HomeMy WebLinkAbout1997-032 Agrmt - Dry Creek Landfill
SOLID WASTE DISPOSAL AND
LANDFILL CAPACITY
GUARANTEE AGREEMENT
BETWEEN
CITY OF ASHLAND, OREGON
AND
DRY CREEK LANDFILL, INC.
SOLID WASTE DISPOSAL AND LANDFILL CAPACITY
GUARANTEE AGREEMENT
THIS SOLID WASTE DISPOSAL AND LANDFILL CAPACITY
GUARANTEE AGREEMENT (this "Agreement") is made and entered into this :::L day of
/-.}pn. / , 1997 between THE CITY OF ASHLAND, a political subdivision of the state of
Ore~on (the "City") and DRY CREEK LANDFILL, INC., an Oregon corporation ("DCL").
RECITALS
A. DCL is the owner and operator of a solid waste disposal facility in Jackson
County (the "Disposal Site") which holds all required permits, including an Oregon State
Department of Environmental Quality ("DEQ") solid waste disposal facility permit, and complies
with the requirements of all applicable governmental agencies and meets all current and
reasonably anticipated state and federal design and performance standards. DCL operates the
Disposal Site pursuant to a Solid Waste Disposal Franchise Agreement dated October 25, 1996,
1996 entered into with Jackson County, Oregon (the "County") (the "Franchise Agreement").
B. In order to insure long term disposal capacity for Covered Waste (as herein
defmed) at the least cost, DCL requires a predictable and optimum waste stream, and the City
desires to have the agreements set forth herein in order to obtain the benefits of a guarantee of
disposal capacity availability at the Disposal Site at an agreed upon tip fee.
NOW THEREFORE, under the terms and conditions set forth herein, the City and DCL
hereby enter into to this Solid Waste Disposal and Capacity Guarantee Agreement:
A. "Acceptable Waste" means any and all waste that is "Solid Waste" as defined
herein (but is not Unacceptable Waste as defined herein) and which, in compliance with
governmental licenses and permits in effect, may be disposed of at the Disposal Site.
B. "Beneficial Use Waste" shall mean any Solid Waste that is used or reused in lieu
of other materials in the construction or operation of the Disposal Site or any ancillary facilities,
including but not limited to road construction, landscaping, soil amendment, disposal cell
construction, leachate or landfill gas management, daily, interim or final landfill cover material,
all as may be approved by DEQ. Solid Waste beneficially used or reused as described above
shall not be considered "disposed" at the Disposal Site for purposes of this Agreement.
C. "Cell Two" means the first lined cell to be constructed at the Disposal Site.
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D. "Covered Waste" means any Acceptable Waste that is generated within the
jurisdictional boundaries of the City and that is collected by any Commercial Hauler.
E. "Commercial Hauler" means an entity that is licensed, permitted or franchised by
the City to collect and transport to the Disposal Site Covered Waste.
F. "County" means the municipal corporation for the geographical area comprising the
County of Jackson, Oregon.
G. "County Disposal Agreement" means the Solid Waste Disposal and Landfill
Capacity Guarantee Agreement dated as of October 25, 1996 entered into by and among DCL
and the County, as the same may be amended, modified or supplemented from time to time.
H. "County Franchise Agreement" means the Solid Waste Disposal Franchise
Agreement dated as of October 25, 1996 entered into by and among DCL and the County, as
the same may be amended, modified or supplemented from time to time.
I. "County Tipping Fee" shall have the meaning assigned thereto in the County
Disposal Agreement.
J. "CPC Surcharge" shall have the meaning assigned thereto in the County Disposal
Agreement.
K. "DEQ" shall mean the Oregon Department of Environmental Quality.
L. "Disposal Site" shall mean the Dry Creek Landfill operated by DCL and located
within Section 1, Township 37 South, Range 1 West, Jackson County, Oregon.
M. "Disposal Site Permit" shall mean the Solid Waste Disposal Permit No. 190 issued
for the Disposal Site by DEQ dated July 11, 1995, as may be renewed or revised from time to
time.
N. "Effective Date" shall mean the date of the duly authorized execution and delivery
of this Agreement by DCL and the City, on which date this Agreement becomes effective.
O. "Facilities" shall mean those facilities that are ancillary to or necessary for the
operation of the Disposal Site.
P. "Force majeure" means acts of God, landslides, lightning, forest fires, storms,
floods, freezing, earthquakes, civil disturbances, strikes, lockouts or other industrial
disturbances, acts of the public enemy, wars, blockades, public riots, breakage, explosions,
materials or equipment shortage (but not including a shortage of Solid Waste), or damage to or
destruction of the Disposal Site or Facilities as a result of events described herein or other
similar causes which are not reasonably within the control of the party whose ability to perform
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under this Agreement is impaired, prevented, hindered or delayed by the Force Majeure event.
A Force Majeure event shall not include damage to or destruction of the Disposal Site or
Facilities when the damage or destruction is caused by any of the following events: operational
error, design defects in the facilities, lack of preventative maintenance, or negligent operation.
Q. "Hazardous Waste" shall have the meaning set forth in ORS 466.005(7), or any
successor thereto, and/or matter that is required to be accompanied by a written manifest or
shipping document describing the waste as "hazardous waste" or "dangerous waste," pursuant
to any state or federal law, including but not limited to, the Resource Conservation and
Recovery Act, 42 U.S.C. ~ 6901, et seq., and the Hazardous Waste Management Act, Chapter
466 ORS, as amended, and the regulations promulgated thereunder. Hazardous Waste shall not
include incidental Household Hazardous Waste or Small Quantity Generator Waste which is
commingled with Solid Waste.
R. "Initial Site Improvements" means the various improvements to the Disposal Site
(other than Cell Two) to be made at the same time as the construction and development of Cell
Two.
S. "Household Hazardous Waste" means Household Hazardous Waste as such term
is defined in 40 CFR 261.5.
T. "Load" shall mean the Acceptable Waste delivered to the Disposal Site in a single
shipment by a single vehicle.
U.. "Minimum Charge" shall mean a per Load charge established from time to time
by DCL and approved by the County pursuant to the County Disposal Agreement as the
minimum charge for Acceptable Waste (other than Special Waste) delivered to the Disposal Site.
V. "Solid Waste" means all putrescible and non-putrescible wastes, whether in solid or
semi-solid form, including but not limited to: garbage, trash, rubbish, refuse, ashes, paper,
cardboard, commercial and industrial wastes; demolition and construction wastes; manure,
vegetable or animal solid or semi-solid wastes including yard debris, and dead animals; medical
and infectious waste as defined in ORS 459.386 and OAR 340-93-030(42) and (52); all wastes
capable of being recycled that are commingled with other wastes; incidental Household
Hazardous Waste or Small Quantity Generator Hazardous Waste; and Special Waste, as defined
herein. The term "Solid Waste" shall not include Hazardous Waste.
W. "Small Quantity Generator Waste" means Small Quantity Generator Waste as
such term is defined in 40 CFR 261.5.
X. "Special Waste" shall mean: (i) Beneficial Use Waste, and (ii) Acceptable Waste
resulting from an industrial, agricultural, manufacturing, demolition or construction operation
or process, or waste which requires special handling or extraordinary management at the
Disposal Site, including, without limitation, asbestos, contaminated soil, non-hazardous
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contaminated materials, sewage sludge, septic tank and cesspool pumpings or other sludge,
containerized ash, box springs, mattresses, stumps, wire, tires, or bulk tanker waste, waste from
pollution control processes, waste containing free liquids and other wastes that may be covered
by a Special Waste Handling Plan for the Disposal Site as approved by DEQ in accordance with
the Disposal Site Permit, or any other waste of a character that is significantly different from
general mixed residential Solid Waste and that is produced by the commercial, industrial or
agricultural operations of a single generator in sufficient quantities to be handled or disposed of
by DCL under a specially negotiated contract.
Y. "Term" shall mean the term of this Agreement as set forth in, and as the same may
be extended from time to time as provided in, Section 2 hereof.
Z. "Unacceptable Waste" shall mean any and all waste that is either:
1. Waste which is prohibited from being received at the Disposal Site by
state, federal or local law , regulation, rule, code, ordinance, order, permit or permit condition;
or
2. Hazardous Waste as defined above.
AA. "Uncontrollable Circumstances" shall mean (a) any event reasonably beyond the
control of DCL that restricts or substantially affects the ability of DCL to treat landfill leachate
by means of evaporation at the Disposal Site, (b) an unanticipated decrease or increase of more
than 15% in the annual volume of Acceptable Waste delivered to the Disposal Site for disposal,
which causes a substantial distortion in DCL's operating or capital costs, or (c) a Force Majeure
event.
1. Disposal and Capacity Guarantee; Flow Reports; Reserved Capacity Reports.
1.1 Disposal and Capacity Guarantee. During the Term of this Agreement:
(A) the City agrees that, to the full extent it is within its lawful powers to do so,
it will cause all Covered Waste to be disposed at the Disposal Site; and
(B) DCL agrees that it will maintain sufficient capacity at the Disposal Site for
all Covered Waste.
1.2 Reserved Capacity Reports. On a periodic basis not to exceed every other year
during the Term, DCL shall provide to the City engineering reports, computer data or
photographic mapping materials as necessary to verify that remaining capacity is available at the
Disposal Site to meet the requirements of Section 1.1 of this Agreement.
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2. Term; Right To Suspend If Cell Two Financing Not Available.
2.1 The term of this Agreement shall commence on the Effective Date and, unless
sooner terminated in accordance with the provisions of this Agreement, shall continue in full
force and effect until the earlier to occur of: (i) January 1, 2029 (as the same may be extended
from time to time as provided herein, the "Scheduled Termination Date"); or (ii) DeL is no
longer licensed or permitted to operate as a Solid Waste landfill by the D EQ or any successor
regulatory agency with jurisdiction over the permitting or licensing of Solid Waste landfills for
the State of Oregon. During the sixty (60) day period prior to each Extension Date (as
hereinafter defined), DCL and the City shall have the option to extend the Scheduled
Termination Date for an additional ten (l0) year period beyond the then current Scheduled
Termination Date, which option shall be set forth in a letter agreement signed by the City and
DCL. As used herein, the term "Extension Date" shall mean: (a) January 1, 2009, and (b) each
tenth (lOth) anniversary of January 1, 2009.
Notwithstanding anything expressed or implied herein to the contrary, DCL shall have
the right to suspend the effectiveness of this Agreement if, by March 1, 1998, DCL is unable
to secure financing on reasonable terms for the costs of Cell Two and the Initial Site
Improvements following a good faith effort to secure such financing. Such right of suspension
shall be exercised by DCL giving written notice thereof to the City. Upon exercise of such right
of suspension and until such suspension is ended as provided below, this Agreement and all
obligations hereunder shall be of no force or effect. Any such suspension shall cease at such
time as Cell Two is developed and capable of receiving Solid Waste for disposal, whereupon this
Agreement shall be reinstituted and shall thereafter be in full force and effect as if such
suspension had not occurred.
During any period of suspension under the terms of this Section 2.1:
(i) DCL shall guarantee capacity for the disposal of Covered Waste at its Dry
Creek Landfill Cell 1, or South Stage Landfill, so long as such disposal is permitted in
accordance with law; and
(ii) the Tipping Fee for Solid Waste disposed during the suspension period as
described in (i) above shall be the Tipping Fee established in accordance with Section
3.1.1.A of the County Disposal Agreement.
2.2 DCL shall use its best efforts to obtain and maintain such licenses and permits as
shall be required to operate a Solid Waste Landfill.
3. Disposal Fees.
3.1 Tipping Fees. During the Term of this Agreement, DCL shall charge the
Commercial Haulers the County Tipping Fee for the disposal of Covered Waste (other than
Special Waste) at the Disposal Site. In addition, during the Term of this Agreement, DCL shall
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charge the Commercial Haulers a Tipping Fee for Special Waste in accordance with the County
Disposal Agreement.
DCL and the City acknowledge and agree that the County Tipping Fee has been
established pursuant to, and shall be adjusted and revised from time to time in accordance with,
the terms and conditions of the eounty Disposal Agreement. The County Tipping Fee applicable
at any time for purposes of this Agreement shall be the County Tipping Fee applicable at that
time under the County Disposal Agreement and shall automatically change as and when the
County Tipping Fee is adjusted or revised pursuant to and in accordance with the County
Disposal Agreement.
In addition to the County Tipping Fees, for all Covered Waste disposed of at the Disposal
Site, DCL shall also collect from the Commercial Haulers, for and on behalf of the County, the
CPC Surcharge. The CPC Surcharge shall be in the amount established from time to time by
the County in accordance with the terms and provisions of the County Disposal Agreement.
4. Allocation of Risk/Uncontrollable Circumstances.
4.1 Uncontrollable Circumstances. The obligations of DCL and the City under this
Agreement are subject to Uncontrollable Circumstances that necessarily and unavoidably may
prevent performance of disposal obligations hereunder. Provided that the requirements of this
Section 4 are met, neither party hereto shall be considered in default in the performance of its
obligations under this Agreement to the extent that such performance is prevented, hindered or
delayed by the occurrence of an event of Uncontrollable Circumstances. DCL and the City
agree that no other events however catastrophic or uncontrollable shall excuse nonperformance
of either party of its obligations under this Agreement and no events within the control of the
parties, including breakage or accidents to machinery, equipment or other facilities, shall excuse
nonperformance of the parties' obligations under this Agreement.
4.2 Notice of Uncontrollable Circumstances; Suspension of Performance. If, as
a result of an event of Uncontrollable Circumstances, either DCL or the City is wholly or
partially unable to meet its obligations under this Agreement, then the affected party shall give
the other party prompt notice of such event, describing it in reasonable detail.
The obligations under this Agreement of the party giving the notice of the event of
Uncontrollable Circumstances shall be suspended, other than for payment of monies due, but
only with respect to the particular component of obligations affected by the event and only for
the period during which the event of Uncontrollable Circumstances exists. The affected party
shall use due diligence to resume performance at the earliest practicable time and shall notify
the other party when the effect of the event has ceased.
4.3 Right to Resolve Certain Force Majeure Events. Notwithstanding anything to
the contrary expressed or implied herein, the parties agree that the settlement of strikes, lockouts
or other industrial disturbances, and litigation, including appeals, shall be entirely within the
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discretion of the particular party involved therein, and such party may make settlement thereof
at such time, and on such terms and conditions as it may deem to be advisable, and no delay in
making such settlement shall deprive such party of the benefit of this Section 4.3.
5. Amendments.
This Agreement may only be amended by a written agreement executed by the City and
DCL.
6. Events of Default.
Except as otherwise provided in this Agreement, each of the following shall constitute
an event of default ("Event of Default") hereunder:
6.1 Noncompliance with Covenants. The failure of DCL or the City to comply with
any of their respective covenants contained herein after sufficient notice from the other party and
the expiration of opportunity to cure as provided in this Section. For purposes of this
Agreement, DCL shall not be considered in breach or default if it is in timely compliance with
any regulatory order, including but not limited to any preliminary assessment, remedial
investigation, remedial action or corrective action or any legal appeal or review of such orders
or requirements.
6.2 Insufficient Capacity. Except as may arise or result from an occurrence of an
Uncontrollable Circumstance, the failure to provide disposal capacity pursuant to Section 1.1(B)
of this Agreement.
6.4 Seizure or Attachment. Seizure or attachment (other than a prejudgment
attachment) of, or levy affecting possession on, the operating equipment of DCL at the Disposal
Site, including without limit its vehicles, maintenance or office facilities, or any part thereof of
such proportion as to impair DCL's ability to perform under this Agreement and which cannot
be released, bonded, or otherwise lifted within forty-eight (48) hours excluding weekends and
holidays.
6.5 Insolvency. The occurrence of any of the following:
(a) The filing by DCL or the City of a voluntary petition for debt relief under
any applicable bankruptcy, insolvency, debtor relief, or other similar law now or hereafter in
effect, or if DCL or the City shall consent to the appointment of or taking of possession by a
receiver, liquidator, assignee (other than as a party of a transfer of equipment no longer useful),
trustee (other than as security for an obligation under a deed of trust), custodian, sequestrator
(or similar official) of DCL or the City for any substantial part of DCL's or the City's property,
or the making of any general assignment for the benefit of DCL's or the City's creditors, or the
failure of DCL or the City generally to pay their respective debts as they become due or the
taking of any action in furtherance of any of the foregoing; or
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(b) The entry of a decree or order by a court have jurisdiction for relief in
respect of DCL or the City, in any involuntary case brought under any bankruptcy, insolvency,
debtor relief, or similar law now or hereafter in effect, or consent by DCL or the City to or
failure by DCL or the City to oppose any such proceeding, or the entry of a decree or order
appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official)
of DeL or for any part of DCL's or the City's assets, or order the winding up or liquidation of
the affairs of DCL or the City.
6.6 Failure to Deliver Covered Waste. The failure by the City to use its full legal
powers and authority to cause to be delivered to the Disposal Site all Covered Waste as
contemplated by Section 1.1 (A) of this Agreement.
7. Notice of Default and Opportunity to Cure.
If at any time either party determines or becomes aware that the other party is in default
of any of the terms or provisions of this Agreement, the non-defaulting party shall transmit a
written notice to the other party as to the nature of such default. Unless the default involves the
failure to pay any amounts due under this Agreement (for which the defaulting party shall have
ten (10) days to cure such default), the defaulting party shall have thirty (30) days from the
receipt of said notice to commence actions to cure said default and a reasonable period of time
to cure. If the defaulting party fails to cure the default within a reasonable period of time the
non-defaulting party may pursue all remedies set forth in Section 8. Notwithstanding the
foregoing, either party hereto may submit to arbitration any dispute or alleged default hereunder
pursuant to the provisions of Section 15 of this Agreement.
8. Remedies.
Upon the occurrence of an Event of Default and following notice and an opportunity to
cure under Section 7, the non-defaulting party shall be entitled to one of the following remedies:
8.1 Termination of this Agreement. In addition to any other remedies the non-
defaulting party may have hereunder or at law or in equity, the non-defaulting party shall have
the right, upon the occurrence of an Event of Default hereunder, to terminate this Agreement
upon ninety (90) days written notice, subject only to the right to submit the matter to arbitration
for resolution pursuant to Section 15.
8.2 Other Remedies. Pursue such other remedies as may be available at law or in
equity, including but not limited to specific enforcement of the defaulting parties covenants and
undertakings as set forth herein.
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9. Assignment; Successors and Assigns.
This Agreement shall be binding upon the successors and assigns of the parties hereto;
provided that no assignment of this Agreement by either party shall be binding upon the other
party unless such other party consents to the assignment, which consent shall not be
unreasonably withheld. The party seeking to assign this Agreement shall provide the other party
with written notice and a true copy of the assignment. No assignment shall be valid and binding
which endeavors to relieve the assigning party of any obligations to make payments hereunder
which accrued prior to the date of assignment or in which the assignee does not affirmatively
agree, in writing, to assume all obligations of the assignor under this Agreement.
10. Intended Beneficiaries.
This Agreement is made by and intended for the benefit of DCL and the City (together,
with their legal successors and assignees, the "Express Parties"). No person other than the
Express Parties shall be considered to be an intended beneficiary or third-party beneficiary of
this Agreement, or entitled by virtue of this Agreement to bring any claim, action or suit for
damages hereunder or for the enforcement of any of the provisions hereof against either of the
Express Parties, or their agents, officers, directors or employees.
11. Waiver.
No waiver by either party of anyone or more defaults or breaches by the other in the
performance of this Agreement shall operate or be construed as a waiver of any future defaults
or breaches, whether of a like or different character.
12. Entire Agreement.
This Agreement shall represent the entire understanding between the parties and, unless
set forth in this Agreement, no representations, statements or agreements, unless agreed to by
the parties in writing, shall modify, change, amend or otherwise affect the obligations
undertaken in this Agreement.
13. Change in Law/Regulations; County Solid Waste Code.
This Agreement is subject to all present and future valid laws and lawful orders of all
regulatory bodies. Should either of the parties, by force of any such law or regulation, at any
time during the term hereof, be ordered or required to do any act relative to this Agreement
which substantially impairs or materially changes the party's ability to perform under this
Agreement, then the affected party shall notify the other party of this condition. The parties
shall negotiate in good faith in order to determine how this Agreement may be amended or
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modified in order to enable the parties to perform their respective obligations. If the parties are
unable to agree upon such modifications or amendments, the matter shall be submitted to
arbitration for resolution in accordance with Section 15 of this Agreement. Nothing in this
Agreement shall prohibit either party from obtaining or seeking to obtain modification or repeal
of such law or regulation or restrict either party's right to legally contest the validity of such law
or regulation. DeL shall not be considered in breach of this Agreement during such time as
DCL is contesting or appealing any notice of violation, ordinance, rule, regulation or law.
14. Notices. All notices required under this Agreement shall be personally delivered, or
delivered by facsimile transmission or telecopy confirmed by phone followed by first-class mail,
postage prepaid, or delivered by certified or registered mail, postage prepaid as follows:
If to the City, address to:
City of Ashland
Attn: City Administrator
City Hall
20 E Main
Ashland OR 97520
FAX Number: (541)488-5311
If to DCL, address to:
Dry Creek Landfill, Inc.
Attention: President
135 West Main Street
Medford, OR 97501
FAX Number: (541) 779-4366
or to such other address as any party shall specify by written notice so given, and shall be
deemed to have been given as of the date so delivered personally, or by facsimile or telecopy
if confirmed by phone and mailing as provided above, or three (3) days after the date that a
certified or registered transmission is deposited in the U. S. mail.
15. Dispute Resolution.
15.1 Continued Performance. In the event of a dispute arising under this Agreement
the parties shall continue performance of their respective obligations under this Agreement and
shall attempt to resolve such dispute in a cooperative manner.
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15.2 Arbitration.
15.2.1 Scope of Arbitration. Any dispute between the parties relating to
this Agreement shall be decided by arbitration and not by lawsuit; provided that in the event of
a lawsuit involving the City or DCL and a third party concerning the subject matter of this
Agreement, or any provision hereof, nothing in this Agreement shall prevent joinder of the
absent party (that is, the City or DCL, as the case may be) as a party to such lawsuit if such
joinder would be needed for just adjudication under the civil procedure rules of the court before
which such lawsuit is pending, and in the event of any such joinder any dispute between the City
and DCL arising under this Agreement as a result of such lawsuit may be finally decided
therein.
15.2.2 Bound Parties. As used in this Agreement, "Bound Parties" means
DCL, the City, all persons claiming to be third-party beneficiaries of this Agreement, and all
successors, heirs, assigns or legal representatives of the foregoing. This Section 15 shall be
binding upon all Bound Parties and, except as set forth in the provision in Section 15.2.1 above,
all disputes between Bound Parties shall be arbitrable among the Bound Parties even if other
people are involved in the disputes.
15.2.3 Venue and Jurisdiction. Unless all the parties to an arbitration
consent in writing to a different place, the arbitration hearings and the place of entry of the
award shall be Jackson County, Oregon. The parties to this Agreement consent to exclusive
jurisdiction in the state and federal courts in Jackson County, Oregon for any allowable judicial
proceeding relating to any arbitration under this Agreement.
15.2.4 AAA Administration and Rules. The arbitration shall be administered
by the American Arbitration Association ("AAA") under the Rules for Commercial Arbitration
of the AAA as modified by this Agreement.
15.2.5 Joinder and Consolidation. Except as stated below in Section
15.2.6, the arbitrators may allow any Bound Party against whom an arbitration claim is brought
under this Agreement to join any other Bound Party in that arbitration and arbitrations may be
consolidated for any or all purposes.
15.2.6 Exceptions to Joinder and Consolidation. No Bound Party may,
without its consent, be made a party to an arbitration in which, because of the agreement of the
other parties to the arbitration, venue has been varied from that required by Section 15.2.3.
15.2.7 Arbitrators; Hearing by Arbitrators. The arbitration shall be
conducted by a panel of three neutral arbitrators selected as follows: Within ten days from the
date upon which either party invokes the right to arbitration under this section, the City and
DCL shall each select one arbitrator, and within ten days of such selections the two arbitrators
so selected shall select the third arbitrator. The panel of arbitrators shall hear the matter within
30 days of the selection of the third arbitrator and shall render their decision within thirty days
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of the close of such hearing.
15.2.8 Interest. All monetary awards bear post-award and post-judgment
interest on the award at the Oregon statutory rate for post-judgment interest. The arbitrator
may, in the arbitrator's sole discretion, include pre-award interest at that rate for any award.
15.2.9 Finality. The arbitration award shall be final and binding, and shall
not be reviewable in any court on any grounds except corruption or fraud of a party, or for
evident partiality or corruption of the arbitrator. The parties intend to eliminate all other court
review of the award and arbitration proceedings.
15.2.10 Entry of Judgment. Judgment on the award may be entered in any
court with jurisdiction.
15.2.11 Litigation as a Breach. Except for a proceeding to enforce, confirm,
vacate or modify any award, the initiation of any suit relating to a dispute that is arbitrable under
this Agreement is a material breach of this Agreement.
15.2.12 Confidentiality. Except as necessary in a judicial proceeding allowable
under this Section or otherwise required by law or legal process, the parties shall keep all
matters relating to any arbitration confidential.
16. Indemnity.
16.1 Indemnity by DCL. DCL shall defend, indemnify and hold harmless the City
and its employees, agents, appointed and elected officials, from and against any and all
liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, judgments and
costs and expenses incidental thereto, including attorneys' fees, which any or all of them may
hereafter suffer, incur, be responsible for or payout as a result of personal injuries, property
damage, or contamination of or adverse effects on the environment, to the extent directly or
indirectly caused by, or arising from or in connection with the breach of any representations and
warranties of DCL set forth in this Agreement, or any actions or omission of DCL, its
employees, officers, owners, directors, agents or subcontractors, in the performance of this
Agreement, or the operation, closure and/or post-closure of the Disposal Site. Such indemnity
shall be limited to exclude liabilities, penalties, fines, forfeitures, demands, claims, causes of
action, suits, judgments and costs and expenses or attorney fees to the extent that they arise as
a result of any negligent or intentional actions or omissions of the City or its employees, agents,
subcontractors or appointed or elected officials.
16.2 Indemnity by City. To the fullest extent permitted by law, the City shall
defend, indemnify and hold harmless DCL, its employees, officers, owners, directors, agents
and subcontractors, from and against any and all liabilities, penalties, fines, forfeitures,
demands, claims, causes of action, suits, judgments and costs and expenses incidental thereto,
including attorneys' fees, which any or all of them may hereafter suffer, incur, be responsible
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for or payout with respect to claims by third parties for personal injury, property damage or
other loss not caused by pollution, contamination or release of chemicals or landfill gas arising
from operations of the Disposal Site, to the extent directly or indirectly caused by, or arising
from or in connection with the actions or omissions of the City, or its agents, employees,
subcontractors, appointed and elected officials. Such indemnity shall be limited to exclude
liabilities, penalties, fines, forfeitures, demands, claims, causes of action, suits, judgments and
costs and expenses or attorney fees to the extent they arise as a result of any negligent or
intentional actions or omissions of DCL or its employees, agents, subcontractors, officers,
owners or directors; nor shall such indemnity include claims arising as a result of any regulatory
oversight responsibility of the City or its agents, employees, subcontractors or appointed and
elected officials.
16.3 Defense. In the event of any suit against any party indemnified under this
section, the indemnifying party shall appear and defend such suit provided that the indemnifying
party is notified in a timely manner of the suit. The indemnified party shall have the right to
approve counsel chosen by the indemnifying party to litigate such suit which approval shall not
be unreasonably withheld. In the event a dispute exists over whether a party is entitled to
indemnification, each party shall defend itself until the dispute is resolved. Upon resolution of
the indemnification dispute, the prevailing party shall be entitled to indemnification for its
defense costs incurred prior to resolution.
16.4 Application of Insurance. If any claims indemnified against under this Section
16 have the potential for coverage under any insurance, then the indemnities set forth in this
Agreement shall be limited as follows:
(a) The indemnity under this Section 16 shall apply only to the extent the amount
of any indemnified claim exceeds all amounts collectable under any insurance covering such
claim. Before pursuing recovery under this indemnity, the indemnified party shall exhaust all
recovery available for such claim from insurance.
(b) The indemnifying party shall not be obligated to pay for the defense of any
claim or suit that any insurer has a duty to defend. If no insurer defends, then the indemnifying
party shall, to the extent obligated to do so by this Agreement, pay for the defense, but shall
be entitled to the insured's rights against all insurers with a potential for coverage of such claim.
Once the indemnified party has exhausted all recovery under all available insurance, the
indemnifying party shall pay only the amount of the loss, if any, that exceeds the total amount
that all insurance has paid for the loss.
For all costs and expenses related to third-party claims arising out of transportation and
disposal of solid waste under this Agreement, DCL and the City shall first make and pursue
claims against any available insurance coverage. Nothing in this Agreement shall constitute a
waiver or relinquishment of any claims which the parties may have against insurers, nor shall
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any provision of this Agreement waive or relinquish any subrogation or contribution rights that
the parties or their insurers may have against another insurer or other potentially liable party.
Any monies received from the insurers shall be used to pay any claims covered by such
insurance and reimburse the insured for all reasonable costs and expenses, including attorneys'
fees, expended by it to seek recovery of sums from its insurers.
17. Liability Insurance.
DCL shall at all times maintain commercial policies of insurance against liability for
bodily injury and property damages arising out of, or in connection with its ownership and
operation of the landfill (exclusive of environmental impairment coverage) in such amounts and
subject to such deductibles as are customarily maintained by landfill owners/operators oflandfills
comparable to the Disposal Site. Coverage shall include, but not be limited to operations
(exclusive of environmental impairment) of DCL and such insurance shall have limits of not less
than:
COVERAGE
LIMITS OF LIABILITY
Bodily Injury and/or
Property Damage
$2,000,000 each person
or occurrence
Policy Aggregate
$5,000,000
Such insurance shall be without prejudice to coverage otherwise existing and shall name
as an additional insureds the City (and its officers, agents and employees). Notwithstanding the
naming of the City as an additional insured, the insurance shall protect each insured in the same
manner as though a separate policy had been issued to each, but nothing herein shall operate to
increase the insurer's liability as set forth elsewhere in the policy beyond the amount or amounts
for which the insurer would have been liable if only one person or interest had been named as
insured.
The insurance policy( s) shall provide that the insurance coverage provided thereby shall
not be canceled or materially altered without thirty (30) days' written notice first being given to
the City. DCL shall maintain on file with the City a certificate of insurance certifying the
coverage required above.
18. Severability.
If any provision of this Agreement is declared invalid or unenforceable, then such portion
shall be deemed to be severable from this Agreement and shall not affect the remainder hereof.
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19. Governing Law.
This Agreement shall be governed by and construed in accordance with the laws of the
state of Oregon including any regulation, ordinance, or other requirements of any governmental
agency having jurisdiction over the Disposal Site.
EXECUTED as of the day and year first above written.
CITY OF ASHLAND
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DRY CREEK LANDFILL, INC.
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