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HomeMy WebLinkAboutContract 28508-E1 STATE OF TEXAS § CITY SWV Z` 5-0��LL § Cowma N0.49 COUNTIES OF TARRANT, § DENTON, PARKER AND WISE § FIRST EXTENSION AND AMENDMENT TO CITY SECRETARY CONTRACT NO. 28508 WITH IESI TX LANDFILL, LP FOR CONTRACT FOR MUNICIPAL YARD WASTE PROCESSING AND TYPE IV, C&D WASTE AND LARGE BRUSH AND BULKY WASTE THIS FIRST EXTENSION AND AMENDMENT is entered into by and between the City of Fort Worth ("City "), a home-rule municipality in the State of Texas, acting through Charles Daniels, its duly authorized Assistant City Manager, and IESI TX Landfill, LP ("Contractor"), by and through John Gustafson, its duly authorized Vice President. WHEREAS, the City and IESI TX Corporation, a Texas Corporation, entered into that certain agreement identified as City Secretary Contract No. 28508 for a term beginning April 4, 2003 and ending March 31, 2013 ("Contract"); and WHEREAS, such Contract provided for three (3) consecutive (10) year renewal options, provided all other conditions remained the same as detailed in the Contract; and WHEREAS, IESI TX Corporation is a parent company of IESI TX Landfill, LP; WHEREAS, IESI TX Corporation changed its name to Progressive Waste Solutions of TX, Inc. on June 20, 2012; and WHEREAS, both parties agree to extend and amend the Contract for a term of five (5) years as provided herein. NOW, THEREFORE, for and in consideration of the mutual covenants contained herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and confessed, the parties hereto agree as follows: 1. Title: The title of the Contract shall be changed to be Contract for Municipal Yard Waste Processing And Type IV, C&D Waste And Large Brush And Bulky Waste 11. Section 1: Definitions A. The following definitions shall be amended to read and be as follows: Bulky Items shall mean furniture, Treated Wood, construction materials generated by a Resident (and not by a Commercial Service Provider) as a result of a household project, mattresses and box springs, carpet, swing sets, plastic swimming pools, large toys, bicycles, toilets, household appliances, electronic equipment, and other similar items, open cardboard boxes, White Goods (CFC-Free), Large Brush, tree trunks, root -1- OFFICIAL RECORD 10i3 CITY SECRETARY RECEIVED h1AY ' 1 , balls; provided, all such materials must be permitted to be disposed of in a Type IV landfill. Contract shall mean this First Extension and Amendment, City Secretary Contract No. 28508, the RFP and all attachments. Contract Year for the purposes of calculating the Cost Adjustment Method to the Contract, Contract Year shall mean October through September of each year, this shall include the first Contract Year to this First Extension and Amendment which shall be October 1, 2012 through September 30, 2013. Director shall mean that person whom the City has designated to be responsible for administrating the City's Solid Waste services. Guarantor shall mean Progressive Waste Solutions of TX, Inc. Guaranty shall mean the Guaranty Agreement, dated as of[ _2+, 2013 from the Guarantor to the City. Large Bulky Waste shall be deleted in its entirety. B. The following definition shall be added to Section 1: Brush shall mean shrub limbs, tree limbs, tree trimmings resulting from landscape maintenance and cleaning operations and untreated lumber (essentially free of hardware and nails), and not including Bulky Items. III.Section 2: Scope of Contractor's Services is hereby amended by adding the following sentences to the end of the first paragraph: "City agrees to deliver for disposal to the Contractor's Disposal Facility, all Bulky Items, C&D and Type IV Waste except for Brush, collected through the City's residential collection contract unless otherwise directed by City Council; and provided that the City's collections contractor has free and unfettered access to Contractor's Disposal Facility. The City and Contractor agree that the City may divert any material collected through the City's residential collection contract that the Director determines has value as a commodity for the purposes of recycling as allowed by state law." IV.Section 4: Term of the Contract shall be deleted in its entirety and replaced with the following: "The term of this Contract shall begin on April 1, 2013 and shall end on March 31, 2018, unless otherwise terminated as provided in the Contract. City shall have the right to extend the Contract for up to two (2) consecutive ten (10) year renewal terms, provided City and Contractor agree to extend this Contract in writing at least thirty (30) Days prior to the end of the initial term or the then current renewal term; such agreement shall be -2- made in a written amendment to the Contract. All terms and conditions shall remain the same unless otherwise stated in the amendment." V. Section 6.A.: Payment is hereby deleted in its entirety and replaced with the following: "A. For and in consideration of the above Processing and Disposal services performed in accordance with this Contract, City agrees to pay Contractor the agreed upon per- weighed-Ton price for Processing and/or Disposal of the material described herein as follows: 1. The agreed upon per weighed Ton price for Processing shall be fourteen dollars and fifty-nine cents ($14.59) per Ton in the first Contract Year and shall be adjusted by the Cost Adjustment Method for each Year thereafter as described in Attachment A; 2. The agreed upon per weighed Ton price for Disposal shall be fifteen dollars ($15.00) per Ton in the first Contract Year and shall be adjusted by the Cost Adjustment Method for each Year thereafter as described in Attachment A; 3. less any liquidated damages assessed by the City." VI. Other Terms and Conditions. All other terms and conditions of City Secretary Contract No. 28508 remain in full force and effect. Executed this,z?,_�day of , 2013. INTENTIONALLY BLANK Signature Page for IESI Amendment 2013 -3- CITY OF FORT WORTH IESI TX Landfill,LP By: IESI TX GP Corporation, its general partner BqGtafson, Jo Vice e 'dent 4sDaniels Assistant City Manager ATTEST: WITNESS: ��;,, YAD11A'0"" Z Notar P My Commission Expires ary Kays o� �Q�� aa•�`:�' March 06, 2017 °o� - „r City Secretary °off ' pRPORATE SEAL: � a 0 APPROVED AS TO FO AND LEGALITY: 41 ,� t 41s Lopez-Rey ids Senior Assistant City Attorney -4- OFFICIAL.RECORD CITY SECRETARY FT,WORTH,TX Attachment E GUARANTY AGREEMENT THIS GUARANTY AGREEMENT is made and dated as of 2013, between Progressive Waste Solutions of TX, Inc., a Texas corporation c0anized and existing under the laws of the State of Texas (together with any permitted successors and assigns hereunder, the "Guarantor"), and the City of Fort Worth, a municipal corporation organized and existing under the laws of the State of Texas ("City"). RECITALS The City and IESI TX Corporation ("IESI") organized and existing under the laws of the State of Texas and duly authorized to do business in the State of Texas entered into City Secretary Contract No. 28508 for Type IV Waste, C&D Waste, and Large Brush and Bulky Waste Disposal and C&D, White Goods, and Yard Waste Processing to the City, dated April 4, 2003, as renewed and amended from time to time (the "Contract") whereby the IESI, and subsequently IESI TX Landfill, LP has agreed to provide the above mentioned services, all as more particularly described therein. "Company" in this Agreement shall mean Contractor as defined in the Contract. IESI TX Corporation changed its name to Progressive Waste Solutions of TX, Inc. on June 20, 2012 and the Contract is between IESI TX Landfill, LP, as subsidiary of Progressive Waste Solutions of TX, Inc., formerly known as IESI TX Corporation. The Company is subsidiary of the Guarantor. The City will enter into the Contract only if the Guarantor guarantees the performance by the Company of all of the Company's responsibilities and obligations under the Contract as set forth in this Guaranty Agreement (the "Guaranty"). In order to induce the execution and delivery of the Contract by the City and in consideration thereof, the Guarantor agrees as follows: ARTICLE I DEFINITIONS AND INTERPRETATION SECTION 1.1. DEFINITIONS. For the purposes of this Guaranty, the term "Obligations" means the amounts payable by, and the covenants and agreements of, the Company pursuant to the terms of the Contract. Any other capitalized word or term used but not defined herein is used as defined in the Contract. SECTION 1.2. INTERPRETATION. In this Guaranty, unless the context otherwise requires: (A) References Hereto. The terms "hereby", "hereof', "herein", "hereunder" and any similar terms refer to this Guaranty, and the term "hereafter" means after, and the term "heretofore" means before, the date of execution and delivery of this Guaranty. (B) Gender and Plurality. Words of the masculine gender mean and include correlative words of the feminine and neuter genders and words importing the singular number mean and include the plural number and vice versa. (C) Persons. Words importing persons include firms, companies, associations, general partnerships, limited partnerships, trusts, business trusts, corporations and other legal entities, including public bodies, as well as individuals. (D) Headings. The table of contents and any headings preceding the text of the Articles, Sections and subsections of this Guaranty shall be solely for convenience of reference and shall not constitute a part of this Guaranty, nor shall they affect its meaning, construction or effect. (E) Entire Agreement: Authority. This Guaranty constitutes the entire agreement between the parties hereto with respect to the transactions contemplated by this Guaranty. Nothing in this Guaranty is intended to confer on any person other than the Guarantor, the City and their permitted successors and assigns hereunder any rights or remedies under or by reason of this Guaranty. (F) Counterparts. This Guaranty may be executed in any number of original counterparts. All such counterparts shall constitute but one and the same Guaranty. (G) Applicable Law. This Guaranty shall be governed by and construed in accordance with the applicable laws of the State of Texas. (H) Severability. If any clause, provision, subsection, Section or Article of this Guaranty shall be ruled invalid by any court of competent jurisdiction, the invalidity of any such clause, provision, subsection, Section or Article shall not affect any of the remaining provisions hereof, and this Guaranty shall be construed and enforced as if such invalid portion did not exist provided that such construction and enforcement shall not increase the Guarantor's liability beyond that expressly set forth herein. (1) Approvals. All approvals, consents and acceptances required to be given or made by any party hereto shall be at the sole discretion of the party whose approval, consent or acceptance is required. (J) Payments. All payments required to be made by the Guarantor hereunder shall be made in lawful money of the United States of America. ARTICLE II REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR SECTION 11.1. REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR. The Guarantor hereby represents and warrants that: (A) Existence and Powers. The Guarantor is a duly registered company organized and validly existing under the laws of Delaware, with full legal right, power and authority to enter into and perform its obligations under this Guaranty. 2 (B) Due Authorization and Binding Obligation. The Guarantor has duly authorized the execution and delivery of this Guaranty, and this Guaranty has been duly executed and delivered by the Guarantor and constitutes the legal, valid and binding obligation of the Guarantor, enforceable against the Guarantor in accordance with its terms except insofar as such enforcement may be affected by bankruptcy, insolvency, moratorium or by general equity principles of reorganization and other similar laws affecting creditors' rights generally and general principles of equity. (C) No Conflict. Neither the execution or delivery by the Guarantor of this Guaranty nor the performance by the Guarantor of its obligations hereunder (1) to the Guarantor's knowledge conflicts with, violates or results in a breach of any law or governmental regulation applicable to the Guarantor, (2) conflicts with, violates or results in a material breach of any term or condition of the Guarantor's corporate charter or by-laws or any judgment, decree, agreement or instrument to which the Guarantor is a party or by which the Guarantor or any of its properties or assets are bound, or constitutes a default under any such judgment, decree, agreement or instrument, or (3) to the Guarantor's knowledge will result in the creation or imposition of any material encumbrance of any nature whatsoever upon any of the properties or assets of the Guarantor except as permitted hereby. (D) No Governmental Approval Required. No approval, authorization, order or consent of, or declaration, registration or filing with, any Governmental Body is required of the Guarantor for the valid execution and delivery by the Guarantor of this Guaranty, except such as shall have been duly obtained or made. (E) No Litigation. Except as disclosed in the Guarantor's filings with the Securities and Exchange Commission pursuant to the requirements of the Securities Exchange Act of 1934, as amended, there is no action, suit or other proceeding, at law or in equity, before or by any court or Governmental Body, pending or, to the Guarantor's knowledge, threatened against the Guarantor which has a likelihood of an unfavorable decision, ruling or finding that would materially and adversely affect the validity or enforceability of this Guaranty. (F) No Legal Prohibition. The Guarantor has no knowledge of any Applicable Law in effect on the date as of which this representation is being made which would prohibit the performance by the Guarantor of this Guaranty and the transactions contemplated by this Guaranty. (G) Consent to Agreements. The Guarantor is fully aware of the terms and conditions of the Contract. (H) Consideration. This Guaranty is made in furtherance of the purposes for which the Guarantor has been organized, and the assumption by the Guarantor of its obligations hereunder will result in a material benefit to the Guarantor. ARTICLE III GUARANTY COVENANTS SECTION 111.1. GUARANTY TO CITY. The Guarantor hereby absolutely, presently, irrevocably and unconditionally guarantees to the City for the benefit of the City (1) the full and prompt payment when due of each and all of the payments required to be 3 credited or made by the Company under the Contract (including all amendments and supplements thereto) to, or for the account of, City, when the same shall become due and payable pursuant to this Guaranty, and (2) the full and prompt performance and observance of each and all of the Obligations. Notwithstanding the unconditional nature of the Guarantor's obligations as set forth herein, the Guarantor shall have the right to assert the defenses provided in Section 3.4 hereof against claims made under this Guaranty. SECTION 111.2. RIGHT OF CITY TO PROCEED AGAINST GUARANTOR. This Guaranty shall constitute a guaranty of payment and of performance and not of collection, and the Guarantor specifically agrees that in the event of a failure by the Company to pay or perform any Obligation guaranteed hereunder subject to the applicable notice and cure provisions as they apply to the Contractor, the City shall have the right to proceed first and directly against the Guarantor under this Guaranty and without proceeding against the Company or exhausting any other remedies against the Company which the City may have. Without limiting the foregoing, the Guarantor agrees that it shall not be necessary, and that the Guarantor shall not be entitled to require, as a condition of enforcing the liability of the Guarantor hereunder, that the City (1) file suit or proceed to obtain a personal judgment against the Company or any other person that may be liable for the Obligations or any part of the Obligations, (2) make any other effort to obtain payment or performance of the Obligations from the Company other than providing the Company with any notice of such payment or performance as may be required by the terms of the Contract or required to be given to the Company under Applicable Law, (3) foreclose against or seek to realize upon any security for the Obligations, or (4) exercise any other right or remedy to which the City is or may be entitled in connection with the Obligations or any security therefor or any other guarantee thereof, except to the extent that any such exercise of such other right or remedy may be a condition to the Obligations of the Company or to the enforcement of remedies under the Contract. Upon any unexcused failure by the Company in the payment or performance of any Obligation and the giving of such notice or demand, if any, to the Company and Guarantor as may be required in connection with such Obligation and this Guaranty, the liability of the Guarantor shall be effective and shall immediately be paid or performed. Notwithstanding the City's right to proceed directly against the Guarantor, the City (or any successor) shall not be entitled to more than a single full performance of the obligations in regard to any breach or non-performance thereof. SECTION 111.3. GUARANTY ABSOLUTE AND UNCONDITIONAL. The obligations of the Guarantor hereunder are absolute, present, irrevocable and unconditional and shall remain in full force and effect until the Company shall have fully discharged the Obligations in accordance with their respective terms, and except as provided in Section 3.4 hereof, shall not be subject to any counterclaim, set-off, deduction or defense (other than full and strict compliance with, or release, discharge or satisfaction of, such Obligations) based on any claim that the Guarantor may have against the Company, the City or any other person. Without limiting the foregoing, the obligations of the Guarantor hereunder shall not be released, discharged or in any way modified by reason of any of the following (whether with or without notice to, knowledge by or further consent of the Guarantor): (1) the extension or renewal of this Guaranty or the Contract up to the specified Terms of each agreement; 4 (2) any exercise or failure, omission or delay by the City in the exercise of any right, power or remedy conferred on the City with respect to this Guaranty or the Contract except to the extent such failure, omission or delay gives rise to an applicable statute of limitations defense with respect to a specific claim; (3) any permitted transfer or assignment of rights or obligations under the Contract by any party thereto (other than a permitted assignment to a replacement contractor in the event of a termination of the Company pursuant to Section 20 of the Contract), or any permitted assignment, conveyance or other transfer of any of their respective interests; (4) any permitted assignment for the purpose of creating a security interest or mortgage of all or any part of the respective interests of the City; (5) any renewal, amendment, change or modification in respect of any of the terms and conditions of the Contract; (6) any failure of title with respect to all or any part of the respective interests of any person in the Landfill, Disposal Site and/or Processing Facility (if applicable); (7) the voluntary or involuntary liquidation, dissolution, sale or other disposition of all or substantially all the assets, marshalling of assets and liabilities, receivership, insolvency, bankruptcy, assignment for the benefit of creditors, reorganization, moratorium, arrangement, composition with creditors or readjustment of, or other similar proceedings against the Company or the Guarantor, or any of the property of either of them, or any allegation or contest of the validity of this Guaranty in any such proceeding (it is specifically understood, consented and agreed to that, to the extent permitted by law, this Guaranty shall remain and continue in full force and effect and shall be enforceable against the Guarantor to the same extent and with the same force and effect as if any such proceeding had not been instituted and as if no rejection, stay, termination, assumption or modification has occurred as a result thereof, it being the intent and purpose of this Guaranty that the Guarantor shall and does hereby waive all rights and benefits which might accrue to it by reason of any such proceeding); (8) except as permitted by Sections 4.1 or 4.2 hereof, any sale or other transfer by the Guarantor or any Affiliate of any of the capital stock or other interest of the Guarantor or any Affiliate in the Company now or hereafter owned, directly or indirectly, by the Guarantor or any Affiliate, or any change in composition of the interests in the Company; (9) any failure on the part of the Company for any reason to perform or comply with any agreement with the Guarantor; (10) the failure on the part of the City to provide any notice to the Guarantor which is not required to be given to the Guarantor pursuant to this Guaranty and to the Company as a condition to the enforcement of obligations pursuant to the Contract; (11) any failure of any party to mitigate damages resulting from any default by the Company or the Guarantor; 5 (12) the merger or consolidation of any party into or with any other person, or any sale, lease, transfer, abandonment or other disposition of any or all of the property of any of the foregoing to any person; (13) any legal disability or incapacity of any party; or (14) the fact that entering into any transaction by the Company or the Guarantor was invalid or in excess of the powers of such party. Should any money due or owing under this Guaranty not be recoverable from the Guarantor due to any of the matters specified in subparagraphs (1) through (14) above, then, in any such case, such money, together with all additional sums due hereunder, shall nevertheless be recoverable from the Guarantor as though the Guarantor were principal obligor in place of the Company pursuant to the terms of the Contract and not merely a guarantor and shall be paid by the Guarantor forthwith subject to the terms of this Guaranty. Notwithstanding anything to the contrary expressed in this Guaranty, nothing in this Guaranty shall be deemed to amend, modify, clarify, expand or reduce the Company's rights, benefits, duties or obligations under the Contract. To the extent that any of the matters specified in subparagraphs (1) through (6) and (8) through (14) would provide a defense to, release, discharge or otherwise affect the Company's Obligations, the Guarantor's obligations under this Guaranty shall be treated the same. SECTION 111.4. DEFENSES, SET-OFFS AND COUNTERCLAIMS. Notwithstanding any provision contained herein to the contrary, the Guarantor shall be entitled to exercise or assert any and all legal or equitable rights or defenses which the Company may have under the Contract or under Applicable Law (other than bankruptcy or insolvency of the Company and other than any defense which the Company has expressly waived in the Contract or the Guarantor has expressly waived in Section 3.5 hereof or elsewhere hereunder), and the obligations of the Guarantor hereunder are subject to such counterclaims, set-offs or defenses which the Company is permitted to assert pursuant to the Contract, if any. SECTION 111.5. WAIVERS BY THE GUARANTOR. The Guarantor hereby unconditionally and irrevocably waives: (1) notice from the City of its acceptance of this Guaranty; (2) notice of any of the events referred to in Section 3.3 hereof, except to the extent that notice is required to be given as a condition to the enforcement of obligations under the terms and conditions of the Contract; (3) to the fullest extent lawfully possible, all notices which may be required by statute, rule of law or otherwise to preserve intact any rights against the Guarantor, except any notice to the Company required pursuant to the Contract or Applicable Law as a condition to the performance of any obligation under the terms and conditions of this Contract; (4) to the fullest extent lawfully possible, any statute of limitations defense based on a statute of limitations period which may be applicable to guarantors (or parties 6 in similar relationships) which would be shorter than the applicable statute of limitations period for the underlying claim; (5) any right to require a proceeding first against the Company; (6) any right to require a proceeding first against any person; (7) any requirement that the Company be joined as a party to any proceeding for the enforcement of any term or condition of the Contract; (8) the requirement of, or the notice of, the filing of claims by the City in the event of the receivership or bankruptcy of the Company; and (9) all demands upon the Company or any other person and all other formalities the omission of any of which, or delay in performance of which, might, but for the provisions of this Section 3.5, by rule of law or otherwise, constitute grounds for relieving or discharging the Guarantor in whole or in part from its absolute, present, irrevocable, unconditional and continuing obligations hereunder. SECTION 111.6. PAYMENT OF COSTS AND EXPENSES. The Guarantor agrees to pay the City on demand all reasonable costs and expenses, legal or otherwise (including counsel fees), incurred by or on behalf of the City in successfully enforcing by Legal Proceeding observance of the covenants, agreements and obligations contained in this Guaranty against the Guarantor, other than the costs and expenses that the City incurs in performing any of its obligations under the Contract. SECTION 111.7. SUBORDINATION OF RIGHTS. The Guarantor agrees that any right of subrogation or contribution which it may have against the Company as a result of any payment or performance hereunder is hereby fully subordinated to the rights of the City hereunder and that the Guarantor shall not recover or seek to recover any payment made by it hereunder from the Company until the Company and the Guarantor shall have fully and satisfactorily paid or performed and discharged the obligations giving rise to a claim under this Guaranty. SECTION 111.8. SEPARATE OBLIGATIONS; REINSTATEMENT. The obligations of the Guarantor to make any payment or to perform and discharge any other duties, agreements, covenants, undertakings or obligations hereunder shall (1) to the extent permitted by Applicable Law, constitute separate and independent obligations of the Guarantor from its other obligations under this Guaranty, (2) give rise to separate and independent causes of action against the Guarantor, and (3) apply irrespective of any indulgence granted from time to time by the City. The Guarantor agrees that this Guaranty shall be automatically reinstated if and to the extent that for any reason any payment or performance by or on behalf of the Company is rescinded or must be otherwise restored by the City, whether as a result of any proceedings in bankruptcy, reorganization or similar proceeding, unless such rescission or restoration is pursuant to the terms of the Contract or the Company's enforcement of such terms under Applicable Law. SECTION 111.9. TERM. This Guaranty shall remain in full force and effect from the date of execution and delivery hereof until all of the Obligations of the Company have 7 been fully paid and performed. This Guaranty shall be effective irrespective as to when the commencement date occurs. ARTICLE IV GENERAL COVENANTS SECTION IV.1. MAINTENANCE OF CORPORATE EXISTENCE. (A) Consolidation, Merger, Sale or Transfer. The Guarantor covenants that during the term of this Guaranty it will maintain its corporate existence, will not dissolve or otherwise dispose of all or substantially all of its assets and will not consolidate with or merge into another entity or permit one or more other entities to consolidate with or merge into it, unless the successor is the Guarantor and the conditions contained in clause (B) below are satisfied; provided, however, that the Guarantor may consolidate with or merge into another entity, or permit one or more other entities to consolidate with or merge into it, or sell or otherwise transfer to another entity all or substantially all of its assets as an entirety and thereafter dissolve if the successor entity (if other than the Guarantor) (a) assumes in writing all the obligations of the Guarantor hereunder and, if required by law, is duly qualified to do business in the State of Texas, and (b) delivers to the City an opinion of counsel to the effect that its obligations under this Guaranty are legal, valid, binding and enforceable subject to applicable bankruptcy and similar insolvency or moratorium laws. (B) Continuance of Obligations. If a consolidation, merger or sale or other transfer is made as permitted by this Section 4.1, the provisions of this Section 4.1 shall continue in full force and effect and no further consolidation, merger or sale or other transfer shall be made except in compliance with the provisions of this Section 4.1. No such consolidation, merger or sale or other transfer shall have the effect of releasing the initial Guarantor from its liability hereunder unless a successor entity has assumed responsibility for this Guaranty as provided in this Section 4.1. SECTION IV.2. ASSIGNMENT. Without the prior written consent of the City, this Guaranty may not be assigned by the Guarantor, except pursuant to Section 4.1 hereof. SECTION IV.3. QUALIFICATION IN TEXAS. The Guarantor agrees that, so long as this Guaranty is in effect, if required by law, the Guarantor will be duly qualified to do business in the State of Texas. SECTION IVA. CONSENT TO JURISDICTION. The Guarantor irrevocably: (1) agrees that any Legal Proceeding arising out of this Guaranty shall be brought in the State or federal courts in Fort Worth, Texas having appropriate jurisdiction; (2) consents to the jurisdiction of such court in any such Legal Proceeding; (3) waives any objection which it may have to the laying of the jurisdiction of any such Legal Proceeding in any of such courts; and (4) waives its right to a trial by jury in any Legal Proceeding in any of such courts. SECTION IV.5. BINDING EFFECT. This Guaranty shall inure to the benefit of the City and its permitted successors and assigns and shall be binding upon the Guarantor and its successors and assigns. SECTION IV.6. AMENDMENTS, CHANGES AND MODIFICATIONS. This Guaranty may not be amended, changed or modified or terminated and none of its provisions may be waived, except with the prior written consent of the City and of the Guarantor. 9 SECTION IV.7. LIABILITY. It is understood and agreed to by the City that nothing contained herein shall create any obligation of or right to look to any director, officer, employee or stockholder of the Guarantor (or any Affiliate thereof) for the satisfaction of any obligations hereunder, and no judgment, order or execution with respect to or in connection with this Guaranty shall be taken against any such director, officer, employee or stockholder. SECTION IV.8. NOTICES. All notices, demands, requests and other communications hereunder shall be deemed sufficient and properly given if in writing and delivered in person to the following addresses or sent by first class mail and facsimile, to such addresses: (a) If to the Guarantor: Progressive Waste Solutions of TX, Inc. 2301 Eagle Parkway, Ste. 200 Fort Worth, TX 76177 Attn: General Counsel (b) If to the City: Code Compliance Department Assistant Director of Code Compliance- Solid Waste Division 1000 Throckmorton Fort Worth, Texas 76102 Attn: Kim Mote With a copy to: City Attorney's Office Either party may, by like notice, designate further or different addresses to which subsequent notices shall be sent. Any notice hereunder signed on behalf of the notifying party by a duly authorized attorney at law shall be valid and effective to the same extent as if signed on behalf of such party by a duly authorized officer or employee. Notices and communications given by mail hereunder shall be deemed to have been given five (5) days after the date of dispatch; all other notices shall be deemed to have been given upon receipt. 10 4/22/134111112 IN WITNESS WHEREOF, the Guarantor has caused this Guaranty to be executed in its name and on its behalf by its duly authorized officer as of the date first above written. Progressive Waste Solutions of TX, Inc., as Guarantor ATTES By: ��' #J4� Printe ame: John stafson Title: Vice President did Accepted and Agreed to by: [City SeaI] o�" ©CITY OF FORT WORTH 0 AT o°�0000°°° *'a Charle iels ar Kayse City Secret Assistant City Manager APPROVED AS TO FORM AND LEGALITY lu& Christa Lopez-Rey s Senior Assistant City Attorney M AL RECORDECRETARYORTH,TX 11 4/22/134/11/13