HomeMy WebLinkAboutContract 29865 j; R
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CITE" OF FORT WORTH, TEXAS
to
WELLS FARGO BANK,, NATIONAL ASSOCIATION
as Trustee
`CRUST AGREEMENT
Date. October 30, 2003
Relating to Southeast Landfill
Closure and Post-Closure Care Reserve Costs
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TABLE OF CONTENTS
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ARTl[]LEl
DEFIN, ITIONS AND INTERPRETATION
Section l.l. Definitions----~----------.----.
Section 1.2. —___.._____,~____~~_ -----~---------'— �
4
ARTICLE 11
CUSTODY AND INVESTMENT OF FUNDS
Section 2.I. Creation ofFunds and Accouot�-----.--. .
Section 2.2. Closure and Post-Closure Fund ..—_~,—_~-- ----^~----------'' o
Section Closure Reserve A�zouotm--^~--~~~-------------------~' o
Section 2.4. -------' o
Section 2.5. of ---------~---~------~' /
. . u,,��uo�u� ��o�o�� uo��o�t��|oour� Fun�
' — —''—'--'' 7
Section 2.6. Overpayments of Additional Rent----,--~ —''~--^--^--^--
Section 2.7. and Default____~____~~_._—'---------^----^'' u
-----------^---~—. o
ARTICLE III
PARTICULAR COVENANTS
Section 3.l. No Pecuniary Liability on City oz Officers
ARTICLE TV
CONCERNING THE TRUSTEE
Section 4.1. Appointment and Acceptance of Duties ...........---. .
Section 4.2. ______,______~____ '.—^--------^--^—'
Section 4.3. Responsibilities of Trustee—.---~--.---~~~----~------~---'
Section 4.4. --~---'--------
Section 4.5, Compensation; ���---------^~--~^--------~—~----'---'
. . oo Y�b/ob '1rzstee ��av��t---~----. . .
Section 4.6. Resignation' or of - —.—~—.--~~-. —^-----^-----~'
Section 4.7. Successor Zroatee-- .......
--.,—._._~~___._.._---~-----'-----
ARTICLE V
------~--.--~—..
A�lEND,NMENr[S OF TRUST AGREEMENT
S ecii on 5.l. Amendments of Trust —.-------.
Section -5.2, Rights of Allied............. --.-----.-----------''---'---'—'--''
-----'—~~----~~—''
6l TABLE OF __ (continued)_-
Page
ARTICLE \71
GENERAL PROVISIONS
Section 6.l. Nodues .--.....--.-----~--..--...—.,..,~~_..,...—._.
Section 6.2. Effective Date; Counterparts.............
—___._,.._____.,,....—~^'---^—'''''
Section 6.3. Dote for Identification Purposes Only ~----~~----~. ' ----~---~
Section 6.4. Lom� _----^—^~--^'
----------'
APPENDICES
APPENDIX A Foroz of - ��ot�x�2 7(�)
_-~�.^~ ..^ _`_/ --.~.—..—.~.~~.---.~—~.A-}
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I
TRUST AGREEMENT, made and dated October 30, 2001, by and between the
City of Fort Worth Texas, a home rule citv in Tarrant, Denton and Wise."COuntic, "r
OV U'LIL-1 23, -Lexas (the
"City"), and Wells Fargo Bank, National A*ssociation a national bank in assoc*atiorb- organized,
existing and authorized to accept and execute trusts of the character herein set out under and bv
of
virtue of the laws of the United States with its principal office located at Fort Worth, Texas, as
trustee (the "Trustee'")-
WHEREAS, the City has entered into an Agreement to Lease and Operate
Southeast Landfill, dated as of January 28, 2003 (the "Southeast Landfill Lease"), between the
City, as lessor, and Allied Waste Systems, Inc. d/b/a Trinity Waste Senrices ("Allied"), as lessee,
relating to the City's Southeast Landfill more fully described therein the "'Southeast Landfill");
and
WHEREAS, pursuant to Section 9.1 of the Southeast Landfill Lease, Allied
undertakes to perform certain obligations relating to closure and post-closure of the Southeast
Landfill as more fully described in the Southeast Landfill Lease; and
WHEREAS, pursuant to Section 4.6(A) of the Southeast Landfill Lease, Allied
undertakes to make certain payments of Additional Rent to the City for the purpose of paying
closure and post-closure costs of the Southeast Landfill; and
WHEREAS, pursuant to Section 9.4 (B) of the Southeast Landfill Lease the City
agrees to establish a Closure Trust with a commercial bank or trust company to act as trustee,
into which the City will deposit the Additional Rent paid by Allied pursuant to Section 4.6(A) of
the Southeast Landfill Lease; and
WHEREAS, the trust created by this Trust Agreement constitutes the Closure
Trust referred to above, and this Trust Ajzreement has been approved by Allied-
NOW, THEREFORE,, KNOW ALL PERSONS BY THESE PRESENTS:
GRANTVNG CLAUSES
That the City in consideration of the premises and the acceptance by the Trustee
of the trusts hereby created, and of the sum of One Dollar, lawful money of the United States of
A-merica, to it duly paid by the Trustee at or before the execution and delivery of these presents,
and for other good and valuable consideration, the receipt of which is hereby acknowledged, and
in order to secure the payment of the Southeast Landfill Closure Costs, does hereby establish a
trust designated the "Southeast Landfill Closure Trust"' and does grant, bargain, sell, convey,
ledge and assign unto, and a
P rant a security interest in -and to the Trust ee. and unto its respective
successors in trust, and to their respective assigns forever, forte securing of the performance of
the obligations of the City hereinafter set forte the ollo wing-
All amounts paid to the City by Allied as Ad t to
ftp�P,4
d or
Se..ct'on 4.6"A) of the Southeast Landfill Ag-reement 'and as su,%,-.,h S ef A'Vi n
moved) with respect to closure costs of the Southeast Landfill, subject to the conditions herein
and therein set forth;
11.
All moneys and securities, including investment earnings thereon, from time to
time held by the Trustee under the terms of this Trust Agreement;
TO HAVE AND TO HOLD all and singular the trust estate, whether now owned
or hereafter acquired,, unto the Trustee and its respective successors and assigns in trust forever
to its and their own proper use but,*
IN TRUST NEVERTHELESS, upon the terms and trusts herein set forth for the
purpose of paying Southeast Landfill Closure Costs:
PROVIDED, HOWEVER, that if the City, its successors or assigns, shall pay, or
•cause to be paid, all Southeast Landfill Closure Costs, or shall provide, as permitted hereby, for
the payment thereof by depositing with the Trustee the entire amount due or to become due
thereon, and shall keep, perform and observe all the covenants and conditions pursuant to the
terms of this Indenture to be kept, performed and observed by it, and shall pay or cause to be
paid to the Trustee all sums of money ue or to become due to it in accordance with the terms
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and provisions of this Trust Agreement, then upon the final payment thereof this Trust
Agreement and the rights hereby granted shall cease, terminate and be void; otherwise this Trust
Agreement shall be and remain in full force and effect.
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section I-I Definitions. As used in this Indenture.-
w'Allied" means Allied Waste Systems, Inc. d/b/a Trinity Waste Services, and its
permitted successors and assigns.
Lease. "Applicable Laws"' shall have the meaning set forth in'the Southeast Landfill
I "Business Day" means any day on which banks located In each of the cities in
which the principal corporate trust office of the Trustee and the City are located are not required
or authorized to remain closed and on which the New York Stock Exchange is not closed.
"Commission" means the Texas Natural Resource Conservation Commission
�``rFNRCC") and/or its successor agency, the Texas Commission on Environmental Quality
("TCEQ" , as the context may require.
"Cost Substantiation" means, with respect to any cost, a certificate signed by an
authorized representative of Allied setting forth the amount of such cost, stating that such cost or
an obligation to pay such cost was incurred by Allied for Southeast Landfill Closure Costs, and
stating that such cost is a competitive price for the service or material supplied. The certificate
shall include invoices and other pertinent documentation.
"Permit" means Permit No. MSW 218-A issued by the Commission relating to
the operation and closure of the Southeast Landfill, as the same may be amended or
supplemented or substituted with other permits, from time to time.
"Pennitted Investments" shall have the meaning as set forth in Section 2.5 herein.
"Southeast Landfill" means the landfill owned by the City and known as the
Southeast Landfill that is the property described in the Southeast Landfill Lease.
"Southeast Landfill Closure Costs" means all costs reasonable or necessary of
performing the Southeast Landfill Closure Obligations. subject to Cost Substantiation.
"'Southeast Landfill Closure Obligations"' means the obligations of Allied under
Section 9,1 of the I Southeast Landfill Lease Agreement, Includiner all requirements under
Applicable Lmvs relating to closure of the Southeast Landfill or any portion thereof and post-
closure rnonitorina and maintenance serv�
C� ices relating thereto, whether during the to of the
Southeast Landfl1l Lease or thereafter.
"Southeast Landfill Lease" means that Agreement to Lease and Operate Southeast
Landfill, dated January 2003. between the City as lessor, and Milled,,
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'a t" me e ate 1,
ans th St of Texas.
"Trust Agreement" means this Trust Agreement, dated as of October 30,, 2003
between the City and the Trustee, -as the same may be amended frame t-ime to time.
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Section 1.2. Int retat* (A) In this "Trust Agreement".-
!PLe-ip ion
(1) The terms "herebv"', "hereof', "hereto". "herein", ""hereunder" and anv,
similar terms, as used in this Tryst Agreement. refer to this Trust Agreement, and the
term "'hereafter" means after, and the term "'heretofore' means before, the date of
execution of this Trust Agreement.
(2) 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.
(3) Words importing persons include firms associat*
ions, partnerships
(including limited partnerships), trusts, corporations and other legal entities, including
public bodies, as well as natural persons.
(4) Any headings preceding the texts of the several Articles and Sections of
this Trust Agreement, and any table of contents appended to capes hereof, shall be solely
for convenience of reference and shall not constitute a part of thl is Trust Agreement, nor
shall they affect its meaning, construction or effect.
(5) All approvals, consents and acceptances required to be given or made by
any person or party hereunder shall be at the sole discretion of the party whose approval,
consent or acceptance is required.
(6) All references to times not otherwise stating Fort Worth, Texas time, shall
be deemed to refer to Fort Worth. Texas time.
I
(7) This Trust Agreement shall be governed by and construed in accordance
with the applicable laws of the State.
(B) Whenever the Citv is named or referred to it shall be deemed to include
Its successors and assiorns whether so "
expressed or not. All of the covenants, stipulations,
obligations, and agreements by or on behalf of, and other provisions for the benefit of., the City
-1
contained in this Trust Agreement shall bind and inure to the benefit of such succes'sors and
assigns and shall bind and inure to the benefit of anv officer, board, commission, authority,
agency or instrumentality to who or to AN,-hich there 'shalj be transferred bv or L,.q a
ccordance
with law any right, power or duty of the Cltv, or kA-,
Of its s uc cc�,:ssors or
ss igns, the possession o-�"
i ch is necessarNr or appr E 1.
Bbl onriate in order to comply with any such covenants, stipulations,
,zations, agreements or other provisions hereof
(C) Nothing in this Trust Agreement expressed or implied 'i's intended or shall
be construed to confer upon, or to give to. anv person., other than the Citv, the Trustee, or Allied
anv riaht,,, remedv or cla' bv' re"7ason of this Trust Aareement or any covenant
W C�- I %, im under or
condition or s i
t pMotion thereof All the covenants, stipulations, promises and agreew
ments herein
4
containe by and on behalf of the C tv shall be for the sole and exclusive benefit of the Citv the
Trustee. and Allied.
(D) If any one or more of the covenants or agreements provided herein on the
part of the Citv or the Trustee to be performed should be contrary to law, then such covenant or
covenants,or agreement or agreements, shall be deemed separable from the remaining covenants
and agreements hereof, and shall in no way,affect the validity of the other provisions of this
Trust Agreement. If the invalidity of such covenant or agreement materially alters the terms of
this Trust Agreement, the parties agree to make any, amendments reasonable necessary to effect
the intended meaning of this Trust Agreement,
ARTICLE 11
CUSTODY AND PNTVESTMENT OF FUNDS
Section '2.1. Creation of Funds and Accounts. (A) The City hereby establishes
and creates the Closure and Post-Closure Fund.
(B) The Fund created hereunder shall be held by the Trustee., including one or
more depositories in trust for the Trustee. All moneys and investments deposited with the
Trustee shall be held in trust and applied only in accordance with this Trust Agreement and shall
be trust funds for the purposes of this Trust Agreement.
Section 21 .2. Closure and Post-Closure Fund. (A) Within seven Business has
following receipt thereof from Allied, the City shall deposit in the Closure and Post-Closure
Fund any and all amounts paid to the City as Additional Rent and Section 4.6(A) of the
Southeast Landfill Lease. The City hereby authorizes Allied to make such payments directly to
the Trustee, and receipt of such payments by the Trustee shall satisfy the obligation of Allie'd to
pay such amounts to the City.
(B) Amounts in the Closure and Post-Closure Fund shall be available to pay
Allied for Southeast Landfill Closure Costs or, if the Citv assumes Southeast Landfill Closure
Obligations, to pav the City for such costs. The Trustee*" shall, upon requisition submitted in
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accordance with subsection 2.2(C) hereof, apply amounts in the Closure and Post-Closure Fund
to pay Southeast Landfill Closure Costs.
(C) The Trustee is hereby authorized and directed to issue its checks promptly,
but in no event greater than three (3) business days, for each disbursement from the Closure and
Post-Closure Fund (excepting any fees payable to the Trustee) upon a requisition in the form
attached hereto as Appendix A submitted to the Trustee and signed by an Authorized
Representative of Allied and approved in writing by the City (such approval to be given
promptly). Such requisition shall state with res-pect to each pavment to be made- (I) the
requisition number, (2 the name and address of-the person, firm or corporation to 'vArhom
payment is due or to whom a reimbursable advance, if any, has been made, (3) the amount to be
paid, (4)that each obligation mentioned therein has been properly incurred within the provisions
of the Agreement I is a proper charge against the Closure and Post-Closure Fund, is unpaid or
unreimbursed, and has not been the basis of any previous withdrawral, and (�-) that the requisition
and the use of proceeds set forth therein are consistent in all material respects with the Landfill
Permit,
(D) In making anv such payment from the Closure and Post-Closure Fund the
Trustee may rely on such requisitions and proof delivered to it and the Trustee shall be reiieved
of all liability v0th respect to making such payments in accordance with the foregoing.
-111
Section 2,-S. Closure Reserve Amounts, Section 9.3 of the Southeast Landfill
Leas-C.,, requires Allied or an engineer'ng firm designated by Allied and approved
'r to
estimate in each year the Closure and post-Closure care costs a ,,4f
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M a;s t L,r Lf,
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calculatit,xl the per ton amount that must, set aside and reserved fort stttic`h"'
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Closure care (the "Closure Reserve Amount"). Such amount will be a per ton fee based on the
pro lected tons of solid waste to bck a%cce",ted at the Southeast Landfill during the applicable year.
%.r�%W %.1
The City will noti�- the Trustee of such Closure Reserve Amount within seven Business Days
following approval of such amount by the City or alternative resolution of such amount pursuan' t
to Section 9.3 of the Southeast Landfill Lease Agreement).
Section .2.4. Delivery of MMonthlv Statements. Section 9.4 of the Southeast
Landfill Lease requires Allied to deliver monthly reports and *n
voices to the City relating to
,waste that has been delivered to the Southeast Landfill. The City will deliver to the Trustee
within seven Business Days following receipt of such reports and invoices copies of such reports
and invoices to the Trustee.
Section 2.5. Investment of Closure and Post-Closure Fund. (A) Amounts in the
Closure and Post-Closure Fund held hereunder shall be invested in such investments as the It
is permitted to invest its funds under Applicable Law; provided, however, that amounts invested
shall mature at such times as are reasonably required to permit the City to have funds available in
the Closure and Post-Closure Fund to pay Southeast Landfill Closure Costs. Investments
authorized under this Section shall be made by the Trustee at the written request of an
Authorized Representative of the City. The income or it earned and gains realized in
excess of losses suffered by the Closure and Post-Closure Fund held hereunder shall be credited
to the Closure and Post-Closure Fund.
The Darties--recognize and agree that the Trustee will not nrovide_supervision
recommendations or advice relati o either the investment of moneys held in the
Closure and Post-Closure Fund or the purchase, sale, retention or other d*sposition
of any Permitted Investment. In the event the Trustee does not receive written
directions to invest funds held in the Closure and Post-Closure F u d. the Trustee
shall invest such funds in the Wells Fargo 100% Treasury MonevnMarket Fund
Service Class shares, or a similar or successor fund.
LC
The Trustee 'is hereby authorized to execute purchases and sales of Permitted
Investments through the facilities of its own trading or capital markets operations or
those of any affiliated entitv.
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The City and Allied acknowledge and agree that the delivery of property by the
trustee is subject to the sale and final settlement of Permitted Investments.
Proceeds of a sale of Permitted Investments will be delivered on the business dav
on which the appropriate instructions are delivered to the trustee if received prior to*'
the deadline for same day sale of the Permit-fted In-vestm-ents. If such instructions
are received after the applicable deadline, the proceeds of a sale shall be delivered
on the next succeeding business day.
Section 2.6. Ovier"Davinents of Additional Rent, If Closure Reserve Amounts
are revised in accordance with the Southeast Landfill Lease such that the Citv notifies the
Trustee that Allied has made an overpayment of Additional Rent to the City under Section
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4.6(A) o''the Southeast Landfill Lease, upon the direction o-l"the City, the Trustee shall promptly
nn.Jease such a-mount from the trusts erect d by this Trest Agrepern ate-
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Allied on behalf of the City, it being understood that such funds are owed by the City to Allied as
a refund of overDaid Additional Rent.
Section 2.7. Termination and Default. If the Citv has not'fied the Trustee that
Allied is in default of its obligations under Section 9.1 of the Southeast Landfill Lease or that the
Citv has exercised its right to assume all future Closure and Post-Closure obligations pursuant to
Section 9.1 of the Southeast Landfill Lease, the funds in the Closure and Post-Closure Fund may
be applied at the direction of the Citv to Southeast Landfill Closure Costs after resen,'es are set
aside,for Post-Closure costs and thereafter for a1
purpose. Additionally., if the City and Allied
Mutually certify to the Trustee that amounts in the Closure and Post-Closure Fund excee
amounts that will be required d for Southeast Landfill Closure Costs, the City and Allied m
jointly direct the Trustee as to the application of such excess. ay
8
ARTICLE III
PARTICULAR COVENANTS
Section 3.l. No Pecuniary Liabi or Officers. (A)No provision,
covenant or agreement contained in this Trust Agreement, or anv obligations herein d
I impose
upon the City, or the breach thereof, shall constitute or give rise to a charge upon its general
credit, or impose upon the City a pecuniary liability except as set forth herein. In making the
agreements, provisions and covenants set forth in this Trust Agreement, the City has not
obligated itself except with respect to the amounts deposited in the Closure and Post-Closure
Fund and all earnings thereon.
(B)' All covenants'. stipulations, promises, agreements and obligations of the
City contained herein shall be deemed to be covenants, stipulations, promises, agreements and
obligations of the City and not of any member, officer, agent or employee thereof 'n his
individual capacity. No recourse shall be had for the payment of the Southeast Landfill Closure
Costs, for the performance of any obligation hereunder, or for 'any claim based thereon or
hereunder against any such member, o ffi eer, agent or employee. No such member, officer, agent,
employee or natural person is or shall become personally liable for any such payment,
performance or other claim, and in no event shall any monetary or deficiency Judgment be
sought or secured against any such member, officer, agent, employee or other natural person.
9
ARTICLE TV
CONCERNING THE TRUSTEE
Section 4. .. Anvoifitment and Acceptance of Duties. Wells Fargo Bank,
National Association is hereby appointed as Trustee. The Trustee shall signifv its acceptance of
the duties and obligations of the Trustee by executing this Trust Agreement.
Section 4.2. Indemnity. The Trustee shall be under no obligation to institute
any suit, or to take anv remedial proceed under this Trust Agreement. or to enter any
appearance in or in any way defend any suit in which it ma.' be made defen&nt, or to take any
steps in the execution of the trusts hereby created or in the e n*'forcement of any rights and powers
hereunder, until it shall be indemnified as provided in Section 4.4 against any and all reasonable
costs and expenses, outlays, and counsel fees and other disbursements, and against all liability
not due to its willful misconduct, gross negligence or bad faith.
Section 4.3, Res Donsibilities of Trustee. (A) The Trustee shall have no
responsibility in respect of the validity or sufficiency of this Trust Agreement or the due
execution hereof by the City. The recitals, statements and representations contained herein shall
be taken and construed as made by and on the part of the City and not by the Trustee, and it does
not assume any responsibility for the correctness of the same w,
(B) The Trustee shall not be liable or responsible because of the failure of the
City or Allied to perform any act required of either of them under the Southeast Landfill Lease
Agreement or under this Trust Agreement or because of the loss of any moneys arising tb.rougb.
the insolvency or the act or defalult or omission of any depositary other than itself in which such
moneys shall have been deposited. The Trustee shall not be responsible for the application of any
of the proceeds in the Closure and Post-Closure Fund or for the adequacy of the amounts
deposited therein for the intended purposes or for any other moneys deposited with it and paid
out, invested,, withdrawn or transferred in accordance herewith or for are loss resulting from any
such investment. The Trustee shall not be liable in connection with the performance of its duties
hereunder except for its own willful misconduct-. gross negligence or bad faith. The immunities
and exemptions from liability of the Trustee shali extend to its directors, officers, employees and
agents.
(C) The Trustee undertakes to perform such duties and only such duties as are
spec ifi call v set forth in this Trust Agreement, No provision of this Trust Agreement shall be
construed to relieve thv--.--, Trustee from liability for its own negligent action, its own negligent
failure to act . L I
, 0r its 0-vv-n wifful misconduct, except that® (1' th'
4- ; is subsect-on shall not be construed
Lo limit the eiffect of the first sentenCle of this paragraph, and a®� the Tru' stee is not liable for any
error of'ud ament made ' I
j C-1 in good faith by a responsible officer. unless proven that the Trustee was
neorligent in ascertaining the pertinent facts, IN NO EVENT SHALL THE TRUSTEE BE
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LIABLE, DIRECTLY OR INDIRECTLY, FOR ANY (i) DAMAGES OR EXPENSES
ARISING OUT OF THE SERVICES PROVIDED HERE UNTI)ER, OTHER THAN DAMAGES
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WHICH RESULT FROM THE TRUSTEE�S FAILURF, TO
ITTH
20/k
THE STANDAR-DS SET FORTH i'N_ THIS TRUST AGREEMN "4
OR
10
CONSEQUENTIAL DAMAGES. EVEN IF THE TRUSTEE HAS BEEN ADVISED OF THE
POSSIBILITY OF ST CH nAM
A_11'4-1. Alc�'JEQO.
Section 4.4. Cori nensation; Indemnification. (A) The Trustee shall be entitled
to receive and collect from Allied, as provided in the Southeast Landfill Lease Agreement,
payment for reasonable, fees for services rendered hereunder and all advances, counsel fees and
other expenses reasonably and necessarily made or incurred by the Trustee in connection
there'vvith. Absent payment from Allied. the Trustee shall be entitled to receive and collect for
the foregoing from amounts in the Closu're and Post-Closure Fund, but such payment shall not
extinguish the liability of Allied to reimburse the City or the Trustee, as the case may be for
such amounts.
Section 4.5. Evidence on Which Trustee M Act. (A) In case at any time it
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shall be necessary or desirable for the Trustee to make any investigation concerning any fact
preparatory to taking or not taking any action, or doing or not doing anything, as such Trusto'ee, it
may rely upon any certificate required or permitted to be filed with it under the provisions
hereof, and any such certificate shall be evidence of such fact or protect it in any action that it
may or may not take, or in respect of anything it may or may not do, in good faith, by reason of
the supposed existence of such fact.
(B) The Trustee shall be protected and shall incur no liability in acting or
proceeding, or in not actimzy or not proceeding, in good faith, reasonably and in accordance with
'6�
the terms of this Trust Agreement, upon any resolution, order, notice, request,, consent, waiver,
certificate, statement
, affidavit� requisition, bond or other paper or document which it shall in
good faith reasonably believe to be genuine and to have been adopted or signed 1by the proper
board or person, or to have been prepared and fumished pursuant to any of the provisions of the
Southeast Landfill Lease Agreement or this Trust Agreement, or upon the written opinion of any
attorney (who may be an attorney for the City), engineer, appraiser., or accountant believed by
the Trustee to be qualified in relation to the subject matter. I
Section 4.6. Resianation or Removal of Trustee. (A) The Trustee may res
and thereby become discharge' d from the ign
created under this Trust Agreement by notice in
writing to be given to the City and Allied, postage prepaid, not less than thirty(30) dais before
such resignation is to take effect, but such resignation (i) shall not take effect until a successor
Trustee has been appointed and (ii) shall take effect immediately u on the appointment of a
successor Trustee, pursuant to Section 4.7 hereof, if such successor Trustee shall be appointed
before the time specified by such notice and shall accept such trust.
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(B) The Trustee mav be removed at any time by the C', , provided that no
i
such removal sha-11 take %-Affect prior to the arpo'
intment of a successor Trustee,"'
Section 4,7, 1
Successor Trustee, (A) If at an v time the Trustee shall resign,, or
shall be removed, be dissolved or other Wise become incapabfe of I
'g" hall be adjudged a
f i
bank--rupt or insolvent, or if a receiver, liquidator or conservator thr6:t�,
shall
Z9
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be appointed, or "f any public officer shall take char e or cot 9 1 offthe'P''�T
operty
"T V"
h e p o s't o n o f T ru S e e s h a I I t h e re u p o n b e c om e v a c an t it t'lie
or affairs,,
rast e shal
become vacant for any of the foregoing reasons or for anv other reason, the C*tv shall appoint a
successor Trustee to fill suck v*-A
-L,& ",%,*.a n%,,-%,y.
(B) Any Trustee appointed under this Section shall be a national banking
association or a bank or trust company duly organized under the laws of the State or under the
laws of any state of the United States authorized to exercise corporate trust powers. At the time
of its appointment, any successor Trustee shall have a capital stock and surplus aggregating not
less than $50,000,000.
(C) Every successor Trustee shall execute, acknowledge and deliver to its
predecessor, and also to the Citv, an instrument in writing accepting such appointment, and
thereupon such successor Trustee-, without any further act, deed, or conveyance, shall become
fully vested with all moneys, estates, properties, rights, immunities, powers and trusts and
subject to all the duties and obligations of its predecessor,, with like effect as if originally named
as such Trustee.; but such predecessor shall, nevertheless, ors 'written request of its successor
or of the City, and upon payment of the compensation, expenses, charges and other
disbursements of such predecessor which are due and payable pursuant to Section 4.4 hereof,
execute and deliver an instrument transferring to such successor Trustee all the estate, properties'
rights, immunities, powers and trusts of such predecessor. Every predecessor Trustee shall also
deliver all property and moneys held by it under-the Trust Agreement to its successor. Should
anv instrument in wrifing from the City be required by any successor Trustee for more fully and
certainly vesting in such Trustee, the estate, properties, rights, immunities, powers and trusts
vested or intended to be vested in the predecessor Trustee
ar�.� such m t n wriing shall,
on request, be executed, acknowledged and delivered by the City.
(D) Any company into which the Trustee may be merged or converted or with
which it may be consolidated or any company resulting from any merger, conversion or
consolidation to which it shall be a party or any company to which the Trustee may sell or
transfer all or substantially all of its corporate trust business, provided such company shall be a
national banking association or a bank or trust corn an dulv rizanized under the laws of any
state of the United States, and shall be authorized by law"' to pe*rfor`rn all the duties-imposed upon
it by the Indenture, shall be the successor to such Trustee without the execution or filimz of any
paper or the performance of any further act. lk�
(E) Any Trustee which becomes,, incapable of acting as Trustee shall pav over,
assign and deliver to its successor any moneys funds or investments held bv 't and shall render
an accounting to the City,
Section 4.8. Attachment of Fund; Compliance 'th Legal Orders. In the event
that anv trust property shall be attached. garnished or 'ev'ed upon bv anv court order, or the
delivery thereof shall be stayed or enoined by an order of a co
urt-
or any order, judgment or
decric'-�!e shall be made or entered by any court order affecting the propertv deposited under this
Trust Agreement, the Trustee is hereby expressly authorized, in its sole dscretion, to obey and
comply with all writs, orders or decrees so entered or issued, which it is advised by legal counsel
of its own choosing is bi,nding upon it, whether with or without i-arisdiction, and in the event that
the Trustee obeys or complies with anx such writ- rder or decree it shall not be liable to anw of
0
-e
thie parti`C�s hereto or to any other person, firm or -Corpo'l-ation-, bv reason of such compl-
� i an,
12
notwithstanding such writ, order or decree be subsequently reversed, modified, annulled, set
aside or vacated.
13
ARTICLE V
AMENDMENTS OF TRUST AGREEMENT
Section 5.1. Amendments of Trust Agreement. The Trust Agreement mav be
amended at any time by the City and Trustee by written amendment or supplement. subject to the
limitations set forth in the following section. x
Section 5.2. Ri2hts of Allied. Until such time as the City assumes
responsibility for and waives the Lessee's Southeast Landfill Closure Obligations pursuant to the
Southeast Landfill Lease, the City shall not amend this Trust Agreement without the prior
C
written consent of Allied, provided that Allied agrees that such consent shall not be unreasonably
withheld if the proposed amendment does not adversely affect any right, power or authority of
Allied.
-5 5,
14
ARTICLE VI
GENERAL PROVISIONS
Section 6.1. Notices. Any notice, request, demand, communication or other
paper shall be in writing and shall be sufficiently given and shall be deemed given when
delivered or mailed by registered or certified mail, return receipt requested, postage prepaid, or
sent by facsimile transmission with written confirmation of receipt (which written confirmation
may be a machine printed confirmation page confirming a completed facsimile transmission of
written notice), or sent by nationally recognized overnight courier, addressed as follows:
if to the City, at:
Office of the City Manager 6yi(I n fv n V 'Di vot G'fb r
City of Fort Worth j Kavw
1000 Throckmorton Street adjr6s
Fort Worth, Texas 76102
Fax: (817) 871-6 1')4
if to the Trustee, at:
Wells Far 9 o Bank, National Association
1
Corporate Trust Services
505 Main St., Suite 301
MAC T5415-030
Fort Worth, Texas 76102
(817) 334-7061
A copy of all notices hereunder shall be delivered to Allied at:
c/o District Manager
Trinity Waste Services
6200 Elliott Reeder Road
Fort Worth,, Texas 76117
Fax: (480) 627-2728
Any Notice Party may designate &ny further or different addresses to which
subsequent notices, certificates or other communications shall be sent.
Section 6.2. Effective Date- Counter arts. This Trust Agreement shall become
effective on delivery. It may be simultaneously executed in several counterparts, each of which
shall be an original and all of which shall constitute but one and the same instrument.
this Trust
T_ adw
Section 6.3, Date for IdentifiCation Purt oses ,L
Agreement shall be for 1dentification purpos-ebs or.'v and s
0
hall n n 'V 1v that this
P1
15
Trust Agreement was executed on any date other than the date appearing on the signature page
hereto.
Section 6.4. GoveD2jqg Law. The laws of the State of Texas shad
govern the
validity or enforceability and the interpretation or construction of all
provisions of this Trust
;agreement and all issues hereunder.
T NT ,
+M.,r«excwrn+asl .,d.+,'+•->..,...>w........rwi-✓Yd
IN WITNESS WHEREOF, the City of Fort Worth, has caused these presents to
be signed in its name and behalf by an AUthoWj1'z-,%n,,'%d RCT-JT sent ativue. and to evidence its acceptance
of the trusts hereby created Wells Fargo Bank,National Associatio'n, has caused these presents to
be signed by its duly authorized officer.
CITY OF FORT WORTH, TEXAS WELLS FANG O BANK� NATIONAL
Gary Jackson
w ASSOCIATION, as Trustee
City Manager
61P�P&I
By*- 14;�
. ........... 41 By:
City Manager Name- MARK DUAN
Title.- Vice President
APPROVED FOR FORM AND Approved by.-
LEGALITY:
David Yett ALLIED WASTE SYSTEMS, INC.,,
City Attorney d/b/a TRINITY WASTE SERVICES
Bv:
*1 By:
Vi
ATTEST:
o r act Authorization
n
City S6�'tary
f
By-
L�
D-a' e
f7z'rg'?
x,I!
5 IN
17
APPENDIX A
Form of Requisition - Section 2.2(C)
.............
Pursuant to Section 2.2(C) of the Trust Agreement, dated as of January —, 2003 e
"Trust Agreement"), between the Cite of Fort Worth, Texas (the "City") and
, National Association the "Trustee"), and a related Agreement
to Lease and Operate Southeast Landfill, dated as of January_, 2003 (the "Southeast Landfill
Lease"), between the City, as lessor, and Allied Waste Systems, Inc. d/b/a Trinity Waste
Services, as lessee the "Lessee"') the undersigned Lessee hereby requests an amount equal to the
amount stated in Paragraph 3 to be withdrawn from the Closure and Post-Closure Fund
established under the Trust Agreement for purposes permitted by Section — thereof The
undersigned hereby certifies that:
I. The number of this requisition is
2. All capitalized terms used herein without other definition shall have the meanings
specified in the Southeast Landfill Lease or the Trust Agreement, as applicable.
3. (A) The amount hereby requested is $ , which is due to the
following persons in the following amounts for expenditures incurred in connection with the
Prof ect:
...........
Person Amount Item
(A) Payment is due in the total amount of for amounts paid by the
Lessee in connection with the Project:
Amount Item
L_ 4i
The costs, set forth above have been approved by the City. A copy of such approval is
attached to this Requisition,
4 The amounts specifted in Paragraph 3 are based upon obligations properly
incurred pursuant to the provisions of Section 93 of the out Landfill Lease,, have not been
the basis of any previous Requisition, and do not exceed the actual amount of the costs or
expenses of Allied.
There is no material default by Allied within the meaning of Section 14,2(C) of
the Southeast Landfill Lease,
6. There has not been filed with nor ser�ed upon nor received by Allied any written
notice of any filen gbt to I* -
r 1 0*1
A 1 _L 4%1 1%WI L aLLMhr-afent upon, or claims affecting the right to receive
Z��
payment of, any of the amounts payable under this request to anv of the Persons named herein,
or if an notice of such lien, attachment or claim has been received. such lien attachment or
claim has been released or discharged or will be released or dischar'ged upon payment of the
amount requested in Paragraph 3.
7. There is not pending against Allied a petition in bankruptcy, whether or not
voluntary, an assignment for the benefit of creditors or similar event.
8. The Southeast Landfill Closure Obligations are being completed in accordance
with the Applicable Law.
9. The amounts requested hereunder are for charges which have been properly
incurred in accordance with the Southeast Landfill Lease Agreement, are proper charges against
the City payable from the Closure and Post-Closure Fund, are unpaid or unreimbursed and have
not been the basis for any previous withdrawal.
I 0. 1 am an Authorized Representative of Allied Waste Svstems, Inc., d/b/a/ Trinity
Waste Services, under the Southeast Lanil I T ease
ALLIED WASTE SYSTEMS, mc,
d/b/a TRINITY WASTE SERVICES
By:
Titl6f
Approved by the Citv of Fort Worth, Texas
CITY OF FORT WORTH, TEXAS
By:
Name:
Title:
§
A
Kf
R nd
city of Fort Worth, Texas
IvDa or and OU"C1*1 CIO u"11catio"
CW1 W
DATE REFERENCE NUMBER LOG NAME PAGE
11/19/02 C- 52CONTRACT 1 of 2
19358
SUBJECT APPROVAL OF CONTRACT WITH ALLIED WASTE SYSTEMS, INC. D/B/A TRINITY
WASTE SERVICES FOR THE LEASE AND OPERATION OF THE CITY'S SOUTHEAST
LANDFILL
RECOMMENDATIO N.
It is recommended that the City Council:
1. Authorize the City Manager to negotiate and execute an agreement with Allied Waste Systems, Inc.
d/b/a Trinity Waste Services for the lease and operation of the City's Southeast Landfill and to
provide disposal services for the City's municipal solid waste; and
2. Authorize the agreement to begin March 1, 2003, and expire February 28, 2023, or for the life of the
site if site-life is less than 20 years. An option has been included to extend the contract for up to ten
years if the life of the site allows for such an extension. The estimated cost for FY2002-2003 Is
$665,405. The estimated revenue for FY2002-2003 is $9,909,618, which includes a lump sum
payment of$9,61x`,951 on March 1, 2003, and $291,667 in landfill lease payments. The net present
value of this contract, when taking both revenues and expenditures into account, is estimated to be
$77,820,580 in net revenue over the 20-year term of the contract.
DISCUSSION:
On July 2, 2002, the City received responses to a Request for Proposal (RFP) for a variety of solid
waste services to include leasing and operating the City's Southeast Landfill and providing services for
the disposal of municipal solid waste. Following initial proposal evaluations, the evaluation committee
comprised of 14 representatives from the City Manager's Office, MBE Office, Internal Audit, Finance
and Law Departments with significant input from the consulting firm of Gershman, Brickner and Bratton,
solicited best and final offers from the RFP respondents. After evaluation of these best and final offers
(see Attachment A), firms were selected for interview, presentations and negotiations. Trinity Waste
Services is recommended as awardee for the lease and operating agreement based on evaluation
factors enumerated on the RFP proposal evaluation matrix (see Attachment B).
Public forums inviting citizen and provider comments were held on March 4 and 5, 2002. A draft RFP
was mailed to all known providers on April 2, 2002 to solicit comments from industry. This RFP was
advertised on June 19, 2002 and June 26, 2002. The Purchasing Division solicited proposals from all I
known solld waste service providers including those in the purchasing system database,. advertised on
DemandStar-corn and proposal notices were sent to other firms in related industries,
A pre-proposal conference was conducted on May 30,. 2002 with approximately 40 providers in
attendance. A total of nine responses were received for all solid waste services with four responses for
the lease and operation of the landfill.
PROPOSAL EVALUATION - See attached evaluation matrix.
City of Fort Worth, Texas
IyDaffor a"d ciou"Cl*l CIO U"i ti
I C11 10"
................................
DATE REFERENCE NUMBER LOG NAME PAGE
11/19/02 C-193 8 52CONTRACT 2 of 2
SUBJECT APPROVAL OF CONTRACT WITH ALLIED WASTE SYSTEMS, INC. D/B/A TRINITY
WASTE SERVICES FOR THE LEASE AND OPERATION OF THE CITY'S SOUTHEAST
LANDFILL
M/WBE - Allied Waste Systems, Inc. d/b/a Trinity Waste Services has committed to 20% MA/VBE
participation for this service, even though M/ BE participation was not required.
RENEWAL OPTION - This contract may be renewed for up to a ten-year term at the City's option to
allow the landfill to reach full capacity. This action does not require specific City Council approval
provided that the City Council has appropriated sufficient funds to satisfy the City's obligations during
the renewal term.
FISCAL INFORMATION/CERTIFICATION:
The Finance Director certifies that funds are available in the current operating budget, as appropriated,
of the Solid Waste Fund, and that subsequent year operating costs will be budgeted. The
Environmental Management Department will be responsible for the collection of revenues under this
agreement.
CB-*k
Submitted for City Manager's FUND I ACCOUNT CENTER AMOUNT CITY SECRETARY
1 0 ffl,C e b yo"
4)4022 052
P':: C
3 $9,617,951,00
PE-64 464022 0525001
05
P 291,66T00
Charles Bosvvell 85111- PE64 464022 0525001
Originating Department Head:
APPROVED I 1 1119/02
Jim saves 8517 1 (from) AS AMENDED
PE64 1 539120 1 0525004 1 $ 665A05,00
Additional Information Contact:
Brian Boenier 8079