Federal or State agency or law enforcement organization. ARTICLE 10_ SUSPENSION DUE TO FORCE MAJEURE. 10.1. Suspension of Obtigations. 10.1.1 A delay or failure of performance under this Agreement by either party shall not constitute an event of default or cause for any liability under this Agreement to the extent caused by Force Majeure. 10.1.2. Any delay or failure caused by a Force Majeure shall be excused at any time performance is affected by a Force Maieure and during the period as may be reasonably necessary for the affect party, using its reasonable efforts to correct the adverse effects of the Force Majeure. R~3333A.A doc Page 1 3 of 22 10.1.3. If the Force Majeure causes a reduction, but not a complete suspension in the ability of the City in connection with the operation of the Landfill to accept, process, or dispose of acceptable waste, then subject to then existing commitments of the City with respect to the Landfill, and the requirements of all applicable permits, consents ,and approvals of the USEPA, TNRCC, and other governmental entities, the City shall use its reasonable efforts to allocate a portion of the reduced capacity of the Landfill to the Hauler. The allocation of landfill capacity shall be determined by the City in its sole discretion. 10.1.4. The party relying on a Force Majeure as justification for a delay or failure of performance under this Agreement shall give the other party prompt written notice of the Force Majeure. 10.2. Efforts to Remove Condition. A party whose performance is adversely affected by a Force Majeure shall use its reasonable efforts to overcome or remove the Force Majeure. 10.2.1. After the completion of a suspension due to the Force Majeure and to the extent the City has the capacity to accept and dispose of excess waste, the City shall use its reasonable efforts to accept acceptable waste collected by the Hauler, which the Hauler was unable to deliver to the City during the Force Majeure period. 10.2,2. The City is not obligated to accept acceptable waste to the extent that the acceptance, processing, or disposal of the acceptable waste is contrary to or in violation of or would cause the City to be in violation of any permits and approvals for the Landl~ll. 10.2.3. in the event that Hauler is prevented from delivering acceptable waste to the Landfill as a result of the Force Majeure, Hauler shall still be required to deliver such tonnage as is reasonably practicable under the circumstances. The parties shall negotiate and agree on the period during which Hauler is entitled to cure any resulting shortfall. 10.3. Change in Taxes, Fees, Assessments, and Charges. The adoption of any law, regulation, rule, or ordinance that imposes or amends any tax, fee, assessment, or charge does not constitute a Force Majeure. ARTICLE 11. LIQUIDATED DAMAGES AND DEFAULT. 11.1. Suspension of Service by City. If the City tails to accept acceptable waste at the Landfill as required by the terms DJ: this Agreement, the Hauler may select an alternate disposal site and be credited for any acceplable waste derivered to an alternate disposal site for the period ct the failure by the City. If the conditions continue for more than thirty (30) days, this Agreement automatically terminates. 11.2. Events of Default of the City. The City is in default if it makes a general assignment for the benefit of creditors, files a petition in bankruptcy, is adjudicated R13333A.A doc Page 14 of 22 insolvent or bankrupt, petitions or applies to any tribunal for any custodian, receiver, or trustee for it or any substantial part of its property, commences any proceeding relating to it under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or statute of any jurisdiction, whether now or after the effective date of this Agreement is in effect, or if there shall have been filed any such proceeding, in which an order for relief is entered or which is not dismissed for a period of sixty (60) days or more, or if by any act indicates the City's consent to, approval of, or acquiescence in any petition, application, or proceeding or order for relief or the appointment of any custodian, receiver of, or any trustee for the City or any substantial part of the City's property, or suffers any custodianship, receivership, or trusteeship to continue undischarged for a period of sixty (60) days or more. 11.3. Events of Default of Hauler. Each of the following shall be an event of default by the Hauler under this Agreement and are grounds for termination of the Agreement: 11.3.1_ The Hauler fails to pay any amounts, including without limitation, the acceptance fee, and any amounts payable under Sections 5.2 or 5.3, which become due under this Agreement, within thirty (30) days of notice of delinquency from the City. 11.3.2. The Hauler fails to observe and perform any other material term, covenant, or agreement contained in this Agreement, the Site Operating Plan, or other agreements or policies to which either the Hauler is subject and the failure continues for a period of thirty (30) days after written notice to the Hauler specif:ying the nature or the failure and requesting that it be remedied. 11.3.3, The Hauler fails to keep all insurance policies in force for the entire term of this Agreement is grounds for termination. 11.3_4. The Hauler makes a general assignment for the benefit of creditors, files a petition in bankruptcy, is adjudicated insolvent or bankrupt, petitions or applies to any tribunal for any custodian, receiver, or trustee for it or any substantial part of its property, commences any proceeding relating to the Hauler under any bankruptcy, reorganization, arrangement, readjustment of debt, dissolution, or liquidation law or stalute of any jurisdiction, whether now or after this Agreement is in effect, or if there is or has been filed any proceeding, in which an order for relief is entered or which is not dismissed for a period of sixty (60) days or more, or if by any act indicates the Hauler's consent to, approval of, or acquiescence in any petition, application, or proceeding or order for relief or the appointment of any custodian, receiver of, or any trustee for the Hauler or any substantial part of the Hauler's property, or suffers any custodianship, receivership, or trusteeship to continue undischarged for a period of sixty (60) days or more. 11.4. Remedies on Default. Whenever any event of default occurs and is continuing, the non-defaulting party has the following rights and remedies: R13333A. A doc Page 15 of 22 11.4.1. Upon ten (10) days written notice to the City, if the City is then in default, the Hauler has the option to terminate this Agreement, unless the event of default is fully cured prior to the expiration of ten (10) day period or unless during the period the City has taken remedial steps the effect orwhich would be to enable the City to cure the event of default within a reasonable period of time (which, if the event of default is a default in the payment of monies and results from restraint by a court or regulatory agency, means the undertaking and prosecution of prompt, diligent, good faith efforts to remove the restraint); 11.4.2. Upon ten (10) days written notice to the Hauler, if the Hauler is then in default, the City shall have the option to terminate this Agreement, unless the event of default is fully cured prior to the expiration often (10) day period or unless during the period the Hauler has taken remedial steps the effect of which would be to enable the Hauler to cure the event of default within a reasonable period of time (which, if the event or default is a default in the payment of monies and results from restrain[ by a court or regulatory agency, means the undertaking and prosecution of prompt, diligent, §cod faith efforts to remove the restraint); 11.4.3. Upon written notice to the Hauler, if the Hauler has defaulted, the City shall have the option, without terminating this Agreement, to stop accepting acceptable waste delivered or tendered for delivery by the Hauler, until the default is cured or this Agreement is terminated. The City may concurrently pursue any other remedies to which it is entiUed at law or in equity for the default. ARTICLE 12. REPRESENTATION AND WARRANTIES, 12.1. Representations and Warranties of the Hauler. 12.1.1. The Hauler by this Agreement represents and warrants to the City that this Agreement has been executed by authorized officers of the Hauler, and has before entering this Agreement delivered to the City evidence of the authority, 12.1.2. The Hauler has the full power and authority to execute and deliver this Agreement to the City and to carry out the obligations and transactions contemplated by this Agreement throughout its term. 12.1.3. There is no claim or litigation pending or to the knowledge of the Hauler, threatened that questions this Agreement or that affects or may affect the obligations and transactions contemplated by this AgreemenL 12.2. Representations and Warranties of the City. 12.2.1. The City by this Agreement represents and warrants to the Hauler that the City has the full power and authority to execute and deliver this Agreement to the Hauler and to carry out the obligations and transactions contemplated by this Agreement. R1~333AA doc Page 16 of 22 12.2.2, There is no claim or litigation pending orto the knowledge of the City, threatened that questions this Agreement or that affects or may affect the obligations and transactions contemplated by this Agreement. 12.3. Liability for Breach. It is understood and agreed that the signatories to this Agreement are liable to each other in the manner and to the extent provided by law for any loss or harm occasioned by the breach of any term, covenant, agreement, undertaking, or obligation of this AgreemenL This section shall survive the term of this Agreement. ARTICLE 13. GOVERNING LAWAND VENUE. 13.1. Laws of Texas Applicable_ The interpretation and performance of this Agreement shall be under and controlled by the laws of the State of Texas. 13.2. Venue. The sole and exclusive forum for the initial determination of any question of law or fact to be determined in any judicial proceeding relating to this Agreement shall be any court of competent jurisdiction in Nueces County, State of Texas, including the United States District Court for the Southern District of Texas, Corpus Chdsti Division. 13.3. Agreement Not Affected by Pending Litigation. Except as otherwise specifically provided in this Agreement, the pendency of any claim or litigation does not affect the obligations of the parties to make any paymenl or render any service required by this Agreement or the rights of the parties under this Agreement. ARTICLE 14. MISCELLANEOUS PROVISIONS. 14.1. Entire Agreement. This Agreement merges and supersedes all prior negotiations, representations, and agreements be[ween the parties. This Agreement constitutes the entire agreement between the parties to this Agreement in respect of the subject matter of this Agreement. 14.2. Waiver. No delay in exercising or the failure to exercise of any right or remedy accruing to or in favor of any party under this Agreement impairs any right or remedy or constitutes a waiver of the right or remedy. Every right and remedy given under this Agreement or by law may be exercised from time to time and as often as may be deemed expedient by the parties to this Agreement. 14.3. Amendments and Modifications. This A9reement may not be amended or modified except in writing. The amendment or modification must be signed on behalf of both parties by their duly authorized officers. 14.4. Independent Contractor. Hauler will perform the services hereunder as an independent contractor and will furnish such services in its own manner and method, and under no circumstances or conditions may any agent, servant, or employee of Hauler be considered as an employee of the City. R13333AAdoc Page 17 of 22 14.5. Subcontractors. 14.5.1. Hauler may use subcontractors in connection with the work performed under this Agreement. When using subcontractors, however, Hauler must obtain prior written approval from the Contract Administrator. 14,5.2. In using subcontractors, Hauler is responsible for all their acts and omissions to the same extent as if the subcontractor and its employees were employees of Hauler. 14.5.3. All requirements of this Agreement imposed on the Hauler are applicable to all subcontractors and their employees to the same extent as if the Hauler and its employees had performed the services. 14.6. Successors and Assigns. This Agreement inures to the benefit of and binds the respective successors and permitted assigns of the parties to this Agreement. 14.7. Contract Administrator. The Contract Administrator designated by the City is responsible for approval of all phases of performance and operations under this Agreement including deductions for non-performance and authorizations for payment. All of Hauler's notices or communications regarding this Agreement must be directed to the Contract Administrator, who is the City's Oirector of Solid Waste Services. 14.8. Notices. All written notices, reports, and other documents required or permitted under this Agreement must be in writing and are deemed to have been given when delivered personally or deposited in the mails, postage prepaid, registered or certified mail, return receipt requested, or by commercial overnight courier addressed to the party to whom notice is being given at the party's address set forth below. Either party may change its address by sending written notice that complies with this Section. Hauler: BFI Waste Systems of Texas, L.P. Attn: Mickey Shuford P.O. Box 9236 Corpus Christi, Texas 78469-9236 City: Director of Solid Waste Services City of Corpus Christi 2525 Hygeia Street P.O. Box 9277 Corpus Christi, Texas 78469-9277 14.9. Representatives. For billing purposes, the parties designate the following representatives and addresses: Hauler: BFI Waste Systems of Texas, L.P. Attn: Mickey Shuford P.O. Box 9236 Corpus Christi, Texas 78469-9236 R13333A.A doc Page 18 of 22 City: City of Corpus Christi - Financial Services Accounts Receivables 1201 Leopard Street P.O. Box 9257 Corpus Christi, Texas 78469-9257 14.10. Fiscal Year. All parties recognize that the continuation of any contract after the close of any fiscal year of the City, which fiscal year ends on July 31 annually, is subject to appropriations and budget approval providing for such contract item as an expenditure in that budget. The City does not represent that the budget item will be actually adopted, that determination is within the sole discretion of the City Council at the time of adoption of each budget. 14.11. Right to Most Favorable Acceptance or Tipping Fees. 14.11.1. If the City enters into an agreement with any other company, person, or legal entity that provides so~id waste hauling services or generates, disposes, or transports solid waste to the City's landfill (or enters into a renewal, modification, extension of any existing agreement with such a party), and the document contains provisions for acceptance or tippin9 fees more favorable to the other party than those in this Agreement, the Hauler shall have the right either to terminate this Agreement or to amend this Agreement to contain such more favorable terms and provisions. 14.11,2. An agreement that offers an equivalent discounted acceptance fee for a commitment to deliver all tonnage collected within the boundaries of the Coastal Bend Council of Governments ("CBCOG") instead of a guaranteed annual tonnage is considered comparable to this Agreement if the other terms and conditions are similar to this agreement. An agreement based on delivery of all tbnnage collected within the CBCOG boundaries will include the right of the City to audit for compliance and penalties for failure to deliver all tonnage from the area. 14.11.3. The City will not offer similar agreements to a hauler that has not had a solid waste hauler permit for at least 12 months. 14.12. City Reserves Legislative Authority. Nothing in this contract restricts the right of the City Council to amend the City's Code of Ordinances, including its authority to regulate, permit, and franchise solid waste haulers operating within the City or using the City's solid waste disposal facilities; regulate the storage, transportation, and disposal of any solid waste generated within the City or its industria~ districts; or impose taxes, surcharges, utility fees, or ether fees, including generator fees, on residents, commercial and industrial facilities located within the City and industrial districts and customers from outside the City who use any of the City's so,id waste disposal facilities or services; and including the setting of disposal or tipping fees at City disposal facilities within and outside the City limits. R13333AAdoc Page 19 of 22 14.13. Further Actions. Each party agrees that it will, at its own expense, execute any and all certificates, documents, and other instruments, and take other actions as may be reasonably necessary to give effect to the terms of this Agreement. 14,14_ Duplicate Originals. This Agreement may be executed in duplicate originals,, any one of which is considered to be the original Agreement for aTI purposes. 14.15. Severability. In the event that any of the provisions, portions, or applications of this Agreement are held to be unenforceable or invalid by any court of competent jurisdiction, the City and the Hauler shall negotiate an equitable adjustment in the provisions of this Agreement with a view toward effecting the purpose of this Agreement, and the validity and enforceability of the remaining provisions, podions, or applications of this Agreement are not be affected by the defect in the provision, portion, or application of the Agreement that was ruled unenforceable or invalid. 14.16. Rights of Third Parties. Nothing in this Agreement is intended to confer any right on any person other than the parties to this Agreement and their respective successors and assigns; nor is anything in this Agreement intended to modify or discharge the obligation or liability of any third person to any party to this Agreement or give any third person any right of subrogation or action over or against any party to this Agreement. 14.17. Headings for Convenience. The headings in this Agreement are for convenience and reference only and in no way define or limit the scope or content of this Agreement or in any way affect its provisions. 14.18. Publicity and Property Rights. 14.18.1. The Hauler may not advertise or otherwise use its relationship with the City under this Agreement in any public disclosure without the prior written consent of the City. The prohibition includes, without limitation, brochures, listings, references, advertisements, announcements, or other release of information concerning the existence, conlenl or performance under this Agreement to any third party. 14.18.2. The Hauler is not permitted to photograph, film, tape or other make audio or visual recording at, or allow any unauthorized person to enter the Landfill without the express prior written consent of the City's Director of Solid Waste Services. 14.18.3. The Hauler may not use or permit the use of the trade or service names, marks, orlogos of the City or any of its affiliates in any manner. 14.18.4, The Hauler's obligations under this Section 14.12 shall survive the expiration or termination of this Agreement. 14.19. Survival of Obligations. No[withstanding the expiration or the termination of this Agreement under its terms, any duty or obligation of Hauler, which has not been R13333AA doc Page 20 of 22 fully observed, performed, or discharged, and any right, unconditional or conditional, which has been created for the benefit of the City, and which has not been fully enjoyed, enforced, or satisfied (including but not limited to the duties, obligations, and rights, if any, with respect to secrecy, indemnity, warranty, guaranty) shall survive the expiration or termination of this Agreement until the duty or obligation has been fully observed, performed, or discharged and the right has been fully enjoyed, enforced, and satisfied. 14.20. Exclusivity of Remedies. Neither party shall be liable for or obligated to pay punitive, consequential, special incidental, or indirect damages in connection with the performance of this Agreement. The parties to this Agreement have caused this Agreement to be executed on the date the City's representative executes this agreement. This Agreement is intended to take effecLas a sealed instrument AGREED TO BY: BFI WASTE SYSTEMS OF TEXAS, L.P. William Davis District Manager Date: u{ THE STATE OF TEXAS § COUNTY OF~i~L'L.E ~ § This instrument was acknowledged before me on ,2001, by William Davis, District Manager, on behalf of BFI Waste Systems of Texas, L.P., a limited partnership. State of Texas NOTARY PUBLIC ~ S~le of Toxa~ . R13333A~ doc Page 21 of 22 CITY ~F CORPUS CHRISTI Attest: ~ Armando Chapa City Secretary Approved as to form: This .,~t,J-~'day of James R. Bray, Jr. City Attorney Fi rs ~'As'sista n t/City Attorney THE STATE OF TEXAS § COUNTY OF NUECES ' ,.~ / /..~This instrument was acknowledged before me on ("-'/~¢-- ~0(¢ ,2001,by 'David R. Garcia, City Manager of the City of Corpus ~dsti, a Texas Municipal C°rp°~7~~p°rati°n' State of Texas ~ ~ MyOomm ~p 11-~.2003 R13333AA doc Page 22 of 22 EXHIBIT A TARGETED MONTHLY TONNAGE DELIVERY SCHEDULE Month Targeted Monthly tonnage January ............................................................................................................................ February ......................................................................................................................... March .............................................................................................................................. April .................................................................................................................................. May ................................................................................................................................... June ................................................................................................................................... July .................................................................................................................................. August ............................................................................................................................... September ....................................................................................................................... October ............................................................................................................................ November ......................................................................................................................... December ........................................................................................................................ Total Guaranteed Annual Tonnage ................................................................................... R13333AA.doc A-1 EXHIBIT B EXTRACTS FROM SITE OPERATING PLAN CITY OF CORPUS CHRISTI J. C. ELLIOTT LANDFILL PERMIT 423A R13333AA.doc B - 1 4. OPERATIONAL PROCEDURES 4.1. Access Control Public access to the landfill is limited to one existing main enf. rance from Ayers Street (State Highway 286). Gate house personnel control access and monitor all vehicles entering and exiting the site. Additionally, two other private entrance/exits gates are located at this site; one gate being at the northwest corner and the other at the southwest corner of the landfill on Greenwood Drive. These gates are used from time to time to move equipment to and from maintenance shops, as construction contractor entrances, and other such activities not directly associated with waste hauling. 4.1.1. Access From Public Road Access to the site will be from Ayers Street (State Highway 286) at the existing site entrance. Ayers Street is a two-way, two-lane asphalt-paved road, with an average pavement width of 20 feet. A site sign is prominently displayed adjacent to the gate entrance. 4.1.2. Vehicle Access All waste-hauling vehicles will deposit their loads at the working face or the designated processing area. OnTy landfill construction vehicles, landfill personnel vehicles, and the authorized haul vehicles will have access to the active portion of the landfill. 4.1.3. All-Weather Access The existing site entrance is paved asphalt drive that transitions into a caliche road. The caliche on-site roads will be maintained for all-weather access by site personnel. The entrance to the facility from Ayers Street and all interior access roads within the site are all-weather roads. Prior to inclement weather, an all-weather access area will be constructed. All-weather road and access area are provided to the active disposal area, and consist of a minimum of 8 inches of crushed caliche and/or crushed asphalt. A pad (may vary in size) may be constructed by the disposal area so that disposal vehicles will have enough room to maneuver while they are disposing of the waste. The caliche/asphalt materials used for all-weather road construction will be salvaged and reused as the access road locations change across the site. Haulers will dump waste at the ed9e of this designated area and allow the compactor to push the waste into the fill. Therefore, no separate wet-weather operations area will be necessary. 4.1.4. Traffic Control The entrance to the landfill is located on the southeast corner of the site. The gate attendant will restrict site access only to authorized vehicles and will direct these vehicles appropriately. R13333AA.doc E~ - 2 Solid waste transportation vehicles will be weighed at the gate scale and then directed to the active portion of the landfill. Site personnel, signs, and barricades will provide traffic directions as necessary to expedite safe movement of vehicles. 4.1.5 Site Security Site security measures are designed to prevent unauthorized persons from entering the site, to protect the facility and its equipment from possible damage caused by trespassers, and to prevent disruption of facility operations caused by unauthorized site entry. Unauthorized entry into the site is minimized by controlling access to the landfill site with the perimeter fence and locked gates at all entrances. The main site entrance (Ayers Street) is secured by a gate which is monitored by the office/gate attendants during normal site operating hours. Outside normal operating hours, the gate to the site will be locked. All other entrances will remain locked or attended by site personnel. Entry to the active portion of the site will be restricted to designated personnel, approved waste haulers, and properly identified persons whose entry is authorized by site management. Visitors may be allowed on the active area only when accompanied by a site representative. 4.2. Unloading Wastes The landfill is authorized to receive municipal solid waste and those special solid wastes allowable under , 330.136 of the Texas Natural Resource Conservation Commission ("TNRCC") Municipal Solid Waste Management Regulations ("MSWMR"), 30 TAC Chapter 330. (Note: Underlined text has been added for clarity.) The site is not authorized to receive regulated hazardous wastes or radioactive wastes. These categories of wastes are prohibited at this site by stale and federal regulations (refer to Section 6 - Waste Screening Plan). Special wastes will not be handled at this landfill except in accordance with TNRCC regulations and Section 4.20 -Disposal of Special Wastes of this SOP. The unloading of solid waste will be confined to as small an area as practical. Trained personnel will monitor the incoming waste on the trucks. These personnel are familiar with the rules and regulations governing the various types of waste that can or cannot be accepted into this facility, including knowledge of '330.136 of the MSWMR. The personnel also have a basic understanding of both industriat and hazardous waste and their transportation and disposal requirements. Solid waste dumping will be controlled to prevent disposal in locations other than those specified by site management. Unloading of waste in unauthorized areas is prohibited and site personnel shall take the R13333AA doc B - 3 necessary steps to ensure compliance with this provision. Any waste deposited in an unauthorized area shall be removed promptly and disposed of properly. Rules for waste disposal and prohibited waste will be prominently displayed on signs at the site entrance. Refer to Section 6 -Waste Screening Plan for specific waste handling procedures. 4.3. Hours of Operation The facility is open for operation six days a week, Monday through Saturday. Normal operating hours for receiving wastes will be between 7:00 a.m. to 7:00 p.m., Monday through Saturday. The site will be closed on Sundays and certain holidays. Operation on Sundays will be limited and only held in conjunction with special events such as community clean ups. Operation of the site for special occasions, special purpose events, or other special occurrences will also be within the approved times of 7:00 a.m. and 7:00 p.m. Operation on certain Holidays will be conducted from 6:00 a.m to 2:00 p.m. to accommodate the needs of customers. 4.4. Site Signs An entrance sign is displayed at the entrance to the site. This sign states the name of the site, type of site, hours and days of operation, and the TNRCC permit number. A sign prohibiting certain types of waste such as hazardous waste, Class I waste, and smoking will be posted outside the landfill entrance. 4.5. Control of Windblown Wastes and Litter Windblown wastes will be controlled by several means, All waste transportation vehicles using this facility will be required to have in- place adequate covers or other means of containment for the wastes they transport. The adequacy of covers or containment of incoming wastes will be checked at the facility entrance. To fur[her minimize windblown wastes, the facility will provide litter control fences, as necessary, at appropriate locations near the working face and elsewhere. The litter control fence will be at least 5 feet high and will be located as close as practical to the landfilling area. S Periodically (at least weekly), as part of the overall site maintenance program, facility personnel will collect windblown waste materials which may have accumulated on-site and on both on and off-site access roads. The working face of the active disposal area shall be covered dally to avoid prolonged exposure of wastes, and to minimize windblown material. R13333A.Adoc B - 4 4.8. Control of Waste Spilled on Route to the Site The Landfill Superintendent will take sleps to ensure that vehicles hauling waste to the site are enclosed or provided with a tarpaulin, net. or other means to properly secure the load. These steps are necessary to prevent the escape of any part of the load by blowing or spilling, Signs stating this policy will be posted and offenders may be reported by the Landfill Superintendent to proper law enforcement officers. The Landfill Superintendent will be responsible for the cleanup of waste materials spilled along and within the right-of-way of all public access roads serving the site for a distance of 2 miles in either direction from any entrance used for delivery of waste to the site. The LandDI Superintendent wil~ consult with officials of the Texas Department of Transportation concerning cleanup of state highways and right-of-ways. 4.9. Disposal of Large Items Large appliances and other heavy items will not be placed within 5 feet of the liner. Items classified as large, heavy, or bulky may include, but are not limited to, white goods (household appliances), air conditioner units, and large metal pieces. In addition the site will maintain a Steel Recycling area near the site main entrance where large appliances and other metallic items can be stored until recycled. CFC removal will be conducted at this area. CFC's wil~ be removed at least semi-monthly. Appropriate house keeping will be maintained at all times. 4.10. Air Quality Control Measures to control air pollution may include, but are not limited to, the following items: $ No open burning of waste will be permitted at the proposed facility Freshly landfilled waste will be promptly covered with dirt or approved alternative daily covers, $ Odor masking agents such as sanifoam may be utilized as necessary $ Ponded water at the site will be controlled as detailed in Section 4.19 $ Accidental fires will be controlled as outlined in Section 7 - Fire Protection Plan The Landr~ll Superintendent will ensure that any unit of the municipal solid waste facility does not violate any applicable requirement of the approved State implementation Plan developed under the Clean Air Act, Section 110, as amended. 4.1 1. Disease Vector Control The need for extensive vector control (control of rodents, flies, and mosquitoes) will be minimized through daily sit_e operations, which include the application of daily and final R13333AA doc B - 5 cover. The extent of the working face will also be minimized. Site operators will make daily checks for insects or rodents associated with the operations and will report problems to the Landfill Superintendent. If necessary, a licensed professional should apply pesticides to ensure that proper chemicals are used and are properly applied. 4.13. Salvaging and Scavenging Salvaging will not be allowed to interfere with prompt sanitary disposal of solid waste or to create public health nuisances. Salvaged materials will be considered as potential recycled materials. Salvaged items will be removed from the site often enough to prevent the items from becoming a nuisance, to preclude the discharge of pollutants from the area, and to prevent an excessive accumulation of the material at the site. Special wastes received at the site will not be salvaged. Scavenging will be prohibited at all times. 4.20. Disposal of Special Wastes Acceptance of special wastes will be performed in accordance with MSWMR '330.136(b) requirements. Special wastes that will be accepted at the site include non- regulated asbestos-containing material (non-RACM), and wastes from health care related facilities. Other special wastes may be accepted. If these wastes are addressed in '330.136 of the MSWMR, they will be handled in accordance with the procedures provided therein for that specific waste. Should a different procedure be devised or the specific waste not be addressed therein, then a request will be made in accordance with Section 330.136(a)(2) and approval received prior to acceptance of those wastes. The special wastes that will be accepted at the site and handling procedures are discussed below. Non-Regulated Asbestos Containing Materials (Non-RACM) Non-RACM will be accepted. The non-RACM shall be disposed in the active working face and immediately covered with at least two (2) feet of other solid waste. Precautions shall be taken by site personnel to eliminate the crushing or grinding of non-RACM into a friable state. Wastewater Treatment Plant Sludge Treated wastewater plant s~udges will be accepted. Other material will receive TNRCC approval prior to its disposal. The processed material will be required to pass a paint filter test prior to disposal on the working face of the landfill, as prescribed in 30 TAC ' 330.136(b)(7). R13333AA doc B - 6 DFAD ANIMALS The site may receive dead animals that are delivered to the site independent of other wastes. Dead animals will be buried and covered with a minimum of 3 feet of solid waste or a minimum of 2 feet of soil immediately upon receipt. Special Waste Report Submittal The Landfill Superintendent will submit to the TNRCC a monthly summary of special wastes received at the landfill. This report will be submitted no later than the 25th day of the month following the month in which the waste was received, The reports will be submitted on forms provided by the TNRCC. Failure to file the reports in a timely manner is considered a violation of the MSWMR. 4.21. Disposal of Industrial Waste Class I industrial waste will net be accepted at the site. Class II and Class III industrial solid waste will be accepted as long as the acceptance does not interfere with normal operations. In the event that a Class I industrial solid waste ardves at the site, the appropriate departments and offices of the TNRCC will be notified. The applicable phone numbers will be included in a list of emergency phone numbers posted in the 9ate house and the landfill office. If the waste presents an emergency situation, the TNRCC Emergency Response Unit will be contacted. The appropriate agencies will be requested to provide assistance to the City through their respective enforcement capabilities concerning transporters and waste generators in the proper management of unauthorized waste received at the site. Refer to Section 6-Waste Screening Plan and Section 4.2-Unloading Waste for waste screening procedures. 4.22. Prevention of Discharge of Contaminated Water The Landfill Superintendent will take att steps necessary to control and prevent the discharge of contaminated water from the facility. Should the discharge of contaminated water become necessary, the Landfill Superintendent will obtain specific written authorization from the TNRCC prior to discharge. 4.23 Leachate and Contaminated Water Plan Leachate and contaminated water will be controlled as specified in the Leachate and Contaminated Water Plan. R13333AA doc B - 7 6. WASTE SCREENING PLAN Part A- Purpose The purpose of this plan is to prevent the unauthorized entry of waste not approved for disposal at the landfill; to protect both personnel and customers using the landfill; achieve permit compliance; and assure the environment of the landfill and surrounding area is protected from contaminalion from unauthorized waste. Conformity to the plan will assure efficient and effective processing of all waste at Ihe land[ill. The types of wastes that are accepted at the landfill as well as the procedures for waste inspection and handling are outlined in the Site Operating Plan. Part [] - Training Training requirements of landfill personnel to recognize and handle unauthorized waste will include the following: Familiarization of the Site Operating Plan Successful completion of formal waste screening training provided by: in-house instruction, the Texas Engineering Extension Service (TEEX), or Solid Waste Association of North America (SWANA) Records of all course attendance will be kept as well as copies of any certificates issued. A periodic review of the information provided in these sources will take place as needed. Part C - Prevention of Unauthorized Disposal Methods used ~o prevent unauthorized disposal will be accomplished at four (4) levels. Each level wi'Il be designed to vidually eliminate random inspections. Level One - Education and Information A sign at the entrance to the landfill will describe wastes that are not accepted for disposal and will inform customers that their waste is subject to inspection. An informational bulletin detailing the waste inspection process will be given once a year to all existing and to new customers. A letter detailing the waste acceptance policy will be mailed to the management of all major firms and municipalities who actively use the landfill. Information on the waste inspection process will be given to the local newspaper for presentation as a public service announcement. R13333AAdoc ~ - 8 Level Two - Random Load Selection The selection of loads for random waste inspection consideration will exclude two groups of transporters: 1. Transporters who provide adequate documentation (as specified in 30 TAC ' 330.32(d) that unallowable wastes are avoided in the residential routing of collection vehicles. These vehicles will be identified by number. 2. Transporters of mixed residential and commercial waste that can provide assurance that the generator properly classifies the waste and is routinely checked by the transporter for compliance. Individual vehicles not associated with any commercial activities or businesses will also be generally exempted from waste screening consideration. All other vehicles will be included in the pool of loads for waste screening consideration. Backup Procedure: In accordance with 30 TAC ' 330.114 (5)(Al; If at any time an excluded vehicle outside the pool is found to have suspect waste within a load, the exemption status of that vehicle will become null and void, thereby subjecting it to waste screening consideration. Level Three - 30 TAC ' 330.32(d) All transporters will be required to comply with 30 TAC , 330.32(d). A surcharge for waste removal will be assessed to any transporter who is discovered to have dumped an unacceptable waste. In all cases the site operator refuses to accept ownership of any unauthorized waste. Level Four - Screening Waste screening will take place in the following three ways: All manifested wastes will be checked for conformance to the manifest. Vehicles transporting manifested wastes will be excluded from the pool of vehicles subjected to random waste screening sampling. All vehicles entering the landfill for disposal purposes including those not related to any business or commercial activity will be screened for unauthorized waste at the entrance gate. The operator maintains the right to question the driver of any vehicle entering the landfill. Any suspect loads will be directed to the waste screening site for inspection. All inspections will be documented in the operating record. Screening at the working face will be done by the attendant and the equipment operator by observing both the offloading and spreading of the waste. R13333AAdoc B - 9 4. Random waste inspection will be accomplished by determining the pool of vehicles available for inspection, including all vehicles not previously mentioned as being excluded. From this poor, one vehicle will be randomly inspected on a weekly basis as recommended by the Texas Engineering Exlension Service (TEEX). 5. The random one percent selection from the pool of vehicles available for inspection will be made using random number tables. Part D -Waste Inspection Process The waste screening process will involve the following steps: Step One- Determination of waste load to be screened. (As outlined in Part C.) Step Two - Preparation of the waste screening site. A concrete pad will be constructed at the landfill approximately 50' x 100' in size and windscreen fencing will be utilized to maintain wastes within the designated area. Step Three - A team of people will be selected to conduct the waste screening process. Personnel involved in the waste screening process will include those who meet the following criteria: must have completed the training requirements outlined in Part B (and basic first- aid training) must possess good oral and wdtten communication skills must be free of any physical limitations that would hinder performance of screening operations must POSSESS good vision, good sense of smell and the ability to readily detect heat Step Four- The basic equipment needed to pedorm the waste screening process will include the following: rake, hoe, shovel for the purposes of moving and sorting waste wire cutter and pry bar the purpose of opening containers poles and flagging for the-purpose of marking areas of suspected waste contamination inspection forms, watch, camera, clip board for the purposes of recording the inspection results fire extinguisher, absorbent material and soil for the purpose of fire suppression and spill containment R13333AA.doc B - 10 paint filter test kit for the purpose of determining free ~iquids first-aid kit two-way radio for communication purposes Step Five - Protective equipment needed to perform the waste screening process will include the following: safety goggles for eye protection chemically resistant boots, gloves and tyvek suits hardhat Step Six - Waste screening recording form, (Attached in Section 9) Step Seven - Remediation: In accordance with 30 TAC ' 330.114 (5) (El; the following procedure will be followed in the event that a hazardous or non-allowable waste is found in the waste screening process: 1. Non-allowable wastes will be loaded back onto the vehicle and the transporter will be required to give evidence of where the waste is taken for disposal. 2. Hazardous wastes if identifiable and not an imminent threat to the landfill or human health, will be removed from the screening area and temporarily confined in the hazardous waste storage building of the household hazardous waste facility (located adjacent to the screening area), until such time that arrangements for its removal and subsequent disposal can be made by a hazardous waste contractor. I1', however, the waste does pose an imminen[ threat to the landfill or human health, the City's Fire Department (Hazmat Unit) will be contacted to secure the waste and assure its safe containment. In either case, any costs associated with the proper disposal will be the responsibility of the transporter who brought the waste to the landfill. R13333A.Adoc B - 1 1 7. FIRE PROTECTION PLAN The following steps must be taken regularly by designated landfii~ personnel to prevent fires: S Burning waste must be prevented from being dumped in the active area of the landfill. The Gate Attendant and equipment operators must be alert for signs of burning waste such as smoke, steam, or heat being released from incoming waste loads. $ Fuel spills must be contained and cleaned up immediately. Dead trees, brush, or vegetation adjacent to the landfill must be removed immediately, and grass and weeds mowed so that forest, grass, or brush fires cannot spread to the landi~ll. $ No smoking on the active areas of the landfill site. Specific Fire-Fighting Procedures If a fire occurs on a vehicle or piece of equipment, the first step is to bring the vehicle or equipmen[to a safe stop. If safety of personnel will allow, the vehicle must be parked away from fuel supplies, uncovered solid was[es, and other vehicles. Shut off the engine, engage the brake, or use some other appropriate method to prevent subsequent movement of the vehicle, If the fire is in the working face, the burning area should be isolated, by pushing the fire, with the wind, out of the working face. Soil should be placed on the fire to smother iL If this is not possible or unsafe, efforts to cover the working face with earth must be initiated immediately to smother the fire. General Rules for Fire Incidents Contact the Fire Department by calling 361/854-9704 or 911. The Cities Fire Department, approximately 3.5 miles away, would respond if necessary. $ Alert other facility personnel. Assess extenl of fire and possibilities for the fire to spread and alternatives for extinguishin9 the fire. If it appears that the fire can be safely fought with available fire fighting devices untiI arrival of the Fire Department, attempt to contain or extinguish the fire. Upon arrival of Fire Department personnel, direct them to the fire, and provide assistance, as appropriate. R13333AAdo6 B - 12 $ Do not attempt to fight a fire alone. $ Do not attempt to fight a fire without adequate personal protective equipment. $ Be familiar with the use and limitation of firefighting equipment. Fire fighting methods include smothering with soil, separating burning material from other waste, and spraying with water from the water truck or pumped from nearby ponds or streams. If detected soon enough, a small fire may be fought with a hand-held extinguisher. Fire extinguishers will be located at the Gate House and on each piece of operating equipment. Generally, the firefighting technique that can be quickly emptoyed to fight a landfill fire is smothering with soil. The faster that soil can be placed over the fire, the more effective this method will be in controlling and extinguishing the fire. Enough cover soil will be stockpiled within 2500 feet of the working face or active disposal area to cover the entire working face. The site must be provided with fire extinguishers, of a type, size, location, and number as recommended by the local Fire Department or the City's insurance carrier. Fire extinguishers must be fully-charged and ready for use at all times. Each extinguisher must be inspected on an annual basis and recharged as necessary. These inspections must be performed by a qualified service company, and all extinguishers must display a current inspection tag. Inspection and recharging must also be performed following each use. The gate house, as wel~ as a~l landfill equipment and vehicles, will be equipped with fire extinguishers. R13333/M~doc B - 13 EXHIBIT C INSURANCE REQUIREMENTS 1. Hauler Liability Insurance The Hauler may not deliver any solid waste to the City's J. C. EIliott Municipal Landfill under this Agreement until Hauler has obtained all insurance required by this exhibit and the required insurance has been approved by the City. The Hauler may not allow any subcontractor to deliver solid waste to the Landfill until all similar insurance required of the subcontractor has been obtained and approved. The Hauler must furnish to the City's Risk Manager, 2 copies of Certificates of Insurance, with the City named as an additional insured for all liability policies, and a blanket waiver of subrogation on all applicable policies, showing the following minimum coverage by insurance company(s) acceptable to the City's Risk Manager. TYPE OF INSURANCE 30-Day Notice of Cancellation required on all certificates Commercial General Liability including: 1_ Commercial Form 2. Premises - Operations 3. Products/Completed Operations Hazard 4. Contractual Insurance 5. Broad Form Property Damage 6. Independent Contractors 7. Personal Injury 8. Pollution Liability AUTOMOBILE LIABILITY--OWNED NON- OWNED OR RENTED WORKERS' COMPENSATION EMPLOYERS' LIABILITY PROFESSIONAL POLLUTION LIABILITY/ENVIRONMENTAL IMPAIRMENT COVERAGE Not limited to sudden & accidental discharge; to include long-term environmental impact for the disposal of contaminants MINIMUM INSURANCE COVERAGE Bodily Injury and Property Damage $1,000,000 COMBINED SINGLE LIMIT AGGREGATE LIMIT OF LIABILITY FOR EACH POLICY PERIOD $1,000,000 COMBINED SINGLE LIMIT WHICH COMPLIES WITH THE TEXAS WORKERS' COMPENSATION ACT AND PARAGRAPH 2.A. OF THIS EXHIBIT $100,000 $1,000,000 AGGREGATE LIMIT OF LIABILITY FOR EACH POLICY PERIOD In the event of accidents of any kind, the Hauler must furnish the Risk Manager with copies of all reports of such accidents at the same time that the reports are forwarded to any other interested parties. 2. ADDITIONAL REQUIREMENTS The Hauler and its subcontractors must obtain workers' compensation coverage through a licensed insurance company or through self-insurance obtained in accordance with Texas law. If such coverage is obtained through a licensed company, the contract for coverage must be written on a policy and endorsements approved by the Texas Department of Insurance. If such coverage is provided through self-insurance, then within 10 calendar days after the date the Contract Administrator or his designee requests that the Hauler sign the contract documents, the Hauler must provide the Risk Manager with a copy of its certificate of authority to self- insure its workers' compensation coverage, as well as a letter signed by the Hauler stating that the certificate of authority to self-insure remains in effect and is not subject to any revocation proceeding then pending before the Texas Workers' Compensation Commission. Further, if at any time before the expiration of the Agreement by the City, the certificate of authority to self-insure is revoked or is made the subject of any proceeding which could result in revocation of the certificate, then the Hauler must immediately provide written notice of such facts to the City, by certified mail, return receipt requested directed to Director of Solid Waste Services, City of Corpus Christi, P.O. Box 9277, Corpus Christi, TX 78469-9277. Whether workers' compensation coverage is provided through a licensed insurance company or through serf-insurance, the coverage provided must be in an amount sufficient to assure that all workers' compensation obligations incurred by the Hauler and its subcontractors will be promptly met. B. Certificate of Insurance: The City of Corpus Christi must be named as an additional insured on the liability coverage, except for the Workers' Compensation coverage and a blanket waiver of subrogation on all applicable policies. if your insurance company uses the standard ACOP, D form, the cancellation clause (bottom right) must be amended by adding the wording "changed or* between "be" and "canceled", and deleting the words, "endeavor to", and deleting the wording after "left". The name of the project, e.g., "City of Corpus Christi Solid Waste Hauler Agreement" must be listed under "Description of Operations" At a minimum, a 30-day written notice to the City's Risk Manager of change or cancellation is required. If the Certificate of Insurance on its face does not show on its face the existence of the coverage required by items 1.B.(1)-(8), an authorized representative of the insurance company must include a letter specifically stating whether items 1 .B.(1)-(8) are included or excluded. EXHIBIT D Insurance Requirements 1. BFI's Liability Insurance A BFI may not commence Services under this Agreement until all insurance required herein has been obtained and such insurance has been approved by City. BFI may not allow any subcontractor to commence services until all similar insurance required of the subcontractor has been obtained. B. BFI shall furnish to City's Risk Manager, two (2) copies of Certificates of Insurance, showing the following minimum coverage by insurance company(s) acceptable to City's Risk Manager. City must be shown as an additional insured for the General Liability policy, and a blanket waiver of subrogation is required on all applicable policies except for the sole negligence of City. TYPE OF INSURANCE MINIMUM INSURANCE COVERAGE 30-Day written notice of cancellation, non- renewal, material change or termination and a 10 day written notice of cancellation for non- payment of premium is required on all certificates Bodily Injury and Property Damage Per Occurrence Aggregate COMMERCIAL GENERAL LIABILITY including: 1. Commercial Form 2. Landfill - Operations 3. Products/Completed Operations Hazard 4. Contractual Liability 5. Independent contractors 6. Personal Injury 7. Broad Form Property Damage General Aggregate Products-Comp/Op Agg. Personal & Adv. Injury Each Occurrence Fire Damage (Any one fire) $2,000,000 $2,000,000 $1,000,000 1,000,000 5,000 AUTOMOBILE LIABILITY -- OWNED, NON-OWNED OR RENTED $1,000,000 COMB1NED SINGLE LIMIT WORKERS COMPENSATION INSURANCE Must comply with the Texas Worker's Compensation Act and Section II of this exhibit EMPLOYERS LIABILITY INSURANCE $1,000,000 each accident/each disease policy limit/each disease - each employee PROFESSIONAL POLLUTION LIABILITY / ENVIRONMENTAL IMPAIRMENT $2,000,000 COMBINED SINGLE LIMIT II. ADDITIONAL REQULREMENTS A. BFI shall obtain workers' compensation coverage through a licensed insurance company in accordance with Texas law. The Agreement for coverage must be written on a policy and endorsements approved by the Texas Department of Insurance. The coverage provided must be in amounts sufficient to assure that all workers' compensation obligations incurred by the BFI will be promptly met. B. Certificate of Insurance: 1. The City of Corpus Christi must be shown as an additional insured on the General Liability coverage, and a blanket waiver of subrogation is required on all applicable policies except for the sole negligence of City. 2. If your insurance company uses the standard ACCORD form, the cancellation clause (bottom fight) must be amended by adding the wording "changed or" between "be" and "canceled", and deleting the words, "endeavor to", and deleting the wording after "left". In the alternative, a copy of the endorsement evidencing that the policy was endorsed with required cancellation provisions will be accepted. 3. The name of the project must be listed under "Description of Operations". 4. At a minimum, a 30-day written notice of material change, cancellation, non-renewal, or termination and a 10-day written notice of cancellation for non-payment of premium is required. C. If the Certificate of Insurance on its face does show not the existence of the coverage required by items listed in the table following Section I.B of this exhibit, an authorized representative of the insurance company must include a letter specifically stating whether items in the table following I.B. are included or excluded. EXHIBIT E Storage Tanks EXHIBIT F City Equipment To Be Purchased by BFI Item 1 - Caterpillar D8R S/N 6YZ01948 I - Caterpillar 938G S/N 6WS00948 I - Caterpillar IT24F S/N 4NN01050 Total Purchase Price(*) $360,000 $55,000 $39,O00 $454,000 (*) The actual purchase price depends on the date the Agreement is executed. The actual purchase price shall be the lesser of the amount shown above or the City's payoff amount for the equipment as of the date the Agreement is executed. 1/31/05