HomeMy WebLinkAboutContract 28353 (2)i
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CIYY �����T,��Y
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GUAR.ANTY �1GREEMENT
From
ALLIED WASTE INDUSTRIES, INC.
to
THE CITY OF FORT WORTH, TEXAS
Dated
as of Januar�-, 2003
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TABLE OF CONTENTS
Pa�e
ARTICLE I
DEFINITION� ATID INTERPRETATION
5ection1.01. Definitions ................................................................................................................2
Sectian1.02. Interpretation ............................................................................................................2
ARTICLE Il
REPRESENTATION5 AND WARRANTiES OF THE GiJARANTOR
Section 2.0 i. Representations and Warranties of tha Guarantor ...................................................4
ARTICLE III
GUARANTY COVENANTS
Section 3.01. Guara.t�ty to ihe City .................................................................................................6
Seetion 3.02. Righ# of the CiTy to Praceed against Gu,arantor .......................................................6
�ection 3.03. Guaranty Absolute and Unconditional .....................................................................6
Section 3.44. Defenses, Set-Offs atid Counterclaims ....................................................................5
Section 3.05. Waivers by the Guaranfiox ........................................................................................8
Section 3.Ob. Paym�nt of Costs and Expe�ses ..............................................................................9
Section 3.Q7. Suhardination of Righ�s ...........................................................................................�
Section 3.0$. Separate Obligatiozas; Reinstatement .......................................................................9
Section3.09. Term .......................................................................................................................IO
ART�CLE IV
GENERAL COVENANTS
Section 4.01. Maintenance of Corporate E�stence .....................................................................11
Section4.02. Assignm►ent ............................................................................................................11
S�ction 4.03. Qualification in Texas ............................................................................................11
Section 4.04. Consent to durisdictio� ........................................................................................... l l
Section 4.05. Binding Effect ........................................................................................................12
Sectian 4.06. A�endments, Changes and Modifications ............................................................12
Sect'ton 4.Q7. Liability ..................................................................................................................12
Section4.08. Notices ................................................................................................................... �2
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GUAR.ANTY AGREEMENT
THIS GUARANTY AGREEMENT is made and dated as of 3anuary _, 2003, between
Allied Wasie Industries, Inc., a corporaiion orgaz�ized and existing under the Laws of the State of
De�aware (together with any permitted successors an.d assigns hereunder, the "Guarantor"}, and
The City of Forth Wortl�, Texas (the "City").
RECITALS
The City and Allied Was#e Systems, Inc., a corporation argaxzized and existing under the
laws af the State of Delaware and duly autharized to do business in the State af Texas (the
"Lessee"), hav� entered into an Agreement to Lease and Operate the Southea�t Landfill, dated as
of Sanuary �, 20Q3, as amended from time ta time (the "Agreement"} whereby the Lessee has
agreed to provide transfer station facilities, operataon a�the transfer station, and disposal services
far solid waste, all as more particularly described fiherei�.
The Lessee is an indirect subsidiaay of the Guarantor.
The City will enter into the Agreement only if the Guarantor guarantee� the per�orrnance
hy tlie Lessee af all of t%e Lessee's responsibilities and obligations under the Agreez�nent as set
forth in this Guat'anty Agreement (the "Guaranty").
Tn arder to induce the execution and delivery of the Agxeement by the City and in
consideration thereof, the Guaxantor agrees as follows:
ARTICLE I
DEFINITIONS AND INTERPRETATION
Section 1.01. Defnitions. For the purposes o� this Guaraniy, the term
"4bliga#ions" means the arnounts payable by, and the covenants and agxeements of, the Lessee
pursuant ta the terms o£ the Agreement. Any other capitalized ward or term used but not defned
herein is used as defined irt ihe Agreement.
Sectior� 1.02. Tntemr�tation. Tn this Guaranty, unless the cante�t otherwise
r�quires:
{A} Refsr�nces Hereto. The terms "hereby", `°hereof', "herein.", "hereunder"
and any sirnilar terms refe� to this Guaranty, and ihe term "hereafter" means after, and the term
"heretofore" means before, the date af execution and delivery of this Guaranty.
(B) Gend�r and Plurality. Words of the masculine gender mean and include
carrelative words of the ferninine and neuter genders and words importing the singular number
mean and include rb.e plural number and vice versa.
(C) Persons. Words importing persons include fi�s, companies, ass�ciatians,
general partnerships, l�t�d partnerships, trusts, business trusts, corporatiozzs and other legaI
entities, inciuding public bodies, as well as individuals.
(D) Headin�s. The table of contents and any headings preceding the text of
the Articles, �ections and subsections of this Guaraz�ziy shall be salely for convenience of
ref�renc� and shall not constitute a part of this Guaranty, nox shal.l they affect its meaning,
construction or eff�ct.
{E) Entire A�reement; Authoritv. This Gua�ranty canstitutes the entire
agreement between the parties hereto with respect to the transactions co�templated by this
Guaranty. Nothing in this Guaranty is intended to con%r on any persan other than t�ie
Guarantor, the City and their permitted successors and assigns hereunder any rigY�ts or remedies
under or by reason of this Guaranty.
(F) Counterc�arts. This Guaran#y may be executed in any number of original
counterparts. AIl such counterparts shall constitute but one and the same Guaranty.
(G) Ap�licabie Law. T�is Guaranty shall be governed by and constr�ed in
accordance with the applicable laws of the S�tate of Texas.
{H) Severabilztv. �f any clause, provision, subseetion, Section or Axticle nf
this Guaranty shall be ruled invalid by any court o� co�npetent jurisdiction, the invalidiiy of any
such clause, provision, subsection, Section or Artacle shall not affect any of the remai�ing
pro�isions hereaf, and this Guaranty shall be constz-ued axzd enforced as if such inva.iid portion.
did not exist provided that such construction and enforceixi.ent sk�all n�t increase �he Guarantor's
Iiability beyond that expressly set fvrth herein.
�
(I) Anprovals. All approvals, consents and acceptances required to be given
or made by any party hereto shall iae at the sole discretian af the party whose approval, consent
or acceptance is re�ui�ed.
(J) Pavments. All payments required to be rnade by the Guarantor hereu,nder
shall be made in lawful money of the U�uted Sta.tes oi America.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE GUARANTOR
�ection 2.O1. Represeniations ar�.d Warranties af the Guaraniar. The Guaxantox
hereby represenfis and vvarrants that:
(A) Existence and Powers. The Gua.rantor is a company duly organized and
vaLidly eacisting under the laws of the State of Dela•c�vare, with fizll legai ri�ht, pawer and
authority to enfer into and perfarm its obligations under this Guaranty.
(B} Due Autkaorizatian and Bindin� Obli�ation. The Guarantar has duly
authorized the execution and delivery o�this Guaranty, and ihis Guaranty has been du.ly executed
and delivered by th� Guaran�or and consfitutes ihe legal, valid and binding obligatian of the
Guaraxztor, enforceable against the Guarantor in acc�rdance with its terms except insofar as such
enforceznent tnaq he affected by bankruptcy, insolvency, �noratorium or by general eo�uity
principals af reo�gani7ation and other �imilar iaws affectiug credi�ors' rights generally and
general principles a� equity.
(C} No Conflict. Neither �he e�ecution or delivery by the Guarantor of this
Guaranty nor the performance by the Guarantor of its abligations hereunder (1) to the
Guarantor's knowledge eor�flicts with, vialates or results in a breach of any law oz governmenial
regulation applicable ta the C'7uarantor, {2} conflicts with, violates or results in a material breach
of any term ar condition o� the Guarantor's corporate charter or by-laws or any judgment,
decree, agreement or instrument to which tlie Guarantar is a party or by vvhich the Guarantor or
any of its properties or assets are boun.d, or const�tutes a default und.er any such judgrnent,
decree, agreernent or instrument, or (3) to the Guarantor's knowledge will result in tlie creation
ar imposition of any material encumbrance of any natuxe w�atsoever upon any of the properties
or assets of the Guarantor except as permitted hereby.
(D) No Gauernmental At�proval Required. No approval, authorization, order
or consent of, or declaration, registration or filing with, any go�rernm�ntal authoriiy is required of
th� Guaranior for the valid execution and delive�ry by the Guarantor of tkus Guaranty, except such
as shal� have been duly obtained or made.
(E) No Liti�atian. E�cep# a.s disclos�d in the Guarantor's filings with the
Securities and Exchange Commission pursuant ta the require�n�nts of the Securities Exc�ange
Act of 1934, as arnended, there is no action, suit or other prpceeding, at law or in equity, befare
or by any court or govemmental authority, pending or, to the Guar�nntor's kno�vledge, threateraed
against the Guarantor which has a likelihood of aaa unfav�rable deeision, ruling or finding tha�
wauld matez�ally and adversely affec� the validity or enforceability of this Guaranty.
{F} No Le�al Prohibition. The Guarantor has no knowledge of any Applicable
Law in effect on the date as a� vvhich ilus represen#ation is bein� anade which wouid prohibit #he
performance by the Guarantar of this Guaranty and the transaciions contempiated by this
Guara.nty.
(G) Cansent to A�reements. The GuarantQr is fully aware of ihe terms and
conditions of the Agreement.
C�
(H) Consideraiion. This Guaranty is made in furtherance a� the purposes fo�
which the G�arantor has been organized, and the assumption by the Guaxantor af its obligations
hereunder will r�sult in a material benef t ta the Guarantor
5
�T�cLE ���
GUARANTY COVENANTS
Section 3.01. Guarantv io the Citv. The Guarantor hereby absolutely, presently,
irrevocably and ur�condi�ionally guarantees to t�►e City for the benefit of the City (1) the fi.�l and
prompt payment when due of each and all of the payments required to be credited o;r made b� the
Lessee under the Agreern.ent (including alI amendznents and supplements thereto) to, or far the
account of, the City, when the same shall become due and papable pursuan� to this Guaranty, and
(2) the full and prompt perforrnance and observance of each and all of t.�ie Ohligations.
Notwithstanding the unconditional nature of the Guarantor's obligations as set forth herein, the
Gr�arantor sha�l have the right #o assert the defenses provided i�t�. �ection 3.04 hereof against
claims rnade under this Guaraz�.ty.
Section 3.42. Ri;�ht of the Citv ta Proceed a�ainst Guarant_or. Tlus Guaxanty
shali constitute a guaranty af paymen� and of performance and not of collectian, and the
Guarantor specificaiiy agrees that in the eveni of a failure by the Les�ee to pay or perfarm any
Obligaiion guaranteed hereunder, the Ci�.y shall have the right to proceed fzrst and directly
against the Guarantor urider #his Guaranty an.d withaut proceeding against the Lessee ar
exhausting any other remedies against fihe Lessee which the City may have. Without limitiz�.g the
foregoing, ihe C'r�arantox ag�rees that it shaIl not be necessary, and fhat the Guarantar shall not be
entitled to r�quire, as a condition of enforcing the liability af the Guarantor hereunder, that the
City (1) file suit ar proceed to abtain a p�rsonal judgment against the Lessee or a�y other person
tl�at may be liable for the Obligations ar any part of the Obligations, (2) make a�ny other effort to
o�tain paym�nt ar perfarrnance o£ the Obligations from the Lessee other than providing the
Lessee with any natice of such payzxa.ent or performance a� mxy be required by �h� terms of the
Agreement or required to be given to #he Lessee under Applicable Law, {3) foreclo�e against ar
seek to realize upon any s�curity for the Obligati�ns, or (4) exercise any other right or remedy to
which the City is or may be entiiled in conneciion with the Obligations or any security therefor
or any other guarax�tee thereo�, except to the extent tbat auy s�ch exercise of such other right ar
remedy may be a con.ditian to the Obligations of ihe Lessee or to the enforcement of reznedies
under the Agreement. Upan any un�xcused failure by the Lessee in the payment or performarace
of any Obligation and the giving of such natice or demand, if azry, to the Lessee and Guarantor as
may be r�quired in connection with such Obligation and this Guaranty, the Iiability of �he
Guarantor sha31 be efFective and shall immediately be paid ar performed. Notwitl�tanding the
City's right to proceed directly agains� �e Guarantor, the City (or any successor} shall not be
entitled to n�ore than a single fuil performance of the obiigations in regard to any breach or non-
p�rformance thereof.
Sectzon 3A3. Guarantv Absolute an.d Unconditional. The obligations of the
Guarantor hereunder are absolute, present, irrevocable and tan.co�ndiiianal and shall remain in full
force and effect uniil the Lessee shall have fitlly discharged the Obligations in accordance with
their respective �erms, a.nd except as pravided in Section 3.04 hereof, shall not be subject to any
counterclairr�, set-aff, deduction ar de�ense {afher than full and strict campliance with, or release,
discharge or satisfaction of, such Obligatians) based on any claim that the Guarantor may have
against the Lassee, the City or any other person. Without limiting the foregoing, the obligaiions
af the Guarantor h�reunder shall not be released, discharg�d or in any way modified by reasan of
C�
any of the following (whether vvith or without notice to, knowledge by or furiher cflns�nt Qi the
Guarantor}:
(1} the extension or renewal of �his Guaraxaty or the Agreement up io the
specified Terrt�s of each agreernent;
(Z) any exercise or faiIure, oznission or delay by the City in the e�ercise of
any right, power ar remedy ecrnferred on the City vvith respect to this Guaranty or ihe
Agreement except ta �e ext�nt such failure, amissi�n ar delay gives rise to an applicable
s#atute of lirnitations de%nse �ith respect to a specific claim;
(3} any permitted transfer or assignment of rights or obligations uxxder t�e
Agreement by any party thereto (other than a permitted assignrnent to a rep[acennent
cons#ructor ar operator in the event of a termination of the L�ssee pursuant to
Article XIV of ihe Agreement), or any permitted assignment, canveyance ar ofiher
transfer of any of their respective interests in the Southeast Landf ll;
(4) any permitted assignment for the purpose of creating a security interest or
mortgage of all or any part of the respective interests of the City or any other person in
the Sautheast Landfill;
{5) ax�y renewal, amendment, change or modifica�ion in respect of any of the
Obligations or terrns nr conditions of the Agreement;
(6} any failure of title with respect to ail or any part of the respective interests
of any person in the Southeast Landfill,
(7) t�e voluntary or involuntary liquidation, dissolutian, sale or ather
disposi�ion of all ar substantially alI the assets, marshalling of assets and �iabiliiies,
receivership, insalvency, bankruptcy, assignment far the benefit af creditors,
reorganiza.tion, moratvrium, �rrangerne�t, compositian with credi�ors or readjustment o�,
or otl�er similar proc�edin�s against the Lessee ar the Guarantor, or any of the praperty of
either af them, ar any ailegation or contest of the validity of this Guaranty or the
Agreement in any such pxoceeding (it is specifically understood, consented and agreed to
that, to the extent permitted by law, ihis Guaranty shall remain and contianue in fiill force
and effect and shall be enforceable agai:ast the Guarantor to the same extent and with the
same force at�d effect as if any such pxoceeding had not been instituted and as if no
rejec�ion, stay, �ermination, assumption or modification has occurred as a result thereof, it
being the intent and purpose of this Guaranty that ihe Guaranior shall and does here�y
waive all rights and benefits which might accrue to it by reason of any such proceeding);
(8} except as perrnitt�d by Sections 4.OI or 4.02 hereaf, any sale or other
transf�r by the Guarantor or any affiliate of any of the capital stock oz� atI�er interest of the
Guaranior or any afFiliate in the Lessee now ar hereafter owned, direcfi�y or indirectly, by
the Guarantor ar any affiliate, or any change in composition of the interests in the Lessee;
(9) any' failure on the part of the Lessee for any reason to perform or comply
with any agxeement with the Cruarantar;
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(10} the failure on fhe part af the City to prnvide any notice to the Guarantor
which is not required to be gi�e� to the Guarantor pursuant to this Guaranty and to the
L.essee as a condition to the enforcement of Obligations pursuant ta the Agreement;
(11) the merger or consolidation of any party to the Agreement i�to ar with any
ather person, ar any sale, leas�, transfer, abandonment or other disposition o£any or alI of
the pro�erty af any of �ie foregoing to ar�y person;
(12) any legai disability or incapacity of any party to the Agreement; ar
(13) th� fact ihat entering irato the Agreement by the Lessee or the Guarantor
was invalid ar in excess of the powers of such party.
�hould any mo�ey due or owing under this Guaxanfy nat be recoverable from th� Guarantar due
to any of the matters specified in subparagraphs (1) through (13} above, the�z, in any such case,
such maney, together with all additional sums due hereunder, shall nevertheless be reco�rerable
franrx #he Guarantor as though the Guarantar were principal obligor in place of the Lessee
pursuan�t to #he terms af the Agreement and not merely a guarantor and shaIl be paid by the
Guarantor forthwiih subject to the terms of this Guaran�y. Notwiths�anding anything ta the
contrary expressed in this Guaranty, nothing in this Guaranty sha11 be deemed to amend, modify,
clarify, expand �r reduce the Lessee's rights, benefits, duties or abliga�ions under #he Agreement.
To the extent that at3y of the matters speci�ed iz� subparagraphs (1) thraugh {6) and {S) through
(13) would provide a defense to, release, discha�rge ox atherwise affect the Lessee's Obligatians,
the Guarantor's obligations under �his Guaranty shall be treated the same.
Section 3.04. Defer�ses, Set-Offs and Count�rclaims. Notwvithstanding any
provision contained herein to the contrary, the Guarantor shall �e entitled to exercise ar assert
any and all legal ar equitable rights or defenses which t�e Lessee may ha�e u�ader ihe Agree�nent
or undEr Applicable Law (otlaer than ha.nkruptcy or insolv�ncy of the Lessee and ather tha.n any
defense which xhe Lessee has expressly waived in the Agreement or the Guaran�or has express�y
waived in Section 3.05 hereof or elsewhere l�reunder), and ih� abligations of the Guarantor
hereunder are subject to st�ch counterclaims, set-offs or defenses which the Lessee is permitted to
assert pursuant to the Agreement or under Ap�licable Law (other thax� ba�nkruptcy or insolvency
of the Lessee and ather than any defense which ihe Lessee has expressly waived in the
Agreement or the Gua�rantor has expressly waived in Section 3.05 hereoi or elsewhere
hereunder}, if any.
Section 3.05. Waivers bv the Guarantor. The Guarantor hereby unconditionally
and irrevocably waives:
(i} noiice from the City of its accep#ance o£tkus Guaranty;
{2) notice of any of the events referred to in Section 3.03 hereof, ez�cept to the
extent tiiat notice is rcquired to be given as a condition to the enforcement of Obligations;
(3) to the fulles� extent lawfuliy possible, all notices which may be required
by statute, rule of law or otherwise to preser�ve intact any rights againsi the Guarantor,
except any notice ta the Lessee required pursuant tc� the Agreernent or Applicable Law as
a condition to the performarice of any Obliga#ioz�;
(4) ta the fullest extent lawfully possible, any stafute of litnitations def�nse
hased on a statzrte of lirnitations period which may be applicable t� guarantors (or parties
in similar relatiansliips) which would be s�orter than the applicable statute of limitations
period for the underlying claim;
(5} any right ta require a proceeding first against the Lessee;
(6) any right to require a proceeding first against any person or i�he security
provided by or urkder the Agreement except to the extent the Agreement specifically
r�quires a proceeding first against any person (except tiie Lessee) or security;
(7} any requirement that the Lessee be �oined as a party to any praceeding for
the enforcement of any term of tl�e Agreement or this Guara�ty;
(8) the r�quirement of, or the nfltice of, the f�ing of claims by tk�.e City in the
event of the receivership or bankruptcy of the Lessee; and
(9) all demands upon the Lessee or any other person and all other formalities
t�te omission of any of whicl�, or delay in perfor�nance of whic�i, might, but for the
pravisions of this Section 3.05, by rule of law ar otherwise, constitute grounds far
relievzng or discharging the Guarantor in whole or in part from its absol�.rte, pr�sent,
irrevocable, unconditianal and eontinuing obliga#ions hereunder.
Sec�ion 3.4b. Pavment of Costs and Expenses. The Guarantnr agrees to pay the
City on demax�d aIl reasonable costs and expenses, legal or otherwise (including counsel fees),
incurred by or on bel�al� af ihe City in successfully en�orcing b� legal proceeding ob�ervance of
the covenants, agreerne�ts and obligat�ons contained in tk�is Guaranty against the Guarantor,
other thari the costs and expenses that th� City incurs in performi�g a�►y of its abligations under
the Agreement, where such abligataar�s ar� a condition to performance by the Lessee of its
Obiigations.
Section 3.07. Subardination of Ri�hts. The Guaranfior agr�es that a.ny right of
subroga�.on or cantribution which it may h.a�'e against the Lessee as a result a� any payment or
performance hereunder is her�by fuily subardinated to the rights of the Ci�.y hereunder and under
the Agreement and that the Guarantor shall nat recover or seek ta recover any payment rr►ade by
it hereunder from the Lessee until the Lessee and the Guaranior shall have fully and satisfactorily
paid or perfortned and discharged the Obligarions giving rise to a claim under this Guaranty.
Section 3.08. Senaraie Obli�ations: Reinsta.tement. The obligations of the
Guarantor to make an� payment or to perform and discharge any other du�ies, agreements,
covenants, undertakings or obligations hereur�der sha11 (1) ta the e�tent permitted b� Applicable
Law, constitute sepa�ate and indep�ndent obiigations o� the Guarantor from its ather obligaiions
uz�der fhis Guaraniy, (2) give rise to separate and independent causes of ac�ion against the
Guarantor, and (3} a�ply irrespec#ive of any indulgence g�anted from time to time by the City.
The Guarantor agrees that this Guaranty shall be automa�ically reinstated if and to the extent that
for any reasan any paym�nt ar performance by ar on behalf of the Lessee is reseind�d or rn�si be
otherwise restared b� the City, whether as a result of a.ny proceedings im bankruptcy,
reorgatuzation or siurn.ilar pxoceeding, unless such rescission ar restoration is pursuant to the
terms of the Agreement, or the Lessee's enfarcement of such terzn� under Applicahle Law.
�
Section 3.09. Term. This Guaranty shall remain in full force and eff�ct from the
date of executian and delivery hereof untij all af ihe Obligations of the Lessee have been fully
paid and performed. This Guaranty shall be effective irrespecti�e as to when the Operatian
Commencement Date occurs.
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ARTICLE IV
GENER.AL COVENANTS
Section 4.01. Maintenance of Corno:rate Existence. (A} Cansoiidation, Mer�er,
Sale ar Transfer. The Guarantox covenants ihat during the terrn of this Guaranty it will maintain
its carporate existence, will not dissalve or otherwise dispose of a!1 or substantially all o� its
assets and will not cansolidate with or merge into another entity or permii one ot more other
entities to consolidaie with or rnerge into it, unless the successor or the surviving entity is the
Guarantor and the conditions con#.az�ed in clause (2) below are satisfied; provided, however, that
the Guarantor may consolidate with or rnerg� into another entity, or permit one ar more other
entities to consolidat� with or merge into it, or sell or otherwise tx�sfer to another entity all or
substantia.ily all of its assets as an entirety and thereafier dissolve if (1) fhe suceessor or the
surviving entity (if other than the Guara�tar} (a) if not transferred by o�eration o� law, assumes
in wri#ing all the obligations of ihe Guarantor hereunder, and if required by law, is duly qualified
to do business in the State of T�xas (b) at the request af the City delivers to the City an apinion
of counsel to the effect that its abligations under this Guaranfy are legai, valid, binding and
enforceable subject to applicable bankruptcy and sunilar insoivency or moratorium laws, a�d
v�thin six manih� following such trarzsaction (2) any such transaction does nat r�:suli in the credit
rating of the lang-term unsecured debt of the successor Guarantor (or the survxving �nti�.y, if the
Guarautor) by a n.atianally re�ognized rating service within si� months £ollowing such
transaction being lawer than that of the Guar�ntor immediaYely preceding such transactian.
(B) Continuance of Obli�ations. If a consolidation, merger ar sale or other
transfer is m.ade as permitted by �his Section �.01, the provi�ions of this Sectian 4.41 shall
contir�ue in fu11 force and effect a�d no further cansolidation, merger or sale or other transfer
shall be made except in compliance with the provisioza� af this Section 4.01. Na such
cansolidation, merger or sa�e ar other �ransfer shall have the effect af releasang the initial
Guarantar from its Iiability hereunder unless a successor enti�y has assumed responsibility for
��is Guaranty as provided in thi� Sec�ion 4.01, and if such transaetion results in a Maierial
Decline in Guarantor's Credit Standing, th� successor Guarantor shall provide credit
enhanc�ment.
Section 4A2. Assi�rnent. Without the pxior written consent of the City, ihis
Guaranty �ay not be assigz�ed by the Guarantor, except pursuanfi to Section 4.41 hereof.
Sectaon 4.Q3. Oualification in Texas. The Guarantor agrees that so lang as tl�is
Guaranty is in effect, if xequi�ed by law, the Guarantor will be duly qualified to do business in
tf�e State of Texas.
Section 4.04. Consent to rurisdiction. The Guaz�az�.tor irrevocably: (1} ag�rees
that any 1ega1 proceeding arising out of this Guaranty shall be broug�.t in the 5tate or federa[
courts in Forth Worth, Taxas having appropriate jurisdiction; (2) consents ta the jurisdiction of
such court in any such Legal Proceeding; (3) waives any objection w�.ich it may have to the
laying of the jurisdictian of any such Legal Proceeding in any of such courts, and (4) waives its
right to a trial by jury in any Legal Proceeding in. any of such courts.
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Section 4.OS. Bindin� Effect This Guaranty shall inure to fhe benefit of the City
and its permitted successors and assigins and shall b� binding upon the Guarantor and its
successors and assigns.
Section 4.06. Arnendments, Chan�es and Mo�ifications. This Guaranty may nat
be amended, changed or n�odified or terminazed and nane of its provisions rnay b� vvaived,
excepi with the priar written consent of the City and of the Guarantor.
Section 4.07'. Liabilitv. It is understood and ag�reed fia by the City that noihing
contained herein shall create any obligation of or right to loak to any direcior, ofiicer, ernployee
or stockhalder of the Guarantor (ar any Affiliate th.ereof} for the satisfaction of any obligations
heraunder, ar�d no judgment, order or execution with respect to or in connection with this
Guaranty sha11 be taken against any such director, officer, ernployee or stocklao�der.
Section 4.08. Notices. All notices, de�ands, requesfs and other co�nmunications
hexeunder shall be deemed sufficient and properly given if in wz�iting and dclivered in person to
�he following addresses or sent by f rst class mail and facsiv�ile, to such addresses:
(a) If to the Guarantor:
District Matiager
Allied Waste Systems, rnc. dba, Trinity Waste �ervices
6200 Eliiott Reeder Road
Fort VVorth, Texas 76117
Allied Waste Tndustries, Inc.
Carporate Secretary
15880 N. Greenway-Hayden Loap
Scottsdale, ��rizona 8526�
(b) Tf to the City:
Office of th� City Manager
City of Fart Wflrth
1D00 'Throckmorton Sire�t
Fort Worth, Texas 76102
City Attorney
City af Fort �Vortb
1004 Throckmorton Stre�t
Fort Worth, Texas 761 Q2
Either party may, by �ike notice, desi�nate further or differeni addresses to whi.ch sut�sequ�nt
notices shall be sent. Any natice hereu�der signed on behalf of the natifying party by a duly
authorized attorney at Iaw s�a[1 be valid and effective to the same extent as if signed on behalf of
such party by a duly authorized officer or employee. Notices ar�d communications given �y mail
hereund�r shali be deemed to have been given five (5} days after the date of dispatch; all ather
notices shall be deemed ta have been given upon receipt.
iz
h �
C
�N WITNESS WHERE�F, t.�ie Guarantor has caused ihis Guaranty tQ be cxecuted in its
r�ame a.nd on its behalf by its duly authorized officer on this '��''` day af January, 2�03.
THE CITY OF FORT WORTH, TEXAS
ALLIED WASTE INDUSTRIES, INC.,
as Guarantor
Gary Jackson
City Ma.nager
B �7, ��� �-�'�
City Manager
�
APPRDVED FOR FORM AND LEGALTTY:
By: _ � ,r�,,.._
Name:
Title:
David Yett
City Attozney
By: �..� ��..,� ;�
� s� ����
ATTEST:
Gloria Pearson
City Secretary
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C'ity of �o�t �i�"o�th, 7'exas
���or ��� ��a��c�� Co�n��n�cat�or�
DATE REFEREi�CE NUMBER LOG NAME PAGE
11/19/02 ��1 g�5� 52CONTRACT 1 of 2
s�s��cr APPROVAL �F C�NTRACT WITH ALLIED WASTE SYSTEMS, lNC. D/BIA TRINITY
WASTE SERVICES FOR THE LEASE AND �PERATION O� THE CITY'S SOUTHEAST
LANDFELL _
RECOMMEN�ATION:
It is recommended that the City Council:
1. Authorize the City Manager to n�gotiate and execute an agre�ment with Allied Waste Systems, Inc.
dlbla Trinity Waste Services for the lease and operatior� of the City's Southeast Landfill and to
provide disposal senrices for the City's mun'rcipal solyd wasfe; and
2. Authorize the agre�ment to begin March 1, Zaa�, and expire February 28, 2Q23, ar for the life of the
site if site-life is less than 20 years. An aption has b�en included to �xtend the cantract for up to ten
years if the life of the site alEaws far such an extension. The estimated cos� for FY2002-2003 is
$665,405. The estimated revenue for FY2D02-2003 is $9,909,618, which includes a[ump sum
payment of $9,617,951 on March 1, 2003, and $291,667 in (andfill lease paymenis. The net present
value of this contract, when taking both revenues and expenditures into acco�ant, is es#imated to be
$7'7,820,580 in net reuenue o�er the 20-year term of the cantract.
DISCUSSION:
On July 2, 20D2, the City received responses to � Request for Propasal (RF'P) #or a variety of solid
waste services to include leasing and operating the City's Southeast Landfill and providing services for
the disposal of municiPal salid waste. Fa[lowing initial prop�sa[ evaluations, the ��afuation committee
comprised of 1�4 representaiives fram the City Manager's Office, MIWBE Office, Internal Audit, Finanee
and Law Departments with significant input from the cansulting firm of Gershman, Brickner and Bratton,
solicited best and final offers from the RFP respondents. After evaluation of these best and finaf flfiers
(see Atfiachment A), firms were selected far interview, presentations and negatiations, Trinity Vllaste
Services is recommended as awardee fflr fhe lease and operating agreement based on evafuation
factors enumerated on the RFP prapasal evaluatinn matrix {see Attachment B}.
Public forums in�iting cifizen and prav�der comments were held on March � and 5, 2�Oz. A draft RFP
was mailed to all knawn providers on April 2, 20Q2 fo solicit commer�ts from industry. This RFP was
advertised on June 19, 2002 and June 26, 2002. The Purchasing Division soficited prnposais from all
known solid waste serrrice praviders including fhase in the purchasing sysfem database, a�vertised on
DemandStar.com and propasal notices were sent to other firms in related industries.
A pre-proposal conference was conducted an May 30, 2Q02 with approximafely 40 pro�iders 9n
attendanc�. A total af nine responses were recei�ed for a[I sofid waste services witf� four responses for
the lease and operation of the landfifl.
PROPOSAL EVAL.UATION - See attached eva[uation matrix.
�'ity o, f Fort ;�i�o�th� Texas
�l��o� ��� �o�r�c�� Co��n��i���Qo�
DATE REF�RE�lCE NUMBER LOG NAME PAG�
11119IO2 �.� g3�� 52CONTRACT 2 of 2
sue�ECT APPROVAL OF GONTRAC WITH ALLIED WASTE SYSTEMS, fNC. DIBIA TRINITY
WASTE SERVICES FOR THE LEASE AND OPERATION OF' THE GITY'S SOUTHEAST
LANDFILL
MIWBE - Allied Waste Systems, Inc, dlbla Trinity Waste Services has commi#ted ta 2Q% MIWBE
par#icipation for this service, even though MIWBE participation was not required.
RENEWAL 4PTI�N - Th9s cantrac� may �e renewed for uP to a ten-year term at the City's option to
aflow the landfill to reach fulf capacity. This action does not require specific City Councif apprava! I
provi�ed that ihe City Cauncil has apprapriated sufficient funds to satisfy the City's obligations during I
the renewal term. �
F15CAL INFORMATIONICERTIFICATION:
The �'inance Director ceriifies that funds a�e available in fhe current aperating budgef, as appropriafed,
of the 5ofid Waste Fund, and that subsequeni year operating casts will be budgeted. The
�nvironmental Management Department will be res�onsibie for the coll�ction of revenues under this
agreement.
.
�-,
Submitted for City Manager's
Otiice by:
Charles Boswell
Originating Department Head:
Jim Keyes
Additional Information Contact:
Brian Boerner
FUND I ACCOUNT I CENTER
(to}
P�64 484022 0525001
8511 P�64 464022 Q525001.
85l7 (from)
PE64 539120 0525004
8079
I AMOUNT �
$9,517,951.00 �
$ 291,667.00 �
$ 665,4Q5.04
CITY SECRETARY
APPROVED 11/t9/02
AS A.l1r�NDED