Exhibit 3.2.13
DISPOSAL AGREEMENT
THIS DISPOSAL AGREEMENT (this "Agreement") is entered into this 4th day of
September, 1998, by and among XXXXXXXX TECHNOLOGIES OF GEORGIA, INC., a Georgia
corporation ("XxxxxXxx"); UNITED WASTE SERVICE, INC., a Georgia corporation
("United"), and PINE RIDGE RECYCLING, INC. a Georgia corporation ("PRR").
WHEREAS, on the date hereof, pursuant to that certain Asset Purchase
Agreement, dated as of September 4, 1998 (the "Asset Purchase Agreement")
between XxxxxXxx and United, XxxxxXxx acquired from United certain assets used
in the operation of a scrap tire collection and processing business, part of the
operations of which are conducted at a site in Lawrenceville, Georgia (the
"Lawrenceville Site").
WHEREAS, XxxxxXxx owns and operates a scrap tire collection and processing
business in Xxxxxxx, Xxxxxxx (the "Jackson Site").
WHEREAS, an affiliate of United, PRR, owns and operates a landfill in
Griffin, Georgia, known as the "Pine Ridge Landfill" and operates a landfill in
Winder, Georgia, known as the "Oak Grove Landfill", (hereinafter the Pine Ridge
Landfill and the Oak Grove Landfill are collectively referred to as the
"Landfills").
WHEREAS, one of the conditions to closing the transactions contemplated by
the Asset Purchase Agreement is that the parties hereto enter into this
Agreement providing for the disposal of solid waste from the Lawrenceville Site
and the Xxxxxxx Site upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of these premises and other good and
valuable consideration set forth herein and in the Asset Purchase Agreement, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
each intending to be legally bound, agree as follows:
1. Definitions. For the purpose of this Agreement, the following terms
shall have the meanings set forth below:
(a) "Agreement" means this Agreement between XxxxxXxx, United and
PRR, as modified, supplemented or restated from time to time.
(b) "Effective Date" means the date first above written.
(c) "Force Majeure" means any event relied upon by United or PRR, as
justification for delay in or excuse from complying with any obligation required
of United or PRR under this Agreement, which event is beyond the control of
United or PRR or its agents
relying thereon, including, without limitation: (i) an act of God, landslide,
lightning, earthquake, fire, explosion, storm, flood or similar occurrence; (ii)
any act of any federal, state, county or local court, administrative agency or
governmental office or body that stays, invalidates, or otherwise affects this
Agreement with respect to the disposal of Waste; (iii) the denial, loss,
suspension, expiration, termination or failure of renewal of any permit, license
or other governmental approval required to dispose of Waste; (iv) the adoption
or change (including a change in interpretation or enforcement) of any federal,
state, county, or local law, rule, permit, regulation or ordinance after the
Effective Date hereof, applicable to the obligations hereunder, including,
without limitation such changes that have a substantial, material and adverse
effect on the cost of performing the contractual obligations herein; (v) the
institution of a legal or administrative action, or similar proceeding, by any
person or entity which delays or prevents any aspect of the disposal of Waste.
(d) "Hazardous Waste" means waste defined as, or of a character or
in sufficient quantity to be defined as a "hazardous waste" by the Resource
Conservation and Recovery Act, as amended, the laws of the State of Georgia or
any rules or regulations with respect thereto, or a "toxic substance" as defined
in the Toxic Substance Control Act, as amended, or any rules or regulations with
respect thereto, or any reportable quantity of a "hazardous substance" as
defined by the Comprehensive Environmental Response, Compensation and Liability
Act of 1980, as amended, or any rules or regulations with respect thereto,
including any waste whose storage, treatment, incineration or disposal requires
a special license or permit from an agency of the federal government or the
State of Georgia. Hazardous Waste also includes any substance that is, after the
Effective Date of this Agreement, deemed hazardous by any judicial or
governmental entity, body or agency having jurisdiction to make that
determination.
(e) "Landfills" means the landfill in Winder, Georgia, and the
landfill in Griffin, Georgia, operated by PRR as of the Effective Date hereof.
(f) "Regular Business Hours" means: with respect to the Pine Ridge
Landfill, the hours of 3:30 a.m. to 5:00 p.m. on Monday thru Friday and 6:00
a.m. to 10:00 a.m. on Saturday; and (ii) with respect to the Oak Grove Landfill,
the hours of 7:00 a.m. to 5:30 p.m. on Monday thru Friday and 7:00 a.m. to 12:00
p.m. on Saturday.
(g) "Ton" means 2,000 pounds.
(h) "Unacceptable Waste" means highly inflammable substances,
Hazardous Waste, liquid wastes, certain pathological and biological wastes,
explosives, radioactive materials, and other materials deemed by State and
Federal law, or in the reasonable discretion of United or PRR, to be dangerous
or threatening to the environment.
(i) "Waste" means any and all non-hazardous solid waste from the
Lawrenceville Site and from XxxxxXxx'x facility in Jackson Georgia delivered to
the Landfills by XxxxxXxx or its
2
designated representative. Waste shall include, but not be limited to, waste
from tire shredding activities which is comprised of wire and rubber as well as
solid rubber tires, forklift tires, conveyor belting, solid rubber items, dirt,
pallets, sheared (or "quartered") "off-the-road" tires and other non-hazardous
waste generated at any XxxxxXxx facility in Georgia.
2. Term. Unless earlier terminated pursuant to Section 5 below, the term
of this Agreement shall commence on the Effective Date, and shall remain in full
force for a period of two (2) years ("Initial Term").
3. Disposal Fees.
3.01 XxxxxXxx shall pay PRR disposal fees of $15.44 per Ton for the
disposal of Waste at the Landfills, inclusive of federal, state and local taxes,
fees or assessments that are levied on PRR with respect to the acceptance and
disposal of such Waste; provided, however, that PRR shall provide to XxxxxXxx
credit for disposal fees equal to $10,000.00; and provided further that any
documented increase over the current level of federal, state and local taxes,
fees or assessments that are currently levied on PRR with respect to the
acceptance and disposal of such Waste during the term of this Agreement shall be
payable by XxxxxXxx in addition to the disposal fees specified herein.
3.02 Should this Agreement be extended beyond the Initial Term, the
fees provided for in Section 3.01 shall be renegotiated by the parties upon the
expiration of the Initial Term, or any extension thereof, of this Agreement.
3.03 If PRR performs disposal services outside Regular Business
Hours or any additional services, PRR may adjust the disposal fees to offset the
additional costs in performing such services.
3.04 PRR shall send XxxxxXxx a monthly invoice for the disposal fees
incurred during the previous month. XxxxxXxx shall pay PRR the full amount
within thirty (30) days of receipt of the invoice. Unpaid invoices shall carry
interest at the rate of one and one half percent (1.5%) per month. The
obligations of XxxxxXxx to pay the disposal fees and other amounts payable
hereunder shall be absolute and unconditional. In the event that XxxxxXxx fails
to timely pay any outstanding amount, PRR may, in addition to any other remedies
available to PRR, terminate this Agreement by giving 15 days written notice to
XxxxxXxx. XxxxxXxx may cure by making full payment within the 15 day period
after receipt of notice.
3.05 In the event that (i) any Waste requires special handling or
management due to its composition or volume, or (ii) PRR agrees to dispose of
any Unacceptable Waste, XxxxxXxx and PRR shall determine in advance, on a case
by case basis, the charge to XxxxxXxx for PRR's disposal of such wastes. Payment
for such disposal shall be upon the same terms as the payment of other disposal
fees. The parties hereto agree that scrap residual generated by tire processing
activities and sheared pieces of "off-the-road" tires shall not be considered
Unacceptable Waste or Waste requiring special handling or management.
3
4. Delivery and Acceptance of Waste.
4.01 XxxxxXxx agrees to deliver to the Landfill only Waste generated
at and residing at the Lawrenceville Site. PRR represents and warrants that
there is no Unacceptable Waste located at the Lawrenceville Site as of the date
of this Agreement. XxxxxXxx also agrees that it will offer to deliver to PRR any
Waste generated by any other site operated by XxxxxXxx in the state of Georgia
before it delivers such Waste to any other landfill, provided, however, that the
disposal fees for such Waste shall not exceed the amount set forth in Section
3.01 hereof.
4.02 PRR shall have the right to weigh all vehicles delivering Waste
to the Landfill. At any time, PRR may confirm the tare weight of any vehicle
delivering Waste to the Landfill by or on behalf of XxxxxXxx.
4.03 XxxxxXxx acknowledges that PRR intends to reject waste that, in
PRR's reasonable determination, would be in violation of the Landfills' then
existing licenses or permits or would result in a violation of applicable
federal, state or local laws, regulations or ordinances. The foregoing
notwithstanding, PRR agrees that it will not reject any Waste from the
Lawrenceville Site that existed prior to the date of this Agreement.
4.04 Ownership of Waste delivered to the Landfill by or on behalf of
XxxxxXxx shall pass to and be accepted by PRR when the vehicle transporting the
Waste is fully unloaded at the Landfill. Ownership of Unacceptable Waste
delivered to the Landfill by or on behalf of XxxxxXxx shall not pass to PRR at
any time unless PRR agrees in advance to accept such Unacceptable Waste.
4.05 PRR may detain and inspect the contents of all vehicles owned
or operated by XxxxxXxx that are delivering Waste to the Landfill. XxxxxXxx
agrees to monitor and inspect on a regular basis the contents of its vehicles in
order to ensure that the Waste being delivered to the Landfill contains no
Unacceptable Waste.
4.06 XxxxxXxx shall not deliver any Unacceptable Waste to the
Landfill. If any Unacceptable Waste is delivered by or on behalf of XxxxxXxx,
PRR shall have the right to refuse or reject such waste, or, if not detected
prior to acceptance at the Landfill, PRR may remove such waste and assure its
proper disposal, all at XxxxxXxx'x expense, which expense XxxxxXxx agrees to
promptly pay upon presentation by PRR of an invoice setting forth the costs in
reasonable detail.
4.07 In addition to other remedies provided in this Agreement, PRR
may terminate this Agreement upon repeated deliveries or the one-time
intentional delivery of Unacceptable Waste by XxxxxXxx. PRR shall notify
XxxxxXxx in writing of its intention to terminate, and termination shall become
effective within 15 days of receipt.
4
4.08 PRR shall not be responsible for the transportation of Waste to
the Landfill. PRR shall not be responsible for the transportation or redelivery
to XxxxxXxx, or elsewhere, of any waste, including without limitation
Unacceptable Waste to the Landfill by or on behalf of XxxxxXxx.
5. Termination. PRR may terminate this Agreement upon (i) any breach or
default of this Agreement by XxxxxXxx or (ii) an event of Force Majeure that
continues unabated for a period of sixty (60) days and renders PRR unable,
wholly or in part, to carry out any of its obligations under this Agreement.
6. Representations and Warranties of XxxxxXxx. XxxxxXxx represents and
warrants to PRR as follows:
6.01 XxxxxXxx has full legal right, power and authority to enter
into and to fully and timely perform its obligations under this Agreement;
6.02 XxxxxXxx duly authorizes, executes and delivers this Agreement,
and acknowledges that this Agreement constitutes a valid and legally binding
obligation of XxxxxXxx.
6.03 XxxxxXxx or its designated representative has obtained all
necessary licenses and permits required to operate solid waste transportation
vehicles in order to deliver Waste to the Landfill.
7. Representations and Warranties of PRR. PRR represents and warrants to
XxxxxXxx as follows:
7.01 PRR has the full legal right, power and authority to enter into
and to fully and timely perform its obligations under this Agreement;
7.02 PRR has duly authorized the execution and delivery of this
Agreement, and acknowledges that this Agreement constitutes a valid and legally
binding obligation of PRR.
7.03 PRR has obtained all necessary licenses and permits required
under all applicable federal, state and local laws to operate the Landfills,
that such licenses and permits are in full force and effect, and that such
licenses and permits will not expire prior to the expiration of the Initial
Term.
8. Indemnification.
8.01 XxxxxXxx agrees to indemnify and save harmless PRR, its
officers, directors, shareholders, agents, employees and attorneys (collectively
"PRR") from any loss, claim, liability, penalty, fine, forfeiture, demand, cause
of action, suit and costs and expenses
5
incidental thereto (including cost of defense, settlement and reasonable
attorneys' fees) ("Indemnified Costs"), caused by or resulting from any
negligent or willful act or omission of XxxxxXxx, its agents or employees in
connection with this Agreement or resulting from a breach by XxxxxXxx of any of
the agreements, representations, or warranties of XxxxxXxx contained in this
Agreement. The indemnity obligation of XxxxxXxx under this Section shall survive
the expiration or termination of this Agreement subject to any applicable
statute of limitation.
8.02 PRR agrees to indemnify and save harmless XxxxxXxx, its
officers, directors, shareholders, agents, employees and attorneys (collectively
"XxxxxXxx") from any loss, claim, liability, penalty, fine, forfeiture, demand,
cause of action, suit and costs and expenses incidental thereto (including cost
of defense, settlement and reasonable attorneys' fees) ("Indemnified Costs"),
caused by or resulting from any negligent or willful act or omission of PRR, its
agents or employees in connection with this Agreement or resulting from a breach
by PRR of any of the agreements, representations, or warranties of PRR contained
in this Agreement. The indemnity obligation of PRR under this Section shall
survive the expiration or termination of this Agreement subject to any
applicable statute of limitation.
9. Notices. All notices or other communications to be given hereunder
shall be in writing and shall be by registered or certified United States mail,
return receipt requested, properly addressed as follows:
To PRR or United: Republic Services, Inc.
000 X.X. 0xx Xxxxxx
Xxxxx 0000
Xx. Xxxxxxxxxx, Xxxxxxx
Attn: General Counsel
To XxxxxXxx: XxxxxXxx Technologies of Georgia, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: General Manager
Fax: (000) 000-0000
With a copy to: XxxxxXxx Technologies, Inc.
0 Xxxxxxx Xxxx, Xxxxxxxx X
Xxxxxxxxx, Xxxxxxxxxxxxx 00000
Attn: President
Fax: (000) 000-0000
10. Miscellaneous. This Agreement sets forth the entire agreement and
understanding of the parties hereto with respect to the subject matter of this
Agreement and supersedes all arrangements, communications, representations or
warranties, whether oral or written, by any officer, employee or representative
of either party hereto. There are no restrictions, representations, warranties,
covenants or undertakings other than those expressly set forth or referred to
herein. This Agreement shall be binding upon and inure to the benefit of the
parties
6
hereto and their respective subsidiaries, successors and assigns; provided,
however, that no party may assign or transfer its rights or obligations under
this Agreement without the prior written consent of the other party, except that
PRR may assign to an affiliate its rights and obligations under this Agreement.
No waiver shall be effective unless it is in writing and is signed by the party
asserted to have granted the waiver. The provisions of this Agreement are
independent of and severable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that any provision
may be invalid or unenforceable in whole or in part. This Agreement shall be
construed and enforced in accordance with the laws of the State of Delaware. All
warranties and indemnifications contained herein shall survive the termination
of this Agreement.
IN WITNESS WHEREOF, the parties execute this Agreement as of the date
first above written.
XXXXXXXX TECHNOLOGIES OF GEORGIA, INC.
By: /s/ Xxxxxxx X. Xxxxx
------------------------------
Its: Treasurer
-----------------------------
PINE RIDGE RECYCLING, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Its: Assistant Secretary
-----------------------------
UNITED WASTE SERVICE, INC.
By: /s/ Xxxxx X. Xxxxxxx
------------------------------
Its: Assistant Secretary
-----------------------------
7
