Resolution 2014-311
RESOLUTION NO. 2014 31
A RESOLUTION OF THE CITY COUNCIL OF THE CITY
OF GILROY APPROVING AND AUTHORIZING THE
CITY ADMINISTRATOR TO EXECUTE THAT CERTAIN
SOLID WASTE DISPOSAL AGREEMENT WITH WASTE
SOLUTIONS GROUP OF SAN BENITO, LLC FOR SOLID
WASTE DISPOSAL
WHEREAS, the City of Gilroy, a municipal corporation and charter city duly organized
and existing under and pursuant to the Constitution and laws of the State of California ( "City "),
is authorized to enter into contracts and agreements for the benefit of the City; and
WHEREAS, the reasons supporting the entrance of the City into that certain agreement
described in, and that is the subject of, this Resolution are set forth in detail in that certain City
Council Staff Report entitled "Solid Waste Disposal Agreement, Franchise Amendment and Rate
Setting Methodology" submitted to the City Council by the City Administrator (the "Staff
Report") for City Council consideration at its meeting of June 16, 2014, the contents of which
Staff Report are incorporated herein by this reference; and
WHEREAS, the consideration by City Council of the adoption of this Resolution has
been duly noticed pursuant to applicable laws and has been placed upon the City Council
Meeting Agenda on the date set forth in the Staff Report, or to such date that the City Council
may have continued or deferred consideration of this Resolution, and on such date the City
Council conducted a duly noticed public meeting at which meeting the City Council provided
members of the public an opportunity to comment and be heard and considered any and all
testimony and other evidence provided in connection with the adoption of this Resolution; and
WHEREAS, the John Smith Landfill is fully permitted by the State of California and a
mitigated negative declaration was completed and adopted by San Benito County in 2012 for the
expansion of the landfill in compliance with the California Environmental Quality Act of 1970;
and
WHEREAS, directing the City's waste to the John Smith Landfill in Hollister, California
will reduce energy consumption and air pollution associated with hauling waste from the City to
the landfill; and
RESOLUTION NO. 2014 —31
2
WHEREAS, the activities allowed under this Resolution are categorically exempt from
the California Environmental Quality Act of 1970 ( "CEQA ") per CEQA Guidelines Section
15307. Actions by Regulatory Agencies for Protection of Natural Resources and Section 15308.
Actions by Regulatory Agencies for Protection of the Environment; and
WHEREAS, the City Council determines that adoption of this Resolution is in the public
interest.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF GILROY DOES
HEREBY FIND, DETERMINE, RESOLVE AND ORDER AS FOLLOWS:
Section 1. Recitals. The City Council does hereby find, determine and resolve that all
of the foregoing recitals are true and correct.
Section 2. Approval and Authorization. The City Council does further resolve, order
and/or direct as follows:
a. That the Solid Waste Disposal Agreement with Waste Solutions Group of San Benito,
LLC for the solid waste disposal at John Smith Landfill substantially in the form
attached hereto as Exhibit A and incorporated herein by this reference (the
"Agreement") is hereby approved.
b. That the City Administrator is hereby delegated authority to and is authorized and
directed to further negotiate and execute the Agreement substantially in the form
attached hereto as Exhibit A.
Section 3. This Resolution shall take effect immediately upon adoption.
PASSED AND ADOPTED this 16`h day of June, 2014 by the following roll call vote:
AYES: COUNCILMEMBERS: ARELLANO, BRACCO, LEROE- MUNOZ,
TUCKER, WOODWARD and GAGE
NOES: COUNCILMEMBERS: NONE
ABSENT: COUNCILMEMBERS: AULMAN
APPROVED:
7
Donald Gage, Mayor
RESOLUTION NO. 2014 —31
EXHIBIT Ae SOLID WASTE DISPOSAL
AGREEMENT
(00059528.DOC.3) SOLID WASTE DISPOSAL AGREEMENT
SOLID WASTE DISPOSAL AGREEMENT
This SOLID WASTE DISPOSAL AGREEMENT (this "Agreement ") is made and
entered as of July 1, 2014 (the "Effective Date "), by and among the CITY OF GILROY,
CALIFORNIA ( "Gilroy "), the CITY OF MORGAN HILL, CALIFORNIA ( "Morgan Hill" and,
together with Gilroy, the "Cities "), and WASTE SOLUTIONS GROUP OF SAN BENITO,
LLC, a Delaware limited liability company ( "Company '). Cities and Company are hereinafter
sometimes referred to individually as a "Party'' and jointly as the "Parties."
RECITALS
WHEREAS, Contractor (as defined below) is the franchised solid waste collector for all
Waste (as defined below) generated within the incorporated city limits of Cities;
WHEREAS, Contractor owns and operates the San Martin Transfer Station, located at
14070 Llagas Ave., San Martin, California (the "Contractor Transfer Station "), which besides
accepting franchised solid waste from Cities, accepts self - hauled public Waste from residents of
Cities;
WHEREAS, Company operates the John Smith Road Landfill (the "Landfill ") and
desires to become a provider of solid waste disposal services for Cities;
WHEREAS, Cities conducted a request for proposals for the long -term disposal of the
Waste generated within the incorporated city limits of Cities;
WHEREAS, in response to the proposal submitted by Company, Cities have awarded to
Company an exclusive, long -term contract for the disposal of the Waste generated within the
incorporated city limits of Cities; and
WHEREAS, Cities have directed Contractor to haul all Waste collected within the
incorporated city limits of Cities delivered to the Contractor Transfer Station to the Landfill.
AGREEMENT
NOW, THEREFORE, for and in consideration of the respective covenants herein
contained and other good and valuable consideration, the receipt and sufficiency of which is
hereby acknowledged, the Parties agree to the terms and conditions set forth herein.
1. Definitions.
1.1 "Acceptable Waste" or "Waste" means "Solid Waste ", as defined in California
Public Resources Code, Division 30, Part 1, Chapter 2, § 40191 and regulations promulgated
thereunder, and includes residential waste, commercial waste, non - recycled construction and
demolition waste, residuals from any material recovery, recycling or other waste processing
facility, and any other combination of these wastes, and all other acceptable Class III and Class II
Wastes; rop vided, however, the following materials are excluded from the definition of
Acceptable Waste: (a) Special Waste, (b) Hazardous Waste, (c) Class I Wastes, and (d)
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 2
materials recovered from Acceptable Waste for recycling or other beneficial use and which are
not subsequently disposed of in a landfill.
1.2 "Contractor" means Cities' currently- contracted Waste hauler, Recology South
Valley, a California corporation, any successor in interest thereto or any other party Cities
subsequently designate as their franchised solid waste collector during the Term.
1.3 "CPI -U" means the Consumer Price Index, All Items, 1982 -84 =100 for All Urban
Consumers (CPI -U): San Francisco - Oakland -San Jose.
1.4 "Designated Waste" means "Designated Waste ", as defined by State of California
under § 13173 of Division 7 of the California Water Code.
1.5 "Disposal," "Dispose" or "Disposed" means the delivery of Acceptable Waste to
the Landfill.
1.6 "Disposal Facilities" means the Landfill or, if the Landfill is incapable of
accepting Acceptable Waste for any reason, the Potrero Hills Landfill in Solano County,
California (the "Alternate Disposal Facility').
1.7 "Free Liquid" means liquid in excess of twenty -five (25) gallons per contained
load of waste which readily separates from the solid portions of such waste on delivery to the
Landfill under ambient temperature and pressure (i.e., liquid in the waste load that causes the
waste to fail the "paint filter test" prescribed by the Environmental Protection Agency in its
"Method 9095 ").
1.8 "Hazardous Waste" means any waste which is defined or regulated as a hazardous
waste, toxic substance, hazardous chemical substance or mixture, or asbestos under applicable
law, including, but not limited to: (a) the Resource Conservation and Recovery Act and the
regulations contained in 40 CFR Parts 260 -281, inclusive; (b) the Toxic Substance Control Act
(15 U.S.C. § 2601, et seq.); (c) the regulations contained in 40 CFR Parts 761 -766 inclusive; (d)
California Health and Safety Code § 25117; (e) the California Public Resources Code, § 40141;
and (f) all successor laws and regulations as may be amended from time to time.
1.9 "Special Waste" means and includes, without limitation, Designated Waste and
any non - Designated Waste that requires special handling or safety procedures at the Landfill
during either off loading or burial. Examples of Special Waste include, but are not limited to: fly
ashes, petroleum contaminated soils, waste water treatment plant sludge, field plastic, truck load
quantities of box springs and mattresses, toner cartridges, appliances, wood stumps over two (2)
feet in diameter, large tree limbs and poles.
1.10 "Special Waste Application" means the form used by Company to gather
information about the proposed Special Waste to be delivered to the Landfill. In order to be
"approved" the Special Waste Application must be executed by Company's Environmental
Manager, or authorized representative, who thereby approves the waste as Acceptable Waste.
1.11 "Ton" means a standard or short ton and shall be deemed to be equal to two
thousand (2,000) pounds.
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 3
1. 12 "Unacceptable Waste" means any and all waste:
(a) the delivery of which at the Landfill would violate any applicable local,
state, or federal laws, regulations, or orders, or conditions of the Landfill's operating permit;
(b)
(c)
Application;
(d)
be unacceptable; or
(e)
2. Term.
which constitutes Hazardous Waste;
which constitutes Special Waste without an approved Special Waste
which in Company's sole and reasonable discretion Company considers to
containing Free Liquid without an approved Special Waste Application.
2.1 Initial Term. This Agreement shall commence on the Effective Date and shall
continue for an approximate period of fifteen (15) years ending June 30, 2030 (the "Initial
Term "), unless terminated earlier pursuant to Section 18.
2.2 Extension Term. Cities shall have the sole right to extend the Initial Term by no
less than two (2) additional five (5) -year periods (i.e., until June 30, 2035, and again until June
30, 2040) (each an "Extension Term" and, together with the Initial Term, the "Term "). Cities
shall notify Company of its intent to extend the Initial Term and, if applicable, the first Extension
Term no later than one (1) year prior to the end of the Initial Term. After the second Extension
Term, any further extensions of the Term shall be only by written agreement of the Parties.
2.3 Rejection of Extension Term. Notwithstanding anything to the contrary in this
Section 2, Company shall have the right to reject Cities' exercise of either Extension Term
pursuant to Section 2.2 in the event of any of the following: (i) Company's costs to expand the
Landfill (including Company's operating costs) are higher than the documented costs of
constructing new landfill airspace as of the Effective Date by a percentage amount greater than
the cumulative CPI adjustment calculated pursuant to Section 6.1 from the Effective Date
through the date Cities seek to exercise the applicable Extension Term; (ii) the Landfill can no
longer accept Acceptable Waste due to permitted Disposal capacity limitations; or (iii) Company
determines in its sole but reasonable discretion that Company is reasonably likely to breach its
contractual obligation to San Benito County to maintain at least fifteen (15) years of airspace at
the Landfill at all times.
3. Exclusive Tonnage Commitment; Waste Type and Source. In consideration of the
preferred Base Rate set forth in Section 5, Cities shall direct Contractor to deliver to the Landfill
One Hundred Percent (100 %) of the Acceptable Waste generated as a result of the City's
collection Franchise Agreements. Cities warrant that Contractor shall deliver to the Landfill only
Acceptable Waste, except that Contractor may also deliver Special Waste in accordance with the
provisions described in an approved Special Waste Application.
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 4
4. Disposal.
4.1 Disposal of Acceptable Waste. Company will accept delivery and Dispose of all
properly identified Acceptable Waste from Contractor and Cities from time to time during the
term of, and according to, this Agreement; provided, however, that such waste is Acceptable
Waste that Company is capable of accepting and properly Disposing of at the Landfill.
4.2 Inability to Accept Acceptable Waste. Except as provided in Sections 10 and
19.1, in the event that Company fails to accept some or all Acceptable Waste delivered by
Contractor pursuant to this Agreement, regardless of the reason for such failure, the following
shall occur:
4.2.1 Immediately upon Company's temporary inability to accept Acceptable
Waste delivered by Contractor pursuant to this Agreement, Company shall make whatever
arrangements are necessary for the use of the Alternate Disposal Facility and shall direct
Contractor to use the Alternate Disposal Facility.
4.2.2 Company shall be responsible for paying all documented additional costs
resulting from the use of the Alternate Disposal Facility under Section 4.2.1, including any
increase in costs for Disposal services, whether paid on a per -Ton, lump -sum or other basis, and
any increase in transport expenses due to increased transport time, distance, or method incurred
by Contractor and/or Cities. Company is responsible for securing all necessary regulatory
approvals needed for Contractor and/or Cities to use the Alternate Disposal Facility under
Section 4.2.1.
4.3 Landfill Disposal Area Site Expansions. Company has represented to Cities that
it will, and Company shall, demonstrate reasonable efforts to seek approvals for expansion of the
current permitted Landfill disposal area and capacity.
5. Base Rate. During the Term, the tipping fee per Ton (the `Base Rate ") for the Disposal
of Acceptable Waste at the Disposal Facilities shall be as follows:
Term Year Proprietary Base Current Taxes Total Base
Rate Per Ton Per Ton Rate
Year 1 (Effective Date — December
31, 2014) ............. ............................... $17.10 per Ton $3.90 $21.00
Year 2 (January 1, 2015 —
December 31, 2015 ) ........................... $17.60 per Ton $3.90 $21.50
Years 3 — 15 (January 1, 2016 —
December 31, 2029 ) ........................... As adjusted
pursuant to the
provisions of
Section 6.1.
{00059528.DOC.3} SOLID WASTE DISPOSAL AGRE
As adjusted
from time to
time pursuant
to Section 6.2.
EMENT
As adjusted
pursuant to the
provisions of
Sections 6.1
and 6_2.
5
The Base Rate for any acceptable Special Waste shall be quoted on a case -by -case basis.
6. Base Rate Adiustments.
6.1 CPI Adjustment. Beginning on January 1, 2016, and on each anniversary thereof
through the end of the Term, Company's Proprietary Base Rate shall automatically increase by
an amount equal to Eighty Percent (80 %) of the increase in the CPI -U for the prior twelve (12)-
month period. Any adjustment based on the CPI -U shall be calculated by establishing the
percentage difference in CPI -U using October as compared to the immediately preceding
October during the term of this Agreement.
6.2 Changes in Law. The Parties acknowledge that solid waste Disposal is a highly
regulated and highly taxed enterprise and that taxing authorities frequently raise revenue by
imposing taxes on waste Disposal operations and businesses. The Parties acknowledge that the
Base Rate already includes costs associated with complying with all existing governmental
regulations applicable to the Disposal Facilities including, but not limited to, methane control
regulations and the costs of closure and post - closure monitoring. If state, federal or local
government or governmental agencies increase any taxes (or impose new taxes), surcharges or
other fees (collectively, the "Taxes ") or adopt or modify any compliance and regulatory
requirements ( "Change in Law ") that result in increased operating costs to Company or require
Company to make or capital expenditures, Company shall have the right to pass the Taxes and
increased operating costs resulting from Changes in Law through to Cities in the form of
increased Base Rates. To the extent that the Taxes, Change in Law and other increased
operational costs (the "Increased Costs ") can be factored into the per ton Base Rate applicable to
Cities under this Agreement, the Parties hereto shall use good faith efforts to negotiate an
adjusted Base Rate that includes Cities' equitable share of the Increased Costs.
7. Turnaround Time of Contractor's Vehicles. Company shall use commercially reasonable
efforts to ensure that the average time required for a vehicles delivering Acceptable Waste
pursuant to this Agreement ( "Contractor Vehicles ") to unload and exit the Landfill is thirty (30)
minutes commencing from the time the Contractor Vehicles queue in the Landfill's inbound
scale line to the time said vehicles exit over the Landfill's exit scale (the "Average Turnaround
Time "); provided, however, that Company shall not be responsible for (and shall not be in breach
of the provisions of this Section 7) for delays not caused by or under the control of Company,
including, without limitation, vehicle breakdown, driver negligence, lack of cooperation, or a
vehicle driver parking to use Company's restrooms or telephone. Company shall manage the
Acceptable Waste receiving and unloading area in order to facilitate access and unloading by
Contractor. Company shall make available to Contractor a functional tipper at all times. The
Average Turnaround Time shall be calculated on a thirty (30) calendar day basis as the sum of
the vehicle turnaround time for each load of Acceptable Waste delivered by Contractor pursuant
to this Agreement during the month divided by the number of loads received during the thirty
(30) calendar day period. Company shall report the Average Turnaround Time on a regular
monthly basis to Cities. If this Average Turnaround Time exceeds thirty (30) minutes for two
consecutive months or more, Company shall meet with Contractor and Cities, determine the
cause of such exceedance(s), and reach an acceptable solution with Contractor and Cities to
reduce the Average Turnaround Time to an acceptable level.
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 6
8. Tender of Delivery. Cities shall direct Contractor to tender Disposal of the Acceptable
Waste to Company at those times and places, in those quantities, and in the manner specified in
this Agreement or Special Waste approvals. Cities shall direct Contractor to, at the same time
and place, tender to Company those completed documents, shipping papers or manifests as are
required, for lawful transfer of the Acceptable Waste to Company, by valid and applicable
statutes, ordinances, orders, rules or regulations of the federal, state or local governments.
Tender of Disposal shall be considered non - conforming if not in accordance with this Section
and/or the specifications of and Special Waste approvals.
9. Right To Inspect Waste Material. Company shall have the right, but not the obligation, to
inspect, sample, analyze or test any tendered waste material before accepting such material. If
the waste material or tender of delivery fails in the opinion of Company, to conform to this
Agreement, Company may: (a) reject all waste material tendered; (b) conditionally accept any or
all waste material tendered; or (c) accept any unit or units of waste material and reject the rest.
10. Right to Reject Unacceptable Waste. Company may conditionally accept Contractor's
and Cities' waste offloaded at the Landfill or the applicable Disposal Facility but may revoke its
acceptance of any load of waste as Unacceptable Waste at any time it is determined to be
Unacceptable Waste (such rejected waste will hereinafter be referred to as "Rejected
Waste'). Upon Company's good faith and timely rejection or revocation of acceptance of waste,
that waste shall become Rejected Waste and Company's rejection shall operate to re -vest title to
the Rejected Waste in Contractor and Cities. As a condition to its effective rejection of Waste or
revocation of its acceptance of any Waste, Company will:
10.1 Promptly notify Contractor and Cities, specifying the basis for its rejection of
such Waste;
10.2 Segregate and properly containerize the Rejected Waste at the Landfill or the
applicable Disposal Facility; and
10.3 Allow Contractor and Cities a reasonable opportunity (not to exceed seventy -two
(72) hours from the time of notice of rejection) to reclaim and remove the Rejected Waste from
the Landfill or the applicable Disposal Facility.
If Contractor or Cities fail to reclaim and remove the Rejected Waste from the Landfill or
the applicable Disposal Facility (or arrange for the removal of the Rejected Waste from the
Landfill or the applicable Disposal Facility), Company may make arrangements for the off -site
storage, transportation and Disposal of the Rejected Waste at a facility permitted to accept the
Rejected Waste. In such event, Cities shall promptly reimburse Company for the reasonable
costs incurred by Company in testing, clean-up, handling, loading, preparing, transporting,
storing, Disposing and either returning the Rejected Waste to Contractor and/or Cities or
transporting and Disposing of the Rejected Waste at a facility permitted to accept the Rejected
Waste.
11. Acceptance of Waste; Passage of Title. Company will be vested with title to all
Acceptable Waste accepted by the Landfill hereunder on rem oval of the Acceptable Waste from
the Transfer Station; provided, however, that the Landfill or the applicable Disposal Facility is
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 7
legally permitted to accept such waste and acceptance of such waste is not rejected or revoked
under Section 10. Otherwise, title to waste delivered by Contractor shall be in, and all risks and
responsibilities shall be borne by, Contractor and Cities.
12. Hours of Operation. Company shall accept all Acceptable Waste at the Landfill during
normal business hours of. Monday — Friday, 8:00 a.m. — 4:00 p.m.; Saturday — Sunday, 9:00
a.m. — 3:00 p.m.; subject to Company's right to change the hours of operation, which it may do
at any time and from time to time upon giving Contractor and Cities reasonable advance notice
of any such change in hours or capacity limitations, which reasonable advance notice typically
would be no less than ninety (90) days in advance of such change. The Landfill will be closed
on the following holidays: New Years Day, Easter Sunday, Thanksgiving Day and Christmas
Day. Company shall give Contractor and Cities reasonable advance notice of any change to the
holiday schedule.
13. Contractor Landfill Activities. Contractor's activities at the Landfill shall be subject to
the applicable provisions of Company's permits and safety and operating procedures made
known to Contractor and Cities by Company. Cities shall direct Contractor to exercise due care
and diligence in the movement and offloading of Waste from its collection vehicles while in the
Landfill and shall be responsible for all acts or omissions of its employees, subcontractors and
their agents and employees in connection with their activities at the Landfill. Cities shall direct
Contractor to, at its sole cost, protect its own employees and agents, employees of Company and
other persons from risk of death, injury or bodily harm arising out of or in any way connected
with Contractor's activities at the Landfill. Cities shall indemnify, defend and hold Company
harmless for all acts or omissions of Contractor, Contractor's employees, agents and independent
contractors and their respective agents and employees in connection with their activities at the
Landfill.
14. Intoxicating Liquors and Drugs. Cities shall direct Contractor to establish and keep in
place rules prohibiting its employees, agents or independent contractors from taking any
controlled substances or intoxicating liquors to the Landfill. Cities shall direct Contractor to not
permit its employees, agents or independent contractors to bring, anywhere on the Landfill, any
controlled substances or intoxicating liquors. If any employee, agent or independent contractor
of Contractor shall, in the opinion of Company, be under the influence of alcohol or controlled
substances while at the Landfill, Company shall require such person to leave the Landfill
immediately.
15. Invoicing, Dispute of Invoiced Amounts. Company will invoice Contractor twice per
month in arrears, using applicable Base Rates for all Tons of Waste accepted for Disposal at the
Landfill in the then immediately preceding invoice period. Cities shall direct Contractor to pay
undisputed invoiced amounts within thirty (30) days of the date of its receipt of the invoice. If
Cities or Contractor dispute an invoiced amount, they shall do so within the fifteen (15) day
period following receipt of the invoice containing the disputed amount and give notice to
Company setting forth therein the basis for the disputed amount with sufficient specificity to
allow Company to investigate the disputed amount. If Cities and Contractor fail to dispute any
invoiced amount within fifteen (15) days of receiving the invoice, Cities and Contractor shall be
conclusively deemed to have waived their right to dispute the amount. Tonnage amounts of
Waste shall be determined using Company's weigh scales at the Landfill or the applicable
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 8
Disposal Facilities and shall be taken from certified weight tags issued by Company or the
owner /operator of the applicable Disposal Facilities.
16. Insurance. The Parties shall obtain and maintain during the term of this Agreement
commercial general liability insurance to protect against any claim or demand concerning bodily
injury, death or property damage and business auto insurance for claims arising out of such
Parry's operations. Each Party hereto agrees to provide the other Party with thirty (30) days'
written notice of any nonrenewal, cancellation, decrease or material change in the insurance
coverage. Each Party, on request, shall furnish the other Party with a certificate of insurance
showing the insurers and the coverages in effect, all of which shall be satisfactory to the
receiving party in its sole reasonable judgment. The type and limits of liability of all insurance
required herein shall be as set forth in Exhibit A, which is attached hereto and incorporated
herein. Insurance provided pursuant to this Section 16 shall be written on an occurrence basis or
claims made basis. All policies, except workers' compensation, shall name the other Party as an
additional insured. Limits specified in Exhibit A may be provided through any combination of
primary, umbrella/excess, deductibles or self insurance policies.
17. Indemnity.
17.1 By Cities. Cities shall fully and forever defend, indemnify and hold harmless
Company and its successors, assigns, officers, directors and agents against and in respect of any
and all costs, losses, damages, deficiencies, expenses or liabilities (including court costs and
reasonable attorneys' fees and expenses), threatened, suffered or paid, to the extent resulting
from or arising out of. (i) any breach of any representation or warranty made by Cities in this
Agreement or in any certificate, document or instrument given pursuant hereto or in connection
herewith; (ii) any failure by Cities or Contractor to perform or otherwise fulfill or comply with
any undertaking, agreement or obligation on the part of Cities or Contractor to be performed,
fulfilled or complied with hereunder, including the payment obligations set forth in Section 15;
(iii) any claim by any third parry of ownership of or any rights or interests in any Waste accepted
by Company for Disposal at the Landfill or the applicable Disposal Facility; (iv) any bodily
injury, personal injury or property damage arising out of or in any way related to Cities or
Contractor's acts or omissions; and (v) any violation by Cities or Contractor of any federal, state,
county or local law or regulation pertaining to Cities or Contractor's operations. This obligation
shall survive the expiration or earlier termination of this Agreement.
17.2 By Company. Company shall fully and forever defend, indemnify and hold
harmless Cities and their respective successors, assigns, officers, directors, employees and agents
against and in respect of any and all costs, losses, damages, deficiencies, expenses or liabilities
(including court costs and reasonable attorneys' fees and expenses), threatened, suffered or paid,
to the extent resulting from or arising out of (i) any breach of any representation or warranty
made by Company in this Agreement or in any certificate, document or instrument given
pursuant hereto or in connection herewith; (ii) any failure by Company to perform or otherwise
fulfill or comply with any undertaking, agreement or obligation on the part of Company to be
performed, fulfilled or complied with hereunder; (iii) any bodily injury, personal injury or
property damage arising out of or in any way related to Company's acts or omissions; and (iv)
any violation by Company of any federal, state, county or local law or regulation pertaining to
{00059528.DOC.31 SOLID WASTE IDISPOSAL AGREEMENT 9
Company's operations. This obligation shall survive the expiration or earlier termination of this
Agreement.
18. Default, Termination.
18.1 Default, Event of Default. The terms "event of default" and "default" shall mean
either Party's failure to observe, comply with or perform (as the case may be) any covenant,
condition or obligation on its part to be performed, complied with or observed, as provided in
this Agreement.
18.2 Failure to Pay Amounts Due. Cities shall be in default hereof if it fails to timely
pay any invoiced amount in accordance with the terms set forth in Section 15 above. Effective
upon not less than five (5) days' notice to Cities, Company may suspend Cities and Contractor's
access to the Landfill until such time as Cities have paid Company the undisputed invoiced
amount. Notwithstanding any suspension of Cities and Contractor's access to the Landfill by
Company, Cities shall remain obligated to comply with all provisions of this Agreement,
including, without limitation, Section 3.
18.3 Default; Right to Cure. A Party shall be in default hereof if it breaches or fails to
perform any non - monetary covenant, condition, agreement representation or warranty contained
in this Agreement and fails to cure such breach or failure for fifteen (15) days after the other
Party has given the breaching Party written default notice; rop vided, however, that, if such
failure or breach is of such nature as to not be curable within said fifteen (15) -day period, an
event of default shall occur if the breaching or failing Party shall have failed to commence
curative action within the prescribed fifteen (15) -day period and prosecuted the same with due
diligence to completion thereafter but in no event beyond forty -five (45) days after receipt of the
default notice.
18.4 Remedy upon Default. In any such event of default, the non - breaching Party
may: (i) terminate this Agreement; and (ii) have recourse to any other right or remedy to which
it may be entitled by law, including, but not limited to, the right of all damage or loss suffered as
a result of such breach or default. In the event either Party waives default by the other Party,
such waiver shall not be construed or determined to be a continuing waiver of the same or any
subsequent breach or default.
19. Miscellaneous.
19.1 Force Majeure. Except with respect to the payment of money owed for Disposal
services hereunder, the performance of this Agreement by either Parry may be suspended and the
obligations hereunder excused or extended in the event, and during the period, that such
performance is prevented by a cause or causes beyond that Party's reasonable control but only to
the extent such cause or causes were unforeseeable or not the result of that Party's negligent or
intentional act or failure to act when there was a duty to act. Matters beyond the control of either
Party include, but are not limited to, injunctions or restraining orders making the performance of
this Agreement impossible, and governmental or judicial action or inaction, revoking,
suspending, or preventing issuance of any licenses or permits required for operation of the
Landfill, in the case of Company, or Contractor's collection, transfer and transportation facilities
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 10
or equipment, or adversely affecting the interstate or international flow of Waste (a "Force
Maieure Event "). In the event of disruption of services due to a Force Majeure Event, Company
shall, and Cities shall direct Contractor to, make every reasonable effort to reopen their
respective facilities as soon as practicable after the cessation of the cause of suspension of
services, and will take all reasonable steps to overcome the cause of cessation of services.
19.2 Compliance with Laws. During the Term, Company will comply with all present
and future federal, state and local statutes and ordinances regulating the Landfill, and with all
other rules and regulations and amendments thereto imposed by all federal and state regulatory
agencies having jurisdiction over the operation of the Landfill. Cities warrant that they and
Contractor are, and at all times during the Term will be, in compliance with all state, Federal,
county and other local laws, permits and licenses concerning the collection, handling and
transportation of waste covered by this Agreement. Cities shall direct Contractor to at all times
maintain in effect all licenses and permits for the generation of Acceptable Waste covered by this
Agreement required by any and all agencies that may have jurisdiction over Contractor's
operations.
19.3 Independent Contractor. Each Party is and shall perform their respective
obligations under this Agreement as independent contractors and, as such, shall have and
maintain complete control over all of their respective employees, agents and their conduct of
operations. Neither Party, nor anyone employed by it, shall be, represent, act, purport to act or
be deemed to be the agent, representative or employee of the other Party.
19.4 Entire Agreement. This Agreement represents the entire understanding and
agreement between the Parties relating to the Disposal of the Waste materials described herein
and supersedes any and all prior agreements, whether written or oral, that may exist between the
Parties regarding same and supersedes any and all terms and conditions which may exist in any
form with any Party regarding Contractor's and Cities' Disposal of Waste at the Landfill.
19.5 Notices. All notices or other communications to be given hereunder shall be in
writing and shall be deemed given when mailed by Registered or Certified United States mail, or
by nationally recognized overnight courier with proof of delivery:
To City of Gilroy: City of Gilroy
7351 Rosanna Street
Gilroy, CA 95029
Attention: City Administrator
Phone: 408 - 846 -0400
To City of Morgan Hill: City of Morgan Hill
17575 Peak Ave.
Morgan Hill, CA 95037
Attention: City Manager
Phone: 408 - 779 -7271
(00059528.DOC.3) SOLID WASTE DISPOSAL AGREEMENT 11
To Company: Waste Solutions Group Of San Benito, LLC
Attn: Division Vice President
2650 John Smith Road
Hollister, CA 95023
Phone: (831) 637 -4515
Fax: (831) 635 -9621
With Copy to: Waste Connections, Inc.
Attn: Legal Department
3 Waterway Square Place
Suite 110
The Woodlands, Texas 77380
Phone: (832) 442 -2200
Fax: (832) 442 -2290
Any changes of address by either Party affecting the notice provision of this
Agreement shall be by notice given to the other in the same manner as specified above.
19.6 Attorney's Fees. In the event of any dispute between the Parties with respect to
the subject matter hereof, the prevailing Party shall recover its costs and expenses including
reasonable attorney fees, witness fees (including experts), and discovery costs, all of which shall
be included in and as a part of the judgment or award rendered in such litigation or arbitration.
19.7 Specific Services. This is an Agreement for the performance of specific services
described herein. Under no circumstances or conditions shall the operations of the Landfill by
Company, in accordance with this Agreement, be deemed a public function, nor has Contractor
or Cities acquired an interest, ownership or otherwise in the real or personal property or
improvements or fixtures at the Landfill by virtue of this Agreement.
19.8 Amendment. No amendment, modification or change to this Agreement shall be
effective unless the same shall be in writing and duly executed by the Parties.
19.9 Applicable Law. The terms and conditions of this Agreement shall be construed
in accordance with the laws of the State of California, without regard for the state's conflict of
laws rules.
19.10 Section Headings. The section headings in this Agreement are inserted for
convenience only and shall not be considered as a part of this Agreement or as a limitation or
enlargement of the scope or meaning of the particular sections to which they refer, and shall not
affect the interpretation of any provisions of this Agreement.
19.11 Severability. In the event that any provisions of this Agreement shall, for any
reason, be determined to be invalid, illegal or unenforceable in any respect, the Parties shall
negotiate in good faith and agree to such amendments, modifications or supplements of or to this
Agreement or such other appropriate actions as shall, to the maximum extent practicable in light
of such determination, implant and give effect to the intentions of the Parties as reflected herein,
and other terms of this Agreement, as so amended, modified, supplemented or otherwise affected
by such actions, shall remain in full force and effect.
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 12
19.12 Further Assurances. Each Party shall use all reasonable efforts to provide such
information, execute and deliver any instruments and documents and take such action as may
reasonably be necessary or reasonably requested or required by the other Party which are not
inconsistent with the provisions of this Agreement and which do not involve the assumption of
obligations other than those contemplated in this Agreement to give full effect to this Agreement
and to carry out the intent of this Agreement.
[Remainder of Page Intentionally Left Blank; Signature Page Follows.]
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 13
IN WITNESS WHEREOF, the Parties have executed this Solid Waste Disposal
Agreement by their duly authorized agents, as of the date first above written.
CITIES:
CITY OF GILROY, CALIFORNIA
By:
Name: Thomas J. Haglund
Title: City Administrator
ATTEST:
By:
Name: Shawna Freels
Title: City Clerk
APPROVED AS TO FORM:
COMPANY:
WASTE SOLUTIONS GROUP OF SAN
BENITO, LLC, a Delaware limited liability
company
Bv:
Name: Paul Nelson
Title: Divisional Vice President
CITY OF MORGAN HILL, CALIFORNIA
By: By:
Name: Linda Callon Name:
Title: City Attorney Title:
(00059528.DOC.3) SOLID WASTE DISPOSAL AGREEMENT 14
EXHIBIT A
INSURANCE COVERAGE LIMITS
Coverage Limits of Liability
1. Automobile Liability with broadened form $1,000,000 minimum CSL per occurrence
pollution coverage, for all vehicles used in
the performance of duties under this
Agreement
2. Automobile Property Damage, for all $1,000,000 minimum CSL per occurrence
vehicles used in the performance of duties
under this Agreement.
3. Commercial General Liability $1,000,000 minimum CSL per occurrence
4. Employer's Liability
5. Workers' Compensation
6. Excess / Umbrella Liability
$1,000,000 each accident
$1,000,000 disease
$1,000,000 each employee
Statutory as prescribed by state law
$5,000,000 in excess of 1, 2, 3 & 4 above
• All policies, except workers' compensation, will add the other party as an additional insured.
• All policies will contain waivers of subrogation in favor of the other party.
• All policies will be written on an occurrence form basis.
• All insurance companies providing the policies herein shall be listed in the most recent
edition of A.M. Best's insurance reports with a size category of VII or larger, and a rating
classification of A- or better. These A.M. Best ratings are to be maintained throughout the
Term of this Agreement.
{00059528.DOC.3} SOLID WASTE DISPOSAL AGREEMENT 15
I, SHAWNA FREELS, City Clerk of the City of Gilroy, do hereby certify that the
attached Resolution No. 2014 -31 is an original resolution, or true and correct copy of a city
resolution, duly adopted by the Council of the City of Gilroy at a regular meeting of said Council
held on the 16th day of June, 2014, at which meeting a quorum was present.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed the Official Seal of
the City of Gilroy this 17th day of June, 2014.
'Sh was Freels, MMC
City Clerk of the City of Gilroy
(Seal)