Proposed Joint Amendment and restated operations agreement

JOINT AMENDMENT TO SECOND AMENDED AND RESTATED OPERATIONS AGREEMENT AND SECOND AMENDED AND RESTATED HOST AGREEMENT

 

This JOINT AMENDMENT TO SECOND AMENDED AND RESTATED OPERATIONS AGREEMENT AND SECOND AMENDED AND RESTATED HOST AGREEMENT

(hereinafter referred to as "Joint Amendment") is made and entered into this day of ________________, 2017 (the “Effective Date”) by and between WAYNE COUNTY, GEORGIA, a political subdivision organized and existing under the laws of the State of Georgia (hereinafter referred to as the “County”), the WAYNE COUNTY SOLID WASTE MANAGEMENT AUTHORITY, a public body corporate and politic created and existing under the laws of the State of Georgia acting through its Board of Directors (hereinafter referred

to as “Authority”), and REPUBLIC SERVICES OF GEORGIA, LIMITED PARTNERSHIP,

 

a Delaware limited liability partnership authorized to do business in the State of Georgia (hereinafter referred to as “Republic”), and collectively referred to herein as the “Parties” .

 

RECITA LS:

 

 

WHEREAS, on August 13, 1992 the County entered into a Host Agreement with the Authority, and on the same date the Authority entered into an Operations Agreement with a predecessor to Republic, which Agreements together provided for the development, construction, and operation of a municipal solid waste disposal facility in Wayne County, Georgia, presently known as the Broadhurst Environmental Landfill (hereinafter referred to as “BEL” or “the Landfill”); and

 

WHEREAS, Republic is the owner and operator of the BEL municipal solid waste disposal facility and holds Solid Waste Handling Permit No. 151-014D(SL) issued by the Georgia Department of Natural Resources Environmental Protection Division for the

 

development and operation of the BEL facility; and WHEREAS, on April 19, 2005, the County and the Authority entered into a Second Amended and Restated Host Agreement, and on the same date the Authority entered into a Second Amended and Restated Operations Agreement with Republic, which amended and restated Agreements incorporated in the original Host Agreement and Operations Agreement certain amendments adopted by the Parties prior to 2005 and additional amendments, and the Second Amended and Restated Host Agreement and the Second Amended and Restated Operations Agreement are hereafter referred to, respectively, as the “Host Agreement” and the “Operations Agreement; and

 

WHEREAS, Republic as the owner and operator of the BEL facility is a third-party beneficiary of certain of the rights granted to the Authority and the obligations undertaken by the County in the Host Agreement and Republic is entitled in accordance with law to enforce those rights and obligations of the Authority and the County in the Host Agreement, and the County and the Authority in the Host Agreement expressly agreed to the delegation by the Authority to Republic of certain of the Authority’s rights and obligations in the Host Agreement; and

 

WHEREAS, each of the Parties has mutually agreed to modify and amend certain terms and provisions in the Host Agreement and the Operations Agreement as set forth in this Joint Amendment.

 

NOW, THEREFORE, in consideration of the respective promises, agreements, covenants, and undertakings by each of the Parties in the Host Agreement and the Operations Agreement and under the terms of this Joint Amendment, the mutual benefits to the Parties arising from those

 

Agreements as amended by this Joint Amendment, and for other good and valuable considerations the receipt and sufficiency of which are hereby acknowledged by each of Parties, the Parties agree to amend the Host Agreement and the Operations Agreement and to be legally bound as follows:

 

 

 

  1. Definitions. The definitions of the following terms contained in each of Section 1 of the Host Agreement and Section 1 of the Operations Agreement are hereby deleted in their entirety, and the following definitions of those terms are substituted in the place thereof in Section 1 in each of those Agreements:

 

 

“Approved Area” shall mean the geographic area within those States located within the boundaries of Regions 1, 2, 3, and 4 of the United States Environmental Protection Agency as those boundaries exist on May 1, 2017.

 

 

“Excluded Waste” shall mean the following: highly flammable substances; Hazardous Waste as defined herein; liquid wastes as defined and restricted by Rule 391-3-4-.04 (9) of the Rules of the Georgia Department of Natural Resources Environmental Protection Division, with the exception of liquid wastes received for processing in an EPD-approved solidification process; pathological and biological wastes as defined in Rule 391-3-4-.15(2) of those Rules; explosives; radioactive materials subject to disposal restrictions in Chapter 391- 3-17 of those Rules; oil; petroleum or petroleum products as defined in Rule 391- 3-15-.01 of those Rules; Coal Combustion Residuals as defined herein; and, other waste materials excluded by any applicable federal or state Environmental Law or regulation applicable to the operation of the Facilities, or excluded by the terms and conditions of any federal or state permits governing the operation of the Facilities. This term shall also include such other waste materials which Republic finds in its sole discretion pose an unreasonable risk or danger to the operation or safety of the Facilities or to the environment.

 

 

“Specific Solid Waste” shall mean any Solid Waste materials other than those which are typically found in household, commercial or municipal refuse, including, without limitation, materials such as Industrial Waste, C&D Waste, storm debris from severe weather events or natural disasters, institutional waste, sludge, animal manure, residue from incineration excluding Coal Combustion Residuals, food processing wastes, dredging wastes, asbestos, or wastes which requires special or exceptional handling or approval from EPD, but shall not include General Solid Waste or Excluded Waste, as defined herein.

 

 

In addition to the foregoing amended definitions, Section 1 of the Host Agreement and Section 1 of the Operations Agreement are each hereby amended to add the following additional terms and their meanings:

 

 

“Coal Combustion Residuals” or “CCR’s”, shall have the meaning given that term in subsection (14) of Rule 391-3-4-.01 of the Rules of the Georgia Department of Natural Resources, Environmental Protection Division in effect on the date of this Joint Amendment and as may hereafter be amended.

 

“Commercial Waste” means all types of Solid Waste generated by stores, offices, restaurants, warehouses, and other non-manufacturing activities, as defined in O.C.G.A. §12-8-22(4.1) in effect on the date of this Joint Amendment and as may hereafter be amended.

 

 

Any undefined terms of art used herein or in the Host Agreement or the Operations Agreement shall have the meanings given those terms in Chapter 391-3-4 of the Rules of the Georgia Department of Natural Resources Environmental Protection Division in effect on the date of this Joint Amendment and as may hereafter be amended.

 

 

  1. Operation of the Facilities. Section 6 of the Operations Agreement is hereby amended

 

to modify and replace the provisions in subsection 6.8, and to include an additional subsection 6.17, an additional subsection 6.18, and an additional subsection 6.19, and those subsections, respectively, shall provide as follows:

6.8 Audit. The Authority shall have the right upon reasonable advance notice

 

to Republic, at the Authority’s expense, to audit Republic’s records relating to the types and volumes of Solid Waste being processed or disposed of at the Facilities and the Tipping Fees paid by Persons within the County who utilize the Landfill for disposal of General Solid Waste pursuant to an agreement with Republic; provided, however, such audit shall not unreasonably interfere with the ongoing operations of the Facilities.

Republic shall not be required to provide to the Authority confidential proprietary documents or information of Republic.

 

    1. Volume Limitation.

 

      1. ) Republic agrees that, commencing on January 1, 2018, the average daily tonnage of Solid Waste disposed in the Landfill shall not exceed 6000 Tons. As used herein the average daily tonnage shall be calculated for each five (5) year period following the Effective Date of this Joint Amendment based on the total aggregate Tons of Solid Waste disposed in the Landfill during the five (5) year period, divided by five (5) calendar years of 365 days each . (By way of example, if the actual average daily tonnage of Solid Waste disposed in the Landfill in the first year of the five-year period were 2000 Tons, and the actual average daily tonnage disposed in the Landfill in the second year were 4000 Tons, the average daily tonnage of Solid Waste that may be disposed in the Landfill during any or all of the succeeding years during the five-year period may exceed 6000 Tons, provided the average Tons per day of waste received for disposal over the full five (5) year period does not exceed the allowable average daily tonnage limitation of 6000 Tons.) Republic will review this average daily tonnage limitation with the County and the Authority at the end of each such five-year period to determine whether this average daily tonnage limitation should be modified considering the volumes of Solid Waste disposed in the Landfill during the preceding five-year period and all other relevant circumstances at such time. The County and the Authority agree that approval of a reasonable request by Republic to modify the average daily tonnage limitation will not be unreasonably withheld.

 

      1. Notwithstanding the provisions in subsection (a), Republic shall have the right to request that certain volumes of Solid Waste received for disposal in the Landfill shall not be counted toward the average daily tonnage limitation in subsection (a), in the following circumstances: (i) in the event a severe weather event (e.g., tornado or hurricane) or natural disaster results in an unanticipated need for disposal of additional significant volumes of Solid Waste at BEL on a temporary basis, or (ii) in the event Republic desires to contract for a particular special project for Solid Waste disposal which would result in additional significant volumes of Solid Waste being received for disposal in the Landfill on a temporary basis during such special project for which the County would receive payment of Host Fees. The County and the Authority will have the right to reasonably request additional information from Republic pertaining to any such request. The County and the Authority agree that approval of such a request by Republic shall not be unreasonably withheld.

 

 

Landfill Operations Annual Update. The County shall have the right during

 

the Term of the Host Agreement and the Operations Agreement to require that Republic, on an annual basis beginning in 2018, attend one regular public meeting of the Wayne County Board of Commissioners, or a joint meeting of the Board of Commissioners and the Authority, for the purpose of providing recent information to the public concerning the Landfill and its operations. Republic shall not be required to provide information that is confidential or proprietary to Republic, or information that does not reasonably pertain to the landfill operations at BEL or to the terms of the Host Agreement or the Operations Agreement. Republic further agrees that no later than ninety (90) days following execution of this Joint Amendment, it will undertake through the BEL website or other appropriate means to provide the public additional information concerning provisions of the solid waste handling permit issued by EPD for the Landfill.

 

 

    1. Landfill Gas

 

      1. Sale of Landfill Gas. As used in this Section, “Landfill Gas” means

 

methane gas and other gas or byproducts generated from the decomposition of waste deposited in the Landfill and collected by any landfill gas collection and management system installed in the Landfill, and includes the utilization of Landfill Gas to generate a sellable energy product (including but limited to steam, gas, or electricity) for sale to a third party. The County and the Authority acknowledge and agree that Republic owns all right, title and interest in and to all Landfill Gas generated in the Landfill and may use, sell, flare, or otherwise dispose of Landfill Gas in any manner that Republic deems appropriate in its sole discretion. If and at such time as Republic, in its sole and absolute discretion, may elect to contract with a third party or parties to sell Landfill Gas, the County shall be entitled to receive twenty- five percent (25%) of the net revenues (on an accrual accounting system basis) received annually by Republic from the sale of Landfill Gas, less and except the costs of administering the sale of Landfill Gas and the direct costs that Republic incurs to generate Landfill Gas or associated energy product sold pursuant to such a contract. Republic at all times shall have sole control and discretion with respect to the terms of any such contract for sale of Landfill Gas. Republic agrees that the Authority and the County shall have the right to request a copy of any such contractual agreement between Republic and a third party for sale of Landfill Gas, provided the Authority and the County acknowledge and agree that any such contractual agreement shall constitute a confidential and proprietary trade secret of Republic within the meaning of O.C.G.A §50-18-72(34) and will not constitute a public record subject to disclosure by the Authority or by the County under provisions of the Georgia Open Records Act, O.C.G.A. §50-18-70 et seq.

Republic shall have the right in its sole discretion to suspend or discontinue the sale of Landfill Gas at any time without further payment to the County.

 

 

 

 

      1. Renewable Energy Credits. If and to the extent the sale of Landfill

 

Gas as provided in subsection (a) generates any renewable energy tax credits or similar benefits available under applicable federal or state law to the owner or operator of a facility related to the generation, sale, or use of renewable energy, Republic shall be entitled to all such credits or benefits.

Provided, however, if the sale of Landfill Gas generates other renewable energy tax credits or other benefits specifically available to local governments and/or local government solid waste authorities under applicable federal or state law, then the County or the Authority, as applicable, shall be entitled to receive any such available credits or benefits.

 

 

  1. Source Limitation. Section 4 of the Host Agreement is hereby deleted in its entirety, and the following amended terms and provisions are substituted in the place thereof:

 

SOURCE LIMITATION. The Authority agrees that the Landfill

 

during the Term will not accept for processing or disposal Solid Waste generated outside of the Approved Area. Provided, however, the Operator may request the County from time to time for approval to contract for a particular special project for disposal of Solid Waste from a source located outside the Approved Area which would result in additional significant volumes of Solid Waste being received for disposal in the Landfill on a temporary basis for which the County would receive payment of Host Fees.

 

 

  1. Tipping Fees. Section 9 of the Host Agreement is hereby deleted in its entirety, and the

 

following terms and provisions are substituted in the place thereof:

 

    1. TIPPING FEES.

 

      1. Tipping Fees for County Waste. General Solid Waste generated by

 

residences within the County or generated by residences within any municipality located within the boundaries of the County, and General Solid Waste generated directly by the County and those municipalities at local government facilities (collectively “County waste”), which is disposed in the Landfill shall be accepted for disposal in accordance with the following rate schedule: (i) from the Effective Date of this Joint Amendment through December 31, 2017, County waste shall continue to be accepted for disposal in the Landfill without charge, except that the County and the municipalities shall pay the amount of the solid waste surcharge currently required to be paid to State of Georgia under O.C.G.A. §12-8-39 (e)( 75¢ per Ton); (ii) beginning on January 1, 2018 and through December 31, 2018, the disposal rate for County waste shall be $15.00 per Ton, which shall include the amount of the solid waste surcharge fee currently required to be paid to the State of Georgia under O.C.G.A. §12-8-39 (e)(75¢ per Ton) ; and, (iii) beginning on January 1, 2019 and through December 31, 2019, the disposal rate for County waste shall be $32.00 per Ton, which shall include the amount of the solid waste surcharge fee currently required to be paid to the State of Georgia under O.C.G.A. §12-8-39 (e)(75¢ per Ton). The disposal rates for County waste which may be charged as of January 1, 2020 and in subsequent years shall increase annually in an amount equal to the percentage increases in the Consumer Price Index for All Urban Consumers,

U.S. City Average, as published by the United States Department of Labor, Bureau of Statistics (the “CPI”), and shall continue to include the amount of the solid waste surcharge fee currently required to be paid to the State of Georgia under O.C.G.A. §12-8-39 (e) (75¢ per Ton). Disposal rates will be increased using the most recently available trailing 12 months average CPI compared to the preceding 12 month period. Any increase in the disposal rate shall be capped on an annual basis at no more than three percent (3%) above the previous year disposal rate. No decreases shall be made to the disposal rates if the CPI decreases. If this CPI is no longer available, then a comparable replacement index will be used for the purposes stated herein, subject to approval by the County which shall not be unreasonably withheld.

 

 

      1. Tipping Fees for Commercial Waste. General Solid Waste

 

generated within the County or within any municipality located within the boundaries of the County which is Commercial Waste shall be accepted for disposal at BEL in accordance with the following rate schedule: (i) from the Effective Date of this Joint Amendment through December 31, 2017, the disposal rate for Commercial Waste shall continue to be $11.32 per Ton, which includes the solid waste surcharge fee currently required to be paid to the State of Georgia under O.C.G.A. §12-8-39 (e)(75¢ per Ton); (ii) beginning on January 1, 2018 through December 31, 2018, the disposal rate to be paid for Commercial Waste shall be $22.00 per Ton, which shall include the amount of the solid waste surcharge fee currently required to be paid to the State of Georgia under O.C.G.A. §12-8-39 (e)(75¢ per Ton); and,

(iii) beginning on January 1, 2019 and through December 31, 2019, the disposal rate to be paid for Commercial Waste shall be $32.00 per Ton, which shall include the solid waste surcharge fee currently required to be paid the State of Georgia under O.C.G.A. §12-8-39 (e)(75¢ per Ton). The disposal rates which may be charged as of January 1, 2020 and in subsequent years shall increase annually in an amount equal to the percentage increases in the Consumer Price Index for All Urban Consumers U.S. City Average, as published by the United States Department of Labor, Bureau of Statistics (the “CPI”), and shall continue to include the amount of the solid waste surcharge fee currently required to be paid to the State of Georgia under O.C.G.A. §12-8-39 (e)(75¢ per Ton). Disposal rates will be increased using the most recently available trailing 12 months average CPI compared to the preceding 12 month period. Any increase in the disposal rate shall be capped on an annual basis at no more than three percent (3%) above the previous year disposal rate. No decreases shall be made to the disposal rates if the CPI decreases. If this CPI is no longer available, then a comparable replacement index will be used for the purposes stated herein, subject to approval by the County which shall not be unreasonably withheld.

 

 

      1. Rate Adjustments Due to Change in Law. The amounts of the

 

Tipping Fees in subsections (a) and (b) of this Section may be increased by Republic as a result of and by the corresponding amount of increases in Republic’s cost to provide Solid Waste disposal due directly to changes in local, state, or federal laws, rules, ordinances, or regulations enacted subsequent to the Effective Date of this Joint Amendment, including but not limited to changes in taxes, fees, surcharges or other governmental charges imposed on Republic related to the Landfill or solid waste disposal activities conducted at the Landfill.

 

 

      1. Tipping Fees for Other Solid Waste. The Tipping Fees for the

 

disposal of all General Solid Waste from sources located outside the

 

boundaries of the County, and the Tipping Fees for all Specific Solid Waste whether generated by sources within the County or generated by sources outside the County, shall be determined from time to time in the sole discretion of Republic.

In addition to the foregoing modifications to the Tipping Fee provisions in the Host Agreement, Section 7 of the Operations Agreement is hereby deleted in its entirety, and the following paragraph is substituted in the place thereof:

 

 

7. TIPPING FEES. The Tipping Fees for disposal of General Solid Waste generated within the County and within the municipalities located therein who choose to utilize the Facilities, shall be as provided by the terms of Section 9 in the Host Agreement. The Tipping Fees for disposal of any Specific Solid Waste generated within the County and for disposal of Solid Waste generated outside the County shall be established from time to time by Republic in its sole discretion.

 

 

  1. Host Fees. Section 10(a) of the Host Agreement is hereby deleted in its entirety, and the

 

following paragraph is substituted in the place thereof:

 

(a) Amount of Host Fees. From the Effective Date of this Joint

 

Amendment through December 31, 2018, a Host Fee shall be paid to the County in the amount of One Dollar and Eighty Cents ($1.80) per Ton for all Solid Waste accepted for disposal in the Landfill from any source located outside of the boundaries of Wayne County; provided, however, that no amount of Host Fees shall be paid to the County for any Solid Waste which is not disposed in the Landfill and instead is beneficially reused for waste cover material or other beneficial reuse in the operations of the Landfill including but not limited to construction of landfill roads or cells. Beginning on January 1, 2019 and annually in subsequent years during the Term, the amount of the Host Fee shall be increased in an amount equal to the percentage increases in the Consumer Price Index for All Urban Consumers

U.S. City Average, as published by the United States Department of Labor, Bureau of Statistics (the “CPI”). The Host Fee amount will be increased using the most recently available trailing 12 months average CPI compared to the preceding 12 month period. Any increase in the Host Fee shall be capped on an annual basis at no more than three percent (3%) above the previous year Host Fee. No decreases shall be made to the amount of the Host Fees if the CPI decreases. If this CPI is no longer available, then a comparable replacement index will be used for the purposes stated herein, subject to approval by the County which shall not be unreasonably withheld. The Host Fees payable to the County pursuant to the foregoing provisions are in lieu of any fees or charges now or hereafter provided by statute or regulation to be received by the County related to the operation of a municipal solid waste disposal facility in the County. Republic may request the County to accept a lesser per Ton Host Fee amount in the event Republic proposes to contract for a particular special project for Solid Waste disposal which will result in additional significant volumes of Solid Waste being received for disposal in the Landfill on a temporary basis for which the County shall be entitled to receive those Host Fees.

 

 

  1. Dispute Resolution. Section 20 of the Operations Agreement, and Section 19 of the Host Agreement, respectively, are each hereby deleted in their entirety, and the following terms and provisions are substituted in the place thereof in each of those Agreements:

DISPUTE RESOLUTION

 

  1. Mediation of Disputes. If any dispute between the parties arises out of

 

or relates to this Agreement including but not limited to any alleged default (a “Dispute”), the parties agree not to commence any legal proceeding with respect to such Dispute until the following mediation procedures have been completed. A party believing a Dispute to exist will give the other parties to the Host Agreement and the Operations Agreement written notice thereof (a “Dispute Notice”), setting forth in reasonable detail the facts alleged to give rise to such Dispute, the relevant contractual provisions, the nature of any claimed breach or default, and a statement of the manner in which the complaining party believes the Dispute should be resolved. Within fifteen (15) business days after receipt of such Dispute Notice, the party against whom the Dispute Notice is directed will deliver a written response setting forth in reasonable detail its position including its view of the facts alleged to give rise to such Dispute, the relevant contractual provisions, and its response to any alleged default or breach, and state the manner in which that party believes the Dispute should be resolved. If the parties to the Dispute do not agree within the following fifteen (15) business days on the manner in which the Dispute should be resolved, they will arrange to hold a meeting within the next fifteen (15) business days to attempt to resolve the Dispute. Each party to the Dispute will have in attendance at such meeting a representative with authority to bind the represented party to any agreement resolving the Dispute. At such meeting (and any adjournments thereof), the parties to the Dispute will negotiate in good faith in an attempt to agree as to the exact nature of the Dispute and the manner in which the Dispute should be resolved. If those parties agree, a professional mediator may be engaged to assist in the resolution of any Dispute, in which case mediation costs will be shared equally by those parties. A resolution of the Dispute will be evidenced by a written agreement setting forth the actions to be taken by each party to the dispute. If no such written agreement is reached within thirty (30) days after completion of the meeting between those parties, then either of the parties to the dispute may pursue arbitration of the Dispute, in accordance with the provisions in subsection (b) below. Any offers of compromise and associated statements made by any party or its agents during the course of negotiation or mediation by the parties shall be confidential, privileged, and inadmissible for any purpose including as evidence in arbitration or other legal proceedings.

 

  1. Arbitration Procedure and Award.

 

  1. Any Dispute, controversy, or claim arising out of or relating in any way to this Agreement or its performance which has not been resolved by the parties through the dispute resolution procedure described in subsection (a), including without limitation any dispute concerning the construction, validity, interpretation, enforceability, or breach of the Agreement, shall be resolved by binding arbitration. A party may submit any such Dispute or claim to arbitration through a written demand for arbitration delivered to the other party to the Dispute. A demand for arbitration in no event shall be effective unless delivered within six (6) months from the date of the Dispute Notice referred to in subsection (a). The arbitration shall be conducted in accordance with applicable provisions of the Georgia Arbitration Code, O.C.G.A. §9-9-1 et seq. The arbitration shall be conducted by a panel of three (3) arbitrators. Within fifteen (15) days of the date of the demand for arbitration, each party shall select an arbitrator. If the parties cannot agree on a third arbitrator, the two designated arbitrators shall promptly select a third neutral arbitrator. The location of the arbitration hearing shall be Savannah, Georgia, or such other location as the parties mutually agree. Evidentiary matters and discovery matters arising during the arbitration shall be governed by applicable provisions of Georgia law, provided that the arbitrators shall have authority to limit discovery by the parties in such manner as the arbitrators determine to be reasonable.
  1. No later than one hundred eighty (180) days following designation of the complete arbitration panel, or in such other period of time as may be mutually agreed by the parties and the arbitrators, the arbitrators will hear and consider the dispute and deliver to the parties a written determination of the dispute (the “arbitration award”). In no event will the arbitrators have the power to award damages to any party in connection with any dispute or claim in excess of actual compensatory damages, except that the arbitrators may award prejudgment interest on a monetary award, at the legal rate from the time of a breach to the date of the arbitration award. The arbitrator(s) shall award to the prevailing party, if any, the costs and attorneys fees reasonably incurred by the prevailing party in connection with the arbitration. If the arbitrators determine a party to be the prevailing party under circumstances where the prevailing party prevails on some but not all of the claims and counterclaims, the arbitrators may award the prevailing party an appropriate percentage of the costs and attorneys fees reasonably incurred by the prevailing party in connection with the arbitration. The arbitration award may be entered in any court of competent jurisdiction in accordance with applicable provisions of the Georgia Arbitration Code. The determination of the arbitrators will be final and binding, subject to a party’s right under the provisions in O.C.G.A. §9-9-13 of the Georgia Arbitration Code to seek judicial review of the arbitration award, provided that such right must be exercised no later than thirty (30) days after delivery of the arbitration award to the parties.

 

 

  1. Coal Combustion Residuals. Notwithstanding any provision in the Host Agreement or

 

the Operations Agreement, the Parties mutually agree that Coal Combustion Residuals (as defined herein), at all times during the remainder of the Term of the Host Agreement and the Operations Agreement following the date of this Joint Amendment, shall constitute Excluded Waste and shall not be received for disposal in the Landfill. The Parties further agree that neither the Host Agreement nor the Operations Agreement shall hereafter be amended to authorize receipt or disposal of Coal Combustion Residuals in the Landfill. The provisions of this Section shall not apply with respect to any Coal Combustion Residuals disposed in the Landfill or processed in any facility or activity ancillary to the Landfill prior to the date of this Joint Amendment, or to any related remedial activities conducted at the Landfill prior to or subsequent to the date of this Joint Amendment.

 

 

  1. Representations and Covenants of the Parties.

 

  1. By the County and the Authority. The County and the Authority have determined that it is in the public interest of the citizens of Wayne County to enter into this Joint Amendment to the Host Agreement and the Operations Agreement. The County and the Authority represent that they have full power and authority to enter into this Joint Amendment, and to fully perform all of the terms and obligations of the County and the Authority hereunder. The County through its Board of Commissioners, and the Authority through its appointed Board of Directors, have duly authorized the execution and delivery of this Joint Amendment and the performance of their respective obligations herein, and this Joint Amendment constitutes a valid and legally binding contractual obligation of the County and the Authority enforceable in accordance with its terms. The County and the Authority each represent that the person signing this Joint Amendment on its behalf has the legal capacity and authority to execute and deliver this Joint Amendment on its behalf.

 

  1. By Republic. Republic has all requisite corporate power and

 

authority to enter into and perform the terms of this Joint Amendment, and Republic’s execution and delivery of this Joint Amendment and the performance of its obligations contained herein have been duly authorized by all necessary corporate action on the part of Republic. The terms of this Joint Amendment shall be a valid and legally binding contractual obligation of Republic enforceable in accordance with its terms. Republic represents that the person signing this Joint Amendment on its behalf has the legal capacity and authority to execute and deliver this Joint Amendment on its behalf.

 

 

  1. Notices. Paragraph 14 of the Operations Agreement and Paragraph 16 of the Host

 

Agreement are hereby deleted in their entirety and the following terms regarding notices to the Parties are substituted in the place thereof:

 

 

NOTICES. All notices or other communications to be given under the

 

provisions of the Host Agreement or the provisions of the Operations Agreement shall be in writing and shall be given by personal delivery or by registered or certified United States Mail, return receipt requested, properly addressed as follows:

To the County: Wayne County Board Commissioners County Administration Building

341 E. Walnut Street Jesup, GA 31546 Attn: Chairperson

 

To the Authority: Wayne County Solid Waste Management Authority

 

County Administration Building 341 E. Walnut Street

Jesup, GA 31546 Attn: Chairperson

 

To Republic: Republics Services of Georgia, Limited Partnership 1041 Red Ventures Drive, Suite 110

Fort Mill, SC 29707 Attn: Area President

 

With copies to: Broadhurst Environmental Landfill 4800 Broadhurst Road W. Screven, GA 31560

Attn: Operations Manager

 

 

Republic Services, Inc. Attn: General Counsel 18500 N. Allied Way Phoenix, AZ 85054

 

A change of address by any party shall be by notice given to the other parties in the same manner as above specified. Any notice or other communication under the Host Agreement or the Operations Agreement shall be deemed given at the time of actual delivery if it is personally delivered, or if such notice or other communication is sent by registered or certified United States Mail, upon the third regular business day following the day on which such notice or other communication is deposited with a United States Post Office or upon actual delivery as shown by the return receipt, which ever first occurs.

 

  1. No Other Modification. Except as expressly modified by this Joint Amendment, all

 

terms and provisions of the Host Agreement and all terms and provisions of the Operations

 

Agreement, respectively, shall continue in full force and effect and shall govern the respective performances of those Agreements by the County, the Authority, and Republic. In the event of any conflict between the terms of this Joint Amendment and terms contained in the Operations Agreement or the Host Agreement, the terms of this Joint Amendment shall prevail and control.

 

  1. Joint Amendment. The Parties as a matter of convenience have each agreed jointly and simultaneously to modify and amend the Host Agreement and the Operations Agreement as provided in this Joint Amendment. Each of the Parties agrees to and consents to each of the modifications and amendments to the Host Agreement and to the Operations Agreement as set forth herein.

 

  1. Binding Effect. The terms of this Joint Amendment shall be binding upon and shall inure to the benefit of the County, the Authority, and Republic, and their respective successors, assigns, and successors-in-title.

 

  1. Good Standing. The County and the Authority, and Republic as a third party beneficiary of the Host Agreement and delegate of certain rights and obligations of the Authority therein, mutually acknowledge and agree that each party, as of the Effective Date of this Joint Amendment, has fully performed its obligations under and is not in breach of any of the terms of the Host Agreement, including with respect to all Host Fees payable to the County through the quarter ended March 31, 2017. The Authority and Republic mutually acknowledge and agree, and the County likewise acknowledges, that each of the Authority and Republic, as of the Effective Date of this Joint Amendment, has fully performed its obligations under and is not in breach of any of the terms of the Operations Agreement.

 

  1. Recitals; Counterparts. The Recitals contained in the Operations Agreement and the Host Agreement are incorporated into and shall constitute part of the terms of the Operations Agreement and the Host Agreement, respectively , and the Recitals at the beginning of this Joint Amendment are incorporated into and shall constitute part of the terms hereof . This Joint Amendment may be executed in any number of counterparts, with the same effect as if each of the parties had signed the same document, and all counterparts shall be construed together and shall constitute one instrument.

 

IN WITNESS WHEREOF, the County, the Authority, and Republic have each entered into this Joint Amendment to the Host Agreement and the Operations Agreement, to be effective as of the Effective Date set forth in the opening paragraph hereof.

 

 

COUNTY:

 

THE COUNTY OF WAYNE, GEORGIA

 

By: _ Printed Name: Title:

 

 

Attest:

 

Title:

 

[County Seal]

 

[Signatures continued on following page]

 

[Signatures continued from preceding page]

 

 

AUTHORITY:

 

WAYNE COUNTY SOLID WASTE MANAGEMENT AUTHORITY

 

By: _

 

 

Printed Name:

Title:

Attest:

Title:

[Authority Seal]

REPUBLIC:

 

REPUBLIC SERVICES OF GEORGIA,

LIMITED PARTNERSHIP d/b/a Broadhurst Environmental Landfill

 

By: Republic Services of Georgia, GP, LLC, its General Partner

 

By:                                                                      

Printed Name:                                                       Title:                                                                     

 

 

Attest: Title:

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The Press-Sentinel

Mailing Address: 
252 W. Walnut St.
Jesup, Georgia 31545
Phone: 912-427-3757
Fax: 912-427-4092