National Solid Waste v Dallas Settlement

AGREED MOTION FOR ENTRY OF AGREED FINAL JUDGMENT — PAGE 1

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NATIONAL SOLID WASTES §

CIVIL ACTION NO.

3:11-cv-03200-O

MANAGEMENT ASSOCIATION, BLUEBONNET WASTE CONTROL, INC., IESI TX CORPORATION, REPUBLIC WASTE SERVICES OF TEXAS, LTD, ALLIED WASTE SYSTEMS, INC., CAMELOT LANDFILL TX, LP, WASTE MANAGEMENT OF TEXAS, INC., WM RECYCLE AMERICA, LLC, AND BUSINESSES AGAINST FLOW CONTROL,

§ § § § § § § § § §

Plaintiffs, § § v. § § THE CITY OF DALLAS, MIKE RAWLINGS, PAULINE MEDRANO, TENNELL ATKINS, DWAINE CARAWAY, MONICA ALONZO, CAROLYN DAVIS, JERRY ALLEN, LINDA KOOP, AND ANGELA HUNT,

§ § § § § § §

Defendants. §

AGREED MOTION FOR ENTRY OF AGREED FINAL JUDGMENT

In accordance with the parties' agreement, the parties respectfully file this agreed motion

for entry of agreed final judgment. In support, the parties respectfully show the Court as follows:

1. On October 16, 2012, the Court entered a memorandum opinion and final

judgment, granting Plaintiffs' request for a permanent injunction. See Dkt. Nos. 77 & 78.

2. Since that time, as the Court knows, the parties have been engaged in ongoing

settlement discussions. After several face-to-face settlement meetings, several other

conferences, exchanging several drafts of terms sheets, exchanging several drafts of a proposed

agreed final judgment, and after otherwise negotiating the terms of a settlement, the parties have

reached a comprehensive and binding agreement that (i) does not disturb the Court's previous

Case 3:11-cv-03200-O Document 107 Filed 05/03/13 of 5 PageID 2081


decision, see Dkt. Nos. 77-78; (ii) waives any appeals from this action; (iii) resolves all matters

in controversy between the parties; and (iv) moots several post-judgment motions that have been

pending before the Court, see Dkt. Nos. 82, 87, 88, 93.

3. The parties agree to the relief sought by way of this motion.

4. Consistent with the parties' agreement, the parties are jointly submitting to the

Court a proposed agreed final judgment. Attached for the Court's convenience is the parties'

proposed agreed final judgment that is consistent with the parties' agreement.

5. Thus, the parties jointly and respectfully request that the Court grant this agreed

motion for entry of agreed final judgment and enter the attached proposed agreed final judgment.



Respectfully submitted,

DALLAS CITY ATTORNEY'S OFFICE THOMAS P. PERKINS, JR. Dallas City Attorney /s/ Peter B. Haskel (by permission) Peter B. Haskel Texas Bar No. 09198900 Executive Assistant City Attorney James B. McGuire Texas Bar No. 24055939 Assistant City Attorney Dallas City Attorney's Office 1500 Marilla Street, Room 7BN Dallas, Texas 75201 (214) 670-3519 / fax (214) 670-0622 [email protected] [email protected] ATTORNEYS FOR DEFENDANTS,

THOMPSON & KNIGHT LLP

By: /s/James B. Harris

James B. Harris State Bar No. 09065400 Stephen F. Fink State Bar No. 07013500 1722 Routh Street, Suite 1500 Dallas, Texas 75201 (214) 969-1700 TELEPHONE NO. (214) 969-1751 FAX NO. Email: [email protected] ATTORNEYS FOR NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, BLUEBONNET WASTE CONTROL, INC., IESI TX CORPORATION, and BUSINESSES AGAINST FLOW CONTROL



BAKER BOTTS L.L.P.

By: /s/Aaron M. Streett (by permission) Aaron M. Streett State Bar No. 24037561 910 Louisiana Street Houston, Texas 77002 (713) 229-1855 TELEPHONE NO. (713) 229-7855 FAX NO. Ryan Bangert State Bar No. 24045446 2001 Ross Avenue Dallas, Texas 75201 (214) 953-6915 TELEPHONE NO. (214) 661-4915 FAX NO. ATTORNEYS FOR WASTE MANAGEMENT OF TEXAS, INC., and WM RECYCLE AMERICA, LLC JACKSON WALKER L.L.P.

By: Patrick R. Cowlishaw (by permission) Charles L. "Chip" Babcock Texas State Bar No. 01479500 Patrick R. Cowlishaw Texas State Bar No. 04932700 901 Main Street, Suite 6000 Dallas, Texas 75202 (214) 953-6000 TELEPHONE NO. (214) 953-5822 FAX NO. Email: pcowlishaw @jw.com ATTORNEYS FOR REPUBLIC WASTE SERVICES OF TEXAS, LTD., ALLIED WASTE SYSTEMS, INC., and CAMELOT LANDFILL TX, LP.



CERTIFICATE OF SERVICE

I hereby certify that on May 3, 2013, an electronic copy of the foregoing document was

filed with the Clerk of Court for the U.S. District Court for the Northern District of Texas, using the Court's CM/ECF system. I further certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the CM/ECF system.

/s/James B. Harris James B. Harris


518713 000002 6433559.10

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

NATIONAL SOLID WASTES §

CIVIL ACTION NO.

3:11-cv-03200-O

MANAGEMENT ASSOCIATION, BLUEBONNET WASTE CONTROL, INC., IESI TX CORPORATION, REPUBLIC WASTE SERVICES OF TEXAS, LTD., ALLIED WASTE SYSTEMS, INC., CAMELOT LANDFILL TX, LP, WASTE MANAGEMENT OF TEXAS, INC., WM RECYCLE AMERICA, LLC, AND BUSINESSES AGAINST FLOW CONTROL,

§ § § § § § § § § §

Plaintiffs, § § v. § § THE CITY OF DALLAS, MIKE RAWLINGS, PAULINE MEDRANO, TENNELL ATKINS, DWAINE CARAWAY, MONICA ALONZO, CAROLYN DAVIS, JERRY ALLEN, LINDA KOOP, AND ANGELA HUNT,

§ § § § § §

Defendants. §

AGREED FINAL JUDGMENT

On November 18, 2011, the Plaintiffs filed a complaint for declaratory and

injunctive relief to prohibit enforcement of City of Dallas Ordinance No. 28427, which

had been adopted on September 28, 2011 (the “Flow Control Ordinance”), and requires

that all solid waste generated, found, or collected inside the City of Dallas (the “City”)

be disposed of at the City’s McCommas Bluff Landfill or other facilities authorized by

the City.

By Order dated January 31, 2012, this Court entered a preliminary injunction.

Case 3:11-cv-03200-O Document 107-1 Filed 05/03/13 Page 1 of 14 PageID 2086

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By Order dated October 16, 2012, this Court entered a permanent injunction

enjoining the City from enforcing the Flow Control Ordinance against the Franchisees

in this lawsuit and other franchisees who entered into franchise agreements with the

City prior to the date of the Order on the grounds that the Ordinance violated the

Contract Clause of the United States Constitution and the Due Course of Law clause of

the Texas Constitution.

The Court also found that the City’s adoption of the Ordinance violated the

City’s Charter, although that claim against the City and the individual Defendants in

the Litigation under the City Charter was mooted by the Court’s grant of injunctive

relief on other grounds.

The Court rejected Plaintiffs’ claim that the Flow Control Ordinance is void for

vagueness under either the federal Due Process Clause or the Texas Due Course of Law

Clause, and also rejected Plaintiffs’ claim that the Flow Control Ordinance is preempted

by state law. The Court has been advised that in order to resolve Plaintiffs’ claims for

attorney’s fees and court costs and the City’s motion for new trial, and all other post-

judgment motions, and in order to avoid any appeals, the parties have resolved their

differences in good faith and request that the Court enter this Agreed Final Judgment;

Therefore, with the consent of the Plaintiffs and the Defendants, and the Court

having fully considered the matter, the Final Judgment entered October 16, 2012 is

withdrawn and it is hereby ADJUDGED as follows:

1. In accordance with the Court’s Memorandum Opinion and Order of

October 16, 2012, (the “Order”), which is fully incorporated by reference herein,


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Defendants are hereby permanently enjoined from enforcing the Flow Control

Ordinance against the Franchisees that are Plaintiffs in this lawsuit and other

franchisees who accepted franchise ordinances with the City prior to October 16, 2012.

2. The City will not take any action that limits the right in accordance with

and under the franchise ordinances, as construed under the Court’s October 16, 2012,

Memorandum Opinion and Order, of Republic Waste Services of Texas, Ltd., Allied

Waste Systems, Inc., Waste Management of Texas, Inc., IESI Texas Corporation (d/b/a

“IESI”) n/k/a Progressive Waste Solutions of TX, Inc., Bluebonnet Waste Control, Inc.,

and the following members of Businesses Against Flow Control, Champion Waste

Services, LLC, and Dallas Waste Disposal and Recycling, Inc., (the “Plaintiff

Franchisees”), to own, operate, and maintain a Solid Waste Collection Service (as

defined in Chapter 18 of the Dallas City Code as of the date of the Order), which

includes the right to transport, process, and dispose of Dallas Solid Waste generated,

found, or collected inside the City at any state-permitted or state-registered facility (that

is, an authorized solid waste disposal, collection, or processing facility) inside or outside

of the City selected at the sole discretion of each Plaintiff Franchisee, including, but not

limited to, the enactment of any flow control law during the remaining term of each

Plaintiff Franchisee’s franchise ordinance. The franchise ordinances of the Plaintiff

Franchisees are specifically identified in Exhibit A to this Agreed Final Judgment. For

purposes of this Agreed Final Judgment, the term “Dallas Solid Waste” means any Wet

or Dry Solid Waste (as defined in Chapter 18 of the Dallas City Code as of the date of

the Order) and recyclable materials, as referenced in section 6(a)(4)(iv) of the franchise


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ordinances.

3. The City reserves the right to take the position (and the City and Plaintiff

Franchisees further reserve the right to make any claims or assert any defenses in

relation to the City’s position, should the City choose to exercise one) that any franchise

ordinance granting a franchise to own, operate, and maintain a Solid Waste Collection

Service (as defined in Chapter 18 of the Dallas City Code as of the date of the

Order)within the City that is adopted and accepted on or after October 17, 2012, is

subject to the Flow Control Ordinance.

4. The City will not terminate or revoke, or seek to terminate or revoke, the

franchise ordinances of any Plaintiff Franchisee, or take any other action or seek any

other remedy provided for under section 10 of the franchise ordinances or otherwise,

including but not limited to requiring or demanding any curative acts or seeking to

impose any civil penalties, against the Plaintiff Franchisees based on any act or

omission that occurred or is occurring up to and including the date of this Agreed Final

Judgment (“Waived Violations”), except that the City reserves the right to recover

underpayments or non-payments of tipping fees for the use of the McCommas Bluff

Landfill and City transfer stations, and for the two calendar years prior to the date of

commencement of a City audit of underpayment or non-payment of the four percent

franchise fee established in the franchise ordinances of each of the Plaintiff Franchisees.

5. In connection with audits and performance evaluations currently being

conducted by the City of the Plaintiff Franchisees’ compliance with their franchise

ordinances, the City shall provide a reasonable period of time (not less than the period


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provided in the current franchise ordinances) to correct any undisputed violation of

those franchise ordinances identified in such audits or performance evaluations that

occurs after the date of this Agreed Final Judgment. As to any alleged and disputed

violation of a franchise ordinance, from the time that the parties agree that, or it is

judicially determined in a final non-appealable judgment, the alleged violation

identified in an audit or performance evaluation is a violation of such franchise

ordinance the Plaintiff Franchisee shall have a reasonable period of time (not less than

the period provided in the current franchise ordinances) to correct any such violation of

a franchise ordinance. But Plaintiff Franchisees shall have no obligation to correct

Waived Violations. Where a Plaintiff Franchisee has underpaid or not paid tipping fees

or franchise fees, such underpayment or non-payment shall be recovered in accordance

with the terms of the franchise ordinance.

6. The City will provide at least 30 days prior written notice of any proposed

change in the City’s interpretation or administration of the franchise ordinances of the

Plaintiff Franchisees that materially impacts the Plaintiff Franchisees’ Solid Waste

Collection Services or existing franchise ordinances. The City will provide the Plaintiff

Franchisees a reasonable time to comply with any change in its interpretation or

administration of the franchise ordinance that is lawful and not contrary to this Agreed

Final Judgment.

7. The City will continue to interpret and administer all material terms of the

franchise ordinances accepted prior to the date of the Order, which includes Plaintiff

Franchisees’ franchise ordinances, to provide Solid Waste Collection Services (as


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defined in Chapter 18 of the Dallas City Code as of the date of the Order) in the City

consistently among all such franchisees, including the Plaintiff Franchisees, except to

the extent that this Agreed Final Judgment requires otherwise.

8. With respect to any potential change to the City’s solid waste related

ordinances that will impact the Plaintiff Franchisees and requires City Council

approval, the City will provide the Plaintiff Franchisees at least 60 days prior written

notice prior to the time such matter is presented to the City Council for a vote and

reasonable advance notice prior to the time such matter is presented to the City Council

for a briefing.

9. The City will provide, as necessary, Plaintiff Franchisees with notice and

an opportunity for a hearing consistent with its obligations under the City’s Charter, the

City Code, and their respective franchise ordinances.

10. The City acknowledges that each of the Plaintiff Franchisees, regardless of

any misnomer or typographical error that may exist in the franchises themselves or

deficiencies in compliance with or violations of the non-monetary requirements of the

franchise ordinances, has a valid written, executed, accepted, and approved franchise

ordinance with the City that has a stated term through at least March 27, 2027.

11. The Plaintiff Franchisees, individually or through the National Solid

Wastes Management Association, may participate in good faith discussions with the

City concerning solid waste management and resource recovery, including, without

limitation, potential technologies or processes related to the reuse or recovery of solid

waste and recyclables generated within the City, and actions that may be taken


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voluntarily by private or public parties to increase recovery of waste generated within

the City.

12. Each party is responsible for its own court costs and attorney’s fees in

connection with all litigation in the above captioned matter prior to the date of this

Agreed Final Judgment.

13. The parties waive any right to appeal this Agreed Final Judgment or

challenge its provisions.

14. The City’s motion for new trial, the Plaintiffs’ requests for attorney’s fees

and court costs, and the Motion to Correct References to Plaintiff Allied Waste Systems,

Inc. in the October 16, 2012 Memorandum Opinion and Order are hereby withdrawn.

15. This Agreed Final Judgment has been negotiated in good faith and is in

the public interest because it effectuates and ensures compliance with this Court’s order

of October 16, 2012, and the Constitutions of Texas and the United States.

16. This Agreed Final Judgment disposes of all parties and all claims, and,

accordingly, is a FINAL JUDGMENT. All relief not specifically granted herein is

DENIED in accordance with the Court’s October 16, 2012, Memorandum Opinion and

Order.

17. This Court shall retain jurisdiction over this case for so long as the

franchise ordinances of any Plaintiff Franchisee remains in effect for the purpose of

resolving disputes arising under or enforcing compliance with this Agreed Final

Judgment. With respect to any claim brought under this paragraph, the prevailing party

shall be entitled to recover reasonable and necessary attorney’s fees.


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Signed on this ____ day of __________________, 2013.

Reed O’Connor United States District Judge


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FOR NATIONAL SOLID WASTES MANAGEMENT ASSOCIATION, BLUEBONNET WASTE CONTROL, INC., and BUSINESSES AGAINST FLOW CONTROL /s/ James B. Harris James B. Harris Thompson & Knight LLP 1722 Routh Street, Suite 1500 Dallas, Texas 75201 (214) 969-1700 TELEPHONE NO. (214) 969-1751 FAX NO.


10 518713 000002 6433559.10

FOR IESI TX CORPORATION n/k/a PROGRESSIVE WASTE SOLUTIONS OF TX, INC. /s/ Bryan D. Pollard Bryan D. Pollard Wilson Elser Moskowitz Edelman & Dicker LLP 901 Main Street, Suite 4800 Dallas, Texas 75202 (214) 698-8000 TELEPHONE NO. (214) 698-1101 FAX NO.


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FOR WASTE MANAGEMENT OF TEXAS, INC., and WM RECYCLE AMERICA, LLC /s/ Aaron M. Streett Aaron M. Streett Baker Botts L.L.P. 910 Louisiana Street Houston, Texas 77002 (713) 229-1855 TELEPHONE NO. (713) 229-7855 FAX NO.


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FOR REPUBLIC WASTE SERVICES OF TEXAS, LTD., ALLIED WASTE SYSTEMS, INC., and CAMELOT LANDFILL TX, LP /s/ Patrick R. Cowlishaw Patrick R. Cowlishaw Jackson Walker L.L.P. 901 Main Street, Suite 6000 Dallas, Texas 75202 (214) 953-6000 TELEPHONE NO. (214) 953-5822 FAX NO.


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FOR DEFENDANTS /s/ Peter B. Haskel Thomas P. Perkins, Jr. Dallas City Attorney Peter B. Haskel Executive Assistant City Attorney Dallas City Attorney's Office 1500 Marilla Street, Room 7BN Dallas, Texas 75201 (214) 670-3519 TELEPHONE NO. (214) 670-0622 FAX NO.


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EXHIBIT A

Bluebonnet Waste Control, Inc. d/b/a Blue Bonnet Waste, Inc. – Ordinance No. 26619 Champion Waste Services, LLC – Ordinance No. 26623 Dallas Waste Disposal & Recycling, Inc. – Ordinance No. 26823 IESI TX Corporation (d/b/a “IESI”) n/k/a Progressive Waste Solutions of TX, Inc. – Ordinance No. 26645 Waste Management of Texas, Inc. – Ordinance No. 26688 Republic Waste Services of Texas, Ltd. – Ordinance No. 26664 Allied Waste Systems, Inc. – Ordinance No. 26614


National Solid Waste v Dallas Settlement

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