[Federal Register Volume 63, Number 185 (Thursday, September 24, 1998)]
[Notices]
[Pages 51126-51161]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-24974]
[[Page 51125]]
_______________________________________________________________________
Part II
Department of Justice
_______________________________________________________________________
Antitrust Division
_______________________________________________________________________
Proposed Final Judgment and Competitive Impact Statement; Notice
Federal Register / Vol. 63, No. 185 / Thursday, September 24, 1998 /
Notices
[[Page 51126]]
DEPARTMENT OF JUSTICE
Antitrust Division
[Civ. No. 1:98 CV 1616]
Proposed Final Judgment and Competitive Impact Statement
Notice is hereby given pursuant to the Antitrust Procedures and
Penalties Act, 15 U.S.C. sections 16(b)-(h), that a proposed Final
Judgment, Hold Separate Stipulation and Order, and Competitive Impact
Statement have been filed with the United States District Court for the
Northern District of Ohio, Eastern Division, in United States and
States of Ohio, Arizona, California, Colorado, Florida, Maryland, New
York, Texas, Washington, and Wisconsin, and Commonwealths of Kentucky
and Pennsylvania v. USA Waste Services, Inc., Dome Merger Subsidiary,
and Waste Management, Inc. Civ. No. 1:98 CV 1616.
On July 16, 1998, the United States and the listed eleven states
and two commonwealths filed a Complaint, which alleged that USA Waste's
proposed acquisition of Waste Management would violate Section 7 of the
Clayton Act, 15 U.S.C. 18, by substantially lessening competition in
commercial waste collection and/or municipal solid waste disposal in 21
geographic markets around the country, including: Akron, Canton,
Cleveland and Columbus, OH; Allentown, Pittsburgh and Philadelphia, PA;
Baltimore, MD; Denver, CO; Detroit, Flint and Northeast Michigan;
Houston, TX; Los Angeles, CA; Louisville, KY; Miami and Gainesville,
FL; Milwaukee, WI; New York, NY; Portland, OR; and Tucson, AZ. The
proposed Final Judgment, filed the same day as the Complaint, requires
that USA Waste and Waste Management divest commercial waste collection
and/or municipal solid waste disposal operations in each of the
geographic areas alleged in the Complaint.
Public comment is invited within the statutory 60-day comment
period. Such comments and responses thereto will be published in the
Federal Register and filed with the Court. Comments should be directed
to J. Robert Kramer, II, Chief, Litigation II Section, Antitrust
Division, U.S. Department of Justice, 1401 H Street, NW, Suite 3000,
Washington, D.C. 20530 [telephone: (202) 307-0924].
Constance K. Robinson,
Director of Operations & Merger Enforcement.
Hold Separate Stipulation and Order
It is hereby stipulated and agreed by and between the undersigned
parties, subject to approval and entry by the Court, that:
I. Definitions
As used in this Hold Separate Stipulation and Order:
A. USA Waste means defendant USA Waste Services, Inc., a Delaware
corporation with its headquarters in Houston, Texas, and includes its
successors and assigns, and its subsidiaries (including Dome Merger
Subsidiary), divisions, groups, affiliates, directors, officers,
managers, agents, and employees.
B. WMI means defendant Waste Management, Inc., A Delaware
corporation with its headquarters in Oak Brook, Illinois, and includes
its successors and assigns, and its subsidiaries, divisions, groups,
affiliates, directors, officers, managers, agents, and employees.
C. Relevant Disposal Assets means, unless otherwise noted, with
respect to each landfill or transfer station listed and described
herein, all tangible assets, including all fee and leasehold and
renewal rights in the listed landfill or transfer station; the garage
and related facilities; offices; landfill- or transfer station-related
assets including capital equipment, trucks and other vehicles, scales,
power supply equipment, interests, permits, and supplies; and all
intangible assets of the listed landfill or transfer station, including
landfill- or transfer station-related customer lists, contracts, and
accounts, or options to purchase any adjoining property.
Relevant Disposal Assets, as used herein, includes each of the
following properties:
1. Landfills
a. Akron/Canton, OH
WMI's Countywide R&D Landfill, located at 3619 Gracement Street,
SW, East Sparta, OH 44626, and known as the Countywide Landfill;
b. Columbus, OH
USA Waste's Pine Grove Landfill, located at 5131 Drinkle Road, SW,
Amanda, OH 43102;
c. Denver, CO
USA Waste's Front Range Landfill, located at 1830 County Road 5,
Erie, CO 80516-8005.
d. Detroit, MI
USA Waste's Carleton Farms Landfill, located at 28800 Clark Road,
New Boston, MI;
e. Flint, MI
USA Waste's Brent Run Landfill, located at Vienna Road, Montrose
Township, Genesee County, MI;
f. Houston, TX
USA Waste's Brazoria County Landfill, located at 10310 FM-523,
Angleton, TX 77515; and
g. Los Angeles, CA
USA Waste's Chiquita Canyon Landfill, located at 29201 Henry Mayo
Drive, Valencia, CA 91355;
h. Louisville, KY
USA Waste's Valley View Landfill, located at 9120 Sulphur Road,
Sulphur, KY 40070;
j. Milwaukee, WI
USA Waste's Kestrel Hawk Landfill, located at 1989 Oakes Road,
Racine, WI 53406; and WMI's Mallard Ridge Landfill, located at W. 8470
State Road 11, Delavan, WI 53315;
k. New York, NY/Philadelphia, PA
WMI's Modern Landfill & Recycling, located at 4400 Mt. Piscah Road,
York, PA 17402, and known as the Modern Landfill;
l. Northeast Michigan
USA Waste's Whitefeather Landfill, located at 2401 Whitefeather
Road, Pinconning, MI; and Elk Run Sanitary Landfill, located at 20676
Five Mile Highway, Onaway, MI;
m. Pittsburgh, PA
WMI's Green Ridge Landfill, located at 717 East Huntingdon Landfill
Road, Scottdale, PA 15683, and variously known as the Green Ridge
Landfill, the Y&S Landfill, or the Greenridge Reclamation Landfill;
n. Portland, OR
USA Waste's North WASCO Landfill, located at 2550 Steel Road, The
Dalles, OR 97058; and
2. Transfer Stations
a. Akron/Canton, OH
WMI's Akron Central Transfer Station, located at 389 Fountain
Street, Akron, OH;
b. Baltimore, MD
WMI's Southwest Resource Recovery Facility (known as Baltimore
RESCO or BRESCO), located at 1801 Annapolis Road, Baltimore, MD 21230;
Baltimore County Resource Recovery Facility, located at 10320 York
Road, Cockeysville, MD; and Western Acceptance Facility, located at
3310 Transway Road, Baltimore, MD;
[[Page 51127]]
c. Cleveland, OH
USA Waste's Newburgh Heights Transfer Station, located at 3227
Harvard Road, Newburgh Heights, OH 44105 (and known as the Harvard Road
Transfer Station); and WMI's Strongsville Transfer Station, located at
16099 Foltz Industrial Parkway, Strongsville, OH;
d. Columbus, OH
WMI's Reynolds Road Transfer Station, located at 805 Reynolds
Avenue, Columbus, OH 43201;
e. Houston, TX
USA Waste's Hardy Road Transfer Station, located at 18784 East
Hardy, Houston, TX;
f. Louisville, KY
USA Waste's Poplar Level Road Transfer Station, located at 4446
Poplar Level Road, Louisville, KY;
g. Miami, FL
All USA Waste's operations related to its right, title, and
interest in, or operation or, the Reuters Transfer Station Rights, as
conveyed to Chambers Waste Systems of Florida, a subsidiary of USA
Waste, pursuant to the Final Judgment in United States v. Reuter
Recycling of Florida, Inc., 1996-1 Trade Cas. (CCH) para. 71,353
(D.D.C. 1996), a copy of which is attached to the proposed Final
Judgment as Exhibit A;
h. New York, NY
WMI's SPM Transfer Station, located at 912 East 132nd Street,
Bronx, NY 10452, and all rights and interests, legal or otherwise, the
WMI now enjoys, has had or made use of out of the SPMT Transfer
Station, to deliver waste by truck to rail siding at the Oak Point Rail
Yard in the Bronx, NY, and at the Harlem River Yards facility, located
at St. Ann's and Lincoln Avenues at 132nd Street, Bronx, NY 1045; and
i. Philadelphia, PA
USA Waste's Girard Point Transfer Station, located at 3600 South
26nd Street. Philadelphia, PA 19145; and USA Waste's Quick Way Inc.
Municipal Waste Transfer Station, located at SE Corner, Bath and
Orthodox Streets, Philadelphia, PA 19137.
D. Relevant Hauling Assets, unless otherwise noted, means with
respect to each commercial waste collection route or other hauling
asset described herein, all tangible assets, including capital
equipment, trucks and other vehicles, containers, interests, permits,
supplies except real property and improvements to real property (i.e.,
buildings)]; and it includes all intangible assets, including hauling-
related customers lists, contracts and accounts.
Relevant Hauling Assets, as used herein, includes the assets in the
following locations:
1. Akron, OH
USA Waste's and American Waste Corporation's front-end loader truck
(``FEL'') commercial routes that serve Summit County, Ohio;
2. Allentown, PA
WMI's FEL commercial routes that serve the cities of Allentown and
Northampton and Lehigh County, PA;
3. Cleveland, OH
WMI's FEL commercial routes that serve Franklin County, Ohio;
5. Denver, CO
USA Waste's FEL commercial routes that serve the City of Denver,
and Denver and Arapaho County, CO;
6. Detroit, MI
WMI's FEL commercial routes that serve the City of Detroit and
Wayne County, MI;
7. Houston, TX
WMI's FEL commercial routes that serve the City of Houston, the
Dickinson area, and Harris County, TX;
8. Louisville, KY
USA waste's FEL commercial routes that serve the City of Louisville
and Jefferson County, KY;
9. Pittsburgh, PA
WMI's FEL commercial routes that serve Allegheny County and
Westmoreland County, PA, and the garage facility (real estate and
improvements) located at the Y&S Landfill;
10. Portland, OR
WMI's FEL commercial routes that serve the City of Portland, OR;
11. Tucson, AZ
USA Waste's FEL commercial routes that serve the City of Tucson and
Pima County, AZ; and
12. Gainesville, FL
WMI's FEL commercial routes that serve Alachua County, FL.
E. Hauling means the collection of nonhazardous waste from
customers and the shipment of the collected waste to disposal sites.
F. Waste means nonhazardous municipal solid waste.
G. Disposal means the business of disposing of waste into approved
disposal sites.
H. Relevant area means the county in which the Relevant Hauling
Assets or Relevant Disposal Assets are located and any adjacent city or
county, except with respect to the Modern Landfill [see Section
I(C)(1)(k)], for which the Relevant Area means Philadelphia, PA, and
New York, NY.
I. Relevant State means the state in which the Relevant Disposal
Assets or Relevant Hauling Assets are located, provided however, that
state is a party to this Final Judgment. With respect to the Modern
Landfill [see Section I(C)(1)(k)], the Relevant State means the
Commonwealth of Pennsylvania and the State of New York.
II. Objectives
The Final Judgment filed in this case in meant to ensure
defendants' prompt divestitures of the Relevant Disposal Assets and the
Relevant Hauling Assets for the purpose of establishing viable
competitors in the waste disposal business or the commercial waste
hauling business, or both, in the Relevant Areas to remedy the effects
that plaintiffs allege would otherwise result from USA Waste's
acquisition of WMI. This Hold Separate Stipulation and Order ensures,
prior to such divestitures, that the Relevant Disposal Assets and the
Relevant Hauling Assets are independent, economically viable, ongoing
business concerns, and that competition is maintained during the
pendency of the ordered divestitures.
III. Jurisdiction and Venue
The Court has jurisdiction over the subject matter of this action
and over each of the parties hereto, and venue of this action is proper
in the United States District Court for the Northern District of Ohio,
Eastern Division.
IV. Compliance With and Entry of Final Judgment
A. The parties stipulate that a Final Judgment in the form hereto
attached hereto as Exhibit A may be filed with and entered by the
Court, upon the motion of any party or upon the Court's own motion, at
any time after compliance with the requirements of the Antitrust
Procedures and Penalties Act (15 U.S.C. Sec. 16), and without further
notice to any party or other proceedings, provided that the United
States has not withdrawn its consent, which it may do at any time
before the entry of the proposed Final Judgment by serving notice
thereof on defendants and by filing that notice with the Court.
B. Defendants shall abide by and comply with the provisions of the
proposed Final Judgment, pending the Judgment's entry by the Court, or
until
[[Page 51128]]
expiration of time of all appeals of any Court ruling declining entry
of the proposed Final Judgment, and shall, from the date of the signing
of this Stipulation by the parties, comply with all the terms and
provisions of the proposed Final Judgment as though the same were in
full force and effect as an order of the Court.
C. Defendants shall not consummate the transaction sought to be
enjoined by the Complaint herein before the Court has signed this
Stipulation and Order.
D. This Stipulation shall apply with equal force and effect to any
amended proposed Final Judgment agreed upon in writing by the parties
and submitted to the Court.
E. In the event (1) the United States has withdrawn its consent, as
provided in Section IV(A) above, or (2) the proposed Final Judgment is
not entered pursuant to this Stipulation, the time has expired for all
appeals of any Court ruling declining entry of the proposed Final
Judgment, and the Court has not otherwise ordered continued compliance
with the terms and provisions of the proposed Final Judgment, then the
parties are released from all further obligations under this
Stipulation, and the making of this Stipulation shall be without
prejudice to any party in this or any other proceeding.
F. Defendants represent that the divestitures ordered in the
proposed Final Judgment can and will be made, and that defendants will
later raise no claim of hardship or difficulty as grounds for asking
the Court to modify any of the divestiture contained therein.
V. Hold Separate Provisions
Until the divestitures required by the Final Judgment have been
accomplished:
A. Defendants shall preserve, maintain, and operate the Relevant
Disposal Assets and the Relevant Hauling Assets as independent
competitors with management, sales and operations held entirely
separate, distinct and apart from those of defendants' other
operations. Defendants shall not coordinate the marketing of, or sales
by, any Relevant Disposal Asset or Relevant Hauling Asset with
defendants' other operations. Within twenty (20) days after the filing
of the Complaint, or thirty (30) days after the entry of this Order,
whichever is later, defendants will inform plaintiffs of the steps
defendants have taken to comply with this Hold Separate Stipulation and
Order.
B. Defendants shall take all steps necessary to ensure that (1) the
Relevant Disposal Assets and Relevant Hauling Assets will be maintained
and operated as independent, ongoing, economically viable and active
competitors in the waste disposal business or waste hauling business,
or both, in each Relevant Area; (2) management of the Relevant Disposal
Assets and Relevant Hauling Assets will not be influenced by USA Waste;
and (3) the books, records, competitively sensitive sales, marketing
and pricing information, and decision-making concerning the Relevant
Disposal Assets and Relevant Hauling Assets will be kept separate and
apart from defendants' other operations. USA Waste's influence over the
Relevant Disposal Assets and Relevant Hauling Assets shall be limited
to that necessary to carry out USA Waste's obligations under this Order
and the Final Judgment.
C. Defendants shall use all reasonable efforts to maintain and
increase the sales and revenues of the Relevant Disposal Assets and
Relevant Hauling Assets, and shall maintain at 1997 or at previously
approved levels, whichever are higher, all promotional, advertising,
sales, technical assistance, marketing and merchandising support for
the Relevant Disposal Assets and Relevant Hauling Assets.
D. Defendants shall provide sufficient working capital to maintain
the Relevant Disposal Assets and Relevant Hauling Assets as
economically viable, and competitive ongoing businesses.
E. Defendants shall take all steps necessary to ensure that the
Relevant Disposal Assets and Relevant Hauling Assets are fully
maintained in operable condition at no lower than their current
capacity or sales, and shall maintain and adhere to normal repair and
maintenance schedules for the Relevant Disposal Assets and Relevant
Hauling Assets.
F. Defendants shall not, except as part of a divestiture approved
by plaintiffs, remove, sell, lease, assign, transfer, pledge or
otherwise dispose of any of the Relevant Disposal Assets and Relevant
Hauling Assets.
G. Defendants shall maintain, in accordance with sound accounting
principles, separate, accurate and complete financial ledgers, books
and records that report on a periodic basis, such as the last business
day of every month, consistent with past practices, the assets,
liabilities, expenses, revenues and income of the Relevant Disposal
Assets and Relevant Hauling Assets.
H. Except as the ordinary course of business or as is otherwise
consistent with this Hold Separate Stipulation and Order, defendants
shall not hire, transfer, terminate, or otherwise alter the salary
agreements for any USA Waste or WMI employee who, on the date of
defendants' signing of this Hold Separate Stipulation and Order,
either: (1) works at a Relevant Disposal Asset or Relevant Hauling
Assets, or (2) is a member of management referenced in Section V(I) of
this Hold Separate Stipulation and Order.
I. Until such time as the Relevant Disposal Assets and Relevant
Hauling Assets are divested pursuant to the terms of the Final
Judgment, the Relevant Disposal Assets and Relevant Hauling Assets of
WMI and USA Waste shall be managed by Donald Chappel. Mr. Chappel shall
have complete managerial responsibility for the Relevant Disposal
Assets and Relevant Hauling Assets of WMI and USA Waste, subject to the
provisions of this Order and the Final Judgment. In the event that Mr.
Chappel is unable to perform this duties, defendants shall appoint,
subject to the approval of the United States, after consultation with
the Relevant States, a replacement within ten (10) working days. Should
defendants fail to appoint a replacement acceptable to the United
States, after consultation with the Relevant State, within ten (10)
working days the United States shall appoint a replacement.
J. Defendants Shall take no action that would interfere with the
ability of any trustee appointed pursuant to the Final Judgment to
complete the divestitures pursuant to the Final Judgment to purchasers
acceptable to the United States, after consultation with the Relevant
State.
K. This Hold Separate Stipulation and Order shall remain in effect
until consummation of the divestitures contemplated by the Final
Judgment or until further order of the Court.
VI. Defendants' Expectations
In consenting to the entry of this Final Judgment, each defendant
has relied upon, as a material factor, its understanding of the hauling
routes that it will be required to divest, as set forth in a letter
from James. R. Weiss and Neal R. Stoll, counsel for defendants, dated
July 14, 1998, and acknowledged by Anthony E. Harris, Antitrust
Division, U.S. Department of Justice, counsel for the United States.
Dated: July 16, 1998.
For Plaintiff United States of America:
Anthony E. Harris, Esquire
U.S. Department of Justice, Antitrust Division, Litigation II Section,
Suite 3000, Washington, DC 20005, (202) 307-6583.
For Defendants
[[Page 51129]]
USA Waste Services, Inc. and Dome Merger Subsidiary
James R. Weiss, Esquire
Preston Gates Ellis & Rouvelas Meeds LLP, 1735 New York Avenue, NW,
Washington, DC 20006-8425, (202) 662-8425.
J. Defendants shall take no action that would interfere with the
ability of any trustee appointed pursuant to the Final Judgment to
complete the divestitures pursuant to the Final Judgment to purchasers
acceptable to the United States, after consultation with the Relevant
State.
K. This Hold Separate Stipulation and Order shall remain in effect
until consummation of the divestitures contemplated by the Final
Judgment or until further order of the Court.
VI. Defendants' Expectations
In consenting to the entry of this Final Judgment, each defendant
has relied upon, as a material factor, its understanding of the hauling
routes that it will be required to divest, as set forth in a letter
from James R. Weiss and Neal R. Stoll, counsel for defendants, dated
July 14, 1998, and acknowledged by Anthony E. Harris, Antitrust
Division, U.S. Department of Justice, counsel for the United States.
Dated: July 16, 1998.
For Plaintiff United States of America
Anthony E. Harris, Esquire,
U.S. Department of Justice, Antitrust Division, Litigation II Section,
Suite 3000, Washington, DC 20005, (202) 307-6583.
For Defendants USA Waste Services, Inc. and Dome Merger
Subsidiary
James R. Weiss, Esquire,
Preston Gates Ellis & Rouvelas Meeds LLP, 1735 New York Avenue, NW,
Washington, DC 20006-8425, (202) 662-8425.
For Plaintiff State of Ohio
Betty D. Montgomery,
Attorney General.
Doreen C. Johnson,
Chief, Antitrust Section, Ohio Attorney General's Office, 30 East Broad
Street, 16th Floor, Columbus, OH 43215, (614) 446-4328.
For Plaintiff State of Arizona
Grant Woods,
Attorney General.
1275 West Washington, Phoenix, AZ 85007, (602) 542-7761
For Plaintiff State of California
Daniel E. Lungren,
Attorney General.
Barbara Motz,
Supervising Deputy Attorney General, 300 South Spring Street, Los
Angeles, CA (213) 897-2691.
For Plaintiff State of Colorado
Gale A. Norton
For Defendant Waste Management, Inc.
Neal R. Stoll, Esquire,
Skadden, Arpa, Slate, Meagher & Flom, 919 Third Avenue, New York, NY
10022-3897, (212) 735-3000.
For Plaintiff State of Ohio
Betty D. Montgomery,
Attorney General.
Doreen C. Johnson,
Assistant Attorney General, Chief, Antitrust Section, Ohio Bar No.
0024725.
Mitchell L. Gentile, Senior Attorney,
Ohio Bar No. 0022274.
Thomas G. Lingren,
Assistant Attorney General, Ohio Bar No. 0039210.
Ohio Attorney General's Office, 30 East Broad Street, 16th
Floor, Columbus, OH 43215, (614) 466-4328
For Plaintiff State of Arizona
Grant Woods,
Attorney General.
Nancy M. Bonnell,
Assistant Attorney General, Arizona Bar No. 016382, Antitrust Unit,
Civil Division, 1275 West Washington, Phoenix, AZ 85007, (602) 542-
7711, (602) 542-4801 (facsimile).
For Defendant Waste Management Services, Inc.
Neal R. Stoll, Esquire,
Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue, New York, NY
10022-3897, (212) 735-3000.
For Plaintiff State of California
Daniel E. Lungren,
Attorney General.
Roderick E. Walston,
Chief Assistant Attorney General.
Barbara Motz,
Acting Assistant Attorney General.
Natalie S. Manzo,
Deputy Attorney General, 300 South Spring Street, Room 5212, Los
Angeles, CA 90013, (213) 897-2704.
For Plaintiff State of Colorado
Gale A. Norton,
Attorney General.
Jan Michael Zavislan, Colorado Bar No. 11636,
First Assistant Attorney General.
Maria E. Berkenkotter, Colorado Bar No. 16781,
Assistant Attorney General.
State Services Building, 1525 Sherman Street, 5th Floor, Denver,
CO 80203, (303) 866-3613, (303) 866-5691
For Plaintiff State of Florida
Robert A. Butterworth,
Attorney General.
Lizabeth A. Leeds, Douglas L. Kilby,
Assistant Attorneys General, Antitrust Section, PL-01, The Capitol,
Tallahassee, FL 32399-1050, (850) 414-3856.
.For Plaintiff Commonwealth of Kentucky
Albert B. Chandler III,
Attorney General.
David R. Vandeventer,
Assistant Attorney General, Kentucky Bar No. 72790.
Consumer Protection, 1024 Capital Center Drive, Frankfort, KY
40601-8204, (502) 573-2200
For Plaintiff State of Maryland
J. Joseph Curran, Jr.,
Attorney General.
Ellen S. Cooper,
Assistant Attorney General, Chief, Antitrust Division.
John R. Tennis,
Assistant Attorney General.
Office of the Attorney General 200 St. Paul Place, Suite 17,
Baltimore, MD 21202-2021, (410) 576-6470
For Plaintiff State of Michigan
Frank J. Kelley,
Attorney General.
Paul F. Novak,
Assistant Attorney General, Consumer Protection Division, Franchise/
Antitrust Section, P.O. Box 30213, Lansing, MI 48909, (517) 373-7117.
For Plaintiff State of New York
Dennis C. Vacco,
Attorney General.
Stephen D. Houck,
Assistant Attorney General in Charge.
Richard E. Grimm,
Assistant Attorney General, Antitrust Bureau, Office of the Attorney
General, State of New York, 120 Broadway, Suite 26-01, New York, NY
10271, (212) 416-8271
Of Counsel:
Kay Taylor,
Assistant Attorney General.
For Plaintiff Commonwealth of Pennsylvania
D. Michael Fisher,
Attorney General.
James A. Donahue, III,
Chief Deputy Attorney General.
Garrett F. Gallia, Terry A. Lupia,
Deputy Attorneys General.
14th Floor, Strawberry Square, Harrisburg, PA 17120, (717) 787-
4530
[[Page 51130]]
For Plaintiff State of Texas
Dan Morales,
Attorney General.
Mark Tobey, Kim Van Winkle,
Assistant Attorneys General, P.O. Box 12548, Austin, TX 78711-2548,
(512) 320-0975.
For Plaintiff State of Washington
Christine O. Gregoire,
Attorney General.
Jon P. Ferguson,
Senior Counsel.
Marta Lowy,
Assistant Attorney General, Office of the Attorney General, 900 4th
Avenue, Suite 2000, Seattle, WA 98164-1012, (206) 464-7744.
For Plaintiff State of Wisconsin
James E. Doyle,
Attorney General of Wisconsin.
Edwin J. Hughes,
Assistant Attorney General, Wisconsin Department of Justice, P.O. Box
7857, Madison, WI 53707-7857, (608) 267-9487.
Assistant Attorney General, Wisconsin Department of Justice,
P.O. Box 7857, Madison, WI 53707-2818, (608) 264-9487
ORDER
IT IS SO ORDERED by the Court, this ______ day of July, 1998.
----------------------------------------------------------------------
United States District Judge
Final Judgment
WHEREAS, plaintiffs, the United States of America, the State of
Ohio, the State of Arizona, the State of California, the State of
Colorado, the State of Florida, the Commonwealth of Kentucky, the State
of Maryland, the State of Michigan, the State of New York, the
Commonwealth of Pennsylvania, the State of Texas, the State of
Washington, and the State of Wisconsin, and defendants USA Waste
Services, Inc. (``USA Waste'') and Waste Management, Inc. (``WMI''), by
their respective attorneys, having consented to the entry of this Final
Judgment without trial or adjudication of any issue of fact or law
herein, and without the Final Judgment constituting any evidence
against or an admission by any party with respect to any issue of law
or fact herein;
And Whereas, defendants have agreed to be bound by the provisions
of this Final Judgment pending its approval by the Court;
And Whereas, the essence of the Final Judgment is the prompt and
certain divestiture of the Relevant Disposal Assets and Relevant
Hauling Assets to assure that competition is not substantially
lessened;
And Whereas, plaintiffs require defendants to make certain
divestitures for the purpose of establishing one or more viable
competitors in the waste disposal business, the commercial waste
hauling business, or both in the specified areas;
And Whereas, defendants have represented to the plaintiffs that the
divestitures ordered herein can and will be made and that defendants
will later raise no claims of hardship or difficulty as grounds for
asking the Court to modify any of the divestiture provisions contained
below;
Now, Therefore, before the taking of any testimony, and without
trial or adjudication of any issue of fact or law herein, and upon
consent of the parties hereto, it is hereby Ordered, Adjudged, and
Decreed as follows:
I. Jurisdiction
This Court has jurisdiction over each of the parties hereto and
over the subject matter of this action. The Complaint states a claim
upon which relief may be granted against defendants, as hereinafter
defined, under Section 7 of the Clayton Act, as amended, 15 U.S.C.
Sec. 18.
II. Definitions
As used in this Final Judgment:
A. USA Waste means defendant USA Waste Services, Inc., a Delaware
corporation with its headquarters in Houston, Texas, and includes its
successors and assigns, and its subsidiaries (including Dome Merger
Subsidiary), divisions, groups, affiliates, directors, officers,
managers, agents, and employees.
B. WMI means defendant Waste Management, Inc., a Delaware
corporation with its headquarters in Oak Brook, Illinois, and includes
its successors and assigns, and its subsidiaries, divisions, groups,
affiliates, directors, officers, managers, agents, and employees.
C. Relevant Disposal Assets means, unless otherwise noted, with
respect to each landfill or transfer station listed and described
herein, all tangible asses, including all fee and leasehold and renewal
rights in the listed landfill or transfer station; the garage and
related facilities; offices; landfill- or transfer station-related
assets including capital equipment, trucks and other vehicles, scales,
power supply equipment, interests, permits, and supplies; and all
intangible assets of the listed landfill or transfer station, including
landfill- or transfer station-related customer lists, contracts, and
accounts, or options to purchase any adjoining property.
Relevant Disposal Assets, as used herein, includes each of the
following properties:
1. Landfills and Airspace Disposal Rights
a. Akron/Canton, OH
WMI's Countywide R&D Landfill, located at 3619 Gracemont Street,
SW, East Sparta, OH 44626, and known as the Countywide Landfill;
b. Columbus, OH
USA Waste's Pine Grove Landfill, located at 5131 Drinkle Road, SW,
Amanda, OH 43102;
c. Denver, CO
USA Waste's Front Range Landfill, located at 1830 County Road 5,
Erie, CO 80516-8005; and at purchaser's option, a two-year waste supply
agreement that would require defendants to dispose of a minimum of 150
tons/day of waste at the Front Range Landfill, at disposal fees to be
negotiated between purchaser and defendants;
d. Detroit, MI
USA Waste' Carleton Farms Landfill, located at 28800 Clark Road,
New Boston, MI, subject to two conditions, viz., USA Waste's
obligations to (1) dispose of ash from the Greater Detroit Resource
Recovery Center's incinerator at a separate monofill cell on this site
pursuant to an existing contract, and (2) dispose of waste from the
Greater Detroit Resource Recovery Center's bypass transfer station at
this landfill, until defendants transfer such obligation to another
landfill, which they shall use their best efforts to accomplish
expeditiously;
e. Flint, MI
USA Waste's Brent Run Landfill, located at Vienna Road, Montrose
Township, Genesee County, MI;
f. Houston, TX
(1) USA Waste's Brazoria County Landfill, located at 10310 FM-523,
Angleton, TX 77515; and
(2) Airspace disposal rights at WMI's Security Landfill, located at
19248 Highway 105E, Cleveland, TX, or WMI's Atascocita Landfill,
located at 2020 Atascocita Road, Humble, TX, or both, pursuant to which
defendants will sell to one or more purchasers rights to dispose of at
least 3.0 million tons of waste, over a ten-year period, under the
following minimum terms and conditions:
(a) The purchaser (or all purchasers combined), or their
designee(s), may dispose of up to 360,000 tons of waste/year, or a
maximum of 1,200 tons of waste/day, at either, or both of, WMI's
Security or Atascocita landfills. If more than one person purchases the
airspace
[[Page 51131]]
disposal rights, the minimum annual and daily disposal rates for each
purchaser shall be specified in its purchase agreement, and the total
of all purchasers' maximum disposal amounts shall be no less than
360,000 tons/year and 1,200 tons/day;
(b) For each purchaser of airspace rights (or their designee),
defendants must commit to operate the Atascocita Landfill and Security
Landfill gates, scale houses, and disposal areas under terms and
conditions no less favorable than those provided to defendants' own
vehicles or to the vehicles of any municipality in the metropolitan
Houston area, except as to price and credit terms;
(c) At the end of the first five years of the agreement, the
purchaser or purchasers will have been considered to have used a
minimum of 1.4 million tons of airspace and can have no more than 1.6
million tons left to use under the purchase agreements. If there is
more than one purchaser of the airspace, the minimum amounts used
during the first five years shall be specified in their purchase
agreements, but the total amount shall be no more than 1.4 million
tons; and
(d) At the end of the first seven years of the agreement, the
purchaser (or purchasers) will have been considered to have used a
minimum of 2.0 million tons of airspace and can have no more than 1.0
million tons left to use under the purchase agreements. If there is
more than one purchaser of the airspace, the minimum amount used during
the first five years shall be specified in their purchase agreements,
but the total amount shall be no more than 2.0 million tons;
g. Los Angeles, CA
USA Waste's Chiquita Canyon Landfill, located at 29201 Henry Mayo
Drive, Valencia, CA 91355;
h. Louisville, KY
USA Waste's Valley View Landfill, located at 9120 Sulphur Road,
Sulphur, KY 40070;
i. Miami, FL
Airspace disposal rights at USA Waste's Okeechobee Landfill,
controlled by a subsidiary of USA Waste, and located at 10800 NE 128th
Avenue, Okeechobee, FL 34972, pursuant to which defendants will sell a
total of 4.3 million tons of airspace, over a 20-year time period, to
one or more purchasers, under the following minimum terms and
conditions:
(1) The right to dispose of a maximum of 1.8 million tons of South
Florida Waste, over a 20-year time period, as follows:
(a) The purchaser (or purchasers) must commit to dispose of no more
than 600 tons/day, of South Florida Waste;
(b) The total amount of airspace used in each year may not exceed
150,000 tons; and
(2) Three options for additional airspace at Okeechobee Landfill,
exercisable at the sole discretion of the purchaser of the airspace
disposal rights, as follows:
(a) First Options: The right to dispose of an additional 1.0
million tons of South Florida Waste at the Okeechobee Landfill, for the
remaining term of the agreement, as follows:
(i) The amount of airspace used each weekday must be at least 500
tons, but not more than 800 tons (including tonnage disposed of under
prior air space commitments); and
(ii) The amount of airspace used in the year the option is
exercised, and in each succeeding year over the term of the agreement,
may not exceed 225,000 tons (including tonnage disposed of under prior
air space commitments);
(b) Second Option: Exercisable at any time after the second
anniversary of the agreement, and after exercise of the first option,
the right to dispose of an additional 1.0 million tons of South Florida
Waste at the Okeechobee Landfill, for the remaining term of the
agreement, as follows:
(i) The amount of airspace used each weekday must be at least 600
tons, but not more than 1,000 tons/day (including tonnage disposed of
under prior air space commitments); and
(ii) The amount of airspace used in the year Option Two is
exercised and in each succeeding year of the life of the rights may not
exceed 300,000 tons (including tonnage disposed of under prior air
space commitments); and
(c) Third Option: Exercisable any time after the fifth anniversary
of the agreement, and after exercise of the second option, the right to
dispose of an additional 500,000 tons of South Florida Waste, for the
remaining term of the agreement, as follows:
(i) The amount of airspace used must be at least 600 tons/weekday,
but may not exceed 1,100 tons/weekday, (including tonnage disposed of
under prior air space commitments);
(ii) The amount of airspace used in the year the third option is
exercised, and in each succeeding year of the life of the rights may
not exceed 300,000 tons/year (including tonnage disposed of under prior
air space commitments); provided, that in any event,
(d) The Okeechobee Landfill Rights shall expire when the purchaser
has used the maximum tonnages available under the rights and exercised
options, or twenty years from the date of purchase of the rights,
whichever is sooner; and
(e) For each purchaser of airspace rights (or its designee),
defendants must commit to operate the Okeechobee Landfill, and its
gate, scale house, and disposal area under terms and conditions no less
favorable than those provided to defendant's own vehicles or to the
vehicles of any municipality in Florida, except as to price and credit
terms;
j. Milwaukee, WI
USA Waste's Kestrel Hawk Landfill, located at 1989 Oakes Road,
Racine, WI 53406; and WMI's Mallard Ridge Landfill, located at W. 8470
State Road 11, Delavan, WI 53115;
k. New York, NY/Philadephia, PA
WMI's Modern Landfill & Recycling, located at 4400 Mt. Piscah Road,
York, PA 17402, and know as the Modern Landfill;
l. Northeast Michigan
USA Waste's Whitefeather Landfill, located at 2401 Whitefeather
Road, Pinconning, MI; and Elk Run Sanitary Landfill, located at 20676
Five Mile Highway, Onaway, MI;
m. Pittsburgh, PA
WMI's Green Ridge Landfill, located at 717 East Huntingdon Landfill
Road, Scottdale, PA 15683, and variously known as the Green Ridge
Landfill, the Y&S Landfill, or the Greenridge Reclamation Landfill;
n. Portland, OR
USA Waste's North WASCO Landfill, located at 2550 Steele Road, The
Dalles, OR 97058; and
2. Transfer Stations, Disposal Rights and Throughput Agreements
a. Akron/Canton, OH
Throughput disposal rights of a maximum of 400 tons/day of waste,
for a ten-year time period, at WMI's Akron Central Transfer Station,
located at 389 Fountain Street, Akron, OH, under the following terms
and conditions:
(1) The purchaser (or its designee) can deliver waste to the Akron
Central Transfer Station for processing and, at the purchaser's option,
load the processed waste into the purchaser's (or its designee's)
vehicles for disposal;
(2) For each purchaser of such disposal rights (or its designee),
defendants must commit to operate the listed Akron Central Transfer
Station's gate, scale house, and disposal area
[[Page 51132]]
under terms and conditions no less favorable than those provided to
defendants' own vehicles or to the vehicles of any municipality in
Ohio, except as to price and credit terms;
b. Baltimore, MD
Disposal rights of at least 600 tons of waste/day, pursuant to
which defendants will sell to one or more purchasers rights to dispose,
for a five-year time period, under the following terms and conditions:
(1) The purchaser(s) or its designee(s) may dispose of waste at any
one or any combination of the following facilities, as specified in its
purchase agreement: Southwest Resource Recovery Facility (known as
Baltimore RESCO or BRESCO), located at 1801 Annapolis Road, Baltimore,
MD 21230; Baltimore County Resource Recovery Facility, located at 10320
York Road, Cockeysville, MD; Western Acceptance Facility, located at
3310 Transway Road, Baltimore, MD; or Annapolis Junction Transfer
Station, located at 8077 Brock Bridge Road, Jessup, MD 20794. If more
than one person purchases the disposal rights, the minimum daily
disposal rates, and the total of all purchasers' maximum disposal
amounts at all facilities specified shall be no less than 600 tons/day;
(2) For each purchaser of disposal rights (or its designee),
defendants must commit to operate the listed Baltimore, MD area
facilities' gates, scale houses, and disposal areas under terms and
conditions no less favorable than those provided to defendants' own
vehicles or to the vehicles of any municipality in Maryland, except as
to price and credit terms;
c. Cleveland, OH
At purchaser's option, either USA Waste's Newburgh Heights Transfer
Station, located at 3227 Harvard Road, Newburgh Heights, OH 44105 (and
known as the Harvard Road Transfer Station); or all of WMI's right,
title and interest in the Strongsville Transfer Station, located at
16099 Foltz Industrial Parkway, Strongsville, OH; provided, however,
that the City of Strongsville, owner of the transfer station, approves
such sale or assignment. Defendants will exercise their best efforts to
secure the assignment to the purchaser of all their rights, title and
their interests in the Strongsville Transfer Station, and in the event
the purchaser selects Strongsville, defendants will not reacquire any
right, title or interest in the Strongsville transfer station. If the
contract is not assigned, defendants will enter into a disposal rights
agreement with the purchaser (or purchasers), which will provide, in
effect, that the purchaser(s) will enjoy all disposal rights and
privileges now enjoyed by defendants at the Strongsville Transfer
Station, and that defendants will operate the facility's gate, scale
house, and disposal areas under terms and conditions no less favorable
than those provided to defendants' own vehicles or to the vehicles of
any municipality in Ohio, except as to price and credit terms;
d. Columbus, OH
WMI's Reynolds Road Transfer Station, located at 805 Reynolds
Avenue, Columbus, OH 43201;
e. Detroit, MI
WMI's Detroit Transfer Station, located at 12002 Mack Avenue,
Detroit, MI 48215;
f. Houston, TX
USA Waste's Hardy Road Transfer Station, located at 18784 East
Hardy, Houston, TX;
g. Louisville, KY
USA Waste's Poplar Level Road Transfer Station, located at 4446
Poplar Level Road, Louisville, KY:
h. Miami, FL
All USA Waste's right, title, and interest in the Reuters Transfer
Station Rights, as conveyed to Chambers Waste Systems of Florida, a
subsidiary of USA Waste, pursuant to the Final Judgment in United
States v. Reuter Recycling of Florida, Inc., 1996-1 Trade Cas. (CCH)
para. 71,353 (D.D.C. 1996), a copy of which is attached as Exhibit A;
i. New York, NY
(1) WMI's SPM Transfer Station, located at 912 East 132nd Street,
Bronx, NY 10452, and all rights and interest, legal or otherwise, that
WMI now enjoys, has had or made use of out of the SPM Transfer Station,
to deliver waste by truck to rail siding at the Oak Point Rail Yard in
the Bronx, NY, and at the Harlem River Yards facility, located at St.
Ann's and Lincoln Avenue at 132nd Street, Bronx, NY 10454;
(2) All right, title, and interest in USA Waste's pending
application to construct and operate a waste transfer station located
at 2 North 5th Street, Brooklyn, NY 11211, and known as the
Nekboh Transfer Station; and
(3) USA Waste's all City Transfer Station, located at 246-252
Plymouth Street, Brooklyn, NY 11202; and
(4) WMI's Brooklyn,Transfer Station, located at 485 Scott Avenue,
Brooklyn, NY 12222, but only in the event that USA Waste's Nekboh
Transfer Station has not been licensed or permitted to accept waste
within one year from the date of entry of the Final Judgment; and
j. Philadelphia, PA
USA Waste's Girard Point Transfer Station, located at 3600 South
25th Streets, Philadelphia, PA 19145; and USA Waste's Quick
Way Inc. Municipal Waste Transfer Station, located at SE Corner, Bath
and Orthodox Streets, Philadelphia, PA 19137, subject to the conditions
that (1) the existing City of Philadelphia waste contract is
transferred to a WMI transfer station, which defendants must use their
best efforts to accomplish, and (2) until such transfer is effected,
USA Waste will be granted through put capacity at the Quick Way
Transfer Station to handle this contract.
D. ``Relevant Hauling Assets,'' unless otherwise noted, means with
respect to each commercial waste collection route or other hauling
asset described herein, all tangible assets, including capital
equipment, trucks and other vehicles, containers, interest, permits,
supplies [except real property and improvements to real property (i.e.,
buildings)] and it includes all intangible assets, including hauling-
related customer lists, contract, and accounts.
Relevant hauling Assets, as used herein, includes the assets in the
following locations:
1. Akron, OH
USA Waste's and American Waste Corporation's front-end loader truck
(``FEL'') commercial routes that serve the City of Akron and Summit
County, Ohio;
2. Allentown, PA
WMI's FEL commercial routes that serve the cities of Allentown and
Northampton and Lehigh County, PA;
3. Cleveland, OH
WMI's FEL commercial routes that serve the City of Cleveland and
Cuyahoga County, Ohio (not including the northwestern quadrant);
4. Columbus, OH
WMI's FEL commercial routes that serve Franklin County, Ohio;
5. Denver, CO
USA Waste's FEL commercial routes that serve the City of Denver,
and Denver and Arapahoe County, CO;
6. Detroit, MI
WMI's FEL commercial routes that serve the City of Detroit and
Wayne County, MI;
[[Page 51133]]
7. Houston, TX
WMI's FEL commercial routes that serve the City of Houston, the
Dickinson area, and Harris County, TX;
8. Louisville, KY
USA Waste's FEL commercial routes that serve the City of Louisville
and Jefferson Country, KY;
9. Pittsburgh, PA
WMI's FEL commercial routes that serve Allegheny County and
Westmoreland County, PA, and the garage facility (real estate and
improvements) located at the Y&S Landfill;
10. Portland, OR
WMI's FEL commercial routes that serve the City of Portland, OR;
11. Tucson, AZ
USA Waste's FEL commercial routes that serve the City of Tucson and
Pima County, AZ; and
12. Gainesville, FL
WMI's FEL commercial routes that serve Alachua County, FL.
E. Hauling means the collection of waste from customers and the
shipment of the collected waste to disposal sites. Hauling, as used
herein, does not include collection of roll-off containers.
F. Waste means municipal solid waste.
G. Disposal means the business of disposing of waste into approved
disposal sites.
H. Relevant Area means the county in which the Relevant Hauling
Asset or Relevant Disposal Assets are located and any adjacent city or
county, except with respect to the Modern Landfill [see Section
II(C)(1)(k)], for which the Relevant Area means Philadelphia, PA, and
New York, NY.
I. Relevant State means the state in which the Relevant Disposal
Assets or Relevant Hauling Assets are located, provided however, that
stat is a party to this Final Judgment. With respect to the Modern
Landfill [see Section II(C)(1)(k)], the Relevant State means the
Commonwealth of Pennsylvania and the State of New York. With respect to
Section VII, the Relevant State means each state in which the disposal
or hauling assets to be acquired are located, provided that state is a
party to this Final Judgment.
J. South Florida Waste means waste collected, or delivered directly
from a transfer station located, in Broward, Dade or Monroe County, FL.
III. Applicability
A. The provisions of this Final Judgment apply to defendants, their
successors and assigns, subsidiaries, directors, officers, managers,
agents, and employees, and all other persons in active consent or
participation with any of them who shall have received actual notice of
this Final Judgment by personal service or otherwise.
B. Defendants shall require, as a condition of the sale or other
disposition of all or substantially all of its assets, or of a lesser
business unit that includes defendants' hauling or disposal businesses
in any Relevant Area, that the acquiring party or parties agree to be
bound by the provisions of this Final Judgment.
IV. Divestitures
A. With the exception of the Brooklyn Transfer Station (Section
II(C)(2)(i)(4)), defendants are hereby ordered and directed, in
accordance with the terms of this Final Judgment, within one hundred
and twenty (120) calendar days after the filing of the Complaint in
this matter, or five (5) days after notice of the entry of this Final
Judgment by the Court, whichever is later, to sell all Relevant
Disposal Assets and Relevant Hauling Assets as viable, ongoing
businesses to a purchaser or purchasers acceptable to the United
States, in its sole discretion, after consultation with the Relevant
State.
B. In the event that USA Waste's Nekboh Transfer Station has not
been licensed or permitted to accept waste within one year from the
date of entry of the Final Judgment, defendants are hereby ordered and
directed, in accordance with the terms of Sections II, IV, V and VI of
this Final Judgment, within one hundred and twenty (120) calendar days
after such anniversary date, to sell WMI's Brooklyn Transfer Station,
located at 485 Scott Avenue, Brooklyn, NY 12222, as a viable, ongoing
businesses to a purchaser or purchasers acceptable to the United
States, in its sole discretion, after consultation with the Relevant
State.
C. Defendants shall sue their best efforts to accomplish the
diversitures ordered by this Final Judgment as expenditously and timely
as possible. The United States, in its sole discretion, after
consultation with the Relevant State, may extend the time period for
any divestiture an additional period of time, not to exceed sixty (60)
calendar days.
D. In accomplishing the divestitures ordered by this Final
Judgment, defendants promptly shall make known by usual and customary
means, the availability of the Relevant Disposal Assets and the
Relevant Hauling Assets. Defendants shall inform any person making an
inquiry regarding a possible purchase that the sale is being made
pursuant to this Final Judgment and provide such person with a copy of
this Final Judgment. Defendants shall also offer to furnish to all bona
fide prospective purchasers, subject to customary confidentiality
assurances, all information regarding the Relevant Disposal Assets and
Relevant Hauling Assets customarily provided in a due diligence process
except such information subject to attorney-client privilege or
attorney work-product privilege. Defendants shall make available such
information to the plaintiffs at the same time that such information is
made available to any other person.
E. Defendants shall not interfere with any negotiations by any
purchaser to employ any USA Waste (or former WMI) employee who works
at, or whose primary responsibility concerns, any disposal or hauling
business that is part of the Relevant Disposal Assets or Relevant
Hauling Assets.
F. Defendants shall permit prospective purchasers of the Relevant
Disposal Assets or Relevant Hauling Assets to have access to personnel
and to any and all environmental, zoning, and other permit documents
and information, and to make inspection of the Relevant Disposal Assets
and Relevant Hauling Assets and of any and all financial, operational,
or other documents and information customarily provided as part of a
due diligence process.
G. With the exception of the facilities described in Sections
II(C)(2)(e), (h) and (i)(2), defendants shall warrant to each purchaser
of Relevant Disposal Assets or Relevant Hauling Assets that each asset
will be operational on the date of sale.
H. Defendants shall not take any action, direct or indirect, that
will impede in any way the operation of the Relevant Disposal Assets or
Relevant Hauling Assets.
I. Defendants shall warrant to each purchaser of Relevant Disposal
Assets or Relevant Hauling Assets that there are no material defects in
the environmental, zoning, or other permits pertaining to the operation
of each asset, and that defendants will not undertake, directly or
indirectly, following the divestiture of each asset, any challenges to
the environmental, zoning, or other permits or applications for permits
or licenses pertaining to the operation of the asset.
J. Unless the United States, after consultation with the Relevant
State, otherwise consents in writing, the divestitures pursuant to
Section IV, or by trustee appointed pursuant to Section V of this
Judgment, shall
[[Page 51134]]
include all Relevant Disposal Assets and Relevant Hauling Assets and be
accomplished by selling or otherwise conveying each asset to a
purchaser in such a way as to satisfy the United States, in its sole
discretion, after consultation with the Relevant State, that the
Relevant Disposal Assets or Relevant Hauling Assets can and will be
used by the purchaser as part of a viable, ongoing business or
businesses engaged in waste disposal or hauling. The divestitures,
whether pursuant to Section IV or Section V of this Final Judgment,
shall be made to a purchaser (or purchasers) for whom it is
demonstrated to the United States sole satisfaction, after consultation
with the Relevant State, that: (1) the purchaser(s) has the capability
and intent of competing effectively in the waste disposal or hauling
business in the Relevant Area; (2) the purchaser(s) has the managerial,
operational, and financial capability to compete effectively in the
waste disposal or hauling business in the Relevant Area; and (3) none
of the terms of any agreement between the purchaser and defendants
gives any defendant the ability unreasonably to raise the purchaser's
costs, lower the purchaser's efficiency, or otherwise interfere in the
ability of the purchaser to compete effectively in the Relevant Area.
K. A purchaser of any Relevant Disposal Assets or Relevant Hauling
Assets under this Final Judgment must demonstrate to the satisfaction
of the United States, after consultation with the Relevant State, that
the purchaser will comply with any and all applicable federal, state
and local environmental and licensing laws.
L. Defendants may enter into an agreement, after review and
approval of the United States, in its sole discretion, after
consultation with the Relevant State, with a purchaser or purchasers of
the Chiquita Canyon, Brazoria or Carleton Farms landfills (see Sections
II (C)(1)(g), (f) and (d) for disposal of commercially acceptable waste
collected or transferred from defendants' own route operations.
V. Appointment of Trustee
A. In the event that defendants have not sold the Relevant Disposal
Assets or Relevant Hauling Assets within the time specified in Section
IV of this Final Judgment, the Court shall appoint, on application of
the United States, a trustee selected by the United States, to effect
the divestiture of each Relevant Disposal Asset or Relevant Hauling
Asset not sold.
B. After the appointment of a trustee becomes effective, only the
trustee shall have the right to sell the Relevant Disposal Assets or
Relevant Hauling Assets described in Sections II (C) and (D) of this
Final Judgment. The trustee shall have the power and authority to
accomplish any and all divestitures at the best price than obtainable
upon a reasonable effort by the trustee, subject to the provisions of
Section IV, VI, and IX of this Judgment, and shall have such others
powers as the Court shall deem appropriate. Subject to Section V(C) of
this Judgment, the trustee shall have the power and authority to hire
at the cost and expense of defendants any investment bankers,
attorneys, or other agents reasonably necessary in the judgment of the
trustee to assist in the divestitures, and such professionals and
agents shall be accountable solely to the trustee. To assist in the
sale of the Brent Run Landfill, described in Section II(C)(1)(e) of
this Judgment, the trustee also shall have the power and authority to
commit defendants to supply waste from defendant's routes in the
Relevant Area to that landfill for up to a five-year time period at the
best disposal price than obtainable upon reasonable effort by the
trustee. The trustee shall have the power and authority to accomplish
the divestitures at the earliest possible time to a purchaser or
purchasers acceptable to the United States, in its sole discretion,
after consultation with the Relevant State, and shall have such other
powers as this Court shall deem appropriate. Defendants shall not
object to a sale by the trustee on any ground other than the trustee's
malfeasance. Any such objections by defendants must be conveyed in
writing to the United States and the Relevant State and trustee with
ten (10) calendar days after the trustee has provided the notice
required under Section VI of this Final Judgment.
C. The trustee shall serve at the cost and expense of defendants,
on such terms and conditions as the Court may prescribe, and shall
account for all monies derived from the sale of each Relevant Disposal
Asset or Relevant Hauling Asset sold by the trustee and all costs and
expenses so incurred. After approval by the Court of the trustee's
accounting, including fees for its services and those of any
professionals and agents retained by the trustee, all remaining money
shall be paid to defendants and the rust shall then be terminated. The
compensation of such trustee and of any professionals and agents
retained by the trustee shall be reasonable in light of the value of
the divested business and based on a fee arrangement providing the
trustee with an incentive based on the price and terms of the
divestiture and the speed with which it is accomplished.
D. Defendants shall use their best efforts to assist the trustee in
accomplishing the required divestitures, including best efforts to
effect all necessary regulatory approvals. The trustee and any
consultants, accountants, attorneys, and other persons retained by the
trustee shall have full and complete access to the personnel, books,
records, and facilities of the businesses to be divested, and
defendants shall develop financial or other information relevant to the
businesses to be divested customarily provided in a due diligence
process as the trustee may reasonably request, subject to customary
confidentiality assurances. Defendants shall permit bona fide
prospective purchasers of each Relevant Disposal Asset or Relevant
Hauling Asset to have reasonable access to personnel and to make such
inspection of physical facilities and any and all financial,
operational or other documents and other information as may be relevant
to the divestitures required by this Final Judgment.
E. After its appointment, the trustee shall file monthly reports
with the parties and the Court setting forth the trustee's efforts to
accomplish the divestitures ordered under this Final Judgment;
provided, however, that to the extent such reports contain information
that the trustee deems confidential, such reports shall not be filed in
the public docket of the court. Such reports shall include the name,
address and telephone number of each person who, during the preceding
month, made an offer to acquire, expressed an interest in acquiring,
entered into negotiations to acquire, or was contacted or made an
inquiry about acquiring, any interest in the business to be divested,
and shall describe in detail each contact with any such person during
that period. The trustee shall maintain full records of all efforts
made to sell the businesses to be divested.
F. If the trustee has not accomplished such divestitures within six
(6) months after its appointment, the trustee thereupon shall file
promptly with the Court a report setting forth (1) the trustee's
efforts to accomplish the required divestitures, (2) the reasons, in
the trustee's judgment, why the required divestitures have not been
accomplished, and (3) the trustee's recommendations; provided, however,
that to the extent such reports contain information that the trustee
deems confidential, such reports shall not be filed in the public
docket of the Court. The trustee shall at the same time
[[Page 51135]]
furnish such report to the parties, who shall each have the right to be
heard and to make additional recommendations consistent with the
purpose of the trust. The Court shall enter thereafter such orders as
it shall deem appropriate in order to carry out the purpose of the
trust which may, if necessary, include extending the trust and the term
of the trustee's appointment by a period requested by the United
States.
VI. Notice of Proposed Divestitures
Within two (2) business days following execution of a definitive
agreement, contingent upon compliance with the terms of this Final
Judgment, to effect, in whole or in part, any proposed divestiture
pursuant to Sections IV or V of this Final Judgment, defendants or the
trustee, whichever is then responsible for affecting the divestiture,
shall notify the United States and the Relevant State of the proposed
divestiture. If the trustee is responsible, it shall similarly notify
defendants. The notice shall set forth the details of the proposed
transaction and list the name, address, and telephone number of each
person not previously identified who offered to, or expressed an
interest in or a desire to, acquire any ownership interest in the
business to be divested that is the subject of the binding contract,
together with full details of same. Within fifteen (15) calendar days
of receipt by the United States and the Relevant State of such notice,
the United States, in its sole discretion, after consultation with the
Relevant State, may request from defendants, the proposed purchaser, or
any other third party additional information concerning the proposed
divestiture and the proposed purchaser. Defendants and the trustee
shall furnish any additional information requested from them within
fifteen (15) calendar days of the receipt of the request, unless the
parties shall otherwise agree. Within thirty (30) calendar days after
receipt of the notice [or within twenty (20) calendar days after the
United States and the Relevant State have been provided the additional
information requested from defendants, the proposed purchaser, and any
third party, whichever is later], the United States, after consultation
with the Relevant State, shall provide written notice to defendant and
the trustee, if there is one, stating whether or not it objects to the
proposed divestiture. If the United States provides written notice to
defendants (and the trustee, if applicable) that it does not object,
then the divestiture may be consummated, subject only to defendants'
limited right to object to the sale under Section V(B) of this Final
Judgment. Upon objection by the United States, a divestiture proposed
under Section IV or Section V of this Final Judgment shall not be
consummated. Upon objection by defendants under the provision in
Section V(B), a divestiture proposed under Section V shall not be
consummated unless approved by the Court.
VII. Notice of Future Acquisitions
A. Defendants shall provide each Relevant State with 30 days'
written notice (which period may be shortened by permission of the
Relevant State) before acquiring, directly or indirectly, any interest
in any business, assets (other than in the ordinary course of
business), capital stock, or voting securities of any person that, at
any time during the twelve (12) months immediately preceding such
acquisition, was engaged in waste disposal or small containerized solid
waste hauling in any area listed in Section VII(B), where that person's
annual revenues from waste disposal or small containerized solid waste
hauling in the area were in excess of $500,000 annually, or its total
revenues were in excess of $,000,000 annually.
B. The notice provisions set forth in Section VII (A) above apply
whenever defendants seek to acquire any interest in any business,
assets (other than in the ordinary course of business), capital stock,
or voting securities of any person that was engaged in waste disposal
or small containerized solid waste hauling in any of the following
areas:
------------------------------------------------------------------------
Area of which defendants must provide
Relevant state relevant state notice of future
acquisitions
------------------------------------------------------------------------
Arizona...................... Pima Co. (hauling and disposal).
California................... Los Angeles and Riverside (hauling and
disposal); Ventura and Orange Co.
(disposal only).
Colorado..................... Boulder and Denver Co. (hauling and
disposal).
Florida...................... Brevard, Alachua, Marion, Orange,
Osceola, Seminole, Lee, Charlotte,
Sarsota, Putnam, Volusia and Flagler Co.
(hauling and disposal).
Kentucky..................... Jefferson and Oldham Co. (hauling and
disposal).
Maryland..................... Baltimore City, Baltimore, Anne Arundel,
Hartford, Carroll, Howard, Montgomery,
and Prince George's Co. (hauling and
disposal).
Michigan..................... Wayne, Macomb, and Oakland Co. (hauling
and disposal); Genessee, Shiiawassee,
Saginaw, Bay, Midland, Wexford, Manistee
and Montmorency Co. (disposal only).
New York..................... New York, Bronx, Kings, Queens, and
Richmond Co. (disposal only).
Ohio......................... Ashtabula, Cuyahoga, Delaware, Fairfield,
Franklin, Geauga, Lake Licking, Lorain,
Lucas, Mahoning, Medina, Pickaway,
Portage, Stark, Summit, Trumbull, and
Wood Co. (hauling and disposal);
Carroll, Columbiana, Coshocton, Holmes,
Knox, Madison, Tuscarawas, Union and
Wayne Co. (disposal only).
Pennsylvania................. Allegheny, Westmoreland, Washington,
Beaver, Butler, Lehigh, Northampton,
Dauphin, Cumberland, and Perry Co.
(hauling and disposal); Philadelphia,
Bucks, Montgomery, and Delaware Co.
(disposal only).
Texas........................ Brazoria, Chambers, Ft. Bend, Galveston,
Harris, Liberty, Montgomery, Walker and
Waller Co. (hauling and disposal).
Washington................... Cowlitz and Clark Co. (hauling and
disposal).
Wisconsin.................... Milwaukee, Waukesha, Racine, Washington,
Kenosha, Ozaukee, Walworth, Jefferson
and Dane Co. (disposal only).
------------------------------------------------------------------------
C. For purposes of this Section VII, the term ``small containerized
solid waste hauling'' means the provision of solid waste hauling
service to commercial customers by providing the customer with a one to
ten cubic yard container, which is picked up mechanically using a
frontload, rearload or sideload truck, and excludes hand pick-up
service, and service using a compactor attached to or part of a
container.
[[Page 51136]]
VIII. Defendants' Additional Obligations
Defendants are hereby ordered and directed to, in accordance with
the terms of this Final Judgment:
A. Offer to extend, for an additional ten-year time period, the
Solid Waste Service Agreement, dated August 8, 1996, by and between the
Northeast Maryland Waste Disposal Authority and USA Waste's subsidiary,
Garnet of Maryland, Inc. (attached hereto as Exhibit B), for the
disposal of Anne Arundel County, MD and Howard County, MD waste at the
Annapolis Junction Transfer Station;
B. Use their best efforts, prior to its divestiture, to obtain any
and all licenses and permits to open and operate USA Waste's Nekboh
Transfer Station, described in Section II(C)(2)(i)(2); and for a five-
year period following such divestiture, to cooperate and assist the
purchaser in obtaining any and all licenses or permits required to
operate Nekboh Transfer Station and to refrain from opposing any
application by the purchaser to obtain a license or permit to expand
the Nekboh Transfer Station;
C. For a one-year period following entry of this Final Judgment,
refrain from opposing any application by any person for permit or
license to operate any waste transfer station in any borough of the
City of New York, NY;
D. For a five-year period following entry of this Final Judgment,
refrain from opposing any application by any person to obtain a license
or permit to expand the remaining capacity or the average daily
capacity of the Emerald Park Landfill, Glacier Ridge Landfill, or
Valley Meadows Landfill, in the Greater Milwaukee, WI area;
E. Refrain from reacquiring any interest in any Relevant Disposal
Assets or Relevant Hauling Assets divested pursuant to the terms of
this Final Judgment, without prior written notice to, and written
consent of, the Untied States and the Relevant State;
F. Refrain from conditioning the sale of any landfill pursuant to
this Final Judgment on any understanding, agreement or commitment,
written or understood, that the purchaser (or purchasers) will agree to
sell airspace or otherwise permit defendants to dispose of waste in
that landfill; provided, however, that USA Waste's Carleton Farms
Landfill may be divested subject to USA Waste's obligation to dispose
of ash from the Greater Detroit Resource Recovery Center's incinerator
at a separate monofill cell on the Carleton Farms Landfill site;
G. Refrain from taking any action to enforce any agreement or
understanding that would prohibit any person from competing in Alachua
or Marion County, FL: provided, however, that this provision shall not
apply to a current or former employee of defendants (other than any
employee who may be responsible in any way for route operations subject
to divestiture under Sections II(D)(12), IV and V of this Judgment);
and
H. Provide access to the gate, scale house and disposal area of the
WMI Tucson transfer station, located at 5200 West Ina, Tucson, AZ,
under terms and conditions no less favorable than those provided to
defendants' own vehicles or to the vehicles of any county or
municipality in Arizona.
IX. Affidavits
A. Within twenty (20) calendar days of the filing of the Final
Judgment in this matter and every thirty (30) calendar days thereafter
until the divestiture has been completed whether pursuant to Section IV
or Section V of this Final Judgment, defendants shall deliver to
plaintiffs an affidavit as to the fact and manner of compliance with
Sections IV or V of this Final Judgment. Each such affidavit shall
include, inter alia, the name, address, and telephone number of each
person who, at any time after the period covered by the last such
report, made an offer to acquire, expressed an interest in acquiring,
entered into negotiations to acquire, or was contacted or made an
inquiry about acquiring, any interest in the businesses to be divested,
and shall described in detail each contact with any such person during
that period. Each such affidavit shall also include a description of
the efforts that defendants have taken to solicit a buyer for any and
all Relevant Disposal Assets and Relevant Hauling Assets and to provide
required information to prospective purchasers, including the
limitations, if any, on such information. Assuming the information set
forth in the affidavit is true and complete, any objection by the
United States, after consultation with the Relevant State, to
information provided by defendants, including limitations on
informations shall be made within fourteen (14) days of receipt of such
affidavit.
B. Within twenty (20) calendar days of the filing of the Complaint
in this matter, defendants shall deliver to plaintiffs an affidavit
which describes in detail all actions defendants have taken and all
steps defendants have implemented on an on-going basis to preserve the
Relevant Disposal Assets and Relevant Hauling Assets pursuant to
Section X of this Final Judgment and the Hold Separate Stipulation and
Order entered by the Court. The affidavit also shall describe, but not
be limited to, defendants' efforts to maintain and operate each
Relevant Disposal Asset and Relevant Hauling Asset as a viable active
competitor; to maintain separate management, staffing, sales, marketing
and pricing of each asset; and to maintain each asset in operable
condition at current capacity configurations. Defendants shall deliver
to plaintiffs an affidavit describing any changes to the efforts and
actions outlined in defendants' earlier affidavit(s) filed pursuant to
this Section within fifteen (15) calendar days after any such change
has been implemented.
C. For a one-year period following the completion of each
divestiture, defendants shall preserve all records of any and all
efforts made to preserve the Relevant Disposal Assets and Relevant
Hauling Assets that were divested and to effect the ordered
divestitures.
X. Hold Separate Order
Until the divestitures required by the Final Judgment have been
accomplished, defendants shall take all steps necessary to comply with
the Hold Separate Stipulation and Order entered by this Court.
Defendants shall take no action that would jeopardize the sale of any
Relevant Disposal Asset or Relevant Hauling Asset.
XI. Financing
Defendants are ordered and directed not to finance all or any part
of any acquisition by any person made pursuant to Sections IV or V of
this Final Judgment.
XII. Compliance Inspection
For purposes of determining or securing compliance with the Final
Judgment and subject to any legally recognized privilege, from time to
time:
A. Duly authorized representatives of the United States Department
of Justice, upon written request of the Attorney General or of the
Assistant Attorney General in charge of the Antitrust Division, or upon
written request of duly authorized representatives of the Attorney
General's Office of any other plaintiff, and on reasonable notice to
defendants made to their principal offices, shall be permitted:
1. Access during office hours of defendants to inspect and copy all
books, ledgers, accounts, correspondence, memoranda, and other records
and documents in the possession or under the control of defendants, who
may have counsel present, relating to the matters contained in this
Final Judgment and
[[Page 51137]]
the Hold Separate Stipulation and Order; and
2. Subject to the reasonable convenience of defendants and without
restraint or interference from them, to interview, either informally or
on the record, their officers, employees, and agents, who may have
counsel present, regarding any such matters.
B. Upon the written request of the Attorney General or of the
Assistant Attorney General in charge of the Antitrust Division, or upon
the written request of the Attorney General's Office or any other
plaintiff, defendants shall submit such written reports, under oath if
requested, with respect to any matter contained in the Final Judgment
and the Hold Separate Stipulation and Order.
C. No information or documents obtained by the means provided in
Sections VII or X of this Final Judgment shall be divulged by a
representative of the plaintiffs to any person other than a duly
authorized representative of the Executive Branch of the United States,
or the Attorney General's Office of any other plaintiff, except in the
course of legal proceedings to which the United States or any other
plaintiff is a party (including grand jury proceedings), or for the
purpose of securing compliance with this Final Judgment, or as
otherwise required by law.
D. If at the time information or documents are furnished by
defendants to plaintiffs, defendants represent and identify in writing
the material in any such information or documents to which a claim of
protection may be asserted under Rule 26(c)(7) of the Federal Rules of
Civil Procedure, and defendants mark each pertinent page of such
material, ``Subject to claim of protection under Rule 26(c)(7) of the
Federal Rules of Civil Procedure,'' then ten (10) calendar days notice
shall be given by plaintiffs to defendants prior to divulging such
material in any legal proceeding (other than a grand jury proceeding)
to which defendants are not a party.
XIII. Retention of Jurisdiction
Jurisdiction is retained by this Court for the purpose of enabling
any of the parties to this Final Judgment to apply to this Court at any
time for such further orders and directions as may be necessary or
appropriate for the construction or carrying out of this Final
Judgment, for the modification of any of the provisions hereof, for the
enforcement of compliance herewith, and for the punishment of any
violations hereof.
XIV. Termination
Unless this Court grants an extension, this Final Judgment will
expire upon the tenth anniversary of the date of its entry.
XV. Public Interest
Entry of this Final Judgment is in the public interest.
Dated ____________________ 1998.
----------------------------------------------------------------------
United States District Judge
Exhibit A--Final Judgment, US v. Reuter Recycling of Florida, Inc.
In the United States District Court for the District of Columbia
United States of America and State of Florida, by and through
its Attorney General, Plaintiffs, v. Reuter Recycling of Florida,
Inc., and Waste Management Inc. of Florida, Defendants Civil Action
No.: 951982. Filed: June 25, 1999. Entered: January 22, 1996.
Final Judgment
Whereas, Plaintiffs, United States of America (hereinafter
``United States'') and the State of Florida (hereinafter
``Florida''), having filed their Complaint in this action on October
20, 1995, and Plaintiffs and Defendants, by their respective
attorneys, having consented to the entry of this Final Judgment
without trial or adjudication of any issue of fact or law; and
without this Final Judgment constituting any evidence or admission
by any party with respect to any issue of fact or law;
And Whereas, Defendants have agreed to be bound by the
provisions of this Final Judgment pending its approval by the Court;
And Whereas, the Plaintiffs intend Defendants to be required to
preserve competition for solid waste disposal by honoring certain
contracts, as amended, and by giving to a competitor an option to
purchase real property capable of being used as a municipal solid
waste transfer station to preserve competition in solid waste
disposal in Dade and Broward Counties, Florida, now and in the
future, and, by permitting a competitor to preserve its ability to
compete for and to have access to capacity for sufficient volumes of
municipal solid waste to remain a viable solid waste disposal
competitor while its seeks another transfer station site;
And Whereas, Defendants have represented that the contract
changes and the option agreement to purchase real estate described
below can and will be made and honored and that Defendants will
later raise no claims of hardship or difficulty as grounds for
asking the Court to modify any of the provisions contained below.
Now, therefore, before any testimony is taken, and without trail
or adjudication of any issue of fact or law, and upon consent of the
parties, it is hereby
Ordered, Adjudged and Decreed as follows:
I. Jurisdiction
This Court has jurisdiction of the subject matter of this action
and over each of the parties hereto. The Complaint states a claim upon
which relief may be granted against Defendants under Section 7 of the
Clayton Act, as amended, 15 U.S.C. 18.
II. Definitions
As used in this Final Judgment:
(A) ``Broward'' means Broward County, Florida.
(B) ``Chambers'' means Chamber Waste Systems of Florida, Inc., a
subsidiary of USA Waste Services, Inc. Chambers is a corporation
organized and existing under the laws of the State of Florida with
its principle offices in Okeechobee, Florida.
(C) ``Dade'' means Dade County, Florida.
(D) ``Defendants'' means Reuter and WMF, as hereinafter defined.
(E) ``Reuter'' means defendant Reuter Recycling of Florida,
Inc., Reuter is a corporation organized and existing under the laws
of the State of Florida with its principal offices in Pembroke
Pines, Florida.
(F) ``Solid waste disposal service'' means the final disposal of
municipal solid waste, generally in a landfill or incineration
facility.
(G) ``Transfer Station Agreement'' means the agreement between
Reuter and Chambers dated as of July 14, 1993 pursuant to which
Reuter, among other things, accepts for transfer certain solid waste
material delivered by Chambers or Chambers' subcontractors. A copy
of the Transfer Station Agreement is attached as Exhibit A.
(H) ``Amendment to Transfer Station Agreement'' means the
Agreement between Reuter and Chambers dated October 20, 1995
modifying the Transfer Station Agreement. A copy of the Amendment to
Transfer Station Agreement is attached as Exhibit B.
(I) ``Option Agreement'' means the Agreement between Reuter and
Chambers dated October 20, 1995. A copy of the Option Agreement is
attached as Exhibit C.
(J) ``WMF'' means defendant Waste Management Inc. of Florida, a
subsidiary of Waste Management, Inc. WMF is a corporation organized
and existing under the laws of the State of Florida with its
principal offices in Pompano Beach, Florida.
(K) ``Acquisition'' means the acquisition of the majority of the
outstanding stock of Reuter by WMF.
(L) ``Reuter Transfer Station'' means the facility owned by
Reuter and located at 2079 Pembroke Road, Pembroke Pines, FL which
currently, among other things, accepts for transfer certain solid
waste material delivered by Chambers or Chambers' subcontractors and
also accepts waste from the cities of Pompano Beach, Pembroke Pines,
Dania, and Hallandale, FL.
III. Applicability
This Final Judgment applies to Defendants and to their officers,
directors, managers, agents, employees, successors, assigns,
affiliates, parents and subsidiaries, and to all other persons in
active concert or participation with any of them who shall have
received actual notice of this Final Judgment by personal service or
otherwise. Nothing contained in this Final Judgment is or has been
created for the benefit of any third party, and nothing herein shall
be
[[Page 51138]]
construed to provide any rights to any third party.
IV. Entry Into and Compliance With Agreements
On or before the date the Acquisition is consummated, Reuter
shall enter into the Amendment to Transfer Station Agreement and the
Option Agreement. Defendants shall be bound by the terms of the
Transfer Station Agreement, as modified by the Amendment to Transfer
Station Agreement, and the Option Agreement. Defendants shall not
convey to any person other than Chambers, the property subject to
the Option Agreement, prior to the later of July 14, 1998 or any
extension of that Option Agreement, except as provided in the Option
Agreement. Defendants shall not exercise their right to replace
Chambers as the Facility operator under Paragraph 3f of the
Amendment to Transfer Station Agreement without the prior approval
of the United States, in consultation with Florida.
V. Termination of the Agreements
In the event Chambers has secured the right to use and is using
another transfer station capable of serving Broward or Dade Counties
prior to July 14, 1998, Defendants may notify Plaintiffs of that
fact and Defendants may request in writing that they be relieved of
the obligation to extend the term of the Transfer Station Agreement
as set forth in Paragraph 2 of the Amendment to Transfer Station
Agreement, and of the obligation to convey property under the Option
Agreement. The United States may grant one or both of Defendants;
requests if it determines, in its sole discretion after consultation
with Florida, that Chambers can effectively compete in the relevant
markets without access to the Reuter Transfer Station or without
access to the property subject to the Option Agreement.
VI. Interim Preservation of Viable Competition
(A) Defendants shall not enter into any contract or contracts,
with any firm listed on Exhibit D, having a term in excess of one
(1) hear, or having multiple consecutive one (1) year terms, for the
disposal of solid waste, where any such waste would be transported
through the Reuter Transfer Station for disposal elsewhere, Exhibit
D is a list of the customers of Chambers for whom Chambers uses the
Reuter Transfer Station to enable it to dispose of solid waste as of
the date this Final Judgment is filed (``Chambers Customers'').
(B) Defendants' obligations under Paragraph VI.A. shall
terminate upon the United States providing Defendants with written
notice, following application by Defendants, that the United States,
in its sole discretion after consultation with Florida, has
determined that Chambers can compete effectively in the relevant
market if Defendants are permitted to contract with Chambers'
Customers as proscribed in Paragraph VI.A. In any event, Paragraph
VI.A. shall terminate on the date the Transfer Station Agreement, as
amended by the Amendment to the Transfer Station Agreement,
terminates.
(C) Nothing herein shall preclude Defendants from contracting
with any of the Chambers' Customers for a period of one (1) year or
less; or, for a period in excess of one (1) year where that
customer's solid waste is not transported by Defendants, directly or
indirectly, through the Reuter Transfer Station.
VII. Defendants' Obligations of Noninterference and Assistance
In the event that Chambers seeks to permit a new transfer
station or seeks access to a new or existing transfer station other
than the Reuter Transfer Station, Defendants shall take no action to
protest, lobby against, object to, or otherwise impede, directly or
indirectly, any attempts by Chambers to lease, purchase, site,
obtain appropriate zoning for, obtain permits and any and all other
governmental approvals for a solid waste transfer station capable of
serving Broward or Dade, nor shall Defendants provide financing or
other assistance to any person who does so. Furthermore, from the
effective date of the Option Agreement through the termination date
of that Agreement, including any extensions thereof, Defendants will
cooperate with Chambers' efforts to obtain any necessary government
approvals on the property subject to the Option Agreement.
Notwithstanding the provisions of this Final Judgment,
Defendants may bid on and enter into contracts with municipal or
governmental entities for the provision or use of transfer station
facilities in Dade and Broward.
VIII. Acquisition of the Option Property
If the option the purchase under the Option Agreement is
exercised, Defendants shall not, without prior written consent of
the United States, after consultation with Florida, re-acquire any
of the property conveyed pursuant to the Option Agreement.
IX. Reporting and Plaintiffs' Access
(A) To determine or secure compliance with this Final Judgment,
duly authorized representatives of the Plaintiffs shall, upon
written request of the Assistant Attorney General in charge of the
Antitrust Division or the Florida Attorney General or his duly
authorized representative, respectively, on reasonable notice given
to Defendants at their principal offices, subject to any lawful
privilege, be permitted:
(1) Access during normal office hours to inspect and copy all
books, ledgers, accounts, correspondence, memoranda and other
documents and records in the possession, custody, or control of
Defendants, which may have counsel present, relating to any matters
contained in this Final Judgment.
(2) Subject to the reasonable convenience of Defendants and
without restraint or interference from them, to interview officers,
employees, or agents of Defendants, who may have counsel present,
regarding any matters contained in this Final Judgment.
(B) Upon written request of the Assistant Attorney General in
charge of the Antitrust Division or the Florida Attorney General or
his duly authorized representative, on reasonable notice given to
Defendants at their principal officers, subject to any lawful
privilege, Defendants shall submit such written reports, under oath
if requested, with respect to any matters contained in this Final
Judgment.
(C) No information or documents obtained by the means provided
by this Section shall be divulged by the Plaintiffs to any person
other than a duly authorized representative of the Executive Branch
of the United States government or of the State of Florida, except
in the course of legal proceedings to which the United States is a
party, or for the purpose of securing compliance with this Final
Judgment, or as otherwise required by law.
(D) If at the time information or documents are furnished by
Defendants to Plaintiffs, Defendants represent and identify in
writing the material in any such information or document to which a
claim of protection may be asserted under Rule 26(c)(7) of the
Federal Rules of Civil Procedure, and Defendants mark each pertinent
page of such material ``Subject to claim of protection under Rules
26(c)(7) of the Federal Rules of Civil Procedure,'' then ten days
notice shall be given by Plaintiffs to Defendants prior to divulging
such material in any legal proceeding (other than a grand jury
proceeding) to which Defendants are not party.
X. Further Elements of Judgment
(A) This Final Judgment shall expire on the tenth anniversary of
the date of its entry.
(B) jurisdiction is retained by this Court over this action and
the parties thereto for the purpose of enabling any of the parties
thereto to apply for the purpose of enabling any of the parties
thereto to apply to this Court at any time for further order and
directions as may be necessary or appropriate to carry out or
construe this Final Judgment, to modify or terminate any of its
provisions, to enforce compliance, and to punish violations of its
provisions.
XI. Public Interest
Entry of this Final Judgment is in the public interest.
Plaintiff's motion (unopposed) for entry of Judgment as granted.
Entered: January 22, 1996
Court approval subject to procedures of Antitrust Procedures and
Penalties Act, 15 U.S.C. 16.
Royce C. Lamberth,
United States District Judge.
Exhibit B--Service Agreement, Northeast Maryland Waste Disposal
Authority and Garnet of Maryland, Inc.
Service Agreement by and Between Northeast Maryland Waste Disposal
Authority and Garnet of Maryland, Inc. To Provide Solid Waste
Acceptance, Processing, Transportation and Disposal Services for Anne
Arundel and Howard Counties, Maryland
Dated as of August 8, 1996.
Table of Contents
Recitals
Article I--Definitions and Rules of Interpretation
[[Page 51139]]
Section 1.1 Definitions
Section 1.2 Rules of Interpretation
Article II--Obligations Relating To Acceptance of Waste; Operating
Procedures; Performance of Authority's Obligations
Section 2.1 Acceptance, Processing, Transportation and Disposal
of Acceptable Waste
Section 2.2 Refusal of Deliveries
Section 2.3 Receiving Hours and Waiting Time
Section 2.4 Scales and Weighing Records
Section 2.5 Hazardous Waste
Section 2.6 Manner of Deliveries; Vehicle Size; Rule &
Regulations
Section 2.7 Contract for Project Management; Performance
Security
Section 2.8 Repairs and Maintenance
Section 2.9 Authority and County Access
Section 2.10 Clean-Up and Disposal
Section 2.11 Regulatory Requirements
Article III--Service Fee; Damages; Payments
Section 3.1 Service Fee, Damages, Payments
Section 3.2 Monthly Payments
Section 3.3 Late Payment
Section 3.4 Disputes as to Service Fee or Other Charges
Section 3.5 Books and Records, Audit and Reports
Section 3.6 Accounting
Article IV--Processing Capacity Reductions and Uncontrollable
Circumstances
Section 4.1 Effect of Uncontrollable Circumstances
Section 4.2 Changes Necessitated by Uncontrollable
Circumstances
Article V--Insurance and Indemnification
Section 5.1 Types of Insurance for the Company
Section 5.2 Delivery of Evidence of Insurance; Certain Required
Provisions
Section 5.3 Indemnification
Article VI--Default and Termination
Section 6.1 Remedies for Default
Section 6.2 Events of Default by the Company
Section 6.3 Events of Default by the Authority
Section 6.4 Termination on Default
Section 6.5 Termination for Certain Uncontrollable
Circumstances
Section 6.6 Termination for Convenience
Section 6.7 Default Termination Damages Payable to the
Authority
Section 6.8 Survival of Certain Rights and Obligations
Article VII--Term; Renewal
Section 7.1 Term
Section 7.2 Renewal
Article VII--Representations and Warranties
Section 8.1 Representations and Warranties of the Authority
Section 8.2 Representations and Warranties of the Company
Article IX--Miscellaneous
Section 9.1 Authority Representative, County Representative and
Company Representative
Section 9.2 Assignment
Section 9.3 Notices
Section 9.4 Entire and Complete Agreement
Section 9.5 Binding Effect
Section 9.6 Further Assurances and Amendments
Section 9.7 Governing Law
Section 9.8 Counterparts
Section 9.9 Amendment or Waiver
Section 9.10 Relationship of the Parties
Section 9.11 Confidential Information
Section 9.12 Severability
Section 9.13 Damages
Section 9.14 Effect of Authority and County Approvals
Section 9.15 Dispute Resolution
Section 9.16 Limitation of Liability and Defenses
Section 9.17 Counties as Third Party Beneficiaries
Section 9.18 Nondiscrimination
Section 9.19 Minority Business Enterprise Requirements
Section 9.20 Public Ethics
Section 9.21 Impossibility of Performance
Schedules
Schedule 1 Description of the Service
Schedule 2 Definitions
Schedule 3 Service Fees
Schedule 4 Reporting Requirements
Exhibit A to Schedule 4:
Monthly Performance Report Forms
Schedule 5 Form of Performance Bonds
Performance Bond
Schedule 6 Required Insurance
Schedule 7 Minority Business Participation Policy
Schedule 8 Guaranty
Schedule 9 Termination Procedures and Costs
This Service Agreement is made as of August 8, 1996 between the
Northeast Maryland Waste Disposal Authority (``Authority'') and
Garnet of Maryland (``Company'').
Recitals
A. The Authority is an instrumentality of the State of Maryland
created to assist with the preservation, improvement and management
of the quality of air, land and water resources and to promote the
health and welfare of the citizens of the State by providing
dependable, effective and efficient disposal of solid Wastes,
including the recovery of usable resources from such Waste. Howard
County and Anne Arundel County, Maryland (collectively,
``Counties'') have requested that the Authority provide for the
Acceptance, Processing, Transfer and Disposal of certain amounts of
non-recycled solid waste (the ``Services'') collected by, or on
behalf of, the Counties.
B. The Authority and the Counties will enter into a Waste
Disposal Agreement under which the Authority will be obligated to
provide these Services.
The Authority intends to fulfill its obligations to the Counties
to provide the Services by entering into and managing this
Agreement.
C. The Authority, in cooperation with the Counties, has selected
the Company through a competitive process. The Company has
demonstrated that it is qualified to accept process, transport and
dispose of solid Waste.
D. The Company shall provide the Acceptance Facility, Disposal
Facility and other Facilities so as to receive and process all of
the solid Waste delivered to the Company by the Counties or the
Designated Haulers.
E. The Counties will be third party beneficiaries of the
Company's obligations under this Agreement.
Now, therefore, in consideration of the mutual promises and
covenants of each to the other contained herein and other good and
valuable consideration, receipt of which is hereby acknowledged, the
parties of this Service Agreement agree as follows:
Article I--Definitions and Rules of Interpretation
Section 1.1 Definitions
Capitalized terms used in this Agreement have the meanings set
forth in Schedule 2.
Section 1.2 Rules of Interpretation
For all purposes of this Agreement, except as otherwise
expressly provided or unless the context otherwise requires:
(a) All reference in this instrument to designated ``Articles,''
Sections'' and other subdivisions are to the designated Articles,
Sections and other subdivisions of this instrument as originally
executed.
(b) The terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular.
(c) Words,of the masculine gender shall be deemed and construed
to include correlative words of the femine and neuter genders.
(d) The table of contents and the headings or captions used in
this Agreement are for convenience of reference only and do not
define, limit or describe any of the provisions hereof or the scope
or intent hereof.
(e) References to agreements or contracts include all
amendments, modifications and supplements thereto.
Article II--Obligations Relating to Acceptance of Waste; Operating
Procedures; Performance of Authority's Obligations
Section 2.1 Acceptance, Processing, Transportation and Disposal of
Waste
(a) The Company has sole responsibility for the provision and
operation of all facilities, personnel, vehicles and sites necessary
to provide the Service as described in Schedule 1. The Company shall
communicate on a routine basis to ensure the day-to-day coordination
of activities between the Company, the Counties and the Authority.
Upon request of the Authority Representative or any of the County
Representatives, the Company shall meet with the Authority and/or
one or both of the Counties.
Beginning on the Commencement Date and continuing throughout the
term of this Agreement the Company shall accept, process, transfer
and dispose in accordance with this Agreement and Applicable Law all
Acceptable Waste delivered by or on behalf of the Counties.
(b) Acceptable Waste will be delivered in vehicles owned or
operated by employees of or under contract to, the Counties or a
Designated Hauler. The Counties or a Designated Hauler may deliver
Acceptable Waste in any form they deem appropriate. The Authority
shall provide the Company with the following information about each
vehicle delivering Acceptable Waste to the Company for its credit;
hauler name and address, make, body type; tag or permit
[[Page 51140]]
number of each vehicle used; area of collection; and whether the
vehicle is owned by the Counties or by a Designated Hauler.
(c) The Authority understands that the Company may accept Waste
from other customers at the Facilities, but it may not accept Waste
from other customers during the interim period at Anne Arundel
County's Millersville Landfill.
Section 2.2 Refusal of Deliveries
(a) Extent of Refusal Rights
The Company may reject deliveries of Acceptable Waste delivered
at hours established under Section 2.3. Acceptable Waste rejected by
the Company for any reason other than as permitted pursuant to this
Section 2.2 (a) or (b) or any other provision of this Agreement
constitute Wrongfully Diverted Acceptable Waste. The amount of
Wrongfully Diverted Acceptable Waste is used to calculate Alternate
Disposal Damages under Section 3.2.
The parties agree that Company shall be the only party entitled
to establish the classification of Waste delivered to a Facility,
subject to the Authority's ability to object to such classification
as set forth in Section 3.4.
(b) Inspection of Delivered Waste
The Company shall develop and maintain any and all reasonable
appropriate screening programs at the Acceptable Facility. Any such
screening programs shall include any reasonable programs and
practices required by the Counties or the Authority. The Counties
and the Authority shall cooperate with the Company with regard to
the screening programs. Neither the inclusion of programs or
practices in the Waste screening programs by the Authority or the
Counties nor the review or comment by the Authority or the Counties
upon any Company proposal with regard to the Waste screening
programs relieves the Company of any of its obligations hereunder or
imposes any liability upon the Authority or the Counties.
The Company may inspect the contents of all vehicles delivering
Waste under this Agreement to the Acceptance Facility. The Counties
will monitor their own collection operations to reduce the
collection of Unacceptable Waste. The Company will institute
appropriate procedures, including inspection procedures, to ensure
that Unacceptable Waste is separated at the Acceptance Facility. The
Company will give immediate notice to the Counties of deliveries of
Unacceptable Waste to the Company, followed by prompt written notice
indicating the time, the source of delivery and identity of the
hauling firm and driver. The intent of this requirement is to ensure
safe handling by the Company of the Waste received in compliance
with Applicable Law. The Company shall handle and dispose of
Unacceptable Waste that is received at the Acceptance Facility.
The cost for disposal of Unacceptable Waste shall be paid to the
Company as specified in this Service Agreement.
The Company shall be entitled to the Unacceptable Waste Disposal
Cost described in Section 3.2 for any amounts of Unacceptable Waste
it removes from the Acceptance Facility.
Section 2.3 Receiving Hours and Waiting Time
(a) The Company shall accept the delivery of Acceptable Waste
during the hours of 7:00 a.m. to 5:00 p.m., Monday through Saturday
and until 7:00 p.m. on the first regular collection day following a
Holiday. Acceptable Waste will not be delivered by the Counties on
the following holidays. The Authority shall designate the dates on
which holidays are to be observed.
New Year's Day
Memorial Day
Independence Day
Labor Day
Thanksgiving Day
Christmas Day
(b) The Company shall accept Acceptable Waste at hours other
than the Receiving Hours, to the extent permitted by Applicable Law,
upon reasonable prior notice of such delivery. The Out of Hours
Delivery Charge for Company operations outside of Receiving Hours,
pursuant to this Section 2.3(b), may be charged for each ton of
Waste delivered before 7:00 a.m. and after 5:00 p.m. except that the
Out-of-Hours Delivery Charge shall not be charged for Waste
delivered between the hours of 5:00 p.m. and 7:00 p.m. on the first
regular collection day following a holiday. The amount shall be 3%
above the per ton bid price. The Out of Hours Delivery Charge shall
not apply for any hours the Acceptance Facility is open to receive
Waste from sources other than the Authority.
(c) The Company shall take all steps necessary to ensure that
the time period between delivery vehicle arrival at and departure
from the Acceptance Facility does not exceed 30 minutes for
Acceptable Waste delivered by the Counties, Designated Haulers, or
the Authority.
Section 2.4 Scales and Weighing Records
The Company shall operate and maintain the road vehicle scales
at the Acceptance Facility which shall provide for automatic
weighing and recording of all Wastes received and removed. The
Company shall weigh all vehicles delivering Acceptable Waste to the
Project. The scales shall incorporate a computer interface system
and use software acceptable to the Authority. The weight record
shall contain gross weight, tare weight, date, time of arrival, time
of departure, description of Waste in the vehicle, vehicle
identification (truck or permit number) and identification of origin
of Waste in the vehicle.
The Authority may require each vehicle operator delivering Waste
to present to the scale operator a card, permit, identification or
license. The Company or the Authority may require from time to time
the revalidation of the tare weight of any vehicle or the reweighing
of unloaded vehicles.
If the permanent vehicle scales at the Acceptance Facility are
not working properly or are being tested, the Company shall use
portable scales at the Acceptance Facility. If portable scales or
other alternate weighing facilities and equipment meeting the
requirements of Applicable Law are not available, a ``scale outage''
will occur, and the Company shall estimate the quantity of
Acceptable Waste delivered on the basis of truck volumes and
historical information about the Authority, the Counties, the
Company and the Designated Haulers. These estimates shall take the
place of actual weighing records during the scale outage. In order
to participate in the estimating of quantities of Acceptance Waste
during a scale outage, the Authority and/or County may have an
employee or agent present in the scale house when each vehicle
arrives.
The Company, at its expense, shall obtain approval of, inspect
and test the vehicle scales as required by Applicable Law but no
less frequently than once per year. At the written request of the
Authority, the Company in the presence of the Authority
Representative, shall make additional tests of all vehicle scales.
The cost of these additional tests shall be borne by the Authority
if the scales meet the accuracy requirements of Applicable Law.
If any test shows that a scale registers farther above or below
the correct reading than permitted by Applicable Law, the charges
and calculations based on scale readings made within thirty (30)
days preceding the test shall be corrected by the percentage of
inaccuracy found. If a test of the scales has been performed during
the preceding thirty (30) days, only the readings and related
charges and calculations made after that test shall be corrected on
the basis of the subsequent test.
The Company shall maintain daily records of the total tonnage of
Waste delivered to the Acceptance Facility, the tonnage of Waste
accepted by the Company and the tonnages of Unacceptable Waste. The
Company shall submit monthly reports, as specified in schedule 4 in
a form approved by the Authority. The Company shall cooperate with
the Authority and the Counties to provide this information
electronically or on disk. The Company shall furnish the Authority a
compilation of such information for each month, within ten days
after the end of the month. The Company shall keep copies of all
weight tickets for at least three years which shall be available for
inspection by the Authority and the Counties upon request.
The Company shall pay all costs for accepting, transporting,
processing and final disposal of Acceptable Waste.
Section 2.5 Hazardous Waste
(a) The Company shall develop a plan for the identification,
handling and disposal of Hazardous Waste discovered at the
Acceptance Facility (the ``Hazardous Waste Plan''). The Company
shall segregate and isolate all Hazardous Waste discovered at the
Acceptance Facility in accordance with this Agreement, the Hazardous
Waste Plan, Applicable Law and any procedures required by the
Authority in connection with the segregation and isolation of
Hazardous Waste (collectively, the ``Hazardous Waste Protocol'').
The Company shall maintain any screening programs reasonably
necessary or otherwise reasonably required by the Authority that,
under Applicable Law, segregate Hazardous Waste delivered to the
Acceptance Facility.
(b) So long as the Company (i) acts in accordance with the
Hazardous Waste
[[Page 51141]]
Protocol and Applicable Law and (ii) enforces its and the
Authority's right to payments from third parties or under applicable
insurance policies due to the discovery of Hazardous Waste, then the
cost of segregation isolation and disposal of the Hazardous Waste
shall be reimbursed if the Hazardous Waste was delivered in a
vehicle owned, operated or contracted by one of the Counties, the
Authority, or a Designated Hauler, provided that such vehicle is
correctly identified by the Company as the particular vehicle which
delivered such Hazardous Waste.
(c) If Hazardous Waste is delivered to the Acceptance Facility,
and the source of such Hazardous Waste or hauler delivering
Hazardous Waste cannot be determined by the Parties, the Company
shall separately contain, set aside, segregate, isolate and manage
the Hazardous Waste as required by law and by the Hazardous Waste
Protocol, and the Authority and the Counties shall be notified
immediately of its location, general character and amount. The
Company shall remove, or cause to be removed, such Hazardous Waste
from the Acceptance Facility and shall transport and dispose of, or
shall cause such Hazardous Waste to be transported and disposed, in
accordance with State and Federal law. The Company shall, at no
expense to the Counties or the Authority, bear all of the costs of
transportation and disposal of Hazardous Waste which is delivered to
the Acceptance Facility because the Company has failed to follow or
enforce any provision of the Hazardous Waste Protocol. The foregoing
shall not be considered to be a waiver of any claim Company may have
against any other third party, including a Designated Hauler.
Company may make any such claim directly against the party involved,
and to the extent necessary by law in order for such claim to
proceed, the Authority and the Counties assign to Company their
respective rights to make such a claim.
(d) Hazardous Waste delivered by a vehicle owned, operated, or
contracted by one of the Counties, the Authority, or a Designated
Hauler which is segregated for disposal as Hazardous Waste shall
only be disposed of at a Disposal Facility approved by the
Authority.
Section 2.6 Manner of Deliveries; Vehicle Size; Rules and Regulations
The Authority shall comply with the reasonable rules and
regulations for the delivery of Acceptable Waste to the Acceptance
Facility that are provided by the Company and agreed to by the
Authority and Counties, which include regulations regarding
vehicular movement on the Acceptance Facility Site and screening to
segregate Unacceptable Waste. No rules or regulations are effective
against the Authority, the Counties, or Designated Haulers unless
approved by the Authority Representative and the County
Representatives, which approval shall not be unreasonably withheld.
Section 2.7 Contract for Project Management; Performance Security
(a) The parties acknowledge that the dependable operation and
maintenance of the Acceptance Facility, the Disposal Facility and
other Facilities providing the Service is in the interests of the
parties to this Agreement. The Company shall not enter into or
maintain any contract or subcontract with any person other than an
Affiliate of the Company for any substantial portion of the
operation, management or control of a Facility or the performance of
any of the Company's obligations under this Agreement without the
prior written consent of the Authority.
(b) No contract or subcontract between the Company and any other
person will affect the Company's obligation under this Agreement.
(c) Prior to the Commencement Date the Company shall provide
evidence of a Performance Bond, standby Letter of Credit or
Corporate Guarantee from a surety or insurance company acceptance to
the Authority, covering the performance obligations of the Company
under Article II of this Agreement. The Performance Bond, Letter of
Credit or corporate guarantee shall be in an amount equal to one
year of estimated Service Fee payments to the Company, as defined in
Section 3.1 of this Agreement, and name, among others, the Authority
as beneficiary. The Performance Bond or LOC shall be in the form set
forth in Schedule 5. The Company shall provide the Performance
Bonds, Letter of Credit, or corporate guarantee until release by the
Authority. The Authority shall release the Performance Bond, Letter
of Credit or corporate guarantee upon termination of this Agreement
as long as the Company is not in default and the Performance Bond,
Letter of Credit, or corporate guarantee is not being drawn upon by
the Authority.
Section 2.8 Repairs and Maintenance
The Company, at its own expense, shall maintain the Facilities
in good condition at all times, and make all repairs and
replacements required for the Company to perform its obligations
under this Agreement. The Company shall maintain the safety of the
Facilities at a level consistent with Applicable Law and standard
facility practices.
Section 2.9 Authority and County Access
The Authority, the Counties and their respective agents,
licensees and invitees may visit or inspect the Facilities at any
reasonable time during the term of this Agreement. The Authority
Representative or its designees, or the County Representatives or
their respective designees may inspect the Facilities at any time
from time to time without notice. The Authority, the Counties and
their respective agents, licensees and invitees shall conduct visits
to the Facilities in a manner that does not cause unreasonable
interference with the Company's operations. To the extent practical,
the Authority and the Counties shall provide the names of all
invitees to the Company in advance. The Company may require any
Person on a Facility site to comply with its reasonable rules and
regulations and to sign a statement agreeing (i) to assume the risk
of the visit but not the risk of injury due to the intentional or
negligent acts or omissions of the Company or any of its
subcontractors, agents or employees and (ii) not to disclose or use
any Confidential Information of the Company other than for the
purpose for which it was furnished or, in the case of Authority or
County employees and agents, except in accordance with Section 9.11.
Section 2.10 Clean-Up and Disposal
The Company shall keep the Facilities free from accumulation of
Wastes or rubbish (except in appropriate locations) caused by
operations at the Facilities and shall maintain and operate the
Facilities so as to prevent the Sites from becoming unsightly or a
nuisance under Applicable Law.
Section 2.11 Regulatory Requirements
The Company shall perform its obligations under this Agreement
and operate the Facilities in accordance with all requirements of
Applicable Law, regulations, and permits. The Company shall obtain
and maintain, or cause to be obtained and maintained, all permits
and licenses required by Applicable Law to perform its obligations
hereunder, provided that the Company will not breach its obligations
under this Section if (i) the Company is contesting the Applicable
Law in good faith by appropriate proceedings conducted with due
diligence and the Applicable Law allows continue operation of the
Facilities pending resolution of the contest or (ii) the Company is
diligently seeking to comply with such Applicable Law or to obtain
or maintain any such permit or license and Applicable Law allows
continued operation of the Facilities.
Article III--Service Fee: Damages; Payments
Section 3.1 Service Fee, Damages, Payments
(a) From and after the Commencement Date, the Company may charge
and collect from the Authority a fixed Service Fee as shown in
Schedule 3 for each ton of Acceptable Waste accepted by the Company
from the Counties, or Designated Haulers for disposal hereunder.
(b) the Authority shall pay to the Company certain other charges
as detailed in Section 3.2. The Authority may retain or set-off from
any amounts due the Company, Acceptance Facility Delay Damages,
Alternate Disposal Damages, Alternate Procurement Damages and
Delivery Delay Damages.
(c) The Service Fee and Out of Hours Delivery Charge shall not
be adjusted by any inflation factor.
Section 3.2 Monthly Payments
(a) The Company shall provide the Authority and the Counties
with a statement or invoice for all amounts payable hereunder by the
twenty-fifth (25th) day of the calendar month immediately succeeding
the calendar month for which such amounts are payable. Amounts
invoiced are due thirty (30) days after receipt of the invoice by
the Authority and the Counties. Each invoice shall set forth amount
of the Service Fee and other charges payable to the Company for the
applicable period, together with supporting documentation including
scale records, sufficient to allow the recipient of the invoice to
verify the Company's calculations of the Service Fee and other
charges for such
[[Page 51142]]
period. The supporting documentation shall be adequate to allow the
Authority to determine the portion of the amount payable by each of
the Counties. The amounts payable monthly in accordance with Section
3.2 are calculated as follows:
(i) The amount due for Service Fee payments shall be the product
of the Service Fee multiplied by the aggregate number of tons of
Acceptable Waste delivered by a County, a Designated Hauler, or the
Authority during the month; plus
(ii) Any Out-of-Hours delivery charges; plus
(iii) The Company's direct out of pocket costs for Unacceptable
Waste that is delivered to the Acceptance Facility by a County, a
Designated Hauler, or the Authority and disposed of by the Company;
less
(iv) The amount of Acceptance Facility Delay Damages, Alternate
Disposal Damages, Alternate Procurement Damages and Delivery Delay
Damages, if any.
All Company invoices and statements shall be delivered by hand
or mailed first class, postage prepaid, to: Northeast Maryland Waste
Disposal Authority, 25 S. Charles Street, Suite 2105, Baltimore,
Maryland 21201-3330, Attention: Executive Director.
The Authority shall have no obligation to make payment for any
amount of Acceptable Waste delivered to the Acceptance Facility by
any Person other than a County, a Designated Hauler, or the
Authority.
Section 3.3 Late Payment
Any amounts payable under this Agreement by the Authority or the
Company that are not paid when due in accordance with this Agreement
shall, unless otherwise specifically provided, bear interest, to the
extent permitted by Applicable Law, at the Late Payment Rate.
Section 3.4 Disputes as to Service Fee or Other Charges
If the Company or the Authority disputes any amount owed as the
Service Fee, Out-of-Hours Delivery Charge pursuant to Section 9.15,
the classification of Waste made by the Company, or the amount of
Damages claimed by the Authority under Section 3.2(iv) or elsewhere
herein, the disputed portion of such adjustment is not effective
until resolution of a dispute. Immediately after the resolution of a
disagreement about a Service Fee or Out-of-Hours Delivery Charge,
classification of Waste or amount of Damages, the party whose
position does not prevail shall reimburse the other party for the
aggregate amount of any underpayment or overpayment, plus interest
at the Late Payment Rate.
Section 3.5 Books and Records, Audit and Reports
(a) The Company shall maintain all books, records and accounts
necessary to record all matters affecting the Service Fee, Out-of-
Hours Delivery Charge, applicable damages or other amounts payable
by or to the Authority or the Company under this Agreement or other
agreements, including, but not limited to, policies for Required
Insurance, policy amendments and all other related insurance
documents. The Company shall maintain all such books, records and
accounts in accordance with GAAP. The Company's books, records and
accounts shall accurately, fairly and in reasonable detail reflect
all the Company's dealings and transactions under this Agreement and
other agreements and shall contain sufficient data to enable those
dealings and transactions to be audited in accordance with generally
accepted auditing standards. The Company shall make all such books,
records and accounts available for inspection and photocopying by
the Authority or the Counties within 5 business days of a written
request by the Authority or a County.
(b) The Company shall provide the Authority and the Counties
with the reports and information set forth in Schedule 4 at the
times required by Schedule 4. The report format can be modified with
approval of the Authority to reflect the facilities used by the
Company to provide the Service.
(c) The Company certifies that all information the Company has
provided, or will provide to the Authority or the Counties, is true
and correct and can be relied upon by the Authority and the Counties
in awarding, modifying, making payments, or taking any other action
with respect to this Agreement. Any material false or misleading
information is a ground for the Authority to terminate this
Agreement for cause, without opportunity to cure, and to pursue any
other appropriate remedy.
Section 3.6 Accounting
Beginning July 1, 1997, within sixty (60) days following the end
of each Fiscal Year, the Company shall provide an accounting to the
Authority and the Counties of all payments made by the Authority for
the Fiscal Year and all amounts payable by the Authority for such
Fiscal Year.
Article IV--Processing Capacity Reductions and Uncontrollable
Circumstances
Section 4.1 Effect of Uncontrollable Circumstances
A party to this Agreement shall not be in default under this
Agreement or liable to the other party for its failure to perform
obligations under this Agreement, if such failure results from an
Uncontrollable Circumstance. The Company shall diligently overcome
or remove such Uncontrollable Circumstance as soon as possible. The
Company shall give prompt notice of such claim to the Authority and
to the County Representatives with reasonably requested information
concerning the nature of such claim and the efforts to overcome or
remove the Uncontrollable Circumstance.
Section 4.2 Changes Necessitated by Uncontrollable Circumstances
(a) As soon as possible after an Uncontrollable Circumstance
occurring on or after the Commencement Date, the Company shall give
the Authority Representative and the County Representatives a
statement describing the Uncontrollable Circumstance and its cause
(to the extent known to the Company), and a description of the
conditions preventing the performance of the Company's obligations
(b) If a Facility is unavailable due to an Uncontrollable
Circumstance, the Company must diligently pursue finding an
alternate facility. Any alternate acceptance facility must be within
the same geographic boundaries as shown in the RFB. Alternate
disposal facilities must be approved by the Authority. The Company
may seek pre-approval of an alternate disposal facility.
In no case will the Service Fee increase due to an
Uncontrollable Circumstance.
(c) The Company shall answer any inquiries of the Authority
Representative or the County Representatives regarding the
conditions caused by the Uncontrollable Circumstance and shall
provide them with such information as they reasonably request. Upon
the request of the Authority Representative or the County
Representative, a consulting engineer, at the Authority's expense,
may review the Company's estimate of the time schedule for repairing
a Facility or the alleged causes of the Uncontrollable Circumstance.
Article V--Insurance and Indemnification
Section 5.1 Types of Insurance for the Company
The Company shall obtain and maintain, or cause to be obtained
and maintained, the Required Insurance in the forms approved by the
Authority. The deductible limits contained in Schedule 6 shall not
be increased. The Company shall procure and maintain any additional
insurance coverage requested by the Authority that is available on
commercially reasonable terms and such other insurance required by
Applicable Law if the Authority agrees that the cost of the
additional insurance may be added to the Service Fee. Insurance
required to be obtained by the Company pursuant to this Section 5.1
is ``Required Insurance'' for all purposes of this Agreement.
Section 5.2 Delivery of Evidence of Insurance: Certain Required
Provisions
(a) Within ten (10) business days of execution of this Agreement
by the Authority, and at any time thereafter, the Company shall
deliver to the Authority copies of all certificates of insurance for
Required Insurance and any policy amendments and policy renewals
upon ten (10) business days after receipt by the Company. Except for
Worker's Compensation Insurance, each policy shall name the
Authority and the Counties as co-insured and required the insurer to
provide the Authority and the Counties sixty (60) days' prior
written notice of termination or cancellation or of any change in
coverage or deductibles under such Policy.
(b) The Company shall use only responsible insurance companies
of recognized standing which are authorized to do business in
Maryland as providers of all Required Insurance. The Company shall
carry all Required Insurance with insurance companies rated at least
``A-'' or its equivalent by Best's Key Rating or another national
rating organization. The Company may effect Required Insurance by
endorsement of blanket insurance policies.
(c) The Company shall not take out separate insurance concurrent
in form or contribution in the event of loss with Required Insurance
if the existence of such
[[Page 51143]]
insurance reduces amounts payable under Required Insurance if the
existence of such insurance reduces amounts payable under Required
Insurance. The Company shall immediately notify the Authority
whenever it applies for any separate insurance and shall promptly
deliver the policy or policies evidencing the separate insurance to
the Authority.
(d) The Company shall submit to the appropriate insurer timely
notices and claims of all losses insured under any Required
Insurance policy, pursue such claims diligently and comply with all
terms and conditions of Required Insurance policies. The Company
shall promptly give the Authority and the Counties copies of all
notices and claims of loss and any documentation or correspondence
related to such losses. The Company shall make all policies for
Required Insurance, policy amendments and other related insurance
documents available for inspection and photocopying by the Authority
or the Counties on reasonable notice.
Section 5.3 Indemnification
Company agrees to indemnify, save harmless and defend the
Authority, the Counties and their respective officers, employees and
agents, from and against any and all liabilities, claims, penalties,
forfeitures, suits and the costs and expenses incident thereof
(including costs of defense, settlement and reasonable attorneys'
fees), which they, individually or collectively, may incur, become
responsible for or pay out as a result of death or bodily injury to
any person, destruction or damage to any property, contamination of
or adverse effects on the environment, or any violation of
governmental laws, regulations or orders, to the extent caused, in
whole or in part, by a breach of any term, provision, representation
or warranty of this Agreement or any negligent act or omission or
willful misconduct of the Company, or its officers, employees or
agents. This indemnification is not to be deemed as a waiver of any
immunity which may exist in any action against the Authority or the
Counties.
The Company shall also indemnify, defend, hold harmless and
hereby waives any claim for contribution against the Authority, the
State of Maryland, the Counties, or their respective officers,
agents and employees, for any Environmental Claim arising in whole
or in part from the performance of the Company or its officers,
employees, agents or subcontractors, under this Agreement,
irrespective of whether such performance is negligent or willful or
breaches any term or provision of this Agreement. For purposes of
this section of the Agreement, the following definitions apply:
``Environmental Claim'' means any investigation, notice,
violation, demand, allegation, action, suit, injunction, judgment,
order, consent decree, penalty, fine, lien, proceeding or claim
arising (a) pursuant to, or in connection with, an actual or alleged
violation of, any Environmental Law, (b) in connection with any
Hazardous Waste or actual or alleged Hazardous Waste Activity, (c)
from any abatement, removal, remedial, corrective, or other response
action in connection with a Hazardous Waste, Environmental Law or
other order of a Governmental Authority or (d) from any actual or
alleged damage, injury, threat, or harm to health, safety, natural
resources, or the environment.
``Environmental Law'' shall mean any current or future Legal
Requirement pertaining to (a) the protection of health, safety and
the indoor or outdoor environment, (b) the conservation, management,
or use of natural resources and wildlife, (c) the protection or use
of surface water or groundwater, (d) the management, manufacture,
possession, presence, use, generation, transportation, treatment,
storage, disposal, Release, threatened Release, abatement, removal,
remediation or handling of, or exposure to, any Hazardous Waste or
(e) pollution (including any release to air, land, surface water and
groundwater), and includes, without limitation, the Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as
amended, 42 U.S.C. Secs. 9601 et seq.,, Solid Waste Disposal Act, as
amended, 42 U.S.C. Secs. 6901 et seq. Federal Water Pollution
Control Act, as amended, 33 U.S.C. Secs. 1251, et seq., Clean Air
Act, as amended, 42 U.S.C. 7401 et seq., Toxic Substances Control
Act of 1976, 15 U.S.C. Secs. 2601 et seq., Hazardous Wastes
Transportation Act, 49 U.S.C. App. Secs. 1801 et seq., Occupational
Safety and Health Act of 1970, as amended, 29 U.S.C. Secs. 651 et
seq., Oil Pollution Act of 1990, 33 U.S.C. Secs. 2701 et seq.,
Emergency Planning and Community Right-to-Know Act of 1986, 42
U.S.C. Secs. 1101 et seq., National Environmental Policy Act of
1969, 42 U.S.C. Secs. 4421 et seq., Safe Drinking Water Act of 1974,
as amended, 42 U.S.C. Secs. 300(f) et seq., any similar,
implementing or successor law, including, without limitation, laws
enacted by the State of Maryland or any other State, and any
amendment, rule, regulation, order, or directive issued thereunder.
``Governmental Approval'' means any permit, license, variance,
certificate, consent, letter, clearance, closure, exemption,
decision or action or approval of a ``Governmental Authority.''
``Governmental Authority'' means any international, foreign,
federal, state, regional, county, or local person or body having
governmental or quasi-governmental authority or subdivision thereof.
``Hazardous Waste'' has the meaning given in Schedule 2 to this
Agreement.
``Hazardous Waste Activity'' shall mean any activity, event, or
occurrence involving a Hazardous Waste, including without
limitation, the manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, Release, threatened
Release, abatement, removal, remediation, handling of or corrective
or response action to any Hazardous Waste.
``Legal Requirement'' means any treaty, convention, statute,
law, regulation, ordinance, Governmental Approval, injunction,
judgment, order, consent decree, or other requirement of any
Governmental Authority.
``Release'' means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the indoor or outdoor environment,
including, without limitation, the abandonment or discarding of
barrels, drums, containers, tanks or other receptacles containing or
previously containing any Hazardous Waste.
Article VI--Default and Termination
Section 6.1 Remedies for Default
(a) If the Authority breaches any of its obligations under this
Agreement, the right of the Company to recover damages or to be
reimbursed ordinarily constitutes an adequate remedy. Therefore, the
Company may not terminate its obligations under this Agreement for
cause or any breach unless an Event of Default (as defined in
Section 6.3) on the part of the Authority has occurred and is
continuing.
(b) The Company acknowledges that a breach of this Agreement or
an Event of Default by the Company entitles the Authority to
recover, to the extent proven, all of its damages, as set forth in
this Agreement, caused by such default or Event of Default.
Nevertheless, any persistent failure by the Company to provide
Service hereunder entitles the Authority to terminate this
Agreement.
Section 6.2 Events of Default by the Company
Each of the following constitute an Event of Default on the part
of the Company.
(a) The failure or refusal by the Company to fulfill any of its
material obligations to the Authority in accordance with this
Agreement, the RFB and the bid submittal unless such failure or
refusal is excused or justified pursuant to this Agreement, or the
failure or refusal by the Guarantor to fulfill any of its
obligations in accordance with the Guaranty Agreement. Regardless of
whether there exists an event of Default, if the Company fails or
refuses to perform any of its obligations, the Company shall be
liable to the Authority for the full amount of the Authority's
Alternate Disposal Damages. No such failure or refusal on the part
of the Company or Guarantor shall constitute an Event of Default
unless and until:
(i) The Authority has given written notice to the Company
stating that in its opinion a particular default or defaults
(described in reasonable detail in such notice) exist that shall,
unless corrected, constitute a material breach of this Agreement on
the part of the Company and that give the Authority a right to
terminate its obligations to the Company under this agreement for
cause under this Section unless such default is corrected within a
reasonable period of time; and
(ii) The Company or the Guarantor, as the case may be, have
neither corrected such default nor initiated reasonable steps to
correct it within a reasonable period of time (a reasonable period
of time, for purposes of this paragraph, shall in any event be not
less than 30 business days from the date of the notice given
pursuant to clause (i) of this Section for any obligation other than
one related to a failure by the Company to accept Waste pursuant to
the terms of this Agreement, for which obligation a reasonable
period of time shall in any event be not less than five (5) business
days from the date of
[[Page 51144]]
the notice given pursuant to clause (i) of this Section 6.2(a)),
provided that if the Company or the Guarantor has commenced to take
reasonable steps to correct such default within such reasonable
period of time, the default shall not constitute an Event of Default
for as long the Company or the Guarantor, as the case may be, is
continuing to take reasonable steps to correct it; or
(b) If, by the order of a court of competent jurisdiction, a
receiver, liquidator, custodian or trustee of either the Company or
the Guarantor or of a major part of either of their property is
appointed and is not discharged within sixty (60) days, or if, by
decree of such a court, the Company or the Guarantor is adjudicated
insolvent or a major part of either of their property is sequestered
and such decree has continued undischarged and unstayed for sixty
(60) days after the entry of such decree, or if a petition to
reorganize the Company or the Guarantor pursuant to the Federal
Bankruptcy Code or any other similar statute applicable to the
Company or the Guarantor, as now or hereinafter in effect, is filed
against the Company or the Guarantor and is not dismissed within
sixty (60) days after such filing; or
(c) If either the Company or the Guarantor is adjudicated
bankrupt or files a petition in voluntary bankruptcy under any
provision of any bankruptcy law or consents to the filing of any
bankruptcy or reorganization petition against either the Company or
the Guarantor under any such law, or (without limitation of the
generality of the foregoing) files a petition to reorganize the
Company or the Guarantor pursuant to the Federal Bankruptcy Code or
any other similar statute applicable to the Company or the
Guarantor, as now or hereafter in effect; or
(d) If either the Company or the Guarantor makes an assignment
for the benefit or creditors, or admits, in writing, an inability to
pay debts generally as they become due, or consents to the
appointment of a receiver or liquidator or trustee or assignee in
bankruptcy or insolvency of the either the Company or the Guarantor
or a major part of either or their property; or
(e) If the Company provides or has provided materially false or
misleading information to the Authority or the Counties; or
(f) The failure of the Company or other Facility operators to
comply with Applicable Law in any material fashion; or
(g) The failure of the Company to provide a fully operational
Service by the Commencement Date, including the Acceptable Facility
by January 1, 1997, or failure to provide evidence upon request of
Authority that the Acceptable Facility will be available by January
1, 1997.
Section 6.3 Events of Default by the Authority
Each of the following constitutes an Event of Default on the
part of the Authority:
(a) The failure by the Authority to pay any amount in excess of
$550,000, that the Authority is required to pay to the Company under
this Agreement within sixty (60) days after receipt by the Authority
of written demand from the Company accompanied by notice stating
that unless such amount is paid within sixty (60) days after such
demand the failure shall constitute an Event of Default; or
(b) The failure or refusal by the Authority substantially to
fulfill any of its material obligations to the Company in accordance
with this Agreement, other than as provided in subparagraph (a)
above, unless such failure or refusal is excused or justified
pursuant to the provisions of this Agreement, provided that no such
failure or refusal constitutes an Event of Default unless and until:
(i) The Company has given prior written notice to the Authority
and the County Representatives stating that in its opinion a
particular default or defaults (described in reasonable detail in
such notice) exists and unless corrected, constitute a material
breach of this Agreement on the part of the Authority and gives the
Company a right to terminate this Agreement for cause under this
Section 6.3(b) unless such default is corrected within a reasonable
period of time; and
(ii) Neither the Authority nor the Counties have corrected such
default nor initiated steps to correct it within a reasonable period
of time (a reasonable period of time for purposes of this paragraph
shall in any event not be less than thirty (30) Business Days from
the date of the notice given pursuant to clause (i) of this Section
6.3(b)), provided that if the Authority or the Counties have
commenced to take reasonable steps to correct such default within
such reasonable period of time, it shall not constitute an Event of
Default for as long as the Authority or the Counties are continuing
to take reasonable steps to correct it; and
(iii) There exists no reasonable expectation that the Company
can obtain relief other than by termination of this Agreement for
such default sufficient to compensate it for any loss incurred as a
result of such Authority default.
(c) The failure of the Company to comply with the Project's MBE
requirements as found in the Minority Business Enterprise Terms and
Conditions.
Notwithstanding the foregoing provisions, in no event shall the
Authority's or Counties' failure to deliver Acceptable Waste
constitute an Event of Default under this Agreement as neither the
Authority nor the Counties guarantee delivery of any minimum
quantity of Acceptable Waste.
Section 6.4 Termination on Default
The right of termination for cause may be exercised only by a
notice of Termination (the ``Notice of Termination'') given to the
party in default. Subject to Section 9.13(b), the proper exercise of
the right of termination is in addition to and not in substitution
for, such other remedies, whether damages or otherwise, of the party
exercising the right of termination. When one party terminates its
obligations to the other party in accordance with this Agreement,
all of their rights, remedies, powers and privileges under this
Agreement are terminated, except as provided in Sections 6.7 and
6.8.
Section 6.5 Termination for Certain Uncontrollable Circumstances
If, as a result of the occurrence of one or more Uncontrollable
Circumstances, the Acceptance Facility is closed for 10 (ten) or
more consecutive days, then the Authority may terminate this
Agreement upon notice to the Company. If this Agreement is so
terminated, then neither party shall owe or be liable to the other
party for any amounts otherwise due hereunder, except for (i)
Service Fee amounts due for Waste actually delivered prior to the
effective date of the termination and (ii) amounts due in accordance
with Section 5.3 ``Indemnification.''
Section 6.6 Termination for Convenience
Notwithstanding, any other provision of this Agreement to the
contrary and subject to State law, the Authority may terminate this
Agreement and its obligations to the Company under this Agreement at
any time by (i) giving the Company thirty (30) days' notice of such
termination, (ii) paying the Termination Settlement Amount and (iii)
providing the releases in accordance with Schedule 9.
Section 6.7 Default Termination Damages Payable to the Authority
If this Agreement is terminated by the Authority for cause as a
result of an Event of Default by the Company, the Company shall
immediately pay, without duplication, to the Authority (i) all
amounts necessary to provide for the excess costs to the Authority
of substitute performance by another firm, during the Service
Agreement's term, not including renewal terms, had the Agreement not
been terminated for default, (ii) an amount equal to Alternate
Disposal Damages during the then remaining term of this Agreement,
and (iii) Alternate Procurement Damages.
With the prior express written consent of the Authority and the
County, such consent not to be unreasonably withheld, the Company
may mitigate its Default Termination Damages payable under this
Section 6.7 by providing the Service using alternative facilities
which (i) are in compliance with Applicable Law and, (ii) the
Authority has agreed and meets all of the minimum technical
requirements in the RFB.
Section 6.8 Survival of Certain Rights and Obligations
The rights and obligations of the parties under Section 5.3 and
Articles I and VIII shall survive any termination of this Agreement.
No termination of this Agreement limits or otherwise affects the
rights and obligations of any party that have accrued before the
date of such termination.
Article VII--Term; Renewal
Section 7.1 Term
This Agreement is in effect from its date and, unless sooner
terminated, shall continue in effect until December 31, 1999.
Section 7.2 Renewal
This Agreement may be extended at the Authority's option at one
year intervals up to an additional three years.
[[Page 51145]]
The Authority shall give the Company thirty (30) days notice of
its intent to renew the Service Agreement for each additional year.
Article VIII--Representations and Warranties
Section 8.1 Representations and Warranties of the Authority
The Authority hereby makes the following respective
representations and warranties, as of the date of execution and
delivery of this Agreement, to and for the benefit of the Company:
(a) The Authority is a body politic and corporate validly
existing under the Constitution and laws of Maryland, with full
legal right, power and authority to enter into and perform its
obligations under this Agreement.
(b) The Authority has duly authorized the execution and delivery
of this Agreement and this Agreement has been duly executed and
delivered by the Authority and constitutes a legal, valid and
binding obligation of the Authority, enforceable against the
Authority in accordance with its terms.
(c) Neither the execution or delivery by the Authority of this
Agreement, nor the performance of the Authority's obligations in
connection with the transactions contemplated hereby nor the
Authority's fulfillment of the terms or conditions of this Agreement
(i) conflicts with, violates or results in a breach of any
Applicable Law, or (ii) conflicts with, violates or results in a
breach of any term or condition of any judgment or decree, or any
agreement or instrument, to which the Authority is a party or by
which the Authority or any of its properties or assets are bound, or
constitutes a default thereunder.
(d) No approval, authorization, order or consent of, or
declaration, registration or filing with, any governmental authority
is required for the valid execution and delivery by the Authority of
this Agreement except those that have been duly obtained or made.
Section 8.2 Representations and Warranties of the Company
The Company hereby makes the following representations and
warranties to and for the benefit of the Authority and the Counties:
(a) The Company is duly organized and validly existing as a
Corporation under the laws of the State of Maryland with full legal
right, power and authority to enter into and perform its obligations
under this Agreement, and is duly qualified to do business and is in
good standing in each jurisdiction in which the character of the
properties owned by it therein or in which the transaction of its
business makes such qualification necessary, including, but not
limited to, the State of Maryland.
(b) The Company has duly authorized the execution and delivery
of this Agreement and this Agreement has been duly executed and
delivered by the Company and constitutes a legal, valid and binding
obligation of the Company, enforceable against the Company in
accordance with its terms.
(c) Neither the execution or delivery by the Company of this
Agreement, nor the performance by the Company of its obligations in
connection with the transactions contemplated hereby or the
fulfillment by the Company of the terms or conditions of this
Agreement (i) conflicts with, violates or results in a breach of any
Applicable Law, or (ii) conflicts with, violates or results in a
breach of any term or condition of any judgment or decree, or any
agreement or instrument, to which the Company is a party or by which
the Company or any of its properties or assets are bound, or
constitutes a default thereunder or (iii) will result in the
creation or imposition of any lien, charge or encumbrance of any
nature whatsoever upon any of the properties or assets of the
Company.
(d) No approval, authorization, order or consent of, or
declaration, registration or filing with, any governmental authority
is required for the valid execution and delivery of this Agreement
by the Company, except such as have been duly obtained or made.
(e) Except as disclosed to the Authority, in writing, there is
no action, suit or proceeding, at law or in equity, before or by any
court or governmental authority, pending or, to the best of the
Company's knowledge, threatened, against the Company, wherein an
unfavorable decision, ruling or finding would materially adversely
affect the performance by the Company of its obligations hereunder
or in connection with the transactions contemplated hereby, or
which, in any way, would adversely affect the validity or
enforceability of this Agreement, or any other agreement or
instrument entered into by the Authority in connection with the
transactions contemplated hereby.
Article IX--Miscellaneous
Section 9.1 Authority Representative, County Representatives and
Company Representative
(a) The Authority Representative is the Executive Director of
the Authority.
(b) The Company Representative is the President of the Company
or any vice president of the Company who the Company designates as
the Company Representative and who is authorized to contractually
bind the Company.
(c) The County Representatives are the Directors of Public Works
for each County.
(d) Any party may change its authorized representative upon five
(5) Business Days' written notice to the other parties. Only the
Authority Representative or the Company Representative may make the
approvals, requests and notices by a party to the other party under
this Agreement.
Section 9.2 Assignment
Neither the Authority nor the Company may assign this Agreement
without the prior written consent of the other party except that the
Authority may assign its rights, remedies, powers and privileges
under this Agreement to any of the Counties without the consent of
the Company.
Section 9.3 Notices
All notices, designators, consents, approvals, and other
communications required, permitted or otherwise delivered under this
Agreement shall be in writing and may be telexed, cabled, sent by
facsimile or delivered by hand or mailed by first call registered or
certified mail, return receipt requested, postage prepaid, and in
any case shall be addressed as follows:
If to the Authority: Executive Director, Northeast Maryland
Waste Disposal Authority, 25 S. Charles Street, Suite 2105,
Baltimore, Maryland 21201-3330, Fax: (410) 333-3721.
With a copy to the County Representatives:
Director, Howard County Department of Public Works, 3430 Courthouse
Drive, Ellicott City, Maryland 21043, Fax: (410) 313-3408
Director, Anne Arundel County Department of Public Works, 2662 Riva
Road, Annapolis, Maryland 21401, Fax: (410) 222-7329
If to the Company: Earl Mikolitch, President, Atlantic Region,
Sanifill, Inc., 6525 The Corners Parkway, Suite 540, Norcross, GA
30092.
With a copy to: H. Steven Walton, General Counsel, Sanifill,
Inc., 2777 Allen Parkway, Suite 700, Houston, TX 77019-2155.
Any party entitled to receive communications under this
agreement may change the address to which its communications are
delivered by notice to the other parties. Any communications given
by mail in accordance with this Section 9.3 shall be deemed to have
been given five (5) business Days after the date of mailing;
communications given by any means shall be deemed to have been given
when delivered.
Section 9.4 Entire and Complete Agreement
This Agreement (including Schedules 1 through 9 to this
Agreement) constitutes the entire and complete agreement of the
parties with respect to its subject matter and supersedes all prior
or contemporaneous understandings, arrangements, commitments and
representation, all of which, whether oral or written, are merged
into this Agreement. The Schedules to this Agreement are an integral
part of this Agreement and shall be afforded full force and effect
as tough incorporated in their entirety in the Articles of this
Agreement.
Section 9.5 Binding Effect
This Agreement binds and inures to the benefit of the parties to
this Agreement and any successor or assignee acquiring an interest
hereunder permitted by Section 9.2.
Section 9.6 Further Assurances and Amendments
Each party shall execute and deliver any instruments and perform
any acts necessary and reasonably requested by the other party in
order to give full effect to this Agreement.
Section 9.7 Governing Law
The laws of the State of Maryland govern the validity,
interpretation, construction and performance of this Agreement.
Section 9.8 Counterparts
The Authority and the Company may execute this Agreement in
counterparts, each of which is deemed an original, and all of which,
when executed and delivered, together constitute one and the same
instrument.
[[Page 51146]]
Section 9.9 Amendment or Waiver
Neither the Authority nor the Company may change, modify, amend
or waive this Agreement or any provision of this Agreement except by
a written instrument signed by the party against whom enforcement of
such change, modification, amendment or waiver is ought.
Section 9.10 Relationship of the Parties
No party to this Agreement has any responsibility whatsoever
with respect to services provided or contractual obligations assumed
by any other party and nothing in this Agreement is deemed to
constitute one party a partner, agent or legal representative of any
of the other parties or to create any fiduciary relationship between
the parties.
Section 9.11 Confidential Information
The rights and obligations of the parties set forth herein with
respect to Confidential Information are subject to Applicable Law,
including Title 10, Subtitle 6 of the State Government Article of
the Annotated Code of Maryland, as amended.
To the extent permitted by Applicable Law, the Authority shall
hold Confidential Information in strict confidence and take all
reasonable precautions to prevent disclosure to third parties. The
Authority shall promptly notify the Company of the identity of any
Person who requests a disclosure of Confidential Information. The
Authority in its sole discretion shall determine the response to any
request for disclosure of Confidential Information and is not
required to withhold disclosure of Confidential Information upon a
lawful request for information. The Authority shall consider any
information or legal arguments presented by the Company before the
disclosure of the requested information.
Section 9.12 Severability
If a court of competent jurisdiction determines any provision of
this Agreement is, for any reason, invalid, illegal or unenforceable
in any respect, the parties hereto shall negotiate in good faith and
make such amendments, modifications or supplements of or to this
Agreement, that to the maximum extent practicable in light of such
determination, implement and give effect to the intentions of the
parties as reflected herein, and the other provisions of this
Agreement shall, as so amended, modified or supplemented, or
otherwise affected by such action, remain in full force and effect.
Section 9.13 Damages
(a) The Alternate Disposal Damages and Alternate Disposal
Procurement Damages specified in this Agreement constitute the
parties' sole and exclusive remedy for the acts, errors or omissions
for which ``Damages'' those Damages are imposed. The parties may
recover additional amounts for damages caused by other acts, errors
or omissions.
(b) Notwithstanding the foregoing, in no event, whether based
upon contract, tort or otherwise, arising out of the performance or
nonperformance by the Authority of any obligation under this
Agreement, is the Authority liable or obligated in any manner to pay
special, consequential or indirect damages, or any other amount
except as specifically provided in this Agreement.
Section 9.14 Effect of Authority and County Approvals
(a) No review, comment or approval by the Authority or the
Counties under this Agreement affects the rights, remedies, powers
or privileges of the Authority or the Counties in connection with
(i) licenses, permits, reviews or approvals pursuant to Applicable
Law, (ii) the enactment, interpretation or enforcement of any
Applicable Law, (iii) any of its other governmental functions, or
(iv) matters not related to this Agreement.
(b) Now review, comment or approval, nor any failure to review,
comment or give approval, by the Authority or the Counties under
this Agreement relieves the Company of any of its obligations under
this Agreement or imposes any liability upon the Authority or the
Counties.
Section 9.15 Dispute Resolution
The Authority and the Company shall in good faith attempt to
resolve any dispute or matter in controversy under this Agreement.
All disputes under this Contract, if not resolved by the parties,
shall be resolved by courts of competent jurisdiction in the State
of Maryland and in accordance with the laws of the State of
Maryland.
Section 9.16 Limitation of Liability and Defenses
(a) Notwithstanding any other provision of this Agreement to the
contrary, the obligations of the Authority to the Company under this
Agreement are limited to the obligations of the Authority under the
Waste Disposal Agreements (the ``WDA'') to the extent such
obligations are satisfied. Neither the Authority nor the Counties
will be liable to the Company for consequential damages of any type.
The Authority represents that payments to be received from the
Counties under the Waste Disposal Agreement are or will be
sufficient to make monetary payments to the Company.
(b) Notwithstanding any other provision of this Agreement to the
contrary, the liability and obligations of the Authority for all
monetary payments with respect to this Agreement are limited
obligations payable solely from WDA Revenues as and to the extent
such WDA Revenues are received and available to pay such amounts
under Applicable Law. The Authority represents that Revenues to be
received from the Counties are or will be sufficient to make
monetary payments to the Company. The liability of the Authority for
any such monetary payments with respect to this Agreement are not
payable from the general funds of the Authority and the incurrence
or nonperformance of such obligations or payments shall not
constitute or create a legal or equitable pledge of, or lien or
encumbrance upon, or claim against, any of the assets or property of
the Authority or of its income, receipts or revenues.
Notwithstanding any provision of this Agreement to the contrary, the
Company may bring legal action against the Authority if WDA Revenues
received from the Counties are not sufficient to make monetary
payments to the Company.
(c) No recourse for the payment of any amounts due by the
Authority under this Agreement or upon any representation, warranty,
covenant, agreement or obligation contained in this Agreement or in
any document, certificate or instrument that this Agreement requires
to be executed and delivered by the Authority or from any claim
herein or therein shall be had by the Company, except from WDA
Revenues.
(d) The execution and delivery of this Agreement by the
Authority shall not impose any personal liability on the members,
officers, directors, employees or agents of the Authority. No
recourse shall be had by the Company for any claims based on this
Agreement against any member, officer, employee or other agent of
the Authority in his or her individual capacity, all such liability,
if any, being expressly waived by the Company by the execution of
this Agreement.
(e) Unless specifically excused by this Agreement, the Company
shall not assert impossibility or impracticability of performance,
the existence, nonexistence, occurrence or nonoccurrence of a
foreseen or unforeseen fact, event or contingency that may be a
basic assumption of the Company, or commercial frustration of
purpose as a defense against any claim by the Authority or the
Counties against the Company.
Section 9.17 Counties as Third Party Beneficiaries
The Counties are singly and jointly third-party beneficiaries of
all of the obligations of the Company under this Agreement. The
Counties have the right, but not the obligation, to enforce rights,
remedies, powers and privileges of the Authority under this
Agreement if any of the Counties provides ten (10) days' prior
written notice to the Authority and the Company. Unless such prior
notice is given by the Counties, it is understood by all parties
that the Authority Representative shall have the authority to direct
the Company with respect to the Authority's and Counties' rights
herein and the Company shall have the right to rely on such
direction.
Section 9.18 Nondiscrimination
The Company shall not discriminate or permit discrimination
against a Person because of race, color, religion, national origin
or sex. This provision prohibiting discrimination is a material term
of this Agreement.
Section 9.19 Minority Business Participation Requirements
The Company shall structure its procedures for the performance
of the services required by this contract to achieve the Authority's
minority business participation goals. Such performance by minority
business enterprise shall be in accordance with this Section and
Schedule 7. The Company agrees to use its best efforts to carry out
the requirements of this Section consistent with efficient
performance of the Project.
[[Page 51147]]
Section 9.20 Public Ethics
(a) The Authority may terminate the right of the Company to
proceed under this Agreement if it is found by the Authority that
gratuities (in the form of entertainment, gifts, or otherwise) were
offered or given by the Company, or any agent or representative of
the Company, to any officer or employee of the Authority or a County
with a view toward securing this Agreement or securing favorable
treatment with respect to the awarding or amending, or the making of
any determinations with respect to the performing of this Agreement;
the facts upon which the Authority makes such findings may be
reviewed in any competent court.
(b) In the event this Agreement is terminated as provided in
paragraph (a), above, the Authority shall be entitled (i) to pursue
the same remedies against the Company as it could pursue in the
event of a breach of the Agreement by the Company, and (ii) in
addition to any other damages to which it may be entitled by law, to
exemplary damages in an amount (as determined by the Authority)
which shall be not less than three nor more than ten times the costs
incurred by the Company in providing any such gratuities to any such
officer or employee.
(e) The rights and remedies of the Authority provided in this
clause shall not be exclusive and are in addition to any other
rights and remedies provided by law or under this Agreement.
(d) No employee of the State of Maryland, the Authority, or any
department, commission, agency or branch thereof, whose duties as
such employee include matters relating to or affecting the subject
matter of this Agreement, shall, while such employee, become or be
an employee of the party or parties hereby contracting with the
State, the Authority, or any department, commission, agency or
branch thereof.
Section 9.21 Impossibility of Performance
if, during the Term of this Agreement, an event occurs that
causes either party's performance under this Agreement to be
impossible, then each party hereto agrees to negotiate in good faith
for a modification to this Agreement that is mutually agreeable to
each party. The Company and the Authority acknowledge that no change
in Applicable Law that imposes or increases any cost, tax, fee,
assessment or charge shall be considered to render the affected
party's performance impossible for purposes of this Section.
In witness whereof, the Authority and the Company have executed
and sealed this Agreement as of the date first written above.
Witness: [Signature Illegible]
Witness: [Signature Illegible]
Northeast Maryland Waste Disposal Authority [Signature
Illegible]
Garnet of Maryland, Inc.
By:--------------------------------------------------------------------
Earl Mikolitch,
President.
Schedule 1 to Service Agreement
Description of the Service
The Company shall perform the Services described in this
Agreement and in the following documents:
1. The Request for Bids issued on April 16, 1996.
2. The Bid Submittal dated May 13, 1996.
3. Addenda were issued as follows:
--Addendum No. 1 issued on April 17, 1996
--Addendum No. 2 issued on April 26, 1996
--Addendum No. 3 issued on May 6, 1996
In the event of a conflict among these documents, the Service
Agreement shall supersede all prior or contemporaneous agreements,
representations and understandings. The RFB shall likewise supersede
the Bid Submittal.
Incorporated by reference from the bid submittal of Garnet of
Maryland, Inc. is the following:
1. A description of the bidder's system.
2. Interim Period Service description.
3. Evidence of Acceptance Facility availability on or before
January 1, 1997, if applicable.
Schedule 2 to Service Agreement
Definitions
``Acceptance Facility'' means the Facility located at Annapolis
Junction Transfer Station, 8077 Brock Bridge Road.
``Acceptance Facility Delay Damages'' means an amount equal to
twenty-five percent (25%) of the applicable Service Fee during the
period beginning on January 1, 1997 in which the Acceptance Facility
is not available and the Company is using a County landfill for the
Acceptance, Processing and Transfer of Acceptable Waste.
``Acceptable Waste'' means all Waste which is not Unacceptable
Waste and typically includes:
A. Household garbage, trash, rubbish and refuse of the kinds
normally generated by residential housing units and commercial
establishments located in the Counties, including, without
limitation:
1. Large household items such as beds, mattresses, sofas,
bicycles, baby carriages, automobile parts and roofing Wastes of the
types that are generally collected by the Counties and private
haulers from residential housing units located in the Counties, or
which are delivered to drop-off locations operated by the Counties;
and
2. Brush, branches, leaves, twigs, grass and plant cuttings.
B. Commercial and light industrial Waste normally generated by
governmental, commercial and light industrial and manufacturing
establishments located in the Counties.
C. Construction and demolition debris.
D. Residue from a Materials Resource Recovery Facility, or
Composting Facility.
E. Acceptable Waste previously deposited in the existing
Counties' landfills.
``Affiliate'' means any other Person who controls, is controlled
by, or is under common control with the Company.
``Agreement'' means this Service Agreement between the Authority
and the Company (including Schedules 1 through 10 to this
Agreement).
``Agreement Date'' means August 8, 1996.
``Alternate Disposal Damages'' means an amount equal to all
reasonable expenses incurred by the Authority and the Counties as a
result of the failure of the Company to fulfill its obligations
under this Agreement for the cost of acceptance, transfer and
disposal of Waste, the cost of statutory or regulatory penalties,
counsel fees and reasonable expenses incurred by the Counties or the
Authority and which are not foreseeable by the Parties at this time.
``Alternate Procurement Damages'' means an amount equal to the
reasonable and direct costs estimated to be incurred by the
Authority and the Counties to procure another company to provide the
Service. In no event must Alternate Procurement Damages exceed
actual costs incurred by the Counties and Authority in procuring
another Company for this Agreement.
``Applicable Law'' means any law, regulation, requirement or
order of any Federal, State or local agency, court or other
governmental body (including, without limitation, the Anne Arundel
County and Howard County Comprehensive Solid Waste Management Plans
and all permits, licenses and governmental approvals required as of
the date of this Agreement), applicable to: 1) the acquisition,
design, construction, equipping, testing, financing, ownership,
possession or operation of the Acceptance Facility and the Disposal
Facility or any other Facility used to provide the Service 2) the
Agreement; or 3) the performance of any obligations under the
Agreement or any other agreement entered into in connection with the
Agreement.
``Business Day'' means any day other than Saturday, Sunday or a
day on which either state or national banks in Maryland are not open
for normal banking business.
``Company'' means Garnet of Maryland, Inc., and its permitted
successors and assigns.
``Commencement Date'' means the first day on which Acceptable
Waste is delivered to the Company under this contract, which date is
expected to be July 1, 1996.
``Company Representative'' means the authorized representative
of the Company designed in accordance with Section 9.1.
``Confidential information'' means proprietary information of
the Company related to solid Waste disposal given to the Authority
or the Countries by the Company in connection with this Agreement
that (1) the Counties or the Authority (as the case may be) is not
required to disclose under Applicable Law, (2) is not in the public
domain, (3) is in tangible form, (4) is identified as confidential
by the word ``confidential'' conspicuously marked on the upper right
hand corner of each page thereof, and (5) is annotated to reference
the provisions of Applicable law that authorize non disclosure of
such material and information to the public.
``County'' or ``Counties'' means, respectively, Howard County,
Maryland, and Anne Arundel County, Maryland, and their respective
successors and permitted assigns.
[[Page 51148]]
``County Representative'' means the Person designated by each
County in accordance with Section 9.1.
``Delivery Delay Damages'' means an amount equal to fifty
percent (50%) of the applicable Service Fee or Out of Hours Delivery
Charge for every ton of Waste delivered by the Authority, County or
a Designated Hauler for which the delivery vehicle had to wait in
excess of 30 (thirty) minutes after arrival at the Acceptance
Facility property boundary in order to deposit the Waste.
``Designated Hauler'' means any Person who is designated by the
Authority, or a County to deliver Waste to the Acceptance Facility,
on behalf of the Authority or a County.
``Disposal Facility'' means the solid waste disposal facility
identified by the Company as the facility for final disposal of
Acceptable Waste delivered by the Authority under the Agreement. If
the Acceptable Waste is delivered to a waste-to-energy facility,
composting facility, or other processing facility the Company must
provide a disposal facility for all residue, non-processible and
bypass waste.
``Event of Default'' means an Event of Default as defined in
Article VI.
``Facility or Facilities'' means any component of the Company's
system which receives, processes, transports and/or disposes of
Waste and any residue or byproduct of processing Waste.
``Fiscal Year'' means the year commencing on July 1 of any
calendar year and ending on June 30 of the succeeding calendar year.
``GAAP'' means those principles of accounting set forth in
pronouncements to the Financial Accounting Standards Board, the
American Institute of Certified Public Accountants, or which have
other substantial and nationally recognized authoritative support
and are applicable in the circumstances as of the date of a report,
as such principles are from time to time supplemented and amended.
``Guarantor'' means.-------------------------------------------------
``Hazardous Waste'' means:
A. Any Waste or substance, the treatment, storage or disposal of
which, because of the composition or characteristics of the Waste or
substance, is unlawful to treat, store or dispose of at the
Acceptance or Disposal Facility or other facilities to be used in
providing the Service and is considered hazardous Waste under
Applicable Law, including, without limitation, Wastes that are:
1. Regulated as a toxic or hazardous Waste as defined under
either Subtitle C of the Solid Waste Disposal Act, 42 U.S.C.
Secs. 6921-6939a, or Section 6(e) of the Toxic Substances Control
Act, 15 U.S.C. Sec. 2605(e), as replaced, amended, expanded or
supplemented, and any rules or regulations promulgated thereunder,
or under the Environment Article of the Annotated Code of Maryland,
Title 7, Section 7-101 et seq., as replaced, amended, expanded, or
supplemented, and any rules or regulations promulgated thereunder;
or
2. Low level nuclear Wastes, special nuclear Wastes or nuclear
by-product Wastes, all within the meaning of the Atomic Energy Act
of 1954, as replaced, amended, expanded or supplemented, and any
rules, regulations or policies promulgated thereunder.
B. Any other Wastes which any Governmental Body or unit having
appropriate jurisdiction shall lawfully determine, from time to
time, to be ineligible for disposal through facilities of the type
being used to provide the Service because of the harmful, toxic, or
dangerous composition or characteristics of the Waste or substance.
Any such designation would, under the Agreement, be considered an
Uncontrollable Circumstance as defined in the Service Agreement.
``Hazardous Waste Costs'' means with respect to Hazardous Waste
proven to have been delivered to a Facility by the Authority, a
County or a Designated Hauler, the actual costs of the removal and
disposal of such Hazardous Waste and all other costs and liabilities
associated with or arising from the delivery, removal, or disposal
or such Hazardous Waste; provided, that Hazardous Waste Costs do not
include:
(a) Any costs or liabilities incurred due to the Company's
negligence, willful misconduct or failure to adhere to Applicable
Law or the Hazardous Waste Protocol in connection with any Waste it
knows or should know to be Hazardous Waste;
(b) Any costs incurred by the Company for the operation or
maintenance of a Facility as a result of the discovery of Hazardous
Waste;
(c) Any costs or liabilities paid by any third party or
insurance policy.
Hazardous Waste Costs also include the cost, if approved in
writing by the Authority, of any repairs or alterations to a
Facility necessitated by the presence or inadvertent Acceptance of
such Hazardous Waste and all liabilities, damages, claims, demands,
expenses, suits or actions including reasonable appeals, fines,
penalties and attorney's fees in connection with any civil or
administrative proceeding arising from the presence of such
Hazardous Waste at a Facility or the removal or disposal of such
Hazardous Wastes including, without limitation, any suit for
personal injury to, or death of, any person or persons, or loss or
damage to property resulting from the presence, removal, disposal or
inadvertent processing of such Hazardous Waste.
``Holiday'' means those days listed in Section 2.3 for which an
observance date is established by the Authority.
``Interim Period'' means July 1, 1996-December 31, 1996 during
which time the Company shall provide Service to Anne Arundel County.
``Labor Action'' means a strike, lockout or other similar work
shutdown or stoppage by workers.
``Late Payment Rate'' means an amount equal to Nations Bank N.A.
prime rate of interest, as adjusted from time-to-time, plus two
percent.
``Non-performing Party'' means a party to this Agreement who
fails to perform any obligation or comply with any requirement of
such party under this Agreement.
``Notice of Termination'' means a written notice requiring the
termination of this Agreement due to an Event of Default pursuant to
Article VI hereof that specifies the factual basis for such
termination and the date on which this Agreement will terminate
pursuant to Article VI hereof.
``Performance Bond'' means the performance bond relating to the
provision of the Service in substantially the form set forth in
Schedule 5.
``Person'' means any individual, corporation, partnership, joint
venture, association, joint-stock company or unincorporated
organization, or any government unit or agency or political
subdivision not otherwise expressly named in this Agreement.
``Process'' means to separate, combine, combust, compost,
compact, load or otherwise handle Waste delivered to a Facility in
accordance with the Applicable Law.
``Receiving Hours'' means from 7:00 a.m. until 5:00 p.m. Monday
through Saturday, (except Holidays) and until 7:00 p.m. on the first
regular collection day following a Holiday, or such other hours as
may be established in writing from time to time by the Authority
Representative, the Company Representative and the County
Representatives.
``Require Insurance'' means the types and amounts of insurance
set forth in Schedule 6.
``Service'' means the acceptance, processing, transportation and
disposal of Acceptable Waste delivered to the Company pursuant to
this Agreement.
``Service Fee'' has the meaning set forth in Article III of this
Agreement
``Subcontractor Default'' means the failure of any Subcontractor
that is not an Affiliate of the Company or other subcontractor or
supplier (except an Affiliate of the Company) selected with
reasonable care to furnish labor, services, Waste or equipment.
``Termination Settlement Amount'' means an amount calculated in
accordance with the formula set forth in Schedule 9.
``Ton'' means a ``short ton'' of two thousand (2,000) pounds.
``TPD'' means Tons Per Day.
``TPY'' means Tons Per Year.
``Unacceptable Waste'' means:
(a) Hazardous Waste; and
(b) That portion of solid Waste the disposal of which (i) may
present a substantial endangerment to public health or safety, or
(ii) would cause Applicable Law to be violated, or (iii) is likely
to materially adversely affect the operation of a Facility;
provided, however, that if such unacceptable Waste (other than
Hazardous Waste) is delivered in quantities and concentrations as
determined by the Authority and as part of normal collections so as
not to have the effect described in clauses (i), (ii) and (iii)
above it shall constitute Acceptable Waste unless otherwise directed
by State or federal regulatory authorities. The Unacceptable Wastes
described in this paragraph (b) shall include:
(1) Pathological and biological Waste, explosives, medical and
infectious Waste, cesspool and other human Waste, human and animal
remains;
(2) Large automobile and vehicular parts, trailers, agricultural
equipment, marine vessels;
[[Page 51149]]
(3) Oil sludge or liquid Wastes; and
(4) Radioactive Wastes.
``Uncontrollable Circumstance'' means an event or condition
listed in this definition, whether affecting the Authority, the
Counties or the Company, that has, or may reasonably be expected to
have, a material adverse effect on the operation of a Facility, if
such event or condition is beyond the reasonable control, and not
the result of willful or negligent action or a lack of due
diligence, of the Non-performing Party relying thereon as
justification for not performing any obligation or complying with
any condition required of such party hereunder, for delaying such
performance or compliance. The following events or conditions, and
no others, shall constitute Uncontrollable Circumstances if they
meet the requirements of the preceding sentence:
(a) An act of God (but not including reasonably anticipated
weather conditions for the geographic area of a Facility),
hurricane, landslide, earthquake or similar occurrence, fire,
explosion or other casualty, an act of the public enemy, war,
insurrection, riot, general arrest or restraint of government and
people, civil disturbance or similar occurrence, or sabotage
committed at a Facility by a Person other than an employee or agent
of, or visitor invited by, the Company or its Affiliates, or the
Company's subcontractors of any tier;
(b) The failure of the jurisdiction in which a Facility is
situated or the appropriate federal or state agencies or public
utilities having operational jurisdiction in the area or location of
the Facility to provide and maintain and assure the maintenance of
all utilities services (excluding sewerage and water lines) to the
Facility for operation of the Facility, provided they are essential
the Facility;
(c) A non-Company or non-subcontractor Labor Action.
(d) Any host fee or surcharge imposed by either Howard or Anne
Arundel County after the bid submittal which applies to a solid
Waste acceptance facility (which term is defined by Maryland
Environmental Code Ann. Sec. 9-501(n)) located in either County.
No other costs of any kind shall be considered an Uncontrollable
Circumstance for the purposes of this Agreement.
In no event will Subcontractor Default or a Company Labor Action
constitute an Uncontrollable Circumstance.
The term ``reasonable control'' includes investigation or
planning that is required by sound management or industry practices.
No change in any Applicable Law imposing or increasing any tax, fee,
assessment or charge shall constitute an Uncontrollable
Circumstance. Neither the Authority nor the Countries shall be
liable for the loss of any benefits relating to the Service for any
reason whatsoever, if any.
``Waste'' means solid Waste including Acceptable Waste,
delivered to the Acceptance Facility by, or or behalf of, the
Authority and the Counties.
``Waste Disposal Agreement'' means the Agreement between the
Authority and each County.
``Waste Disposal Services Revenues'' means (i) all payments to
the Authority by the Counties directly attributable to the Service,
and (ii) all other receipts of the Authority directly attributable
to the Service.
``Wrongfully Diverted Waste'' means any Waste delivered to the
Company, but which is rejected by the Company for any reason other
than as permitted pursuant to Section 2.2(a) or any other provision
of the Service Agreement.
Schedule 3 to Service Agreement
Service Fees
Bid Price for Waste Acceptance, Processing, Transportation and
Disposal for July 1, 1996--December 31, 1996 for Anne Arundel
County, January 1, 1997--December 31, 1999 for Howard and Anne
Arundel Countries with three one-year renewal options held solely by
the Counties with no inflation adjustment available and including
the option Anne Arundel County reserves for itself to send
additional tonnage to the Company during the term of the Service
Agreement in an amount anywhere between 1-300 additional tons per
day.
Bid Price--$33.00/ton
Schedule 4 To Service Agreement
Reporting Requirements
The Company shall give the Authority Representative and the
County Representatives the following reports and information at the
times indicated below.
The Company shall deliver the following information:
A. Pre-Commencement Date Documents:
Pre-Commencement Date Reports
------------------------------------------------------------------------
Information Delivery date
------------------------------------------------------------------------
Copies of Required Insurance, Performance Prior to Service
Bond, Letter of Credit, Corporate Guarantee. Agreement Execution
Date.
------------------------------------------------------------------------
B. Periodic Reports During Operations:
Periodic Reports During Operations
------------------------------------------------------------------------
Report Delivery date
------------------------------------------------------------------------
Monthly Performance Report (see Exhibit A to Accompany Monthly Invoice
this Schedule). for payment.
Scale Certification.......................... Once per year or more
frequently if required
by Applicable Law.
------------------------------------------------------------------------
Periodic Reports During Operations
------------------------------------------------------------------------
Other information Delivery date
------------------------------------------------------------------------
Copies of permits and permit renewals Within 5 (five) business
subsequent to the permits submitted as part days of receipt by or
of the bid submittal. delivery to the Company.
Copies of all compliance reports and notices Within 5 (five) business
submitted to or received from authorities days of receipt by or
regulating the Facilities must be submitted delivery to the Company.
to the Authority. Any notices of violation
or potential violation at the Facilities
must be submitted to the Authority as well
as any notice designating the Facility as a
Superfund Site or notice of potential
National Priority List designation.
Copies of all reports and notices submitted Within 5 (five) business
to or received from a host community days of receipt by or
pursuant to a host community agreement. delivery to the Company.
Copies of any amendments to any host
community agreement for the Disposal
Facility.
Reports or notices of environmental Within 5 (five) business
violations of Applicable Law or citations days of receipt by or
related to violations of Applicable Law delivery to the Company.
relating to the Facilities providing the
Service.
[[Page 51150]]
Reports of lawsuits requesting declaratory, Within 5 (five) business
injunctive or other equitable relief and days of receipt by or
lawsuits in excess of $1,000,000 in which delivery to the Company.
the Company, its parent company, or
affiliates is a party related to Facilities
providing the Service. If the litigation
involves any issues relating to the
environment, the dispute must be reported
without regard to monetary amount.
Any material adverse change in the financial Within 5 (five) business
condition of the Company or Guarantor, if days of receipt by or
applicable. delivery to the Company.
Notice of any proposed transfer of ownership, 60 (sixty) days prior to
possession, or control of the Company, effective date of
Guarantor, if applicable, or Facilities must action.
be given to the Authority. The notice must
include identification of the transferee,
and other information as specified in RFB
Section 1.4.3 D.
Monitoring well water quality analysis and Semi-annually.
assessment monitoring reports as specified
in RFB Section 1.4.3.H.
------------------------------------------------------------------------
Exhibit A To Schedule 4 To Service Agreement
Monthly Performance Report Forms
The Company must complete the Monthly Tonnages Report Form in
Schedule 4 and submit the form to the Authority and the Counties
with the monthly invoice for payment.
------------------------------------------------------------------------
Month Ytd
------------------------------------------------------------------------
1. Tonnage \1\
Acceptable Waste Received:
Anne Arundel County
Howard County
Acceptable Waste Disposed:
Anne Arundel County
Howard County
Unacceptable Waste Received \2\:
Anne Arundel County
Howard County
Unacceptable Waste Disposed \2\:
Anne Arundel County
Howard County
2. Out of Hours Deliveries (attach back-up
data verifying delivery time)
Anne Arundel County
Howard County
------------------------------------------------------------------------
\1\ Include all scale records to correspond with the invoiced tonnages.
\2\ Describe how the Waste was handled, including copies of any
manifests required by Applicable Law.
Schedule 5 To Service Agreement
Form of Performance Bonds
Performance Bond
----------------------------------------------------------------------
Principal
----------------------------------------------------------------------
Business Address of Principal
----------------------------------------------------------------------
Surety
----------------------------------------------------------------------
Obligee
a corporation of the State of ____________________ and authorized to
do business in the State of Maryland.
Northeast Maryland Waste Disposal Authority and Anne Arundel County,
Maryland, and Howard County, Maryland
----------------------------------------------------------------------
Penal Sum of Bond (express in words and figures)
Date of Contract: ________________, 19____
Date Bond Executed: ________________, 19____
Service Agreement to provide Waste acceptance, processing,
transportation and disposal.
Contract Number:-----------------------------------------------------
Know all men by these presents, That we, the Principal named
above and Surety named above, are held and firmly bound unto the
Obligee named above in the Penal Sum of this Performance Bond stated
above, for the payment of which Penal Sum we bind ourselves, our
heirs, executors, administrators, personal representatives,
successors, and assigns, jointly and severally, firmly by these
presents. However, where Surety is composed of corporations acting
as co-sureties, we, the co-sureties, bind ourselves, our successors
and assigns, in such Penal Sum jointly and severally as well as
severally only for the purpose of allowing a joint action or actions
against any or all of us, and for all other purposes each co-surety
binds itself, jointly and severally with the Principal, for the
payment of such sum as appears above its name below, but if no limit
of liability is indicated, the limit of such ability shall be the
full amount of the Penal Sum.
Whereas, Principal has entered into or will enter into a
contract with the Northeast Maryland Waste Disposal Authority (the
``Authority''), which contract is described and dated as shown
above, and incorporated herein by reference. The contract and all
items incorporated into the contract, together with any and all
changes, extensions of time, alterations, modifications, or
additions to the contract or to the work to be performed thereunder
or any of them, or to any other items incorporated into the contract
shall hereinafter be referred to as ``the Agreement.''
Now, therefore, during the term of said Agreement, this
Performance Bond shall remain in full force and effect unless and
until the following terms and conditions are met:
1. Principal shall well and truly perform the Contract; and
2. Principal and Surety shall comply with the terms and
conditions in this Performance Bond.
Whenever Principal shall be declared by the Authority to be in
default under the Agreement, the Surety may within fifteen (15) days
after notice of default from the Authority notify the Authority of
its election
[[Page 51151]]
to either promptly proceed to remedy the default or promptly proceed
to complete the contract in accordance with and subject to its terms
and conditions. In the event the Surety does not elect to exercise
either of the above stated options, then the Authority thereupon
shall have the remaining contract work completed, Surety to remain
liable hereunder for all expenses of completion up to but not
exceeding the penal sum stated above.
The Surety hereby stipulates and agrees that no change,
extension of time, alteration or addition to the terms of the
Agreement or to the work to be performed thereunder or the
Specifications accompanying the same shall in any way affect its
obligations on this Performance Bond, and it does hereby waive
notice of any such change, extension of time, alteration or addition
to the terms of the Agreement or to the work or to the
Specifications.
This Performance Bond shall be governed by and construed in
accordance with the laws of the State of Maryland and any reference
herein to Principal or Surety in the singular shall include all
entities in the plural who or which are signatories under the
Principal or Surety heading below.
In witness whereof, Principal and Surety have set their hands
and seals to this Performance Bond. If any individual is a signatory
under the Principal heading below, then each such individual has
signed below on his or her own behalf, has set forth below the name
of the firm, if any, in whose name he or she is doing business, and
has set forth below his or her title as a sole proprietor. If any
partnership or joint venture is a signatory under the Principal
heading below, then all members of each such partnership or joint
venture have signed below, each member has set forth below his or
her title as a general partner, limited partner, or member of joint
venture, whichever is applicable. If any corporation is a signatory
under the Principal or Surety heading below, then each such
corporation has caused the following: the corporation's name to be
set forth below, a duly authorized representative of the corporation
to affix below the corporation's seal and to attach hereto a
notarized corporate resolution or power of attorney authorizing such
action, and each such duly authorized representative to sign below
and to set forth below his or her title as a representative of the
corporation. If any individual acts as a witness to any signature
below, then each such individual has signed below and has set forth
below his or her title as a witness. All of the above has been done
as of the Date of Bond shown above.
In Presence of:
----------------------------------------------------------------------
Witness
Individual Principal
----------------------------------------------------------------------
In Presence of: Witness
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Attest:
----------------------------------------------------------------------
Corporate Secretary
Partnership Principal
----------------------------------------------------------------------
Name of Partnership
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Corporate Principal
----------------------------------------------------------------------
(Name of Corporation)
----------------------------------------------------------------------
President
Affix Corporate Seal
Attest:
----------------------------------------------------------------------
Signature
----------------------------------------------------------------------
(Surety)
By:--------------------------------------------------------------------
Title:-----------------------------------------------------------------
Affix Corporate Seal
Business Address of Surety:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Bonding Agent's name:
----------------------------------------------------------------------
Agent's Address:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Approved as to legal form and sufficiency this ________ day of
________________ 1996.
----------------------------------------------------------------------
Assistant Attorney General
Schedule 6 to Service Agreement
Required Insurance
On and after the Commencement Date, the Company shall obtain and
keep in force the following insurance with insurance companies
licensed and qualified to do business in the State of Maryland rated
at least ``A-'' or its equivalent by Best's Key Rating Guide,
evidenced by a certificate of insurance and certified copies of all
insurance policies.
(a) Worker's Compensation.
The Company shall maintain such insurance as required by
Maryland Law covering all of its employees as will protect them and
save the Counties and Authority harmless from claims. The Company
shall maintain Employers' Liability Coverage in the following
amounts: $500,000 for each accident; $500,000 for each disease per
employee; $500,000 for bodily injury by disease policy aggregate and
shall save the Counties and the Authority harmless from claims.
(b) Commercial General Liability Insurance.
The Company shall arrange and pay for a general liability policy
which will protect the Authority, the Company and the County from
public liability for any personal injury, including death or
property damage which may arise from his operations or the
operations of his Company and Sub-Contractors or by anyone directly
or indirectly employed in the work by either of them under this
Agreement, as follows:
$1,000,000 per occurrence for bodily injury and property damage
$1,000,000 aggregate for products and completed operations
$2,000,000 general aggregate (on a per project basis)
$1,000,000 per occurrence for personal & advertising injury
liability
There shall be no exclusions for explosion, collapse or
underground exposures; the Company shall obtain contractual
liability coverage, independent contractors coverage, broad from
property damage coverage, and shall name the facility operator as an
additional insured.
(c) Business Automobile Liability Coverage.
The Company shall maintain coverage which extends to all owned,
leased, rented or borrowed automobiles in the amount of $1,000,000
for each accident involving bodily injury and or property damage.
Coverage must extend to include all monetary state and federal
regulations as well as respects uninsured/underinsured motorists
coverage, ICC, PUC filings and financial responsibility
requirements.
(d) Umbrella/Excess Liability coverage must be obtained in
minimum amounts of $10,000,000 per occurrence and in the aggregate.
Coverage must at a minimum follow form with applicable underlying
insurance.
(e) Professional Liability/Errors & Omissions insurance is
required for all professional services performed under the contract
in amounts customary for the profession.
(f) Environmental Impairment Liability covering the Facilities.
Company shall acquire and maintain Environmental Impairment
Liability Insurance including sudden, non-sudden and gradual
exposure, for all of Company's operations hereunder, including but
not limited to disposal of Waste pursuant to this Agreement. Company
shall purchase limits of $1 million per occurrence and $2 million
annual aggregate for any release of toxics or hazardous Waste or
other hazardous substance requiring monitoring, cleanup or
corrective action under CERCLA. A combination of primary and excess
coverage is acceptable, provided that there are no pollution
exclusions in either policy.
(g) All Companies and subcontractors must submit evidence of
required insurance prior to performance.
(h) Each Company must carry property damage insurance for all
property owned, leased or loaned by the Company whether to be used
in this project or not. Limits should equal the replacement value of
such equipment and coverage must be on an ``all risk.''
(i) The Company must provide the Authority with evidence that
the disposal site owner carries insurance for site property damage.
In addition, the Company must provide the Authority with evidence
that the disposal site, if a landfill, carries environmental
impairment liability insurance for that site of at least ten million
dollars.
Section 2. General
(a) The Authority and the Counties shall be named as additional
insurers on the above Commercial General Liability and Environmental
Impairment policies.
[[Page 51152]]
(b) All losses under the required insurance shall be adjusted to
the satisfaction of the Authority and the County.
(c) The Company shall purchase commercial insurance for the
above coverages. Approval for deductibles higher than $25,000 for
the liability policies will be required from the Authority and the
Counties.
(d) All claims made policies shall provide a minimum of five (5)
years' discovery period.
(e) The Authority and the Counties shall be advised promptly in
writing of the following change in the insurance policies:
(i) Setting up a new retro date.
(ii) Exhausting any aggregate limit under any of the above
policies.
(iii) Switching occurrence based coverage to claims made
coverage or vice versa.
(f) The Company shall assure that all subcontractors performing
services in accordance with this Agreement carry identical coverages
as required above, either individually or as an additional insured
on the policies of the Company.
Schedule 7 To Service Agreement
Minority Business Participation Policy
The Company shall comply with and meet the minority business
participation requirements of the Authority, a copy of which is
attached hereto.
Minority Business Enterprise--Terms and Conditions
For Municipal Solid Waste Acceptance, Processing, Transportation
and Disposal Services
By the Northeast Maryland Waste Disposal Authority on Behalf of Anne
Arundel County, Maryland and Howard County, Maryland
Date: February 5, 1996.
I. MBE Program Goals
The Authority will attempt to obtain the Project's MBE
participation goals primarily through two mechanisms: by requiring
prime Companies to utilize MBE as subcontractors/suppliers and by
encouraging MBE to respond directly to this request for bids.
Accordingly, the Authority's MBE participation percentage goal for
this Project is 10% of the value of the contract.
II. Responsibilities
The Executive Director of the Authority will be responsible for
implementing, coordinating and monitoring the Project's MBE program.
All bidders are expected to take positive steps to use MBEs.
These positive efforts should consist of the following:
a. Extending opportunities for subcontracting joint arrangements
and material supplying to MBEs.
b. Identifying in monthly reports to the Executive Director of
the Authority the MBE firms to be used.
c. Maintaining records of MBEs contacted, including negotiation
efforts to reach competitive price levels and awards to MBEs.
d. Requiring subcontracts under the contract to comply with the
MBE policy.
e. Keeping the Authority informed of all MBE sub-agreements or
changes in plans to award subcontracts previously reported as
proposed for MBEs.
All Minority Business Enterprises are expected to take the
following actions at a minimum:
a. Become involved in the project planning and bid process.
b. Provide capability statements to the Authority.
c. All MBEs must be certified as MBEs by the State of Maryland
or Howard County or Anne Arundel County.
The Authority hereby notifies all bidders responding to this RFP
that minority business enterprises will be afforded full opportunity
to submit bids in response to this notice and will not be subjected
to discrimination on the basis of race, color, sex or national
origin in consideration of an award.
After bid opening but prior to contract award, and execution of
the Service Agreement, the apparent low bidder will be required to
submit documentation showing minority participation.
After a meeting with the apparent low bidder and evaluation of
its compliance to the MBE requirement, the Authority will notify the
bidder of the following:
a. Final award of the contract.
b. Apparent low bidders who fail to achieve the desired MBE
participation can be declared ``non-responsive'' bidders in which
case the next low bidders becomes the apparent low bidder. This
process may be repeated until an apparent low bidder meeting the MBE
requirement is obtained or the Authority may elect to rebid the
Project to obtain both an equitable price and MBE compliance.
III. Contract Compliance Process
a. The Authority will conduct periodic compliance reviews with
all prime Companies required to comply with the MBE goal.
b. Companies will be given prior notification of a pending on-
site verification and review for contract compliance. During such
on-site review, the Company will have the following available for
inspection:
1. Copies of Purchase Orders and subcontracts containing EEO
clauses.
2. Records to indicate the number, names, dollar value of the
minority subcontracts, the amount and dates and the scheduled times
for each MBE to be on the job site.
3. Any other appropriate documents requested prior to the on-
site visit.
c. The on-site verification and interviews as a minimum will
consist of the following:
1. An initial meeting with the Company or his representative to
explain visit objectives.
2. Tour of the job site.
3. Interviews of subcontractors, suppliers, etc.
d. At the conclusion of the on-site visit an exit conference
will be conducted. This conference will consist of a discussion of
the compliance process and determination time frame, and suggestions
for corrective action to be taken if necessary.
e. A monthly report indicating compliance status will be
prepared and forwarded to the Executive Director of the Authority.
1. If a determination of noncompliance is made, the Authority
may conduct further investigation. The Company will be notified and
an attempt made informally to remedy any problems of compliance. In
the event conciliation fails, the Authority will declare the Company
in noncompliance.
IV. Enforcement
If a Company fails or refuses to take corrective action, the
Authority will determine which of the following should be imposed to
promote the purpose of the Project's MBE Program.
a. Declare an Event of Default under the contract (Service
Agreement).
b. Withhold a percentage of progress payment.
c. Assess liquidated damages.
d. Deny the Company or any subcontractor the right to
participate in any future contracts awarded by the Authority.
e. Other appropriate action within the discretion of the
Executive Director of the Authority.
This MBE policy document is hereby incorporated into the Service
Agreement and failure to comply with its terms may be declared an
event of default under Section 6.3(c) of the Service Agreement.
Schedule 8 to Service Agreement
Guaranty
This Guaranty, dated as of ________________, 199____, is made by
____________________ (``Guarantor''), to and for the benefit of the
Northeast Maryland Waste Disposal Authority (the ``Authority'').
Recitals
____________________, (the ``Company'') and the Authority are
entering into a Authority Agreement dated as of ________________,
199____ (the ``Service Agreement'') under which the Company will
provide Waste acceptance, processing, transportation and disposal
services to the Authority. The Service Agreement is by reference
incorporated in this Guaranty and made a part of it.
The Guarantor has determined that it is in its best interests
for the Company to enter into the Service Agreement with the
Authority.
The Authority is willing to enter into the Service Agreement
only if the Guarantor executes this Guaranty and carries out its
obligations under this Guaranty.
The Guarantor is willing to guaranty, as set forth below, the
performance of the Company under the Service Agreement.
Now, therefore, as an inducement to the Authority to enter into
the Service Agreement, and to and for their benefit, the Guarantor
agrees as follows:
1. Guarantee.
The Guarantor hereby directly, unconditionally, irrevocably and
absolutely guarantees the full and punctual performance by the
Company of all the Company's obligations under the Service Agreement
in accordance with its terms and conditions.
2. Guarantee Absolute.
The Guaranty provided for herein is absolute, unconditional and
continuing, and the Authority shall be entitled to enforce any
[[Page 51153]]
and all obligations guaranteed hereby directly against the
Guarantor. If the Company fails to perform any of its obligations
contained in the Service Agreement, when and as the same is required
to be performed, the Guarantor shall cause the performance of such
obligation.
3. Nature of Obligations.
The Guarantor hereby agrees that at any time and from time to
time, the Authority may, without in any manner affecting, impairing,
lessening, modifying, waiving or releasing any or all of the
obligations and liabilities of the Guarantor under this Guaranty,
with or without notice to the Guarantor, modify, extend, amend,
change, compromise, settle, release, terminate, waive, surrender or
otherwise deal with in any manner satisfactory to the Authority, any
or all of the provisions of the Service Agreement, so long as such
action is taken in accordance with the Service Agreement.
4. Subordination.
The payment of any and all past, present and future
indebtedness, liabilities and obligations of the Company to the
Guarantor of every kind, nature and description is hereby
subordinated and postponed by the Guarantor to the obligations set
forth in the Service Agreement. The Guarantor agrees that the
obligations under the Service Agreement shall have priority in
payment, right and remedy over the subordinated obligations to the
Guarantor. Nothing in this Section 4 shall impair the right of the
Guarantor to receive dividends, distributions or any return of any
capital investment or repayment of any loan made to the Company so
long as there is not an Event of Default of the Company under any
provision of the Service Agreement.
5. Consent to Jurisdiction, Etc. This Guaranty shall be governed
by and construed in accordance with the laws of the State of
Maryland, and the Guarantor irrevocably submits to the jurisdiction
of any state or federal court sitting in the State of Maryland over
any suit, action or proceeding arising out of or relating to this
Guaranty. The Guarantor hereby irrevocably designates and appoints [
], as the Guarantor's authorized agent to accept
and acknowledge on the Guarantor's behalf service of process in any
suit, action or proceeding of any nature referred to in this
paragraph, provided that duplicate copies thereof be simultaneously
delivered to the Guarantor.
6. Maintenance of Corporate Existence and Credit Rating. The
Guarantor must maintain and do or cause to be done all things
necessary to preserve and keep in full force and effect its
corporate existence and material rights and franchises. The
Guarantor must not seek or permit the dissolution or liquidation of
the Guarantor, in whole or in part, to merge into, consolidate with,
enter into a joint venture or partnership with or in any way be
acquired by any Person, unless the Guarantor is the surviving
corporation, or unless this Guaranty is assumed, in its entirety, by
the surviving corporation.
7. No Set-Off, Etc.
No set-off or counterclaim, reduction or diminution of, or
defense of any kind to, any obligation of the Guarantor hereunder
that the Guarantor may have against the Authority, shall be
available to the Guarantor against the Authority to reduce its
obligations under this Agreement unless it arises out of the Service
Agreement.
8. Notices.
All notices and other communications hereunder shall be in
writing and shall be delivered, or mailed by certified or registered
mail, as follows:
If to the Guarantor:
With copy to:
If to the Authority: Executive Director, Northeast Maryland
Waste Disposal Authority, 25 S. Charles Street, Suite 2105,
Baltimore, Maryland 21201-3330.
With copy to:
or at such other addresses as any party shall furnish to the others
in writing.
9. Miscellaneous.
9.1 The Authority or the counties may jointly or severally
enforce the performance and observance of this Guaranty.
9.2 No delay or omission to exercise any right, remedy, power
or privilege accruing upon any default, omission or failure of
performance hereunder shall impair any such right, remedy, power or
privilege or be construed to be waiver thereof, but any such right,
remedy, power or privilege may be exercised from time to time and as
often as may be deemed expedient. In the event any provision
contained in this Guaranty shall be breached by the Guarantor and
thereafter duly waived in writing by the Authority, such waiver
shall be limited to the particular breach so waived and shall not be
deemed to waive any other breach hereunder. No waiver, amendment,
release or modification of this Guaranty shall be established by
conduct, custom or course of dealing, but solely by an instrument in
writing duly executed by the Authority.
9.3 This Guaranty may be executed simultaneously in several
counterparts, each of which shall be deemed an original, and all of
which together shall constitute one and the same instrument.
9.4 The invalidity or unenforceability of any one or more
provisions of the Guaranty shall not affect the validity or
enforceability of the remaining portions of this Guaranty.
9.5 This Guaranty shall terminate if all amounts payable or
obligations to the Authority by the Company under the Service
Agreement have been paid in full or performed, as the case may be,
in accordance with the terms of the Service Agreement.
9.6 This Guaranty is solely for the benefit of the Counties and
the Authority and shall create no rights in favor of any other
person, firm, corporation or governmental entity whatsoever.
In witness whereof, the Guarantor has caused this Guaranty to be
signed, sealed and delivered on the day and year first above
written.
The Company joins in the execution of this guaranty only so as
to signify the Company's acceptance of and consent to the
subordination provisions of Section 4 of this Guaranty.
Schedule 9 to Service Agreement
Termination Procedures and Costs
1. If the Authority exercises its right to terminate this
Agreement pursuant to Section 6, then the Authority will follow the
termination for convenience process as set forth in COMAR
21.07.01.12, which regulation is attached hereto.
Schedule 5 to Service Agreement
Form of Performance Bonds
Performance Bond
Bond No. ESD7617301
Principal: Sanifill, Inc./Garnet of Maryland
Business Address of Principal: 2777 Allen Parkway, Suite #700,
Houston, TX 77019-2155
Surety: American Home Assurance Company
Obligee: Northeast Maryland Waste Disposal Authority
a corporation of the State of New York and authorized to do business
in the State of Maryland.
Northeast Maryland Waste Disposal Authority and Anne Arundel County,
Maryland and Howard County, Maryland
Penal Sum of Bond (express in words and figures): Six Million
Seventy Eight Thousand Six Hundred and no/100--------Dollars
($6,078,600.00)
Date of Contract: August 8, 1996
Date Bond Executed: August 6, 1996
Service Agreement to provide Waste acceptance, processing,
transportation and disposal.
Contract Number:-----------------------------------------------------
Know all men by these presents, That we, the Principal named
above and Surety named above, are held and firmly bound unto the
Obligee named above in the Penal Sum of this Performance Bond stated
above, for the payment of which Penal Sum we bind ourselves, our
heirs, executors, administrators, personal representatives,
successors, and assigns, jointly and severally, firmly by these
presents. However, where Surety is composed of corporations acting
as co-sureties, we, the co-sureties, bind ourselves, our successors
and assigns, in such Penal Sum jointly and severally as well as
severally only for the purpose of allowing a joint action or actions
against any or all of us, and for all other purposes each co-surety
binds itself, jointly and severally with the Principal, for the
payment of such sum as appears above its name below, but if no limit
of liability is indicated, the limit of such ability shall be the
full amount of the Penal Sum.
Whereas, Principal has entered into or will enter into a
contract with the Northeast Maryland Waste Disposal Authority (the
``Authority''), which contract is described and dated as shown
above, and incorporated herein by reference. The contract and all
items incorporated into the contract, together with any and all
changes, extensions of time, alterations, modifications, or
additions to the contract or to the work to be performed thereunder
or any of them, or to any other items incorporated into the contract
shall hereinafter be referred to as ``the Agreement.''
[[Page 51154]]
Now, therefore, during the term of said Agreement, this
Performance Bond shall remain in full force and effect unless and
until the following terms and conditions are met:
1. Principal shall well and truly perform the Contract; and
2. Principal and Surety shall comply with the terms and
conditions in this Performance Bond.
Whenever Principal shall be declared by the Authority to be in
default under the Agreement, the Surety may within fifteen (15) days
after notice of default from the Authority notify the Authority of
its election to either promptly proceed to remedy the default or
promptly proceed to complete the contract in accordance with and
subject to its terms and conditions. In the event the Surety does
not elect to exercise either of the above stated options, then the
Authority thereupon shall have the remaining contract work
completed, Surety to remain liable hereunder for all expenses of
completion up to but not exceeding the penal sum stated above.
The Surety hereby stipulates and agrees that no change,
extension of time, alteration or addition to the terms of the
Agreement or to the work to be performed thereunder or the
Specifications accompanying the same shall in any way affect its
obligations on this Performance Bond, and it does hereby waive
notice of any such change, extension of time, alteration or addition
to the terms of the Agreement or to the work or to the
Specifications.
This Performance Bond shall be governed by and construed in
accordance with the laws of the State of Maryland and any reference
herein to Principal or Surety in the singular shall include all
entities in the plural who or which are signatories under the
Principal or Surety heading below.
In witness whereof, Principal and Surety have set their hands
and seals to this Performance Bond. If any individual is a signatory
under the Principal heading below, then each such individual has
signed below on his or her own behalf, has set forth below the name
of the firm, if any, in whose name he or she is doing business, and
has set forth below his or her title as a sole proprietor. If any
partnership or joint venture is a signatory under the Principal
heading below, then all members of each such partnership or joint
venture have signed below, each member has set forth below his or
her title as a general partner, limited partner, or member of joint
venture, whichever is applicable. If any corporation is a signatory
under the Principal or Surety heading below, then each such
corporation has caused the following: the corporation's name to be
set forth below, a duly authorized representative of the corporation
to affix below the corporation's seal and to attach hereto a
notarized corporate resolution or power of attorney authorizing such
action, and each such duly authorized representative to sign below
and to set forth below his or her title as a representative of the
corporation. If any individual acts as a witness to any signature
below, then each such individual has signed below and has set forth
below his or her title as a witness. All of the above has been done
as of the Date of Bond shown above.
In Presence of:
----------------------------------------------------------------------
Witness
Individual Principal
----------------------------------------------------------------------
In Presence of: Witness
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Partnership Principal
----------------------------------------------------------------------
Name of Partnership
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Attest: [Signature Illegible]
----------------------------------------------------------------------
Corporate Secretary
Corporate Principal: Sanifill, Inc./Garnet of Maryland
----------------------------------------------------------------------
[Signature Illegible]
President/Controller
Affix Corporate Seal
Witness: [Signature Illegible]
----------------------------------------------------------------------
Signature
(Surety): American Home Assurance Company
----------------------------------------------------------------------
Karen M. Kellner
Title: Attorney-in-Fact
Affix Corporate Seal
Business Address of Surety: 70 Pine Street, New York, NY 10270.
Bonding Agent's name: Marsh & McLennan, Inc.
Agent's Address: 1000 Louisiana--#4000, Houston, TX 77002.
Approved as to legal form and sufficiency this ________ day of
________________ 1996.
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Assistant Attorney General
Endorsement ``A''
Provided, however, that the Obligee accepts the bond subject to
the following conditions and provisions:
1. The bond is for the term beginning August 12, 1996 and ending
August 12, 1997
2. The bond may be extended for additional term(s) of twelve
(12) months at the option of the surety, by continuation certificate
executed by the surety. At no time will the period of exposure under
the bonds exceed twelve (12) months. Notification of Non-Renewal
shall be given by Certified Mail to the Obligee no later than thirty
(30) days prior to the expiration date of the bonds. Failure of the
surety to issue a Continuation Certificate or otherwise extend the
term, shall not constitute a default under the Performance Bond.
3. In the event of default by the Principal in performance of
the contract during the term of the bond, the surety shall be liable
only for the loss to the Obligee due to actual excess costs of
performance of the contract up to the termination of the term of the
bonds. Maximum aggregate liability of the surety is limited to the
penal sum of the bond.
4. Any suit under the Performance Bond must be instituted before
the expiration of two (2) years from the last day of the term of the
Performance Bond and any continuation hereof. If this limitation is
made void by any law controlling the contract therof, such
limitation shall be deemed to be amended to equal the minimum period
of limitation permitted by such law.
5. The bond is to secure the Principal's obligation as it
relates to the Northeast Maryland Waste Authority/Sanifill, Inc.-
Garnet of Maryland Bond No. ESD7617301.
The Power of Attorney form from American Home Assurance Co. is
not being published in the Federal Register. A copy of the consent
decree with this page included can be obtained from the Antitrust
Division, Documents Group at 325 7th St., N.W., Rm 215, Washington,
D.C. 20530 or (202) 514-2481
United States District Court, Northern District of Ohio, Eastern
Division
United States of America; State of Ohio; State of Arizona; State
of California; State of Colorado; State of Florida; Commonwealth of
Kentucky; State of Maryland; State of Michigan; State of New York;
Commonwealth of Pennsylvania; State of Texas; State of Washington;
and State of Wisconsin, Plaintiffs, v. USA Waste Services, Inc.;
Dome Merger Subsidiary; and Waste Management, Inc., Defendants.
Civil Action No. 1:98 CV 1616; Judge Aldrich. Filed July 23, 1998.
Competitive Impact Statement
The United States, pursuant to Section 2(b) of the Antitrust
Procedures and Penalties Act (``APPA''), 15 U.S.C. Sec. 16(b)-(h),
files this Competitive Impact Statement relating to the proposed Final
Judgment submitted for entry in this civil antitrust proceeding.
I. Nature and Purpose of the Proceeding
On July 16, 1998, the United States, and the states of Ohio,
Arizona, California, Colorado, Florida, Maryland, Michigan, New York,
Texas, Washington and Wisconsin, and the commonwealths of Kentucky and
Pennsylvania (``the governments'') filed a civil antitrust complaint,
which alleges that the proposed acquisitions by USA Waste Services,
Inc. (``USA Waste'') of Waste Management, Inc. (``WMI'') would violate
Section 7 of the Clayton Act, 15 U.S.C. Sec. 18. The Complaint alleges
that in many markets across the country, USA Waste and WMI are the two
of the most significant competitors in commercial waste collection, or
disposal of municipal solid waste (``MSW'') (i.e., operation of
landfills, transfer stations and incinerators), or both services.
The Complaint alleges that a combination of USA Waste and WMI would
substantially lessen competition in commercial waste collection
services in twelve highly concentrated, relevant
[[Page 51155]]
geographic markets: Akron, Cleveland and Columbus, Ohio; Allentown and
Pittsburgh, Pennsylvania; Denver, Colorado; Detroit, Michigan;
Gainesville, Florida; Houston, Texas; Louisville, Kentucky; Portland,
Oregon; and Tucson, Arizona.
The Complaint alleges the merger also would substantially lessen
competition in disposal of municipal solid waste in seventeen highly
concentrated markets: Akron/Canton, Cleveland and Columbus, Ohio;
Baltimore, Maryland; Denver, Colorado; Detroit, Flint, and Northeastern
Michigan; Houston, Texas; Los Angeles, California; Louisville,
Kentucky; Miami, Florida; Milwaukee, Wisconsin; New York, New York;
Pittsburgh and Philadelphia, Pennsylvania; and Portland, Oregon.
According to the Complaint, the loss of competition would likely
result in consumers paying higher prices and receiving fewer or lesser
quality services for the collection and disposal of waste. The prayer
for relief in the Complaint seeks: (1) a judgment that the proposed
acquisition would violate Section 7 of the Clayton Cat; and (2) a
permanent injunction that would prevent USA Waste from acquiring
control of or otherwise combining its assets with WMI.
At the same time the suit was filed, the governments also filed a
proposed settlement that would permit USA Waste to complete its
acquisition of WMI, but require it to divest certain waste collection
and disposal assets in such a way as to preserve competition in the
affected markers. This settlement consists of a Hold Separate
Stipulation and Order, proposed Final Judgment, and a letter that
outlines defendants' views as to which commercial waste collection
routes should be divested and that sets forth the standard by which the
governments determined whether routes that serve a given geographic
area should be divested under the Judgment.\1\
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\1\ A copy of this correspondence appears in Appendix B.
Defendants are required to divest front end loader (FEL) commercial
waste collection routes that serve certain geographic areas
specified in the Judgment. Since some FEL routes may serve more than
one area, the governments agreed to apply a de minimis standard for
determining whether defendants' routes that serve a given area are
subject to divestiture under the Judgment. If a defendant's FEL
route obtained 10% or more of its commercial revenues form a
geographic area set forth in the Judgment, Secs. II(D)(1)-(12), in
the route's most recent year of operation, defendants must divest
the FEL route. Applying this rule in Detroit, for instance, would
require defendants to divest any WMI FEL commercial route from which
10 percent or more of its revenues derive from customers located in
either the City of Detroit or Wayne County, MI.
Defendants USA Waste and WMI have specifically identified and
listed the FEL commercial routes they believe must be divested under
the Judgment. The governments, however, have not verified
defendants' representations.
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The proposed Final Judgment orders USA Waste and WMI to divest
commercial waste collection routes in each of the relevant areas in
which the Complaint alleges the merger would substantially reduce
competition in commercial waste collection services. In addition, the
Judgment orders USA Waste and WMI to divest landfills, transfer
stations, or disposal rights in such facilities in each of the relevant
markets in which the merger would substantially reduce competition in
disposal of municipal solid waste. (A summary of the commercial waste
collection and waste disposal assets that defendants must divest
pursuant to the Judgment appears below in Appendix A.) USA Waste and
WMI must complete their divestitures of the waste collection and
disposal assets within 120 days, or five days after entry of the Final
Judgment, whichever is later.
The Hold Separate Stipulation and Order (``Hold Separate Order'')
and the proposed Final Judgment ensure that until the divestitures
mandated by the Judgment are accomplished, the currently operable waste
collection and disposal assets that are to be divested, whether owned
by USA Waste or WMI, will be maintained and operated as saleable,
economically viable, ongoing concerns, with competitively sensitive
business information and decision-making divorced from that of the
combined company. USA Waste and WMI will appoint a person or persons to
manage the operations to be divested and ensure the parties' compliance
with the requirements of the proposed Judgment and Hold Separate Order.
The parties have stipulated that the proposed Final Judgment may be
entered after compliance with the APPA. Entry of the proposed Judgment
would terminate this action, except that the Court would retain
jurisdiction to construe, modify or enforce the provisions of the
proposed Judgment and to punish violations thereof.
II. Description of the Events Giving Rise to the Violation Alleged
in the Complaint
A. The Defendants and the Proposed Transaction
USA Waste is the third largest waste collection and disposal firm
in the United States. Based in Houston, Texas, it provides waste
collection and disposal services throughout the country. In 1997, USA
Waste's total operating revenues exceeded $2.6 billion.
WMI, based in Oak Brook, Illinois, is the nation's largest waste
collection and disposal firm. it also provides waste collection and
disposal services throughout the country, often in direct competition
with USA Waste. In 1997, WMI had total operating revenues of over $9
billion.
In March 1998, USA Waste announced its agreement to acquire WMI in
a stock transaction worth nearly $14 billion. This transaction, which
would combine two of the nation's largest waste collection and disposal
firms and substantially increase concentration in a number of already
highly concentrated, difficult-to-enter markets, precipitated the
governments' suit.
B. The Competitive Effects of the Transaction
Waste collection firms, or ``haulers,'' contract to collect
municipal solid waste (``MSW'') from residential and commercial
customers; they transport the waste to private and public disposal
facilities (e.g., transfer stations, incinerators and landfills),
which, for a fee, process and legally dispose of waste. USA Waste and
WMI compete in operating waste collection routes and waste disposal
facilities.
1. The Effects of the Transaction on Competition in the Markets for
Commercial Waste Collection
Commercial waste collection is the collection of MSW from
commercial businesses such as office and apartment buildings and retail
establishments (e.g., stores and restaurants) for shipment to, and
disposal at, an approved disposal facility. Because of the type and
volume of waste generated by commercial accounts and the frequency of
service required, haulers organize commercial accounts into special
routes, and use specialized equipment to store, collect and transport
waste from these accounts to approved disposal sites. This equipment--
one to ten cubic yard containers for waste storage, and front-end
loader vehicles for collection and transportation--is uniquely well
suited to commercial waste collection service. Providers of other types
of waste collection services (e.g., residential and roll-off services)
are not good substitutes for commercial waste collection firms. In
their waste collection efforts, other firms use different waste storage
equipment (e.g., garbage cans or semi-stationary roll-off containers)
and different vehicles (e.g.,) rear- or side-load trucks), which for a
variety of reasons, cannot be conveniently or efficiently used to
store, collect or transport waste generated by
[[Page 51156]]
commercial accounts, and hence, are rarely used on commercial waste
collection routes. For purposes of antitrust analysis, commercial waste
collection constitutes a line of commerce, or relevant service, for
analyzing the effects of the merger.
The Complaint alleges, that provision of commercial waste
collection services takes place in compact, highly localized geographic
markets. it is expensive to ship waste long distances in either
collection or disposal operations. To minimize transportation costs and
maximize the scale, density, and efficiency of their waste collection
operations, commercial waste collection firms concentrate their
customers and collection routes in small areas, often limited to
metropolitan area. Firms with operations concentrated in distant area
cannot easily compete against firms whose routes and customers are
locally based. Sheet distance may significantly limit a distant firm's
ability to provide commercial waste collection service as frequently or
conveniently as that offered by local firms with nearby routes. Also,
local commercial waste collection firms have significant cost
advantages over other firms, and can profitably increase their charges
to local commercial customers without losing significant sales to firms
outside the area.
Applying that analysis, the Complaint alleges that twelve areas--
Akron, Cleveland and Columbus, Ohio; Allentown and Pittsburgh,
Pennsylvania; Denver, Colorado; Detroit, Michigan; Gainesville,
Florida; Houston, Texas; Louisville, Kentucky; Portland, Oregon; and
Tucson, Arizona--constitute sections of the country, or relevant
geographic markets, for the purpose of assessing the competitive
effects of a combination of USA Waste and WMI in the provision of
commercial waste collection services. In each of these markets, USA
Waste and MWI are two of the largest competitors, and the combined firm
would command from 50 to 90 percent or more of total market revenues.
These twelve commercial waste collection markets generate from $2
million to well over $45 million in annual revenues.
Significant new entry into these markets would be difficult, time
consuming, and is unlikely to occur soon. Many customers of commercial
waste collection firms have entered into ``evergreen'' contracts, tying
them to a market incumbent for indefinitely long periods of time. In
competing for uncommitted customers, market incumbents can price
discriminate, i.e., selectively (and temporarily) charge unbeatably low
prices to customers targeted by entrants, a tactic that would strongly
discourage a would-be competitor from competing for such accounts,
which, if won, may be very unprofitable to serve. The existence of long
term contracts and price discrimination substantially increases any
would-be new entrant's costs and time necessary for it to build its
customer base and obtain efficient scale and route density to become an
effective competitor in the market.
The Complaint alleges that a combination of USA Waste and WMI would
likely lead to an increase in prices charged to consumers of commercial
waste collection services. The acquisition would diminish competition
by enabling the few remaining competitors to engage more easily,
frequently, and effectively in coordinated pricing interaction that
harms consumers. This is especially troublesome in markets where entry
has not proved an effective deterrent to the exercise of market power.
2. The Effects of the Transaction on Competition in the Markets for
Disposal of Municipal Solid Waste
A number of federal, state and local safety, environmental, zoning
and permit laws and regulations dictate critical aspects of storage,
handling, transportation, processing and disposal of MSW. MSW can only
be sent for disposal to a transfer station, sanitary landfill, or
incinerator permitted to accept MSW. Anyone who attempts to dispose of
MSW in a facility that has not been approved for disposal of such waste
risks severe civil and criminal penalties. Firms that compete in the
disposal of MSW can profitably increase their charges to haulers for
disposal of MSW without losing significant sales to other firms. For
these reasons, there are no good substitutes for disposal of MSW.
Disposal of MSW tends to occur in highly localized markets.\2\
Disposal costs are a significant component of waste collection
services, often comprising 40 percent or more of overall operating
costs. It is expensive to transport waste significant distances for
disposal. Consequently, waste collection firms strongly prefer to send
waste to local disposal sites. Sending a vehicle to dump waste at a
remote landfill increases both the actual and opportunity costs of a
hauler's collection service. Natural and man-made obstacles (e.g.,
mountains and traffic congestion), sheer distance and relative
isolation from population centers (and collection operations) all
substantially limit the ability of a remote disposal site to compete
for MSW from closer, more accessible sites. Thus, waste collection
firms will pay a premium to dispose of waste at more convenient and
accessible sites. Operators of such disposal facilities can--and do--
price discriminate, i.e., charge higher prices to customers who have
fewer local options for waste disposal.
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\2\ Though disposal of municipal solid waste is primarily a
local activity, in some densely populated urban areas there are few,
if any, local landfills or incinerators available for final disposal
of waste. In these areas, transfer stations are the principal
disposal option. A transfer station collects, processes and
temprarily stores waste for later bulk shipment by truck, rail or
barge to a more distant disposal site, typically a sanitary
landfill, for final disposal. In such markets, local transfer
stations compete for municipal solid waste for processing and
temporary storage, and sanitary landfills may compete in a broader
regional market for permanent disposal of area waste.
The Complaint in this case alleges that in three relevant
areas--New York, NY; Baltimore, MD; and Philadelphia, PA--transfer
stations are the principal method for disposal of MSW. In other
markets (e.g., Miami, Louisville, Akron, Cleveland and Columbus),
distant landfills may compete with local disposal facilities
(incinerators or landfills) through the use of transfer stations.
Regional landfills also compete for permanent disposal of waste from
these areas. In some areas, however, the proposed Final Judgment
requires defendants to divest transfer stations because such
divestures may aid in the competitive viability of a companion
landfill, the divestiture of which, the governments believe, is
essential for effective relief.
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For these reasons, the Complaint alleges that, for purposes of
anitrust analysis, seventeen areas--Akron/Canton, Cleveland and
Columbus, OH; Baltimore, MD; Denver, CO; Detroit, Flint, and
Northeastern Michigan; Houston, TX; Los Angeles, CA; Louisville, KY;
Miami, FL; Milwaukee, WI; New York, NY; Pittsburgh and Philadelphia,
PA; and Portland, OR--are relevant geographic markets for disposal of
municipal solid waste. In each of these markets, USA Waste and WMI are
two of only a few significant competitors. Their combination would
command from over 50 to well over 90 percent of disposal capacity for
municipal solid waste, in markets that generate annual disposal
revenues of from $10 million to over $200 million annually.
Entry into the disposal of municipal solid waste is difficult.
Government permitting laws and regulations make obtaining a permit to
construct or expand a disposal site an expensive and time-consuming
task. Significant new entry into these markets is unlikely to occur in
any reasonable period of time, and is not likely to prevent exercise of
market power after the acquisition.
In each listed market, USA Waste's acquisition of WMI would remove
a significant competitor in disposal of
[[Page 51157]]
municipal solid waste. With the elimination of WMI, market incumbents
will no longer compete as aggressively since they will not have to
worry about losing busines to WMI. The resulting substantial increase
in concentration, loss of competition, and absence of reasonable
prospect of significant new entry or expansion by market incumbents
likely ensure that consumers will pay substantially higher prices for
disposal of MSW, collection of commercial waste, or both, following the
acquisition.
III. Explanation of the Proposed Final Judgment
The relief described in the proposed Final Judgment will eliminate
the anticompetitive effect of the acquisition in commercial waste
collection in and disposal of MSW from the relevant markets by
establishing new, independent and economically viable competitors in
each affected market. The proposed Final Judgment requires USA Waste
and WMI, within 120 days after the filing of the Complaint in this
matter, or five days after notice of the entry of this Final Judgment
by the Court, whichever is later, to sell certain commercial waste
collection assets (``Relevant Hauling Assets'') and disposal assets
(``Relevant Disposal Assets'') as viable, ongoing businesses to a
purchaser or purchasers acceptable to the United States, in its sole
discretion, after consultation with the relevant state. The collection
assets to be divested include front-end loader commercial waste
collection routes, trucks and customer lists. The disposal assets to be
divested include landfills, transfer stations, disposal rights in such
facilities, and certain other assets (e.g., leasehold and renewal
rights in the particular landfill or transfer station, garages and
offices, trucks and vehicles, scales, permits, and intangible assets
such as landfill or transfer station-related customer lists and
contracts).
If USA Waste and WMI cannot accomplish the divestitures within the
prescribed time, the Final Judgment provides that, upon application of
the United States, the Court will appoint a trustee to complete the
divestiture of each relevant disposal asset or relevant hauling asset
not sold. The proposed Final Judgment provides that the assets must be
divested in such a way as to satisfy the United States, in its sole
discretion, after consultation with the relevant state, that the assets
can and will be used by the purchaser as part of a viable, ongoing
business or businesses engaged in waste collection or disposal that can
compete effectively in the relevant area. Defendants must take all
reasonable steps necessary to accomplish the divestitures, and shall
cooperate with bona fide prospective purchasers and, if one is
appointed, with the trustee.
If a trustee is appointed, the proposed Final Judgment provides
that USA Waste and WMI will pay all costs and expenses of the trustee.
The trustee's commission will be structured so as to provide an
incentive for the trustee based on the price obtained and the speed
with which the divestitures are accomplished. After his or her
appointment becomes effective, the trustee will file monthly reports
with the parties and the Court, setting forth the trustee's efforts to
accomplish the divestitures. At the end of six months, if the
divestitures have not been accomplished, the trustee and the parties
will make recommendations to the Court which shall enter such orders as
appropriate in order to carry out the purpose of the trust, including
extending the trust or the term of the trustee's appointment.
IV. Remedies Available to Potential Private Litigants
Section 4 of the Clayton Act (15 U.S.C. Sec. 15) provides that any
person who has been injured as a result of conduct prohibited by the
antitrust laws may bring suit in federal court to recover three times
the damages the person has suffered, as well as costs and reasonable
attorney's fees. Entry of the proposed Final Judgment will neither
impair nor assist the bringing of any private antitrust damage action.
Under the provisions of Section 5(a) of the Clayton Act (15 U.S.C.
Sec. 16(a)), the proposed Final Judgment has no prima facie effect in
any subsequent private lawsuit that may be brought against defendant.
V. Procedures Available for Modification of the Proposed Final
Judgment
The United States and defendants have stipulated that the proposed
Final Judgment may be entered by the Court after compliance with the
provisions of the APPA, provided that the United States has not
withdrawn its consent. The APPA conditions entry of the decree upon the
Court's determination that the proposed Final Judgment is in the public
interest.
The APPA provides a period of at least 60 days preceding the
effective date of the proposed Final Judgment within which any person
may submit to the United States written comments regarding the proposed
Final Judgment. Any person who wishes to comment should do so within
sixty (60) days of the date of publication of this Competitive Impact
Statement in the Federal Register. The United States will evaluate and
respond to the comments. All comments will be given due consideration
by the Department of Justice, which remains free to withdraw its
consent to the proposed Judgment at any time prior to entry. The
comments and the response of the United States will be filed with the
Court and published in the Federal Register. Written comments should be
submitted to: J. Robert Kramer II, Chief, Litigation II Section,
Antitrust Division, United States Department of Justice, 1401 H Street,
NW, Suite 3000, Washington, DC 20530.
The proposed Final Judgment provides that the Court retains
jurisdiction over this action, and the parties may apply to the Court
for any order necessary or appropriate for the modification,
interpretation, or enforcement of the Judgment.
VI. Alternatives to the Proposed Final Judgment
The United States considered, as an alternative to the proposed
Final Judgment, a full trial on the merits against defendants USA Waste
and WMI. The United States could have brought suit and sought
preliminary and permanent injunctions against USA Waste's acquisition
of WMI. The United States is satisfied, however, that defendants'
divestiture of the assets described in the Judgment will establish,
preserve and ensure viable competitors in each of the relevant markets
identified by the governments. To this end, the United States is
convinced that the proposed relief, once implemented by the Court, will
prevent USA Waste's acquisition of WMI from having adverse competitive
effects.
VII. Standard of Review Under the APPA for Proposed Final Judgment
The APPA requires that proposed consent judgments in antitrust
cases brought by the United States be subject to a sixty-day comment
period, after which the court shall determine whether entry of the
proposed Final Judgment ``is in the public interest.'' In making that
determination, the court may consider--
(1) The competitive impact of such judgment, including termination
of alleged violations, provisions for enforcement and modification,
duration or relief sought, anticipated effects of alternative remedies
actually considered, and any other considerations bearing upon the
adequacy of such judgment;
[[Page 51158]]
(2) The impact of entry of such judgment upon the public generally
and individuals alleging specific injury from the violations set forth
in the complaint including consideration of the public benefit, if any,
to be derived from a determination of the issues at trial.
15 U.S.C. Sec. 16(e) (emphasis added). As the Court of Appeals for
the District of Columbia Circuit recently held, the APPA permits a
court to consider, among other things, the relationship between the
remedy secured and the specific allegations set forth in the
government's complaint, whether the decree is sufficiently clear,
whether enforcement mechanisms are sufficient, and whether the decree
may positively harm third parties. See United States v. Microsoft, 56
F.3d 1448 (D.C. Cir. 1995).
In conducting this inquiry, ``the Court is nowhere compelled to go
to trial or to engage in extended proceedings which might have the
effect of vitiating the benefits of prompt and less costly settlement
through the consent decree process.'' \3\ Rather.
\3\ 119 Cong. Rec. 24598 (1973). See, United States v. Gillette
Co., 406 F. Supp. 713, 715 (D. Mass. 1975). A ``public interest''
determination can be made properly on the basis of the Competitive
Impact Statement and Response to Comments filed pursuant to the
APPA. Although the APPA authorizes the use of additional procedures,
15 U.S.C. Sec. 16(f), those procedures are discretionary. A court
need not invoke any of them unless it believes that the comments
have raised significant issues and that further proceedings would
aid the court in resolving those issues. See, H.R. 93-1463, 93rd
Cong. 2d Sess. 8-9, reprinted in (1974) U.S. Code Cong. & Ad. News
6535, 6538.
---------------------------------------------------------------------------
absent a showing of corrupt failure of the government to discharge
its duty, the Court, in making its public interest finding, should *
* * carefully consider the explanations of the government in the
competitive impact statement and its responses to comments in order
to determine whether those explanations are reasonable under the
circumstances.
United States v. Mid-America Dairymen, Inc., 1977-1 Trade Cas.
para. 61,508, at 71,980 (W.D. Mo. 1977).
Accordingly, with respect to the adequacy of the relief secured by
the decree, a court may not ``engage in an unrestricted evaluation of
what relief would best serve the public.'' United States v. BNS, Inc.,
858 F.2d 456, 462 (9th Cir. 1988) quoting United States v. Bechtel
Corp., 648 F.2d 660, 666 (9th Cir.), cert. denied, 454 U.S. 1083
(1981); see also, Microsoft, 56 F.3d 1448 (D.C. Cir. 1995). Precedent
requires that
the balancing of competing social and political interests affected
by a proposed antitrust consent decree must be left, in the first
instance, to the discretion of the Attorney General. The court's
role in protecting the public interest is one of insuring that the
government has not breached its duty to the public in consenting to
the decree. The court is required to determine not whether a
particular decree is the one that will best serve society, but
whether the settlement is ``within the reaches of the public
interest.'' More elaborate requirements might undermine the
effectiveness of antitrust enforcement by consent decree.\4\
---------------------------------------------------------------------------
\4\ United States v. Bechtel, 648 F.2d at 666 (citations
omitted) (emphasis added); see United States v. BNS, Inc., 858 F.2d
at 463; United States v. National Broadcasting Co., 449 F. Supp.
1127, 1143 (C.D. Cal. 1978); United States v. Gillette Co., 406 F.
Supp. at 716. See also United States v. American Cyanamid Co., 719
F.2d at 565.
The proposed Final Judgment, therefore, should not be reviewed
under a standard of whether it is certain to eliminate every
anticompetitive effect of a particular practice or whether it mandates
certainty of free competition in the future. Court approval of a final
judgment requires a standard more flexible and less strict than the
standard required for a finding of liability. ``[A] proposed decree
must be approved even if it falls short of the remedy the court would
impose on its own, as long as it falls within the range of
acceptability or is `within the reaches of public interest.' (citations
omitted.'' \5\
---------------------------------------------------------------------------
\5\ United States v. American Tel. and Tel. Co., 552 F. Supp.
131, 150 (D.D.C. 1982), aff'd sub nom. Maryland v. United States,
460 U.S. 1001 (1983) quoting United States v. Gillette Co., supra,
406 F. Supp. at 716; United States v. Alcan Aluminum, Ltd., 605 F.
Supp. 619, 622 (W.D. Ky 1985).
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VIII. Determinative Documents
There are no determinative materials or documents within the
meaning of the APPA that were considered by the United States in
formulating the proposed Final Judgment.
Dated: July 22, 1998.
Respectfully submitted,
Anthony E. Harris,
Illinois Bar No. 1133713. U.S. Department of Justice, Antitrust
Division, Litigation II Section, 1401 H Street, NW, Suite 3000,
Washington, DC 20530, (202) 307-6583.
Appendix A--Summary of Waste Disposal and Collection Assets That Must
be Divested Under the Proposed Final Judgment
II. Waste Disposal Assets
The proposed Final Judgment (Secs. II(C)(1) and (2), IV and V)
requires USA Waste and WMI to divest certain ``relevant disposal
assets.'' In general, this means, with respect to each landfill or
transfer station, all tangible assets, including the garage and
related facilities; offices; landfill-related or transfer station-
related assets including capital equipment, trucks and other
vehicles, scales, permits, and supplies, and all intangible assets
of the landfill or transfer station, including landfill-related or
transfer station-related customer lists, contracts, and accounts, or
options to purchase any adjoining property. The list of disposal
facilities that must be divested includes properties and permits in
the following locations, under the listed terms and conditions:
A. Landfills and Airspace Disposal Rights
1. Akron/Canton, OH
WMI's Countrywide R&D Landfill, located at 3619 Gracemont
Street, SW, East Sparta, OH 44626 (known as the ``Countrywide
Landfill'');
2. Columbus, OH
USA Waste's Pine Grove Landfill, located at 5131 Drinkle Road,
SW, Amanda, OH 43102;
3. Denver, CO
USA Waste's Front Range Landfill, located at 1830 County Road 5,
Erie, CO 80516-8005; and at purchaser's option, a two-year waste
supply agreement that would require defendants to dispose of a
minimum of 150 tons/day of waste at the Front Range Landfill, at
disposal fees to be negotiated between purchaser and defendants;
4. Detroit, MI
USA Waste's Carleton Farms Landfill, located at 28800 Clark
Road, New Boston, MI, subject to two conditions, viz, USA Waste's
obligations to (1) dispose of ash from the Greater Detroit Resource
Recovery Center's incinerator at a separate monofill cell on this
site pursuant to an existing contract, and (2) dispose of waste from
the Greater Detroit Resource Recovery Center's bypass transfer
station at this landfill, until defendants transfer such obligation
to another landfill, which they shall use their best efforts to
accomplish expeditiously;
5. Flint, MI
USA Waste's Brent Run Landfill, located at Vienna Road, Montrose
Township, Genesee County, MI;
6. Houston, TX
(1) USA Waste's Brazoria County Landfill, located at 10310 FM-
523, Angleton, TX 77515; and
(2) Airspace disposal rights at WMI's Security Landfill, located
at 19248 Highway 105E, Cleveland, TX, or WMI's Atascocita Landfill,
located at 2020 Atascocita Road, Humble, TX, or both, pursuant to
which defendants will sell to one or more purchasers rights to
dispose of at least 3.0 million tons of waste, over a ten-year
period.
7. Los Angeles, CA
USA Waste's Chiquita Canyon Landfill, located at 29201 Henry
Mayo Drive, Valencia, CA 91355;
8. Louisville, KY
USA Waste's Valley View Landfill, located at 9120 Sulphur Road,
Sulphur, KY 40070;
9. Miami, FL
Airspace disposal rights at USA Waste's Okeechobee Landfill,
controlled by a subsidiary of USA Waste, and located at 10800 NE
128th Avenue, Okeechobee, FL 34972, pursuant to which defendants
will sell a total of 4.3 million tons of airspace, over a 20-year
time period, to one or more purchasers.
[[Page 51159]]
10. Milwaukee, WI
USA Waste's Kestrel Hawk Landfill, located at 1989 Oakes Road,
Racine, WI 53406; and WMI's Mallard Ridge Landfill, located at W.
8470 State Road 11, Delavan, WI 53115;
11. New York, NY/Philadelphia, PA
WMI's Modern Landfill & Recycling, located at 4400 Mt. Piscah
Road, York, PA 17402, and known as the ``Modern Landfill'';
12. Northeast Michigan
USA Waste's Whitefeather Landfill, located at 2401 Whitefeather
Road, Pinconning, MI; and Elk Run Sanitary Landfill, located at
20676 Five Mile Highway, Onaway, MI;
13. Pittsburgh, PA
WMI's Green Ridge Landfill, located at 717 East Huntington
Landfill Road, Scottsdale, PA 15683 (variously known as the ``Green
Ridge Landfill,'' the ``Y&S Landfill,'' or the ``Greenridge
Reclamation Landfill'');
14. Portland, OR
USA Waste's North WASCO Landfill, located at 2550 Steele Road,
The Dalles, OR 97058; and
B. Transfer Stations, Disposal Rights and Throughput Agreements
1. Akron/Canton, OH
Throughout disposal rights of a maximum of 400 tons/day of
waste, for a ten-year time period, at WMI's Akron Central Transfer
Station, located at 389 Fountain Street, Akron, OH, under the
following terms and conditions;
(a) The purchaser (or its designee) can deliver waste to the
Akron Central Transfer Station for processing and, at the
purchaser's option, load the processed waste into the purchaser's
(or its designee's) vehicles for disposal;
(b) For each purchaser of such disposal rights (or its
designee), defendants must commit to operate the listed Akron
Central Transfer Station's gate, scale house, and disposal area
under terms and conditions no less favorable than those provided to
defendants' own vehicles or to the vehicles of any municipality in
Ohio, except as to price and credit terms;
2. Baltimore, MD
Disposal rights of at least 600 tons of waste/day, pursuant to
which defendants will sell to one or more purchasers rights to
dispose, for a five-year time period, under the following terms and
conditions:
(a) The purchaser(s) or its designee(s) may dispose of waste at
any one or any combination of the following facilities, as specified
in its purchase agreement: Southwest Resource Recovery Facility
(known as ``Baltimore RESCO'' or ``BRESCO''), located at 1801
Annapolis Road, Baltimore, MD 21230; Baltimore County Resource
Recovery Facility, located at 10320 York Road, Cockeysville, MD;
Western Acceptance Facility, located at 3310 Transway Road,
Baltimore, MD; or Annapolis Junction Transfer Station, located at
8077 Brock Bridge Road, Jessup, MD 20794. If more than one person
purchases the disposal rights, the minimum daily disposal rates, and
the total of all purchasers' maximum disposal amounts at all
facilities specified shall be no less than 600 tons/day;
(b) For each purchaser of disposal rights (or its designee),
defendants must commit to operate the listed Baltimore, MD area
facilities' gates, scale houses, and disposal areas under terms and
conditions no less favorable than those provided to defendants' own
vehicles or to the vehicles of any municipality in Maryland, except
as to price and credit terms;
3. Cleveland, OH
At purchaser's option, either USA Waste's Newburgh Heights
Transfer Station, located at 3227 Harvard Road, Newburgh Heights, OH
44105 (known as the ``Harvard Road Transfer Station''); or all of
WMI's right, title and interest in the Strongsville Transfer
Station, located at 16099 Foltz Industrial Parkway, Strongsville,
OH; provided, however, that the City of Strongsville, owner of the
transfer station, approves such sale or assignment. Defendants will
exercise their best efforts to secure the assignments to the
purchaser of all their rights, title and their interests in the
Strongsville Transfer Station, and in the event the purchaser
selects Strongsville, defendants will not reacquire any right, title
or interest in the Strongsville transfer station. If the contract is
not assigned defendants will enter into a disposal rights agreement
with the purchaser (or purchasers), which will provide, in effect,
that the purchaser(s) will enjoy all disposal rights and privileges
now enjoyed by defendants at the Strongsville Transfer Station, and
that defendants will operate the facility's gate, scale house, and
disposal areas under terms and conditions no less favorable than
those provided to defendants' own vehicles or to the vehicles of any
municipality in Ohio, except as to price and credit terms;
4. Columbus, OH
WMI's Reynolds Road Transfer Station, located at 805 Reynolds
Avenue, Columbus, OH 43201;
5. Detroit, MI
WMI's Detroit Transfer Station, located at 12002 Mack Avenue,
Detroit, MI 48215;
6. Houston, TX
USA Waste's Hardy Road Transfer Station, located at 18784 East
Hardy, Houston, TX;
7. Louisville, KY
USA Waste's Popular Level Road Transfer Station, located at 4446
Poplar Level Road, Louisville, KY;
8. Miami, FL
All USA Waste's right, title, and interest in the Reuters
Transfer Station Rights, as conveyed to Chambers Waste Systems of
Florida, a subsidiary of USA Waste, pursuant to the Final Judgment
in United States v. Reuter Recycling of Florida, Inc., 1996-1 Trade
Cas. (CCH) para. 71,353 (D.D.C. 1996);
9. New York, NY
(a) WMI's SPM Transfer Station, located at 912 east 132nd
Street, Bronx, NY 10452, and all rights and interests, legal or
otherwise, that WMI now enjoys, has had or made use of out of the
SPM Transfer Station, to deliver waste by truck to rail siding at
the Oak Point Rail Yard in the Bonx, NY, and at the Harlem River
Yards facility, located at St. Ann's and Lincoln Avenues at 132nd
Street, Bronx, NY 10454;
(b) All rights, title, and interest in USA Waste's pending
application to construct and operate a waste transfer station
located at 2 North 5th Street, Brooklyn, NY 11211 (known as the
``Nekboh Transfer Station''); and
(c) USA Waste's All City Transfer, located at 246-252 Plymouth
Street, Brooklyn, NY 11202; and
(d) WMI's Brooklyn Transfer Station, located at 485 Scott
Avenue, Brooklyn, NY 12222, but only in the vent that USA Waste's
Nekboh Transfer Station has not been licensed or permitted to accept
waste within one year from the date of entry of the Final Judgment;
and
10. Philadelphia, PA
USA Waste's Girard Point Transfer Station, located at 3600 South
26th Street, Philadelphia, PA 19145; and USA Waste's Quick Way Inc.
Municipal Waste Transfer Station, located at SE Corner, Bath and
Orthodox Streets, Philadelphia, PA 19137, subject to the conditions
that (1) the existing City of Philadelphia waste contract is
transferred to a WMI transfer station, which defendants must use
their best efforts to accomplish, and (2) until such transfer is
effected, USA Waste will be granted throughput capacity at the
Quicky Way Transfer Station to handle this contract.
II. Commercial Waste Collection Assets
The Final Judgments also orders USA Waste and WMI to divest
certain commercial waste collection assets. Those assets primarily
include, capital equipment, trucks and other vehicles, containers,
interests, permits, used to service customers along the routes, in
the following locations:
A. Akron, OH
USA Waste's and American Waste Corporation's front-end loader
truck (``FEL'') commercial routes that serve Summit County, Ohio;
B. Allentown, PA
WMI's FEL commercial routes that serve the cities of Allentown
and Northampton and Lehigh County, PA;
C. Cleveland, OH
WMI's FEL commercial routes that serve the City of Cleveland,
portions of Cuyahoga, and very limited portions of Geauga and Lake
County, Ohio;
D. Columbus, OH
WMI's FEL commercial routes that serve Franklin County, Ohio;
E. Denver, CO
USA Waste's FEL commercial routes that serve the City of Denver,
and Denver and Arapahoe County, CO;
F. Detroit, MI
WMI's FEL commercial routes that serve the City of Detroit, and
Wayne and limited portions of Oakland and Macomb County, MI;
[[Page 51160]]
G. Houston, TX
WMI's FEL commercial routes that serve the City of Houston, the
Dickinson area, and Harris County, TX;
H. Louisville, KY
USA Waste's FEL commercial routes that serve the City of
Louisville and Jefferson County, KY;
I. Pittsburgh, PA
WMI's FEL commercial routes that serve Allegheny County and
Westmoreland County, PA, and the garage facility (real estate and
improvements) located at the Y&S Landfill;
J. Portland, OR
WMI's FEL commercial routes that serve the City of Portland, OR;
K. Tucson, AZ
USA Waste's FEL commercial routes that serve the City of Tucson
and Pima County, AZ; and
L. Gainesville, FL
WMI's FEL commercial routes that serve Alachua County, FL.
Appendix B
Correspondence Between with Counsel for USA Waste Services, Inc.
and Dome Merger Subsidiary and Counsel for the United States, dated
July 14, 1998.
July 14, 1998.
By Facsimile
Anthony E. Harris, Esq.,
Antitrust Division, U.S. Department of Justice, 1401 H Street, N.W.,
Washington, DC 20530
Re: USA Waste Services, Inc. acq. of Waste Management, Inc.
Dear Tony: The purpose of this letter is to set USA Waste
Services, Inc's (``USA Waste'') and Waste Management, Inc.'s
(``Waste Management'') understanding of the front-end loader routes
that are to be divested by pursuant to Section I D of the
Stipulation and Hold Separate Order and Section II D of the Proposed
Final Judgment that are to be filed with the Court in this matter
(collectively ``the Consent Decree''). USA Waste's and Waste
Management's agreement to enter into the Consent Decree is based on
this understanding.
I have listed below, for each area described in the Consent
Decree, all of the front-end loader routes operated by the company
whose routes will be divested that generated at least ten percent
(10%) of their revenues in the area in the most recent year of
operation. The only exception is Waste Management of Pittsburgh
route 226, which we agreed will not be divested. It is the
defendants' understanding that these routes are all those that need
to be divested pursuant to the terms of the Final Judgment.
Akron/Canton, OH
Akron Hauling routes 70, 90-92, 94, 96 and 97.
Allentown, PA
Waste Management of Allentown routes A60-62, A64 and A65.
Cleveland, OH
Waste Management of Ohio--Cleveland routes F01, F04-F10, 17 and
18.
Columbus, OH
Waste Management of Ohio--Columbus routes 001-019.
Denver, CO
USA Waste of Colorado routes 1301-1308, 6320-6322, 6326-6328,
7317-7320, 1398, 1399 and 6399.
Detroit, MI
Waste Management North Detroit routes 901-915.
Waste Management--Metro Detroit routes 003, 005, 006, 010, 015
and 017.
Efficient Sanitation in Clinton Twp. route 003 serving Macomb.
Houston, TX
Waste Management of Houston routes 702-724.
Waste Management of Southeast Texas--Dickinson routes 2-4.
Louisville, KY
USA Waste Services of Kentucky routes 514, 515, 526-528, 574 and
576.
Pittsburgh, PA
Waste Management of Pittsburgh routes 227-231.
Waste Management of Laurel Valley routes 200 and 202-205, as
well as the garage at the Y&S Landfill.
Portland, OR
Waste Management of Oregon routes 201, 203, 204, 206 and 207.
Tucson, AZ
USA Waste of Arizona, Inc. Tucson District routes 301-305 and
391.
Gainesville, FL
Alachua Waste Management routes G-20 and G-12.
The United States and each of the Relevant States, as defined in
the Final Judgment and Hold Separate Order, have agreed only that
all front-end loader routes of the designated company that generated
(10%) or more of the revenues in the most recent year of operation
in an area described in the Consent Decree (with the exception of
Pittsburgh route 226 referenced above) are to be divested pursuant
to its terms. The United States and each of the Relevant States have
not, at this stage, verified USA Waste's and Waste Management's
representations as to which individual routes must be divested under
the Consent Decree.
Sincerely yours,
James R. Weiss,
Counsel for USA Waste Services, Inc.
Neal R. Stoll,
Counsel for Waste Management, Inc.
Acknowledged for United States of America:
Anthony E. Harris
United States District Court, Northern District of Ohio, Eastern
Division
United States of America; State of Ohio; State of Arizona; State
of California; State of Colorado; State of Florida; Commonwealth of
Kentucky; State of Maryland; State of Michigan; State of New York;
Commonwealth of Pennsylvania; State of Texas; State of Washington;
and State of Wisconsin, Plaintiffs, v. USA Waste Services, Inc.;
Dome Merger Subsidiary; and Waste Management, Inc., Defendants.
Civil Action No. 1:98 CV 1616; Judge Aldrich.
Certificate of Service
I, Anthony E. Harris, hereby certify that on July 16, 1998, I
caused copies of the foregoing Competitive Impact Statement to be
served on plaintiffs--the states of Ohio, Arizona, California,
Colorado, Florida, Maryland, Michigan, New York, Texas, Washington and
Wisconsin, and the commonwealths of Kentucky and Pennsylvania--and
defendants USA Waste Services, Inc., Dome Merger Subsidiary, and Waste
Management, Inc., by mailing a copy of the pleading first-class,
postage paid, to a duly authorized legal representative of those
parties as follows:
James R. Weiss, Esquire,
Preston Gates Ellis & Rouvelas Meeds LLP, 1735 New York Avenue, NW,
Washington, DC 20006-8425.
Counsel for Defendants USA Waste Services, Inc. and Dome Merger
Subsidiary:
Neal R. Stoll, Esquire,
Skadden, Arps, Slate, Meagher & Flom, 919 Third Avenue, New York, NY
10022-3897.
Counsel for Defendant Waste Management, Inc.:
Doreen C. Johnson,
Assistant Attorney General, Chief, Antitrust Section, Ohio Bar No.
0024725.
Mitchell L. Gentile,
Senior Attorney, Ohio Bar No. 0022274.
Ohio Attorney General's Office, 30 East Broad Street, 16th
Floor, Columbus, OH 43215.
[[Page 51161]]
Counsel for Plaintiff State of Ohio:
Nancy M. Bonnell,
Assistant Attorney General, Antitrust Unit, Civil Division, 1275 West
Washington, Phoenix, AZ 85007.
Counsel for Plaintiff State of Arizona:
Barbara Motz,
Acting Assistant Attorney General.
Natalie S. Manzo,
Deputy Attorney General, Office of the Attorney General, 300 South
Spring Street, Room 5212, Los Angeles, CA 90013.
Counsel for Plaintiff State of California:
Jan Michael Zavislan,
First Asstant Attorney General.
Maria E. Berkenkotter,
Assistant Attorney General, State Services Building, 1525 Sherman
Street, 5th Floor, Denver, CO 80203.
Counsel for Plaintiff State of Colorado:
Lizabeth A. Leeds,
Douglas L. Kilby,
Assistant Attorneys General, Antitrust Section, PL-01, The Capitol,
Tallahassee, FL 32399-1050.
Counsel for Plaintiff State of Florida:
David R. Vandeventer,
Assistant Attorney General, Consumer Protection, 1024 Capital Center
Drive, Frankfort, KY 40601-8204.
Counsel for Plaintiff Commonwealth of Kentucky:
Ellen S. Cooper,
Assistant Attorney General, Chief, Antitrust Division.
John R. Tennis,
Assistant Attorney General, Office of the Attorney General, 200 St.
Paul Place, Suite 17, Baltimore, MD 21202-2021.
Counsel for Plaintiff State of Maryland:
Paul F. Novak,
Assistant Attorney General, Consumer Protection Division, Franchise/
Antitrust Section, P.O. Box 30213, Lansing, MI 48909.
Counsel for Plaintiff State of Michigan:
Richard E. Grimm,
Kay Taylor,
Assistant Attorneys General, Antitrust Bureau, Office of the Attorney
General, State of New York, 120 Broadway, Suite 26-01, New York, NY
10271.
Counsel for Plaintiff State of New York:
James A. Donahue, III,
Chief Deputy Attorney General.
Garrett F. Gallia,
Terry A. Lupia,
Deputy Attorneys General, 14th Floor, Strawberry Squire, Harrisburg, PA
17120.
Counsel for Plaintiff Commonwealth of Pennsylvania:
Mark Tobey,
Kim Van Winkle,
Assistant Attorneys General, P.O. Box 12548, Austin, TX 78711-2548.
Counsel for Plaintiff State of Texas:
Marta Lowy,
Assistant Attorney General, Office of the Attorney General, 900 4th
Avenue, Suite 2000, Seattle, WA 98164-1012.
Counsel for Plaintiff State of Washington:
Edwin J. Hughes,
Assistant Attorney General, Wisconsin Department of Justice, P.O. Box
7857, Madison, WI 53707-7857.
Counsel for Plaintiff State of Wisconsin:
Anthony E. Harris, Esquire,
Illinois Bar No. 1133713. U.S. Department of Justice, Antitrust
Division, 1401 H Street, NW, Suite 3000, Washington, DC 20530, (202)
307-0924.
[FR Doc. 98-24974 Filed 9-23-98; 8:45 am]
BILLING CODE 4410-11-M