HomeMy WebLinkAboutSolid Wastes Systems, Inc., Amended and Restated- 12-12-11 Being saved for documentation reasonsAMENDED AND RESTATED TRANSFER STATION AGREEMENT
TABLE OF CONTENTS
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Amended and Restated Transfer Station Agreement
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1.
Operating Rights
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2.
Definitions
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3.
Term
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4.
Operations
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4.1 Receipt, Transfer and Disposal of Solid Waste
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4.2 Buy-Back Recycling
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4.3 Drop-Off Recycling
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4.4 Household Hazardous Waste Recycling
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4.5 Green Waste and Wood Waste
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4.6 Food Waste
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4.7 Reuse Facility
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4.8 Unacceptable Waste Prohibited
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4.9 Refusal of Waste
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4.10 Title to Waste
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4.11 Hours of Operation
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4.12 Additional Services
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4.13 Permits and Licenses
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4.14 Applicable Law
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5.
Landfill Fee
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6.
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8.
9.
10.
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12.
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Gate Rate and Other Service Fees
6.1 Establishment
6.2 Modification Based on Consumer Price Index, Fuel Index and
Certain Pass-Through Costs
6.3 Modification Based on Changes in Pass-Through Costs
6.4 Five Year Review
6.5 Modification Based on Extraordinary Items
6.6 Billing
Provisions Applicable to Equipment and Personnel
7.1 Equipment
7.2 Facility Maintenance
7.3 Transport of Materials
7.4 Staffing
7.5 Subcontractors
Records and Reports
Hold Harmless and Insurance
Remedies Upon Default
Assignment
City's Options to Purchase Site, Improvements and Equipment
12.1 City's Options to Purchase Site and Improvements
12.2 Prior Termination
Purchase or Lease of Site and Purchase of Improvements
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13.1 Purchase of Site
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13.2 Lease of Site
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13.3 Purchase of Improvements
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14. Waiver
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15. Administration
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16. Independent Contractor
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17. Notices
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18. Amendments
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19. Successors and Assigns
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20. Integration; Severability
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Exhibit A - Agreement for the Receipt of Green and Wood Waste
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Exhibit B - Strategic Waste Management Plan
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Exhibit C - Legal Description of Transfer Station Site
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Exhibit D - Rate Schedule
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Exhibit E - Transfer Station Rate Calculation
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Exhibit F - Transfer Station Lease
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Exhibit G - Current Geographic Area Served By Transfer Station
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AMENDED AND RESTATED TRANSFER STATION AGREEMENT
This Amended and Restated Transfer Station Agreement (the "Agreement") is made as of
December, 2011 ("Effective Date") by and between the City of Ukiah, a municipal corporation
(hereinafter "City"), Solid Wastes Systems, Inc., a California corporation (hereinafter "Contractor"), and
Yulupa Investments, LLC, a California limited liability company ("Owner"), with reference to the
following:
WHEREAS, Owner currently owns and Contractor currently operates the Ukiah Valley Transfer
Station located in Mendocino County pursuant to that certain Agreement dated November 20, 2001, as
amended April 17, 2002 and the Consent to Sale [Transfer Station Contract], dated October 2007,
collectively, the "Prior Agreement"; and
WHEREAS, Ukiah Waste Solutions, Inc. ("UWS"), a California corporation and an affiliate of
Contractor, collects all Solid Waste generated in City pursuant to that certain Waste Collection
Agreement with City of even date herewith (the "Collection Agreement"); and
WHEREAS, Contractor has proposed a capital-intensive, long-term Strategic Waste Management
Plan (the "Strategic Plan"), including, but not limited to, Contractor financed capital projects, for City and
the other customers Contractor and its affiliates serve that is designed to increase diversion of Solid Waste
from landfills, reduce greenhouse gasses, convert waste into energy, and create new jobs; and
WHEREAS, undertaking the Strategic Plan will require a long-term commitment of Contractor's
staff, time and capital; and
WHEREAS, the parties wish to continue to assure the health, safety and public welfare of City's
residents and businesses by providing efficient services for recycling and the disposal of all Solid Waste
generated in the City resulting in increased diversion pursuant to the terms of a long-term agreement that
amends and restates the Prior Agreement;
NOW, THEREFORE, in and for the mutual covenants herein and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, the parties agree as follows:
1. Opefatin Right
1.1 Contractor shall have the exclusive right to operate, and shall operate, the Transfer
Station (as defined in Section 2 below) in accordance with the terms of this Agreement and all applicable
federal, state and local statutes, regulations, ordinances and other laws and enforceable policies. Subject
to any limits imposed by applicable law, all Solid Waste generated in City shall be delivered to the
Transfer Station and Contractor shall be entitled to accept at the Transfer Station Solid Waste generated
anywhere within Mendocino County. Contractor shall also have the right to accept at the Transfer Station
Solid Waste generated outside of Mendocino County with City's prior written consent (which consent
shall not be unreasonably withheld and may be granted by City's City Manager), provided that Contractor
shall identify and keep records satisfactory to both California Department of Resources Recycling and
Recover ("CalRecyle") and City, including the quantity and the jurisdiction of origin of such Solid Waste.
Receipt and disposal of such solid waste shall be subject to all of the applicable provisions of this
Agreement, including Contractor's obligation to indemnify and hold City harmless in any action related
to the acceptance of out of County Solid Waste, and the payment, if levied, of Surcharges. During the
term of this Agreement, City shall not own, operate or authorize any facility that would compete with the
Transfer Station or Contractor's operation thereof, nolr shall City issue any request for proposal for the
operation of the Transfer Station by any person other than Contractor except for any period after the
expiration or termination of this Agreement in accordance with its terms. Correspondingly, Owner,
Contractor and any Related Entity (as defined below) shall not accept at any facility owned or operated by
them Solid Waste originating from any source generated in the areas of Mendocino County described at
Exhibit G, which represents the Solid Waste, as of the November 1, 2011, that is received at the Transfer
Station, unless such Solid Waste has first passed through and paid Gate fees at the Transfer Station.
"Related Entity" means an entity in which Contractor or Owner, any of its shareholders, partners or
members, or their spouses, are owners, members, partners, or over which Owner, Contractor, their
shareholders, members or partners, or their spouses, otherwise exercise any ownership or control.
1.2 To the extent permitted by applicable law, City shall take such steps as may be
reasonably necessary to protect Contractor's rights under this Agreement; provided, however, that City's
obligation under this Section 1.2 is subject to Contractor's agreement, upon request of City, to reimburse
City's reasonable expenses, including attorneys' fees and litigation expenses, incurred in taking steps as
agreed upon herein; and, provided, further, that nothing herein shall prevent Contractor from taking any
lawful action to protect its rights hereunder.
1.3 Except as expressly provided herein, this Agreement shall supersede the Prior Agreement
as of the Effective Date set forth in Section 3 below, when the Prior Agreement shall cease to have any
effect (except for periods prior to such Effective Date).
Definitions.
2.1 "Acceptable Waste" means all Solid Waste, except Recyclables, Food Waste, Green
Waste, Wood Waste, Hazardous Waste, Household Hazardous Waste and Unacceptable Waste.
2.2 "CCC" means Cold Creek Compost, Inc.
2.3 "Change in Law" means the enactment, adoption, promulgation, issuance, modification,
or written adoption or change in administrative or judicial interpretation on or after the Effective Date of,
any law, regulation, rule, order, judgment, decree, permit, approval or other requirement of any
governmental agency (including City) having jurisdiction over this Agreement or Contractor's
performance hereunder.
2.4 "Construction Debris" means used or discarded construction materials generated during
the construction or renovation of a building, structure or other man-made improvement.
2.5 "Demolition Debris" means used construction materials generated during the razing or
renovation of a building, structure or other man-made improvement.
2.6 "Disposal" means the permanent placing of Solid Waste in a facility legally permitted to
receive it.
2.7 "Disposal Costs" means Contractor's costs to Dispose of Solid Waste at a Disposal
Facility, including all tipping fees and service fees paid by Contractor to any Disposal Facility for such
Disposal.
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2.8 "Disposal Facility" means any fully-permitted Subtitle D approved Solid Waste landfill,
approved by City pursuant to Section 4.1 below, to which Contractor transports Acceptable Waste for
Disposal (including, without limitation, any authorized transfer station for ultimate Disposal at such a
landfill).
2.9 "Food Waste" means food that is discarded (as from a Commercial or Residential
Property kitchen).
2.10 "Franchised Waste Hauler" means any person that possesses a franchise, permit, license or
contract from a public agency authorizing such person to collect and transport Solid Waste from
generators of such Solid Waste in or subject to such agency's jurisdiction.
2.11 "Green Waste" means tree trimmings, grass cuttings, plants, leaves, branches and trees
(not more than six (6) inches in diameter or more than four (4) feet in length) and similar materials.
2.12 "Hazardous Waste" means all substances defined as hazardous waste, acutely hazardous
waste or extremely hazardous waste by the State of California, or identified as hazardous waste by the
U.S. Environmental Protection Agency, under applicable laws or regulations.
2.13 "Household Hazardous Waste" means Hazardous Waste that is generated at Residential
Properties.
2.14 "Pass-Through Costs" means Disposal Costs, Processing Costs and Regulatory Costs, as
well as any increase above $10.00 per ton in the lease rate payable under the lease between City and
Contractor for the Transfer Station Site and the Improvements attached hereto as Exhibit F.
2.15 "Processing" means the act of salvaging, reprocessing, marketing and selling or reusing
Recyclables, Food Waste, Green Waste and Wood Waste for the purpose of Recycling, whether directly
or through one or more third parties, and shall include other means of diverting Solid Waste from landfills
pursuant to the Strategic Plan.
2.16 "Processing Costs" means fees, if any, paid by Contractor to a Processing Facility for
Processing Recyclables, Food Waste, Green Waste, Wood Waste and Solid Waste received at the
Transfer Station. The amount paid by Contractor to PRS for Green Waste or Wood Waste delivered to
the PRS Facility shall be as determined under that certain Agreement for the Receipt of Green and Wood
Waste among PRS, UWS and SWS of even date herewith and attached hereto as Exhibit A.
2.17 "Processing Facility" means, with respect to Recyclables, the PRS Facility and/or any
other authorized facility selected and approved pursuant to Section 4.1 below, and, with respect to Food
Waste, Green Waste and Wood Waste and subject to Section 4.5 below, the CCC facility (as defined in
Section 4.5 below), the PRS Facility, any licensed biomass conversion facility, and/or any other
authorized facility selected and approved pursuant to Section 4.1.2 and 4.5 below.
2.18 "PRS" means Pacific Recycling Solutions, Inc.
2.19 "PRS Facility" means the materials recovery and green waste facility operated by PRS,
currently located at 4260 North State Street, Ukiah, California and/or 3501 Taylor Drive, Ukiah,
California.
2.20 "Recyclables" means Solid Waste which may be Recycled, including, without limitation,
paper, newsprint, printed matter, pasteboard, paper containers, cardboard, glass, aluminum, PET, HDPE,
and other plastics, beverage containers, compostable materials (including Food Waste, Green Waste and
Wood Waste), electronic waste, wood, brick and stone in reusable size and condition, those items of
Construction Debris and Demolition Debris which are described in Sections 2.4 and 2.5, appliances and
automobile and light truck tires. Contractor shall report changes in Recyclables accepted at the Transfer
Station to the City Manager who must approve those changes.
2.21 "Recycle" means the process of reusing or processing Solid Waste into a form suitable
for reuse consistent with the requirements of the California Integrated Waste Management Act of 1989, as
amended ("AB 939").
2.22 "Regulatory Costs" means all regulatory and governmental fees and charges incurred by
Contractor in connection with providing services under this Agreement, including, without limitation,
Surcharges which may be adopted from time to time, such as but not limited to, the City Landfill Fee and
MSWMA fee, as shown on Exhibit E, payable to City, MSWMA or such other jurisdiction whose fee is
acceptable to and approved by the City, and remains in force, pursuant to Section 1.1 above.
2.23 "Segregated" means:
2.23.1 As to Recyclables other than Food Waste, Green Waste and Wood Waste,
Recyclables that have been separated from Solid Waste that is not Recyclables and from Food Waste,
Green Waste and Wood Waste prior to delivery to the Transfer Station, and that are saleable or acceptable
for Processing without further sorting. (For example, cardboard and glass that have been separated by a
Self-Hauler from wet garbage is Segregated.)
2.23.2 As to any of Food Waste, Green Waste or Wood Waste, each of those types of
waste that has been separated from Solid Waste that is not Recyclables and from each of Food Waste,
Green Waste and Wood Waste, as applicable, prior to delivery to the Transfer Station, and that in each
case are saleable or acceptable for Processing without further sorting. (For example, Food Waste that has
been separated from all Solid Waste by whatever means, and Recyclables, including Green Waste and
Wood Waste, is Segregated.)
2.24 "Self-Haulers" means persons delivering Acceptable Waste or Recyclables to the
Transfer Station who are not Franchised Waste Haulers.
2.25 "Solid Waste" means all putrescible and nonputrescible residential refuse, commercial
solid waste, institutional solid waste, garbage, Food Waste, Green Waste, Wood Waste and rubbish as
defined in Public Resources Code Section 40191, including, without limitation, for the purposes of this
Agreement Construction Debris, Demolition Debris and Recyclables, but excluding Hazardous Waste and
Household Hazardous Waste.
2.26 "Strategic Waste Management Plan" means the plan attached hereto as Exhibit B which
is incorporated herein by this reference or any revisions thereof approved by Contractor and City.
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2.27 "Surcharge" means any per ton, or other, fee imposed by City on MSW (as defined
below) received at the Transfer Station, such as, but not limited to, the Landfill Fee payable to City
pursuant to Section 5 below, and the MSWMA Fee payable to the Mendocino Solid Waste Management
Authority ("MSWMA") (currently $5.00 per ton), and that remains in force, pursuant to Section 1.1
above, or any similar fee of any other jurisdiction that is acceptable to and approved by City, including, in
each case, any fees or charges adopted to replace or supplement any such Surcharge or fee.
2.28 "Transfer Station" means the facility located on the Transfer Station Site.
2.29 "Transfer Station Site" means the real property commonly known as 3151 Taylor Drive,
Ukiah, California, Mendocino County Assessor's Parcel No. 14-140-13, and which is depicted and
described on Exhibit C attached hereto and hereby incorporated herein.
2.30 "Unacceptable Waste" means the types of Solid Waste that may not be received at the
Transfer Station unless authorized by the permits issued for the operation of the Transfer Station.
2.31 "Wood Waste" means unpainted and untreated lumber and boards separated from Solid
Waste, including other Recyclables.
3. Term. Subject to earlier termination in accordance with the terms of this Agreement, the term of
this Agreement shall commence on January 1, 2012 (the "Effective Date") and continue for a period of
fifteen (15) years through December 31, 2026, provided that Contractor shall have one (1) option to
extend this Agreement and the rights granted hereunder on the terms and conditions herein for a period of
five (5) years commencing January 1, 2027 and ending December 31, 2031. Notice of Contractor's
exercise of such option must be given at least six (6) months prior to December 31, 2026. The option to
extend hereunder may not be exercised unless Contractor is in material compliance with the terms of this
Agreement at the time of exercise and on December 31, 2026. It is the parties' intention that, subject to
prior termination hereunder or thereunder, the term of this Agreement be coextensive with the term of the
Collection Agreement.
4. Operations. Contractor shall provide the following operations at the Transfer Station:
4.1 Receipt, Transfer and Disposal of Solid Waste. Contractor shall accept, for the per ton or
per yard Rate for Municipal Solid Waste ("MSW"), set forth in Exhibit D attached hereto as adjusted
under Section 6 below, Acceptable Waste delivered to the Transfer Station by Franchised Waste Haulers
and Self-Haulers, and shall transfer or transport such Acceptable Waste to a Disposal Facility or a
Processing Facility, in accordance with the terms of this Agreement. The initial Disposal Facility shall be
the Eastlake landfill, the initial Recyclables Processing Facility shall be the PRS Facility, and the initial
Green and Wood Waste Processing Facility is described in Section 4.5 below. Any alternate or successor
Disposal or Processing Facility to the initial Facilities approved or described in this Agreement shall be
subject to City's approval as provided hereafter.
4.1.1 At least one year and three months before the expiration of the term of the
disposal contract between Contractor and the existing Disposal Facility, Contractor shall begin the
process of selecting a successor Disposal Facility (which may be the existing Disposal Facility), and at
least seven months before such expiration, Contractor shall give City written notice identifying the
proposed Disposal Facility, including its name and location, and the particulars of the disposal costs it
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recommends for the period of the new disposal agreement. Such notice shall include: (1) the anticipated
tipping fee and other charges for Disposal at that Facility (2) a comparison of the disposal costs of the
expiring disposal agreement to the new recommended disposal costs; (3) any impact the new
recommended disposal costs will have on the Gate Fee (4) a justification statement, if the recommended
disposal costs will increase by more than an annual CPI adjustment; (5) a list of Contractor explored
disposal options not recommended, and (6) why the Contractor believes the recommended Disposal
Option is best. Before giving such notice to City, Contractor has a duty under this Agreement to have
vigorously explored all Disposal options reasonably available. The notice shall be accompanied by a
copy of the proposed contract between Contractor and such Facility. Contractor shall also provide City
with any additional information about such Disposal Facility reasonably requested by City. Contractor's
use of the proposed Facility shall be subject to the City Council's approval, which shall not be
unreasonably withheld. In acting on a request for approval, the City shall consider, among other things,
whether the use of that Facility is reasonably consistent with the Strategic Plan and available at a
reasonable cost to the ratepayers considering the environmental benefits and the available alternatives;
provided, however, that if the City Council determines that another Disposal Facility reasonably available
to Contractor will provide the same service at a lower cost, Contractor shall use that Facility.
4.1.2 Contractor shall provide City with written notice as soon as Contractor knows
that it will use a Processing Facility instead of or in addition to PRS, the Scotia Facility (as defined
below) or CCC. The notice shall provide the name and location of the proposed Facility, the anticipated
gate fee and other charges for Processing at that Facility, and a copy of the proposed contract between
Contractor and such Facility. Contractor shall also provide City with any additional information about
such Processing Facility reasonably requested by City. Contractor's use of the proposed Processing
Facility shall be subject to the City Council's approval, which shall not be unreasonably withheld. In
acting on a request for approval, the City shall consider, among other things, whether the use of that
Facility is reasonably consistent with the Strategic Plan, available at a reasonable cost to the ratepayers
considering the environmental benefits and the available alternatives, and otherwise qualifies as an
Authorized Facility. The City Council may consider any other factor reasonably related to a legitimate
City interest in its management of waste collection and disposal, including, but not limited to, alternative
technologies and facilities, the impact on rates, past performance and regulatory history of the processing
facilities under consideration, factors affecting the facilities' future performance, and the public interest.
4.1.3 In the event that any Facility described above cannot accept Solid Waste,
Recyclables, Green Waste, or Food Waste Generated in City on a temporary basis due to no fault of
Contractor, or due to events beyond the control of Contractor, such as acts of God, public emergency,
strike or lockout by employees of another entity unrelated to Contractor, Contractor shall locate and use
an alternate Facility for the duration of such circumstance; provided, however, that City approval in
accordance with this Section 4.1 shall be required if the Facility cannot accept the applicable materials for
a period of time exceeding three (3) months.
4.2 Buy-Back Recycling. Contractor shall operate a certified Beverage Container Recycling
Center at the Transfer Station that will provide redemption buy-back from the public in accordance with
the rules of CalRecycle, and which is open to the public during regular business hours at least six days per
week.
4.3 Drop-Off Rec cling. Contractor shall accept at a designated area of the Transfer Station,
at no charge, Segregated Recyclables (other than Food Waste, Green Waste, Wood Waste and the types
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of Recyclables listed on Exhibit D as bearing a charge), from Self-Haulers, and shall transfer or transport
such Recyclables for Processing to a Processing Facility, in accordance with the terms of this Agreement.
Contractor shall accept at a designated area of the Transfer Station, at the designated Recycling Rate set
forth on Exhibit D as adjusted under Section 6 below, Segregated Recyclables of the types listed on
Exhibit D as bearing a charge, from Self-Haulers, and shall transfer or transport such Recyclables for
Processing to a Processing Facility, in accordance with the terms of this Agreement. Contractor shall be
entitled to retain all revenue it receives from the sale of such Recyclables. Any residue from the
Recyclables received at the Transfer Station that cannot be processed shall be disposed of at a Disposal
Facility. City may designate any entity, including MSWMA, to provide hazardous waste load-check and
refrigerant removal at no cost to Contractor or the general public.
4.4 Household Hazardous Waste Recycling. Contractor shall, at the applicable Rate set forth
on Exhibit D as adjusted under Section 6 below, accept from Self-Haulers who are residents of City, oil
filters, used motor oil (up to five gallons per customer), antifreeze and automobile and boat batteries, and
shall transfer or transport such items for Processing to a Processing Facility, in accordance with the terms
of this Agreement. Contractor shall be entitled to retain all revenue it receives from the sale of such
items. Any residue from such items that cannot be Processed shall be disposed in accordance with all
legal requirements at a City approved facility fully licensed to accept such materials.
4.5 Green Waste and Wood Waste. Contractor shall accept at a designated area of the
Transfer Station, at the applicable Green Waste Rates specified in Exhibit D as adjusted under Section 6
below, Segregated Green Waste and Segregated Wood Waste from Self-Haulers, and shall transfer or
transport all such Green Waste and Wood Waste to the Scotia biomass conversion facility (the "Scotia
Facility") or a Processing Facility for Processing, in accordance with the terms of this Agreement;
provided, however, that, notwithstanding any other provision in this Agreement, Contractor shall arrange
for delivery of an average of 400 tons per calendar month, subject to seasonal adjustments affecting the
amount of Green Waste available, of Green Waste (including Green Waste generated in City), un-ground
but presorted, to the CCC facility so long as (a) CCC is licensed to accept Green Waste from City, (b)
CCC is in full compliance with its license, (c) CCC is the only licensed composing facility in Mendocino
County that is licensed to accept and is capable of accepting the full range of inputs accepted by CCC as
of April 1, 2008, (d) CCC charges not more than $32.00 per ton for the first 200 tons of such Green
Waste in the aggregate delivered per calendar month (which may represent more than the actual Green
Waste collected curbside in City by UWS) and correspondingly CCC will accept at no charge for any tons
in excess of 200 delivered in such month (which represents Green Waste from sources other than City),
and (e) CCC continues to accept sheet rock from Contractor, UWS and PRS at no charge; and, provided,
further, that Contractor's obligation shall be deemed satisfied by Green Waste arranged to be delivered by
UWS to the CCC facility pursuant to Section 5.11(c) of the Collection Agreement. Any residue from the
Green Waste or Wood Waste received at the Transfer Station that cannot be Processed shall be disposed
of at a Disposal Facility.
4.6 Food Waste. Upon commencement of a food waste program under the Collection
Agreement, Contractor shall accept at a designated area of the Transfer Station, at the applicable Food
Waste Rates submitted to and approved by City, Segregated Food Waste, and shall transfer or transport
all such Food Waste to a Processing Facility for Processing, in accordance with the terms of this
Agreement.
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4.7 Reuse Facility. Contractor shall provide a reuse area at the Transfer Station where
Contractor shall make available for give-away or sale salvageable items such as doors, windows,
furniture, appliances, toys and tools brought to the Transfer Station by Self-Haulers. Contractor shall be
entitled to retain all revenues from the sale of such items.
4.8 Unacceptable Waste Prohibited. Contractor shall not knowingly accept Unacceptable
Waste at the Transfer Station, except for those recyclable Household Hazardous Wastes described in
Section 4.4 above. Contractor shall continuously inspect customer vehicles and the tipping floor for
Unacceptable Waste. Unacceptable Waste shall be refused and returned to the customer, unless the
Unacceptable Waste is already dumped on the tipping floor and the vehicle of origin is unknown.
Contractor shall accept title to any Unacceptable Waste received at the Transfer Station and not so
returned, and shall safely segregate, contain, store and dispose of it in accordance with applicable
law.
4.9 Refusal of Waste. When Contractor refuses Unacceptable Waste that is brought to the
Transfer Station by a customer, Contractor will inform the customer of the most convenient and
economical legal option available for disposal of that Waste. Written information on such disposal
options will be kept available at all times in the scale house, and a log shall be maintained to detail such
refusal of Waste acceptance.
4.10 Title to Waste. Contractor shall accept ownership and title to all Acceptable Waste,
Recyclables, Food Waste, Green Waste and Wood Waste at the time of unloading of such materials at the
Transfer Station.
4.11 Hours of Operation. Contractor will receive Acceptable Waste, Recyclables, Food
Waste, Green Waste and Wood Waste at the Transfer Station only between the hours 7 a.m. and 4 p.m.
Monday through Friday for Franchised Waste Haulers and from 7:30 a.m. to 4 p.m. Monday through
Saturday for Self-Haulers throughout the year, except for the following holidays: New Year's Day,
Memorial Day, July 4`h, Labor Day, Thanksgiving Day and Christmas Day; provided, however, that if
New Year's Day, July 4ch or Christmas Day falls on a Sunday, Contractor may with the consent of City's
City Manager's observe the holiday on the Saturday before the holiday; and, provided, further, that
Franchised Waste Haulers may deliver to the Transfer Station between 6 a.m. and 4 p.m. on the day after
any such holiday. Within this schedule, Contractor may specify different hours for Franchised Waste
Haulers and Self-Haulers. Any such changes shall be reported to the City no later than thirty (30) days
before the effective date of the change and shall be revised at the direction of the City Council. Such
hours are subject to change in accordance with changes to Contractor's permits for the Transfer Station.
4.12 Additional Services. Contractor shall provide additional services upon request of City or
upon the proposal of Contractor as approved by City subject, if the costs incurred by Contractor to
provide such services increase, to the establishment by mutual written agreement of a reasonable service
fee therefor.
4.13. Permits and Licenses. Contractor shall obtain and maintain throughout the term of this
Agreement all permits, licenses and approvals required for Contractor to perform the services described
herein, including, without limitation, an operating permit from the County of Mendocino. City shall
cooperate with Contractor in connection with such permits, licenses and approvals, and shall renew all
such permits, licenses and approvals issued by City, provided that Contractor is not in material breach of
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this Agreement and provided Contractor shall have fulfilled all requirements for the renewal of such
permits, licenses and approvals. Contractor shall provide City's City Manager or his or her designee with
copies of all permits or amendments or renewals thereof which are not issued by City.
4.14 Applicable Law. Contractor shall perform all its obligations under this Agreement in
accordance with all applicable laws, including, without limitation, the permits, licenses and approvals
described in Section 4.12 above, and shall be solely liable for all fines and penalties that may be imposed
on Contractor for violations thereof.
5. Landfill Fee and Other Surcharges. Within forty-five (45) days after the end of each calendar
month during the term of this Agreement, Contractor shall remit to City as a landfill fee a sum of money
equal to Two Dollars ($2.00) per ton (or the equivalent amount for a cubic yard), or such other amount
approved by City, of Acceptable Waste received by Contractor at the Transfer Station, and any other
Surcharge, approved by and acceptable to the City still in force shall be remitted to an entity, as directed
by the City, within ninety (90) days after the end of each calendar month. If these fees are not paid on or
before such due date, a late payment fee in an amount equal to eighty-three one-hundredths of a percent
(0.83%) of the amount owing per month will be charged for each thirty (30) day period, or portion
thereof, that the fee remains unpaid. Each monthly remittance to City shall be accompanied by a
statement detailing the Acceptable Waste received at the Transfer Station for the period covered.
6. Gate Rate and Other Service Fees.
6.1 Establishment. Exhibit D sets forth the gate rate and other service fees for services
provided by Contractor under this Agreement (collectively, the "Rates") effective as of the Effective
Date. Contractor shall not charge lower Rates to any Franchised Waste Hauler or Self Hauler serving or
from areas outside the City. Such Rates shall be subject to review and revision as set forth in Sections
6.2, 6.3, 6.4 and 6.5 below. Contractor shall not charge any amount in excess of the approved Rates for
services required by or permitted under this Agreement.
6.2 Modification Based on Consumer Price Index, Fuel Index and Certain Pass-ThroujZh
Costs.
(a) Per Ton MSW Rate. The per ton Municipal Solid Waste ("MSW") Rate shall be
adjusted January 1st every year, beginning January 1, 2013 ("Rate Adjustment Date") to reflect changes
in the CPI, the Fuel Index and certain Pass-Through Costs by an amount determined in accordance with
the Transfer Station Rate Calculation attached hereto as Exhibit E (the "Calculation").
(b) Definitions. For purposes of Rate adjustments pursuant to this Section 6.2 and
the Calculation, the following terms shall have the following meanings.
(i) "Base Fuel Cost" means Contractor's actual costs for diesel and other
fuels used in performing services under this Agreement for the year ended December 31, 2010 or
$152,533.47.
(ii) "Base Revenue" means Contractor's total revenue received from
Franchised Haulers and Self-Haulers during the Comparison Year, excluding revenue from the sale of scrap
metal, Recyclables purchased under the buy-back program, and compost.
(iii) "Base Year" means the year ended June 30`h one year prior to June 30th
of the Comparison Year.
(iv) "Comparison Year" means the year ended June 30`h immediately prior to
the relevant Rate Adjustment Date.
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(v) "Contractor Rate" means the per ton MSW Rate minus the per ton
Franchise Fees.
(vi) "CPI" means the Consumer Price Index, All Urban Consumers, U.S. City
Average, All Items (1982-1984=100), published by the United States Department of Labor, Bureau of
Labor Statistics.
(vii) "Disposal Fees - Garbage" means the actual Disposal Costs paid by
Contractor for Solid Waste delivered by Contractor to the Disposal Facility during the Comparison Year.
(viii) "Disposal Fees - Processing" means the actual Processing Costs paid by
Contractor to CCC, PRS or any other Authorized Facility for Recyclables, Green Waste and Food waste
delivered by Contractor to the CCC facility, the PRS Facility or such Authorized Facility, respectively, during
the Comparison Year.
(ix) "Fuel Costs" means Contractor's actual costs for diesel and other fuels
used in performing services under this Agreement during the Comparison Year.
(x) "Fuel Index" means the California No.2 Diesel Retail Sales by all Sellers
(Dollars Per Gallon) published by the U. S. Energy Information Administration.
(xi) "Operating Costs" means all of Contractor's costs to operate the Transfer
Station under this Agreement, including, without limitation, labor costs, vehicle and vehicle-related costs,
maintenance, insurance and transportation costs, but excluding Fuel Costs, Pass-Through Costs and the
costs of purchasing scrap metal, Recyclables purchased under the buy-back program, and compost
(including sales taxes).
(c) Rules. For purposes of Rate adjustments pursuant to this Section 6.2 and the
Calculation, the following rules shall apply.
(i) "CPI Change" shall be calculated as one hundred percent (100%) of the
percentage increase or decrease, if any, in the CPI during the Comparison Year, using the CPI published
for June of such Year as compared with the CPI published for June of the Base Year.
(ii) "Fuel Index Change" shall be calculated as one hundred percent (100%)
of the percentage increase or decrease, if any, in the Fuel Index from June of the Base Year through June
of the Comparison Year; provided, however, that, notwithstanding Section 6.2(b)(iii) above, "Base Year"
for purposes of the Fuel Index Change shall mean the year ended June 30, 2010; and, provided, further,
that the Fuel Index Change adjustment (i.e., Fuel Index Change multiplied by Base Fuel Cost) for any
Rate Adjustment Date shall be calculated after removal of such adjustment for the prior Rate Adjustment
Date.
(iii) The Adjustments for destination charges and Disposal Fees with respect
to the use of the Eastlake landfill that appear in the Calculation are not recurring.
(iv) Rate adjustments for changes in Franchise Fees that take effect on a date
other than January I", as well as changes in other Pass-Through Costs, will be determined under Section
6.3 below and not under this Section 6.2.
(v) If City elects to purchase the Transfer Station Site and the Improvements
on December 31, 2016 pursuant to Section 12 below, the cost entitled "Construction/Lease $2.36/ton" in
the Calculation will be increased annually commencing January 1, 2018 by one hundred percent (100%)
of the percentage increase or decrease, if any, in the CPI during the Comparison Year, using the CPI
published for June of such Year as compared with the CPI published for June of the Base Year.
(vii) As set forth in the Calculation, each adjustment in the per ton MSW Rate
pursuant to this Section 6.2 shall equal the percentage adjustment in the Contractor Rate plus the per ton
Franchise Fees.
(d) Per Yard MSW and Minimum MSW Rates. Each of the per yard MSW Rate,
minimum MSW Rate and per can MSW Rate shall be adjusted January 1st every year (beginning January
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1, 2013), as follows: the per yard MSW Rate shall equal 24.05% of the Contractor Rate, plus the per ton
Franchise Fees divided by 5.54; the minimum MSW Rate shall equal the per yard MSW Rate divided by
two (2); and the per can MSW Rate shall equal the minimum MSW Rate divided by three (3). All rates in
this Section 6.2(d) shall be rounded to the nearest five cents.
(e) All Other Rates. Each of the Rates set forth on Exhibit D other than the MSW
Rates shall be adjusted January 1st every year (beginning January 1, 2013) by an amount equal to the
percentage increase or decrease, if any, in the Contractor Rate (i.e., determined before adjusting for
Franchise Fees) . All rates in this Section 6.2(e) shall be rounded to the nearest five cents.
(f) Procedure. The procedure for Rate adjustments under this Section 6.2 shall be as
follows:
(i) Not later than August 15th of each year, Contractor shall file with the
City Manager a written notice of intention to adjust each of the then current Rates effective as of January
1 st of the next year in accordance with Section 6.2(a) through (e) above.
(ii) Within sixty (60) days of the filing of the notice of intention, the City
Manager shall review the notice and either confirm that the proposed Rates are within the limit of Section
6.2 above or establish by mutual agreement with Contractor any necessary changes to the proposed Rates
to make such confirmation.
(iii) Not later than October 20th, the City Manager shall inform the City
Council in writing of his or her determination regarding the proposed new Rates and the City Council
shall be entitled to review and confirm that the proposed Rates are within the limit of Section 6.2 above or
establish by mutual agreement with Contractor any necessary changes to the proposed Rates to make such
confirmation, not later than November 20th. Any Rates shall become effective on the following January
l st, provided that Contractor shall post notice of the revised Rates at the Transfer Station not later than
December 1St
(iv) In the event that the CPI or the Fuel Index described in Section 6.2 above
shall be discontinued or materially modified during the term of this Agreement, the parties shall together
select a replacement index and/or otherwise change Section 6.2 above so as to replicate, as nearly as
possible, the mutual intention of the parties to rely on the results of either index described in Section 6.2
as in effect on the date hereof.
6.3 Modification Based on Changes in Pass-Through Costs. In addition to adjustments under
Section 6.2 above, each Rate shall be adjusted to reflect changes in Pass-Through Costs that are not the
subject of Rate adjustments pursuant to Section 6.2 above, as follows. Using the section of the
Calculation entitled "Revenue Base," each Rate shall be increased by an amount equal to the increase in
applicable Pass-Through Costs, and decreased by an amount equal to the decrease in applicable Pass-
Through Costs, in each case so as to cause such Rate to compensate for such change in Pass-Through
Costs as of the date such change becomes effective and either payable by or a benefit to Contractor, and
taking into account the increase or decrease in Franchise Fees payable in respect of such change.
Changes in Pass-Through Costs resulting from a change in Disposal Facilities or Processing Facilities
shall cause an increase in Rates as provided herein only if Contractor has complied with Sections 4. 1.1
and 4.1.2 and City has approved the successor or alternate Facilities in accordance with such Sections.
6.4 Five Year Review. Once every five (5) years (beginning no later than April 2, 2016 for
purposes of adjusting the Rates effective January 1, 2017), City shall conduct a review for the purpose of
determining whether or not the automatic adjustments provided in Sections 6.2, 6.3 and 6.5 have
adequately adjusted the Rates to cover the actual increase or decrease in the Contractor's reasonable
operating costs or have exceeded those costs and whether the Rates remains fair to the ratepayer and the
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Contractor. Depending on the results of that review the City may approve an increase or decrease in the
Rates. City shall complete each such review and adjustment, if any, at least three months (3) prior to the
beginning of such year (by September 30, 2016 in the case of the first such review), and Contractor shall
cooperate with such review. In conducting each such review, City shall consider the following
information: financial records of Contractor (including operating expenses and revenues and Disposal,
Processing, Regulatory and other costs of Contractor, and Contractor revenues), the factors described in
Section 6.5 below, and rates charged for comparable services at similar facilities. Increases or decreases
in the Rates pursuant to this Section 6.4 shall be subject to the notice and public hearing requirements in
the Ukiah City Code, Division 4, Chapter 6, Article 1, commencing with Section 3950. The City may
conduct such investigation as it deems necessary to perform this review and Contractor shall cooperate
with such investigation, which may include the City's inspection and copying of Contractor records and
review and/or audit of Contractor's financial records by a City retained CPA, the costs of which shall be
reimbursed to City from Base Revenue but treated as a Pass-Through Cost for rate setting purposes.
6. 5 Modification Based on Extraordinary Items. In addition to adjustments under Sections
6.2, 6.3, and 6.4 above, Contractor may request an increase in the Rates if Contractor's costs increase or
its revenues decrease solely as the result of extraordinary circumstances beyond its control that could not
have been reasonably anticipated by Contractor (such as a Change in Law) and if the increase in costs or
decrease in revenues unavoidably adversely affects Contractor's opportunity to operate at a reasonable
profit. Contractor shall have the burden of producing evidence satisfactory to City demonstrating its need
for a rate increase prior to the regular Five Year Review pursuant to Section 6.4 above, including, but not
limited to, Reviewed or Audited financial statements of Contractor, if requested by City. The City
Council shall consider the request pursuant to the notice and public hearing procedures in Ukiah City
Code, Division 4, Chapter 6, Article 1, commencing with Section 3950.
6.6 Billing. Contractor shall charge and collect from all customers at the Transfer Station
upon receipt of materials, or bill such customers, for all services hereunder. Interest of one percent (1%)
per month or the highest rate permitted under applicable law, whichever is less, shall be applied to any
past due amounts until paid in full. Amounts shall be past due if not paid within thirty (30) days of
billing. Contractor shall have the right to refuse service to any customer that is more than sixty (60) days
delinquent on his, her or its account.
Provisions Applicable to Equipment and Personnel.
7.1 Equipment. Contractor shall provide all equipment necessary to perform the services
described in the Agreement, sufficient in number and capacity to efficiently perform the work required by
this Agreement. All equipment used at the Transfer Station shall be maintained in good working
condition and be suitable for use at the facility without causing unreasonable wear and tear or damage to
the improvements constructed on the Site. The equipment shall comply with all applicable legal
requirements. Contractor shall keep the outside of the truck bodies free from dirt and filth, and shall clean
the inside of the trucks in a sanitary manner on a regular basis. Suitable measures shall be taken to
prevent refuse from falling into public streets or places. Contractor shall keep all trucks freshly painted in
a uniform manner, and the firm name or logo, telephone number, and truck number of each truck shall
appear in a conspicuous manner. Contractor shall keep all equipment in good maintenance and repair,
regularly inspect same, and keep accurate records of all maintenance.
7.2 Facility Maintenance. Contractor shall maintain the Site and the tipping floor in an
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orderly condition with proper signage to direct users to the appropriate locations on the Site to conduct
their business. All refuse deposited on the tipping floor shall be removed within 24 hours of its deposit.
Contractor shall employ reasonable measures to control noise, odors, litter and other nuisance conditions.
Contractor will be responsible for all repair, maintenance and replacement of the Transfer Station in order
to keep it in sound working order, including, without limitation, the tipping floor surface, driveways,
gates, fences, electrical distribution systems, ventilation and heating, fire sprinklers, floor drains, walls,
doors, roof, restrooms, fixed equipment and landscaping. Contractor will keep the tipping floor free of
major cracks, holes and breaks, and will keep any tractor not equipped with rubber tires or tracks from
coming in contact with the tipping floor or driveways. All repairs made by Contractor will be with an
identical article or material or an equal approved by City.
7.3 Transport of Materials. Contractor shall not allow Solid Waste, Recyclables, Green
Waste or Wood Waste to blow or fall from any vehicle used for transportation. Contractor shall clean up
any and all spills, including oil and debris on the streets, resulting from its operations. Should Contractor
fail to promptly clean up such spills resulting from its operations after notice from City, Contractor shall
be liable to City for all reasonable costs incurred by City in doing so.
7.4 Staffing. Contractor shall employ sufficient staff to provide service in a safe manner at
the Transfer Station, and to meet its obligations under this Agreement, including, without limitation, a
Transfer Station Manager. All personnel shall be qualified to perform their assigned tasks and will
possess the required licenses, permits or training for the tasks they perform. Contractor shall provide
suitable operational and safety training for all of its employees who utilize or operate vehicles or
equipment at or in connection with the operation of the Transfer Station. Contractor shall use its best
efforts to assure that all employees present a neat appearance, conduct themselves in a courteous manner,
and perform the work as quietly as possible.
7.5 Subcontractors. Contractor shall not subcontract any of the services under this
Agreement without the prior written consent of City.
Records and Reports.
8.1 Contractor shall keep and maintain accurate books and records clearly showing its
revenues and expenses in connection with the operations provided for in this Agreement. Contractor will
also keep and preserve records of all loads of Acceptable Waste, Recyclables, Food Waste, Green Waste,
Wood Waste and Household Hazardous Waste received at the Transfer Station, and will report to City
every three (3) months during the term hereof the total quantities and payments received. Contractor shall
provide written notice to City of the location of its records and any change in the location.
8.2 City's designated representative shall be allowed access to the Transfer Station Site at all
times when the Transfer Station is open, and upon prior written notice to Contractor shall be allowed to
inspect and copy any and all records of Contractor containing information about the operation of the
Transfer Station for purposes of audit or to verify the recordkeeping procedures of Contractor. City's
designated representative shall also be allowed access to the Site during non-operating hours upon prior
written notice to the Transfer Station Manager. Contractor shall fully cooperate with City in reviewing or
investigating information in Contractor's records or pertaining to Transfer Station operations.
Hold Harmless and Insurance.
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9.1 Contractor shall indemnify and hold harmless City, its City Council, boards,
commissions, officers, agents, representatives and employees from any and all actions, claims or damages
brought for or on account of injuries to or death of any person or damage to property of all kinds resulting
from or arising out of the operations of Contractor, its officers, agents, employees or servants pursuant to
this Agreement. The duty of Contractor to indemnify and hold harmless shall include the duty to defend
as set forth in California Civil Code Section 2778.
9.2 Contractor shall have in effect during the term of this Agreement, workers' compensation
and employer liability insurance providing full statutory coverage.
9.3 Contractor shall take out and maintain during the term of this Agreement, liability
insurance for the following types and minimum amounts:
(a) General liability, including comprehensive form, premises operations,
products/completed operations, hazard, contractual insurance, broad form property damage, independent
contractors and personal liability, with limits for bodily and property damage combined of $500,000 each
occurrence and $500,000 aggregate.
(b) Automobile liability, including comprehensive form, owned, hired and non-owned,
with a limit of $1,000,000 for bodily injury and property damage combined.
(c) Excess liability, umbrella form, with a limit for bodily injury and property damage
combined of $5,000,000 each occurrence and $5,000,000 aggregate.
(d) Pollution and remediation liability with limits in an amount of not less than one
million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) annual aggregate
insuring against loss, the cost of remediation and legal defense as a result of pollution conditions arising
out of the collision, upset or overturn of Contractor vehicles in conjunction with this Agreement.
(e) Broad form fire insurance approved by City, jointly in the names of Contractor and
City, covering not less than the full replacement cost of all improvements on the Transfer Station Site. In
the event of damage to any portion of the Transfer Station, Contractor shall rebuild, repair or otherwise
reinstate the damaged improvements in good and substantial manner, with such reconstruction to
commence within ninety (90) days after the damage occurs.
Insurance is to be placed with admitted California insurers with an A.M. Best's rating of no less
than A- for financial strength, AA for long-term credit rating and AMB-1 for short-term credit rating.
Insurance certificates evidencing the required coverage shall be filed with City and shall be subject to
approval by the City Attorney. City, its City Council, boards, commissions, officers, agents and
employees shall be named as additional insureds on any such policies of insurance which shall also
contain a provision that the insurance afforded thereby shall be primary. No such policy shall be
cancelled or modified except upon thirty (30) days' prior written notice to City.
9.4 Contractor shall post a $250,000 performance bond or financial instrument reasonably
acceptable to the City Manager as security for Contractor's faithful performance of each and every term,
covenant and condition of this Agreement to be performed by Contractor, provided that the cost of such
bond or other instrument shall be included in the Operating Cost Component.
10. Remedies upon Default.
10.1 Contractor shall be deemed in default of this Agreement in the event Contractor defaults
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in the performance of any of the duties to be performed by it under the terms of this Agreement and fails
to cure the breach as further provided in this Section 10.1. City shall give Contractor written notice,
either by mail or by personal service, setting forth the default. Contractor shall correct such default
within thirty (30) days after service of such notice (within seven (7) days if City determines that the
public health or safety is at risk) unless the default cannot, by its nature, be cured within said period, in
which case the cure period shall be extended for such additional time as is reasonably necessary to effect
a cure, provided that Contractor shall commence efforts to effect a cure as soon as practicable and shall
diligently pursue the cure.. If Contractor commits three or more breaches of material provisions of this
Agreement within an eighteen (18) month period, whether cured or not, the Contractor shall be deemed to
have committed "Multiple Breaches."
10.2 In the event Contractor's default described in Section 10.1 is of a material provision of
this Agreement and is not cured as set forth in Section 10. 1, or if Contractor has committed Multiple
Breaches (defined to mean three or more defaults of material provisions of this Agreement within an
eighteen (18) month period, whether cured or not) ("Material Default"), City shall have the following
remedies:
10.2.1 Liquidated Damages. The parties acknowledge that City will incur damages as a
result of a Material Default, and that such Material Default may not warrant termination of this
Agreement. The parties agree that as of the time of the execution of this Agreement, it is impractical, if
not impossible, to reasonably ascertain the extent of damages which shall be incurred by City as a result
of a Material Default. The factors relating to the impracticability of ascertaining damages include, but are
not limited to, the fact that: (i) substantial damage results to members of the public who are denied
services or denied quality or reliable service; (ii) such breaches cause inconvenience, anxiety, frustration,
and deprivation of the benefits of the Agreement to individual members of the general public for whose
benefit this Agreement exists, in subjective ways and in varying degrees of intensity which are incapable
of measurement in precise monetary terms; (iii) that exclusive services might be available at substantially
lower costs than alternative services and the monetary loss resulting from denial of services or denial of
quality or reliable services is impossible to calculate in precise monetary terms; and (iv) the termination
of this Agreement for such breaches, and other remedies are, at best, a means of future correction and not
remedies which make the public whole for past breaches. Liquidated damages shall be City's exclusive
damages remedy for any individual Material Default which does not result in termination of this
Agreement by City. The amount of liquidated damages is $1,000 for each day the Material Default
continues after Contractor fails to cure until it is either cured or City terminates this Agreement.
10.2.2 Franchise Termination. Without further notice and without suit or other
proceedings, City may cancel and annul the rights and privileges of this Agreement upon a Material
Default. Nothing in this Section shall prohibit the parties from meeting to discuss ways to resolve the
issue. In the event of termination of this Agreement for Material Default, City shall have the right
forthwith to grant a franchise to another person or to take possession of the trucks and other equipment of
Contractor used to perform work under this Agreement. City shall have the right to retain possession of
the trucks and other equipment for up to one (1) years after such termination and City shall pay
Contractor the reasonable rental value of such trucks and other equipment, and keep them in good
maintenance and repair, during the time the same are used by City. City shall also have access to
Contractor's records for the purpose of billing customers during the period City is providing the services
described in this Agreement, and shall retain all fees collected for such services.
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Upon termination of this Agreement for any reason, Contractor shall have the obligation
to sell to City and City shall have the option to purchase the equipment used by Contractor to perform its
obligations under this Agreement in operating the Transfer Station and transporting Solid Waste to
Disposal and Processing Facilities and other markets (the "equipment"). Such option shall be exercised
by written notice to Contractor at least six (6) months prior to the termination date, unless the Agreement
is terminated based on a Material Breach, in which event notice of the election must be given within sixty
(60) days after the termination date.
The purchase price that City shall pay Contractor for the equipment shall be its cost less
depreciation to the date of purchase calculated on a straight-line basis over its estimated useful life as
shown on the books of Contractor.
10.2.3 Other Remedies. Upon termination of this Agreement based on a Material
Default, City shall have all other remedies in law or equity for such Material Default.
10.3 If a dispute arises between City and Contractor regarding fees or any other term or
provision of this Agreement, the parties agree to meet and confer in good faith to resolve the dispute.
Either party may request to meet and confer by written notice to the other party. Alternatively, the parties
may agree to participate in non-binding mediation. If the dispute is not resolved within thirty (30) days
after the written request to meet and confer has been given or after the parties have agreed to non-binding
mediation, the matter, other than an action seeking specific performance or other equitable relief,
damages of Twenty Five Thousand Dollars ($25,000) or less, or indemnification or insurance coverage
pursuant to Section 9, shall be submitted to non-binding arbitration in accordance with Title 9 of the
California Code of Civil Procedure, commencing with Section 1280, before a single neutral arbitrator
("Arbitrator") in the Mendocino County. The Arbitrator shall be an attorney with at least ten (10) years
experience or a retired judge (or a person having comparable qualifications) and shall be mutually agreed
upon by the parties. If the parties are unable to agree on an Arbitrator, the Arbitrator shall be appointed
by the superior court in accordance with Cal. Code Civ. Proc. § 1281.6. The fees and expenses of the
Arbitrator shall be borne equally by the parties.
In the event such non-binding arbitration does not resolve the matter and in any other dispute that
results in any court action, the parties waive any right to a jury trial and agree that any such action shall be
filed in the federal or state courts in and for Mendocino County, each party hereby consenting to the
jurisdiction of and venue in such courts, the matter shall be governed by the internal laws of the State of
California (irrespective of choice of law principles), and the prevailing party shall be entitled to recover
its reasonable attorneys' fees, costs and disbursements incurred in such action from the non-prevailing
party.
10.4 If Contractor shall at any time during the term of this Agreement or any extension
thereof, become insolvent, or if proceedings in bankruptcy shall be instituted by or against Contractor, or
if Contractor shall be adjudged bankrupt or insolvent by any Court, or if a receiver or trustee in
bankruptcy or a receiver of any property by Contractor shall be appointed in any suit or proceeding
brought by or against Contractor, or if Contractor shall make an assignment for the benefit of creditors,
then and in each and every such case, and provided that such proceedings, adjudication, appointment or
assignment, as the case may be, continue in effect for ninety (90) days without being vacated, removed or
withdrawn, this Agreement shall immediately cease and come to an end, and the rights and privileges
granted shall immediately be cancelled and annulled without notice or action required on behalf of City.
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10.5 Notwithstanding any other provision herein, no default, delay or failure to perform on the
part of either party shall be considered a breach hereunder if such default, delay or failure to perform is
due to causes beyond such party's control, including, but not limited to, riots, civil disturbances, actions or
inactions of governmental authorities, epidemic, war, embargoes, severe weather, fire, earthquake, acts of
God, defaults by the other party or defaults by carriers. In the event of any such default, delay or failure
to perform, any dates or times by which the affected party otherwise is scheduled to perform shall be
extended for a period of time equal in duration to the additional time required because of the excused
default, delay or failure to perform.
it. Assignment. Contractor shall not directly or indirectly, voluntarily or involuntarily assign,
mortgage, pledge or encumber any interest in all or a part of this Agreement without the prior written
consent of City. The City Council shall have the right to determine in its sole discretion whether to
approve, conditionally approve or deny any request by Contractor for approval under this Section. Any
action requiring City Council approval under this Section that occurs without such approval shall give
City the right to terminate this Agreement without prior notice to Contractor or its successors or assigns.
For purposes of this Section, any transaction involving the transfer, sale or exchange of stock which
results in a change in majority control of Contractor from its owners as of the date hereof (excluding
transfers between such owners and transfers by any such owners to revocable living trusts for the benefit
of their families) shall be an assignment subject to City review and approval.
12. Citv's Options to Purchase Site. Improvements and Eauipment.
12.1 City's Options to Purchase Site and Improvements. On December 31, 2016, Owner and
Contractor shall have the obligation to sell and the City shall have the option to purchase from Owner
both the Transfer Station Site and all the improvements on the Transfer Station Site (the "Improvements")
for an aggregate purchase price of One Dollar ($1.00). City shall be deemed to have exercised its option
to purchase the Transfer Station Site and the Improvements, unless it has given Contractor written notice
prior to December 31, 2016 that it has elected not to exercise the option. Title shall transfer to City within
thirty (30) days after December 31, 2016. The purchase shall be on a then "as-is" basis, and otherwise on
commercially reasonable terms then applicable to the purchase and sale of real property, except that
Owner shall indemnify City against any cost or liability arising from hazardous or toxic waste
contamination on the Transfer Station Site which occurred before escrow closes on City's purchase of the
Transfer Station Site. At closing, Owner shall convey to City clear, unencumbered fee title to the
Transfer Station Site and City shall enter into a lease for the Transfer Station Site and the Improvements
with Contractor in the form attached hereto as Exhibit F. Owner or Contractor's failure to co-operate in
City's purchase of the Transfer Station Site and Improvements shall be a Material Default.
12.2 Prior Termination. If this Agreement is terminated before December 31, 2016 for any
reason, City shall have the option to do all, but not part, of the following: (a) purchase or lease from
Owner the Transfer Station Site pursuant to Sections 13.1 or 13.2, (b) purchase from Owner the
Improvements pursuant to Section 13.3, and (c) purchase from Contractor all the Equipment pursuant to
Section 10.2.2. City's option under this Section 12.2 shall be exercised by written notice to Owner and
Contractor given within sixty (60) days before the termination date, unless the Agreement is terminated
based on a Material Breach, in which event notice of the election must be given within sixty (60) days
after the termination date.
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13. Purchase or Lease of Site and Purchase of Improvements.
13.1 Purchase of Site. If City elects to purchase the Transfer Station Site in accordance with
Section 12.2 above, Owner shall sell City the Transfer Station Site for a purchase price equal to the lesser
of (a) $487,000 increased by the percentage increase in the CPI between November 7, 2001 and the date
of termination of this Agreement, or (b) the then actual fair market value of the Transfer Station Site;
provided, however, that the purchase price shall be One Dollar ($1.00) if the closing of the purchase
occurs after September 30, 2016. The purchase shall be on a then "as-is" basis, and otherwise on
commercially reasonable terms then applicable to the purchase and sale of real property, except that
Owner shall indemnify City against any cost or liability arising from hazardous or toxic waste
contamination on the Transfer Station Site which occurred before escrow closes on City's purchase of the
Transfer Station Site. At closing, Owner shall convey to City clear, unencumbered fee title to the
Transfer Station Site.
13.2 Lease of Site. If City elects to lease the Transfer Station Site in accordance with Section
12.2 above, City's lease shall commence on January 1, 2017 or thirty (30) days after the notice of exercise
in the case of termination for Material Default, and expire ten (10) years thereafter. Rent under the lease
shall equal the then fair market lease value of the Transfer Station Site (excluding any value attributable
to the Improvements) and the lease shall otherwise be on commercially reasonable terms then applicable
to the ground lease of real property. If City and Owner are unable to agree on the fair market lease value,
they shall select and share the cost of an appraiser to determine such value. If they cannot agree on a
single appraiser, each may obtain an appraisal of such value from a qualified appraiser of its choice. If
the separate appraisals are within ten percent (10%) of each other, fair market lease value shall be the
average of the two appraisals. If the appraisals differ by more than ten percent (10%), the two appraisers
shall select a third appraiser to review the appraisal reports and determine which report represents the
fairest appraisal. The appraisal selected by the third appraiser shall constitute the fair market lease value
of the Transfer Station Site. The parties shall each bear the expense of their separately selected appraisers
and share equally the cost of the third appraiser.
13.3 Purchase of Improvements. If City elects to purchase the Improvements in accordance
with Section 12.2 above, the purchase price that City shall pay Owner for the Improvements shall be One
Dollar ($1.00)
14. Waiver. The waiver by any party of any breach or violation of any term or condition of this
Agreement or of any provision of law by the other party must be in writing signed by the party to be
charged, and shall not be deemed to be a waiver of the term, condition or provision of law, or of any
subsequent breach or violation of the same or any other term, condition or provision of law. The
acceptance by City of any Surcharge or other fee or other monies which may become due hereunder to
City shall not be deemed to be a waiver of any preceding breach or violation by Contractor.
15. Administration. The administration and enforcement of this Agreement shall be the
responsibility of the City Manager or a designated representative of that office. This section is not
intended to indicate or suggest the City Manager has the authority to grant, amend, or revoke the rights
referenced herein or to prevent the City Manager from seeking approval from the City Council for any
decision the City Manager is required or authorized to make hereunder.
16. Independent Contractor. Contractor, its employees and agents are independent contractors and
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not employees or agents of City.
17. Notices. Whenever notice or a document is required or permitted to be served or given
hereunder, it shall be deemed given or served, when received if delivered by fax or email (with
acknowledgment of receipt), certified U.S. Mail, overnight courier, such as UPS or Federal Express, or 48
hours after deposit in the U.S. Mail with first class postage affixed. Any such document or notice shall be
addressed as follows:
City: City Manager
Ukiah Civic Center
300 Seminary Avenue
Ukiah, California 95482
FAX:
Email:
Contractor: Solid Wastes Systems, Inc.
Attn: David M. Carroll, President
P. O. Box 60
Ukiah, California 95482
FAX:
Email:
Owner: Yulupa Investments, LLC
Attn: David M. Carroll, President
P. O. Box 60
Ukiah, California 95482
FAX:
Email:
or to such other person or address as may be specified from time to time in writing by any party in
accordance with this Section.
18. Amendments. This Agreement may be amended from time to time only by written agreement
between the parties signed by an authorized representative of each party. Any party may at any time
request that the service or other provisions in this Agreement be modified by delivering written notice of
its requested modifications to the other parties. Within thirty (30) days after receipt of any such request,
the parties shall meet and negotiate in good faith on adopting such requested modifications, including,
without limitation, any change to the Rates necessitated by such modifications, provided that nothing
herein shall obligate any party to agree on any such requested modifications.
19. Successors and Assigns. This Agreement shall be binding upon, and shall inure to the benefit of,
the permitted successors and assigns of the parties.
20. Integration; Severability. This Agreement, including the Exhibits hereto, constitutes the entire
19
agreement of the parties with respect to the subject matter hereof and supersedes all prior or
contemporaneous agreements between the parties, whether written or oral, relating to such subject matter,
including the Prior Agreement. If a court finds any provision of this Agreement invalid or unenforceable
as applied to any circumstance, the remainder of this Agreement and the application of such provision to
other persons or circumstances shall remain in effect. The parties further agree to replace such void or
unenforceable provision with a valid and enforceable provision which will achieve, to the extent possible,
the economic, business and other purposes of the void or unenforceable provision.
above.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first set forth
Solid Wastes Systems, Inc.
~ y
B
President
Yulupa Investments, LLC
President
City of Ukiah
9
By.
City Man M&
ATTEST:
~.a
JN )
ity Clerk
Aa-E- O FO
City xffo~mey
20
EXHIBIT A
AGREEMENT FOR THE RECEIPT OF GREEN AND WOOD WASTE
21
EXHIBIT B
STRATEGIC WASTE MANAGEMENT PLAN
22
EXHIBIT C
LEGAL DESCRIPTION OF TRANSFER STATION SITE
23
EXHIBIT D
RATESCHEDULE
24
EXHIBIT E
TRANSFER STATION RATE CALCULATION
25
EXHIBIT F
TRANSFER STATION LEASE
26
EXHIBIT G
CURRENT GEOGRAPHIC AREA SERVED BY TRANSFER STATION
The areas marked as Franchise Areas 3 and 2 (Inland) on the attached map, including the
incorporated City limits.
27
EXHIBIT A
AGREEMENT FOR RECEIPT OF WOOD AND GREEN WASTE
THIS AG EMENT FOR RECEIPT OF WOOD AND GREEN WASTE (the "Agreement") is
entered into as of A, 2011 ("Effective Date") by and between Pacific Recycling Solutions,
Inc., a California corporation ("PRS"), Ukiah Waste Solutions, Inc., a California corporation ("UWS"),
and Solid Waste Systems, Inc., a California corporation ("SWS"), with reference to the following:
A. PRS owns and operates a green waste and wood waste processing facility located at 4260
North State Street, Ukiah, California (the "Facility").
B. The Facility is fully permitted to accept and process Green Waste and Wood Waste, as
defined below ("Materials").
C. SWS is party with the City of Ukiah to that certain Amended and Restated Transfer
Station Agreement of even date herewith for the operation of the Ukiah Valley Transfer Station for the
receipt, collection, transportation and disposal of municipal, commercial and industrial solid waste (the
"TS Agreement"), and UWS is party with the City of Ukiah to that certain Waste Collection Agreement
of even date herewith for the collection and disposal of solid waste (the "Collection Agreement"). SWS
and UWS desire to enter into an agreement with PRS which will provide for disposal of approximately
10,000 tons, but without limit subject to the Facility's permitted capacity, annually of Materials at the
Facility.
In consideration of the aforementioned recitals and upon the terms and conditions herein set forth,
the parties hereto agree as follows:
Definitions: The following terms shall have the respective meanings set forth below:
"Green Waste" shall mean green trimmings, grass, weeds, leaves, prunings, branches, dead
plants, brush, tree trimmings, dead trees, small wood pieces and other types of organic yard
waste, provided that dead trees and branches may not exceed six (6) inches in diameter and four
(4) feet in length.
"Wood Waste" shall mean clean pieces of unpainted and untreated wood.
"Process" shall mean handle, grind or chip and recycle Materials.
2. Agreement to Accept Materials: PRS agrees to accept and Process all Materials
collected at SWS's transfer station or collected by UWS, as provided for under the TS Agreement and the
Collection Agreement, and delivered by SWS or UWS to the Facility, on the terms herein.
3. Processing Rate: As consideration for the receipt and proper Processing by PRS of the
Materials delivered by SWS and UWS, SWS and UWS shall each pay PRS a fee of Thirty Dollars
($30.00) per ton for Materials received by PRS at the Facility from SWS and UWS, respectively, as
adjusted pursuant to Paragraph 4 herein (the "Processing Rate"). Fees shall be paid by SWS and UWS
within thirty (30) days of receipt from PRS of a written invoice detailing the amount of Materials received
by PRS for each month.
d Adjustment of Processing Rate:
a. Adjustment based on CPI: PRS shall have the right, commencing on July 1, 2012 and
annually thereafter, to increase the Processing Rate by a percentage equal to the
percentage increase, if any, in the Consumer Price Index, All Urban Consumers, U.S.
City Average, All Items (1982-1984=100), published by the United States Department of
Labor, Bureau of Labor Statistics ("Index"), for the preceding year, using the Index
published for the month nearest the beginning and the month nearest the end of such year.
Notwithstanding any other provision herein, to the extent any government having
jurisdiction over the Facility should impose any fee or tax ("Government Tax") on the
Facility associated with the Processing of Materials, the Processing Rate shall be
increased by the amount of such Government Tax, either at the per ton rate of such Tax
or if such Tax is not assessed on a per ton basis, in the proportion that the total tonnage of
Materials PRS reasonably projects to accept from SWS an UWS during the period for
which the Government Tax will pertain compared with other users of the Facility. On
each adjustment of the Processing Rate, PRS shall deliver to SWS and UWS written
notice stating the adjusted Processing Rate. If PRS forgoes the application of a CPI
adjustment in any year, that adjustment will be treated as a zero increase (decrease) in
subsequent years, and shall not be retroactively recouped.
b. Five year review: Every five years the parties and the City of Ukiah ("City") shall
review the gate fee to determine whether changes in the market for green and wood waste
warrant an adjustment in the gate fee to account for changes in the cost of processing and
the income produced from processed green and wood waste. If processing costs have
become substantially more or less and/or the income produced from processed material
has substantially increased or decreased over the five year period, the rates shall be
adjusted to account for these changes.
5. Term of Agreement: This Agreement shall expire as to each of SWS and UWS on the
expiration of the TS Agreement or the Collection Agreement, respectively, including extensions, subject
to earlier termination, as follows. PRS, on the one hand, and either of SWS or UWS, on the other, shall
be entitled to terminate this Agreement in the event of the other party's material breach hereof unless such
breach is cured within thirty (30) days after written notice thereof. This Agreement shall terminate
automatically as to any party in the event of such party's insolvency, bankruptcy, assignment for the
benefit of creditors or other debt reorganization unless, in the case of bankruptcy, the petition is removed
or withdrawn within thirty (30) days.
6. Type of Waste: PRS shall only accept, and SWS and UWS shall only be entitled to
provide, Materials not containing any prohibited substances or hazardous waste. PRS shall be entitled to
inspect the Materials and reject and/or return to SWS or UWS any Materials that are not in conformance
with the standards set forth herein. Notice of rejection of non-conforming Materials shall be given in
writing prior to the close of business on the day PRS receives such non-conforming Materials at the
Facility. Failure to provide written notice in accordance with the terms of the preceding sentence shall
forfeit PRS's right to reject such non-conforming Materials. SWS or UWS shall bear all costs associated
with inspecting, testing and rejecting any non-conforming Materials. Each party agrees to comply with
all laws applicable to such party in the performance of its duties hereunder.
7. Amount of Waste to be Delivered: SWS and UWS shall deliver an aggregate minimum
of 30 tons per day and an aggregate maximum of 75 tons per day of Materials to the Facility.
2
R Tima of nelivar- SXaJS anal i MIS shall he ent tlprl to deliver n fatPnals to the Far„hty
six (6) days a week, Monday thru Saturday during normal operating hours.
9. Attorney's Fees: If any litigation is commenced between PRS and SWS or PRS and
UWS to collect any sums due under this Agreement, or concerning any provisions of this Agreement, the
prevailing party in such litigation shall be entitled, in addition to such other relief deemed appropriate by
the court, to reasonable attorney's fees and expenses incurred in connection with such litigation.
10. Binding Effect: This Agreement shall be binding upon and inure to the benefit of the
successors and assigns of SWS, UWS and PRS.
11. Confidentiality: Neither party shall disclose the Processing Rate to any person except
with the express written permission of the other, which permission shall not be unreasonably withheld.
Without limiting the generality of the foregoing, PRS shall agree to allow SWS or UWS to disclose the
Processing Rate as may be reasonably requested or required by the City of Ukiah under the TS
Agreement or the Collection Agreement.
12. Counterparts: This Agreement may be executed in counterparts, and shall be effective
when fully executed by all of the parties. The parties agree to accept signatures transmitted by facsimile.
13. Third Party Beneficiaries: The City of Ukiah shall be deemed a third party beneficiary
of this Agreement with all of the rights of a party to enforce the terms of this Agreement.
14. Assignment: No assignment of this Agreement can be made without the prior written
approval of the City of Ukiah, exercising its rights under Section 11 of each of the Waste Collection and
Transfer Station Agreements with UWS and SWS, respectively.
IN WITNESS WHEREOF, this Agreement is entered into as of the date first set forth above.
PACIFIC RECYCLING SOLUTIONS, INC.
c
SOLID WASTES SYSTEMS, INC.
C
UKIAH WASTE SOLUTIONS, INC.
B-I/- ~ 6
9/28/2011
The Next Generation of Waste Management
in Mendocino and Lake Counties
Slp'SjE Sp~Gf Strategic Waste Management Plan
h~o
0
CAtIF~R~
I ru"
Plan Overview
The Plan is described in the following sections:
Section 1 . Executive summary and plan overview
Section 2. Proposed new programs and activities
Section 3. Benefits of plan implementation
M1 3
Objectives of the Plan
Our objectives in developing this Plan include:
Minimizing landfilling of collected municipal solid
waste (MSw)
Maximizing energy and resource recovery
Reducing greenhouse gas production
Creating jobs
Being practical and affordable
Allowing phased implementation as projects and
programs become viable
Introduction & Purpose of the Plan
> This plan presents our concepts for next
generation solid waste management
programs that are locally appropriate
> These new programs supplement, not
replace, our existing recycling programs
> C&S will investigate each program fully and
report back
Programs requiring a rate increase would
require approval of the jurisdiction(s)
n Some may turn out to be feasible, others not
Section 1. Executive Summary and
Plan Overview
This Plan outlines a long-term, comprehensive,
solid waste management strategy
It addresses all aspects of the municipal solid
waste stream
> It offers innovative systems and processes to
recover and manage those materials and identifies
the benefits from doing so
It also identifies and provides new solid waste
management services for the communities served
by C&S
Elements of the Plan
The plan includes the following new programs:
I. Food waste collection and conversion
2. New Resource Recovery Facility to process MSW from Ukiah
Valley and Lake County/Clearlake
3. Localized landfill disposal
4. Waste to energy
These programs supplement, not replace our
existing diversion programs
Some may be feasible, others not
They could be implemented on a phased basis, and
not necessarily in this order
11W
1
9/28/2011
Benefits of the Plan
r The new programs have the potential to:
Divert MSW - over 90% of the area's MSW (40,000 tons)
could be diverted from landfill each year
Produce Green Energy - 2,500 Kilowatts of clean,
renewable energy-enough to power over 3,600 homes
Provide jobs - over 80 temporary and 25 on-going new
"green"jobs
Eliminate Greenhouse Gas - Remove approximately 65,000
tons per year of greenhouse gases, equivalent to taking
13,000 cars off the road or planting 14,000 acres of pine
forest annually
Program #1-Food Waste Collection
and Conversion
bH.,
> Food waste is the largest component of
our waste stream (18 to 22%)
Approximately 75% of food waste is from
commercial sources (restaurants,
^
commercial kitchens)
"
> Initial activities include:
F
ibili
d
d
S
o
tu
y
Foo
Waste Conversion System
eas
ty
~r
• In-vessel aerobic composting pilot program,
4.9
and
• Anaerobic digestion/fuel cell project
= Demonstration food waste collection program
Implement full-scale collection and
diversion programs based on results
Food Waste Option B: Anaerobic
Digestion and Fuel Cell Power
Food Waste, fats, oils, grease and other organic materials can
produce Biogas Fuel
Fuel cells provide 50% more power from the same amount of
fuel in a conventional power plant
No pollution emissions
Project could be stand-alone or consolidated with wastewater
treatment bio-solids digestion
Significant grant funding available to offset costs
Section 2. Proposed New Programs
I . Food waste collection and conversion
2. New Resource Recovery Facility to
process MSW from Ukiah Valley and Lake
County/Clearlake
3. Localizing landfill disposal
MSW energy conversion
Food Waste Option A: In-Vessel
Aerobic Composting
Leading edge technology
Fully contained system that minimizes odor, air, and water
quality issues
Produces a high quality compost
Possible to start small and increase capacity in a modular
fashion
Feed stocks include food waste, green waste and other
locally available organic materials
i
-A i I
Program #2- Resource Recovery
Facility (RRF) Program
Construct and operate Resource Recovery Facility
> Consolidate Ukiah Valley and Lake
County/Clearlake waste
r Locate at C&S's transfer station in Lakeport
Recovered recyclable materials shipped to Pacific
Recycling Solution's facility in Ukiah for
processing and shipment to markets
Post-RRF residue would be landfilled
Eastlake
Ukiah (if reopened)
t iz
2
9/28/2011
Implementing the RRF could reduce
landfilling by an additional 20 to 30%
Transfer Station
C
t
Sanitary Landfill
urren
`op,nsed
t_
Resource Recovery
`Recyclables Markets
Facility (RRr)
Program #3- Localization of
Landfill ing-Ukiah Landfill
> Investigate reopening Ukiah landfill
> Different use options would be considered
Inerts only
Control inbound volumes to significantly extend
landfill life
Post-RRF residues
All Ukiah area waste
Lake County MSW to preserve Eastlake capacity
M is
Program #4- Waste to Energy (WTE)
MSW remaining after food waste and RRF programs are
in place still has significant energy value
C&S will investigate feasibility of converting this
remaining MSW into energy
Recycling, composting, and digestion/fuel cell programs
would remain in place
Will consider the following state of the art technologies:
Anaerobic Digestion
Pyrolysis
Gasification
Siting in Lake County or Ukiah would be considered
Project could supply green power to Ukiah or others
Implement WTE when/if feasible
Program #3- Localization of
Landfill ing-Eastlake Landfill
a Continue using for all Lake County MSW
Add Ukiah MSW on a multi-year contract
Provides significant funding for Lake County at
no additional cost to Ukiah customers
Provides long term disposal for Ukiah, with
flexibility to incorporate future opportunities
Program #3- Localization of
Landfill ing-Ukiah Landfill
Non-processible wastes from the Ukiah Transfer
Station saves hauling to a distant site
Some post-RRF residue could also be delivered
Advantages:
Postpone closure 20+ years to avoid short-term
financial challenge.
Reduces cost of transportation
Lowers greenhouse gas emissions
Provides local jobs
By phasing in Waste to Energy, C&S could reduce
landfilling well beyond existing programs
Transfer Station Sanitary Landfill
F
k
Current I i '
I L_
PropQseJ
Resource Recovery
Waste to Energy
Facility (RRF)
3
9/28/2011
Why Consider Waste to Energy?
Vendors eager to supply demonstration plants to prove
their technology
They will provide financing and operations
Subsidies and grants available to offset capital costs
All diversion programs (recycling, composting, etc) will
remain in place
75 to 99% additional reduction of landfill disposal
Source of reliable, base load renewable energy near
population centers and industrial loads
Reduced greenhouse gas and other emissions
Very low emissions if properly designed and operated
ice" s
Annual Diversion From Plan Elements
Section 3. Benefits of the Plan
Implementation of these four (4) programs would:
Provide greater MSW Diversion from landfill
Localize all activities-no more reliance on distant
landfills owned by others
Allow C&S and its local government partners to
determine the timing and location of all activities
Extend landfill life
Create new local jobs
Provide clean, renewable energy
Recover additional recyclable materials
Reduce greenhouse gas emissions
Enhance AB 939 and AB 32 Compliance
The Plan Creates New jobs
Current Amount Landflled
44,4UU I PY
1. Food Waste
2,700 TPY
6%
2. Resource Recovery
IA. Food Waste-Compost
5
1
Facility
13,300 TPY
30%
1 B. Food Waste-AD/FC
15
1
3. Localizing Landfilling
Not Applicable
Not Applicable
2. Resource Recovery Facility
15
6
4. Waste to Energy
25.600 TPY
58%
3. Landfill Localization
1
1
Total amount Diverted
41,600 TPY
94%
4. Waste to Energy
50
20
Total amount Landfilled
2,800 TPY
6%
Total
86
29
TPY = tons per year
Green Energy Production
The food waste digestion/fuel cell project
could produce approximately 300 kilowatts
Enough to power over 400 homes
The waste to energy project could provide
approximately 2,200 kilowatts
Enough to power about 3,200 homes
zs
The Plan Reduces Greenhouse Gas (GHG)
and Helps Meet AB32 Requirements
IA Food waste t-ompost 6,uuu I,ouu I,iuu
18. Food Waste (AD/FC) 8,600 1,700 1,800
2. Resource Recovery 20,200 4,000 4,300
Facility
3. Landfill Localization 400 100 100
4. Waste to Energy 36,200 7.200 7,700
Total 64,"0 to 12,900 to 13,800 to
65,400tons/yr 13,000 cars 13,900 acres/yr
24
4
Solid Wastes Systems, Inc.
Transfer Station Rate Schedule
Effective Date January, 2012
Calculated
NEW
2012
2012
2011
FA
Rate
Item
Rate
Rate
Rounded*
MSW - Ton
$74.50
$78.70
$78.70
MSW - Yard
$17.50
$18.50
$18.50
Minimum Gate Fee - MSW
Upto3cans $9.00
$9.25
$9.25
Per Can Rate - 32 gallon
After 3cans $3.00
$3.08
$3.10
Green Waste - Ton
$38.40
$40.79
$40.80
Green Waste - Yard
$5.60
$5.95
$5.95
Minimum Gate Fee - Green Waste
$5.50
$5.84
$5.85
Mixed Load - Additional Charge
$17.20
$18.27
$18.25
Appliances
$15.30
$16.25
$10.00
Oil Filters -Small
$0.35
$0.37
$0.35
Oil Filters - Medium
$0.60
$0.64
$0.65
Oil Filters - Large
$0.85
$0.90
$0.90
Concrete - Ton
$60.22
$63.97
$63.95
Dirt - Ton
$60.22
$63.97
$63.95
Sheetrock - Clean
$38.40
$40.79
$40.80
Sheetrock - Dirty
$60.22
$63.97
$63.95
Tires - Bicycle
$1.10
$1.17
$1.15
Tires - Motorcycle
$2.10
$2.23
$2.25
Tires - Passenger Car
$3.10
$3.29
$3.30
Tires - Passenger Car with Rim
$4.90
$5.20
$5.20
Tires - Truck
$6.70
$7.12
$7.10
Tires - Truck with Rim
$9.00
$9.56
$9.55
Tires - Tractor
40.00 - 300.00
42.49 - 318.66
42.50 - 318.65
E-Waste - Computers
No Charge
No Charge
No Charge
E-Waste - Monitors
No Charge
No Charge
No Charge
Scrap Metal
No Charge
No Charge
No Charge
* Rates are rounded to the nearest five cents
EXHIBIT C
DESCRIPTION:
ALL THAT CERTAIN PROPERTY SITUATED IN THE COUNTY OF MENDOCINO, AND STATE OF
CALIFORNIA, BEING DESCRIBED AS FOLLOWS:
BEGINNING AT A 1/2 INCH IRON PIPE PLUGGED LS 4043, LOCATED AT THE SOUTHWEST CORNER
OF PARCEL 3 AS SHOWN ON A PARCEL MAP OF MD 23-74 FILED IN MAP CASE 2, DRAWER 23, PAGE
89, MENDOCINO COUNTY RECORDS; THENCE NORTH 7 DEGREES 23'30" WEST, 379.92 FEET TO A
1/2" IRON PIPE PLUGGED LS 4043; THENCE CONTINUING NORTH 7 DEGREES 23'30" WEST, 44.11
FEET; THENCE NORTH 83 DEGREES 04'41 " EAST, 366.03 FEET; THENCE SOUTH 20 DEGREES 51' 04"
EAST, 60.30 FEET TO A 1/2 INCH IRON PIPE PLUGGED LS 4043; THENCE CONTINUING SOUTH 20
DEGREES 51' 04" EAST, 365.46 FEET TO A 1/2 INCH IRON PIPE PLUGGED LS 4043; THENCE SOUTH 81
DEGREES 45'00" WEST, 465.17 FEET TO THE POINT OF BEGINNING.
EXCEPTING THEREFROM ANY PORTION DESCRIBED IN THE DEED TO MENDOCINO TRANSIT
AUTHORITY, A JOINT POWERS AGENCY, RECORDED MARCH 30, 1982 IN BOOK 1346 OFFICIAL
RECORDS, PAGE 255, MENDOCINO COUNTY RECORDS.
APN: 184-140-13
3151 Taylor Drive
Ukiah, CA 95482
EXHIBIT E
Solid Wastes Systems Transfer Station Components
Annual Adjustment Calculations
Effective Date January, 2012
Increase
COSTS Subiect to adjustment
Cost
Index
Allowed
Operating Costs subject to CPI
$1,309,108.96
CPI
$ 46,604.28
Fuel
$212,736.94
Fuel
$ 76,202.37
Disposal - Garbage
$698,641.65
Contract rate
Pass Through $ -
Disposal - Processing
$289,414.82
Negotiated
Pass Through $ -
Construction/Lease $2.36/ton
$73,638.68
Contract rate
Pass Through $ -
Construction/Lease $10/ton
$312,028.30
Contract rate
Pass Through $ -
City Landfill Fee $2/ton
$11,700.27
Set by City
Pass Through $ -
MSWMA Fee $5/ton
$157,563.05
Set by City
Pass Through $ -
Total COSTS Subject to adjustment
$3,064,832.67
$122,806.65
Adjustments
Reclass fuel for destination change
-$60,203.47
$ (21,564.88)
Reclass Disposal for destination change
$99,556.44
Included in adjustment
Adjustment to base year for destination changes, before Ind
icies
$ 39,352.97
Total Adjustments
39,352.97
17,788.09
Adjusted Cost
$3,104,185.64
$140,594.74
Revenue base
Projected
2010 Revenue
$2,259,178.07
Fuel
$54,637.49
Landfill Destination Change
($60,203.47)
Disposal - garbage
$99,556.44
Disposal - processing
$0.00
CPI adjustment
$46,604.28
Construction/Lease $2.36/ton
$0.00
Revenue change
$140,594.74
Adjusted revenue
$2,399,772.81
Revenue Increase $140,594.74
Current Increase New
Contractor Rate increase as a percent 6.22%
$67.50
$4.20
$71.70
MSWMA Rate increase as a percent 0.00%
$5.00
$0.00
$5.00
City Rate increase as a percent 0.00%
$2.00
$0.00
$2.00
FFECTIVE RATE INCREASE PERCENT
$74.50 Total Rate $78.70
5.64%
Page 1 of 5
EXHIBIT E
Solid Wastes Systems Transfer Station Components
Annual Adjustment Calculations
Effective Date January, 2012
Worksheet for computing the change in various indexes and factors which
comprise the components on which rates are adjusted
Fuel - June to June (EIA Petroluem & Other Liquids)
See Fuel cost adjustment worksheet
CPI - June to June (CPI-U All US Cities)
June 2010 June 2011 Index Increase (Decrease)
217.965 225.722 7.757
CPI % Change 3.56%
Landfill Fee Jan to Jan (Eastlake compared to Potrero Hills)
January 2011 January 2012 Increase (Decrease)
$ 33.48 $ 38.25 4.770
Disposal - Garbage Cost % Change 14.25%
Disposal Processing Fee Jan to Jan
January 2011 January 2012 Increase (Decrease)
$ 30.00 $ 30.00 $ 0.00
Disposal - Green Waste Cost % Change 0.00%
Transfer Station Tonnage at gate, Year to Year
January 2011 January 2012 Increase (Decrease)
31,202.83 31,202.83 0.00
Tonnage % Change 0.00%
City Landfill Fee June to June
January 2011 January 2012 Increase (Decrease)
$ 2.00 $ 2.00 $ 0.00
City Landfill Fee % Change 0.00%
MSWMA Fee June to June
January 2011 January 2012 Increase (Decrease)
$ 5.00 $ 5.00 $ 0.00
MSWMA Fee % Change 0.00%
Page 2 of 5
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d
TRANSFER STATION LEASE
THIS TRANSFER STATION LEASE (the "Lease") is made between the City of Ukiah, a
municipal corporation ("Lessor"), and Solid Wastes Systems, Inc., a California corporation ("Lessee"), as
of the later of 1 st day of January, 2017 or the date of the closing of Lessor's Purchase of the Premises
from Lessee, with reference to the following:
A. Pursuant to that certain Amended and Restated Transfer Station Agreement
between Lessor, Lessee and Yulupa Investments, LLC dated December 2011
(the "Agreement"), Lessor has agreed to lease to Lessee, and Lessee has agreed
to lease from Lessor, that certain improved real property situated in the City of
Ukiah, County of Mendocino, State of California, commonly known as 3151
Taylor Drive (the "Premises").
B. Capitalized terms used herein have the meaning stated in the Agreement, unless
otherwise expressly stated herein.
NOW, THEREFORE, in and for the mutual covenants herein, and other good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Lessor and Lessee agree as
follows:
1. Lease. Lessor hereby leases the Premises to Lessee on the terms and conditions of this
Lease.
2. Term. The term hereof shall commence on the later of January 1, 2017 or the date of the
closing of Lessor's purchase of the Premises from Lessee ("Commencement Date") and continue until the
expiration or termination of the term of the Agreement (including extensions thereof).
3. Rent. The monthly rent shall equal the product of $10.00 times the number of tons of
Acceptable Waste accepted by Lessee at the Premises during such month for which Lessee charges a per
ton or per yard MSW Rate (as of the Effective Date approximately 31,000 tons per year). Such rent shall
be paid to Lessor in arrears, within thirty (30) days after the end of the month, at City Hall, 300 Seminary
Drive, Ukiah, California 95482, or at such other place as may be designated by Lessor from time to time.
Each monthly rent payment shall be accompanied by a statement showing the tons of Acceptable Waste
received by Lessee through the gate at the Premises during the relevant month. Cubic yards received
through the gate for the purpose of rent due will be converted to tons at 5.54 cubic yards equals one ton.
The per ton monthly rent may be increased annually on January 1St (beginning January 1, 2018), at
Lessor's election exercisable by written notice given to Lessee at least ninety (90) days prior to the date of
increase, by the percentage increase, if any, in the Consumer Price Index, All Urban Consumers, U.S.
City Average, All Items (1982-1984=100), published by the United States Department of Labor, Bureau
of Labor Statistics (the "Index") for the twelve-month period ended on the June 30th immediately prior to
the notice, using the Index published for such June as compared with the Index published for June of the
prior year. On January 1, 2022 and every five years thereafter, Lessor may increase the per ton monthly
the rent on one hundred twenty (120) days' prior written notice to Lessee, provided that such increase,
when passed through to the Transfer Station Rates causes those Rates to exceed the average rates of the
facilities in competition with the Transfer Station.
4. Acceptance of Premises in "AS IS" Condition. Lessee acknowledges that Lessee
constructed and has owned, operated and maintained the Premises until they were conveyed to Lessor just
prior to the Commencement Date. As of the Commencement Date, Lessee accepts the building,
improvements and any equipment on or in the Premises in their existing condition. No representation,
statement or warranty, express or implied, has been made by or on behalf of Lessor as to such condition
or as to the use that may be made of such property. In no event snail Lessor be liable for any defect in
such property or for any limitation on its use.
5. Use. The Premises are to be used for the operation of a solid waste transfer station in
accordance with the Agreement, and any related activities lawfully conducted by Lessee.
6. Uses Prohibited. Lessee shall not use any portion of the Premises for purposes other than
those specified hereinabove, and no use shall be made or permitted to be made upon the Premises, nor
acts done, which will increase the existing rate of insurance upon the property, or cause cancellation of
insurance policies covering said property.
7. Assiplment and Subletting. Lessee shall not assign this Lease or sublet any portion of
the Premises without the prior written consent of Lessor, which shall be in Lessor's sole and absolute
discretion to give. Any such assignment or subletting without such consent shall be void and, at the
option of the Lessor, may terminate this Lease.
8. Ordinances and Statutes. Lessee shall comply with all statutes, ordinances and
requirements of all municipal, state and federal authorities now in force, or which may hereafter be in
force, pertaining to the Premises, occasioned by or affecting the continuing use thereof by Lessee.
9. Maintenance, Repairs, Alterations. Lessee acknowledges that the Premises are in good
order and repair. Lessee shall, at its own expense and at all times, maintain the Premises (including all
improvements) in good order and repair, keep the Premises clean and in good and safe condition, do no
damage to the Premises, and shall surrender the Premises, at termination or expiration of this Lease, in as
good condition as received, normal wear and tear excepted. Lessee's obligation includes any
reconstruction or replacement of the Improvements necessary to maintain the Premises in good condition
for the uses allowed under this Lease.
No improvement or alteration of the Premises shall be made by Lessee without the prior written
consent of Lessor. Prior to the commencement of any substantial repair, improvement or alteration to
which Lessor shall so consent, Lessee shall give Lessor at least two (2) days advance written notice in
order that Lessor may post appropriate notices to avoid any liability for liens.
10. Entry and Inspection. Lessee shall permit Lessor or Lessor's agents to enter upon the
Premises without prior notice during hours when the Premises are open to the public and at other
reasonable times upon reasonable notice for the purpose of inspecting the same, and will permit Lessor to
place upon the Premises any usual "To Let" or "For Lease" signs, and permit persons desiring to Lease
the same to inspect the Premises thereafter, within six (6) months prior to expiration of this Lease.
11. Indemnification of Lessor. Lessor shall not be liable for any damage or injury to Lessee,
or any other person, or to any property, occurring on the Premises or any part thereof, and Lessee agrees
to fully indemnify, defend and hold Lessor harmless from and against any claims for damages arising out
of Lessee's use of the Premises, no matter how caused, and from any expense, cost, or liability associated
with such claim or the defense of any such claim.
12. Insurance. Lessee, at its expense, shall maintain public liability insurance, including
bodily injury and property damage, in accordance with the terms of Section 9 of the Agreement.
13. Utilities. Lessee shall be responsible for the payment of all utilities, including water, gas,
electricity, heat and other services delivered to the Premises during the term hereof.
14. Abandonment of Premises. Lessee shall not vacate or abandon the Premises at any time
during the term hereof, and if Lessee shall abandon or vacate the Premises, or be dispossessed by process
of law, or otherwise, any personal property belonging to Lessee left upon the Premises shall be deemed to
be abandoned, at the option of Lessor.
15. Condemnation. If any part of the Premises shall be taken or condemned for public use,
and a part thereof remains which is susceptible of occupation hereunder, this Lease shall, as to the part
taken, terminate as of the date the condemnor acquires possession, and thereafter Lessee shall be required
to pay such proportion of the rent for the remaining term as the value of the Premises remaining bears to
the total value of the Premises at the date of condemnation; provided, however, that Lessee may at its
option, terminate this Lease as of the date the condemnor acquires possession. In the event that the
Premises are condemned in whole, or that such portion is condemned that the remainder is not susceptible
for use hereunder, this Lease shall terminate upon the date upon which the condemnor acquires
possession. All sums which may be payable on account of any condemnation shall belong to the Lessor,
and Lessee shall not be entitled to any part thereof; provided, however, that Lessee shall be entitled to
retain any amount awarded to Lessee for its trade fixtures or moving expenses.
16. Trade Fixtures. Any and all fixed improvements made to the Premises during the term
hereof shall belong to Lessor, except trade fixtures of the Lessee. Lessee may, upon termination hereof,
remove all its trade fixtures, subject to Lessor's rights under Section 10.2.2 of the Agreement, but shall
repair or pay for all repairs necessary for damages to the Premises occasioned by such removal.
17. Destruction of Premises. In the event of a whole or partial destruction of the Premises
during the term hereof from any cause, Lessor shall forthwith repair the same provided that the insurance
proceeds are sufficient for such purpose and provided that such repairs can be made within one hundred
twenty (120) days under existing governmental laws and regulations, but such partial destruction shall not
terminate this Lease, except that Lessee shall be entitled to a proportionate reduction of rent while such
repairs are being made, based upon the extent to which the making of such repairs shall interfere with the
business of Lessee on the Premises. If such repairs cannot be made with the available insurance proceeds
or within said one hundred twenty (120) days, Lessor or Lessee, at its option, may make the same within
a reasonable time, this Lease continuing in effect with the rent proportionately abated as aforesaid, and in
the event that Lessor shall not elect to make such repairs which cannot be made with the available
insurance proceeds or within one hundred twenty (120) days, this Lease may be terminated at the option
of either party.
18. Insolvency. In the event a receiver is appointed to take over the business of Lessee, or in
the event Lessee makes a general assignment for the benefit of creditors or Lessee takes or suffers any
action under any insolvency or bankruptcy act, the same shall constitute breach of this Lease by Lessee.
19. Remedies of Lessor on Default. In the event of any breach of this Lease by Lessee,
Lessor may, at its option, terminate the Lease and recover from Lessee: (a) the worth at the time of award
of the unpaid rent which was earned at the time of termination; (b) the worth at the time of award of the
amount by which the unpaid rent which would have been earned after termination until the time of the
award exceeds the amount of such rental loss that Lessee proves could have been reasonably avoided; (c)
the worth at the time of award of the amount by which the unpaid rent for the balance of the term after the
time of award exceeds the amount of such rental loss that Lessee proves could be reasonably avoided; and
(d) any other amount necessary to compensate Lessor for all detriment proximately caused by Lessee's
failure to perform its obligations under the Lease or which in the ordinary course of things would be
likely to result therefrom.
Lessor may, in the alternative, continue this Lease in effect, as long as Lessor does not terminate
Lessee's right to possession, and Lessor may enforce all its rights and remedies under the Lease, including
r
the right to recover the rent as it becomes due under the Lease. if said breach of Lease continues, Lessor
may, at any time thereafter, elect to terminate the Lease.
have.
Nothing contained herein shall be deemed to limit any other rights or remedies which Lessor may
20. Attorney's . In case suit should be brought for recovery of the Premises, or for any
sum due hereunder, or because of any act which may arise out of the possession of the Premises, by either
party, the prevailing party shall be entitled to all costs incurred in connection with such action, including
reasonable attorney's fees.
21. Waiver. No failure of Lessor to enforce any term hereof shall be deemed to be a waiver
of such term.
22. Notices. Any notice which either party may or is required to give, shall be given by
mailing the same, postage prepaid, to Lessee at the Premises, or Lessor at the address set forth in Section
3 above, or at such other places as may be designated by the parties hereunder from time to time.
23. Time. Time is of the essence of this Lease.
24. Heirs, Assigns, Successors. This Lease is binding upon and shall inure to the benefit of
the respective heirs, assigns and successors in interest to each of the parties.
25. Property Taxes. Lessee shall pay all Property Taxes upon the Premises, including any
improvements thereon (such as the Improvements). For purposes of this Lease, "Property Taxes" shall
mean: (a) all real estate taxes and other assessments on the Premises and/or any improvements, including
assessments for special improvement districts and building improvement districts, taxes and assessments
levied in substitution or supplementation in whole or in part of any such taxes and assessments; (b) all
personal property taxes for property that is owned by Lessor and used in connection with the operation,
maintenance and repair of the Premises and/or improvements; (c) all governmental charges attributable to
the Premises (such as business license taxes and fees); and (d) all costs and fees incurred in connection
with seeking reductions in any tax liabilities described in (a) or (b) above, including, without limitation,
any costs incurred by Lessor for compliance, review and appeal of Property Tax liabilities. The parties
shall use their best efforts to maintain or decrease the assessed value of the Premises upon conveyance of
the Premises to Lessor.
26. Lessor's Liability. The term "Lessor," as used in this paragraph, shall mean only the
owner of the real property or Lessee's interest in a ground lease of the Premises. In the event of any
transfer of such title or interest, the Lessor named herein (or the grantor in case of any subsequent
transfers) shall be relieved of all liability related to Lessor's obligations to be performed after such
transfer; provided, however, that any funds in the hands of Lessor or grantor at the time of such transfer
shall be delivered to grantee. Lessor's aforesaid obligations shall be binding upon Lessor's successors and
assigns only during their respective periods of ownership.
27. Estoppel Certificate.
(a) Lessee shall at any time upon not less than ten (10) days' prior written notice
from Lessor execute, acknowledge and deliver to Lessor a statement in writing (i) certifying that this
Lease is unmodified and in full force and effect (or, if modified, stating the nature of such modification
and certifying that this Lease, as so modified, is in full force and effect), the amount of any security
deposit, and the date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on the part of Lessor
hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer to the Premises.
(b) At Lessor's option, Lessee's failure to deliver such statement within such time
shall be a material breach of this Lease or shall be conclusive upon Lessee (i) that this Lease is in full
force and effect, without modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, and (iii) that not more than one month's rent has been paid in
advance or such failure may be considered by Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance, refinance or sell the Premises, or any part thereof,
Lessee hereby agrees to deliver to any lender or purchaser designated by Lessor such financial statements
of Lessee as may be reasonably required by such lender or purchaser. Such statements shall include the
past three years' financial statements of Lessee. All such financial statements shall be received by Lessor
and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.
28. Hazardous Materials. Lessee shall indemnify and hold harmless Lessor with respect to
the discharge by Lessee or its agents of any toxic or hazardous materials on or in the Premises during the
term hereof.
29. Entire Agreement. The foregoing (including, where applicable, the Agreement)
constitutes the entire agreement between the parties with respect to the Premises and may be modified
only by a writing signed by both parties. Capitalized terms used, but not defined, herein shall have the
respective meanings given them in the Agreement.
30. Governing Law; Forum. This Lease shall be construed in accordance with the internal
laws of the State of California (irrespective of choice of law principles). Any dispute hereunder shall be
resolved in the state courts in Mendocino County and state appellate courts. The parties waive any right
to a jury trial.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first above written.
CITY OF UKIAH (LESSOR) SOLID WASTES SYSTEMS, INC. (LESSEE)
By:
By:
Title: Title:
EXHIBIT G
MAP OF SOLID WASTE REFUSE COLLECTION
AREA
SOLID WASTE REFUSE COLLECTION AREAS
76
A Mendocino County