EXHIBIT 10.69
LEACHATE TREATMENT AGREEMENT
THIS LEACHATE TREATMENT AGREEMENT ("Agreement") is made as of May
8, 1998, by and between CITY MANAGEMENT CORPORATION, a Michigan corporation
("City"), and USL CITY ENVIRONMENTAL, INC., a Michigan corporation ("Liquids").
W I T N E S S E T H:
WHEREAS, Liquids operates a hazardous and non-hazardous
commercial liquid waste transportation, treatment, processing and disposal
business in the Detroit, Michigan area (the "Business") and, in connection
therewith, treats non-hazardous leachate materials;
WHEREAS, City operates non-hazardous solid waste landfills in the
Detroit, Michigan area and, in connection therewith, generates leachate
material;
WHEREAS, on the date hereof, Liquids has acquired certain assets
of City to be used in connection with the Business (the "Acquisition");
WHEREAS, as part of the Acquisition, Liquids has agreed to treat
Acceptable Material (hereinafter defined) generated by specified Detroit area
landfills operated by City or its affiliates on the terms and conditions set
forth herein;
NOW, THEREFORE, in consideration of the mutual benefits to be
derived from the Agreement and of the representations, warranties, covenants,
conditions and provisions hereinafter set forth, the parties hereto hereby agree
as follows:
1. DISPOSAL. Pursuant to the terms and conditions of this
Agreement, during the Term (hereinafter defined), City shall deliver to Liquids
all of its Acceptable Material generated by one or more Detroit area landfills
and Liquids agrees to accept for treatment all Acceptable Material delivered to
Liquids by City up to a maximum of 35,000,000 gallons per year (subject to
higher volumes if the parties agree on price as set forth in Section 3 below);
provided, however, that Liquids shall have the right to reject any material
which Liquids determines does not constitute Acceptable Material.
2. TERM. The term ("Term") of this Agreement shall commence on
the date hereof and continue for a term of 20 years, unless sooner terminated as
provided herein.
3. PRICE. (a) The price for each gallon of Acceptable Material
delivered by City to Liquids shall be 3/4 of a cent per
gallon up to a maximum of 35,000,000 gallons per year. Treatment rates for
leachate in excess of 35,000,000 gallons shall be negotiated by the parties in
good faith.
(b) PRICE INCREASE FOR CPI INDEX. The price set forth in clause
(a) above shall escalate annually on each January 1st during the Term by
an amount equal to the increase in the CPI Index which results from
comparing the CPI for All Urban Consumers as of May 1, 1998 with such
CPI for each succeeding May 1st.
(c) ADJUSTMENT TO PRICE. In the event that during the Term of
this Agreement there is levied upon the operations of Liquids any
extraordinary tax, assessment or charge by any governmental authority or
there occurs any substantial change in regulatory requirements related
to the operation of the Business and having general applicability to the
waste disposal business which includes the Business (but not related to
any action, omission or condition of Liquids), which tax assessment or
charge increases in a material manner Liquids' annual cost to operate
the Business over Liquids' cost of operations of the Business for the
immediately preceding calendar year (in each case, an "Extraordinary
Levy"), such amounts shall be added to the price to be paid by City
hereunder on a pro rata basis reflecting the proportion of the volume of
Acceptable Material delivered by City hereunder to the total volume of
Acceptable Material received by Liquids during a like period, subject to
subparagraph (d) below.
(d) NOTICE OF EXTRAORDINARY LEVIES. Liquids shall notify City of
any price increase for Extraordinary Levies at least 30 days in advance
of the effective date thereof (except in the case of Extraordinary
Levies where Liquids has received less than 30 days notice in which case
the necessary advance notice period to City shall be the same length as
that which was received by Liquids).
4. PAYMENT. Liquids shall issue a ticket to each City vehicle
delivering Acceptable Material to Liquids, which ticket shall show the date,
vehicle number and quantity of Acceptable Material to establish charges. On a
monthly basis, Liquids shall send City a statement of charges. City agrees to
pay all charges due and owing hereunder to Liquids on or before the 30th day
following the date of receipt of a statement of charges.
5. TITLE.
(a) TITLE. Title to the Acceptable Material delivered by City
shall pass to Liquids at the time the Acceptable Material is removed
from the transporting vehicles and accepted by Liquids as Acceptable
Material and all risk and responsibility for such Acceptable Material,
including
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liability for any release or threatened release thereof under any
federal, state or local environmental law, shall thereafter rest with
Liquids. Title to and all risks and responsibilities for material which
does not conform to the definition of Acceptable Material hereunder
shall remain with City and shall not be deemed to pass to Liquids.
(b) SURVIVAL. The obligations set forth in this Section 5 shall
survive the performance and termination of this Agreement.
6. UNACCEPTABLE WASTE. City agrees that it will not deliver to
Liquids any Hazardous Waste (hereinafter defined) or any other material which is
not Acceptable Material. If City delivers any material which does not conform to
the definition of Acceptable Material under this Agreement and to the
requirements of any applicable governmental law, regulation, rule or order, then
(in addition to Liquids's other remedies pursuant hereto or available at law or
in equity), if Liquids notifies City of the delivery of such nonconforming
materials, which notice shall be made promptly upon Liquids's determination of
such nonconformity, City shall promptly make available at the Landfill a vehicle
suitable for transporting such nonconforming material, shall promptly load such
nonconforming material onto the vehicle and shall promptly remove such
nonconforming material from the Liquids facility, all at City's expense. City
shall reimburse Liquids for any reasonable and necessary costs incurred by
Liquids in connection with the removal of non-conforming material.
7. REPRESENTATIONS AND WARRANTIES OF LIQUIDS. Liquids represents
and warrants that at the date hereof:
(a) ORGANIZATION. Liquids is duly organized, validly existing and
in good standing under the laws of the State of Michigan, it has all
right, power and authority to operate the Business and to carry on its
business as contemplated by this Agreement in the State of Michigan, and
it has all requisite power and authority to execute and perform this
Agreement.
(b) OPERATION OF BUSINESS. Liquids or its affiliates are the
lawful owner of the Business, and have obtained or have lawful rights to
use all federal, state and local licenses, permits and approvals, all
agreements relating to such licenses, permits and approvals to operate
the Business as currently operated and as contemplated by this Agreement
and are currently operating in material compliance with all applicable
federal, state and local laws, ordinances, requirements, orders,
directives, rules and regulations applicable to the Business.
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The parties agree that the foregoing representations and warranties shall
survive the termination of this Agreement for a period of two years.
8. REPRESENTATIONS AND WARRANTIES OF CITY. City represents and
warrants that at the date hereof:
(a) ORGANIZATION. City is duly organized, validly existing and in
good standing under the laws of the State of Michigan, it has all right,
power and authority to carry on its business as now conducted and as
contemplated by this Agreement in the State of Michigan, and it has all
requisite power and authority to execute and perform this Agreement.
(b) OPERATION. City has obtained all required state licenses,
permits and approvals to deliver the Acceptable Material to Liquids as
contemplated hereunder, and it is currently operating in material
compliance with all such licenses, permits and approvals.
The parties agree that the foregoing representations and warranties shall
survive the termination of this Agreement for a period of two years.
9. COVENANTS.
(a) COVENANTS OF LIQUIDS. Liquids covenants that:
(i) At all times during the Term of this Agreement,
Liquids shall cause the Business to be operated in material
compliance with all required federal, state and local licenses,
permits and approvals and all federal, state and local laws,
ordinances, requirements, orders, directives, rules and
regulations.
(ii) The current operating hours are from ____ a.m. to ____
p.m., Mondays through Fridays and from ____ a.m. to ____ p.m. on
Saturdays, excluding holidays. If the foregoing operating hours
shall be expanded or restricted, then Liquids shall be open for
operation and acceptance of Acceptable Material from City during
such expanded or reduced hours.
(b) COVENANTS OF CITY. City covenants that:
(i) City acknowledges the right of Liquids to make, change
and enforce reasonable rules and regulations regarding the
disposal of Acceptable Material. City covenants to abide by such
rules and regulations as established from time to time upon
receipt of notice of such rules and regulations.
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10. INDEMNIFICATION.
(a) INDEMNIFICATION BY LIQUIDS. Liquids agrees to indemnify and
hold harmless City and its subsidiaries and affiliates, and their
respective directors, officers, agents and employees (the "City
Indemnified Parties") from and against any and all liabilities, losses,
damages, costs, expenses and disbursements, including reasonable legal
fees and expenses, arising out of any claim or loss of or damage to
property and injuries to or death of any persons, including any City
Indemnified Parties, environmental response costs caused (i) by the
breach of any term, covenant, agreement or undertaking herein of
Liquids, (ii) by the negligence or willful misconduct of Liquids; or
(iii) by the release or threatened release of any Acceptable Materials
delivered by City to Liquids.
(b) INDEMNIFICATION BY CITY. City agrees to indemnify and hold
harmless Liquids and its subsidiaries and affiliates, and their
respective directors, officers, agents and employees (the "Liquids
Indemnified Parties") from and against any and all liabilities, losses,
damages, costs, expenses and disbursements, including reasonable legal
fees and expenses, arising out of any claim or loss of or damage to
property and injuries to or death of any persons, including any Liquids
Indemnified Parties, caused (i) by the breach of any term, covenant,
agreement or undertaking herein of City, or (ii) by the negligence or
willful misconduct of City.
11. TERMINATION.
(a) TERMINATION BY CITY. City shall have the right to terminate
this Agreement in the event of the occurrence and continuance of any of
the following:
(i) The material breach by Liquids of any of the terms,
conditions or provisions of this Agreement, which breach is not
cured within 30 days after notice from City of same is given to
Liquids; provided, however, that if the nature of the breach is
such that more than 30 days are required for its cure, then City
shall not be entitled to terminate this Agreement with respect to
such breach if Liquids commences said cure within such 30 day
period and thereafter diligently prosecutes same to completion;
(ii) The commencement of any voluntary or involuntary
bankruptcy or insolvency proceedings against Liquids or if
reorganization proceedings are commenced against Liquids or any
such other party under any state or federal debtor relief
statutes; provided that any such
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proceedings are not dismissed within 90 days after being
instituted;
(iii) The existence and continuation of an event of Force
Majeure (hereinafter defined) for more than 90 days;
(iv) The enactment, adoption, promulgation, amendment or
modification, after the date hereof, of any federal, state or
local law, regulation, ordinance, code, rule or similar
legislation, existing as of the date hereof, which results in the
illegality or impossibility of the performance by City of its
rights or obligations as provided herein; including, without
limitation, the implementation directly, or indirectly through
licensing or similar requirements or otherwise, of flow control
or other restrictions, conditions, charges or assessments on the
movement of Acceptable Material outside the geographical borders
of the governmental entity where generated; or
(v) The order, final action, injunction and/or judgment of
any federal, state or local court, administrative agency or
governmental body with appropriate jurisdiction which results in
the illegality or impossibility of the performance by City of its
rights or obligations as provided herein; provided that such
order,judgment, final action or injunction shall not be the
result of the willful or negligent action or inaction of City.
For purposes of this provision, neither the contesting in good
faith of any such order or judgment, nor the failure to so
contest shall constitute or be construed as a willful or
negligent action or inaction.
(b) TERMINATION BY LIQUIDS. Liquids shall have the right to
terminate this Agreement in the event of the occurrence and continuation
of any of the following:
(i) The failure of City to comply with any payment
obligation under this Agreement within 30 days of the due date
for each such payment;
(ii) The material breach by City of any of the terms,
conditions or provisions of this Agreement, which breach is not
cured within 30 days after notice from Liquids of same is given
to City; provided, however, that if the nature of said breach is
such that more than 30 days are required for its cure, then
Liquids shall not be entitled to terminate this Agreement with
respect to such breach if City commences said cure within such 30
day period and thereafter diligently prosecutes same to
completion within 90 days after such notice;
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(iii) The existence and continuation of an event of Force
Majeure for more than 90 days;
(iv) The commencement of any voluntary or involuntary
bankruptcy or insolvency proceedings against City, or if
reorganization proceedings against City are commenced against
City under any state or federal debtor relief statute; provided
that any such proceedings are not dismissed within 90 days after
being instituted; or
(v) The enactment, adoption, promulgation, amendment or
modification, after the date hereof, of any federal, state or
local law, regulation, ordinance, code, rule or similar
legislation, existing as of the date hereof, which results in the
illegality or impossibility of the performance by Liquids of its
rights or obligations as provided herein; including, without
limitation, the implementation directly, or indirectly through
licensing or similar requirements or otherwise, or other
restrictions, conditions, changes or assessments on the movement
of Acceptable Material outside the geographical borders of the
governmental entity where generated; or
(vi) The order, final action, injunction and/or judgment
of any federal, state or local court, administrative agency or
governmental body with appropriate jurisdiction which results in
the illegality or impossibility of performance by Liquids of its
rights or obligations as provided herein; provided that such
order, judgment, final action or injunction shall not be the
result of the unlawful or negligent action or inaction of
Liquids. For purposes of this provision, neither the contesting
in good faith of any such order or judgment, nor the failure to
so contest shall constitute or be construed as an unlawful or
negligent action or inaction.
(c) EFFECT OF TERMINATION. Termination of this Agreement shall
not result in the termination of any obligation of any party hereunder
that has accrued at the time of termination, and in no event shall the
termination of this Agreement operate to excuse any obligation of any
party for breach of a representation or warranty under this Agreement or
failure to perform under the indemnity provisions of this Agreement, all
of which provisions shall survive any termination of the Agreement by
any party hereto.
12. CERTAIN DEFINITIONS. For purposes of this Agreement, the
following terms shall have the meanings set forth below:
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(a) "Acceptable Material" means any leachate that is of the same
or materially similar nature and parameters as the leachate currently
being generated by City; provided, however, Acceptable Material shall
not include:
(i) Hazardous Waste, as herein defined; or
(ii) any waste material which is required by any governmental
authority or by its general nature to be handled or disposed of
other than in accordance with the normal procedures of the
business as existing on the date hereof or as amended from time
to time; or
(iii) waste material which does not conform to the description
of waste materials which the Business is permitted to dispose of
under its permit, operating license and other applicable
requirements.
(b) "Hazardous Waste" means all waste defined as such in 42 USC
ss.6921, in MCLA 324.11103(3), or in the associated regulations as
amended from time to time.
13. MISCELLANEOUS.
(a) CONFIDENTIALITY. Each party hereto agrees that the terms of
this Agreement are confidential and each party agrees not to disclose
the terms hereof to any other person or entity whatsoever, nor to allow
any of its employees, directors, agents, contractors or other persons
within such party's control to so disclose, except if required to do so
by law. The violation of this provision shall be deemed to be a material
breach of this Agreement entitling the aggrieved party to terminate this
Agreement immediately without any grace period which may otherwise be
set forth herein for a breach of this Agreement.
(b) NOTICES. All notices, requests, demands and other
communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given if delivered by hand, by
overnight courier, by facsimile transmission or by certified or
registered United States mail, return receipt requested, with proper
postage prepaid as follows:
(i) To Liquids:
U S Liquids Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
ATTN: Xxxxx Xxxxxx
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with a copy to:
U S Liquids Inc.
000 X. Xxx Xxxxxxx Xxxxxxx Xxxx
Xxxxx 000
Xxxxxxx, XX 00000
ATTN: W. Xxxxxxx Xxx
(ii) If to City:
USA Waste Services, Inc.
0000 Xxxxxx Xxxxxx,
Xxxxx 0000
Xxxxxxx, XX 00000
Attn: General Counsel
with a copy to:
USA Waste Services, Inc.
Park West Two
Suite 420
0000 Xxxxx Xxxx Xx.
Xxxxxxxxxx, XX 00000
ATTN: Regional Vice President
or to such other address as the parties listed immediately above shall have last
designated by notice to the other listed parties. Any notice given by personal
delivery or facsimile transmission shall be deemed to have been delivered on the
date of the receipt of such delivery or transmission at the address set forth
above (or such other address designated pursuant hereto) and any notice given by
United States mail shall be deemed to have been delivered in the United States
postal system. Notice in writing may be given by a method other than as
described above and such notice shall be deemed delivered on the date actually
received.
(c) RELATIONSHIP OF PARTIES. This Agreement shall not in any
manner be construed so as to create the relationship of principal and
agent or of partnership or joint venture or of any associate between
City and Liquids. The parties hereto agree to act as independent
contractors, and, as such, except as otherwise specifically set forth in
this Agreement, each party shall be liable for its own business
operation, insurance, taxes, licenses, permits, expenses, and all other
liabilities.
(d) ASSIGNMENT. This Agreement may not be assigned by either
party without the prior written consent of the other party. This
Agreement shall be binding on and shall inure to the benefit of the
parties hereto and their permitted successors and assigns.
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(e) SEVERABILITY; REMEDIES CUMULATIVE. If any term, covenant,
condition or provision of this Agreement or the application thereof to
any person or circumstance shall, at any time or to any extent, be
invalid or unenforceable, the remainder of this Agreement, or the
application of such term or provision to persons or circumstances other
than those to which it is held invalid or unenforceable, shall not be
affected thereby, and each term, covenant, condition and provision of
this Agreement shall be valid and enforceable to the fullest extent
permitted by law. No right, remedy or election give by any term of this
Agreement shall be deemed exclusive but each shall be cumulative with
all rights, remedies and elections available at law or in equity.
(f) FORCE MAJEURE. No party shall be liable, for its failure to
perform any of its obligations hereunder nor shall it be deemed a
default under this Agreement if a party fails to perform any of its
obligations hereunder, in any case in which such failure is caused
directly or indirectly by an event of Force Majeure; except that the
failure to pay money when due shall not be excused as a result of the
effect of this Section. For purposes of this Agreement, "Force Majeure"
shall mean any act of God; flood; fire; explosion; storm; strike;
lockout; war; insurrection; riot; the order or judgment or other act of
any federal or state court, administrative agency or governmental office
or body which adversely affects the obligations of either party
hereunder; the denial, loss, suspension, expiration, termination or
failure of renewal of any permit, license or other governmental approval
required to operate the Business; the adoption or change (including a
change in interpretation) of any law, rule or regulation adversely
affecting the obligations of either party hereunder; breakage or
accidents to machinery or equipment; or delays in obtaining, or
reductions or shortages, of supplies, materials, equipment, or fuel
necessary to Liquids's performance hereunder.
(g) NUMBER, GENDER AND HEADINGS. Wherever herein used, the
singular number shall include the plural and the masculine gender shall
include the feminine and neuter genders, and vice versa, as the context
shall require. The headings used herein are for reference and
convenience only and shall not enter into the interpretation hereof.
(h) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall be an original but all of which
together shall constitute one and the same instrument.
(i) AMENDMENT AND WAIVER. This Agreement shall not be altered,
modified or otherwise amended except by a writing executed by the party
against who the modified or amended term
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or provision is sought to be enforced. Any failure on the part of any
party to this Agreement at any time to require the performance by any
other party to this Agreement at any time to require the performance by
any other party of any term or provision hereof, even if known, shall in
no way affect the right thereafter to enforce the same (except that no
party may enforce any rights arising from a breach of this Agreement,
which breach has been cured), nor shall it be taken or held to be a
waiver of any succeeding breach.
(j) GOVERNING LAW. This Agreement shall be construed in
accordance with, and governed by, the laws of the State of
Michigan.
(k) TIME OF THE ESSENCE. Time is of the essence of this
Agreement.
(l) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement and understanding between the parties hereto with respect to
the subject matter hereof and supersedes any prior agreement,
representation or understanding with respect thereto.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be executed and delivered under seal by the duly authorized
officers of each such party, all as of the day and year first above written.
CITY MANAGEMENT CORPORATION
By:__________________________
Its:_________________________
USL CITY ENVIRONMENTAL, INC.
By:__________________________
Its:_________________________
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