Loading...
HomeMy WebLinkAboutPacific Recycling Solutions, Inc. 2015-10-07..11 /o 0715 -A Lynn:"BIT a, FIRST AMENDED AND RESTATED AGREEMENT FOR RECEIPT OF WOOD WASTE, GREEN WASTE AND MIXED ORGANIC WASTE THIS FIRST AMENDED AND RESTATED AGREEMENT FOR RECEIPT OF WOOD WASTE, GREEN WASTE AND MIXED ORGANIC WASTE (the "Agreement ") is entered into as of October j, 2015 ( "Effective Date ") by and between Pacific Recycling Solutions, Inc., a California corporation ( "PRS "), Ukiah Waste Solutions, Inc., a California corporation ( "UWS "), and Solid Wastes 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 and 3501 Taylor Drive and 3515 Taylor Drive, Ukiah, California (the "Facility "). B. The Facility is permitted to receive Green Waste and Wood Waste and currently accepts and processes such materials received from SWS and UWS in accordance with that certain Agreement for Receipt of Wood and Green Waste dated December 12, 2011 (the "Prior Agreement ") which provides for disposal of approximately 10,000 tons, but without limit subject to the Facility's permitted capacity, annually of Materials (as defined below) at the Facility. C. SWS is party with the City of Ukiah (the "City") to that certain First 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 to that certain First Amended and Restated Waste Collection Agreement of even date herewith for the collection and disposal of solid waste (the "Collection Agreement "), which agreements have been amended and restated to allow for the recycling of Food Waste and Mixed Organic Waste. D. Prior to receiving Food Waste or Mixed Organic Waste, the Facility must be fully permitted to receive, commingle, store and handle Food Waste and Mixed Organic Waste. E. The parties wish to amend and restate the Prior Agreement on the terms herein effective as of the Effective Date, so that this Agreement shall supersede the Prior Agreement as of the Effective Date, when the Prior Agreement shall cease to have any effect (except for periods prior to the Effective Date). In consideration of the aforementioned recitals and upon the terms and conditions herein set forth, the parties hereto agree as follows: 1. 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 or four (4) feet in length. "Food Waste" shall mean food scraps, paper tissues, paper napkins and towels, coffee grounds and filters, pizza boxes, food soiled paper plates and cups, and miscellaneous paper not suitable for recycling that is discarded (as from a Commercial or Residential Property kitchen). "Mixed Organic Waste" shall mean Green Waste and Food Waste. 1 "Wood Waste" shall mean unpainted and untreated lumber and boards. "Materials" shall mean Green Waste, Wood Waste, Food Waste and Mixed Organic Waste. "Process" shall mean handle, grind or chip and recycle (including by composting or anaerobic digestion) Materials. "CCC Agreement" shall mean the Agreement for Mixed Organic Waste Services between PRS and Cold Creek Compost, Inc. ( "CCC ") dated September 15, 2015, a true and correct copy of which is attached hereto as Exhibit I. 2. Agreement to Accept Materials: PRS agrees to accept and Process all Materials received at SWS's transfer station or collected by UWS, as provided for under the TS Agreement, the Collection Agreement, and the CCC Agreement and delivered by SWS or UWS to the Facility, on the terms herein; provided, however, that PRS shall not accept Food Waste or Mixed Organic Waste until it has been fully permitted to receive, commingle, store and handle such Materials. PRS shall receive and process all such Materials in strict compliance with its permits. 3. Processing Rates: 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 the following fees: (a) Thirty Dollars ($30.00) per ton for Green Waste and /or Wood Waste received by PRS at the Facility from SWS and UWS, respectively (the "GW Processing Rate "); and (b) Thirty Dollars ($30.00) per ton for Food Waste and /or Mixed Organic Waste received by PRS at the Facility from SWS and UWS, respectively (the "MOW Processing Rate "). The GW Processing Rate and the MOW Processing Rate shall each be adjusted pursuant to Paragraph 4 herein. 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. 4. Adjustment of Processing Rates: a. Adjustment based on CPI: PRS shall have the right, commencing on January 1, 2016 and annually thereafter, to increase or decrease the GW Processing Rate and /or the MOW Processing Rate by a percentage equal to the applicable percentage increase or decrease, 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. The "applicable percentage" shall be 100% for the GW Processing Rate, and 90% for the MOW 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. Adjustment for Government Taxes: 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 GW Processing Rate and /or the MOW Processing Rate, as the case may be, 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 relevant Materials PRS reasonably projects to accept from SWS and UWS during the period for which the Government Tax will pertain compared with other users of the Facility. On each adjustment of the GW Processing Rate and /or the MOW Processing Rate, PRS shall deliver to SWS and UWS written notice stating the adjusted GW Processing Rate and /or MOW Processing Rate. c. Five year review: During calendar year 2016 only, the parties and the City shall review the per ton MOW Processing Rate to determine what increase to that rate is warranted, effective as 2 of January 1, 2017, to cover the costs incurred by PRS to accommodate the processing of MOW (the "New Program "), including, but not limited to, the capital costs of improvements to the PRS Facility, operational costs, transportation costs, and other costs (not included under Section 4.d) required to accommodate the New Program and shall allow for a reasonable profit to PRS. During calendar year 2016 and every five years thereafter, the parties and the City shall review the GW Processing Rate to determine to what extent, if any, changes in 1) the market value for Green Waste and Wood Waste, 2) attendant costs including, but not limited to, changes in processing, transfer and transportation costs, and 3) the gate fee charged by CCC, pursuant to the CCC Agreement, or any successor processing site agreement, warrant an adjustment in the GW Processing Rate to account for changes in such costs, and the income produced from processed green waste and wood waste. If receiving, transfer and processing costs have become substantially more or less and /or the income produced from processed material has substantially increased or decreased during the five year period since the Effective Date or during the five year period since the last rate review, the GW Processing Rate shall be adjusted to account for these changes starting on January 1, 2017, and every five (5) years thereafter based upon such five year review process, provided that no such adjustment shall reduce the GW Processing rate to less than Thirty Dollars ($30.00) per ton. d. CCC Agreement Adjustments: In addition to adjustments under subparagraphs a., b. and c. above, any change in the gate fee charged by CCC pursuant to the CCC Agreement for Local Annual Tonnage (as defined in the CCC Agreement), or by any City- approved successor processing site for similar Materials under its agreement with PRS, that are not in either case the subject of adjustments pursuant to subparagraphs a., b. or c. above, shall be treated as an immediate pass through adjustment to the MOW Processing Rate effective as of the date of such change. For example, effective January 1, 2017 and in addition to any adjustments under subparagraphs a., b. and c. above for the period from the Effective Date through January 1, 2017, the MOW Processing Rate will be increased by Ten Dollars ($10.00) per ton by virtue of the Ten Dollar ($10.00) per ton increase in the gate fee charged PRS by CCC for Local Annual Tonnage under the CCC Agreement effective on such date. 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, as the case may be, 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. 8. Time of Delivery: SWS and UWS shall be entitled to deliver Materials to the Facility 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 3 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: No party shall disclose the GW Processing Rate or the MOW Processing Rate to any person except with the express written permission of the other parties, which permission shall not be unreasonably withheld. Without limiting the generality of the foregoing, PRS shall agree to allow SWS or UWS to disclose such Processing Rates as may be reasonably requested or required by the City 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 and may be assumable by the City, exercising its rights under Section 11 of each of the Waste Collection Agreement or the TS Agreement. IN WITNESS WHEREOF, this Agreement is entered into as of the date first set forth above. PACIFIC RECYCLING SOLUTIONS, INC. e,Giln.cafr,,,U SOLID WASTES SYSTEMS, INC. By: Cln4te UKIAH WASTE SOLUTIONS, INC. By 4 EXHIBIT 1 CCC AGREEMENT