HomeMy WebLinkAboutSolid Wastes Systems, Inc. 2021-08-18 Waste Collection CROSS REF COU No. 2122-088
ASSIGNMENT AND CONSENT
WASTE COLLECTION CONTRACT
THIS ASSIGNMENT AND CONSENT(the "Agreement")is made this 20th day of August,
2021,by and between the City of Ukiah, a municipal corporation("City"), C&S Group Holdings,Inc., a
Nevada corporation("Assignor"),Waste Connections US,Inc., a Delaware corporation("Waste
Connections"), and Ukiah Waste Solutions,Inc., a California corporation("UWS"), collectively, "the
Parties,"with reference to the following:
A. City and UWS are parties to that certain Second Amended and Restated Waste Collection
Agreement dated December 20,2017 (the "Contract").
B. Assignor owns all the outstanding shares of capital stock in UWS (the"UWS Shares").
C. Assignor,Waste Connections and other parties have entered a Securities Purchase
Agreement, dated July 7, 2021 ("Purchase Agreement").
D. At a closing(the "Closing")to be held on or about September 1,2021,in accordance with
the Purchase Agreement,Assignor will sell all the shares in C&S Group Holdings, Inc ("C&S Shares")to
Waste Connections,which will result in a change in majority control of UWS from the current owners of
Assignor.
E. Under Section 11.1 of the Contract:
"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."
F. The Parties wish to document the terms and conditions upon which the City relies in
consenting to the sale of all the capital stock in Assignor to Waste Connections(the"'Assignment"), and
to confirm the status of the Contract, on the terms herein.
NOW, THEREFORE, in consideration of the foregoing recitals and the mutual covenants
hereinafter set forth and other consideration the receipt and adequacy of which are hereby acknowledged,
the Parties hereby agree as follows:
1. Assignment. From and after the Closing, UWS shall continue to possess all of its right,
title and interest in the Contract. UWS hereby agrees to keep,perform, fulfill and be bound by all of the
terms, covenants and conditions required to be kept,performed, and/or fulfilled under the Contract from
and after the Closing.
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2. As a condition of the City's approval of the Assignment,Waste Connections,UWS and
City agree as follows.
2.1 Waste Connections' Acquisition Costs.Waste Connections agrees that amounts it
pays to Assignor under the Purchase Agreement or any other costs incurred by Assignor,Waste
Connections, SWS,UWS,Pacific Recycling Solutions("PRS")or Mendocino Leasing Company
in acquiring or selling stock or real property under the Purchase Agreement shall not, in
calculating rates or adjustments to rates,be considered as an expense or otherwise affect rates
charged by UWS for performing waste collection services in the City pursuant to the Contract.
2.2 Implementation of Sections 10.2.2 in the Contract.
a. By no later than thirty calendar days following the Closing,Waste Connections
shall provide City with an inventory of trucks and equipment, including rolling stock,
bins and boxes,used by UWS in performing under the Contract(the"Waste Connections
Equipment").
b. In the event the City terminates the Contract based on a Material Default as
defined in Section 10.2.2 and elects to assume possession of all or some of the Waste
Connections Equipment in accordance with said section,Waste Connections shall compel
any leasing company owned by Assignor or Waste Connections leasing Waste
Connections Equipment to UWS to lease that equipment to City for its use as provided in
said section. The leasing company shall offer to assign the Waste Connections Equipment
leases to the City,provided that the rent charged under the lease shall not exceed its fair
rental value.UWS agrees that if it leases any Waste Collection Equipment in the future
from a lessor not owned or controlled by Waste Connections,the lease shall provide that
it is assignable to the City.Any dispute regarding the lease of Waste Connections
Equipment shall not delay or prevent the City from assuming immediate possession and
use thereof as provided in Section 10.2.2.
2.3 City recourse to address concerns. In addition to the City's rights and remedies under
the Contract, if the City is dissatisfied with the response of UWS management to
concerns or issues raised by the City,the City shall have initial recourse to Waste
Connections' local manager(currently Glen Long) living in Santa Rosa and working in
Ukiah following Closing: Telephone: 760-934-2201x64100(Mammoth Office)or 760-
872-656lx63004(Bishop Office); Email: G1en.Long@WasteConnections.com; Street
Address: 3515 Taylor Dr.,Ukiah, CA 95482. If he or his successor fails to resolve the
dispute or address the concern to the City's satisfaction,the City may refer the matter to
the Waste Connections' Division Vice President, currently Sue VanDelinder: Telephone:
916-801-0200. Email: Susan.VanDelinder@wasteconnections.com; Street Address: 4100
Throwita Way,Placerville, CA 95667 or her successor. At the City's option it may
include Ron Mittelstaedt,the Chairman of Waste Connections' Board of Directors:
Telephone: 916-931-0028;Email: Ronald.Mittelstaedt&WasteConnections.com or his
successor. Waste Connections shall use its good faith best efforts to resolve the City's
concern to the City's satisfaction. Waste Connections shall provide written notice to City
in accordance with Section 15 in the Contract whenever names,job titles or contact
information for the above positions change.
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3. Consent to Assignment. City hereby consents to the Assignment.
4. Contract in Effect. The Contract is in full force and effect and, except as provided herein,
has not been modified, altered or amended in any respect and contains the entire agreement between City
and UWS with respect to the subject matter thereof.
5. No Default
As used in this Agreement"to its or their knowledge"means actually known without any duty of
inquiry or any investigation.
(a) UWS warrants and represents that it is not,nor,to its knowledge, is the City in any respect in
default in the performance of the terms and provisions of the Contract,nor,to its knowledge, is there any
fact or condition which,with notice or lapse of time or both,will become such a default.
(b) City warrants and represents that it is not in default in the performance of the terms and
provisions of the Contract,nor to its knowledge, is there any fact or condition which,with notice or lapse
of time or both,will become such a default. Further,the City states that to its knowledge UWS is not in
default in the performance of the terms and conditions of the Contract nor to its knowledge, is there any
fact or condition which,with notice or lapse of time or both,will become such a default.
6. No Offsets.Neither UWS nor City has any claim, charge, defense or offset under the
Contract or otherwise, against charges due or to become due thereunder,nor has either such Party asserted
any such claim,charge,defense or offset.
7. Governing Law. This Agreement shall be governed by, and interpreted and enforced
under,the laws of the State of California,without giving effect to conflict of laws principles.
8. Counterparts. This Agreement may be signed in three(3) or more counterparts, each of
which shall be deemed an original but when taken together shall constitute one and the same instrument.
Counterparts may be sent for signature by email. Signatures on PDF copies thereof shall be deemed
original signatures for all purposes and such PDF copies shall be admissible as evidence of the
agreement in any and all administrative or judicial proceedings.
9. No Third-Party Beneficiaries. The Parties intend this Agreement for the sole benefit of
the Parties and do not intend to confer any rights under this Agreement or any right to enforce this
Agreement on any person or entity who is not one of the Parties.
IN WITNESS WHEREOF,the Parties have executed this Agreement effective as of the day and
year first above written.
CITY OF UKIAH
Sage Sangiacomo
Its: City Manager
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C&S GROUP HOLDINGS,INC.
By: 0*4ihG &-44
David M. Carroll
Its: President
WASTE CONNECTIONS US,INC.
By:Y
Worthing F. Jackman
Its: President and Chief Executive Officer
SOLID WASTES SYSTEMS,INC.
By: awz
nmrla�_
David M. Carroll
Its: President
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05119\638\9032135.v2
C&S-WCU-UWS-SWS - Waste Collection
2122-088 - Waste Collection Contract for
Signature
Final Audit Report 2021-09-01
Created: 2021-09-01
By: Kristine Lawler(klawler@cityofukiah.com)
Status: Signed
Transaction ID: CBJCHBCAABAAEAU-K8Lo6Ol5WsN-Gg2NzxbI15L-akk8
"C&S-WCU-UWS-SWS - Waste Collection 2122-088 - Waste Co
Ilection Contract for Signature" History
Document created by Kristine Lawler(klawler@cityofukiah.com)
2021-09-01 -3:49:01 PM GMT-IP address: 12.12.163.2
Document emailed to Sage Sangiacomo (ssangiacomo@cityofukiah.com)for signature
2021-09-01 -3:49:26 PM GMT
Email viewed by Sage Sangiacomo (ssangiacomo@cityofukiah.com)
2021-09-01 -6:05:39 PM GMT-IP address: 12.12.163.2
Document e-signed by Sage Sangiacomo (ssangiacomo@cityofukiah.com)
Signature Date:2021-09-01 -6:05:57 PM GMT-Time Source:server-IP address: 12.12.163.2
Q Agreement completed.
2021-09-01 -6:05:57 PM GMT
0 Adoin Sign