HomeMy WebLinkAboutSolid Waste Systems, Inc. 2015-10-07COU NO. 1516-126
SECOND AMENDED AND RESTATED TRANSFER STATION AGREEMENT
TABLE OF CONTENTS
Page
Second Amended and Restated Transfer Station Agreement 1
1. Operating Rights 1
2. Definitions 2
3. Term 5
4. Operations 5
4.1 Receipt, Transfer and Disposal of Solid Waste 5
4.2 Buy -Back Recycling 6
4.3 Drop -Off Recycling 6
4.4 Household Hazardous Waste Recycling 6
4.5 Green Waste and Wood Waste 7
4.6 Food Waste and Mixed Organic Waste 7
4.7 Reuse Facility 7
4.8 Unacceptable Waste Prohibited 7
4.9 Refusal of Waste 7
4.10 Title to Waste 7
4.11 Hours of Operation 8
4.12 Additional Services 8
4.13 Permits and Licenses 8
4.14 Applicable Law 8
5. Landfill Fee 9
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6. Gate Rate and Other Service Fees 9
6.1 Establishment 9
6.2 Modification Based on Consumer Price Index, Fuel Index and
Certain Pass - Through Costs 9
6.3 Modification Based on Changes in Pass - Through Costs 11
6.4 Five Year Review 12
6.5 Modification Based on Extraordinary Items 12
6.6 Billing 12
7. Provisions Applicable to Equipment and Personnel 12
7.1 Equipment 12
7.2 Facility Maintenance 13
7.3 Transport of Materials 13
7.4 Staffing 13
7.5 Subcontractors 13
8. Records and Reports 13
9. Hold Harmless and Insurance 14
10. Remedies Upon Default 15
11. Assignment 17
12. City's Options to Purchase Site, Improvements and Equipment 18
12.1 City's Options to Purchase Site and Improvements 18
12.2 Prior Termination 18
13. Purchase or Lease of Site and Purchase of Improvements 18
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13.1 Purchase of Site 1 8
13.2 Lease of Site 18
13.3 Purchase of Improvements 19
14. Waiver 19
15. Administration 19
16. Independent Contractor 19
17. Notices 19
18. Amendments 20
19. Successors and Assigns 20
20. Integration; Severability 20
Exhibit A — First Amended and Restated Agreement for Receipt
of Wood Waste, Green Waste and Mixed Organic Waste
Exhibit B — [Reserved]
Exhibit C - Legal Description of Transfer Station Site
Exhibit D — Rate Schedule
Exhibit E — Transfer Station Rate Calculation
Exhibit F — Transfer Station Lease
Exhibit G — Current Geographic Area Served By Transfer Station
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SECOND AMENDED AND RESTATED TRANSFER STATION AGREEMENT
This Second Amended and Restated Transfer Station Agreement (the "Agreement ") is made as of
October '7, 2015 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 (hereinafter "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 Amended and Restated Transfer Station
Agreement dated December 12, 2011 (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 Amended and Restated
Waste Collection Agreement with City of even date herewith (the "Collection Agreement "); and
WHEREAS, Contractor has invested substantial funds to acquire land and construct
improvements to increase diversion of Solid Waste from landfills, reduce greenhouse gasses, convert
waste into energy, and create new jobs; and
WHEREAS, City has approved a Mixed Organic Waste Curbside Recycling Program (the "New
Program ") pursuant to the Collection Agreement; and
WHEREAS, the parties wish to amend and restate the Prior Agreement on the terms herein
consistent with the New Program and to make certain other changes;
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. Operating Rights.
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, nor 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, and except as
specifically permitted under this Agreement or the Collection Agreement, 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
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represents the Solid Waste, as of 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).
2. Definitions.
2.1 "Acceptable Waste" means all Solid Waste, except (a) Recyclables, (b) Segregated Food
Waste, Mixed Organic Waste, Green Waste or Wood Waste, and (c) Hazardous Waste, Household
Hazardous Waste and Unacceptable Waste.
2.2 "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.
2.3 "Construction Debris" means used or discarded construction materials generated during
the construction or renovation of a building, structure or other man -made improvement.
2.4 "Demolition Debris" means used construction materials generated during the razing or
renovation of a building, structure or other man -made improvement.
2.5
receive it.
"Disposal" means the permanent placing of Solid Waste in a facility legally permitted to
2.6 "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.
2.7 "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).
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2.8 "Food Waste" means 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).
2.9 "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.
2.10 "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.
2.11 "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.
2.12
Properties.
"Household Hazardous Waste" means Hazardous Waste that is generated at Residential
2.13 "Mixed Organic Waste" means Green Waste and Food Waste.
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, Mixed Organic Waste and Wood Waste for the purpose of
Recycling, whether directly or through one or more third parties (including, in the case of Food Waste,
Green Waste and Mixed Organic Waste, composting or anaerobic digestion), and shall include other
means of diverting Solid Waste from landfills.
2.16 "Processing Costs" means fees, if any, paid by Contractor to a Processing Facility for
Processing Recyclables, Food Waste, Green Waste, Mixed Organic Waste, Wood Waste and Solid Waste
received at the Transfer Station. The amount paid by Contractor to PRS for Food Waste, Mixed Organic
Waste, Green Waste or Wood Waste delivered to the PRS Facility shall be as determined under that
certain First Amended and Restated Agreement for Receipt of Wood Waste, Green Waste and Mixed
Organic Waste among PRS, UWS and SWS of even date herewith and attached hereto as Exhibit A (the
"PRS Agreement ").
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, with respect to Green
Waste and Wood Waste and subject to Section 4.5 below, the PRS Facility, the Scotia Facility (as defined
in Section 4.5 below), or other licensed biomass conversion facility approved by the City Manager for
Processing, the CCC Facility (as defined in Section 4.5 below), and/or any other authorized facility
selected and approved pursuant to Section 4.1.2 and 4.5 below, and with respect to Food Waste and
Mixed Organic Waste and subject to Section 4.6 below, the PRS Facility, the CCC Facility, and/or any
other authorized facility selected and approved pursuant to Section 4.1.2 and/or 4.6 below.
2.18 "PRS" means Pacific Recycling Solutions, Inc.
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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 and 3515 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 Segregated Food Waste, Mixed
Organic Waste, Green Waste and /or 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, Mixed Organic Waste, Green Waste
and Wood Waste, Recyclables that have been separated from Solid Waste that is not Recyclables and
from Food Waste, Mixed Organic 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, Mixed Organic 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, Mixed Organic 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.
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2.26 [Reserved]
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 October 1, 2015 (the "Effective Date ") and continue for a period of
eleven (11) years and three (3) months 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. the initial Green
Waste and Wood Waste Processing Facility is described in Section 4.5 below, and the initial Food Waste
and Mixed Organic Waste Processing Facility is described in Section 4.6 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
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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
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 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 the PRS Facility, the Scotia Facility, any
licensed biomass conversion facility approved by the City Manager, or the CCC Facility. 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 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, Wood Waste, Food Waste or Mixed Organic 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.
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4.3 Drop -Off Recycling. Contractor shall accept at a designated area of the Transfer Station,
at no charge, Segregated Recyclables (other than Food Waste, Mixed Organic Waste, Green Waste, Wood
Waste and the types 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 "), any licensed biomass conversion facility approved by the City Manager, the Cold Creek
Compost, Inc. composting facility (the "CCC Facility "), or the PRS Facility for Processing, in accordance
with the terms of this Agreement. Any residue from the Green Waste or Wood Waste received at the
Transfer Station that cannot be Processed shall be disposed of at the Disposal Facility or at any licensed
landfill selected by PRS.
4.6 Food Waste and Mixed Organic Waste. Notwithstanding any other provision in this
Agreement, Contractor shall not be required to accept or Process any Segregated Food Waste or
Segregated Mixed Organic Waste delivered to the Transfer Station until January 1, 2017 and subject to
the receipt by PRS of all government approvals and permits necessary for PRS to receive, commingle,
store and handle such Food Waste and Mixed Organic Waste. Once such approvals and permits have
been received by PRS and such date has occurred, Contractor shall, if (1) PRS permits do not allow self -
haulers to deliver Food Waste or Mixed Organic Waste to the PRS Facility (and PRS does not intend to
seek such allowance), and (2) requested in writing by the City Manager: (a) accept at a designated area of
the Transfer Station Segregated Food Waste and Segregated Mixed Organic Waste from City and County
Self- Haulers at the applicable Mixed Organic Waste Rates specified in Exhibit D as adjusted under
Section 6 below, and transfer or transport all such Food Waste and Mixed Organic Waste for Processing
to the PRS Facility, in accordance with the terms of this Agreement; and (b) due to space constraints,
direct City and County Franchised Haulers to deliver all Segregated Food Waste and /or Segregated Mixed
Organic Waste for Processing to another facility; provided, however, that if the CCC Facility shall refuse,
due to no fault of Contractor, UWS or PRS, to accept Mixed Organic Waste that is not a Contaminated
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Load (as defined in the Agreement for Mixed Organic Waste Services between PRS and CCC dated
September 15, 2015, which is attached as Exhibit 1 to Exhibit A to this Agreement (the "CCC
Agreement ")) or if the CCC Facility shall shut down or cease operating, Contractor shall deliver the
Mixed Organic Waste received at the Transfer Station for Processing or to the licensed facility that is
least expensive (taking into account costs of Processing and transportation), with any increase in the costs
to Contractor of using the new facility instead of the PRS Facility and the CCC Facility being passed
through to Contractor and treated as a Pass - Through adjustment to the Rates on the next Rate Adjustment
Date pursuant to Section 6.3 below.
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, Mixed Organic 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, Mixed Organic 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 4th, Labor Day, Thanksgiving Day and Christmas Day; provided,
however, that if New Year's Day, July 4th 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.
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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
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 City or another 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
Costs.
Modification Based on Consumer Price Index, Fuel Index and Certain Pass - Through
(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.
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(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 30th one year prior to June 30th
of the Comparison Year.
(iv) "Comparison Year" means the year ended June 30th immediately prior to
the relevant Rate Adjustment Date.
(v) "Contractor Rate" means the per ton MSW Rate minus the per ton
(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.
Franchise Fees.
(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 PRS or any other Authorized Facility for Recyclables, Green Waste, Mixed Organic Waste and
Food Waste delivered by Contractor to 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 1st, as well as changes in other Pass - Through Costs, will be determined under Section
6.3 below and not under this Section 6.2.
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(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
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
1st 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
1st, 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
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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,
subject to Section 4.6.
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
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.
7. 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
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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
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, Food Waste, Mixed Organic 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.
8. 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, Mixed
Organic Waste, Green Waste, Wood Waste and Household Hazardous Waste received at the Transfer
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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.
9. Hold Harmless and Insurance.
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
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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
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.
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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.
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
16
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.
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.
11. Assignment.
11.1 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.
11.2 Any written agreement between Contractor and a Disposal Facility for the Disposal of
Solid Waste received at the Transfer Station entered into after the date of this Agreement, and any written
agreement between Contractor and a Processing Facility for the Processing of Recyclables received at the
Transfer Station entered into after the date of this Agreement, shall provide that: (a) City is a third party
beneficiary with the same right as a party to enforce such agreement; (b) any assignment of such
agreement shall require City approval; (c) in the event such agreement is terminated during its term or any
extended term by Contractor or by the Disposal Facility or Processing Facility operator based on an
uncured default by Contractor under such agreement, such agreement may be assumed by City without
change, including as to Disposal or Processing rates and terms; and (d) if terminated based on an uncured
default by Contractor, any payments due but unpaid under such agreement on the date of termination shall
continue to be an obligation of Contractor and the obligation to make any such payments shall not be
17
assumed by City upon its assumption of such agreement.
12. City's Options to Purchase Site, Improvements and Equipment.
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.
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
18
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
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:
Contractor:
City Manager
Ukiah Civic Center
300 Seminary Avenue
Ukiah, California 95482
FAX:
Email:
Solid Wastes Systems, Inc.
Attn: David M. Carroll, President
P. O. Box 60
19
Owner:
Ukiah, California 95482
FAX:
Email:
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
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.
By( A
President
Yulupa Investments, LLC
20
ATTEST:
By:
President
City of Ukiah
By: J ' ' S At,
CitlManag
41,,5414e, kAm/6-t„--.
City Clerk
APPROV I AS TO FO
City orney
21
EXHIBIT A
FIRST AMENDED AND RESTATED AGREEMENT FOR RECEIPT OF WOOD WASTE,
GREEN WASTE AND MIXED ORGANIC WASTE
FxHIBff 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 _,
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 1.
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 I 1 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.
By:014,66,4,,,va
SOLID WASTES SYSTEMS, INC.
By: ")`6
2
UKIAH WASTE SOLUTIONS, INC.
Bv:
4
EXHIBIT I
CCC AGREEMENT
5
EXHIBIT 1
AGREEMENT FOR MIXED ORGANIC WASTE SERVICES
This Agreement is made and entered into as of the latest date of execution between Pacific
Recycling Solutions, Inc. (hereinafter, "PRS "), a California corporation whose main office is located in
Ukiah, CA, and Cold Creek Compost, Inc. (hereinafter, "Cold Creek "), a California corporation, who
shall collectively be referred to as the "Parties."
RECITALS
WHEREAS, PRS operates facilities at 4260 North State Street, Ukiah, California and /or 3515
Taylor Drive, Ukiah, California (the "PRS Facilities ") where it processes organic materials collected by
its Affiliates (as defined below); and
WHEREAS, Cold Creek operates a fully - permitted industrial compost facility at 6000 East Side
Potter Valley Road, Ukiah, California (the "Site ") which has capacity sufficient to perform its obligations
hereunder and is subject to a valid ground lease on the Site which expires December 3 I, 2022; and
WHEREAS, PRS and Cold Creek wish to enter into this Agreement on the terms and
conditions herein; and
NOW, THEREFORE, the Parties agree to the terms and conditions set forth herein.
1. DEFINITIONS
1.1 "Mixed Organic Waste" shall mean Green Material, Food Material, 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 collected at the curb from residential and commercial
customers by the City Franchisee.
1.2 "Additional Mixed Organic Waste" shall mean the following:
1.2.1 Agricultural Materials including, but not limited to, manure and animal bedding, poultry
moralities, grape pomace, diatomaceous earth and culled fruit;
1.2.2 Green Material including, but not limited to, yard trimmings, brush, branches, and
stumps;
1.2.3 Wood Waste including, but not limited to, sawmill waste, source separated construction and
demolition material including sheetrock (which material may contain nails, doorknobs, joist hangers);
1
1.2.4 Food Materials including, but not limited to, meat, fish, and dairy, soiled paper and waxed
cardboard, fishery waste, grease trap waste, liquid wastes, including, but not limited to, wine lees, olive
sludge, brewery waste and pond sludge.
1.3 "Agricultural Materials" has the meaning provided in Title 14 of the California Code of
Regulations (( "CCR ") Section 17852(5).
1.4 "Green Material" has the meaning provided in 14 CCR §17852(21).
1.5 "Wood Waste" has the meaning provided in 14 CCR §17852(42).
1.6 "Residual Waste" shall mean any material that is not included in the definitions of Sections 1.1
through 1.5 above, and that cannot be used by Cold Creek in the ordinary course of business.
1.7 "Contaminated Load" shall mean the inclusion of material or liquids in a load in such quantities
that one of the following occurs:
1.7.1 The load is spoiled to the extent that the entire load is unusable by Cold Creek in the
ordinary course of business as determined solely by Cold Creek.
1.7.2 The cost of removing the contaminants exceeds the value of the organic material.
as determined solely by Cold Creek.
1.7.3 The Residual Waste exceeds the CalRecycle standard of more than 1.0 percent by weight
or by such standard as is the current standard for contamination established by California Integrated
Waste Management Board (CIWMB) or successor agency.
1.8 "Compensation" shall mean those fees described in Section 6 below due Cold Creek by
PRS for Cold Creek's acceptance and processing of material described in Sections 1.1 through 1.5
above.
1.9 "Local Annual Tonnage" shall mean the aggregate of all material described in Section 1.1
above that is generated within the city limits of the City of Ukiah (the "City "), collected at the curb from
residential and commercial customers by the City Franchisee and delivered by PRS or its Affiliates to the
Site in any calendar year.
2
1.10 "Other Annual Tonnage" shall mean any material described in Sections 1.1 through 1.5 above
that is generated outside of the city limits of the City, and any material described in Sections 1.2 through
1.5 above that is generated within the city limits of the City, and in each case delivered to the Site by PRS
or its Affiliates in any calendar year, but excluding Sonoma Organic Material (as defined below).
1.11 `City Franchisee" shall mean Ukiah Waste Solutions, Inc., a California corporation and an
Affiliate of PRS.
1.12 "Affiliate" shall mean any entity at least 50% of the voting power of which is owned by the
stockholders of PRS.
1.13 "City" shall mean the City of Ukiah, California.
1.14 "Sonoma Organic Material" shall mean any material described in Sections 1.1 through 1.5
above that is generated in Sonoma County and delivered to the Site by PRS or its Affiliates in any
calendar year.
1.15 "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 having jurisdiction over this Agreement or a Party's performance hereunder.
2. TERM
2.1 The Term of this Agreement shall commence on November 1, 2015, subject to the receipt by PRS
of all government approvals and permits necessary for PRS to receive, commingle, store and handle any
or all of the materials described in Sections 1.1 through 1.5 above at the PRS Facilities and approval of a
Mixed Organic Waste Recycling Program by the City Council of the City of Ukiah (the "Effective
Date "), and continue through December 31, 2022, unless extended pursuant to Section 2.2 below,
terminated early pursuant to Section 9.1.2 or 9.1.3 below, or amended by mutual agreement in writing by
the Parties.
2.2 Cold Creek grants to PRS options to extend this Agreement under the same terms and conditions
for up to nine (9) individual consecutive one (1) year periods, each consecutive option period at PRS's
sole discretion. Such Agreement extension options are contingent upon a reasonable determination by
3
PRS and the City that Cold Creek has obtained an extension or replacement of the Lease for such periods,
or control of a substitute fully - permitted site of equal functionality for such periods and under such terms
and conditions that permit Cold Creek to perform its obligations under this Agreement. Upon the exercise
by PRS of any option to extend this Agreement, the initial Term described in 2.1 above, plus any
extension under this paragraph together shall become the Term.
2.3 Nothing in this Agreement limits PRS's right to pursue any disposal alternatives at the end of the
Term subject to City approval.
3. SERVICES PROVIDED BY COLD CREEK
3.1 Cold Creek warrants that the Site is fully permitted and has capacity sufficient to
perform its obligations hereunder, and that Cold Creek controls the Site through a valid ground lease.
3.2 Cold Creek shall process all Mixed Organic Waste, Additional Mixed Organic Waste,
Agricultural Materials, Wood Waste and Green Material received from PRS or its Affiliates in a way that
promotes maximum landfill diversion and shall comply with all applicable laws pertaining to the
operation of the Site, including, but not limited to, closure and post closure obligations and any financial
assurances. Upon request, Cold Creek agrees to provide PRS with copies of any regulatory inspection
reports on its operation within a reasonable amount of time.
3.3 Cold Creek shall maintain all- weather access to the Site for tractor - trailer configured vehicles
during regular business hours as provided in Section 3.4 below.
3.4 The Site shall be open for deliveries Monday through Friday, 7 a.m. to 3:30 p.m., and Saturday
from 7 a.m. to 1 p.m., excluding the following holidays: Christmas, New Year's Day, Labor Day,
Memorial Day, July 4th, and Thanksgiving Day, except that the Site will open on Labor Day, Memorial
Day, and July 4th if requested by PRS where notice is given not less than seven (7) days in advance to
receive PRS delivery. Such notice may be in the form of an email, phone call or other informal means;
however notice shall not be deemed effective until PRS receives an acknowledgement of receipt by Cold
Creek by any of the above mentioned forms.
3.5 Cold Creek will provide an adequate, unencumbered tipping area at the Site to assure timely
offloading of materials from PRS and its Affiliates' vehicles.
4
4. SERVICES PROVIDED BY PRS
4.1 City Franchisee will provide a public education program educating its customers on the specific
requirements of its Mixed Organic Waste program, and use its best efforts in the monitoring, inspection
and enforcement procedures to minimize contamination of the Mixed Organic Waste collection.
4.2 Commencing on the first day of the Term, PRS will deliver all Local Annual Tonnage to the Site,
subject only to PRS's receiving approval from the City for such flow direction to Cold Creek.
4.3 Commencing on the first day of the Term, PRS and /or its Affiliates may deliver, in their sole
discretion, any or all Other Annual Tonnage and any or all Sonoma Organic Material to the Site, subject
to PRS's having received approval where needed for such flow direction to Cold Creek from the
jurisdiction holding such authority.
4.4 PRS, at its sole discretion, may either combine Mixed Organic Waste materials with Additional
Mixed Organic Waste materials and deliver them together to the Site, or deliver Mixed Organic Waste,
Additional Organic Waste, Agricultural Materials, Food Materials, Wood Waste or Green Material
separately.
4.5 All materials delivered to the Site described in Sections 4.2 and 4.3 will be billed under
payment terms as set forth in Section 6 below.
4.6 PRS's deliveries of Mixed Organic Waste, Additional Mixed Organic Waste, Agricultural
Materials, Food Materials, Wood Waste and Green Material to the Site shall be weighed at the Site's truck
scale to determine net weight delivered. PRS agrees to deliver all material in trucks with capabilities to
discharge its own load. Cold Creek may inspect each load prior to and immediately after unloading and at
its discretion may reject any load pursuant to Section 5 below.
5. CONTAMINATED LOADS
5.1 If a load is determined by Cold Creek pursuant to Section 4.6 above to be a Contaminated Load,
but only as defined in Section 1.7 above, Cold Creek at its sole discretion may reject the load ( "Rejected
Load ").
5.2 Upon the rejection of a load by Cold Creek, Cold Creek will immediately notify PRS and hold
PRS's truck and driver, if instructed to do so by PRS, to allow PRS's management to inspect such load.
PRS will have the right to either remove the contamination from the load at Cold Creek's site or dispose
of the Rejected Load by backhaul at PRS's sole expense.
5
5.3 The cost of disposing of Residual Waste contained in a non - Contaminated Load shall be borne
solely by Cold Creek.
5.4 In no circumstances shall the materials described in Sections 1.1 through 1.5 above that are not a
Contaminated Load be considered unacceptable material.
6. FEES
6.1 PRS shall pay Cold Creek for Local Annual Tonnage delivered to the Site by PRS and its
Affiliates, as follows:
2016.
6.1.1 $16.00 per ton commencing on the Effective Date and continuing through December 31,
6.1.2 $26.00 per ton commencing January 1, 2017 and continuing through December 31, 2018.
6.1.3 The per -ton fee for Local Annual Tonnage will be adjusted up or down on January 1 of
each year, starting January 1, 2019, by a percentage factor equal to 0.9 (90 %) of the change in the value in
the twelve months before the most recent November 1 of the All Urban Consumers Consumer Price Index
(CPI -U), all items, for the San Francisco - Oakland -San Jose, CA, Base Period 1982 — 1984 = 100, not
seasonally adjusted, compiled and published by the U.S. Department of Labor, Bureau of Labor Statistics
or its successor index.
6.2 PRS shall pay Cold Creek $26.00 per ton for Other Annual Tonnage delivered to the Site by PRS
and its Affiliates commencing on the Effective Date and continuing through December 31, 2018. The
per -ton fee for Other Annual Tonnage will be adjusted up or down on January 1 of each year, starting
January 1, 2019, by a percentage factor equal to 0.9 (90 %) of the change in the value in the twelve
months before the most recent November 1 of the All Urban Consumers Consumer Price Index (CPI -U),
all items, for the San Francisco - Oakland -San Jose, CA, Base Period 1982 — 1984 = 100, not seasonally
adjusted, compiled and published by the U.S. Department of Labor, Bureau of Labor Statistics or its
successor index.
6.3 PRS shall pay Cold Creek $32.00 per ton for Sonoma Organic Materials delivered to the Site by
PRS and its Affiliates commencing on the Effective Date and continuing through December 31, 2018.
The per -ton fee for Sonoma Organic Materials will be adjusted up or down on January 1 of each year,
starting January 1, 2019, by a percentage factor equal to 0.9 (90 %) of the change in the value in the
twelve months before the most recent November 1 of the All Urban Consumers Consumer Price Index
6
(CPI -U), all items, for the San Francisco - Oakland -San Jose, CA, Base Period 1982 — 1984 = 100, not
seasonally adjusted, compiled and published by the U.S. Department of Labor, Bureau of Labor Statistics
or its successor index.
6.4 Cold Creek will invoice PRS monthly with payments due in 30 days. Any payments due from
PRS and not made within 30 days of receipt of the invoice shall incur additionally a 1.5% per month late
charge, or the maximum rate allowed by law, whichever is less.
6.5 Fees due to Cold Creek from PRS described in this Section for services herein shall constitute the
total of all Compensation due to Cold Creek by PRS under this Agreement.
7. COLD CREEK LEASE
7.1 The Site is the subject to a valid ground lease (the Lease) between Cold Creek and Lessors, the
term of which is currently set to expire on December 31, 2022. A copy of the Lease is attached hereto as
Exhibit A.
7.2 During the Term of this Agreement, Cold Creek shall notify PRS in writing, with a copy to the
City Manager of the City, of any material change in the terms of the Lease within seven (7) days of Cold
Creek becoming aware of such material change. A copy of a modified Lease (redacted to remove
economic terms) or a memorandum of lease signed by Cold Creek and the landlord and setting forth the
major non - economic terms of the modified lease, will accompany that notice, and will be added to Exhibit
A of the Agreement by the Parties. Notice and delivery of a modified Lease under this Section shall be
made by either USPS certified mail or by any national delivery service that provides proof of delivery.
8. INSURANCE AND INDEMNIFICATION
8.1. Comprehensive General Liability -Cold Creek. Cold Creek shall obtain and maintain in full force
and effect throughout the entire term of this Agreement a Broad Form Comprehensive General Liability
(occurrence) policy with a minimum limit of TWO MILLION DOLLARS ($2,000,000.00) aggregate and
ONE MILLION DOLLARS ($1,000,000.00) per occurrence for bodily injury and property damage, with
any self - insured retention not exceeding TWO HUNDRED THOUSAND ($200,000.00) per occurrence.
Cold Creek shall also obtain and maintain in full force and effect throughout the entire term of this
Agreement a pollution legal liability policy with a minimum limit of TWO MILLION DOLLARS
($2,000,000.00) aggregate and ONE MILLION DOLLARS ($1,000,000.00) per occurrence for bodily
7
injury and property damage, with any self - insured retention not exceeding TWO HUNDRED
THOUSAND ($200,000.00) per occurrence, and with tail coverage extending for at least five (5) years
after the expiration or termination of the term of this Agreement. Said insurance shall protect PRS and its
Affiliates, and the City from any claim for damages for bodily injury, including accidental death, as well
as from any claim for property damage, including claims for injury, damage and remediation of alleged
environmental contamination which may arise from operations performed pursuant to this Agreement,
whether such operations are by Cold Creek itself, or by its agents, employees or subcontractors. Copies of
the policies or endorsements evidencing the above - required insurance coverage shall be filed with PRS.
Endorsements are required to be made a part of all of the following insurance policies required by this
Section:
8.1.1 "PRS and its Affiliates, the City, and its and their employees, agents, and officers, acting
within the scope of their employment related to the services provided under this
Agreement, are hereby added as insured's as respects liability arising out of activities
performed by or on behalf of Cold Creek."
8.1.2 "Thirty (30) days prior written notice by certified mail, return receipt requested, shall be
given to PRS and the City in the event of suspension, cancellation, reduction in coverage
or in limits or non - renewal of this policy for whatever reason. Such notice shall be sent to
PRS and the City."
8.2 Cold Creek, and its successors and assigns, agree to indemnify, hold harmless and defend PRS and
its Affiliates, the City, and its and their officers, agents and employees from and against any and all
losses, damages, costs, charges, expenses, suits, actions, claims for injury, damage, judgments, liabilities,
and attorney fees directly or indirectly, resulting from the delivery and processing of all Mixed Organic
Waste, Additional Mixed Organic Waste, Agricultural Materials, Food Materials, Wood Waste and Green
Material delivered to the Site by PRS or its Affiliates, arising out of /or related to Cold Creek's leasehold,
operation, remediation, closure or post closure of the Site.
8.3 Comprehensive General Liability -PRS. PRS shall name Cold Creek as an additional insured under
its General Liability and Pollution insurance policy, which PRS will keep in force during the Term of the
Agreement, to the extent of coverage and limits as described in Section 8.1 above.
8.4 PRS, and its successors and assigns, agree to indemnify, hold harmless and defend Cold Creek, and
its officers, agents and employees from and against any and all losses, damages, costs, charges, expenses,
8
suits, actions, claims for injury, damage, judgments, liabilities, and attorney fees directly or indirectly,
resulting from all Mixed Organic Waste, Additional Mixed Organic Waste, Agricultural Materials, Food
Materials, Wood Waste and Green Material delivered to the Site by PRS or its Affiliates.
9. DEFAULT
9.1 Each of the following shall constitute an event of default ( "Event of Default ") hereunder:
9.1.1 A party to this Agreement has: (1) failed to comply with one or more of the terms or
conditions of this Agreement, or future amendment(s) to this Agreement, or (2) failed to comply
with any material federal, state or local laws, ordinances, rules or regulations pertaining to the
activity, or (3) when the Site's activity has been determined to be a nuisance or detrimental to the
public health, safety or welfare by a body of competent authority.
9.1.2 If Cold Creek does not perform the services for a period in excess of seven (7) days, this
Agreement may be terminated by PRS. Cold Creek shall not be in default of this Agreement if
Cold Creek commences such action required to cure the particular breach within seven (7)
calendar days after such notice, and it continues such performance diligently until completed.
9.1.3 If PRS does not perform the services for a period in excess of seven (7) days, this
Agreement may be terminated by Cold Creek. PRS shall not be in default of this Agreement if
PRS commences such action required to cure the particular breach within seven (7) calendar days
after such notice, and it continues such performance diligently until completed.
9.1.4 If Cold Creek files a voluntary petition for debt relief under any applicable bankruptcy,
insolvency, debtor relief, or other similar law now or hereafter in effect, or shall consent to the
appointment of or taking of possession by a receiver, liquidator, assignee (other than as a part of a
transfer of equipment no longer useful to Cold Creek or necessary for this Agreement), trustee
(other than as security for an obligation under a deed of trust), custodian, sequestrator (or similar
official) of Cold Creek for any part of Cold Creek's operating assets or any substantial part of
Cold Creek's property, or shall make any general assignment for the benefit of Cold Creek's
creditors, or shall fail generally to pay Cold Creek's debts as they become due or shall take any
action in furtherance of any of the foregoing;
9.1.5 A court having jurisdiction shall enter a decree or order for relief in respect of Cold Creek,
in any involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law
now or hereafter in effect, or Cold Creek shall consent to or shall fail to oppose any such
proceeding, or any such court shall enter a decree or order appointing a receiver, liquidator,
9
assignee, custodian, trustee, sequestrator (or similar official) of Cold Creek or for any part of
Cold Creek's operating equipment or assets, or orders the winding up or liquidation of the affairs
of Cold Creek;
9.1.6 If PRS files a voluntary petition for debt relief under any applicable bankruptcy,
insolvency, debtor relief, or other similar law now or hereafter in effect, or shall consent to the
appointment of or taking of possession by a receiver, liquidator, assignee, trustee (other than as
security for an obligation under a deed of trust), custodian, sequestrator (or similar official) of
PRS for any part of PRS's operating assets or any substantial part of PRS's property, or shall
make any general assignment for the benefit of PRS's creditors, or shall fail generally to pay
PRS's debts as they become due or shall take any action in furtherance of any of the foregoing;
9.1.7 A court having jurisdiction shall enter a decree or order for relief in respect of PRS, in any
involuntary case brought under any bankruptcy, insolvency, debtor relief, or similar law now or
hereafter in effect, or PRS shall consent to or shall fail to oppose any such proceeding, or any
such court shall enter a decree or order appointing a receiver, liquidator, assignee, custodian,
trustee, sequestrator (or similar official) of PRS or for any part of PRS's operating equipment or
assets, or orders the winding up or liquidation of the affairs of PRS;
9.1.8 A seizure or attachment (other than a prejudgment attachment) of, or levy affecting
possession on the operating equipment of a party to this Agreement, including without limitation,
vehicles, maintenance facilities, office facilities, or any party thereof of such proportion as to
substantially impair the party's ability to perform under this Agreement and which cannot be
released, bonded, or otherwise lifted within 48 hours excluding weekends and holidays.
9.2 Upon an "Event of Default" by either party, the non - defaulting party may suspend, amend, or
terminate this Agreement.
10. THIRD PARTY BENEFICIARIES
10.1 The Parties acknowledge and declare that the City is and will be a Third Party beneficiary of this
Agreement, included without limitation, with the same rights as the Parties to enforce the terms of this
Agreement.
10.2 The Parties agree that PRS's rights under this Agreement can be assigned or assumed by the City,
at the City's sole option, without per ton fee adjustments to the City or its assignee, upon an Event of
Default by PRS. Upon such an Event of Default, any payments then due to Cold Creek by PRS shall
10
continue to be the obligation of PRS and such payment obligation shall not be transferred to the City upon
the assumption or assignment of such rights.
11. ASSIGNMENT
11.1 Except as provided in Sections 10.2 and 11.2, neither Party shall sell, assign or otherwise transfer, by
operation of law or otherwise, its rights or obligations under this Agreement, in whole or in part, without
the prior written consent of the other, which shall not be unreasonably withheld or delayed.
11.2 Consent is not required for an assignment of this Agreement in connection with a sale or other
disposition of substantially all the assets of the assigning Party's business.
11.3 This Agreement shall be binding on and inure to the benefit of the successors and permitted
assigns of each of the Parties hereto.
12. INDEPENDENT CONTRACTOR
Each Party is and shall perform this Agreement as an independent contractor and, as such, shall
have and maintain complete control over all of its employees, agents and their conduct of operations.
Neither Party, nor anyone employed by it shall be, represent, act, purport to act or be deemed to be the
agent, representative or employee of the other Party.
13. MUTUAL RELEASE
13.1 Each Party, on behalf of itself and its affiliates (including, in the case of PRS, its Affiliates),
officers, directors, insurers, attorneys, employees, agents, predecessors, successors and assigns, hereby
releases and agrees to hold harmless the other Party and the other Party's affiliates (including, in the case
of PRS, its Affiliates), officers, directors, insurers, attorneys, employees, agents, predecessors, successors
and assigns from and against any and all claims, damages, actions, causes of action, costs and expenses
(including attorney's fees), at law or in equity, known or unknown, of every type whatsoever existing as
of, or hereafter arising out of or in connection with events through the Effective Date, whether resulting
from the delivery by PRS and its Affiliates of materials to the Site under the conditions stated in such
Affiliates' agreements with the City or otherwise, excluding any claim for breach of the release in this
Section 13.
11
13.2 Each Party acknowledges Section 1542 of the California Civil Code, which provides as follows:
"A general release does not extend to claims which the creditor does not know or suspect to exist
in his or her favor at the time of executing the release, which if known by him or her must have
materially affected his or her settlement with the debtor."
and hereby waives any rights or benefits such Party may have under such Section or any other similar
provision of law to the maximum extent permitted by law.
13.3 Each Party hereby represents and warrants that such Party is the sole owner of, and has not
assigned to any other person or entity all or any part of, any of the claims released by such Party pursuant
to the release in this Section 13. Each Party further agrees never to bring any action or proceeding on any
claim that such Party has released hereunder.
14. ENTIRE AGREEMENT
This Agreement represents the entire understanding and agreement between the Parties hereto
relating to the processing and disposal of the materials described herein and supersedes any and all prior
agreements, whether written or oral, that may exist between the Parties regarding same and supersedes any
and all terms and conditions which may exist in any form with any party regarding PRS's disposal of such
materials at the Site.
15. SEVERABILITY
If any section, subsection, subdivision, paragraph, sentence, clause or phrase of this Agreement or
any part thereof is, for any reason, held to be illegal, such decision shall not affect the validity of the
remaining portions of this Agreement or any part thereof, except as specifically set forth herein.
16. NOTICES
All Notices by the Parties will be given at the address listed below after the signature line. Such
addresses may be changed by advising the other Party in writing, using either USPS Certified Mail, or
any national delivery service that provides proof of service.
17. GENERAL PROVISIONS
Either Party shall be relieved of its obligations hereunder for the duration of a Force Majeure or a
Change in Law, if, as a result of a Force Majeure or a Change in Law, such party is unable to perform. A
12
Force Majeure shall include only events outside of the Party's control and which are either Acts of God or
the unforeseeable.
No waiver, alteration, or modification of any of the provisions of this Agreement shall be binding
unless in writing and signed by a duly authorized representative of both Parties to this Agreement.
The Parties stipulate and agree that any litigation relating to the enforcement or interpretation of
this Agreement, arising out of either Parties' performance or relating in any way to the work, shall be
brought in Superior Court in Mendocino County.
In the event legal action is instituted by either Party to enforce this Agreement, the prevailing
party shall be entitled to reasonable attorney fees and actual costs in connection with such action.
This Agreement and amendments and supplemental agreements hereto may be executed
in counterparts.
IN WITNESS WHEREOF, the parties hereto, by their duty authorized representatives, have
affixed their hands on the day and year indicated:
Date: 47/J%5 /f��
PACIFIC RECYCLING SOLUTIONS, INC.
C
David M. Carroll, President
Pacific Recycling Solutions, Inc.
3515 Taylor Drive
Ukiah, California 95482
COLD CREEK COMPOST, INC.
in MilepK, President
Cold Creek Compost, Inc.
6000 Potter Valley Road
Ukiah, California 95482
13
EXHIBIT B
RESERVED
EXHIBIT C
LEGAL DESCRIPTION OF TRANSFER STATION SITE
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 D
RATE SCHEDULE
Solid Wastes Systems, Inc.
Transfer Station Rate Schedule
Effective Date January, 2012
Item
MSW - Ton
MSW - Yard
Minimum Gate Fee - MSW
Per Can Rate - 32 gallon
Green Waste - Ton
Green Waste - Yard
Minimum Gate Fee - Green Waste
Mixed Load - Additional Charge
Appliances
Oil Filters - Small
Oil Filters - Medium
Oil Filters - Large
Concrete - Ton
Dirt - Ton
Sheetrock - Clean
Sheetrock - Dirty
Tires - Bicycle
Tires - Motorcycle
Tires - Passenger Car
Tires - Passenger Car with Rim
Tires - Truck
Tires - Truck with Rim
Tires - Tractor
E -Waste - Computers
E -Waste - Monitors
Scrap Metal
Up to 3 cans
After 3 cans
* Rates are rounded to the nearest five cents
Calculated NEW
2012 2012
2011 FA Rate
Rate Rate Rounded *
$74.50 $78.70 $78.70
$17.50 $18.50 $18.50
$9.00 $9.25 $9.25
$3.00 $3.08 $3.10
$38.40 $40.79 $40.80
$5.60 $5.95 $5.95
$5.50 $5.84 $5.85
$17.20 $18.27 $18.25
$15.30 $16.25 $10.00
$0.35 $0.37 $0.35
$0.60 $0.64 $0.65
$0.85 $0.90 $0.90
$60.22 $63.97 $63.95
$60.22 $63.97 $63.95
$38.40 $40.79 $40.80
$60.22 $63.97 $63.95
$1.10 $1.17 $1.15
$2.10 $2.23 $2.25
$3.10 $3.29 $3.30
$4.90 $5.20 $5.20
$6.70 $7.12 $7.10
$9.00 $9.56 $9.55
40.00 - 300.00 42.49 - 318.66 42.50 - 318.65
No Charge No Charge No Charge
No Charge No Charge No Charge
No Charge No Charge No Charge
EXHIBIT E
TRANSFER STATION RATE CALCULATION
EXHIBIT E
Solid Wastes Systems Transfer Station Components
Annual Adjustment Calculations
Effective Date January, 2012
COSTS Subiect to adjustment
Operating Costs subject to CPI
Fuel
Disposal - Garbage
Disposal - Processing
Construction /Lease $2.36 /ton
Construction /Lease $10 /ton
City Landfill Fee $2 /ton
MSWMA Fee $5 /ton
Cost
$1,309,108.96
$212,736.94
$698,641.65
$289,414.82
$73,638.68
$312,028.30
$11,700.27
$157,563.05
Total COSTS Subject to adjustment $3,064,832.67
Index
CPI
Fuel
Contract rate
Negotiated
Contract rate
Contract rate
Set by City
Set by City
Adjustments
Reclass fuel for destination change - $60,203.47
Reclass Disposal for destination change $99,556.44
Adjustment to base year for destination changes, before Indicies
Total Adjustments
Adjusted Cost
Revenue base
2010 Revenue
Fuel
Landfill Destination Change
Disposal - garbage
Disposal - processing
CPI adjustment
Construction /Lease $2.36 /ton
Revenue change
Adjusted revenue
Revenue Increase
39,352.97
$3,104,185.64
Projected
$2,259,178.07
$54,637.49
($60,203.47)
$99,556.44
$0.00
$46,604.28
$0.00
$140,594.74
$2,399,772.81
$140,594.74
Current
Pass Through
Pass Through
Pass Through
Pass Through
Pass Through
Pass Through
Increase
Allowed
$ 46,604.28
$ 76,202.37
$122,806.65
$ (21,564.88)
Included in adjustment
$ 39,352.97
Increase
17,788.09
$140,594.74
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
o.00%
$2.00
$0.00
$2.00
'EFFECTIVE RATE INCREASE PERCENT
I
$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
217.965 225.722
CPI % Change
Index Increase (Decrease)
7.757
3.56%
Landfill Fee Jan to Jan (Eastlake compared to Potrero Hills)
January 2011 January 2012
$ 33.48 $ 38.25
Increase (Decrease)
4.770
Disposal - Garbage Cost % Change 14.25%
Disposal Processing Fee Jan to Jan
January 2011 January 2012
$ 30.00 $ 30.00
Increase (Decrease)
$ 0.00
Disposal - Green Waste Cost % Change 0.00%
Transfer Station Tonnage at gate, Year to Year
January 2011 January 2012
31,202.83 31,202.83
Increase (Decrease)
0.00
Tonnage % Change 0.00%
City Landfill Fee June to June
January 2011 January 2012
$ 2.00 $ 2.00
Increase (Decrease)
$ 0.00
City Landfill Fee % Change 0.00%
MSWMA Fee June to June
January 2011 January 2012
$ 5.00 $ 5.00
Increase (Decrease)
$ 0.00
MSWMA Fee % Change 0.00%
Page 2of5
SWS Transfer Station Agreement
Cost /Rev
Adjustment
Period
EXHIBIT E
Adjustment
Method
Index
Used
Cost
1,2,4
Construction / Lease
$2.36 / MSW ton
Annual
100% of index change
CPI - US Cities CPI -U
Base Rate as Adjusted
3
Construction / Lease
$10.00 / MSW ton
Time to Time
Per City
N/A
Pass Through
1,2
Fuel
Annual
100% of index change
eia Ca #2 Diesel Retail all sellers
Base Rate as Adjusted
Disposal - Landfill
Time to Time
Per Landfill Agreement
N/A
_
Pass Through
9
Disposal - Processing
Time to Time
Per Processor Agreements
N/A
Pass Through
1,2
Operating Costs
Annual
100% of index change
CPI - US Cities CPI -U
Base Rate as Adjusted
Per Ton Contractor Gate
4
City Franchise Fee
$2.00
Time to Time
Per City
N/A
Pass Through
4
MSWMA Fee
$5.00
Time to Time
Per MSWMA
N/A
Pass Through
6,7,8
TOTAL GATE FEE
Notes
1 Agreement should state mutually agreed upon Index if Index becomes unavailable
2 June to June change
3 Lease rate replaces construction rate January 1, 2017 - $10.00 per ton MSW
4 Part of Construction rate left in gate rate to cover triple net lease costs (adjusts by CPI) starting January 1, 2017. i.e.. Prop tax, Insurance & R &M.
4 Agreement should state initial rate, subject to change by City / MSWMA action
5 Exhibit of calculation to be made part of agreement
6 SWS requests new rate by Aug 15, City approves by Oct 15, Pub Notice given by Nov 1, Adjusted Rate goes into effect following January 1.
7 Per Yard Gate Fee shall be equal to 24.05% of per ton contractor gate fee PLUS per ton City & MSWMA fees divided by 5.54 (MSWMA yards / ton)
8 Rate change is calculated as follows: % annual adjustment X actual prior year (July to June) component cost = new funds needed / total gate revenue
= % adjustment to gate rate.
9 Processing contract mutually agreed to with city - i.e. PRS grinding yard rate charged SWS for greenwaste.
City can direct SWS to implement other programs, provided the costs of such programs are covered through increased rates.
Page 3 of 5
EXHIBIT E
Transfer Station Agreement
Calculation to adjust fuel costs for change in landfill destination at January, 2012
Base year Adjusted base
calculation year calculation
Fuel Cost in Base year $ 212,736.94 $ 212,736.94
Miles per roundtrip 251 129 - 122.00
MPG 6 6
Gallons of fuel per trip 41.83 21.50 -20.33
Fuel cost per galllon during base year $ 3.102 $ 3.102
Fuel cost per trip $ 129.76 $ 66.69 $ (63.07)
Tons hauled to landfill 21,000 21,000
Tons per truck loan 22 22
Truck trips per year 954.55 954.55
Fuel Index Change 5463749.00% 5463749.00%
Landfill trip fuel cost
Adjustment to base year landfill trip fuel costs
Non - Landfill trip fuel cost
Adjusted Base year fuel cost
$ 123,862.41
$ 88,874.53
63,658.94
$ (60,203.47)
88,874.53
$152,533.47
EXHIBIT E
Transfer Station Agreement
Page 5 of 5
Fuel Revenue Adjustment Worksheet, based on Fuel Index change, June to June
Fuel Exhibit #2
Base Year Fuel Index and Cost 3.102
$152,533.471 As negotiated
Index
Change - New
vs. Base Year
1
Estimated Fuel index adjustment at June 2011 4.213
35.82%
$54,637.49
Plus: Base Year Cost X Index Change
Revenue for 2012
$54,637.49
$0.00
Less: Prior Fuel Cost applied to rate
adjustment January rate revision > 1
$207,170.961
Fuel Cost Allowed Year 1
Annual adjustment based on Fuel Index change, year to year (using example fuel index changes)
2
Estimated Fuel index adjustment at June 2012 4.630
49.26%
$75,137.99
Plus: Base Year Cost X Index Change
Revenue for
$20,500.50
$54,637.49
Less: Prior Fuel Cost applied to rate
adjustment January 2013 rate revision >I
$227,671.461
Fuel Cost Allowed Year 2
3
Estimated Fuel index adjustment at June 2013 3.940
27.01%
$41,199.29
Plus: Base Year Cost X Index Change
Revenue for January 2014
$75,137.99
Less: Prior Fuel Cost applied to rate
adjustment rate revision >I
$193,732.761
Fuel Cost Allowed Year 3
4
Estimated Fuel index adjustment at June 2014 4.330
39.59%
$60,388.00
Plus: Base Year Cost X Index Change
Revenue adjustment for January 2015 rate revision I
$19,188.71
$41,199.29
Less: Prior Fuel Cost applied to rate
>
$212,921.471
Fuel Cost Allowed Year 4
5
Estimated Fuel index adjustment at June 2015 5.410 74.40%
$113,484.90
Plus: Base Year Cost X Index Change
Revenue adjustment for January 2016 rate revision >I $53,096.90
$60,388.00
Less: Prior Fuel Cost applied to rate
$266,018.371
Fuel Cost Allowed Year 5
6
Estimated Fuel index adjustment at June 20 4.870
57.00%
$86,944.08
Plus: Base Year Cost X Index Change
Revenue for January 2017
' L
$113,484.90
Less: Prior Fuel Cost applied to rate
adjustment rate revision >
$239,477.55
Fuel Cost Allowed Year 6
Page 5 of 5
EXHIBIT F
TRANSFER STATION LEASE
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 1st 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 November _, 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 shall 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. Assignment 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.
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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
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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 Fees. 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
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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:
5
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.
MAP OF SOLID WASTE REFUSE COLLECTION
AREA
SOLID WASTE REFUSE COLLECTION AREAS
Mendocino County
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