04-200 Resolution No. 04-200
RESOLUTION
AUTHORIZING EXECUTION OF A HOST CITY AGREEMENT WITH
WASTE MANAGEMENT OF ILLINOIS, INC. FOR A
SOLID WASTE TRANSFER STATION
BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ELGIN, ILLINOIS, that
David M.Dorgan,City Manager, and Dolonna Mecum,City Clerk,be and are hereby authorized and
directed to execute a Host City Agreement on behalf of the City of Elgin with Waste Management of
Illinois, Inc. for a Solid Waste Transfer Station, a copy of which is attached hereto and made a part
hereof by reference.
s/Ed Schock
Ed Schock, Mayor
Presented: July 14, 2004
Adopted: July 14, 2004
Vote: Yeas: 4 Nays: 2
Attest:
s/Dolonna Mecum
Dolonna Mecum, City Clerk
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HOST CITY AGREEMENT
This Host City Agreement (the "Agreement") is made this 144*day of July, 2004, by and
between WASTE MANAGEMENT OF ILLINOIS, INC., a Delaware corporation authorized to
do business in Illinois ("Waste Management"), and the CITY OF ELGIN, an Illinois municipal
corporation("City").
WITNESSETH:
WHEREAS, Waste Management is the lessee of(with option to purchase) approximately
15 acres of property located south of U.S. Route 20 and Bluff City Boulevard, in the City of
Elgin, Illinois (the "City"), with the approximate location thereof being depicted on the Concept
Plan prepared by Land Vision, Inc. dated June 7; 2004, a copy of which is attached hereto as
Exhibit A (the "Transfer Station Site"). The exact legal description of the Transfer Station Site
shall be inserted into Exhibit A by the attorneys for the parties once determined; and
WHEREAS, Waste Management plans to file with the City a request for siting approval
to construct and operate on the Transfer Station Site a waste transfer station ("Transfer Station");
and
WHEREAS, Waste Management and the City have agreed to enter into this Agreement
prior to Waste Management filing its application for local siting approval for the Transfer
Station; and
WHEREAS, the City has not, by entering into this Agreement, predetermined whether it
will grant or deny siting approval for the Transfer Station or whether Waste Management can (or
cannot) satisfy any of the criteria related to siting approval, and the City retains all of its authority
in respect of siting approval in accordance with Section 39.2(a) of the Illinois Environmental
CADocuments and Settings\abilthou.WM\Local Settings\Temporary Internet Files\OLK65\Waste Management-Host City Agreement-v1doc
Protection Act ("Act"), 415 ILCS 5/39.2(a) and the City of Elgin Siting Ordinance, Chapter 9.33
of the City's Municipal Code; and
WHEREAS, if the Effective Date occurs, then Waste Management is willing to pay the
Host Benefit Fee, as hereinafter set forth, to the City to assist the City in respect of the costs
associated with the Transfer Station, but such fees may be used for the City's general municipal
purposes or such other lawful public purposes as solely determined by the City; and
WHEREAS, capitalized terms not otherwise defined herein shall have the meaning given
in Section 3.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereby agree as follows:
1. Incorporation of Recitals.
The Parties agree that the foregoing recitals are material to this Agreement and are
hereby incorporated and made a part of this Agreement as if they were fully set forth herein.
2. Property Covered.
This Agreement applies to the Transfer Station Site, which is legally described on
Exhibit A attached hereto.
3. Definitions and Permitted Waste.
a. For the purpose of, and regardless of where they appear, in this
Agreement, the following capitalized terms shall have the following meanings:
"Act" means the Illinois Environmental Protection Act, 415 ILCS 511 et seq.
"Agreement" shall have the meaning given in the preamble.
"City" shall have the meaning given in the preamble.
"City Waste Contractor" shall have the meaning given in Section 10.
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"Costs" shall have the meaning given in the Section l La.
"Disposal" means any treatment, storage or disposal of Waste.
"Effective Date" means the date on which Waste is first received at the Transfer Station
to be transferred for Disposal.
"Event of Default" shall have the meaning given in Section 17.a.
"Hazardous Waste" shall have the meaning given in Title 1, Section 3 of the Act.
"Host Benefit Fee" shall have the meaning given in Section 5.c.
"IEPA" shall have the meaning given in the recitals.
"Index" shall have the meaning given in Section 5.c.
"Industrial Site" shall mean the land which was the subject of the City's Planned
Development Ordinance G57-03. The Transfer Station will be situated on approximately 15
acres of the Industrial Site.
"Landscape Waste" shall have the meaning set forth in 415 ILCS 5/3.270.
" Waste Management" shall have the meaning given in the preamble.
"Municipal Waste" shall have the meaning given in Title 1, Section 3 of the Act.
"Permitted Truck Routes" shall have the meaning given in Section 7.a.
"Received Waste" means any Waste received at the Transfer Station that is transferred for
Disposal, excluding Landscape Waste and Recyclable Materials.
"Recyclable Materials" means any material received at the Transfer Station that is
transferred for recycling and reuse and not for Disposal.
"Regional Utility Improvements" shall have the meaning given in Section 14.b.
"Special Waste" shall have the meaning given in Title 1, Section 3 of the Act, excluding
potentially infectious medical waste and Hazardous Waste.
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"Termination Date" shall have the meaning given in Section 24.
"Total Waste" means all of the Waste received at the Transfer Station plus all Special
Waste and all Recyclable Material.
"Transfer Station" shall have the meaning given in the recitals.
"Transfer Station Site" shall have the meaning given in the first Recital.
"Waste" shall have the meaning given in Title 1, Section 3 of the Act, including but not
limited to,Municipal Waste and Special Waste,
b. Waste Management covenants and agrees that the Transfer Station shall
receive only Municipal Waste, Landscape Waste, Recyclable Materials and, at the sole and
exclusive discretion of Waste Management, Special Waste. Waste Management covenants-and
agrees that the Transfer Station shall not accept Hazardous Waste and it shall not accept
potentially infectious medical waste.
4. Limitation on Transfer Capacity.
Waste Management covenants and agrees that it shall not receive at the Transfer
Station more than 1,500 tons of Total Waste per day (calculated on a rolling twelve (12) month
average), except with the prior written approval of the City Council or such other person
designated in writing by the City Council; provided however, in no event shall the Transfer
Station receive during any day more than 2,000 tons of Total Waste.
5. Host Benefit.Fee.
Waste Management shall pay a Host Benefit Fee to the City as follows.
a. The Host Benefit Fee shall be payable by Waste Management to the City
commencing on the Effective Date and continuing thereafter as provided in this Agreement, and
in consideration of such Host Benefit Fee, the City agrees that so long as Waste Management
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pays the Host Benefit Fee hereunder the City will not levy any additional fees or taxes or increase
the amount of fees or taxes assessed on Waste Management, the Transfer Station Site or any of
the operations conducted thereon; provided, however, the foregoing restriction on the levy of any
additional fees or taxes by the City shall not apply to: (i) any fee or tax which is uniformly
assessed upon all members of a class of taxpayers of which Waste Management is a member,
other than a class of taxpayers that is based on ownership or operation of a waste transfer station
or solid waste management facility, (ii) real estate taxes, (iii) ad valorem taxes similarly assessed
on other property or operations, (iv) utility taxes, (v) telecommunications taxes, (vi) water and
sewer connection fees and water and sewer user fees, (vii) any other fee or tax which Waste
Management is obligated to pay pursuant to county, state or federal law, or pursuant to.the.laws
or regulations of any governmental entity with jurisdiction and (viii) sales taxes.
b. The Host Benefit Fee shall be payable by Waste Management to the City
for (i) each ton of Received Waste and (ii) each ton of Recyclable Materials in excess of 500 tons
of such Recyclable Materials per day(calculated on average for the most recent quarter).
C. The initial host benefit fee ("Host Benefit Fee") shall be equal to One
Dollar Eighty Cents ($1.80) for (i) each ton of Received Waste and (ii) each ton of Recyclable
Materials in excess of 500 tons of such Recyclable Materials per day (calculated on average for
the most recent quarter). On the earlier of(i) January 1, 2007 and (ii) January 1 following the
first twelve (12) month period after the Effective Date, and in each case on every January 1st
thereafter, the Host Benefit Fee shall be adjusted by the percentage of increase during the
previous year in the Revised Consumer Price Index for All Urban Consumers for Chicago,
Illinois, as such rate is published from time to time by the United States Department of Labor
Statistics ("Index"); provided however, in no event shall the Host Benefit Fee rate decrease. The
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annual adjustment for years after the first annual adjustment shall be based on the amount of the
adjusted Host Benefit Fee from the previous year. If the Index shall cease to be published, the
parties shall mutually agree upon a substitute index, which is comparable to the Index, and which
shall then be used for determining the annual rate of adjustment.
d. The Host Benefit Fee shall be due and payable by Waste Management to
the City each calendar quarter, no later than the 30th calendar day after the end of each calendar
quarter: No later than ten (10) calendar days after the end of each calendar quarter, Waste
Management shall prepare and submit to the City's Solid Waste Coordinator a statement
containing the following information in reasonably sufficient detail to allow the City to
independently calculate the amount payable by Waste Management to the City under-this
Agreement:
(1) For each day during the calendar quarter the amount (in tons) of. (i)
Waste transferred from the Transfer Station for Disposal, and (ii)
Recyclable Material transferred from the Transfer Station for
recycling, and (iii) Landscape Waste transferred from the Transfer
Station.
(2) For each day during the calendar quarter, the hours of operation for
the Transfer Station.
(3) The amount of Received Waste transferred from the Transfer
Station for Disposal or recycling during such calendar quarter, and
the total Host Benefit Fee payable on Recyclable Materials
transferred from the Transfer Station for recycling during such
calendar quarter.
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e. The City shall have the right to inspect, audit, and contest any
determination that the Host Benefit Fee was not payable on any Received Waste transported from
the Transfer Station. The City may dispute any statement submitted by Waste Management
within two (2) years of receipt of such statement. In any dispute, the parties agree that if Waste
Management has failed to maintain the records required under this Agreement, Waste
Management shall carry the burden of proving that the Host Benefit Fee was not payable on any
Received Waste. During the pendency of any dispute, the Host Benefit Fee shall continue to be
payable by Waste Management and Waste Management shall in all events pay the undisputed
portion of the Host Benefit Fee.
6. Hours of Operation.
Waste Management shall accept Waste and Recyclable Material at the Transfer Station
only during the hours from 4 a.m. to 8 p.m., Monday through Saturday. The Transfer Station
shall be closed on Sunday.
7. Permitted Truck Routes.
a. Trucks that are owned, operated or controlled by Waste Management shall
travel to and leave from the Transfer Station using the following routes (hereinafter the
'Permitted Truck Routes"), except as may be necessary for the collection of Received Waste and
Recyclable Material from properties located within two miles of the Transfer Station:
(1) Transfer trailers leaving the Transfer Station shall go north on the
internal private road on the site to Bluff City Boulevard; east on
Bluff City Boulevard to Route 20; trucks shall exit the corporate
limits of the City on Route 20.
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(2) Transfer trailers, and collection trucks to the extent reasonably
practicable, traveling to the Transfer Station from the North shall
enter the existing corporate limits of the City on Route 20 and
proceed to Bluff City Boulevard; west on Bluff City Boulevard to
the internal private road; then south on the internal private road to
the Transfer Station.
(3) Transfer trailers and collection trucks to the extent reasonably
practicable, traveling to the Transfer Station from the South shall
proceed Route 20 via Illinois State Routes 25 or 31; then on said
Route 20 to Bluff City Boulevard; then west on Bluff. City
Boulevard to the internal private road; then south on the internal
private road to the Transfer Station.
Notwithstanding the foregoing, collection trucks serving properties within a two-mile
radius of the Transfer Station may make use of other local roads (subject to applicable
weight limits).
b. Waste Management shall direct the owners and operators of trucks that
Waste Management does not own, operate or control that such trucks shall use only the Permitted
Truck Routes to and from the Transfer Station, except as may be necessary for the collection of
Received Waste or Recyclable Material from properties located within two miles of the Transfer
Station.
C. The parties agree that Bluff City Boulevard from Gifford Road on the
west to Highway 20 on the east is an 80,000 pound truck route under the jurisdiction of the City.
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The City shall post and maintain the appropriate 80,000-pound truck route signs along Bluff City
Boulevard.
8. Reimbursement of City Expenses.
a. Waste Management shall pay on behalf of the City or reimburse the City
for all reasonable and necessary expenses incurred in (i) conducting the review of the siting
application, (ii) conducting any public hearings, (iii) making the siting decision, and/or (iv)
responding to any appeal of the siting decision by any person (including Waste Management),
including but not limited to as to each of the foregoing the costs of any consultants, attorneys or
hearing officer retained by the City who are not also employees of the City, costs of court
reporting and transcripts for any public hearings, and witness fees. The City shall periodically
submit to Waste Management a detailed accounting of all payables to be paid by Waste
Management or expenditures to be reimbursed by Waste Management pursuant to this Section 8.
Waste Management shall pay such expenses or reimburse such expenditures within forty-five
(45) days of receipt of request from the City.
b. The provisions of this Section 8 shall become effective and binding upon
Waste Management upon the date of execution of this Agreement by both parties, and/or shall
survive the termination and/or expiration of this Agreement until all of the expenses described in
Section 8.a have been paid in full.
9. Transfer Station Operations.
a. Waste Management shall be permitted to use the Transfer Station Site for
the indoor and outdoor storage and parking of vehicles and equipment necessary or useful in
conducting the operations conducted on the Transfer Station Site, said vehicles and equipment
including but not limited to containers, trailers, and collection vehicles.
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b. Waste Management shall be permitted to park loaded and unloaded
transfer trailers, containers, and collection vehicles on the Transfer Station Site, whether inside or
outside the Transfer Station building inside a fenced area. Waste Management shall cause all
parked loaded transfer trailers and loaded containers to be covered at all times that they are not
under roof.
C. All Waste shall be removed from the Transfer Station within 24 hours of
receipt; provided however, Waste may be stored at the Transfer Station for more than 24 hours if
(i) such 24-hour period occurs over a Saturday, Sunday or holiday, (ii) the Waste is stored in
tarped or similarly covered transfer trailers and/or containers all of which are parked inside-the
Transfer Station building, and (iii) the Waste is removed on the next business day.
10. Acceptance of Waste.
The City, in its sole discretion, from time to time, may require Waste
'Management to transport to the Transfer Station all Municipal Waste and Recyclable Materials
collected by Waste Management under the City's existing contract with Waste Management for
hauling Municipal Waste and Recyclable Materials. If, in the future, the City requires any other
contractor with whom the City may have a waste hauling contract (hereinafter called a "City
Waste Contractor") to transport the Municipal Waste and Recyclable Materials collected by it
within the City to the Transfer Station, then Waste Management shall accept such waste at the
Transfer Station, if allowed, and the total fee charged by Waste Management to the City Waste
Contractor for Disposal of all of the City's Municipal Waste and Recyclable Material shall be
five percent (5%) less than the posted gate rate customarily charged by Waste Management,
including all taxes, fees and surcharges.
11. Waste Management Indemnification and Insurance.
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a. Waste Management shall, to the maximum extent permitted by law,
indemnify, defend and hold harmless, and pay on behalf of, the City, its officials, officers,
employees and attorneys from and against any and all third claims, suits, causes of action,
administrative orders, judgments, settlements, loss, liability, damage, cost and expense, and
attorneys fees and expenses of litigation, (collectively, "Costs"), including without limitation
Costs for bodily injury to or death to any persons and any property damage, arising out of or in
connection with (i) Waste Management's design, installation, construction, ownership, operation,
repair, restoration, modification, removal, maintenance, or the failure of any of the foregoing, at
the Transfer Station, (ii) Waste Management's violation of any laws or regulations in its
ownership or operation of the Transfer Station, (iii) Waste Management's breach of this
Agreement, and/or (iv) any Costs related to third party claims regarding any response, removal,
remediation, damage to natural resources, health assessments, health claims, increased risk of
adverse health effects, contribution and third party claims, and any actions required pursuant to
the Comprehensive Environmental Response, Compensation and Liability Act of 1980, 42
U.S.C.A. Section 9601, et seq., as amended from time to time, and all other applicable statutes,
regulations and under common law, for any release or threatened release of the Waste collected
by, stored at and transferred to or from the Transfer Station. If Waste Management accepts the
defense and indemnity of a claim made against the City and tendered by the City to Waste
Management under this Section I La, and Waste Management pays the defense Costs, then
Waste Management shall have the right to defend the City utilizing attorneys reasonably
acceptable to the City. Notwithstanding any provision herein to the contrary, the provisions of
this Section I La shall survive the expiration and/or termination of this Agreement:
b. Prior to acceptance by Waste Management of the City's Municipal Waste,
Waste Management and the City shall enter into a mutually acceptable indemnification related
thereto pursuant to which Waste Management indemnifies the City. The parties agree that the
existing agreement between the City and Waste Management entitled Agreement for Provision of
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Refuse, Recyclables and Yard Waste Collection Services and dated September 12, 2002, as
amended by Amendment Agreement dated March 31, 2004 (collectively the "Waste Hauling
Agreement"), contains an indemnification undertaking on the part of Waste Management
satisfactory to the City, and such provision shall satisfy the requirements of this Section 11 b. for
as long as it shall remain in force.
C. Waste Management shall obtain and maintain or cause to be maintained in
full force and effect at all times on and after the commencement of construction of the Transfer
Station and continuing at all times that Waste is received at the Transfer Station, the following
insurance coverages:
(1) Commercial General Liability insurance in an amount not less than
$1,000,000.00 per occurrence and a combined limit of
$2,000,000.00, with a maximum deductible or self-insured
retention of$100,000.00;
(2) Excess liability insurance covering claims in excess of the
underlying insurance described in Section 1I.c(1) above, with a
$3,000,000 minimum limit;
(3) Workers Compensation Insurance as required by Illinois law and
regulations; and
(4) Employer's Liability Insurance in the amount of $500,000.00 per
accident, with a maximum deductible or self-insured retention of
$100,000.00.
d. The liability insurance described in Section l Lc above shall be (i) issued
by an insurance company reasonably acceptable to the City, (ii) written on a comprehensive,
broad form policy, (iii) include endorsements that name the City as an additional insured,provide
a severability of interests and cross liability clause, and provide that the insurance shall be
primary and not excess to or contributing with any insurance or self-insurance maintained by the
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City, and (iv) include a waiver of subrogation from such insurance company. Waste
Management hereby waives and covenants not to sue the City for any and every claim for
recovery from the City for any and all loss or damage covered by any of the insurance policies to
maintained under this Agreement. To the extent permissible by law, Waste Management waives
any limits to the amount of its obligations to indemnify, defend or contribute to any sums due
under any claims by any employee of Waste Management that may be subject to the Workers
Compensation Act, 820 ILCS 305/1 et seq. or any other related law or judicial decision (such as
Kotecki v. Cyclops Welding Corp., 146 I11.2d 155 (1991)).
C. Waste Management shall promptly deliver to the City certificates of
insurance evidencing that the insurance coverages required by Section 11 c. hereunder are in full
force and effect, and providing that the insurer shall give the City notice at least thirty (30)1 days
prior to the effective date of any cancellation, lapse or material change in such insurance policies.
12. Effective Date.
a. Except as provided in Sections 8, 11 and 14, the obligations of the parties
under this Agreement shall be subject to satisfaction of the condition precedent that the Effective
Date shall have occurred.
b. Waste Management covenants and agrees that, notwithstanding any
provision in this Agreement to the contrary, the City has no duty or obligation under this
Agreement, express or implied, to act or to not take action in respect of Waste Management's
request for siting approval for the Transfer Station pursuant to Section 39.2 of the Act, including
without limitation, that the City does not have any duty or obligation to satisfy the condition
precedent in Section 12.a above. Waste Management covenants and agrees that if the City does
not grant siting approval for the Transfer Station pursuant to Section 39.2 of the Act, for any
reason whatsoever, whether proper or improper, or whether due to mistakes or misstatements of
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law or fact during such siting approval consideration, Waste Management an g ement shall in no event have
any claim or cause of action against the City under this Agreement. Nothing in this Agreement
shall be construed or deemed to be a covenant by the City in respect of the City's obligations
under Section 39.2 of the Act, which obligations shall be separate and apart from any obligations
to Waste Management under this Agreement. Waste Management agrees that Waste
Management shall not have any claim or cause of action against the City under this Agreement
for the City's failure to comply with Section 39.2 of the Act. Nothing to the contrary herein
withstanding shall be construed to limit either party's rights under the Act.
13. Contingency for Amendment to Waste Hauling Agreement. This Agreement
is contingent upon the City and Waste Management concurrently entering into an amendment,.-to
the Waste Hauling Agreement, with such amendment to be in the form attached hereto as Exhibit
B, the execution of which both the City and Waste Management hereby agree to do.
14. Sanitary Sewer and Water.
a. Waste Management shall have the right to connect the Transfer Station to
the City's sanitary sewer and water systems and receive sanitary sewer and water services
therefrom, in accordance with applicable law, rules and regulations. Until the City's municipal
sanitary sewer mains and water mains (collectively the "City Utilities") are extended to the
Industrial Site, Waste Management shall have the right to utilize a septic system, private waste
disposal system, or septic holding tank (including, without limitation, portable toilets with
holding tanks)to serve the Transfer Station. At such time as the City Utilities are extended to the
Industrial Site, Waste Management shall (i) connect the Transfer Station to the City Utilities and
(ii) pay all applicable connection charges related to the City Utilities, as well as all costs and
expenses associated with the installation and maintenance of the service lines associated with
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such connections within the property line of the Transfer Station Site. Nothing in this Agreement
shall modify, amend or waive any fees applicable to the connection to or use of the City Utilities,
and Waste Management agrees that it shall pay for the foregoing sanitary sewer and water
services when connection is made thereto in accordance with the applicable sanitary sewer and
water rates established from time to time by the City.
b. Waste Management may construct utilities, including water mains,
sanitary sewer mains and a force main on and off the Transfer Station Site for the benefit of other
properties situated within or outside of the City ("Regional Utility Improvements"). If Waste
Management is unable to secure directly from the owners or developers of such properties
reimbursement of the proportionate share of the cost of the Regional Utility Improvements, the
City shall enter into a recapture agreement for the purpose of ensuring that Waste Management
recaptures from such other properties the proportionate share of such costs. For purposes of this
Agreement, proportionate share shall be determined in accordance with the percentage of the cost
of such Regional Utility Improvements that is attributable to each of the properties designated on
a service area.
C. In the event Waste Management is unable to obtain utility easements over,
under, across, or through property not owned or controlled by Waste Management or not owned
by the City or under City's control which are necessary to construct utility lines to the Transfer
Station Site, the City shall use, to the full extent permitted by law, its eminent domain power to
secure such easements. Prior to commencing any condemnation action, Waste Management shall
submit, for City review and approval, written documentation demonstrating that Waste
Management has pursued reasonable alternatives for the acquisition of such easements, and
Waste Management shall deposit with the City the amount of funds reasonably necessary to
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pursue eminent domain action and to secure the subject easements. All such actions by the City
shall be at no cost to the City, which costs shall be born solely by Waste Management but, upon
the written request of Waste Management, the City shall not unreasonably fail to timely file a
condemnation action.
d. The provisions of this Section 14 shall become effective and binding on
the parties as of the date that siting approval granted by the City for the Transfer Station pursuant
to Section 39.2 of the Act, becomes non-appealable and once non-appealable, shall survive
termination and/or expiration of this Agreement. Siting approval shall be considered to be non-
appealable if siting approval is granted by the City, all necessary IEPA permits are issued and all
appeals and enforcement actions regarding any of the forgoing, as well as appeals thereof, have
been successfully resolved in Waste Management's favor or the relevant time for filing any
appeals has run.
15. Audits and Records.
a. Waste Management shall maintain, for a period of at least two (2) years,
daily records of the amounts and types of Total Waste transferred from the Transfer Station for
Disposal or recycling and/or shall provide such records to the City upon written request. Such
records shall include (i) disposal tickets or logs, showing the amount in tons of Waste for each
truck and signed by the driver of the trucks transferring Waste from the Transfer Station to
Disposal or recycling sites. In addition to the submittals required under this Agreement,
additional records shall be kept and shall be provided to the City upon written request regarding
(i) the hours of operation of the Transfer Station, and (ii) the amount of the Host Benefit Fee
payable on each ton of Received Waste transferred from the Transfer Station for Disposal or
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recycling during each calendar quarter, and the total Host Benefit Fee payable during each
calendar quarter.
b. The City shall have the right to audit the records of Waste Management
upon five (5) business days notice. In the City's discretion, the audit may be performed by an
accountant or other consultant selected by the City upon five (5) business days notice to Waste
Management.
C. Waste Management covenants and agrees to fully cooperate with the City
or its designee during any audit and/or inspection, to respond timely and fully to any questions or
requests, and to make available Waste Management's employees for interviews.
d. . Where such audit determines that Waste Management has underpaid the
Host Benefit Fee, Waste Management shall pay the reasonable cost of the audit.
16. Compliance with Applicable Laws.
Waste Management agrees to operate the Transfer Station in accordance with and
to otherwise fully comply with all applicable federal, state and local laws (including the
municipal code of the City), rules, regulations and ordinances.
17. Breach and Remedies.
a. Waste Management shall be in default under this Agreement upon the
happening or occurrence of any of the events or conditions described in Section 17.a.(1) through '
and including 17.a.(5), each of which shall be an "Event of Default" for purposes of this
Agreement:
(1) ' Waste Management breaches or fails to observe or perform any of
Waste Management's material obligations under this Agreement,
and such breach or failure continues for more than thirty (30) days
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following written notice thereof from the City to Waste
Management (in which the City shall specify the nature of such
breach or failure in detail); provided, however, that if, by its nature,
such breach or failure cannot reasonably be cured with said 30
days, then so long as (1) Waste Management commence to cure
such breach or failure within such 30-day period and (ii) thereafter
continues in good faith and with diligence to complete such cure,
then Waste Management shall not be deemed to be in default
hereunder; ,
(2) Waste Management is dissolved, or Waste Management's existence
is terminated and its business is permanently discontinued,
(3) Waste Management fails to pay, when due, any amount due
hereunder, and such failure continues for a period of forty-five (45)
days following the receipt by Waste Management of notice of such
failure;
(4) Any representation or warranty made by Waste Management in this
Agreement was false or misleading in any material respect when
made; or
(5) Waste Management is adjudicated as bankrupt or insolvent, or an
order is entered for relief under any bankruptcy law with respect to
Waste Management.
b. Upon an Event of Default described in Section 17.a(1) through and
including 17.a(5) the City shall be entitled to exercise all remedies available at law or in equity
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(including set-off and recoupment, and notwithstanding the requirements in Section 17.c
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applicable to termination of this Agreement) or other appropriate proceedings, including without
limitation bringing an action or actions from time to time for recovery of amounts due and
unpaid by Waste Management, and/or for damages and expenses resulting from the Event of
Default, which shall include all costs and expenses reasonably incurred in the exercise of its
remedy(including reasonable attorneys' fees).
C. In addition to, and not exclusive of, the City's remedies under Section 17.
b, the City shall have the right to terminate this Agreement without any further obligation of the
City hereunder, and in which case (subject to this Section 17.c) Waste Management shall
permanently cease any further operation of the Transfer Station where:
(1) Waste Management assigns this Agreement or the rights and
obligations of Waste Management are succeeded to in each case in
breach of Section 18 and Waste Management does not cure the
breach, or
(2) there have been no less than three (3) uncured Events of Default by
Waste Management under this Agreement which unduly adversely
impact the public health, safety and welfare.
Pursuant to this Section, the City must serve Waste Management with notice of its
exercise of the remedy under this Section 17.c to terminate this Agreement. Thereafter, Waste
Management shall have thirty (30) days to cure any of such Event or Events of Default. If Waste
Management fails to cure such breach, Event or Events of Default within thirty (30) days, the
City must obtain a final and non-appealable determination by a court of competent jurisdiction
that the events or circumstances in Section 17.c.(1) or Section 17.c.(2) have occurred. Waste
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Management agrees that the City shall not have an adequate remedy at law if the City terminates
the Agreement under this Section 17.c, and that the City shall be entitled to equitable relief,
including a preliminary and permanent injunction to enforce this Section 17.c.
d. All rights and remedies of the City set forth in this Agreement which shall
be cumulative, and no remedy available to the City shall be exclusive of any other remedy.
e. Except for Waste Management's obligation to pay the Host Benefit Fee to
the City, in no event shall either party, or its agents, employees, successors, assigns, consultants,
suppliers or contractors be liable to the other party under this Agreement or to its members,
officers, directors, partners, affiliates, agents, employees, successors, assigns, suppliers or
contractors for special, indirect, consequential, punitive or exemplary damages of any nature.or
kind whatsoever, including loss of profits or revenue, loss of contracts, cost of capital or claims
of customers, and each party hereby releases and covenants not to sue the other party therefore.
18. Assignment of Rights.
This Agreement shall be binding upon and inure to the benefit of the parties
hereto, and their respective permitted successors and assigns; provided however, Waste
Management shall not assign this Agreement, directly or indirectly, nor shall any person succeed
to the rights and obligations of Waste Management by a direct or indirect transfer of an
ownership interest in Waste Management without the prior written consent of the City, which
may not unreasonably withhold such prior consent.
19. Force Majeure.
Except for the obligations to pay amounts owed under this Agreement, neither
party shall be liable for its failure to perform under this Agreement to the extent due to strikes (of
a widespread and general nature), riots,war,terrorism, fire, and acts of God.
20
I
20. Authority to Enter into Agreement.
Waste Management and the City hereby represent and warrant to each other that
the individuals executing this Agreement in their official capacities have been duly authorized
and empowered to sign this Agreement. The City shall provide Waste Management with a
certified copy of the resolution of its City Council authorizing the execution of this Agreement
by the undersigned representatives of the City. Waste Management shall provide the City with
evidence of limited liability company action authorizing the execution of this Agreement by the
undersigned representatives of Waste Management.
21. Relationship of the Parties.
Nothing in this agreement shall be construed to create a joint venture, partnership,
association or employment relationship between the City and Waste Management.
22. Severability.
If any provision of this Agreement is held invalid by a court of competent
jurisdiction, the other provisions of this Agreement shall not be affected thereby.
23. Amendment.
No amendment, modification or change to this Agreement shall be effective
unless the same shall be in writing and duly executed by the parties.
24. Termination.
This Agreement shall terminate upon the occurrence of any of the foregoing (the
effective date of any of same being hereinafter called the "Termination Date"):
(a) The mutual written agreement of the parties to terminate;
(b) The date on which the Transfer Station on the Transfer Station Site
permanently ceases to operate, for whatever reason, including but not limited to,
21
Waste Management's decision to cease operations, which decision shall be in the
sole and exclusive discretion of Waste Management
(c) The permanent cessation of operations due to the final and uncontested
order of any federal, state or local governmental body, agency or judicial
authority.
In any event, and notwithstanding termination and/or termination of this Agreement, any
Host Benefit Fee which is due and owing to the City for Received Waste as of the
Termination Date shall continue to be payable by Waste Management to the City in
accordance with this Agreement and the obligation of Waste Management to make such
payment shall survive termination and/or expiration of this Agreement.
25. Notices.
All notices, demands, requests, consents or other communications required by, or
to be given pursuant to, this Agreement, shall be in writing and delivered to the intended
recipient, by personal service, registered or certified U.S. mail, return requested, postage prepaid,
or confirmed facsimile transmission, to the following addresses (which are subject to change by a
like prior notice):
a. If to the City:
City of Elgin, Illinois
Attention: Corporation Counsel
150 Dexter Court
Elgin, Illinois 60120-5555
Fax: (847) 931-5665
With a Copy to:
Baker& McKenzie
130 E. Randolph Drive
Chicago, Illinois 60601
22
Attn: James P. O'Brien, Esq.
Fax: (312) 861-2899
b. If to Waste Management:
Waste Management of Illinois, Inc.
1411 Opus Place, Suite 400
Downers Grove, Illinois 60515
Attention: Illinois Market Manager
Fax: (630) 241-1597
With a Copy to:
Waste Management of Illinois, Inc.
720 East Butterfield Road
Lombard, Illinois 60148
Attention: Area General Counsel
Fax: (630)-916-6280
With additional Copy to:
Peter C. Bazos, Esq.
Schnell, Bazos, Freeman, Kramer, Schuster &Vanek
1250 Larkin Avenue, Suite 100
Elgin,Illinois 60123
Fax: (847)-742-9777
26. Covenants Run With the Land.
The parties agree that the covenants, agreements, and understandings contained in
this Agreement, including without limitation the obligation to pay the Host Benefit Fee, touch
and concern the Transfer Station Site, and that such covenants, agreements, and understanding
shall run with the Transfer Station Site. Waste Management agrees that the City may prepare,
and Waste Management shall promptly execute, duplicate originals of an instrument, in
recordable form, which will constitute a Memorandum of Host City Agreement, attaching an
executed copy of this Agreement as an exhibit, and record such Memorandum in the Office of
the Cook County, Illinois Recorder of Deeds.
23
27. Financial Assurance.
Not less than ten (10) days prior to accepting any Waste at the Transfer Station,
Waste Management shall obtain, submit to the City, and maintain in accordance with this Section
27, financial assurance in an amount sufficient to cover the cost of disposing of the maximum
amount of waste stored at the Transfer Station and the costs of properly closing the Transfer
Station. Such financial assurance shall be in the form of a letter of credit, escrow account,
guaranty of a creditworthy guarantor (which may include Waste Management), or policy of
insurance, in each case reasonably satisfactory to the City. Such financial assurance must be
maintained as long as the Transfer Station is operating under this Agreement and for two (2)
years after termination and/or expiration of this Agreement. Waste Management agrees.that the
issuer or counterparty to such financial assurance must, at all times during the term of this
Agreement,be reasonably acceptable to the City.
28. Police Power Savings Clause.
Notwithstanding any provision herein to the contrary, nothing in this Agreement
shall abridge, impair, or affect the police powers of the City. Waste Management shall comply
with all applicable laws, regulations and ordinances (including the applicable ordinances of the
City).
29. Governing Law.
This Agreement shall be governed by the laws of the State of Illinois.
30. Joint Preparation. This Agreement is and shall be deemed and construed to be the
joint and collective work product of Waste Management and the City and, as such, this Agreement
shall not be construed against either party, as the otherwise purported drafter of same, by any court
of competent jurisdiction in order to resolve any inconsistency, ambiguity, vagueness or conflict, if
24
any, in the terms or provisions contained herein.
31. Filing of Siting Application. Waste Management covenants and agrees that it shall not file
its application with the City for siting approval of the Transfer Station on the Transfer Station Site
prior to September 16, 2004.
[signature page follows]
25
IN WITNESS WHEREOF, the City and Waste Management have caused this Host City
Agreement to be executed by their duly authorized representatives on the day and year written
above.
WASTE MANAGEMENT CITY OF ELGIN
OF ILLINOIS,INC.
By: By:
Its:���� P\COA Its:
Attest: Attest:
By: '' By: -Q-�.c�r�—
Its: R ezXt p.L, Its:
i
26
EXHIBIT A
CONCEPT PLAN
DEPICTING TRANSFER STATION SITE
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•
EXHIBIT B
AMENDMENT TO
WASTE HAULING CONTRACT
DRAFT 7/1/04
AMENDMENT TO AMENDED AGREEMENT FOR PROVISION OF
REFUSE, RECYCLABLES AND YARD WASTE COLLECTION SERVICES
THIS AMENDMENT AGREEMENT, made and entered into this 14th
day of July, 2004 , by and between the CITY OF ELGIN, an Illinois
municipal corporation (hereinafter referred to as the "City")
and WASTE MANAGEMENT OF ILLINOIS, INC. , a Delaware corporation
(hereinafter referred to as the "Contractor") .
WHEREAS, City and Contractor previously entered into an
Agreement for Provision of Refuse, Recyclables and Yard Waste
Collection Services, dated as of September 12, 2002, and
thereafter entered into an Amended .Agreement for Provision of
Refuse, Recyclables and Yard Waste Collection Services dated as
of March 31, 2004 , (such agreement dated September 12, 2002 , as
amended by the Amended Agreement dated March 31, 2004 is
hereinafter referred to as the "Subject Collection Agreement") ;
and
WHEREAS, the City and the Contractor are concurrently with
the entry into this Amendment Agreement entering into a Host
City Agreement regarding a proposed solid waste transfer station
south of Bluff City Boulevard (hereinafter referred to as the
"Subject Host City Agreement") ; and
WHEREAS, the City and the Contractor wish to further amend
the Subject Collection Agreement as ' provided in this Amendment
Agreement .
W\WORKG3667\Garbage Contract Amended-Waste Mgmt-7-1-04.doc 1
NOW, THEREFORE, for and in consideration of the mutual
premises contained herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows :
1 . That the Subject Collection Agreement is hereby
further amended as follows :
A. That Article 2, Section 5 of the Subject
Collection Agreement is hereby amended to read as follows :
"5 . CONTRACT TERM
The term of the Agreement shall be eight (8 )
years, and shall become effective on the lst day of
November 2002, and shall remain in full force and
effect through the 31St day of October 2010 . The City
shall have the option to extend the term of the
Agreement for an additional two (2) years effective on
the first day of November 2010 through the 31St day of
October 2012 . In the event the City wishes to
exercise such option to extend the term of the
Agreement the City shall provide the Contractor
written notice thereof on or before May 1, 2010 . "
B. That Article 2, Section 17 of the Subject
Collection Agreement is hereby amended to read as follows :
"17 . DISPOSAL
All solid waste collected shall be removed
from the City as soon as it has been collected; but,
W:\WORK\33667\Garba2e Contract Amended-Waste Mamt-7-1-04.doc 2
in any event, not later than noon of the date
following collection, and it shall not be disposed of
in violation of any state, federal, city or county
laws or regulations . Prior to the commencement of
this contract, the Contractor shall notify the City in
writing of the Disposal Sites that will be used to
process or dispose of solid waste collected under this
Agreement. The Contractor shall notify the City in
writing of any changes in Disposal Sites used within
thirty days of the proposed change .
The City reserves and has the right and
option to designate specific Disposal Sites, including
but not limited to solid waste transfer stations, to
be utilized by the Contractor for the processing or
disposition of the solid waste collected by the
Contractor pursuant to this Agreement . In the event
the City designates a specific Disposal Site to be
utilized by the Contractor such designation shall be
in writing. In the event the City designates a
specific Disposal Site to be utilized by the
Contractor, the Contractor shall commence utilizing
such Disposal Site for the processing and disposition
of solid waste collected by the Contractor pursuant to
this Agreement within thirty (30) days of such
designation by the City. In the event the City
WANVORKW667\Garbaee Contract Amended-Waste Memt-7-1-04.doc 3
designates a specific Disposal Site such designated
Disposal Site shall be located within the corporate
limits of the City of Elgin . In the event the City
designates a specific Disposal Site pursuant to this
section and such disposal site is not owned,
controlled or operated by the Contractor or an
affiliated company of the Contractor, payments due
from the City to the Contractor pursuant to this
Agreement will be adjusted, up or down, based upon the
actual change in disposal costs . It is agreed and
understood that the provisions regarding adjustment of
payments to the Contractor as provided in this section
shall only apply in the event the City designates a
specific disposal site pursuant. to this section which
is not owned, controlled or operated by the Contractor
or an affiliated company of the Contractor . Changes
in disposal costs will be calculated based upon the
Contractor' s actual per ton costs for disposal at the
disposal site being used by the Contractor for the
processing or disposition of solid waste collected by
the Contractor pursuant to this Agreement as compared
to the per ton rate that the Contractor would be
charged to process or dispose of solid waste collected
by the Contractor pursuant to this Agreement at the
Disposal Site designated by the City. The parties
W:\WORKG3667\Garbaee Contract Amended-Waste M2mt-7-I-04.doc 4
shall determine on a quarterly basis any additional
disposal costs incurred or disposal cost savings
realized by the Contractor in utilizing a Disposal
Site designated by the City with such costs or savings
to be calculated as provided in this section . In the
event it is determined based upon the calculation as
provided in this Section that the Contractor has
incurred additional disposal costs in utilizing a
Disposal Site designated by the City, the next payment
due from the City to the Contractor for the services
provided by the Contractor pursuant to this Agreement
will be increased in the amount of such additional
disposal costs for the preceding quarter. In the
event it is determined based upon the calculation
provided in this Section that the Contractor has
realized disposal cost savings in utilizing a Disposal
Site designated by the City, the next payment due from
the City to the Contractor for the services provided
by the Contractor pursuant to this Agreement will be
decreased in the amount of such disposal cost savings
realized by the Contractor for the preceding quarter.
The parties agree to provide the other party with
reasonable documentation necessary for the parties to
make the determination on any additional disposal
costs or disposal cost savings to the Contractor
W:\WORK\33667\Garba2e Contract Amended-Waste Memt-7-1-04.doc
regarding the use of a Disposal Site specified by the
City. In the event the City designates a specific
Disposal Site to be utilized by the Contractor, and
such Disposal Site is not owned, controlled or
operated by the Contractor or an affiliated company of
the Contractor, it is agreed that the provisions of
Article 2, Section 9 entitled "CERCLA INDEMNIFICATION"
shall not apply to the solid waste processed and
disposed of by the Contractor at such a Disposal Site
designated by the City. The City has the right and
may at any time rescind any previous designation of
specific Disposal Sites to ' be utilized by the
Contractor. In the event the City rescinds the
designation of a Disposal Site to be utilized by the
Contractor such rescission shall be in writing. In
the event the City rescinds the designation of a
Disposal Site to be utilized by the Contractor, the
provisions regarding adjustment of payments to the
Contractor and the non-applicability of Article 2,
Section 9 entitled "CERCLA INDEMNIFICATION" as
provided in this Section 17 shall no longer apply to
such previously designated Disposal Site . "
C. That Article 3, Section 9 of the Subject
Collection Agreement is hereby amended to read as follows :
WAWORKU3667\0arbage Contract Amended-Waste Mgmt-7-I-04.doc 6
\\9 . BASE SERVICE RATES
The City shall pay the Contractor for the
listed services in Article 3, Sections 1 through 8,
and for all of the other services and provisions of
this Agreement for which a separate price and payment
is not specified, according to the following schedule :
(a) Single-Family $10 . 82/month/household
(b) Multi-Family $ 7 . 87/month/household
(c) Roll-Off Truck
and Driver $75 . 00/hour
The Contractor shall provide the Spring Yard
Waste Collection services described in Article 3,
Section 6 at no additional charge or cost to the City
or residents it being agreed and understood that the
cost and charge for such Spring Yard Waste Collection
services has been incorporated into the base service
rates to be paid to the Contractor pursuant to this
Agreement . "
D. That Article 3, Section 11 (a) of the Subject
Collection Agreement is hereby amended to read as follows :
(a) Refuse Carts
The Contractor shall provide one (1) refuse
cart for each dwelling unit in every eligible curbside
household. The size of the refuse cart shall be 35,
64 or 96-gallon carts, as determined by the City. All
WAW0RK\33667\Garbage Contract Amended-Waste Memt-7-1-04.doc 7
refuse carts distributed to residents as part of this
contract shall become the City' s property including
the remaining warranty. Any maintenance or replacement
of refuse carts shall remain the Contractor' s
responsibility at Contractor' s cost until the
expiration of this Agreement . There shall be no
additional charge or cost to the City or residents for
such refuse carts it being agreed and understood that
the costs and charge for such refuse carts has been
incorporated into the base service rates to be paid to
the Contractor pursuant to this Agreement . "
2 . That except as amended by this Amendment Agreement the
Subject Collection Agreement between the City and the Contractor
shall remain in full force and effect . In the event of any
conflict between the terms of this Amendment Agreement and the
terms of the Subject Collection Agreement the terms of this
Amendment Agreement shall control .
3. That this Amendment Agreement to the Subject
Collection Agreement is contingent upon the City and the
Contractor also concurrently entering into the Subject Host City
Agreement for the proposed solid waste transfer station south of
Bluff City Boulevard, Elgin, Illinois .
4 . That this Amendment Agreement is further contingent
upon and shall become effective upon Contractor, or an entity
owned, controlled, or operated by the Contractor, or an
W:\WORK\33667\Garba2e Contract Amended-Waste M2mt-7-1-04.doc 8
affiliated company of the Contractor, or the successors and/or
assigns of any such entity receiving final and non-appealable
approval for siting of the proposed solid waste transfer station
referred to and described in the Subject Host City Agreement
being entered into between the parties hereto concurrently with
the entering into of this Amendment Agreement to the Subject
Collection Agreement .
IN WITNESS WHEREOF the parties hereto have entered into and
executed this Amendment Agreement on the date and year first
written above .
CITY OF ELGIN WASTE MANAGEMENT OF ILLINOIS, INC.
By By
Mayor its
Attest : Attest :
City Clerk Its
F:\Legal Dept\Agreement\Garbage Contract Amended-waste Mgmt-7-1-04.doc
V':\WOR U3667\Garbage Contract Amended-Waste Memt-7-1-04.doc g