DOCUMENT 2 ELECTRONICALLY FILED 12/22/2017 2:47 PM 02-CV-2017-903318.00 CIRCUIT COURT OF MOBILE COUNTY, ALABAMA JOJO SCHWARZAUER, CLERK IN THE CIRCUIT COURT OF MOBILE COUNTY, ALABAMA The Solid Waste Disposal Authority of the City of Mobile, Alabama, a public Corporation, * * * Plaintiff, * CV:____________________ V. * The City of Mobile, Alabama, an Municipal Corporation, Defendant * * COMPLAINT Comes now the Plaintiff, The Solid Waste Disposal Authority of the City of Mobile, Alabama, a public corporation, (hereinafter referred to as “SWDA”) and files this Complaint against the Defendant, City of Mobile, Alabama (hereinafter referred to as “the City of Mobile”): Parties 1. The SWDA is an Alabama public corporation organized pursuant to Alabama Code § 11-89A-1 et. seq., and is the owner of the Chastang landfill located in Mobile County, Alabama. 2. The City of Mobile is a municipal corporation organized under the laws of the State of Alabama. 3. Jurisdiction and venue are proper in the Circuit Court of Mobile County, Alabama. 1 DOCUMENT 2 Facts 4. On January 26, 1993, the City of Mobile, through its Council and Mayor Michael C. Dow, adopted Resolution 65-002 authorizing the conveyance of the Chastang landfill to the SWDA. The Ordinance also transferred and assigned to the SWDA the City’s “solid waste stream, which includes all solid waste currently generated in the City, and disposed of at the City’s landfill sites, and all future solid waste of a similar nature.” 5. On February 29, 1994, the City of Mobile, through its Council and Mayor Dow adopted Resolution 21-175 which authorized the City to enter into a contract with the SWDA for the disposal of solid waste at the Chastang landfill. 6. Based upon Resolution 21-175, the City of Mobile entered into a contract with the SWDA on March 29, 1994. A copy of the Contract is attached hereto as Exhibit A and made a part hereof. Pursuant to the contract the City of Mobile designated the Chastang landfill as the sole deposit point of all non-infectious and non-hazardous municipal solid waste collected by the City. The City of Mobile further agreed to pay the SWDA a tipping fee of $20.50 per ton for all solid waste deposited at the landfill and $7.50 per ton for all solid waste that was delivered to the Hickory Street Transfer station. 7. Construction and Demolition waste, sometimes referred to as C&D waste or yard waste, is considered non-infectious and non-hazardous solid waste. 8. On October 6, 1993, the SWDA entered into a contract with Transamerican Waste Services, Inc. (Transamerican) wherein Transamerican agreed to operate the Chastang landfill for the life of the landfill. As part of the contract, Transamerican agreed 2 DOCUMENT 2 to pay the SWDA a 5% royalty of the gross revenues generated from the deposit of all waste at the Chastang landfill. WM Mobile Bay Environmental Center, Inc. (WM Mobile Bay) is the successor in interest to Transamerican, and currently operates the Chastang landfill pursuant to the contract. 9. The City of Mobile has, at times, delivered the C&D (yard) waste to Dirt, Inc. On July 13, 2016, the SWDA unanimously passed a resolution authorizing the Chairman to demand that the City of Mobile deliver the C&D waste to the Chastang landfill. The Chairman of the SWDA subsequently delivered a letter to the City of Mobile informing the City, and specifically, the Public Works Director of the SWDA’s action and its demand to deposit all C&D waste at the Chanstnag landfill. 10. The City of Mobile has failed to deliver the C&D waste in the proper manner as requested by the SWDA, and has continued to divert the C&D waste to the landfill owned by Dirt, Inc. 11. On August 18, 2017, the City of Mobile and WM Mobile Bay entered into a “Settlement Agreement and Release” effective August 1, 2017. A copy of this Agreement is attached hereto as Exhibit B and made a part hereof. At the time that this Agreement was executed, there was no pending litigation between the City and WM Mobile Bay, nor did WM Mobile Bay have any judgments against the City. 12. The SWDA was not a party to the Settlement Agreement and was not aware of its existence until October 5, 2017. 13. The Settlement Agreement was not approved by the Mobile City Council. 14. Pursuant to the terms of the Settlement Agreement, the City of Mobile agreed to pay, and has paid, WM Mobile Bay $2.40 per cubic yard for C&D waste that it diverts 3 DOCUMENT 2 to Dirt, Inc. after July 31, 2017. The City of Mobile had no obligation to pay WM Mobile Bay any sums for the disposal of C&D waste prior to entering into the Settlement Agreement. In addition to the diversion payment, the City of Mobile agreed to pay WM Mobile Bay a lump sum of $200,000.00 for C&D waste diverted to Dirt, Inc. for the period beginning October 1, 2016 through July 31, 2017; and $126,000.00 for “capital expenditures to the gas management system at the Chastang Landfill.” 15. Prior to entering into the Settlement Agreement, the City of Mobile was not obligated to pay the sums that it agreed to pay to WM Mobile Bay. Further, the SWDA, based upon the advice of its waste consultant, had denied WM Mobile Bay’s request for payment of the gas management improvements based upon WM Mobile Bay’s inability to establish that the costs were reimbursable under the 1993 contract. Count One Declaratory Relief 16. The SWDA adopts and alleges herein the allegations contained in paragraphs 1 through 15, inclusive, of this Complaint. 17. Section 11-43B-18 of the Alabama Code (1975) provides: No contract involving the payment of money out of the budget of more than one fiscal year shall be made for a period of more than five years, nor shall any such contract be valid unless made and approved by the council and signed in the name of the municipality by the mayor. 18. The initial term of the Settlement Agreement is 3 years with automatic renewals for successive 3 year terms. The successive 3 year terms are not limited in the Settlement Agreement. 4 DOCUMENT 2 19. The City of Mobile’s Settlement Agreement with WM Mobile Bay encompasses a period over 5 years and was not approved by the City Council. The Settlement Agreement is invalid based upon the fact that its terms violate the provisions of Section 11-43B-18 of the Alabama Code (1975). Wherefore, the premises considered, the SWDA prays that this Court will enter a Judgment declaring that the Settlement Agreement between the City of Mobile and WM Mobile Bay is null and void based the fact that it violates Alabama law, including Section 11-43B-18 of the Alabama Code (1975). Count Two Specific Performance 20. The SWDA adopts and alleges herein the allegations contained in paragraphs 1 through 20, inclusive, of this Complaint. 21. The contract between the SWDA and the City of Mobile reflected in Exhibit A to this Complaint requires the City to direct the deposit of all municipal solid waste to the Chastang landfill at the tipping rates agreed upon. 22. The City has refused to pay the SWDA the tipping rates, and payed various Waste Management entities sums due the SWDA. 23. The SWDA has repeatedly requested the City to deposit the waste and pay the sums in accordance with the contract between the Parties. 27. The City must comply with the terms of its Agreement with the SWDA in order for the SWDA to function in accordance with the purposes for which it was created. Wherefore, the premises considered, the SWDA requests this Court to issue an order directing the City of Mobile to perform its obligations under its March 29, 1994 5 DOCUMENT 2 Agreement with the SWDA, including specifically and order the City of Mobile as follows: A. That the City of Mobile deposit all municipal non-infectious and non-hazardous solid waste to the Chastang landfill; and B. That the City of Mobile pay directly to the SWDA all tipping fees, transfer fees and other costs associated with the deposit of all municipal non-infectious and nonhazardous solid waste to the Chastang landfill; and C. That the City of Mobile immediately cease and desist from diverting municipal non-infectious and non-hazardous solid waste, including C&D waste, from the Chastang landfill; and D. For such other and further relief as the Court deems just. Respectfully Submitted, Attorney for The Solid Waste Disposal Authority for the City of Mobile, Alabama: /s/ Charles L. Miller, Jr. Charles L. Miller, Jr. (Mil036) Charles L. Miller, Jr. PC P.O. Box 2232 Mobile, Alabama 36652-2232 (251) 463-5421 Email: chuck@clmillerlaw.com Plaintiff requests service upon the Defendant personally as follows: Lisa C. Lambert, Clerk City of Mobile Government Plaza, 9th Floor 205 Government Street Mobile, Alabama 36602 6