HomeMy WebLinkAboutContract 28336-A528336-A5
City Secretary Contract No.
AMENDMENT NO.5 TO
CITY OF FORT WORTH CITY SECRETARY CONTRACT NO. 28336
BETWEEN THE CITY OF FORT WORTH AND
ALLIED WASTE SYSTEMS, INC. d/b/a FORT WORTH SOUTHEAST LANDFILL
TO LEASE AND OPERATE SOUTHEAST LANDFILL
This Fifth Amendment to the Agreement to Lease and Operate Southeast Landfill
by and between the City of Fort Worth, Texas, as Lessor and Allied Waste Systems, Inc.
d/b/a Trinity Waste Services, as Lessee (this "Amendment") is entered into by and between the
City of Fort Worth ("City" or "Lessor"), a home rule municipality, with its principal place of
business at 200 Texas Street, Fort Worth, Texas, 76102 and acting herein by and through its
Assistant City Manager, Valerie Washington and Allied Waste Systems, Inc., d/b/a Trinity
Waste Services duly authorized to do business in the State of Texas and acting by and through
its duly authorized representative ("Lessee"). City and Lessee shall be referred to individually as
a Party and collectively as the Parties.
WHEREAS, City and Lessee entered into a certain agreement to lease and operate the
Southeast Landfill, known as City Secretary Contract No. 28336 (the "Original Agreement"),
dated January 28, 2003, for the lease of the City's Southeast Landfill, pursuant to terms of that
certain RFP 02-0087 (the "RFP") issued by the City;
WHEREAS, the City and Lessee entered into a First Amendment to the Original
Agreement known as City Secretary Contract No. 32407, on or about September 25, 2006; and
WHEREAS, the City and Lessee entered into a Second Amendment to the Original
Agreement known as City Secretary Contract No. 28336-A2, on or about December 22, 2009; and
WHEREAS, the City and Lessee entered into a Third Amendment to the Original
Agreement known as City Secretary Contract No. 28336-A3, on or about September 26, 2013, to
add article VIII.2 to allow for the delivery, mulching and composting of Yard Waste at the
Southeast Landfill; and
WHEREAS, the City and Lessee entered into a Fourth Amendment to the Original
Agreement known as City Secretary Contract No. 28336-A4, on or about April 22, 2019, to extend
the Original Agreement and amend other terms and conditions of Article VIII.2; and
WHEREAS, City received a request from South -Point Constructors, a Texas Joint
Venture of Kiewit Infrastructure South Co. and Austin Bridge & Road, Limited Partners
("Sublessee") for permission to temporarily place a concrete recycling facility at the Southeast
Landfill to be used for the Texas Department of Transportation ("TxDOT") Southeast Connector
Project; and
WHEREAS, the Original Agreement grants Lessee the exclusive use to operate the
landfill and permits Lessee to operate the Southeast Landfill as a Type 1 Landfill and for no other
purpose; and
WHEREAS, to allow the concrete recycling facility to be placed on the Southeast
Landfill, the Original Agreement must be amended to allow for such use; and
Amendment No. 5 to CSC 28336 OFFICIAL RECORD Page 1 of 3
Southeast Landfill Lease CITY SECRETARY
FT. WORTH, TX
City Secretary Contract No.
WHEREAS, on February 28, 2023, the Fort Worth City Council (through Mayor and
Council Communication 23-0169) authorized an amendment to the Original Agreement to allow
for a sublease from Lessee to Sublessee for the use of a concrete recycling facility at the Southeast
Landfill; and
WHEREAS, the Parties agree to this Fifth Amendment to the Original Agreement to
allow for the concrete recycling facility to be placed on the Southeast Landfill for the duration of
the TxDOT Southeast Connector Project.
NOW, THEREFORE, the Parties, acting herein by the through their duly authorized
representatives, enter into the following agreement:
1.
AMENDMENTS
1. ARTICLE VII "Use and Operation of the Premises" Section 7.01 "Operation of Southeast
Landfill" shall be amended and restated as follows:
Section 7.01. Operation of Southeast Landfill. At all times after the Operation
Commencement Date the Lessee shall continuously operate the Southeast Landfill as a Type I
Landfill and for no other purpose, unless such purpose is agreed to in writing by the City. The
Lessee shall operate the Southeast Landfill in compliance with the Landfill Permits, and any future
modifications thereof, and all other Applicable Law. It is the intent of the parties that the Lessee
agree to operate, and the Lessee agrees to operate, the Southeast Landfill in a manner comparable
to other first class publicly -and privately -operated landfills in the State of Texas and the United
States.
2.
ALL OTHER TERMS SHALL REMAIN THE SAME
All other provisions of the Original Agreement which are not expressly amended herein
shall remain in full force and effect.
3.
ELECTRONIC SIGNATURE
This Amendment may be executed in multiple counterparts, each of which shall be
an original and all of which shall constitute one and the same instrument. A facsimile copy
or computer image, such as a PDF or tiff image, or a signature, shall be treated as and shall
have the same effect as anoriginal.
(si-nature Pa,-e_follows)
Amendment No. 5 to CSC 28336 Page 2 of 3
Southeast Landfill Lease
City Secretary Contract No.
ACCEPTED AND AGREED:
CITY OF FORT WORTH:
Z541w, 8"P',Adr3�
By:
Dana Burghdoff ( y 1, 20 9:33 CDT)
Name: Dana Burghdoff
Title: Assistant City Manager
Date: May 1, 2023
APPROVAL RECOMMENDED:
<5:� , "
By: Steve 7obke(Apr 28,202316:02 CDT)
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
responsible for the monitoring and administration
of this contract, including ensuring all
performance and reporting requirements.
LE
-/Z'� 4k�
Name: Ricky Salazar
Title: Asst. Director of Property Mgmt.
APPROVED AS TO FORM AND LEGALITY:
Name: Steve Cooke
Title: Director of Property Mgmt.
4 �oonn By:
4 pOR4
ATTEST: ,;oFe,o oo,.�yaa
Po o. O d
F
OV8 o
DPP*000 oo*d
daIl� QEJ( 654q�
By:
Name: Jannette Goodall
Title: City Secretary
Name: Christopher Austria
Title: Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: 23-0169
1295: N/A
Allied Waste Systems, Inc. d/b/a Trinity Waste Services
Date:
Name: Adrienne Wilhoit
Title: Vice President
04/27/2023
Amendment No. 5 to CSC 28336
Southeast Landfill Lease
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Page 3 of 3
DocuSlgn Envelope ID: B30FF4A1-FE57.4B27-BE6A-98F13DFFAOD4
AGREEMENT AND CONSENT TO SUBLEASE
This AGREEMENT AND CONSENT TO SUBLEASE ("Consent") is made and entered
into by and between the CITY OF FORT WORTH ("Lessor" or "City"), a Texas home rule
municipal corporation, acting by and through its duly authorized Assistant City Manager, and
ALLIED WASTE SYSTEMS, INC. d/b/a TRINITY WASTE SERVICES ("Lessee"), duly
authorized to do business in the State of Texas and acting by and through its duly authorized
representative; and SOUTH -POINT CONSTRUCTORS, a Joint Venture consisting solely of
KIEWIT INFRASTRUCTURE SOUTH CO., a Deleware corporation ("Kiewit") and AUSTIN
BRIDGE & ROAD, LP, a Delaware limited partnership ("AB&R") (South -Point Constructurs,
ICiewit and AB&R are collectively and jointly and severally referred to herein as "Sublessee",
acting by and through its duly authorized representative, each individually referred to as a "party"
and collectively referred to as the "parties,"
RECITALS
WHEREAS, on or about January 28, 2003, the City Council authorized City Secretary
Contract No. 28336 with Allied Waste Systems d/b/a Republic Services, to lease and operate the
City of Font Worth's Southeast Landfill ("Lease") as a Type 1 Landfill and for no other purpose.
The Lease and ensuing amendments allowed Republic exclusive use to operate the Southeast
Landfill ("SELF") for the life of the site and obligated Republic to accept for disposal solid waste
collected by the City's residential curbside collections contractor;
WHEREAS, Lessee and Sublessee have negotiated the terms of a Sublease and Soil
Agreement ("Sublease"), whereby Sublessee shall have the right to use approximately four (4)
acres located at the SELF ("Used Premises"), and now wish to enter into the Sublease and have
requested the City consent to the terms of the Sublease;
WHEREAS, the Sublease allows Sublessee to place a concrete recycling facility on the
Used Premises, which is to be used for the Texas Department of Transportation (TxDOT)
Southeast Connector Project; and
WHEREAS, the Lease does not permit the Lessee to sublet all or any portion of SELF
without the City's prior consent; and
WHEREAS, the City Council authorized a fifth (5''') amendment to the Lease to allow for
the use of a concrete recycling facility at the SELF and to consent to a sublease agreement between
Lessee and Sublessee for the operation of a concrete recycling facility at the SELF;
Consent to Sublease at SELF between CFW, Republic, and SoutliPoint Page I l
DocuSign Envelope ID: B30FF4A1-FE67.4B27-BE6A-98F13DFFAOD4
WHEREAS, City and Lessee have agreed to an amendment of the Lease to allow for the
use and operation of a concrete recycling facility at the Used Premises, and such other uses at the
SELF which are agreed to in writing by the City.
NOW, THEREFORE, City, Sublessor, and Sublessee hereby agree as follows:
1. City hereby agrees to the use of a concrete recycling facility at the SELF for the duration
of the term of the Sublease ("Permitted Use") and consents to the Sublease entered into by and
between Lessee and Sublessee attached hereto as Exhibit "A", effective as of the date of execution
of this Consent (the "Effective Date").
2. City consents to the Sublease upon the promise and covenant between the parties that
Sublessee agrees to pay directly to the City as consideration for use of the Used Premises and this
Consent, the applicable annual payments shown in Table 1 below
Table 1-- Annual Pa ments
Market Rent Conclusions
Year
Market Adjustment
Annual Rent
2023 L9 mos., Apr — Dec.
-
$12,863
2024
6%
$18179
2025
6%
$19,270
2026
6%
$20,426
2027 8 mos., Jan — Aug)6%
$14,434
3. Lessee and Sublessee agree that in the event that an annual payment is not made within 30
days after City provides written notice of late payment to both Lessee and Sublessee, the City may
revoke this Consent to Sublease. Notice shall be addressed to Lessee and Sublessee as follows:
Lessee: Allied Waste Systems, Inc.
c/o Republic Services, Inc.
18500 North Allied Way
Phoenix, Arizona 85054
Attention: Chief Legal Counsel
With a copy to: Spotts Fain PC
411 East Franklin Street, 6th Floor
Richmond, Virginia 23219
Attn: David A. Reed, Esq,
Sublessee: South -Point Constructors, a Joint Venture
c/o Kiewit Infrastructure South Co,
2050 Roanoke Road, Suite 100 Westlake, Texas 76262
Attn: Jay Knez.
4. City consents to the Sublease upon the promise and covenant by the Sublessee that
Sublessee procure and maintain throughout the term of the Sublease the insurance coverage in
Consent to Sublease at SELF between CFW, Republic, and SouthPoint Page 12
DocuSign Envelope ID; B30FF4A1-FE57-4827-BE6A-J8F13DFFA004
accordance with Exhibit "B" attached hereto and incorporated herein, as the same may be
modified by City from time to time.
5. City consents to the Sublease upon the understanding and agreement by the Sublessee that
the Sublessee agrees to the following provisions regarding liability and indemnification;
A. LIABILITY - SUBLESSEE SHALL BE LIABLE AND RESPONSIBLE FOR
ANY AND ALL PROPERTY LOSS, PROPERTY DAMAGE AND/OR PERSONAL
INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, OF ANY KIND OR
CHARACTER, WHETHER REAL OR ASSERTED, TO THE EXTENT CAUSED BY THE
NEGLIGENT ACT(S) OR OMISSION(S), MALFEASANCE OR INTENTIONAL
MISCONDUCT OF COMPANY, ITS OFFICERS, AGENTS, SERVANTS OR
EMPLOYEES.
B. GENERAL INDEMNIFICATION: SUBLESSEE AGREES TO INDEMNIFY
AND HOLD HARMLESS THE CITY OF FORT WORTH AND THEIR AGENTS,
SERVANTS, DIRECTORS, OFFICERS, AND EMPLOYEES FROM AND AGAINST ANY
AND ALL LIABILITIES, LOSSES, DAMAGES, LIENS, CLAIMS, SUITS, CAUSES OF
ACTION, COSTS (INCLUDING COURT COSTS, ATTORNEYS' FEES AND COSTS OF
INVESTIGATION), AND ACTIONS OF ANY KIND ARISING OUT OF, CAUSED BY,
RESULTING FROM OR ALLEGED TO ARISE BY REASON OF INJURY TO OR
DEATH OF ANY PERSON OR DAMAGE TO OR LOSS OF USED PREMISES
OCCURRING ON, IN, OR ABOUT THE USED PREMISES OR THE SOUTHEAST
LANDFILL OR BY REASON OF ANY OTHER CLAIM WHATSOEVER OF ANY
PERSON OR PARTY OCCASIONED OR ALLEGED TO BE OCCASIONED IN WHOLE
OR IN PART BY ANY NEGLIGENT ACT OR OMISSION ON THE PART OF
SUBLESSEE OR ANY INVITEE, LICENSEE, EMPLOYEE, DIRECTOR, OFFICER,
SERVANT, CONTRACTOR, SUBCONTRACTOR OR SUBLESSEE OF SUBLESSEE,
OR BY ANY BREACH, VIOLATION, OR NONPERFORMANCE OF ANY COVENANT
OF SUBLESSEE UNDER THE SUBLEASE. IF ANY ACTION OR PROCEEDING SHALL
BE BROUGHT BY OR AGAINST THE CITY IN CONNECTION WITH ANY SUCH
LIABILITY OR CLAIM, SUBLESSEE, ON NOTICE FROM LESSEE OR CITY, SHALL
DEFEND SUCH ACTION OR PROCEEDING, AT SUBLESSEE'S EXPENSE, BY OR
THROUGH ATTORNEYS REASONABLY SATISFACTORY TO THE CITY. THE
PROVISIONS OF THIS PARAGRAPH SHALL APPLY TO ALL ACTIVITIES OF
SUBLESSEE WITH RESPECT TO THE USED PREMISES, WHETHER OCCURRING
BEFORE OR AFTER THE EFFECTIVE DATE AND SUBLESSEE'S OBLIGATIONS
UNDER THIS PARAGRAPH SHALL NOT BE LIMITED TO THE LIMITS OR
COVERAGE OF INSURANCE, MAINTAINED OR REQUIRED TO BE MAINTAINED
BY SUBLESSEE UNDER THIS CONSENT OR SUBLEASE. THE PROVISIONS OF THIS
PARAGRAPH. SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS
CONSENT AND SUBLEASE.
C. ENVIRONMENTAL INDEMNIFICATION. SUBLESSEE AGREES TO
DEFEND, INDEMNIFY AND HOLD HARMLESS THE CITY OF FORT WORTH AND
THEIR AGENTS, SERVANTS, DIRECTORS, OFFICERS, AND EMPLOYEES FROM
Consent to Sublease at SELF between CFW, Republic, and SouthPoint Page 13
DocuSlgn Envelope ID: B30FF4A1-FE67-4B27-BEOA-98F13DFFAOD4
AND AGAINST ALL OBLIGATIONS (INCLUDING REMOVAL AND REMEDIAL
ACTIONS), LOSSES, CLAIMS, SUITS, JUDGMENTS, LIABILITIES, PENALTIES,
DAMAGES, COSTS AND EXPENSES (INCLUDING ATTORNEYS' AND
CONSULTANTS' FEES AND EXPENSES) OF ANY KIND OR. NATURE WHATSOEVER
THAT MAY AT ANY TIME BE INCURRED BY, IMPOSED ON OR ASSERTED
AGAINST SUCH THE CITY OF FORT WORTH DIRECTLY OR INDIRECTLY BASED
ON, OR ARISING OR RESULTING FROM (1) THE ACTUAL OR ALLEGED
PRESENCE OF HAZARDOUS MATERIALS IN, ON OR UNDER THE USED PREMISES
WHICH IS CAUSED OR PERMITTED BY SUBLESSEE OR SUBLESSEE'S
EMPLOYEES, AGENTS, CONTRACTORS, INVITEES AND (II) ANY
ENVIRONMENTAL CLAIM RELATING IN ANY WAY TO SUBLESSEE'S
OPERATION OR USE OF THE USED PREMISES. THE PROVISIONS OF THIS
PARAGRAPH. SHALL SURVIVE THE EXPIRATION OR TERMINATION OF THIS
CONSENT AND SUBLEASE.
Hazardous materials means (i) petroleum or petroleum products, natural or synthetic gas,
asbestos in any form that is or could become friable, urea formaldehyde, foam insulation,
and radon gas; (ii) any substances defined as or included in the definition of "hazardous
substances," "hazardous wastes," "hazardous materials," "extremely hazardous wastes,"
"restricted hazardous wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar import, under any applicable environmental law; and (iii)
any other substance exposure which is regulated by any governmental authority.
Environmental claims means any and all administrative, regulatory or judicial actions, suits,
demands, demand letters, claims, liens, notices of non-compliance or violation,
investigations, proceedings, consent orders or consent agreements relating in any way to any
environmental law or any environmental permit, including without limitation (i) any and all
environmental claims by governmental or regulatory authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any applicable
environmental law and (ii) any and all environmental claims by any third party seeping
damages, contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from hazardous materials or arising from alleged injury or threat of injury to
health, safety or the environment.
No party to this Consent shall be liable to the other for any consequential, indirect or special
damages they incur resulting from the performance and/or non-performance of this
Consent.
6. City consents to the Sublease expressly upon the Lessee and Sublessee's agreement and
understanding that in the event the Sublease is materially changed, amended, or terminated then
Lessee and Sublessee agrees to provide written notice to the City of the material change,
amendment, or termination. If the City determines that such change or amendment is not
consistent with this Consent or the Permitted Use is not allowed, then the City may revolve its
Consent. Notice to the City shall be addressed as follows:
Consent to Sublease at SELF between CFW, Republic, and SouthPoint Page 14
DoeuSign Envelope ID: 83OFMA1-FE57-4827-BEM-98H3DFFAOD4
To CITY:
City of Fort Worth
Dana Burghdoff
200 Texas Street
Fort Worth, TX 76102-6314
Facsimile: (817) 392-8654
With copy to Fort Worth City Attorney's Office at same address
7. City consents to the Sublease expressly upon the Lessee and Sublessee's agreement and
understanding that the Sublessee's use of the Used Premises is not a material impairment of the
Lessee's ability to operate the SELF.
& City consents to the Sublease expressly upon the promise and covenant by Sublessee that
Sublessee will faithfully perform, as to the Used Premises, all of its duties and obligations required
by the Sublease. Lessee understands and agrees that it will remain liable to City for performance
of all duties and obligations of under the Lease.
9. City does not adopt, ratify, or approve any of the particular provisions of the Sublease and
does not grant any right, privilege or use to the Sublessee which is different from or more extensive
than any right, privilege or use granted to Lessee or Sublessor, In the event of any conflict between
the Lease and this Agreement, the Lease shall control.
10. The person signing this Consent hereby warrants that he/she has the legal authority to
execute this Consent on behalf of the respective party, and that such binding authority has been
granted by proper order, resolution, ordinance or other authorization of the entity. The other parties
are fully entitled to rely on this warranty and representation in entering into this Consent.
11. This Consent may be executed in any number of counterparts, all of which shall constitute
the same instrument.
12. it is understood and agreed that by execution of this Consent, City does not waive or
surrender any of its governmental powers or immunities.
13, All terms in this Consent that are capitalized but not defined shall have the meanings
assigned to them in the Lease.
14. This Consent may be executed in multiple counterparts, each of which shall be an
original and all of which shall constitute one and the same instrument, A facsimile copy
or computer image, such as a PDF or tiff image, or a signature, shall be treated as and shall
have the same effect as anoriginal
[SIGNATURES APPEAR. ON THE FOLLOWING PAGES]
Consent to Sublease at SELF between CFW, Republic, and SouthPoint Page 15
DocuSign Envelope ID: B30FF4A1-FE57�4B27-BEC)A-98F13DFFAOD4
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in multiples.
LESSOR/CITY: CITY OF FORT WORTH:
By: Dana Burghdoff (Ntay 1, 202` t9:33 CDT)
Name: Dana Burghdoff
Title: Assistant City Manager
APPROVAL RECOMMENDED:
By, Stev�(Apr 28, 2023 16:02 CDT)28, 2023 16:02 CDT)
Name: Steve Cooke 4 oon
Title: Director of Property Mgtnt. pF fORro4;
4-1
0
ATTEST- per= ox
By: °°au �Ezpga4
bnnuao
.Name: Jannette Goodall
.Title: City Secretary
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the person
responsible for the monitoring and administration of
this contract, including ensuring all performance and
reporting ireynellts.�
By:
Name: �Ii�wSalazaCi YySalazar
Title: Asst. Director of Property Mgmt.
APPRO ED AS O FORM AND LEGALITY:
By:
Name: Christopher Austria
Title: Assistant City Attorney
CONTRACT AUTHORIZATION:
M&C: 23-0169 Form 1295:N/A
LESSEE: ALLIED WASTE SYSTEMS, INC. d/b/a TRINITY WASTE SERVICES:
By:
Name: Adrienne Wilhoit
Title: Vice President
SUBLESSEE:
SOUTH -POINT CONSTRUCTORS, a Joint Venture consisting solely of KIEWIT INFRASTRUCTURE
SOUTH CO., and AUSTIN BRIDGE & ROAD, LP
Doouglaned by:
By: �; ;Wag;
Name: Jay Knez
Title: Project Director
KIEWIT INFRASTRUCTURE SOUTH CO., a Delaware Corporation
DocuSignod by:
By: fi pt {t�V St ln.
Name: Shane T. Petersen
Title: Senior Vice President
AUSTIN B OAD LP
Name: Brian Salerno OFFICIAL RECORD
Title: Senior Vice President CITY SECRETARY
FT. WORTH, TX
Consent to Sublease at SELF between CFW, Republic, and Southpoint Page 16
DocuSign Envelope ID: B3OFF4A1-FE67-4B27-BE6A-98F13DFFAOD4
EXHIBIT A
SUBLEASE
[See attached:i
Consent to Sublease at SETT' between CFW, Republic, and SouthPoint Page 17
DocuSign Envelope ID; B30FF4A1-FE57-4B27-BE6A-98F13DFFAOD4
SUBLEASE AND SOIL AGREEMENT
THIS SUBLEASE AND SOIL AGREEMENT ("Agreement") is dated as of
April 27 , 2023 ("Effective Date") by and between ALLIED WASTE SYSTEMS, INC., a
Delaware corporation ("Sublessor"), and SOUTH -POINT CONSTRUCTORS, a Joint Venture
consisting solely of HIEWIT INFRASTRUCTURE SOUTH CO,, a Delaware corporation
("Kiewit") and AUSTIN BRIDGE & ROAD, LP, a Delaware limited partnership ("AB&R")
(South -Point Constructors, Kiewit and AB&R are collectively and jointly and severally referred
to herein as "Sublessee").
RECITALS:
WHEREAS, Sublessor, as Lessee and the City of Fort Worth, Texas, as Lessor (the
"City") are parties to that certain Agreement to Lease and Operate Southeast Landfill dated as of
January 28, 2003, as amended by that certain First Amendment dated on or about September 25,
2005, that certain Second Amendment dated on or about December 28, 2009, that certain Third
Amendment dated on or about September 26, 2013, that certain Fourth Amendment dated on or
about April 22, 2019, and that certain Fifth Amendment dated April _, 2023 (collectively, the
"Lease"), pursuant to which Sublessor leases certain real property owned by the City known as
the Southeast Landfill (the "Landfill") located at 6288 Salt Road, Fort Worth, Texas 76140.
WHEREAS, Sublessee and the Texas Department of Transportation, a public agency of
the State of Texas, are parties to that certain Design -Build Agreement dated February 24, 2022
(the "Contract") for the Southeast Connector project (the "Project"); and
WHEREAS, Sublessee desires to sublease a portion of the Landfill from Sublessor
consisting of approximately 4 acres in the area shown on Exhibit "A" attached hereto and
incorporated herein (the "Sublease Premises"), for the location and operation of a concrete
recycler in connection with the Project; and
WHEREAS, in connection with the Project, Sublessee will have the obligation to
excavate and remove soil from the Project (the "Soil"), and pursuant to the Contract upon such
removal will have all right, title and interest in and to the Soil; and
WHEREAS, in connection with the operation of the Landfill, Sublessor has a need for
soil; and
WHEREAS, as consideration for the sublease of the Sublease Premises to Sublessee,
Sublessee has agreed to deliver and convey the Soil to Sublessor at the Landfill.
NOW, THEREFORE, in consideration of the premises and mutual agreements herein
contained, the parties hereto hereby act and agree as follows:
Docusign Envelope ID; B30FF4A1-FE57-4B27-BE6A-OBF13DFFAOD4
ARTICLE I
LEASE OF SUBLEASE PREMISES; CONSIDERATION; `PERM AND SOIL
1.1. Lease of Sublease Premises. Subject to the satisfaction of the Conditions (as
defined in Section 7.14 of this Agreement), Sublessor hereby subleases to Sublessee the Sublease
Premises and Sublessee hereby subleases from Sublessor the Sublease Premises upon the terms
and conditions set forth herein. Sublessee acknowledges and agrees that this Agreement and
Sublessee's rights pursuant to this Agreement are subject and subordinate at all times to the
Lease and to all of the covenants and agreements of the Lease, the terms of which are
specifically incorporated herein by reference. Sublessee further agrees not to do, permit or
tolerate anything to be done in the Sublease Premises or in connection with Sublessee's use or
occupancy of the Sublease Premises which would violate any covenant or agreement set forth in
the Lease or would cause Sublessor to be in default under the Lease. Sublessee expressly agrees
that, if Sublessor's tenancy, control, or right to possession shall terminate by expiration,
forfeiture, cancellation, surrender, foreclosure, or by virtue of any other agreement in any other
manner, then this Agreement shall thereupon terminate and Sublessee shall surrender immediate
possession of the Sublease Premises. Nothwithstanding anything to the contrary set forth herein,
in no event shall Sublessee have any rights of Sublessor under the Lease, it being expressly
agreed to by the parties hereto that this Agreement shall be separate, distinct and independent of
any rights of Sublessor under the Lease,
1.2. Consideration. Sublessor hereby acknowledges receipt from Sublessee of the
total sum of $1,000.00, as separate consideration for the execution of this Agreement.
1.3. Term. The "Term" (herein so called) of this Agreement shall begin on the later
to occur of (a) the Effective Date, or (b) the date the Conditions are satisfied and shall end on the
date which is coincident with the Project Substantial Completion, August 31, 2027. In the event
Sublessee completes the removal of all Soil from the Project and the delivery of such Soil to
Sublessor prior to the expiration of the Term, Sublessee shall provide written notice to Sublessor,
and provided that the amount of Soil delivered by Sublessee to Sublessor is at least the Minimum
Soil Quantity (defined below), Sublessee shall have the right to continue the sublease of the
Sublease Premises until the expiration of the Term. Notwithstanding anything to the contrary set
forth in this Agreement, in the event Sublessee has not completed the removal of all Soil from
the Project and the delivery of at least the Minimum Soil Quantity of such Soil to Sublessor prior
to the expiration of the Term or the earlier termination thereof, the sublease of the Sublease
Premises shall terminate as of the expiration of the Term or the earlier termination thereof, but
the Term of this Agreement with respect only to Sublessee's obligation to deliver the Minimum
Soil Quantity shall continue until such Minimum Soil Quantity has been delivered to Sublessor,
1.4. Soil.
(a) As additional consideration for the sublease of the Sublease Premises to
Sublessee, Sublessee covenants and agrees to deliver and convey to Sublessor all of the Soil.
Sublessee represents and warrants to Sublessor that it has, or will have prior to delivery to
Sublessor, all right, title and interest in and to the Soil. Upon delivery of the Soil to Sublessor
2
DoCUSIgn Envelope ID; B30FF4A1-FG57-4527-BE6A.98F13DFFA0D4
and Sublessor's acceptance thereof, Sublessor shall have all right, title and interest in and to the
Soil. Sublessee covenants to deliver to Sublessor at least 300,000 cubic yards of Soil during the
Term of this Agreement (the "Minimum Soil Quantity"). In the event Sublessee fails for any
reason to deliver at least 60,000 cubic yards of Soil to Sublessor in any 12-month period after the
Effective Date of this Agreement, Sublessor shall have the right in its sole discretion to either (i)
provide additional time to Sublessee to deliver the Soil in quantities and at times acceptable to
Sublessor and agreed to in writing by the parties (ii) terminate this Agreement in whole upon
written notice to Sublessee, or (iii) terminate the sublease of the Sublease Premises to Sublessee
upon written notice to Sublessee. In the event Sublessor terminates the sublease of the Sublease
Premises to Sublessee, Sublessee's obligation to deliver the Minimum Soil Quantity shall remain
in full force and effect.
(b) Sublessee shall provide reasonable advance notice to Sublessor of the dates and
anticipated quantities of Soil to be delivered to the Landfill. Sublessee shall deliver the Soil to
the area shown on Exhibit "B" attached hereto and incorporated herein (the "Stockpile Area").
Sublessor shall have the right to direct Sublessee to deliver the Soil to an area other than the
Stockpile Area at its sole discretion, or to change the Stockpile Area with reasonable advance
notice to Sublessee.
(c) Sublessee acknowledges and agrees that Sublessor shall have the right to inspect
the Soil and reject any loads that do not conform to the specifications set forth on Exhibit "C"
attached hereto and incorporated herein,
ARTICLE 2
TAXES, UTILITIES, INSURANCE AND MAINTENANCE
2.1. Taxes and Assessments. Sublessee shall pay directly to the taxing authority, as
the same shall become due and payable, all taxes, assessments and charges of any kind
whatsoever accruing upon the Effective Date and during the Term thereafter that may at any time
be lawfully assessed or levied against or with respect to the Rent, the delivery and conveyance of
the Soil, Sublessee's machinery, equipment, inventory or other improvements constructed,
installed or brought in or on the Sublease Premises,
2.2. Utilities. Sublessee shall obtain all water, electricity, sewerage, gas, telephone
and other utilities directly from the public utility company furnishing same. Any meters required
in connection therewith shall be installed at Sublessee's sole cost. Sublessee shall pay all utility
deposits and fees, and all monthly service charges for water, electricity, sewage, gas, telephone
and any other utility services furnished to the Sublease Premises during the Term. Sublessor
shall not be liable for any interruption whatsoever in utility services nor shall Sublessee be
entitled to an abatement or reduction of Rent on account of any interruptions.
2.3. Insurance.
(a) Sublessee shall procure and maintain throughout the Term of this Agreement the
insurance coverage in accordance with Exhibit "D" attached hereto and incorporated herein, as
the same may be modified by Sublessor from time to time.
3
DocuSign Envelope ID: B30FF4A1-FG67-4B27-BE6A-98F13DFFAOD4
(b) It is expressly understood and agreed that the foregoing minimum limits of
insurance coverage shall not limit the liability of Sublessee for its acts or omissions as provided
in this Agreement. All of the foregoing insurance policies (with the exception of Workers
Compensation Insurance to the extent not available under statutory law) shall name Lessor,
Sublessor, and such other parties as Sublessor shall from time to time designate as an additional
insured as their respective interests may appear and shall provide that any loss shall be payable to
Sublessee, Sublessor and any other additional insured parties as their respective interests may
appear, except that the Sublease Premises Insurance policy(ies) shall provide that any loss shall
be payable to Sublessor and any other additional insured parties as their respective interests may
appear. All such policies shall be written as primary policies, Any other policies, including
Sublessor's policy, will serve as excess coverage. Sublessee shall deliver to Sublessor
certificates of coverages in form and content reasonably satisfactory to Sublessor as to all such
policies, prior to the Effective Date, or, in the case of renewals thereto, 15 days prior to the
expiration of the prior insurance policy, together with evidence that such policies are fully paid
for, and that no cancellation, material change or non -renewal thereof shall be effective except
upon 30 days' prior written notice from the insurer to Sublessor.
(c) Sublessor and Sublessee each hereby release the other from any and all liability or
responsibility to the other, or to any other party claiming through or under them by way of
subrogation or otherwise, for any loss or damage to Sublease Premises caused by a casualty
which is insurable under the standard fire and extended coverage insurance. Sublessor and
Sublessee agree that all policies of insurance obtained by them pursuant to the terms of this
Agreement shall contain provisions or endorsements thereto waiving the insurer's rights of
subrogation with respect to claims against the other, and, unless the policies permit waiver of
subrogation without notice to the insurer, each shall notify its insurance companies of the
existence of the waiver and indemnity provisions set forth in this Agreement.
2.4. Maintenance. Sublessee agrees that, at its sole cost and expense, it will keep and
maintain the Sublease Premises in good repair and appearance during the continuance of this
Agreement, except for ordinary wear and tear, and will with reasonable promptness make all
structural and non-structural, foreseen and unforeseen, and ordinary and extraordinary changes
and repairs of every kind and nature which may be required to be made upon or in connection
with the Sublease Premises or any part thereof in order to keep and maintain the Sublease
Premises in such good repair and appearance. Sublessor shall not be required to maintain, repair
or rebuild, or to make any alterations, replacements or renewals of any nature or description to,
the Sublease Premises or any part thereof, whether ordinary or extraordinary, structural or non-
structural, foreseen or unforeseen, or to maintain the Sublease Premises or any part thereof in
any way, and Sublessee hereby expressly waives any right to make repairs at the expense of
Sublessor which may be provided for in any statute or law in effect at the time of the execution
of this Agreement or any statute of law which may thereafter be enacted.
ARTICLE 3
PERMITTED USE; COMPLIANCE WITH LAWS AND ASSIGNMENT
3.1. Use; Access to Sublease Premises.
M
DocuSign Envelope ID; B30FF4A1-FE57-4B27-BEOA.98F13DFFAOD4
(a) Sublessee shall use the Sublease Premises solely for the purpose of the location
and operation of a concrete recycler to recycle concrete by Sublessee for the Project, the
stockpiling of rock and gravel material as a byproduct thereof, and the transportation of such
material from the Landfill (the "Permitted Use"), and for no other use without the prior written
consent of Sublessor, which may be withheld in Sublessor's sole discretion. Sublessee shall not
store on the Sublease Premises any concrete, rock, gravel in excess of what is permitted in the
site plan approved by the City or any limitations imposed by the City.
(b) In connection with the Permitted Use, Sublessee shall have the non-exclusive
right, during the normal operating hours of the Landfill, to use the existing roads located on the
Landfill to provide access to and from the Sublease Premises and for the delivery of Soil, subject
to the following:
(i) All vehicles entering the Landfill for the delivery of Soil shall enter and
exit only via Salt Road entrancebetween the hours of 6 p.m, and 4 a.m. Monday through Friday.
In the event Sublessee requires access for the delivery of soil at any other time such shall be
coordinated in advance with Sublessor.
(ii) All vehicles entering the Landfill in order to access the Sublease Premises
for the concrete recycler shall enter and exit only via Salt Road entrance between the hours of 6
p.m. and 4 a.m. Monday through Friday. In the event Sublessee desires to use the Dick Price
Road entrance to the Landfill to deliver waste concrete during normal business hours, Sublessee
shall be responsible for obtaining Sublessor's prior written consent and truck permits from the
City of Kennendale.
Sublessee shall ensure that all vehicles of Sublessee or its agents, contractors,
consultants, employees or representatives adhere to the foregoing requirement, and that such
vehicles shall only enter and exit as set forth herein. Sublessee shall comply with Sublessor's
reasonable rules and requirements applicable to all persons that enter the Landfill as may be
noticed to Sublessee from time to time, and shall cause its officers, directors, employees,
agents, contractors, and invitees to comply with such rules and requirements when crossing the
Landfill for ingress to or egress to and from the Sublease Premises.
(c) Sublessor and Sublessee agree that based on the hours for delivery of the Soil and
access to the Sublease Premises as set forth in Section 3.1(b) above, .Sublessee shall be
responsible for payment of the cost of such employees, agents or contractors engaged by
Sublessor to admit such vehicles to the Landfill and maintain security at the Landfill during such
times. Sublessor shall invoice Sublessee monthly in writing if such services have been utilized
by Sublessor, and Sublessee shall remit payment to Sublessor within 15 days of receipt of such
invoice.
3.2. Compliance with Law.
(a) Sublessee agrees, at its own expense, to comply with all laws, statutes, ordinances,
orders, regulations, permits and approvals of federal, state and municipal authorities and with
any lawful direction of any public officer which shall impose any duty upon Sublessee with
respect to any work to be performed by Sublessee on the Sublease Premises or the use of the
DocuSlgn Envelope ID: B30FF4A1-FE67-4B27-BE6A-98F13DFFAOD4
Sublease Premises. Sublessee shall, at its own expense, obtain all required licenses or permits
necessary for any work to be performed by Sublessee on the Sublease Premises, or the use of the
Sublease Premises.
(b) Sublessor agrees, if through no fault of Sublessee, Sublessee is unable to obtain all
required licenses or permits necessary for the Permitted Use of the Sublease Premises, and
Sublessee is unable to use the Sublease Premises, Sublessee shall have the right to terminate the
sublease of the Sublease Premises upon written notice to Sublessor. In the event Sublessee
terminates the sublease of the Sublease Premises to Sublessee under this section 3.2(b),
Sublessee's obligation to deliver the Soil shall be waived by Sublessor and this Agreement shall
be deemed terminated an of no further force or effect,
3.3. Transfer of Sublessor's Interest. Sublessor shall have the right to assign its
interest in this Agreement to any party in Sublessor's sole discretion.
3.4. Assignment and Subletting. Sublessee shall not transfer this Agreement or any
interest therein (any sale, assignment, mortgage, pledge, hypothecation or encumbrance of this
Agreement shall be deemed a "transfer"), and shall not sublet the Sublease Premises or any part
thereof, without the prior written consent of Sublessor (such consent to be in the sole discretion
of Sublessor) in each instance, and any attempt to do so without such consent shall be voidable
by Sublessor and, at Sublessor's election, shall constitute a material default under this
Agreement.
3.5 Adjacent Operations. Sublessee acknowledges that the Sublease Premises is
near other property owned or leased by Sublessor, which adjacent property is being used by
Sublessor for operations associated with its waste disposal business ("Adjacent
Operations"). Sublessee agrees that: (a) neither it nor its subtenants, occupants, successors or
assigns shall object to the presence of the Adjacent Operations; (b) Sublessee and its subtenants,
occupants, successors and assigns shall not object to any expansion of the Adjacent
Operations; (c) upon request of Sublessor (or its successor or assigns), Sublessee and its
subtenants, occupants, successors and assigns shall state in writing that it has no objection to the
expansion of the Adjacent Operations; (d) no demands, suits or other claims whatsoever of any
type shall be made by Sub lessee or its subtenants, occupants, successors or assigns against
Sublessor or any of its predecessors in interest with respect to or arising from the
Adjacent Operations; and (e) neither it nor its subtenants, occupants, successors or assigns
shall use the Sublease Premises for any purpose related to the disposal, hauling, storage or
transfer of solid waste or recyclables or the operation of a business related to solid wastes or
recyclables. In addition, in the event Sublessor requires the use of any portion of the Sublease
Premises in connection with the Adjacent Operations, Sublessor shall provide advance written
notice to Sublessee and work with Sublessee in good faith to utilize only so much of the
Sublease Premises as is necessary for such Adjacent Operations, and in the event
Sublessor's use of the Sublease Premises materially and adversely affects Sublessee's use and
operation of the Sublease Premises, Sublessor shall provide such additional area if reasonably
available to Sublessor for Sublessee's use during the period of such interference.
n
DocuSign Envelope ID, B30FF4A1-FE57-4B27-BE6A.98F13DFFAOD4
ARTICLE 4
CONDITION OF SUBLEASE PREMISES
4.1. Condition of Sublease Premises. AS A MATERIAL PART OF THE
CONSIDERATION FOR THIS AGREEMENT, SUBLESSOR AND SUBLESSEE AGREE
THAT SUBLESSEE IS LEASING THE SUBLEASE PREMISES "AS IS" WITH ALL
FAULTS AND DEFECTS, LATENT AND PATENT, AND SUBLESSEE ACKNOWLEDGES
AND AGREES THAT SUBLESSOR HAS NOT MADE, DOES NOT MAKE AND
SPECIFICALLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, PROMISES,
COVENANTS, AGREEMENTS, OR GUARANTIES OF ANY KIND OR CHARACTER
WHATSOEVER, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, PAST,
PRESENT OR FUTURE, OF, AS TO, CONCERNING OR WITH RESPECT TO (A) THE
NATURE, QUALITY OR CONDITION OF THE SUBLEASE PREMISES, INCLUDING,
WITHOUT LIMITATION, THE WATER, SOIL, AND GEOLOGY, OR THE PRESENCE OR
ABSENCE OF ANY POLLUTANT, HAZARDOUS WASTE, GAS OR SUBSTANCE OR
SOLID WASTE ON OR ABOUT THE SUBLEASE PREMISES, (B) THE INCOME TO BE
DERIVED FROM THE SUBLEASE PREMISES, (C) THE SUITABILITY OF THE
SUBLEASE PREMISES FOR ANY AND ALL ACTIVITIES AND USES WHICH
SUBLESSEE MAY INTEND TO CONDUCT TIIEREON, (D) THE COMPLIANCE OF OR
BY THE SUBLEASE PREMISES OR ITS OPERATION WITH ANY LAWS, RULES,
ORDINANCES OR REGULATIONS OF ANY GOVERNMENTAL AUTHORITY OR BODY
HAVING JURISDICTION INCLUDING WITHOUT LIMITATION, ALL APPLICABLE
ZONING LAWS, (E) THE HABITABILITY, MERCHANTABILITY OR FITNESS FOR A
PARTICULAR PURPOSE OF THE SUBLEASE PREMISES, OR (F) ANY OTHER MATTER
RELATED TO OR CONCERNING THE SUBLEASE PREMISES. SUBLESSEE SHALL
NOT SEEK RECOURSE AGAINST SUBLESSOR ON ACCOUNT OF ANY LOSS, COST OR
EXPENSE SUFFERED OR INCURRED BY SUBLESSEE WITH REGARD TO ANY OF THE
MATTERS DESCRIBED IN CLAUSES (A) THROUGH (F) ABOVE AND HEREBY
ASSUMES THE RISK OF ANY ADVERSE MATTERS RELATED TO THE MATTERS
DESCRIBED IN CLAUSES (A) THROUGH (F) ABOVE FROM AND AFTER THE
EFFECTIVE DATE OF THIS AGREEMENT,
4.2. Improvements. Sublessee shall not make any alterations, additions or
improvements to the Sublease Premises without Sublessor's prior written consent, which may be
withheld in Sublessor's sole discretion, Sublessee shall not have the authority to, and shall not,
permit any lien, charge or encumbrance of any kind whatsoever to be placed upon the Sublease
Premises, and Sublessee shall bond or discharge any such lien, charge or encumbrance within 10
days' written notice from Sublessor.
ARTICLE 5
DEFAULT AND REMEDIES
5.1. Default. The following events shall be deemed to be events of default by
Sublessee under this Agreement:
7
DocuSign Envelope ID: B30FF4A1-FE57.4627-BE6A-g8F13DFFAOD4
(a) Sublessee shall fail to comply with any provision of this Agreement and shall not
cure such failure within 30 days after written notice thereof to Sublessee.
(b) Sublessee shall become insolvent, or shall make a transfer in fraud of creditors, or
shall make an assignment for the benefit of creditors,
(c) Sublessee shall file a petition under any section or chapter of the federal
Bankruptcy Code, as amended, or under any similar law or statute of the United States or any
state thereof; or Sublessee shall be adjudged banlaupt or insolvent in proceedings filed against
Sublessee.
(d) A receiver or trustee shall be appointed for the Sublease Premises or for all or
substantially all of the assets of Sublessee,
(e) Sublessee shall, as a result of any acts or omissions of Sublessee, cause Sublessor
to be in breach or default of the Lease.
5.2, Remedies. Upon the occurrence of any such event of default, Sublessor shall
have the option to pursue any one or more of the following remedies to the extent permitted by
law:
(a) terminate this Agreement by giving written notice of termination to Sublessee, in
which event Sublessee shall immediately surrender the Sublease Premises to Sublessor. If
Sublessee fails to so surrender the Sublease Premises, then Sublessor may, without prejudice to
any other remedy it has for possession of the Sublease Premises or other damages, reenter and
take possession of the Sublease Premises and expel or remove Sublessee and any other person
occupying the Sublease Premises or any part thereof.
(b) Re-enter and take possession of the Sublease Premises without terminating the
Agreement.
(c) Sublessee shall compensate Sublessor for all expenses incurred by Sublessor in
repossession, all losses incurred by Sublessor as a direct result of Sublessee's default and a
reasonable allowance for Sublessor's other direct costs attributable directly or indirectly to
Sublessee's default and Sublessor's pursuing the rights and remedies provided herein and under
applicable law.
(d) Sublessor may restrain or enjoin any breach or threatened breach of any covenant,
duty or obligation of Sublessee herein contained without the necessity of proving the inadequacy
of any legal remedy or irreparable harm. The remedies of Sublessor hereunder shall be deemed
cumulative and not exclusive of each other.
(e) If on account of any breach or default by Sublessee in its obligations hereunder,
Sublessor shall employ an attorney to present, enforce or defend any of Sublessor's rights or
remedies hereunder, Sublessee agrees to pay any reasonable attorneys' fees incurred by Sublessor
in such connection.
DocuSign Envelope ID; B30FF4A1-FE67-4B27-BE6A-98F13DFFAOD4
(f) Sublessee hereby waives any and all rights to receive a notice to quit and rights of
redemption or restoration of the operation of this Agreement conferred by any present or future
law, statute or otherwise upon the expiration or sooner termination of the Term of this
Agreement, the entry of final unappealable judgment for recovery of possession through any
action or proceeding, or Sublessor's obtaining possession of the Sublease Premises under the
terms of this Agreement. If an event of default occurs, Sublessee hereby waives its rights to
receive any notice of default, as well as any period of and right to cure said default, as may be
required by state or local law, and Sublessee's rights in that regard shall be solely as provided in
this Agreement.
ARTICLE 6
ENVIRONMENTAL
6.1. Compliance by Sublessee. During the Term of this Agreement, Sublessee shall
comply with all Environmental Laws and Environmental Permits (each as defined in Section 6.5
hereof) applicable to the operation or use of the Sublease Premises, will cause all other persons
occupying or using the Sublease Premises to comply with all such Environmental Laws and
Environmental Permits, will immediately pay or cause to be paid all costs and expenses incurred
by reason of such compliance, and will obtain and renew all Environmental Permits required for
operation or use of the Sublease Premises.
6.2. Prohibition. Sublessee shall not generate, use, treat, store, handle, release or
dispose of, or permit the generation, use treatment, storage, handling, release or disposal of
Hazardous Materials (as defined in Section 6.5 hereof) on the Sublease Premises, or transport or
permit the transportation of Hazardous Materials to or from the Sublease Premises except for
limited quantities used or stored at the Sublease Premises and required in connection with the
routine operation and maintenance of the Sublease Premises for the Permitted Use, and then only
in compliance with all applicable Environmental Laws and Environmental Permits.
6.3. Notice to Sublessor. Sublessee will immediately advise Sublessor in writing of
any of the following; (a) any pending or threatened Environmental Claim (as defined in Section
6.5 hereof) against Sublessee relating to the Sublease Premises; (b) any condition or occurrence
on the Sublease Premises or any Sublease Premises adjoining the Sublease Premises that could
reasonably be anticipated to cause the Sublease Premises to be subject to any restrictions on the
ownership, occupancy, use or transferability of the Sublease Premises under any Environmental
Law; and (c) the actual or anticipated taping of any removal or remedial action by Sublessee in
response to the actual or alleged presence of any Iazardous Material on the Sublease Premises.
All such notices shall describe in reasonable detail the nature of the claim, investigation,
condition, occurrence or removal or remedial action and Sublessee's response thereto. In
addition, Sublessee will provide Sublessor with copies of all communications regarding the
Sublease Premises with any government or governmental agency relating to Environmental
Laws, all such communications with any person relating to Environmental Claims, and such
detailed reports of any such Environmental Claim as may reasonably be requested by Sublessor.
9
DocuSlgn Envelope ID: B30FF4A1-FE57-4F27-BE6A-98F'13DFFAOD4
6.4. Indemnification.
(a) Sublessee agrees to defend, indemnify and hold harmless the Indemnitees (as
defined in Section 7.1. below) from and against all obligations (including removal and remedial
actions), losses, claims, suits, judgments, liabilities, penalties, damages (including consequential
and punitive damages), costs and expenses (including attorneys' and consultants' fees and
expenses) of any hind or nature whatsoever that may at any time be incurred by, imposed on or
asserted against such Indemnitees directly or indirectly based on, or arising or resulting from
(i) the actual or alleged presence of Hazardous Materials in, on or under the Sublease Premises
which is caused or permitted by Sublessee or Sublessee's employees, agents, contractors, invitees
and (ii) any Environmental Claim relating in any way to Sublessee's operation or use of the
Sublease Premises (the "Hazardous Materials Indemnified Matters"). The provisions of this
Section 6.4. shall survive the expiration or sooner termination of this Agreement.
(b) All sums paid and costs incurred by Sublessor with respect to any Hazardous
Materials Indemnified Matter shall bear interest at the Default Rate of interest from the date so
paid or incurred until reimbursed by Sublessee, and all such sums and costs shall be immediately
due and payable on demand.
6.5. Definitions.
(a) "Hazardous Materials" means (i) petroleum or petroleum products, natural or
synthetic gas, asbestos in any form that is or could become friable, urea formaldehyde, foam
insulation, and radon gas; (ii) any substances defined as or included in the definition of
"hazardous substances," "hazardous wastes," "hazardous materials," "extremely hazardous
wastes," "restricted hazardous wastes," "toxic substances," "toxic pollutants," "contaminants" or
"pollutants," or words of similar import, under any applicable Environmental Law; and (iii) any
other substance exposure which is regulated by any governmental authority.
(b) "Environmental Law" means any federal, state or local statute, law, rule,
regulation, ordinance, code, policy or rule of common law now or hereafter in effect and in each
case as amended, and any judicial or administrative interpretation thereof, including any judicial
or administrative order, consent decree or judgment, relating to the environment, health, safety or
Hazardous Materials, including without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, 42 U.S.C. §§ 9601 et seq.; the Resource Conservation
and Recovery Act, 42 U.S.C. §§ 6901 et seq.; the Hazardous Materials Transportation Act,
49 U.S.C. §§ 1801 et seq.; the Clean Water Act, 33 U.S.C. § 1251 et seq,; the Toxic Substances
Control Act, 15 U.S.C. § 2601 et seq.; the Clean Air Act, 42 U.S.C. §§ 7401 et seq,; the Safe
Drinking Water Act, 42 U.S.C. § 300f et seq.; the Atomic Energy Act, 42 U.S.C. § 2011 et seq.;
the Federal Insecticide, Fungicide and Rodenticide Act, 7 U.S.C. §§ 136 et seq.; and the
Occupational Safety and Health Act, 29 U.S.C. §§ 651 et seq.
(c) "Environmental Claims" means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, notices of non-compliance or violation,
investigations, proceedings, consent orders or consent agreements relating in any way to any
Environmental Law or any Environmental Permit, including without limitation (i) any and all
10
Doouftn Envelope ID: B30FF4A1-FE87-4B27-BE8A-98F13DFFAQD4
Environmental Claims by governmental or regulatory authorities for enforcement, cleanup,
removal, response, remedial or other actions or damages pursuant to any applicable
Environmental Law and (ii) any and all Environmental Claims by any third party seeking
damages, contribution, indemnification, cost recovery, compensation or injunctive relief
resulting from Hazardous Materials or arising from alleged injury or threat of injury to health,
safety or the environment.
(d) "Environmental Permits" means all permits, approvals, identification numbers,
licenses and other authorizations required under any applicable Environmental Law.
6.6. Survival. The provisions of this Section shall survive the expiration or sooner
termination of this Agreement.
ARTICLE 7
MISCELLANEOUS
7.1. Indemnification by Sublessee. Sublessee agrees to indemnify and hold harmless
Sublessor and its affiliated companies and their agents, servants, directors, officers, shareholders,
and employees (as used in this Agreement, Lessor, Sublessor and its affiliated companies and
their agents, servants, directors officers, shareholders, and employees are collectively called
"Indemnitees") from and against any and all liabilities, losses, damages, liens, claims, suits,
causes of action, costs (including court costs, attorneys' fees and costs of investigation), and
actions of any kind arising out of, caused by, resulting from or alleged to arise by reason of
injury to or death of any person or damage to or loss of Sublease Premises occurring on, in, or
about the Sublease Premises or the Landfill or by reason of any other claim whatsoever of any
person or party occasioned or alleged to be occasioned in whole or in part by any negligent act or
omission on the part of Sublessee or any invitee, licensee, employee, director, officer, servant,
contractor, subcontractor or Sublessee of Sublessee, or by any breach, violation, or
nonperformance of any covenant of Sublessee under this Agreement, even if such liability,
losses, damages, liens, claims, suits, causes of action, costs, injuries, deaths or damages arise
from or are attributed to the sole negligence of any Indemnitee. If any action or proceeding shall
be brought by or against any Indemnitee in connection with any such liability or claim,
Sublessee, on notice from Sublessor, shall defend such action or proceeding, at Sublessee's
expense, by or through attorneys reasonably satisfactory to Sublessor. The provisions of this
Section shall apply to all activities of Sublessee with respect to the Sublease Premises, whether
occurring before or after the Effective Date and Sublessee's obligations under this Section shall
not be limited to the limits or coverage of insurance maintained or required to be maintained by
Sublessee under this Agreement.
7.2. Exemption of Sublessor from Liability. If the Sublease Premises, or any part
thereof, is damaged by fire or other cause, Sublessor shall not be liable to Sublessee for any loss,
cost or expense arising out of or in connection with such damage. Sublessee hereby releases
Sublessor, its directors, officers, shareholders, partners, employees, agents and representatives,
from any liability, claim or action arising out of or in connection with such damage.
11
DocuSlgn Envelope ID: B30FF4A1-FE57.4827-13E6A-98F13DFFAOD4
7.3. Access to Sublease Premises. Sublessor and Sublessor's agents and
representatives shall have the right to enter the Sublease Premises at any time in case of an
emergency, and at all reasonable times for any lawful purpose including, but not limited to,
examining the Sublease Premises; malting such repairs or alterations therein as may be. necessary
or appropriate in Sublessor's sole judgment for the safety and preservation thereof, or as required
by any law, rule, regulation, statute, order, permit or direction of any applicable governmental
authority; erecting, installing, maintaining, repairing or replacing equipment running in, to, or
through the Sublease Premises. Any entry to the Sublease Premises by Sublessor shall not be
construed or deemed to be a forcible or unlawful entry into or a detainer of the Sublease
Premises, or an eviction, partial eviction or constructive eviction of Sublessee from the Sublease
Premises or any portion thereof, and shall not relieve Sublessee of its obligations hereunder.
7.4. Brokers. Each of the parties represents and warrants there are no claims for
brokerage commissions or finders' fees in connection with the execution of this Agreement, and
each of the parties agrees to indemnify and hold harmless the other from any and all liabilities,
costs and expenses (including attorneys' fees) arising from any such claim.
7.5. Relationship of Parties. The relationship between the parties hereto shall be
solely as set forth herein and neither party shall be deemed the employee, agent, partner or joint
venturer of the other.
7.6. Separability. Each and every covenant and agreement herein shall be separate
and independent from any other and the breach of any covenant or agreement shall in no way or
manner discharge or relieve the performance of any other covenant or agreement. Each and all
of the rights and remedies given to either party by this Agreement or by law or equity are
cumulative, and the exercise of any such right or remedy by either party shall not impair such
party's right to exercise any other right or remedy available to such party under this Agreement
or by law or equity.
7.7. No Waiver. No delay in exercising or omission of the right to exercise any right
or power by either party shall impair any such right or power or shall be construed as a waiver of
any breach or default or as acquiescence thereto. One or more waivers of any covenant, term or
condition of this Agreement by either party shall not be construed by the other party as a waiver
of a continuing or subsequent breach of the same covenant, provision or condition. The consent
or approval by either party to or of any act by the other party of a nature requiring consent or
approval shall not be deemed to waive or render unnecessary consent to or approval of any
subsequent similar act.
7.8. Attorneys' Fees. In the event of any controversy arising under or relating to the
interpretation or implementation of this Agreement or any breach thereof, the prevailing party
shall be entitled to payment for all costs and attorneys' fees (both trial and appellate) incurred in
connection therewith.
7.9. Entire Agreement. This Agreement together with any Exhibits or attachments
hereto and other written agreements entered into contemporaneously herewith constitutes and
represents the entire agreement between the parties hereto and supersedes any prior
12
DocuSIgn Envelope ID; B30FF4A1-FE57-4B27-BE6A-98Fl3DFFAOD4
understandings or agreements, written or verbal, between the parties hereto respecting the subject
matter herein. This Agreement may be amended, supplemented, modified or discharged only
upon an agreement in writing executed by all of the parties hereto, This Agreement shall inure to
the benefit of and shall be binding upon the parties hereto and their respective successors and
permitted assigns, subject, however, to the limitations contained herein. In the event any
provision of this Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any other provision hereof.
7.10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the laws of the state in which the Sublease Premises are situated.
7.11. Notices. All notices or other communications required or permitted under this
Agreement shall be in writing and may be given by depositing the same in the United States
mail, addressed to the party to be notified, postage prepaid and registered or certified with return
receipt requested, by overnight courier or by delivering the same in person to such party. Notice
shall be deemed given and effective the day personally delivered, the day after being sent by
overnight courier, subject to signature verification, and 3 business days after the deposit in the
United States mail of a writing addressed and sent as provided below or when actually received,
if earlier. Any party may change the address for notice by notifying the other parties of such
change in accordance with this Section. Such notice shall be addressed as follows:
Sublessor: Allied Waste Systems, Inc.
c/o Republic Services, Inc.
18500 North Allied Way
Phoenix, Arizona 85054
Attention: Chief Legal Counsel
With a copy to: Spotts Fain PC
411 East Franklin Street, 6ch Floor
Richmond, Virginia 23219
Attn: David A. Reed, Esq,
Sublessee: South -Point Constructors, a Joint Venture
c/o Kiewit Infrastructure South Co.
2050 Roanoke Road, Suite 100
Westlake, Texas 76262
Attn: Jay Knez
7.12. Recording. Sublessee shall not record this Agreement or a memorandum hereof.
7.13 Surrender. Immediately upon the expiration of the Term or earlier termination
of this Agreement, or the expiration or earlier termination of the sublease of the Sublease
Premises to Sublessee, Sublessee shall deliver and surrender to Sublessor possession of the
Sublease Premises in as good condition and repair as the same were on the Effective Date, with
the concrete recycler and all related equipment and material removed and any damage repaired,
at Sublessee's sole expenses.
1.3
DocuSIgn Envelope ID: B30FF4A1-FE67-4B27-BE6A-98F13DFFAOD4
7.14. Conditions.. This Agreement is subject to and conditioned upon the satisfaction
of the following conditions (the "Conditions") in a form acceptable to Sublessor in its sole
discretion. In the event all of the Conditions are not satisfied within 200 days following the
Effective Date of this Agreement, Sublessor shall have the right to terminate this Agreement
upon written notice to Sublessee.
(a) The City has received final and non -appealable zoning approval for the Permitted
Use on the Sublease Premises.
(b) Sublessor has received a fully -executed amendment to the Lease which permits
the use of the Premises for the Permitted Use,
(c) Sublessor has received final and non -appealable consent from the City for the
execution and delivery of this Agreement and the use of the Premises by Sublessee in accordance
with this Agreement.
7.15. Counterparts. This Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together shall constitute one document. An
electronic signature, and a ".pdf' or facsimile copy of any signature hereto shall be deemed an
original.
7.16. WHEREAS Clauses. The parties hereto acknowledge and agree that the
WHEREAS clauses set forth above are true and correct and incorporated herein by reference.
[Signature Page Follows]
14
DocuSign Envelope ID: B30FF4A1-FE57-4B27-BE6A-98F13DFFAOD4
IN WITNESS WHEREOF, the parties hereto have each executed this Agreement as of
the Effective Date.
SUBLESSOR:
ALLIED WASTE SYSTEMS, INC.,
a Delaware corporation
By: 1/kci�-
Name: Adrienne Wilhoit
Title: Vice President
SUBLESSEE:
SOUTH -POINT CONSTRUCTORS, a Joint Venture consisting
solely of KIEWIT INFRASTRUCTURE SOUTH CO., a
Delaware corporation and AUSTIN BRIDGE & ROAD, LP, a
Dela LL,--�1 partnership
By: � �7
Name: Jay Knez
Title: Project Director
KIEWIT INFRASTRUCTURE SOUTH CO., a Delaware
corpo ' r COSlgned by:
By: �u,aan.t,
Name: Shane T. Petersen
Title: Senior Vice President
AUSTIN BRIDGE & ROAD, LP, a
Delaware limited partnership
DoeuSl\gnee by:
B y: ass...
Name: Brian Salerno
Title: Senior Vice President
15
DocuSign Envelope ID: B30FF4A1-FE57-4B27-BE6A-98F13DFFAOD4
EXHIBIT "A" - DESCRIPTION OF SUBLEASE PREMISES
t
tc� o
9
C3C
_ a �
sr
`
� •�
a cy
1
•1 i
� u
CL
bN
VIA
- t.
DocUSign Envelope ID: B30FF4A1-FE57-4B27-BE6A-98F13DFFAOD4
EXHIBIT "B" — STOCKPILE AREA
I i � ;•,, a ,� ;<��t #
stockpile Area
c
y
:
L
LN
/
17
DocuSign Envelope ID: B30FF4A1-FE57-4B27-BE6A-98F13DFFAOD4
]EXHIBIT "C" - SOIL SPECIFICATIONS
The Soil exported from the Project consists of existing clean fill material and native soils as detailed in the
following paragraphs:*
Existing fills
Existing fills consist predominantly of low to medium plasticity clays and lean clays with varying amounts
of sand or clayey sands, The plasticity Index (PI) ranges from 15 to 40 with an approximate estimated
average of about 30. The Unified Soil Classification System (USCS) classifications for these fill soils is
mostly CH, CI_ and SC, The fills are generally dark or light brown or gray in color. The moisture contents
of these soils are generally moderate but wet soils may be excavated from some locations. The existing
fills are generally clean.
Native Soils
Native soils consist predominantly of medium and high plasticity fat clays with varying amounts of sand.
Occasional lean clays or sand were also present. The plasticity index (PI) for these native soils ranges
from 15 to 50 with an approximate estimated average of about 35 to 40. The Unified Soil Classification
System (USCS) classifications for the native soils is mostly CH, but can occasionally be CL. or SC, The
native Soils are generally dark or light brown or gray In color. The moisture contents of these soils are
generally moderate but wet soils may be excavated from some locations.
*For both Existing Fills and Native Soils, Sublessee shall provide to Sublessor for its prior reasonable
approval prior to delivery of the Soils to Sublessor, a process for Sublessee to address the wet soils If
same can not be stored with the other Soil due to its moisture content,
In
DocuSlgn Envelope ID, B30FHA1-FE67-027-BEM-98H 3DFFAOD4
EXHIBIT "D" - INSURANCE
The Sublessee agrees at all times during the Term to maintain in full -force and effect at least the
following coverage:
WORKERS' COMPENSATION
Coverage A Statutory
Coverage B $2,000,000 each bodily injury by accident
$2,000,000 policy limit bodily injury by disease
$2,000,000 each occurrence bodily injury by disease
Coverage is required if party employs individual on either a full or part-time basis to
perform services.
AUTOMOBILE LIABILITY
Bodily Injury/Property Damage
Combined — Single Limit
Pollution Endorsement
$3,000,000 each Accident
Coverage is to apply to all owned, non -owned, hired
and leased vehicles (including trailers)
MCS-90 or ISO CA 99 48 09 02, or equivalent,
endorsement, whichever is applicable
COMMERCIAL GENERAL LIABILITY (including Contractual Liability);
Property Damage $1,000,000 each occurrence
Bodily Injury or Death $5,000,000 each occurrence
General Aggregate $10,000,000 general aggregate
ENVIRONMENTAL LIABILITY OR IMPAIRMENT
$1,000,000 per incident
EXCESS/UMBRELLA LIABILITY
May be utilized in combination with any of the above. Primary policies to obtain
required total liability limits,
All policies required herein shall be written by insurance carriers with a rating of A.M. Bests of
at least "A-" and a financial size category of at least VIII, In addition, the following
requirements apply:
(I) The Commercial General Liability policy must include Contractual Liability
19
DocuSlgn Envelope ID; 83OFF4A1-FE57-4B27-BEBA-98F13DFFAOD4
coverage specifically covering Sublessee's indemnification of Sublessor,
(II) Any liability policy shall also contain a Cross Liability/Severability of
Interests provision assuring that the acts of one insured do not affect the
applicability of coverage to another insured,
(III) Sublessee shall have the General, Auto and Excess Liability polices endorsed
naming Sublessor, its parent, subsidiaries and affiliates as "ADDITONAL
INSUREDS", with a blanket "WAIVER OF SUBROGATION".
20
DoouSign Envelope ID: B30FF4A1-FE67-4B27-13E6A-98Fl3DFFAOD4
EXHIBIT B
Insurance. Sublessee shall provide City with certificate(s) of insurance documenting policies of the
following types and minimum coverage limits that are to be in effect prior to commencement of any work,
pursuant to this Consent:
I. Coverage and Limits
(a) Commercial General Liability:
$1,000,000 - Each Occurrence
$2,000,000 - Aggregate
(b) Automobile Liability:
$1,000,000 - Each occurrence on a combined single limit basis
Coverage shall be on any vehicle used by Sublessee, its employees, agents,
representatives in the course of providing services under this Agreement. "Any
vehicle" shall be any vehicle owned, hired and non -owned.
(c) Worker's Compensation:
Statutory limits according to the Texas Workers' Compensation Act or any other
state workers' compensation laws where the work is being performed
Employers' liability
$100,000 - Bodily Injury by accident; each accident/occurrence
$100,000 - Bodily Injury by disease; each employee
$500,000 - Bodily Injury by disease; policy limit
(d) Environmental Impairment Liability (EIL) and/or Pollution Liability -
$2,000,000 per occurrence. EIL coverage(s) must be included in policy listed in
item a; or, such insurance shall be provided under separate policy(s). Liability for
damage occurring while loading, unloading and transporting materials collected
under the contract shall be included under the Automobile Liability insurance or
other policy(s).
2. General Requirements
(a) The commercial general liability and automobile liability policies shall
name City as an additional insured thereon, as its interests may appear. The term
City shall include its employees, officers, officials, agents, and volunteers in
respect to the contracted services.
(b) The workers' compensation policy shall include a Waiver of Subrogation
(Right of Recovery) in favor of City.
(c) A minimum of Thirty (30) days' notice of cancellation or reduction in
limits of coverage shall be provided to City. Ten (10) days' notice shall be
Consent to Sublease at SELF between CFW, Republic, and SoutbPoint Page 18
DocuSign Envelope ID; B3OFF4A1-FE67-4B27-BE6A-98F13DFFAOD4
acceptable in the event of non-payment of premium. Notice shall be sent to the
Risk Manager, City of Fort Worth, 200 Texas Street, Fort Worth, Texas 76102,
with copies to the Fort Worth City Attorney at the same address.
(d) The insurers for all policies must be licensed and/or approved to do
business in the State of Texas. All insurers must have a minimum rating of A- VII
in the current A.M. Best Key Rating Guide, or have reasonably equivalent financial
strength and solvency to the satisfaction of Risk Management. If the rating is
below that required, written approval of Risk Management is required.
(e) Any failure on the part of City to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
(f) Certificates of Insurance evidencing that Contractor has obtained all
required insurance shall be delivered to the City prior to Contractor proceeding
with any work pursuant to this Agreement.
Consent to Sublease at SELF between CFW, Republic, and SoutliPoint Page 19
4/28/23, 2:28 PM
M&C Review
CITY COUNCIL AGENDA
Create New From This M&C
Official site of the City of Fort Worth, Texas
FoRTWORin
DATE: 2/28/2023 REFERENCE **M&C 23- LOG NAME: 21 SOUTHEAST
NO.: 0169 LANDFILL SUBLEASE
CODE: L TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: (CD 8/ FUTURE CD 8) Authorize Execution of Amendment No. 5 to City Secretary
Contract No. 28336 with Allied Waste Systems, Inc. d/b/a Republic Services for the Lease
and Operation of the Southeast Landfill to Allow for a Sublease and Use of a Concrete
Recycling Facility at the Southeast Landfill and Authorize Execution of Consent to a
Sublease Agreement Between Republic and South -Point Constructors, a Texas Joint
Venture of Kiewit Infrastructure South Co. and Austin Bridge & Road, Limited Partners for
the Operation of Concrete Recycling Plant at the Southeast Landfill
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the execution of Amendment No. 5 to City Secretary Contract No. 28336, with
Allied Waste Systems, Inc. d/b/a Republic Services, to amend the terms to allow for a
sublease and use of a Concrete Recycling Facility at the Southeast Landfill; and
2. Authorize execution of consent to a sublease agreement between Republic and South -Point
Constructors, a Texas Joint Venture of Kiewit Infrastructure South Co. and Austin Bridge &
Road, Limited Partners for the operation of a Concrete Recycling Facility at the Southeast
Landfill.
DISCUSSION:
On November 5, 2002, the City Council authorized City Secretary Contract No. 28336 with Allied
Waste Systems, Inc. d/b/a Republic Services (Republic), to lease and operate the City of Fort Worth's
(City) Southeast Landfill (Lease). The Lease and ensuing amendments allowed Republic exclusive
use to operate the landfill for the life of the site and obligated Republic to accept for disposal solid
waste collected by the City's residential curbside collections contractor with certain exceptions such as
recyclables and bulk waste. The Lease only allows Republic to operate the Southeast Landfill as a
Type 1 Landfill and for no other purpose.
The City received a request from South -Point Constructors and Kiewit Infrastructure South Co.,
(Contractors) for Texas Department of Transportation (TxDOT) to temporarily place a concrete
recycling facility at the Southeast Landfill. The concrete recycling facility is to be used for the
TxDOT Southeast Connector project. The Southeast Connector will rebuild and widen approximately
16 miles of 1-20 and 1-820. The $1.6 billion project will widen 1-20 to 10 main lanes from 1-820 to US
287, and 1-820 to eight main lanes from 1-20 to Spur 303 (Rosedale Street) and reconstruct the 1-20, 1-
820, and US 287 interchanges. This project will represent the largest investment in transportation
infrastructure in the history of TxDOT's Fort Worth district.
To allow for a concrete recycling facility to be placed on the Southeast Landfill, the Lease must be
amended to allow for such a purpose. Furthermore, under the lease terms, the City must consent to
any sublease.
The City recommends that City Council authorize the execution of an amendment to the Lease to
allow for the sublease and use of a concrete recycling facility on the Southeast Landfill and authorize
the execution of a consent sublease with terms that are reasonable to the City. The general terms of
the sublease are as follows:
Term beginning on April 1, 2023, and ending August 31, 2027, term length of four (4) years and
five (5) months.
apps. cfwnet.org/counci I_packet/mc_review.asp? I D=30796&cou nciIdate=2/28/2023 1 /2
4/28/23, 2:28 PM
M&C Review
Leased area 4 acres.
Pay an amount of $85,172.00 in 5 installments as below:
Year I Amount
April - December 2023 F$12,863.00
2024 F $18,179.00
2025 F $19,270.00
2026 F$20,426.00
January - August 2027 — $14,434.00
Furthermore, the sublessee will be bound by the terms and conditions of the Lease. It shall only use
the proposed location at the Southeast Landfill for purposes pursuant to the sublease agreement and
for no other purpose.
This property is located in COUNCIL DISTRICT 8/FUTURE COUNCIL DISTRICT 8.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that upon approval of the above recommendations and execution of
the amendment and sublease agreement, funds will be deposited into the Solid Waste Fund. The
Code Compliance Department (and Financial Management Services) is responsible for the collection
and deposit of funds due to the City.
Fund
Department
Account
Project
Program
Activity
Budget
Reference # Amount
ID
ID
Year
(Chartfield 2)
FROM
Fund
Department
Account
Project Program
Activity
Budget
Reference # Amount
ID
ID
Year
(Chartfield 2)
Submitted for City Manager's Office by_
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
Dana Burghdoff (8018)
Steve Cooke (5134)
Brandon Bennett (6322)
Ricky Salazar (8379)
21SOUTHEAST LANDFILL SUBLEASE FID.xlsx (CFW Internal)
apps. cfwnet.org/counci I_packet/mc_review.asp? I D=30796&cou nciIdate=2/28/2023 2/2
CITY SECRETARY
CONTRACT N0. as3%-A4
STATE OF TEXAS §
§ KNOW ALL PERSONS BY THESE PRESENTS:
COUNTIES OF TARRANT, DENTON §
PARKER AND WISE §
FOURTH AMENDMENT TO THE AGREEMENT TO LEASE AND OPERATE
SOUTHEAST LANDFILL BY AND BETWEEN THE CITY OF FORT WORTH, TEXAS,
AS LESSOR AND ALLIED WASTE SYSTEMS, INC. d/b/a FORT WORTH SOUTHEAST
LANDFILL, AS LESSEE
This "FOURTH AMENDMENT TO THE AGREEMENT TO LEASE AND
OPERATE SOUTHEAST LANDFILL BY AND BETWEEN THE CITY OF FORT
WORTH, TEXAS, AS LESSOR AND ALLIED WASTE SYSTEMS, INC. d/b/a FORT
WORTH SOUTHEAST LANDFILL, AS LESSEE" (this "Amendment") is entered into as of the
aZ!" day of AVOI , 2019, by and between THE CITY OF FORT WORTH, TEXAS, a home
rule municipal corporation in Tarrant County, Texas, acting herein by and through its Assistant City
Manager, Valerie Washington ("City"), and ALLIED WASTE SYSTEMS, INC., d/b/a
REPUBLIC SERVICES, a Delaware corporation duly authorized to do business in the State of
Texas, acting by and through its duly authorized representative ("Lessee").
WITNESSETH:
WHEREAS, the City and Lessee entered into a certain "AGREEMENT TO LEASE AND
OPERATE SOUTHEAST LANDFILL" known as City Secretary Contract No. 28336, (the
"Original Agreement"), dated January 28, 2003, for the lease of the City's Southeast Landfill,
pursuant to the terms of that certain RFP 02-0087 (the "RFP"), issued by the City; and
WHEREAS, the City and Lessee entered into a First Amendment to the Original
Agreement known as City Secretary Contract No. 32407 (the "First Amendment"), on or about
September 25, 2006; and
WHEREAS, the City and Lessee entered into a Second Amendment to the Original
Agreement known as City Secretary Contract No. 28336-A2, on or about December 22, 2009; and
WHEREAS, the City and Lessee entered into a Third Amendment to the Original
Agreement known as City Secretary Contract No. 28336-A3, on or about September 26, 2013 to
add Article VIII.2 to allow for the deliverv. mulching and comnostina of Yard Waste at the
Southeast Landfill; and
WHEREAS, the term of the new service in Article VIII.2 expires on December 31, 2018
but may be extended under the same terms and conditions for an additional five (5) years; and
WHEREAS, the Original Agreement as amended by the First Amendment, the Second
Amendment, and the Third Amendment, is herein called the "Existing Agreement," to which
reference is here made for all purposes and as fully as if set forth in full herein; and
pQF�2 �\,v\\FOURTH AMENDMENT SELF LEASE
t c ; 11 t Cr1021319
OFFICIAL RECORD
C1 SECRETARY
FT. WClatf, TX
WHEREAS, the City and Lessee wish to extend the term of Article VIII.2, and also wish to
amend other terms and conditions of Article VIII.2.
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 City and Lessee agree as follows:
A. Amendments to Original Agreement: The Existing Agreement, as amended by the
Third Amendment to provide for ARTICLE VIII.2, "Yard Waste Delivery and Payment Obligations
of the City" shall be further amended as stated in this Fourth Amendment as follows:
ARTICLE VIII.2
Yard Waste Delivery and Payment Obligations of the City
Section 8.02.1 City_Yard Waste - Delivery Obligation. The City may deliver Yard
Waste collected by the City's Licensed Haulers to the Southeast Landfill for processing and
mulching by Lessee or its contractor. The City shall use reasonable efforts to cause to be delivered
to the Southeast Landfill all Yard Waste collected by the City's Licensed Haulers but nothing in this
Agreement shall be construed as being a guarantee by the City of any minimum amount of Yard
Waste that will be delivered to the Southeast Landfill. The Yard Waste must not contain the
following:
• Plastic Bags containing yard trimmings, grass or leaves;
• Household Garbage, trash or non -organic del,ris;
• Root balls or stumps; or
• Tree limbs greater than 6 inches and/or S feet in length, except during
monthly bulk collection.
Section 8.02.2 Recycling _ Programs. Both the Lessee and the City understand that
the City may establish, on its own initiative or in compliance with Applicable Law, recycling
programs, other Solid Waste reduction programs and composting programs. Nothing contained in
this Agreement shall be construed to prevent the City from establishing such programs, or diverting
all or a portion of the waste stream collected by the City, its employees, agents or contractors, to
Recyclables processors, Yard Waste processors, Type IV Waste, Bulky Waste, and C&D
processors, purchasers or recycled materials or businesses that offer other alternatives to the burial
of Solid Waste.
Section 8.02.3 City Disposal Payments. The City shall pay to the Lessee an amount
equal to $13.85 for each Ton (which includes all governmentally imposed charges in existence as of
the Contract Date for the processing and/or mulching of Yard Waste) of the Yard Waste delivered
to the Southeast Landfill.
Section 8.02.4 Invoices for City Disposal Payments: Payments by City. The Lessee
shall submit a monthly report as set forth in Section 6.16 and invoice to the City within fifteen days
following the end of each month during which amounts are due from the City pursuant to Section
FOURTH AMENDMENT SELF LEASE
Cr1021319 Page 2
I c I sea as in tiD-KJTM
contaminated Yard Waste and disposing of it at the Southeast Landfill, the Lessee shall notify the
City and the City shall have the right to inspect such load(s). Regardless of the City's inspection, in
addition to the weight ticket, the City will be provided with • allowed to take • • each
contaminated load(s) with the time and date.
Section 8,02.8. Expiration Date for Article V111.2. The terms and conditions of
Article V111.2 expire on December 31, 2023. The terms and conditions of Article V111.2 may be
FOURTH AMENDMENT SELF LEASE
CrI021319 Page 3
extended for an additional five (5) years upon mutual written c onsent by an amendment to this
Agreement.
Section 8.02.9. Cost Adiustment for the Yard Waste Tipping Fee. The annual Cost
Adjustment for the Yard Waste tipping fee shall be based on the anniversary date pursuant to
Section 4.03, 7.03, 8.03, and 11.02 of the Agreement. The anniversary date for the Yard Waste
tipping fee shall be January 1st of each year that Article VIII.2 is in effect.
B. Miscellaneous. Nothing contained herein shall be deemed to amend or modify the
Existing Agreement except as expressly set forth herein. Any c -fined term used herein, but not
defined herein, shall have that meaning set forth in the Existing Agreement. In the event of a
conflict between the terms of this Fourth Amendment and the terns of the Existing Agreement, the
terms of the Existing Agreement shall control.
FOURTH AMENDMENT SELF LEASE
Cr1021319 Page 4
IN WITNESS WHEREOF, this Fourth Amendment has been executed as of the last date
set out below.
LESSEE:
ALLIED WASTE SYSTEMS, INC., d/b/a
REPUBLIC SERVICES
By: �►.c� /��
Its: Area President
Date Signed: 03/01/19
CITY:
CITY OF FORT WORTH, TEXAS
Valerie Washington
Assistant City Mano
Date Signed:
ATTEST:
Mary Kk*F
City Secretary
PROVED AS TO FORM AND L,L
Christa . Lopez -Reynolds
Senior Assistant City Attorney
M&C: C-agm 4/110119
1295: 2019-456151
CONTRACT COMPLIANCE MANAGER
By signing, I acknowledge that I am the person responsible for the monitoring and administration of
this contract, including ensuring all per performance and reporting requirements.
Christian Harper
Code Contract Services Administrator
FOURTH AMENDMENT SELF LEASE
Cr1021319
OFFICIAL RECORD
-CM SECRETARY
FT. WQ§g4, T
mat_Keview
Yage 1 of 2
CITY COUNCIL AGENDA
COUNCIL ACTION: Approved on 4/16/2019
Official site of the City of Fort Worth, Texas
FoRTMbRTH
REFERENCE ** 23AMEND-4 TO CONTRACT
DATE: 4/16/2019 NO.: C-29095 LOG NAME: NBR 28336 WITH ALLIED
WASTE SYSTEMS INC
CODE: C TYPE: CONSENT PUBLIC NO
HEARING:
SUBJECT: Authorize Execution of Amendment No. 4 to City Secretary Contract No. 28336 with Allied
Waste Systems, Inc. d/b/a Republic Services for the Lease and Operation of the Southeast
Landfill (ALL COUNCIL DISTRICTS)
RECOMMENDATION:
It is recommended that the City Council:
1. Authorize the execution of Amendment No. 4 to City Secretary Contract No. 28336, with
Allied Waste Systems, Inc. d/b/a Republic Services, to allow the City to deliver yard waste to
the Southeast Landfill for processing into mulch and compost, which will allow the following;
2. Extend the term until December 31, 2023; and
3. Increase the Contract processing cost from $12.22 per ton to $13.85 per ton for an
estimated five (5) year contractual total of $3,000,000.00 including allowance for unknown
future volume increases and unforeseen storm related debris.
DISCUSSION:
On November 5, 2002, the City Council authorized City Secretary Contract No. 28336 with Allied
Waste Systems, Inc. d/b/a Trinity Waste Services (Allied), to lease and operate the City's Southeast
Landfill. The Contract and ensuing amendments allowed Allied to lease and operate the landfill for
the life of the site and obligated Allied to accept for disposal solid waste collected by the City's
residential curbside collections contractor with certain exceptions. These exceptions were recyclable
materials, yard waste and bulk waste that were to be delivered respectively to a material recovery
facility, a yard waste processing operation, and bulk disposal at the IESI TX Corporation (IESI) landfill
under separate contracts.
Allied remains approved by the Texas Commission of Environmental Quality to continue large scale
mulching and composting operations at the Southeast Landfill. The rate for yard waste processing
offered by Allied is $13.85 per ton, which is significantly lower than the current rate of $16.50 per ton
for disposing of this material at the IESI landfill. This will result in an estimated savings to the City of
$92,750.00 annually, and approximately $463,750.00 over the five-year contract term, while saving
valuable airspace within the City's Southeast Landfill. The estimated first year cost is $484,750.00
based on historical volume to deliver to the Southeast Landfill for processing instead of an estimated
cost of $577,500.00 for disposal at the IESI landfill. Allied is subcontracting with Living Earth
Technologies Company, Inc., (LETCO), a professional compost and mulch company, to operate the
mulch and compost processing. LETCO will commercially market the mulch and compost products
locally. The City will receive a limited portion of LETCO's finished mulch products to be distributed at
City Drop -Off Stations for use by City residents on a first -come -first -serve basis. The term of this
contract is five years, and will end on December 31, 2023. This end date aligns the end of this
contract term with the end of the Landfill contract term.
This amendment also reflects Allied Waste's new dba, Republic Services.
http://apps.fortworthtexas.gov/council_packetlmc review.asp?ID=26881&councildate=4/1... 4/17/2019
M&U Keview Yage 2 of 2
M/WBE - There is no requirement for M/WBE participation under the terms of the landfill contract.
FISCAL INFORMATION/CERTIFICATION:
The Director of Finance certifies that funds are available, as appropriated, in the Solid Waste Fund.
O_
Fund Department Account Project Program Activity Budget Reference # Amount
ID I I ID I I I Year Chartfield 2
ROM
Fund Department Account Project Program Activity Budget Reference # Amount
ID I I ID I I Year I (Chartfield 2)
Submitted for City Manager's Office by:
Originating Department Head:
Additional Information Contact:
ATTACHMENTS
RS1295.pdf
Signature: ?""'P ( U
Email: Ronald.Gonzales@fortworthtexas.gov
Valerie Washington (6199)
Brandon Bennett (6345)
Robert Smouse (5153)
Ben Carson (6336)
http://apps.fortworthtexas.gov/council_packet/mc review.asp?ID=26881&councildate=4/1... 4/17/2019