HomeMy WebLinkAboutSolid Waste Systems, Inc. 2011-12-12; Addendum 1 2016-09-21C,& -,,Vo Id'al I --A!
ADDENDUM ONE TO TRANSFER STATION AGREEMENT
This Addendum One to Transfer Station Agreement (the "Addendum") is made between
the City of Ukiah, a municipal corporation (hereinafter "City"), Solid Wastes Systems, Inc., a
California corporation (hereinafter "Contractor"), and Yulupa Investments, LLC, a California
limited liability company ("Owner"), effective as of September 21, 2016, with reference to the
following:
A. City, Contractor and Owner are parties to that certain Second Amended and
Restated Transfer Station Agreement dated October 7, 2015 (the "Transfer Station Agreement"),
and wish to amend the Transfer Station Agreement on the terms herein.
NOW, THEREFORE, in and for the mutual covenants herein and other good and
valuable consideration, the parties hereby agree as follows:
1. Section 3 of the Transfer Station Agreement is amended to read as follows:
4-3. 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 sixteen (16) years and three (3) months
through December 31, 2031, 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 (the "Option") commencing January 1, 2032 and ending
December 31, 2036. Contractor's exercise of the Option is subject to the following
conditions: (a) notice of Contractor's exercise of the Option must be given at least
twelve (12) months prior to December 31, 2031; (b) Contractor must give City
simultaneous notice that it will exercise its option to extend the term of the Solid Waste
Disposal Agreement with Potrero Hills Landfill that became effective on January 1, 2017
(the "PHL Agreement") in accordance with the terms of the PHL Agreement; (c) City
must approve Contractor's exercise of the Option and of its option to extend the term of
the PHL Agreement; and (d) Contractor must, in fact, exercise its option to extend the
term of the PHL Agreement and PHL must approve the exercise of the Option in
accordance with the terms of the PHL Agreement. The Option may not be exercised
unless Contractor is in material compliance with the terms of this Agreement and the
Transfer Station Lease attached as Exhibit F hereto at the time of exercise and on
December 31, 2031. 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
Transfer Station Lease and the Collection Agreement."
2. Exhibit F to the Transfer Station Agreement is replaced with the copy of Exhibit F
attached to this Addendum.
3. Except as expressly amended by this Addendum, the terms and conditions of the
Transfer Station Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the date first
set forth above.
Solid Wastes Systems, Inc.
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President
Yulupa Investments, LLC
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President
City of Ukiah
By: L' —
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ATTEST:
ity Clerk w
APPROVED AS TO FORM:
Ci orney
2
TRANSFER STATION LEASE
THIS TRANSFER STATION LEASE (the "Lease") is made between the City of Ukiah, a
municipal corporation ("Lessor"), and Solid Wastes Systems, Inc., a California corporation ("Lessee"), as
of the later of 1 st day of January, 2017 or the date of the closing of Lessor's Purchase of the Premises
from Lessee, with reference to the following:
A. Pursuant to that certain Second Amended and Restated Transfer Station
Agreement between Lessor, Lessee and Yulupa Investments, LLC ("Yulupa")
dated October 7, 2015 (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:
] . 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 September 1, 2016 approximately 35,000 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 15` (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 30`x' 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
rent on one hundred twenty (120) days' prior written notice to Lessee, provided that such increase, when
passed through to the Transfer Station Rates, does not cause 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 (except that Yulupa has owned the Premises since early 2008). As of
the Commencement Date, Lessee accepts the building, improvements and any equipment on or in the
EXHIBIT F
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.
H. 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.
EXHIBIT F
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.
EXHIBIT F
1�
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
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.
Nothing contained herein shall be deemed to limit any other rights or remedies which Lessor may
have.
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 on 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
EXHIBIT F
and certifying that this Lease, as so modified, is in full force and effect), the amount of any security
deposit, and the date to which the rent and other charges are paid in advance, if any, and (ii)
acknowledging that there are not, to Lessee's knowledge, any uncured defaults on the part of Lessor
hereunder, or specifying such defaults if any are claimed. Any such statement may be conclusively relied
upon by any prospective purchaser or encumbrancer to the Premises.
(b) At Lessor's option, Lessee's failure to deliver such statement within such time
shall be a material breach of this Lease or shall be conclusive upon Lessee (i) that this Lease is in full
force and effect, without modification except as may be represented by Lessor, (ii) that there are no
uncured defaults in Lessor's performance, and (iii) that not more than one month's rent has been paid in
advance or such failure may be considered by Lessor as a default by Lessee under this Lease.
(c) If Lessor desires to finance, refinance or sell the Premises, or any part thereof,
Lessee hereby agrees to deliver to any lender or purchaser designated by Lessor such financial statements
of Lessee as may be reasonably required by such lender or purchaser. Such statements shall include the
past three years' financial statements of Lessee. All such financial statements shall be received by Lessor
and such lender or purchaser in confidence and shall be used only for the purposes herein set forth.
28. Hazardous Materials. Lessee shall indemnify and hold harmless Lessor with respect to
the discharge by Lessee or its agents of any toxic or hazardous materials on or in the Premises during the
term hereof.
29. Entire Agreement. The foregoing (including, where applicable, the Agreement)
constitutes the entire agreement between the parties with respect to the Premises and may be modified
only by a writing signed by both parties. Capitalized terms used, but not defined, herein shall have the
respective meanings given them in the Agreement.
30. Governing Law; Forum. This Lease shall be construed in accordance with the internal
laws of the State of California (irrespective of choice of law principles). Any dispute hereunder shall be
resolved in the state courts in Mendocino County and state appellate courts. The parties waive any right
to a jury trial.
IN WITNESS WHEREOF, the parties have executed this Lease as of the date first above written.
CITY OF UKIAH (LESSOR) SOLID WASTES SYSTEMS, INC. (LESSEE)
Title:
M
Title:
EXHIBIT F
