HomeMy WebLinkAbout2007-10-29 Packet - SpecialCITY OF UKIAH
CITY COUNCIL AGENDA
Special Adjourned Meeting
CIVIC CENTER COUNCIL CHAMBERS
300 Seminary Avenue
Ukiah, CA 95482
October 29, 2007
4:30 p.m.
4:30 PM
1. ROLL CALL
2. UNFINISHED BUSINESS
a. Discussion and Possible Adoption of Resolution Approving the Following
Agreements: (1) Assignment and Consent [Waste Collection Contract) and
(2) Consent to Sale [Transfer Station Contract]
b. Adoption of Resolution Extending Partial Suspension of the Enforcement of
Sewer Lateral Inspection and Repair Ordinance
3. ADJOURNMENT
Please be advised that the City needs to be notified 72 hours in advance of a meeting if any specific
accommodations or interpreter services are needed in order for you to attend. The City complies with ADA
requirements and will attempt to reasonably accommodate individuals with disabilities upon request.
I hereby certify under penalty of perjury under the laws of the State of California that the foregoing agenda was
posted on the bulletin board at the main entrance of the City of Ukiah City Hall, located at 300 Seminary Avenue,
Ukiah, California, not less than 72 hours prior to the meeting set forth on this agenda.
Dated this 26th day of October, 2007.
Linda C. Brown, City Clerk
ITEM NO: 2a
MEETING DATE: October 29, 2007
AGENDA SUMMARY REPORT
SPECIAL MEETING
SUBJECT: DISCUSSION AND POSSIBLE ADOPTION OF RESOLUTION
APPROVING THE FOLLOWING AGREEMENTS: (1) ASSIGNMENT AND
CONSENT [WASTE COLLECTION CONTRACT] AND (2) CONSENT TO
SALE [TRANSFER STATION CONTRACT]
SUMMARY: The City Council formed a subcommittee, consisting of Vice Mayor Doug
Crane and Council member John McCowen to review a request from Solid Waste
Systems, Inc. (SWS), the City's franchised solid waste hauler and the operator of a solid
waste transfer station on Taylor Drive (the "Transfer Station") serving the City and the
unincorporated areas in the Ukiah Valley. SWS requested the City Council to approve a
sale of the stock of SWS to David Carroll, John Shea and Bruce McCracken (the
"Buyers"), and an assignment of the waste collection franchise agreement from SWS to
a newly formed company, Ukiah Waste Solutions, Inc. (UWS), also owned by the
Buyers. (See Attachment 1- Agenda Summary Report for the October 17, 2007, City
Council meeting, which provides more information about the proposal from the Buyers.)
Continued on page 2
RECOMMENDED ACTION: Adopt resolution
ALTERNATIVE COUNCIL POLICY OPTIONS: Determine not to approve sale and
assignment or seek alternative conditions
Citizens Advised: N/A
Requested by: Solid Waste Systems, Inc.
Prepared by: David J. Rapport, City Attorney
Coordinated with: Vice Mayor Doug Crane, Council member John McCowen,
Emmett Jones, CPA, Gordon Elton and Candace Horsley,
City Manager
Attachments: Attachment 1-ASR re: sale and assignment for 10/17/07
City Council meeting
Attachment 2- Assignment and Consent [Waste Collection
Contract]
Attachment 3- Consent to Sale [Transfer Station Contract]
Attachment 4- Resolution approving agreements
Approved:
Can ace Horsley, City Mana er
Agenda Summary Report Page 2
October 20, 2007, Special City Council meeting
The City Council's consent is required under the waste collection franchise agreement
("Waste Collection Contract") and the agreement for the operation of the Transfer
Station ("Transfer Station Agreement"). The City retained Emmett Jones, CPA, as a
consultant to the subcommittee and the City Council. The City Attorney and the City's
Finance Director served as additional staff to the subcommittee.
Beginning in late July, the subcommittee began its due diligence review of the request
by asking for a broad range of information, including all documents relating to the
formation of any of the legal entities involved, all agreements regarding the waste
collection functions to be performed by SWS or UWS, and financial information and
projections for SWS or UWS. Because of the proprietary and sensitive nature of some
of this information, the subcommittee and staff to the subcommittee signed an
agreement to maintain the confidentiality of the information. This agreement allowed
SWS and UWS to disclose a great deal of detailed information which the subcommittee
and staff were able to use in evaluating the effect of this sale on the ability of the Buyers
to perform under the agreements with the City and on the ratepayers.
After the initial documents and information were provided, the subcommittee had
numerous questions and concerns to which SWS and UWS responded. Through this
process which involved dozens of email exchanges between the beginning of August
and the present and a four hour meeting between the Buyers and the subcommittee on
October 23, 2007, the subcommittee has developed a recommendation to approve the
sale, subject to a number of conditions to which the Buyers have agreed. As a result of
this process, the subcommittee is satisfied that the conditions will adequately protect the
City and the ratepayers. The subcommittee believes that the waste collection and
transfer station operations should actually improve, if the City approves the sale and
assignment.
The conditions are contained in two agreements presented to the City Council for
approval. Each condition in the two agreements is quoted below followed by a
comment explaining the reasons for the condition.
I. CONDITIONS ON APPROVING THE SALE OF THE STOCK OF SWS
The following is taken from paragraph 3 of the agreement (attached as Attachment 2)
approving the sale of SWS to the Buyers. The term "Sale" refers to the sale of the stock
in that company to these buyers and the sale of the Taylor Drive property to Yulupa
Investments, LLC. The term "Closing" refers to the closing of escrow on the sale of the
stock and the property.
3. Consent to the Sale. Subject to the following conditions, each of which must be
satisfied prior to or at the Closing, City hereby consents to the Sale:
a. All deeds of trust encumbering the Property prior to the Closing shall be conveyed
and removed as encumbrances on the Property, and the Property shall not be used as
Agenda Summary Report Page 3
October 20, 2007, Special City Council meeting
security for any loans or other debts for the remaining term of the Contract.
Comment: Currently, the property is encumbered by deeds of trust securing
loans to SWS or North Bay Corporation. Those deeds of trust will be removed at
the Closing. In addition, SWS and Yulupa agree not to secure new loans or debts
with deeds of trust or other encumbrances on the property. In addition, at
Closing, a Memorandum of Agreement, giving notice of the City's rights to lease
or purchase the property, must be recorded. This is important because under the
Transfer Station Agreement the City has the right to lease or purchase the
property at any time that the Transfer Station Agreement is terminated. If that
termination does not occur until the end of the term on that agreement, which is
approximately 15 years from now, the City has the right to buy the property at no
cost. It must pay fair market or fair rental value if its exercises the right to buy or
lease the property, upon the termination of the Transfer Station Agreement for
any reason before that. In either case, the City's rights are compromised, if there
are deeds of trust or other encumbrances on the property. Under this condition,
its rights are protected.
b. A Memorandum of Agreement approved by City shall be recorded, providing notice of
the City's lease and purchase rights under the Contract.
Comment: See above.
c. The Ratto Group of Companies Inc., a California Corporation (the "Ratto Group"),
shall execute in a form approved by the City and be bound by an agreement that
guarantees the performance of SWS and Yulupa under the Contract for a period of
three (3) years from the Closing.
Comment: Jim Ratto, through his holding company, has more financial strength
than the Buyers. Moreover, the City has no experience with how the Buyers will
perform. For the first three years, until the City has some experience with how
the Buyers are performing, the Ratto Group will guarantee their performance
which will put Ratto's financial strength behind them.
d. The Ratto Group shall execute in a form approved by the City and be bound by an
agreement that indemnifies the City and SWS against any failure or refusal by Portrero
Hills Landfill, Inc., or its successor or assigns ("Portrero"), to comply with the Agreement
for Landfill Disposal Services between Portrero and SWS, dated April 10, 1997, for a
period of three (3) years from the Closing.
Comment: The tipping fee at Portrero Hill is quite low. For the first three years,
Ratto will indemnify both SWS and the City, if they are damaged in any way by
Portrero's failure to honor the contract between SWS and Portrero which
establishes that low gate fee. While SWS is not entitled to increase the gate fee at
the Transfer Station, if the landfill fees it pays go up, this indemnification puts
Ratto's superior financial strength behind SWS during the first three years that
Agenda Summary Report Page 4
October 20, 2007, Special City Council meeting
the new Buyers operate the Transfer Station.
e. SWS may take to the facility located at 4200 North State Street, Ukiah, California
("North State Street Facility") green and wood waste delivered by self-haulers or
contract waste haulers to the Transfer Station for as long as more than 50% of the
voting stock of Pacific Recycling Solutions, Inc., a California corporation ("PRS"), is
owned by Buyers or any of them and PRS operates the Facility in accordance with all
governmental approvals and legal requirements and provided that PRS accepts such
waste in accordance with the Agreement for the Receipt of Green and Wood Waste
between PRS and SWS, dated September 1, 2007 and a copy of which is attached
hereto as Exhibit B ("Green Waste Agreement"), or any successor agreement with the
same terms and conditions. The term of the Green Waste Agreement, including the
provision providing for a cost of living increase only in the gate fee after September 1,
2012, coincides as to SWS with the remaining term of the Contract and the City shall be
deemed a third party beneficiary of the Green Waste Agreement.
Comment: This is part of the business plan outlined in the previous ASR to the
City Council. (See Attachment 1.) The approval to take green and wood waste
directly to the North State Street facility is subject to the conditions that (1) PRS
is owned by Buyers, (2) operates the North State Street facility in accordance with
all legal requirements and (3) PRS accepts waste under the Green Waste
Agreement which sets the gate fee at North State Street at $30 per ton for the first
five years, and allows cost of living increases only for the balance of the term.
Currently, the Transfer Station charges $38 per ton to accept green and wood
waste at the Transfer Station. It will continue to charge that amount to self-
haulers and others who use the Transfer Station. However, UWS will only pay
$30 to deliver green and wood waste to the North State Street facility which will
save City ratepayers $8 per ton. That lower disposal cost will be taken into
account when rates are set. In subsection g, below, SWS agrees that it will not
increase the gate fee at the Transfer Station based on the loss of that revenue at
the Transfer Station.
f. SWS shall not charge more than $14.95 for each appliance accepted for disposal at
the Transfer Station, unless a different rate is approved by the City. If, in the future,
SWS is reimbursed by the City, the ratepayers or any governmental or private industry
program for all or part of the cost to accept or process appliances, the fee charged by
SWS shall be reduced by the amount of that reimbursement.
Comment: The rate for appliances is currently $16.75. This lower rate should
cause some who improperly dispose of appliances to take them to the Transfer
Station.
g. SWS shall not seek a rate increase at the Transfer Station based on any reduction in
Transfer Station revenues resulting from the City authorizing Ukiah Waste Solutions,
Inc. to take green and wood waste or single stream recycling to the North State Street
Facility.
Agenda Summary Report Page 5
October 20, 2007, Special City Council meeting
Comment: See comment to e, above.
h. If PRS receives all required governmental approvals for a materials recovery facility
("MRF") at the North State Street Facility and for as long as more than 50% of the voting
stock of PRS is owned by Buyers or any of them and PRS operates the MRF in
accordance with those approvals and all other legal requirements, the City consents to
SWS taking recyclable materials delivered to the Transfer Station by self-haulers or
contract waste haulers to the MRF in addition to its existing approval to take such
materials to the Timber Cove Recycling, Inc. facility located at 3417 Standish Avenue in
Santa Rosa, California.
i. SWS shall use its best efforts to maintain in full force and effect the Recyclable
Materials Agreement between SWS and Timber Cove Recycling, Inc., dated August 13,
2007 and attached hereto as Exhibit C, for the remaining term of the Contract and the
parties to that contract agree that the City shall be deemed a third party beneficiary of
that agreement.
Comment: If PRS is licensed to operate a MRF at the North State Street facility,
the City consents to taking single stream recycling to that facility, where it will be
separated, bailed and shipped to recycling markets. Performing these functions
in Mendocino County should create jobs here and increase revenues from
recycling which will benefit the ratepayers, because under the Waste Collection
Contract, the City is entitled to a credit in rate setting for the fair market value of
recyclables. SWS has a contract with Timber Code Recycling for the acceptance
of recyclables. This condition keeps that alternative available, if the MRF is
delayed or not permitted at the North State Street location or if the MRF looses or
violates its license or other approvals in the future.
j. Section 9.03(a) of the Contract is amended to read as follows:
To initiate default proceedings under this Section, the City shall give written notice to
Contractor and its Surety describing the nature of the default and the City's intention to
declare Contractor in default. Contractor may be declared to be in default if it fails to
cure the default within thirty (30) days of receipt of the City's notice; provided, however,
that if the nature of the default is such that it cannot be cured within thirty (30) days,
Contractor shall not be declared to be in default as long as it commences a cure within
thirty (30) days of receipt of the notice from the City and diligently pursues such cure to
completion. If Contractor fails to so cure the default, and unless Contractor promptly
shows cause to the City's satisfaction why it should not be declared in default under the
Contract, the City may declare Contractor in default and notify Contractor and its Surety
of such declaration, in which event the consequences of such default as provided in
Section 9.02 shall apply. Notwithstanding the foregoing, Contractor shall be liable for
liquidated damages as provided in Section 9.02 from the date the City gives written
notice as provided in this Section until the Contractor cures the default in accordance
Agenda Summary Report Page 6
October 20, 2007, Special City Council meeting
with this Section.
Comment: The Transfer Station agreement could be read as making SWS liable
for liquidated damages only if it failed to cure a default within 30 days after the
City gives it a notice of its intent to declare a default. In the past, this has
prevented SWS from incurring any penalty as a result of multiple defaults. This
revision to the Transfer Station Agreement will make clear that even if SWS cures
a default it is liable for liquidated damages for each day after it is given that
notice until it cures the default. This change will improve the enforcement tools
available to the City.
II. CONDITIONS ON ASSIGNMENT OF WASTE COLLECTION CONTRACT TO UWS
The following is taken from paragraph 2 of the agreement approving the assignment of
the Waste Collection Contract from SWS to UWS. (See Attachment 3.)
2. Consent to Assignment. Subject to the conditions, as set forth below, each of
which must be met prior to the Closing, City hereby consents to the Assignment:
a. The Ratto Group of Companies Inc., a California Corporation (the "Ratto Group"),
shall execute in a form approved by the City and be bound by an agreement that
guarantees the performance of the Assignee under the Contract for a period of three (3)
years from the Closing.
Comment: See comment to 3.c, above.
b. Assignee agrees that the City will perform the pending 3 year rate review, as required
by the Contract, and set the rates under the Contract, based on the financial information
and cost structure, as contained in the audited financial statements for Assignor, dated
December 31, 2006, as filed with the City, and that the City will perform that rate review
and rate setting in accordance with the procedural and substantive requirements of
state law, the Ukiah City Code and the Contract. The Ratto Group shall agree to make
its personnel available, including, but not limited, to John Warren and Jim Salyers, to
answer questions and provide additional information as requested by City in conducting
that rate review and rate setting. As part of conducting the 3 year rate review Assignee
shall submit for the approval of the City a plan for bringing the vehicles used in the
performance of the Contract into compliance with the Solid Waste Collection Vehicle
Rule ("SWCVR") adopted by the California Air Resources Control Board ("GARB").
The City shall consider the cost of a City approved plan in conducting the rate setting.
Comment: A primary goal of the subcommittee was that the Buyer's costs in
acquiring SWS and the waste collection franchise from Jim Ratto would not be
included in calculating rates for curbside waste collection. Those costs are
considerable and include the purchase price to Ratto and the cost of new
equipment as well as financing costs. This requirement insures that only costs
included in the just completed audited financial statements for SWS, which do
Agenda Summary Report Page 7
October 20, 2007, Special City Council meeting
not include any of these acquisition costs, will be used in conducting the 3 year
rate review which is due under the Waste Collection Contract. However, the
subcommittee agrees that whether the companies are sold or not, the franchised
waste hauler will be required by the SWCVR adopted by the CARB to either
purchase new trucks, retrofit existing diesel trucks or retrofit newly purchased
used diesel trucks. Because this expense exists separate and apart from
acquisition costs, the condition requires UWS to get City approval for a plan to
meet these requirements and the City agrees to take the costs of implementing
that plan into account in setting rates. Since this capital cost can be spread over
several years, the subcommittee does not expect this expense to have a dramatic
effect on rates.
c. In addition to the City's existing approval of Assignor's taking green and wood waste
to the Transfer Station at 3151 Taylor Drive, Ukiah, California (the "Transfer Station"),
the City consents to Assignee taking wood and green waste collected in the City under
the Contract directly to the facility located at 4200 North State Street, Ukiah, California
("North State Street Facility") which is operated by Pacific Recycling Solutions, Inc., a
California corporation ("PRS"), for as long as more than 50% of the voting stock of PRS
is owned by Buyers or any of them and PRS operates the facility in accordance with all
governmental approvals and legal requirements and provided that PRS accepts such
waste in accordance with the Agreement for the Receipt of Green and Wood Waste
between PRS and Assignor, dated September 1, 2007 and attached hereto as Exhibit B
("Green Waste Agreement"), or any successor agreement with the same terms and
conditions. The term of the Green Waste Agreement, including the provision providing
for a cost of living increase only in the gate fee after September 1, 2012, coincides as to
Assignor with the remaining term of the Contract and the City shall be deemed a third
party beneficiary of the Green Waste Agreement.
Comment: See comment to 3.e, above.
d. If PRS receives all required governmental approvals for a materials recovery facility
("MRF") at the North State Street Facility and for as long as PRS is owned by Buyers
and operates the MRF in accordance with those approvals and all other legal
requirements, the City consents to Assignee taking single stream recyclables collected
in the City under the Contract directly to the North State Street Facility in addition to its
existing approval of taking such materials to the Transfer Station.
Comment: Under the Waste Collection Contract, the City must approve the
means of disposing of recyclables. Currently, the Transfer Station is the
approved location for disposing of recyclables. The Buyers are seeking approval
for a MRF at the North State Street facility from Mendocino County and the Local
Enforcement Agency ("LEA") of the Integrated Waste Management Board, which
is the Mendocino County Department of Environmental Health. The County
approves an industrial use of this type in an industrial zone under the
Development Review procedure in the County Zoning Code. That process is
underway with referrals to affected agencies. The County Planning Department is
Agenda Summary Report page g
October 20, 2007, Special City Council meeting
still receiving comments. Based on those comments, it will determine whether
additional evaluations are required or whether it can approve the project without
further consideration. If the MRF receives all required approvals, this condition
would permit UWS to take single stream recyclables directly to the North State
Street facility. This should have the benefits discussed in the comment to 3.h
and i, above.
e. Paragraph 21 of the Contract shall be amended to read as follows:
The Contractor shall provide and continue in force throughout the life of the agreement
a standby letter of credit, or other security approved by City, in the amount of Three
Hundred Thousand Dollars ($300,000) conditioned upon the faithful performance by
Contractor of each and every term, covenant and condition of this Contract by
Contractor agreed to be performed.
Comment: The Waste Collection Contract currently requires a bond or equivalent
security for the faithful performance of the contract of $50,000. This is a small
security, given the potential expense to the City of collecting waste in the City
until a new franchise waste hauler could be selected, if the City were forced to
terminate the contract based on a material breach by UWS. In addition, the City
has no experience of the Buyers performance. For these reasons, UWS has
agreed to provide a $300,000 letter of credit. The subcommittee agrees that the
fee for that letter may be included in the rate base. The fee is estimated at 1.25%
of the face amount of the letter of credit. This will add approximately $3125 of
cost per year to the rate base.
f. Assignee confirms its commitment to work closely with Ukiah Unified School District to
increase its diversion from the waste stream of recyclables at schools within the City.
Comment: When SWS was owned by the Ratto Group, it agreed to collect solid
waste from all Ukiah Unified School District schools located in the City at no cost.
SWS also agreed to work with UUSD to increase its recycling efforts. This
condition obligates SWS to work with UUSD to improve its rate of recycling.
g. Assignee shall provide the City with information about its commercial customers in
the City which is requested by City, including, but not limited to, names, addresses,
service level requested and account information.
Comment: The City bills residential customers and receives a fee for this service
SWS, and UWS as its assignee, will continue to bill commercial customers
directly. Because the City does not perform this billing function, it may not have
on hand information on the commercial customers and their account information.
Under this condition, UWS will be required to provide this information to the City,
when requested.
h. Assignee shall use its best efforts to maintain in full force and effect the Recyclable
Agenda Summary Report Page 9
October 20, 2007, Special City Council meeting
Materials Agreement between Assignee and Timber Cove Recycling, Inc., dated
August 13, 2007, for the remaining term of the Contract and the parties to that
agreement shall agree that the City shall be deemed a third party beneficiary of that
agreement.
Comment: See comment to 3.g, above.
ATTACHMENT 1
ITEM NO: 10c
MEETING DATE: October 17. 2007
AGENDA SUMMARY REPORT
SUBJECT: STATUS REPORT, DISCUSSION AND POSSIBLE ACTION
REGARDING REQUEST UNDER TRANSFER STATION AND WASTE
COLLECTION FRANCHISE AGREEMENTS FROM SOLID WASTE
SYSTEMS, INC. TO APPROVE SALE, ASSIGNMENT OF WASTE
COLLECTION AGREEMENT AND RESTRUCTING OF COMPANIES BY
BUYERS
SUMMARY: The City received a request from Solid Waste Systems, Inc. ("SWS") to
approve a sale of the company, an assignment of the waste collection contract and a
restructuring of companies by the buyers to operate the Taylor Drive Transfer Station
and to collect solid waste in the City. The City currently has two agreements with SWS:
(1) A Transfer Station Agreement for the operation of the solid waste transfer station on
Taylor Drive and (2) a Waste and Recyclables Collection Franchise Agreement ("Waste
Collection Contract") for the collection of waste and recyclables within the City. North
Bay Corporation, as the owner of the Taylor Drive property, is also a party to the
RECOMMENDED ACTION: Receive status report, discuss, provide direction to the
subcommittee and schedule an adjourned regular or special meeting to consider a
subcommittee recommendation on the request.
ALTERNATIVE COUNCIL POLICY OPTIONS: N/A
FUNDING:
Amount Budgeted Account Number Additional Funds Requested
Citizens Advised: N/A
Requested by: Solid Waste Systems, Inc.
Prepared by: David J. Rapport, City Attorney
Coordinated with: Vice Mayor Doug Crane, Council member John McCowen,
Emmett Jones, and Gordon Elton
Attachments: None
Approved:
Candace Horsley, City Manager
Agenda Summary Report
October 17, 2007, City Council meeting
Transfer Station Agreement
Page 2
Under both agreements, any change in ownership or control or assignment of the
agreements requires the City Council's approval. SWS and North Bay Corporation are
both owned by the Ratto Holding Company which is owned by Jim Ratto and his wife
(collectively, "Ratto"). Ratto has entered agreements to sell companies it owns in
Sonoma County, Lake County and Ukiah to David Carroll, John Shay and Bruce
McCracken (collectively, "Buyers"). In Ukiah, Ratto and Buyers are seeking approval
from the City Council for the following:
1. The sale of the stock in SWS to Buyers with the result that the Transfer Station will
be operated by SWS, then to be owned by Buyer rather than Ratto. Since they are
buying the stock and SWS will continue to operate the Transfer Station, this does not
require an assignment of the Transfer Station agreement or any other agreements used
by SWS to operate the Transfer Station.
2. An assignment of the Waste Collection Contract to a new corporation owned by
Buyers. The new corporation is called Ukiah Waste Systems, Inc. ("UWS") with the
result that UWS rather than the SWS collection division will perform waste collection in
the City.
3. Transfer of the ownership of the Taylor Drive property from North Bay Corporation to
a new limited liability company owned by Buyers called Yalupa Investments, LLC
("Yalupa").
4. Most of the equipment now used to operate the Transfer Station and collect waste in
the City and additional equipment to be owned by a new corporation called Mendocino
Leasing Company and leased to the other entities owned by Buyers.
5. Permission under the Transfer Station agreement to take green waste and wood
waste to a facility on North State Street operated by a company owned by Buyers called
Pacific Recycling Solutions, Inc. ("PRS").
6. Permission under the Waste Collection Contract to take single stream recyclables
directly to PRS at the North State Street location rather than to the Transfer Station,
once the North State Street operation is fully permitted and equipped to operate a
materials recovery facility ("MRF").
The Buyers' proposed business plan involves some significant changes to the current
arrangement for collecting and disposing of solid waste in the City. Currently, all waste
and recyclables are taken to the Transfer Station. From there, green waste and wood
waste is trucked to Cold Creek Composting in Potter Valley for processing. Single
stream recyclables are trucked from the Transfer Station to a MRF in Sonoma County
operated by a Ratto company called Timber Cove Recycling. Under the Buyers'
business plan, green waste and wood waste would be collected in the City and taken
directly to PRS at the North State Street facility for grinding. That green and wood
Agenda Summary Report Page 3
October 17, 2007, City Council meeting
waste grinding facility is already fully permitted and operating. Once PRS is operating a
MRF at North State Street, single stream recycling would be collected in the City and
taken directly to the North State facility for processing. Separated and bailed recyclables
would be sold directly into the market by the PRS.
To respond to these requests, the City formed a subcommittee composed of Vice Mayor
Crane and Council member McCowen to conduct a due diligence review and make a
recommendation to the City Council. An outside consultant, Emmett Jones, Gordon
Elton and the City Attorney have acted as staff and advisers to the subcommittee.
Under a confidentiality agreement, the subcommittee has obtained from the Buyers all
of the transaction documents involved in this sale and considerable financial information
about the proposed new companies. Based on a review of this material, the
subcommittee has requested and received additional information and there have been
several written exchanges between the attorney representing the Buyers and the City
Attorney to address concerns raised by the subcommittee. This process is on-going.
Through their attorney, the Buyers have indicated that the bank which is providing a
"credit facility" to finance these transactions has notified the Buyers that the current
purchase agreements must close by the end of October or the bank's loan commitment
will expire. The Buyers have received approval for the sale from the jurisdictions in
Lake County. If they don't have the City's approval by the end of the month, they will
have to exclude Ukiah and close on the purchase of the other companies. At a
minimum, this will complicate the financing of the Ukiah transaction, increasing the
costs to the Buyer. The due diligence review began at the end of July and has taken
longer than the Buyers and their bank originally anticipated.
Staff recommends that the City Council attempt to make a decision within this time
frame, if that can be done without adversely affecting the City's legitimate interests. For
that reason, the subcommittee will ask the Council to consider calling an adjourned
regular or special meeting for later in October to allow additional time for the
subcommittee to finalize its due diligence review and to formulate a recommendation to
the City Council.
The subcommittee has conducted its review with the following principles in mind:
1. The City should have the same contractual rights and protections under this new
arrangement as it has under the existing one;
2. The new companies and SWS should have adequate resources and a viable
business plan to successfully perform for the full term of the Transfer Station and Waste
Collection Contracts;
3. The rates for waste collection should not increase, because of new costs arising from
the purchase of these businesses. In other words, the rate base should not include
costs which would not exist, but for the sale of the companies to the Buyers; and
Agenda Summary Report
October 17, 2007, City Council meeting
Page 4
4. Any significant deficiencies in the existing contracts should be revised as a condition
of approving the sale.
These principles have guided the subcommittee in requesting additional information and
in proposing conditions on the City's approval of the sale.
It is possible, but not likely, that the outstanding issues raised by the subcommittee will
be resolved in time to make a recommendation to the City Council for consideration at
the October 17 meeting. The subcommittee and staff will present any additional
information at the City Council meeting and prior to any adjourned regular or special
meeting that may be called by the City Council.
ATTACHMENT2
ASSIGNMENT AND CONSENT
[WASTE COLLECTION CONTRACT]
THIS ASSIGNMENT AND CONSENT (the "Agreement") is made this _ day of October,
2007, by and between the City of Ukiah, a municipal corporation ("City"), Solid Wastes Systems, Inc., a
California corporation ("Assignor"), and Ukiah Waste Solutions, Inc., a California corporation
("Assignee"), with reference to the following:
A. City and Assignor are parties to that certain Contract for Collection, Transportation and
Disposal of Garbage, Refuse, and Rubbish, and Recycling of Recyclable Materials from within the City of
Ukiah between Assignor and City dated March 23, 1992, as amended May 9, 1997, August 21, 1998 and
November 7, 2001 (the "Contract"), for the hauling and disposal of waste from the City, a copy of which i~
attached hereto as Exhibit A.
B. David Carroll, John Shea and Bruce McCracken and/or their family trusts ("Buyers") are
the sole shareholders of Assignee.
C. At a closing to be held on or about October 31, 2007, the Contract will be assigned from
Assignor to Assignee (the "Closing").
D. Under the Contract:
"Contractor shall not directly or indirectly, voluntarily or involuntarily assign, mortgage, pledge or
encumber any interest in all or a part of the contract and shall not transfer any controlling stock or
ownership interest in Contractor or take any other action which would result in any individual or entity
other than Contractor as it existed on the effective date of this Contract providing services hereunder
without the prior written consent of the 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 paragraph."
E. The parties wish to document City's consent the assignment of the Contract from Assignor
to Assignee (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:
l . Assignment. From and after the Closing, Assignee shall possess all of Assignor's right,
title and interest in the Contract. Assignee 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.
2. Consent to Assi ng ment. Subject to the conditions, as set forth below, each of which must
be met prior to the Closing, City hereby consents to the Assignment:
a. The Ratto Group of Companies Inc., a California corporation (the "Ratio Group"),
shall execute in a form approved by the City and be bound by an agreement that guarantees the
performance of the Assignee under the Contract for a period of three (3) years from the Closing.
b. Assignee agrees that the City will perform the pending 3 year rate review, as
required by the Contract, and set the rates under the Contract, based on the financial information and cost
structure, as contained in the audited financial statements for Assignor, dated December 31, 2006, as filed
with the City, and that the City will perform that rate review and rate setting in accordance with the
procedural and substantive requirements of state law, the Ukiah City Code and the Contract. The Ratto
Group shall agree to make its personnel available, including, but not limited to, John Warren and Jim
Salyers, to answer questions and provide additional information as requested by City in conducting that
rate review and rate setting. As part of conducting the 3 year rate review, Assignee shall submit for the
approval of the City a plan for bringing the vehicles used in the performance of the Contract into
compliance with the Solid Waste Collection Vehicle Rule adopted by the California Air Resources Control
Board. The City shall consider the cost of a City approved plan in conducting the rate setting.
c. In addition to the City's existing approval of Assignor's taking green and wood
waste to the Transfer Station at 3151 Taylor Drive, Ukiah, California (the "Transfer Station"), the City
consents to Assignee taking wood and green waste collected in the City under the Contract directly to the
facility located at 4200 North State Street, Ukiah, California ("North State Street Facility") which is
operated by Pacific Recycling Solutions, Inc., a California corporation ("PRS"), for as long as more than
50% of the voting stock of PRS is owned by Buyers or any of them and PRS operates the facility in
accordance with all governmental approvals and legal requirements and provided that PRS accepts such
waste in accordance with the Agreement for the Receipt of Green and Wood Waste between PRS and
Assignor, dated September 1, 2007 and attached hereto as Exhibit B ("Green Waste Agreement"), or any
successor agreement with the same terms and conditions. The term of the Green Waste Agreement,
including the provision providing for a cost of living increase only in the gate fee after September 1, 2012,
coincides as to Assignor with the remaining term of the Contract and the City shall be deemed a third party
beneficiary of the Green Waste Agreement.
d. [f PRS receives all required governmental approvals for a materials recovery
facility ("MRF") at the North State Street Facility and for as long as more than 50% of the voting stock of
PRS is owned by Buyers or any of them and PRS operates the MRF in accordance with those approvals
and all other legal requirements and provided that PRS, the City consents to Assignee taking recyclable
materials (currently single stream recyclables) collected in the City under the Contract directly to the North
State Street Facility in addition to its existing approval of taking such materials to the Transfer Station.
e. Paragraph 21 of the Contract shall be amended to read as follows:
"The Contractor shall provide and continue in force throughout the life of the agreement a
standby letter of credit, or other security approved by City, in the amount of Three Hundred Thousand
Dollars ($300,000) as security for the faithful performance by Contractor of each and every term, covenant
and condition of this Contract by Contractor agreed to be performed, provided that the cost of such letter of
credit or other security shall be included in Contractor's costs Y'or rate making purposes."
f Assignee confirms its commitment to work closely with Ukiah Unified School
District to increase its diversion from the waste stream of recyclables at schools within the City.
g. Assignee shall provide the City with information about its commercial customers
in the City which is requested by City, including, but not limited to, names, addresses, type of service, and
account information.
3. 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 the
parties with respect to the hauling and disposal of refuse in the City.
4. No Default. Neither Assignor nor City is in any respect in default in the performance of
the terms and provisions of the Contract, nor to either party's knowledge is there now any fact or condition
which, with notice or lapse of time or both, will become such a default. Assignor has not assigned,
transferred, sublet or hypothecated its interest under the Contract, or any portion thereof.
5. No Offsets. Neither Assignor 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 party asserted any
such claim, charge, defense or offset.
6. 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.
7. Counterparts. This Agreement may be signed in two (2) or more counterparts, each of which
shall be deemed an original but when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day and
year first above written.
CITY OF UKIAH
Its:
SOLID WASTES SYSTEMS, INC.
By:
Its:
UKIAH WASTE SOLUT[ONS, INC.
By:
Its:
CONTRACT' FOR COLLECTION, TRANSPORTATION AND
DISPOSAL OF GARBAGE, REFUSE, AND RUBBISH, AND
RECYCLING OF RECYCLABLE MATERIALS FROM WITHIN
THE CITY OF UKIAH
This Agreement is entered into on March 23 199, in Ukiah, California by
and between the City of Ukiah, a municipal corporation with its principal place of business
located at 300 Seminary Avenue, Ukiah, California 95482 ("City"), and Solid Wastes Sys-
tems, Inc., a California corporation with its principal place of business located at 940
Waugh Iane, Ukiah, California 95482 ("Contractor").
In consideration of the mutual promises contained herein, the parties hereby agree
as follows:
1. FRANCHISE
Contractor is hereby granted the sole and exclusive right and franchise to collect,
transport and dispose of refuse, garbage and rubbish, and to recycle recyclable materials
generated by all sources within the corporate limits of the City of Ukiah, in accordance
with the provisions of the Ukiah Municipal Code and state law for the term specified in Ar-
ticle 2 hereof. Enforcement of such exclusive right, where requested by the Contractor,
shall be at Contractor's expense.
2. TERM OF THE CONTRACT
The term of this agreement, shall be for ten (10) years commencing on Aprii 1 ,
1992, and terminating at midnight on March 31 , 2002, unless terminated earlier pur-
suant to paragraph 20 herein; provided, however, that at the end of said ten year term, the
agreement shall be extended for an additional term of five (5) years on the same terms and
conditions, unless either party gives notice of termination ninety (90) days prior to midnight
March 31 2002. At the election of Contractor and with the concurrence in writing of City,
this Agreement can be extended for such additional term or terms as the parties shall
agree.
1
3. AGREEMENT TO PERFORM WORK
Contractor agrees to perform the work of collecting, transporting and disposing of
all refuse, garbage and rubbish generated by all sources within the corporate City limits of
the City of Ukiah, said collection being mandatory as to residential units, all in the manner,
at the times and under the rules and conditions set forth in the Specification dated Septem-
ber 14, 1974, a copy of which is attached hereto, designated Exhibit "A" and incorporated
herein by reference as if fully set forth. Contractor further agrees to comply with the condi-
tions of Chapter 5 of Division 5 of the Municipal Code. Section 15 of the aforementioned
specifications is modified hereby to provide that the rates shall be as set forth in Exhibit "B"
attached hereto and made a part hereof by this reference or as may be modified in accor-
dance with this Agreement hereafter.
4. PAYMENT
Contractor just received a rate adjustment expected to be effective until June 1993.
Beginning July 1, 1993, Contractor shall be paid based on rates that will increase each year
for the next two years by an amount equivalent to 75% of the percentage change from the
previous year in the U.S. Department of Labor ("DOL"), Bureau of Statistics, Consumer
Price Index ("CPI"), U.S. Cities Average, March to March ("Contract CPI"). In addition,
the City shall add to the garbage rate any amounts necessary to fully compensate the Con-
tractor for any increase in the gate fee charged to the Contractor for disposing of refuse at
the City owned landfill. Prior to the third year, commencing on July 1, 1995, the City Coun-
cil shall conduct a rate hearing pursuant to UCC sections 3950-3957 to determine what, if
any, adjustment should be made to the garbage collection rates in the third or subsequent
years, taking into consideration the annual audits of the Contractor's operations and all
other factors deemed relevant by the City Council. Thereafter, unless the City Council
should determine otherwise at any rate hearing conducted pursuant to Ukiah City Code
(UCC) sections 3950-3957, the rates shall automatically increase annually every two years
by the Contract CPI and any increase in the gate fees charged to the Contractor at the
2
landfill. The City Council shall conduct a rate hearing in every third year pursuant to UCC
sections 3950-3957.
5. FRANCHISE PAYMENTS
Contractor agrees to pay to City as and for the rights granted hereunder an amount
equal to fifteen percent (15%) of the Contractor's annual gross revenue from Contractor's
operation under this Contract. Section 13 of Exhibit "A" is incorporated herein as if fully
set forth.
6. GARBAGE COLLECTION BILLIN
City has responsibility for all residential and commercial garbage collection billing.
The City shall receive a fee of three percent (3%) of the said amounts billed and collected
for this service, all in accordance with Section 12 of Exhibit "A".
7. COLLECTION OF STREET CONTAINERS
A. Contractor shall make regular collections from all City-owned street refuse con-
tainers in the downtown area located on public streets or sidewalks without charge to City.
The City shall maintain all its refuse containers in the downtown area.
B. Contractor shall provide collection and recycling services and recycling con-
tainers to the City and all properties owned by the City free of charge. Contractor shall
maintain in good condition all recycling containers provided to the City without charge to
the City.
8. SCOPE OF RECYCLING SERVICE
A. Chrbside Recycling. Under a Recycling Service Manager, Contractor shall per-
form curbside recycling services in the City of Ukiah as follows:
(i) Collection. From all residential units that receive individual can garbage
service Contractor shall collect and remove all Recyclable Materials, which are segregated
and placed in or adjacent to recycling containers at the curbside on public streets and from
commercial and multi-family residential customer shall collect and remove all Recyclable
Materials which are segregated and placed in recycling containers at a location mutually
3
acceptable to the City and Contractor. In addition, Contractor shall separately collect all
yard waste set out for collection by residential or commercial customers on the usual col-
lection day, provided that the yard waste is placed in a container clearly identifiable as con-
taining yard waste, or, in the case of branches, cut to lengths of four feet or less and neatly
bound together.
(ii) Recyclable Materials Defined. For the purposes of this Agreement,
Recyclable Materials has the meaning provided in UCC Section 4480 K, 1-6 and includes
yard waste. "Yard waste" means yard waste which consists of discarded natural vegetative
substances suitable for decomposition into a usable agricultural soil amendment, as deter-
mined by the City Manager or his or her designee, not including household food waste.
(iii) Time of Collection. Contractor shall collect the Recyclable Materials
placed at the curbside for collection once each week, regardless of weather conditions. To
the extent possible, collection will be on the same day of the week as garbage collection
service. Collection schedules need not be maintained on the following holidays: January 1,
Thanksgiving, and December 25. Collection which would normally occur on such holidays
shall be rescheduled as mutually agreed upon by Contractor and City's Recycling Coor-
dinator.
(iv) Container Purchase and Distribution.
(1) Residential containers. Contractor shall purchase, at Contractor's
sole cost and expense, and shall distribute one set of recycling containers to all residential
units. Residential containers are described in Exhibit C entitled "Recycling Containers", at-
tached hereto and incorporated herein by this reference, or other similar containers
mutually agreed upon by Contractor and City's Recycling Coordinator. Following the dis-
tribution of containers as provided herein, Contractor shall not be required to purchase or
provide additional recycling containers unless requested to do so by the City's Recycling
Coordinator. The ownership of the recycling containers purchased by Contractor under
this Agreement shall be and remain with Contractor, unless this Agreement is terminated
4
as provided in paragraph 20.
(2) Commercial and multi-family unit containers. Contractor shall
provide suitable recycling containers for all commercial, roll-off box and multi-family gar-
bage customers to accomodate all Recyclable Materials as further provided herein.
(a) Small quantity containers. For small quantities of Recycl-
able Materials, the commercial recycling containers may be the same as those used for
single-family residences and shall be provided to commercial customers on the same terms
as they are provided to residential customers under subsection 8.A (iv)(1).
(b) Large quantitycontainers. For larger quantities of Recycl-
able Materials, including yard waste, the commercial or multi-family recycling containers
shall be wheeled plastic containers, dedicated recycling dumpster-type containers, sec-
tioned dumpster-type containers, or other container systems approved by the City Recy-
cling Coordinator. For these types of containers, the Contractor may charge a monthly
rental fee not to exceed the actual cost of providing and maintaining the container. The
Contractor shall provide the City with a current list of such rental charges. After the An-
nual Audit due March 15, 1993, the City Council may consider whether and shall have the
right to require the Contractor to use all or part of the income received from the sale of
Recycled Materials collected from commercial customers to reduce the rental charge for
lazge quantity commercial recycling containers.
(v) Replacement of Containers. The parties acknowledge that from time to
time a customer may damage or destroy the small quantity recycling containers supplied by
Contractor. City agrees that it will encourage the customer to replace said recycling con-
tainers at the expense of the customer. To this end, Contractor shall make sets of three (3)
such recycling containers available for purchase by any customer at a price not to exceed
Contractor's actual cost for such containers. The parties also acknowledge that from time
to time containers may be stolen from the curb. When notified of such occurrence, Con-
tractor shall replace up to one set of three (3) containers per year for any one customer, at
5
no charge to the customer.
(vi) Transportation of Materials. Contractor shall transport recyclable
materials to a central location approved by the City Recycling Coordinator for sorting and
preparation for sale or recycling. Unless approved by the Recycling Coordinator, it shall
constitute a material breach and grounds for termination of this Agreement for Contractor
to dispose of any recyclable materials at a landfill or in any other fashion that does not
guarantee the recycling of the collected materials.
(vii) Labor and Costs. Contractor shall, at its sole cost and expense, except
as otherwise provided herein, furnish all labor and equipment required to perform curbside
collection pursuant to this Agreement.
(viii) Missed Pick-uns. In case of a missed pick-up called in by a resident,
Contractor shall collect the Recyclable Materials from such resident within' twenty-four
(24) hours. All calls relating to missed pick-ups shall be logged in by Contractor and such
log shall be available for inspection by City. If the missed pick-up was caused by the cus-
tomer, the cost of the subsequent collection may be charged to the customer.
B. Public Awareness Program. Contractor shall develop and implement that por-
tion of the Public Awareness Program designated "Contractor's Responsibilities" described
in Exhibit D, entitled "Public Awareness Program", attached hereto and incorporated
herein by this reference.
C. Reports. Contractor shall file with the City written reports of Contractor's per-
formance under this Agreement as more particularly set forth in Exhibit E, entitled
"Reports', attached hereto and incorporated herein by this reference.
D. Sale of Recyclable Materials. Contractor shall sell all Recyclable Materials col-
lected from the curbside by Contractor pursuant to this Agreement at fair market value.
Revenue obtained from such sales shall be retained by Contractor but shall be considered
by the City Council asoff-setting income, when the City Council conducts rate hearings as
provided in paragraph 4 of this Agreement and sets rates for refuse collection and recy-
6
n
cling.
E. Expansion of Program. Contractor and the City shall continue developing and
implementing plans and schedules for expanding the recycling program in connection with
the development of a waste management plan under Chapter 1095 of the Statutes of 1989
("AB 939").
9. SCHEDULE OF PERFORMANCE
Contractor shall perform those services set forth in Section 8 of this Agreement in
accordance with a schedule to be established by the City Manager or his designee after
consultation with the Contractor. In the event unforeseen circumstances arise which would
cause a delay in performance, said Schedule of Performance may be modified accordingly
by the mutual written agreement of City and Contractor. City's Recycling Coordinator is
authorized to modify said Schedule of Performance on behalf of City.
10. CITY'S RESPONSIBILITIES
A. Public Awareness Program. City shall participate in the Public Awareness
Program as provided in Exhibit D of this Agreement.
B. Protection of Materials. City agrees to take such steps as it deems necessary to
protect Contractor's ownership of all Recyclable Materials placed at the curbside for col-
lection by Contractor under the terms of this Agreement, including enforcement of its
anti-scavenging ordinance (Ordinance No. 893). Any enforcement at Contractor's request
shall be at Contractor's expense.
MISCELLANEOUS PROVISIONS
11. PERSONAL EQUIPMENT
Contractor shall acquire, provide, maintain and repair at its sole cost and expense
such equipment, materials, supplies, etc. as Contractor needs for its use for the proper con-
duct of the aforesaid services which are not simply tools and other instrumentalities
provided customarily by employees.
12. COMPLIANCE
7
Contractor, in the conduct of the services contemplated hereunder, shall comply
with all statutes, State or Federal, and all ordinances, rules and regulations enacted or
issued by the City Council of the City of Ukiah.
13. INDEPENDENT CONTRACTOR
Both parties hereto in the performance of this agreement will be acting in an inde-
pendent capacity and not as agents, employees, partners, or joint ventures of one another.
Neither Contractor nor its employees are employees of City and are not entitled to any of
the rights, benefits or privileges of City employees including, but not limited to, medical or
workers' compensation insurance furnished by City. The parties intend to and have en-
tered into a bona fide independent contract and nothing herein is a subterfuge to avoid
making the Caitractor an employee of the City. Contractor agrees to provide its
employees with all legally required benefits and to withhold from their wages all taxes as
required by law. Contractor agrees to indemnify and hold City harmless from and against
any claim for unpaid taxes or benefits which are based in whole or in pact on a claim that
Contractor's employees are City's employees.
14. HOLD HARMLESS
To the maximum extent permitted by law Contractor shall assume the defense of,
and indemnify and save harmless, the City and each and every officer, employee and agent
thereof from all suits, actions, damages, claims, or loss of every name and description to
which the City may be subjected or put because of or arising out of Contractor's perfor-
mance under this Agreement. Contractor shall have no duty to indemnify City for claims of
damage causied by the active and sole negligence of City and its officers or employees. In
providing the indemnification of City provided in this Agreement, Contractor agrees to
provide for all costs of any necessary legal defense including, but not limited to, expert wit-
ness fees and other litigation expenses, and all attorneys' fees incurred in defending or
deemed by City necessary to defend any claim, whether actually filed in any court or not.
15. INSURANCE REQUIREMENTS
8
Contractor shall comply with the insurance requirements contained in the attached
Exhibit F which is incorporated herein by reference.
16. AUDIT
Contractor shall maintain full and accurate books of account for its operations un-
der this Agreement in accordance with generally accepted accounting principles, at its
principal office located at 940 Waugh Lane, Ukiah, California, and the City, its officers,
agents or employees shall have the right to inspect and examine all such books and support-
ing records during normal business hours. Contractor shall provide the City with an annual
audit of Contractor's books and records pertaining to all the operations covered by this
Agreement, on or before March 15 of each year. The audit shall cover the audit period
January 1 to December 31. The audit shall be prepared by an independent Certified Public
i
Accountant satisfactory to both parties, and shall be paid for by Contractor. T'he auditor
shall prepare a report with opinions showing the income, expenses, liabilities, and assets of
the operations covered by this Agreement in accordance with generally accepted account-
ing principles. Each year's audit and report shall be submitted to the City Manager or
other person designated by him or her for his/her review. The report shall include a
separate schedule of all income and expenses of the recycling operations.
17. ASSIGNMENT
The Contractor shall not directly or indirectly, voluntarily or involuntarily assign,
mortgage, pledge, or encumber any interest in all or part of this contract and shall not
transfer any controlling stock or ownership interest in Solid Wastes Systems, Inc. or take
any other action which would result in any individual or entity other than Contractor as it
existed on the effective date of this Agreement providing services hereunder without the
prior written consent of the City Council. The City Council shall have the right to deter-
mine in its sole discretion whether to approve, conditionally approve or deny any request
by Contractor for approval under this paragraph. Any action requiring City Council ap-
proval under this paragraph that occurs without such approval shall give City the right to
9
terminate this Agreement without prior notice to Contractor or its successors or assigns.
18. INSOLVENCY OF CONTRACTOR-TERMINATION OF AGREEMENT
Either the appointment of a receiver to take possession of all or substantially all of
the assets of Contractor, or a general assignment by Contractor for the benefit of creditors,
or any action taken by or suffered by Contractor under any insolvency or bankruptcy act
shall constitute a breach of this Agreement by Contractor and shall, at the option of City,
provide it with the right to terminate this Agreement without prior notice to Contractor or
its successors or assigns.
19. PERMITS AND LICENSES
Contractor, at its sole expense, shall obtain and maintain throughout the term of this
Agreement all permits, licenses and approvals necessary or required for Contractor to per-
i
form the work and services described herein, including, but not limited to, 'a business
license from the City.
20. TERMINATION
A. Except as otherwise specifically provided.elsewhere in this Agreement, in the
event Contractor materially defaults in the performance of any of the material covenants or
agreements to be kept, done or performed by it under the terms of this Agreement, City
shall notify Contractor in writing of the nature of such default. Within thirty (30) days fol-
lowing such notice:
(i) Contractor shall correct the default; or
(ii) In the case of a default not capable of being corrected within thirty (30)
days, Contractor shall commence correcting the default within thirty (30) days of City's
notification thereof, and thereafter correct the default with diligence.
B. If Contractor fails to correct the default as provided above, City, without further
notice, shall have all of the following rights and remedies which City may exercise singly or
in combination:
(i) The right to declare that this Agreement together with all rights granted
10
Contractor hereunder are terminated, effective upon such date as City shall designate;
(ii) The right to license others to perform the services otherwise to be per-
formed by Contractor hereunder, or to perform such services itself; and
(iii) The right to rent or lease the equipment from Contractor for the pur-
pose of collecting, transporting and processing garbage and/or recyclables which Contrac-
tor is obligated to collect, transport and process pursuant to this Agreement, for a period
not to exceed eighteen (18) months. In the case of equipment not owned by Contractor,
Contractor shall assign the City, to the extent Contractor is permitted to do so under the in-
strument pursuant to which Contractor possesses such equipment, the right to possess the
equipment. If City exercises its rights under this subsection B, City shall pay the Contractor
the reasonable rental value of the equipment so taken for the period of the City's posses-
Sion thereof.
(iv) The right to immediate possession and ownership of all containers
furnished by Contractor under paragraph 8A(iv). The City shall pay Contractor for such
containers the lesser of fair market value or an amount computed as follows: divide the
purchase price of the containers by 144 and multiply the result by the number of full
months that have elapsed since February 15, 1990, at the date Contractor's right to perform
under this Agreement is terminated.
C. In the event City materially defaults in the performance of any of the material
covenants or agreements to be kept, done or performed by it under the terms of this Agree-
ment, Contractor shall notify City in writing of the nature of such default. Within thirty
(30) days following such notice:
(i) City shall correct the default; or
(ii) In the case of a default not capable of being corrected within thirty (30)
days, City shall commence correcting the default within thirty (30) days of Contractor's
notification thereof, and thereafter correct the default with diligence.
D. If City fails to correct the default as provided above, Contractor, without further
11
notice, shall have all of the following rights and remedies which Contractor may exercise
singly or in combination:
(i) The right to declare that this Agreement together with all rights granted
City hereunder terminated; and
(ii) The right to bring suit against the City for breach of contract.
21. PERFORMANCE BOND
The Contractor shall provide and continue in force throughout the life of the agree-
ment the bond of a surety company or its equivalent approved by City in the amount of
Fifty Thousand Dollars ($50,000.00) conditioned upon the faithful performance by Con-
tractor of each and every term covenant and condition of this Contract by Contractor
agreed to be performed.
22. WORKER'S COMPENSATION INSURANCE
Before beginning the work the Contractor shall furnish to the City satisfactory proof
that it has secured, for the period covered by the work under this contract, full payment of
compensation to all persons whom it may employ directly or through subcontractors, in car-
rying out the work contemplated under this contract, in accordance with the "Worker's
Compensation and Insurance Act,' Division IV of the Labor Code of the State of Califor-
nia and any acts amendatory thereof. Such insurance shall be maintained in full force and
effect, during the period covered by this contract.
The Contractor shall sign and file with the City a Worker's Compensation Certifi-
cate prior to performing any work.
23. INSPECTION
The City, its officers, agents or employees shall at all times have the right to inspect
and observe every aspect of Contractor's business operation to determine whether the serv-
ices being provided by Contractor are being performed in a workmanlike and professional
manner. In exercising this right, Contractor shall provide the City with access to all of its
business facilities so that the City, its officers, agents or employees can observe every aspect
12
of Contractor's business operation.
24. PATENTS
The Contractor shall assume all responsibilities arising from the use of patented
materials, equipment, devices, or processes used on or incorporated in performing the work
or providing the services required under this Agreement.
25. SUBCONTRACTING
Contractor shall not subcontract with any independent Contractor to perform the
work or services required under this Agreement without the express written consent of
City. If the City authorizes a subcontractor to perform any work or services under this
Agreement and said subcontractor does not perform said work or services to the satisfac-
tion of the City Manager, the subcontractor shall immediately be removed from performing
said work or services upon receipt by Contractor of the City Manager's writteri request to
do so and said subcontractor shall not be employed again by Contractor to perform any
work under this Agreement.
26. PUBLIC CONVENIENCE AND SAFETY
The Contractor shall so conduct its operations so as to cause the least possible
obstruction and inconvenience to the public and to traffic.
27. LAWS
The Contractor shall keep itself fully informed of all existing and future State,
Federal and Municipal laws and regulations which in any manner affect those engaged or
employed in the work, or the materials used in the work, or which in any way affect the
conduct of the work, and of all such orders and decrees of administrative bodies or courts
having any jurisdiction or authority over the same, and adhere thereto.
28. WAIVER OR MODIFICATION
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.
13
29. GOVERNING LAW
This Agreement shall be governed by the laws of the State of California.
30. PREVIOUS AGREEMENT
Any and all existing statement or agreements, whether oral or written, or renewals
thereof, between the parties hereto, covering the same subject matter, are hereby canceled
and superseded by this Agreement and such prior agreement shall have no further force or
effect.
31. PARAGRAPH HEADINGS
The paragraph headings contained herein are for convenience and reference only
and are not intended to define or limit the scope of this Agreement.
32. N TICE
Whenever notice to a party is required by this Agreement, it shall be deemed given
when deposited with proper address and postage affixed thereto in the U.S. Mail or when
personally delivered as follows:
CITY: UKIAII CIVIC CENTER
300 Seminary Avenue
Ukiah, CA 95482
ATTN: City Manager
CONTRACTOR: JAMES SALYERS, President
Solid Wastes Systems, Inc.
940 Waugh Lane
Ukiah, CA 95482
33. DUPLICATE ORIGINALS
This Agreement may be executed in one or more duplicate originals bearing the
original signature of both parties and when so executed any such duplicate original shall be
admissible as proof of the existence and terms of the Agreement between the parties.
34. FORUM SELECTION
Contractor and City stipulate and agree that any litigation relating to the enforce-
ment or interpretation of this Agreement, arising out of Contractor's performance or relat-
14
ing in any way to the work shall be brought in Mendocino County and that venue will lie in
Mendocino County.
35. AUTHORITY
Contractor warrants that James Salyers has been duly authorized by Contractor to
enter into this contract on behalf of Contractor.
4
15
IN WITNESS WHEREOF, City of Ukiah and Contractor have executed this Agree-
ment this 23 day of March
SOLID WASTES SYSTT:MS, INC.
1992 in Ukiah, California.
CI F KIAH
~'
,ty anager
BY~ ~~ n,9
rest ent
(S: \FROMLISA\U\CONT\RECYCLE)
City of Ukiah, California
Certified To Be A True and Exact Copy
~a./ 9~ G~i~FJ ~!Z=e~GGe~~tJ
Oate 6eMeen-Y.Maadow~w. City Clerk
/hA~E/E U.r,//,LN
16
Date: 3/~ 3 / 9 Z-
EXHIBIT A
City of Ukiah
Standards for Refuse Collection
Collection Contract
September 1974
SECTION 1. SCOPE OF WORK
The work to be done consists of furnishing all labor, supervision and
administration, methods and processes, implements, tools, machinery and
materials, vehicles and equipment, which are necessary and required to
collect, transport and dispose of refuse originating within the corporate
limits of the City of Ukiah, California, except as herein specified, all in
accordance with the provisions of Chapter 5 of Division 5 of the Ukiah City
Code of the City of Ukiah, California, and these standards.
SECTION 2. CONTROL OF THE WORK
A. The City Manager or his authorized agent shall decide all questions
which may arise as to the quality or acceptability of the work
performed including the quality of service, and as to the manner or
performance and rate of progress of the work, all questions which
arise as to the interpretation of the standards, all questions as to
the acceptable fulfillment of the contract on the part of the
Contractor including complaints of customers alleging inadequate
service, and all questions as to claims and compensation. The City
Manager's decision may be appealed to the City Council, but he shall
have executive authority to enforce and make effective such
decisions and orders as the Contractor fails to carry out promptly.
The City Council reserves the right to terminate this agreement at
any time for any failure to meet the conditions of the standards,
City, State or Federal regulations or any agreement entered into
between City and franchisee.
B.
C
D
Coordination of Plans, Standards, and Special Provisions
These standards, the provisions of the Ukiah Municipal Code, and all
supplementary documents are essential parts of the Contract, and a
requirement occurring in one is as binding as though occurring in
all. They are intended to be cooperative, to describe, and to
provide for a complete work.
Inspection
City Officials shall at all times have access to the work during
operation, and shall be furnished with every reasonable facility for
ascertaining full knowledge respecting the progress and workmanship.
Appeal; Administrative Board; City Council
In the event that any interested person deems himself injured by a
determination of the City, such person may appeal in writing to an
Exhibit A -1-
Administrative Board consisting of the City Manager and City
Attorney and Such other City Official designated by City Manager.
The Board shall hold a public hearing after notice to the parties
within 10 days. The Board's decision shall be in writing and may be
appealed to the City Council in the same manner as to original
appeal to the Board, and shall be determined in like manner.
SECTION 3. LEGAL RELATIONS AND RESPONSIBILITIES TO THE PUBLIC
A. Laws to be Observed
The Contractor shall keep himself fully informed of all existing and
future State and National laws and all Municipal Ordinances and
regulations of the City of Ukiah which in any manner affect those
engaged or employed in the work, or the materials used in the work,
or which in any way affect the conduct of the work, and of all such
orders and decrees of bodies or tribunals having any jurisdiction or
authority over the same.
The Contractor shall procure for the period covered by the proposed
contract, full compensation insurance with an "Industrial Carrier"
as defined by and in accordance with the Provisions of the Act of
the Legislature of the State of California known as "Workmens'
Compensation Act", approved May 26, 1913 and subsequently amended.
The Contractor shall carry for the full period of this contract,
public liability insurance as specified by the Ukiah Municipal Code.
B. Permits and Licenses
Contractor shall procure all permits and licenses, pay all charges
and fees, and give all notices necessary and incidental to the due
and lawful prosecution of the work.
C. Patents
The Contractor shall assume all responsibility arising from the use
of patented materials, equipment, devices, or processes used on or
incorporated in the work.
D. Public Convenience and Safety
The Contractor shall so conduct his operation as to cause the least
possible obstruction and inconvenience to the public and to traffic.
SECTION 4. PROSECUTION AND PROGRESS
A. Subletting and Assignment
The Contractor shall give his personal attention to the fulfillment
of the contract and shall keep the work under his control.
Subcontractors will not be recognized as such, and all persons
engaged in the work or construction will be considered as employees
Exhibit A -2-
of the Contractor, and their work shall be subject to the provisions
of the contract and specifications.
Where a portion of the work sublet by the Contractor is not being
prosecuted in a manner satisfactory to the City, the subcontractor
shall be removed immediately on the request of the City and shall
not again be employed on the work.
The contract may be assigned only upon written consent of the City
Council of the City of Ukiah.
B. Progress of the k~ork and Time for Completion
The Contractor shall commence work on January 1, 1976 and shall
diligently prosecute the same for a period of five (5) years, ending
December 31, 1980. Six months prior to the expiration date the City
Council shall consider a five (5) year extension of the franchise on
the same or different terms as may be mutually agreed to. In the
event mutual agreement cannot be reached prior to December 31, 1980,
all rights and obligations under the franchise shall terminate at
12:00 p.m. midnight December 31, 1980.
C. Character of Workman
If any subcontractor or person employed by the Contractor shall fail
or refuse to carry out the directions of the City or shall appear to
the City to be incompetent or to act in a disorderly or improper
manner to the detriment of the citizens of the City, he shall be
discharged immediately on the request of the City, and such person
shall not again be employed on the work except that he is entitled
an administrative hearing as set forth in Section 2(E).
SECTION 5. MATERIALS
The Contractor shall furnish for use under these standards all materials
required to complete the attached contract.
SECTION 6. DESCRIPTION OF WORK
The work to be done under these standards consist of:
a) Making regular collection of refuse, garbage and rubbish from all
dwellings and business establishments which are within the city
limits of the City of Ukiah. Collections shall be made from
dwellings at least once each week and from business establishments
as necessary, but not less than once each week.
b) Make such irregular collections of refuse, garbage or rubbish from
points within th city limits of the City of Ukiah when and if
required.
c) Transport all refuse, garbage and rubbish so collected to the City
Disposal Area or other disposal area or salvage site as may be
directed by the City Manager.
Exhibit A -3-
SECTION 7. TECHNICAL PROVISIONS
7-Ol Scope: These Technical Provisions cover the collection, transportation
and disposal of refuse in and for the City of Ukiah.
7-02 Definitions: The following terms when used in interpreting these
standards shall have the following meanings:
a) "Domestic service" shall mean the Contractor's service provided to
all residences within the City of Ukiah to collect refuse, garbage
and rubbish. "Commercial service" shall mean the Contractor's
service provided to all others than domestic service.
b) "Basic domestic service" shall mean weekly collections by Contractor
from each domestic subscriber of one container not exceeding 30
gallons in slze or 70 pounds in weight of garbage, rubbish or refuse
which container is located on the subscriber's premises in a
location easily accessible to the Contractor and not more than 20
feet to the rear of the building from which such material is
accumulated and accessible to the Contractor on an established
walkway or driveway. In addition to the one 30 gallon container for
garbage, rubbish or refuse,contractor shall collect, without
additional charge, properly prepared additional disposable
containers of rubbish only, provided such container is placed at the
curb, alley or other place immediately adjacent to the normal
loading area for Contractor's truck so as to be easily available for
loading onto Contractor's collection equipment.
c) "Additional regular domestic service" means the collection by
Contractor of one or more 30 gallon containers of garbage, rubbish
or refuse at the same time as the basic domestic service is
provided, for the payment of an additional charge.
d) "Regular commercial service" means the collection of garbage,
rubbish or refuse by Contractor from commercial subscribers as often
as is necessary and not less than once each week.
7-03 Other Definitions - Terms: Which are defined or explained in the
Ordinance, plans, contract drawings or supplementary documents shall be
interpreted and shall have the same meanings as if defined herein.
Collection:
a) The Contractor shall make regular collection of refuse, rubbish
and/or garbage from each dwelling or business establishment. The
Contractor shall, wherever possible, make such collections on the
same day or days of each week.
b) Rates for regular collections more frequently than once per week
shall be computed at the monthly rate for one weekly collection
times the number of collections per week.
c) Hours of collection shall be those established from time to time by
the Contractor and approved by the City.
Exhibit A -4-
d) In the event any container is defective, overweight, located in
wrong area or otherwise in violation of the rules, regulations or
ordinances of this City, the Contractor may leave such container
with its material uncollected, in which case he shall tag the
container prominently indicating the violation. A copy or portion
of such tag indicating the location and type of violation shall be
retained by Contractor. Persistent violations or the resident's
failure to provide adequate and sanitary containers shall justify
collection by the City after 2 day's written notice to the resident
and to the City and such correction shall constitute a lien on the
property comprising the residence.
e) When requested the Contractor shall make collection of refuse,
garbage and/or rubbish from any dwelling, or business establishment
or City facility within 24 hours of receiving the request, verbally,
by phone or in writing at his established place of business. The
Contractor shall at all times maintain an office within the City of
Ukiah with a telephone having a listed number, such office to be
operated not less than five (5) days per week.
f) When in the interests of health or safety, the City Health Officer
or the City require the immediate removal of any refuse, garbage
and/or rubbish, the Contractor shall remove said matter promptly.
g) Contractor shall provide collection service to all municipal
buildings, parks, and street collection boxes at no charge to City.
The frequency of collection shall be as requested by City.
7-OS Transportation:
a) The Contractor shall provide sufficient trucks necessary to
efficiently render the service covered by these standards. All
trucks shall be as required in Chapter 5 of Division 5 of the Ukiah
Municipal Code. Wet garbage shall be transported in water tight
containers. Every truck or container used in the collection and
removal of refuse, garbage and/or rubbish shall be kept well painted
and clean inside and out.
b) The Contractor shall conduct his operations in the public streets,
alleys and ways in strict accordance with all traffic regulations of
the City of Ukiah and the State of California. He shall cause a
minimum delay of traffic by his operations.
c) Should any refuse be dropped on the City streets or on private
property as a result of his operations the Contractor shall remove
it immediately.
7-06 Disposal•
a) All refuse collected by the Contractor from sources within the City
of Ukiah shall be transported to the City Disposal Area located
adjacent to the Vichy Springs Road, or other disposal area as
directed by the City.
Exhibit A -5-
b) The City shall retain sole right of salvage of materials received at
the Disposal Area.
SECTION 8. SUBSCRIBERS
8-01 Information to Subscribers:
Residents shall be informed by mail of the provisions of this contract
relating to their service and particularly as to rates, container locations,
their right to weekly collection in addition to the garbage collection, and
additional available service. At least annually Contractor shall, by means
designed to reach all City residents inform such persons of the services
available to them.
SECTION 9. FINANCIAL STATEMENT
Contractor sliall pay to the City, prior to December 15th of each year, an
amount not to exceed $5,000 as determined by the Director of Finance for the
purpose of retaining a Certified Public Accountant whose duty shall be to
examine the records of Contractor and prepare a financial statement with
opinion showing gross revenues and expenses by type and amount for the
Contractor's operations under this agreement for the period ending the
following December 31st. Any surplus not paid for audit purposes shall be
refunded to Contractor.
SECTION 10. COMMERCIAL BULK CONTAINERS
The Contractor may, with consent of the owner or occupant of a commercial
establishment, motel, hotel, apartment house, building contractor, industry,
and similar places, maintain closed bulk containers on such premises. Such
containers shall be of a size and type approved by the City.
SECTION 11. RESPONSIBILITIES
It shall be the responsibility of the Contractor to, at least once each week,
pick up properly prepared garbage, refuse, etc. from each occupied residence
in the City unless it is determined by him that such garbage, refuse, etc. is
being properly disposed of by other means.
SECTION 12. BILLING
In the interests of economy the City shall retain responsibility for all
billing, both residential and commercial. All bills for services rendered in
the City limits shall be processed by the City. The City shall receive a fee
for this service of 3~ of the accounts billed. Contractor shall provide all
necessary information requested by the Director of Finance.
Contractor shall be responsible for all accounts deemed by the Director of
Finance to be uncollectible and no payment shall be made to Contractor in
advance of actual collection.
Exhibit A -6-
SECTION 13. FRANCHISE FEE
Contractor shall pay to city a franchise fee equal to 15~ of actual
collections. Said fee shall be deducted from payments due to Contractor.
SECTION 14. DISPOSAL SITE FEES
It is the intent of the City to operate the Disposal Site in such a manner
that the expenses of Disposal Site operation are fully met by fees.
Contractor shall pay disposal site fees as they are set from time to time by
the City Council.
The budget for 1974-75 contemplates a disposal site fee for compacted yardage
of $2.00/cubic yard compacted. In no way shall the right of the City to
adjust fees from time to time or to impose new fees be prejudiced nor is there
any commitment on the part of City to the current fee schedule.
SECTION 15. ADJUSTMENT OF RATES
Rates shall be considered firm for three (3) year periods beginning January 1,
1976. The City Council shall review rates thereafter in three (3) year
intervals during January. After investigation the Council may make whatever
adjustments or changes in rate structure as may appear desirable or necessary
to Council.
R:PW12
ASR 2/19/92 REFUSE
Exhibit A -7-
~. i I IIQ~IT B
1 RESOLUTION N0. 91-24
2 RESOLUTION OF THE CITY COUNCIL OF THE CITY
3 OF UKIAH ADOPTING REVISED SCHEDULE OF FEES
AND RATES FOR GARBAGE COLLECTION SERVICE
4
5 WHEREAS, the City Council, under terms of its franchise with Ukiah
6 Solid Wastes Systems, Inc., must periodically revise and establish rates
7 for garbage collection services within the City of Ukiah, and
8 WHEREAS, rates for such service must provide for costs of service of
9 said franchisee, and
to WHEREAS, as Ukiah Solid Wastes Systems, Inc. ,_ has presented to the
11 City its requested rate schedule, and
12 WHEREAS, the City Manager has considered said request and made his
13 recommendation, and
14 WHEREAS, the City Council did duly notice and make available the City
15 Manager's report and recommendation for public inspection, all in
1~ accordance with the requirements of the Ukiah City Code, and did consider
17 in a public hearing the proposed rates of Ukiah Solid Wastes Systems,
18 Inc., and the recommendation of its City Manager at its regular meeting of
19 October 3, 1990.
20 NOW, THEREFORE, BE IT RESOLVED that the City Council hereby finds:
,~1 1. An increase of rates is necessary to (a) offset rising costs of
22 operation, (b) offset new landfill tipping fees, and (c) provide a
23 reasonable return to the Ukiah Solid Wastes Systems, Inc.
24+ 2. That the rate structure is adopted and is set forth below and
25 made a part of this resolution.
2c //////////////////////////////////////////////////////////////////////////
27 //////////////////////////////////////////////////////////////////////////
28
RESIDENTIAL SERVICE Curb Pack Out
Minimum (10 gal can) $ 1.80 $ 2.80
20 Gallon
1 can 3.80 4.80
2 cans 9.25 11.65
3 cans ~ 14.20 18.40
4 cans 19.11 25.51
30 Gallon
1 can 6.87 8.40
2 cans 14.31 17.40
3 cans 21.60 27.00
4 cans 31.80 37.20
30 Gallon - BGR* Pack Out
'_ 1 can None 12.90
2 cans None 26.40
3 cans - None 40.05
4 cans None 53.64
*Note: BGR - Small Truck Run
1 - 105 gal garbage toter
1 - 60 gal compost/yard waste toter
bi-weekly pickup
1 - 90 gal compost/yard waste toter
bi-weekly pickup
27.20 None
1.20 per month
1.25 per month
Upon proof of physical handicap, the curb service rate may apply to
certain residential customers even if they receive the pack out service .
SPECIAL SERVICES
Call-in Pickup and Disposal
Appliances - $10 per stop, plus current disposal charge.
Tires -
Up to 4 automobile or motorcycle sized tires on regular garbage
collection route, $3.00 each.
5 or more automobile or motorcycle sized tires, special trip, $10.00
plus current disposal charge.
Larger Truck Sized Tires - Special trip. $10.00 plus current
disposal charge.
Furniture and Other Items - Special trip. $10.00 plus current
disposal charge.
2
1
COMMERCIAL SERVICE
2
Container
3 Size 1/Week 2/Week 3/Week 4/Week 5/Week 6/Week
1 Yard* $ 51 $ 74 N/A N/A N/A N/A
4 I} Yard* 58 91 $118 $157 $199 $241
2 Yard* 71 108 146 207 250 291
5
*Add $1.00 per pickup for locked container service.
6
Cans
7 Rate
1 - 30 gal can $ 9
$
Toter
~ 1 - 105 gal garbage toter $ 29
to Drop Boxes
20 Yard Box Per Dump 146
11 30 Yard Box Per Dump 184
40 Yard Box Per Dump 221
12
Compactor
13 6 Yard Compactor $138
12 Yard Compactor 207
14
BE IT FURTHER RESOLVED that the rate schedules adopted by this
15
Resolution shall be effective on November 1, 1990. All prior rate
1~
schedules in conflict herewith are repealed upon the effective date of the
1~
new schedule. All other contract conditions for service remain unaltered
18
and in full effect.
19
pASSED AND ADOPTED this 17th day of O ctober 1990
b the
,
y
20
following roll call vote:
21
AYES: Councilmembers McMichael, Wattenburger, Shoemaekr, Schneiter and
22 Mayor Henderson
Noss: None
23
ABSENT: None
ABSTAIN:
25
2E
27
28
Jerson, Mayor
3
EXHIBIT C
RECYCLING CONTAINERS
Contractor shall provide a set of three (3) "Recycle 3" containers, or other
similar containers mutually agreed upon by Contractor and City's Recycling
Program Coordinator, to each eligible residence in the City of Ukiah. These
containers are specially made of rigid plastic construction for stacking in
each other to assist homeowners to participate in the curbside recycling
program. One container is used to store bottles, one for cans and one for
newspaper. The containers are illustrated below.
R:PW12
ASR 2/19/92 REFUSE
F.XHTRTT P
PUBLIC AWARENESS PROGRAM
CONTRACTOR'S RESPONSIBILITIES:
A. Introductory Packet.
Contractor will prepare an Introductory Packet of information regarding
the curbside recycling program, approved in advance by City's Recycling
Coordinator, and will distribute such packet with the recycling
containers to each residential unit. The packet shall include:
1. A letter from the Mayor and the City Council of the City of
Ukiah urging the residents to participate in the program.
2. A two-part information card containing specific information to
the resident regarding collection day, non-collection holidays,
preparation of materials, and other appropriate matters. There
will also be a tear-off and mail in card for volunteers.
B. Upon request by City, Contractor will assist City in developing a listing
of non-participating households in the City.
CITY'S RESPONSIBILITIES:
A. City will contact all local media to seek coverage of the recycling
program to increase citizen awareness of the benefits of recycling.
B. City will develop an overall "Promotional Plan" for the curbside
recycling program, with goals, strategies and timetables for Contractor
and City actions.
C. City will encourage volunteers to make contact with neighbors who do not
participate in the curbside recycling program and encourage them to
participate. Volunteers will either keep track of participants or will
receive a listing from the City of the non-participating households.
City will hold briefing sessions for volunteers to explain how they may
best encourage participation. At these sessions City will distribute
printed materials to assist volunteers.
D. City will provide necessary funds for any new promotional activities
related to the curbside recycling program undertaken by Contractor.
E. City will assist Contractor's public awareness efforts wherever able.
R:PW12
ASR 2/19/92 REFUSE
FYUTR'fT F
REPORTS
Contractor shall submit to the City the following reports, on forms approved
by City, during the term of this Agreement:
A. MONTHLY PROJECT REPORTS
Within five (5) working days after the last day of each month, Contractor
shall submit a monthly project report to include at least all of the
following:
1. Summaries of tonnages of all Recyclable Materials recovered, by
material. Distinguishing between Residential, Commercial and
Multi-family programs.
2. Summaries of tonnages of all Recyclable Materials sold, by
material.
3. Market prices for all Recyclable Materials collected from curbside
and sold by Contractor. The weight receipts shall be available for
inspection by City upon request.
4. Residential, Commercial and Multi-family participation rates in
terms of weekly set-out counts, and monthly participation rates
calculated at 2.5 times the average weekly set-out rate.
5. A summary of missed pick-ups by route and explanation of noteworthy
experiences, and a summary of telephone calls received by category,
including inquiries about the program, missed pickups, and container
replacement.
6. A summary of expenses of operating the Residential, Commercial and
Multi-family recycling programs, including the monthly costs of
labor, equipment, supplies maintenance, insurance and other direct
costs. The summary should not include indirect costs.
B. QUARTERLY PROJECT STATUS REPORTS
Within fifteen (15) working days from the end of each quarter, Contractor
shall submit a quarterly project status report to include at least all of the
following:
1. Summary of all revenues, tonnages recovered by material, and
participation rates.
2. Overall assessment of performance during the quarter.
3. Detailed data to allow analysis of collection and processing
equipment handling capabilities.
4. Discussion of problems and noteworthy experiences in program
operation.
Exhibit E -1-
C. QUARTERLY SALVAGE REVENUE STATEMENTS
Within fifteen (15) days from the end of each quarter, Contractor shall submit
a revenue statement of all sales of Recyclable Materials from the recycling
programs sold during the quarter, and an expense statement for the quarter.
D. ANNUAL REPORTS
On or before July 31 of each year of the term of this Agreement, Contractor
shall submit a year-end annual report to include at least the following:
1. A collated summary of the information contained in the quarterly
reports, and a summary of the participation rates and tonnages of
recovered material.
2. A discussion of public awareness activities and their impact on
participation and recovered volumes.
3. A discussion of highlights and other noteworthy experiences,
measures taken to resolve problems, increase efficiency and
household and commercial participation.
Reports shall be submitted to:
Recycling Coordinator
City of Ukiah
Ukiah Civic Center
300 Seminary Avenue
Ukiah, California 95482
R:PW12
ASR 2/19/92 REFUSE
Exhibit E -2-
EXHIBIT F
INSURANCE REQUIREMENTS FOR CONTRACTORS
Bidder's attention is directed to the insurance requirements below. It is
highly recommended that bidders confer with their respective insurance
carriers or brokers to determine in advance of bid submission the availability
of insurance certificates and endorsements as prescribed and provided herein.
If an apparent low bidder fails to comply strictly with the insurance
requirements, that bidders may be disqualified from award of the contract.
Contractor shall procure and maintain for the duration of the contract
insurance against claims for injuries to persons or damages to property which
may arise from or in connection with the performance of the work hereunder by
the contractor, his agents, representatives, employees or subcontractors. The
cost of such insurance shall be included in the contractor's bid.
A. MINIMUM SCOPE OF INSURANCE
Coverage shall be at least as broad as:
1. Insurance Services office form number GL 0002 (Ed.l/73) covering
Comprehensive General Liability and Insurance Services Office form
number GL 0404 covering Broad Form Comprehensive General Liability;
or Insurance Services Office Commercial General Liability coverage
("occurrence" form CG 0001).
2. Insurance Services Office form number CA 0001 (Ed. 1/78) covering
Automobile Liability, code 1 "any auto" and endorsement CA 0025.
3. Worker's Compensation insurance as required by the Labor Code of the
State of California and Employers Liability insurance.
B. MINIMUM LIMITS OF INSURANCE
Contractor shall maintain limits no less than:
1. General Liability: $1,000,000 combined single limit per occurrence
for bodily injury, personal injury and property damage. If
Commercial General Liability Insurance or other form with a general
aggregate limit is used, either the general aggregate limit shall
apply separately to this project/location or the general aggregate
limit shall be twice the required occurrence limit.
2. Automobile Liability: $1,000,000 combined single limit per accident
for bodily injury and property damage.
3. Worker's Compensation and Employers Liability: Worker's
compensation limits as required by the Labor Code of the State of
California and Employers Liability limits of $1,000,000 per
accident.
Exhibit F -1-
C. DEDUCTIBLES AND SELF-INSURED RETENTIONS
Any deductibles or self-insured retentions must be declared to and approved by
the City. At the option of the City, either: the insurer shall reduce or
eliminate such deductibles or self-insured retentions as respects the City,
its officers, officials, employees and volunteers; or the contractor shall
procure a bond guaranteeing payment of losses and related investigations,
claim administration and defense expenses.
D. OTHER INSURANCE PROVISIONS
The policies are to contain, or be endorsed to contain, the following
provisions:
1. General Liability and Automobile Liabilit Coverages.
a. The City, its officers, officials, employees and volunteers are
to be covered as insureds as respects: liability arising out
of activities performed by or on behalf of the contractor,
including the insured's general supervision of the contractor;
products and completed operations of the contractor; premises
owned, occupied or used by the contractor; or automobiles
owned, leased, hired or borrowed by the contractor. The
coverage shall contain no special limitations on the scope of
protection afforded to the City, its officers, officials,
employees or volunteers.
b. The contractor's insurance coverage shall be primary insurance
as respects the City, its officers, officials, employees and
volunteers. Any insurance or self-insurance maintained by the
City, its officers, officials, employees or volunteers shall be
excess of the contractor's insurance and shall not contribute
with it.
c. Any failure to comply with reporting provisions of the policies
shall not affect coverage provided to the City, its officers,
officials, employees or volunteers.
d. The contractor's insurance shall apply separately to each
insured against whom claim is made or suit is brought, except
with respect to the limits of the insurer's liability.
2. Worker's Compensation and Employers Liability Coverage.
The insurer shall agree to waive all rights of subrogation against
the City, its officers, officials, employees and volunteers for
losses arising from work performed by the contractor for the City.
3. All Coverages.
Each insurance policy required by this clause shall be endorsed to
state that coverage shall not be suspended, voided, cancelled by
either party, reduced in coverage or in limits except after thirty
Exhibit F -2-
(30) days' prior written notice by certified mail, return receipt
requested, has been given to the City.
E. ACCEPTABILITY OF INSURERS
Insurance is to be placed with insurers with a Best's rating of no less than
A:VII.
F. VERIFICATION OF COVERAGE
Contractor shall furnish the City with certificates of insurance and with
original endorsements effecting coverage required by this clause. The
certificates and endorsements for each insurance policy are to be signed by a
person authorized by that insurer to bind coverage on its behalf. The
certificates and endorsements are to be on forms provided by the City. Where
by statute, the City's workers' compensation-related forms cannot be used,
equivalent forms approved by the Insurance Commissioner are to be substituted.
All certificates and endorsements are to be received and approved by the City
before work commences. The City reserves the right to require complete,
certified copies of all required insurance policies, at any time.
G. SUBCONTRACTORS
Contractor shall include all subcontractors as insureds under its policies or
shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the requirements
stated herein.
R:PW12
ASR 2/19/92 REFUSE
Exhibit F -3-
AMENDMENT TO THE AGREEMENT ENTITLED "CONTRACT FOR COLLECTION,
TRANSPORTATION, AND DISPOSAL OF GARBAGE, REFUSE, AND RUBBISH,
AND RECYCLING OF RECYCLABLE MATERIALS FROM WITHIN THE
CITY OF UKIAH", EXECUTED ON MARCH 23, 1992
WHEREAS, Solid Waste Systems, Inc., (the "Contractor"), has been granted the
sole and exclusive right and franchise to collect, transport, and dispose of refuse,
garbage and rubbish, and to collect and recycle for market recyclable materials,
generated by all sources within the corporate limits of the City of Ukiah (the "City"),
pursuant to the provisions of an agreement executed on March 23, 1992, and entitled
"Contract for Collection, Transportation and Disposal of Garbage, Refuse and Rubbish
and Recycling of Recyclable Materials from Within the City of UI<iah" (the
"Agreement");
WHEREAS, the Contractor desires that the terms of the Agreement be extended
five (5) years thereby permitting the Contractor to amortize the cost of contemplated
improvements at the Contractor's place of business from which he provides service
to Ukiah, and
WHEREAS, the contemplated improvements will enhance recycling programs
that benefit the City of Ukiah.
NOW, THEREFORE, in consideration of the facts as recited above, the City and
the Contractor hereby agree to amend the Agreement by incorporating the following
amendments:
AMENDMENTS
1. In the event the Contractor, within one (1) year from the date of this
Agreement is executed, obtains all required permits and approvals and
commences construction of a recycling facility and redemption center at the
Contractor's Taylor Drive site in substantial conformance to file facility depicted
in Exhibit "A", attached and incorporated herein by reference, and completes
construction within 180 days thereafter the five (5) year term stated in Article
2 of the Agreement shall be changed to a ten 110) year term and the date
stated in Article 2 of the Agreement as the date the term of the Agreement
terminates shall be changed from Midnight, March 31, 2002, to Midnight,
March 31, 2007.
2. Section 16 of the Agreement is amended to provide that the Contractor shall
also be obligated to maintain books of account and to provide the audit
described in that Section for any other entity which is legally controlled by the
Contractor and which performs any of the obligations of the Contractor under
the Agreement.
3. The Contractor warrants that ~,~~~ jA~UFI~S has been duly
authorized by the Contractor to execute this A~me dment on behalf of the
Contractor.
Upon execution of this Amendment, the provisions of this Amendment shall become
binding upon both parties of the Agreement and shall modify any conflicting
provisions of the Agreement, pursuant to the provisions of Paragraph 28 of the
Agreement.
In witness w ereof, the City and the Contractor have executed this Amendment this
~~ day of ~ 1997, in Ukiah California.
SOLID WASTE SYSTEMS, INC. CITY OF UKIAH
BY:
ATTEST:
Colleen B. Henderson
City Clerk
S:TRANSFER.]
B~
Candace Horsley, City M payer
City of Ukiah, California
Certified To Bel A~,True and Exact Copy
Oate 8ollaerrBc'Mleadersdn. City Clerk
~i.9,e~~ vcvic,g
AMENDMENT TO THE AGREEMENT ENTITLED "CONTRACT FOR COLLECTION,
TRANSPORTATION AND DISPOSAL OF GARBAGE, REFUSE, AND RUBBISH, AND
RECYCLING OF RECYCLABLE MATERIALS FROM WITHIN THE CITY OF UKIAH",
EXECUTED ON MARCH 23, 1992.
RECITALS:
1. Solid Waste Systems, Inc. ("Contractor"), and the City of Ukiah ("City"), have
executed an agreement dated March 23, 1992 and entitled "Contract for Collection,
Transportation and Disposal of Garbage, Refuse and Rubbish and Recycling of
Recyclable Materials from Within the City of Ukiah" (the "Franchise Agreement");
2. The Contractor and the City also have entered a contract executed on May 7,
1998, and entitled "Transfer Station Contract Between City of Ukiah and Solid Waste
Systems, Inc." ("Transfer Station Contract");
3. Pursuant to the provisions of Article 15 of the Transfer Station Contract the
City has agreed to amend the Franchise Agreement whereby the date for the
termination of the Franchise Agreement shall be extended to the date for the
termination of the Transfer Station Contract; provided, however, that nothing in
Article 15 shall prohibit the contractor and City from extending the Franchise
Agreement beyond the termination of the Transfer Station Contract.
4. On May 9, 1997, the parties amended the Franchise Agreement by executing
the Amendment to the Agreement entitled "Contract for Collection, Transportation
and Disposal of Garbage, Refuse and Rubbish, and Recycling of Recyclable Materials
from within the City of Ukiah, executed on March 23, 1992 ("Amendment").
AGREEMENT:
Now, therefore, in consideration of the above recited facts, the City and the
contractor hereby agree to the following:
1. Section 1 of Amendment is hereby voided.
2. Article 2, "Term of the Contract", of the Franchise Agreement is hereby
amended to read as follows:
"The term of this Agreement shall be for a period of 10 years from the date of
the start of operation of the Transfer Station pursuant to Section 2.02 of the
"Transfer Station Contract" between the City of Ukiah and Solid Waste
Systems, Inc., executed on May 7, 1998, unless terminated earlier pursuant to
Paragraph 20 of this Agreement. The term of this Agreement shall be extended
an additional 10 years on the same terms and conditions if the Transfer Station
Contract is extended an additional 10 years pursuant to the provisions of
Article 14 of the Transfer Station Contract. Nothing in this Agreement shall
prohibit the parties from extending this Agreement beyond the termination of
the Transfer Station Contract. Upon the mutual written agreement of the
parties, this Agreement may be extended for such additional term or terms as
the parties shall agree."
3. Upon execution of this Agreement, the provisions of this second amendment
to the Franchise Agreement shall become effective and shall supersede and replace
the provisions in Section 1 of the Amendment and Article 2 of the Franchise
Agreement. Unless expressly modified by this Agreement all other provisions of the
Franchise Agreement and the Amendment shall remain in full force and effect.
4. This Agreement may be executed in one or more duplicate originals, each
bearing the original signatures of the parties. When so executed, each such duplicate
original shall be admissible to prove the existence and terms of this Agreement.
In witness whereof, the Cit and the Contractor have executed this Amendment this
~( day of ~1J~ 1998, in Ukiah, California.
SOLID WASTE SY_STE(MS, INC. CITY OF UKIAH
Malone, Mayor
ATTEST:
Secretary
Marie Ulvila, City Clerk
8: t WGPEEMENT.2
SOLIOWASTE2
City of Ukiah, California
Certified To Be A True and Exact Copy
oa~e o~~raric~e.k
rrisi,aaE u.c~iul
AMENDMENT TO WASTE COLLECTION AGREEMENT
BETWEEN
C[TY OF UKIAH
and
SOLID WASTES SYSTEMS, INC.
AMENDMENT 'I'O CONTRACT N'OR COLLECTION,
TRANSPORTATION AND DISPOSAL OF GARBAGE,
REFUSE, AND RUBBISH, AND RECYCLING OF
RECYCLABLE MATERIALS FROM WITH THE C[TY OF
UKiAH
'Chis Agreement between the Ciry of Ukiah, a municipal corporation, and Solid Waste
Systems, Inc., a California corporation, amends specified sections of the Contract for
Collection, Transportation and Disposal of Garbage, Refuse, and Rubbish, and Recycling of
Recyclable Materials from within the City of Ukiah, dated March 23, 1992 ("Franchise
Agreement"). These amendments to the Franchise Agreement are made and entered in Ukiah,
California, on November 2001 ("Effective Date").
1. Except as specifically set forth in this Agreement, all of the terms and conditions of
the Franchise Agreement remain in full force and effect.
2. Section 2 of the Franchise Agreement is amended to read as follows:
2. TERM OF THE CONTRACT
The term of this agreement, shall be for fifteen years, commencing on October 1,
2001, and terminating at midnight on September 30, 2016, unless terminated earlier
pursuant to paragraph 20 herein; provided, however, that at the end of said fifteen year
term, the agreement shall be extended for an additional term of five (5) years on the same
terms and conditions, unless either party gives notice of termination ninety (90) days
prior to midnight September 30, 2016. At the election of Contractor and with the
concurrence in writing of City, this Agreement can be extended for such additional term
or terms as the parties shall agree.
3. Section 4 of the Franchise Agreement is amended to read as follows:
4. PAYMENT
Beginning October 1, 2001, Contractor shall be paid based on rates that will
increase each year for the next two years by an amount equivalent to 75% of the
percentage change from the previous year in the U.S. Department of Labor ("DOL"),
Bureau of Labor Statistics, Consumer Price Index ("CPI"), All-U.S. Cities Average, June
to June ("Contract CPl"). .Prior to the third year, commencing on October 1, 2004, the
City Council shall conduct a rate hearing pursuant to UCC sections 3950-3957 to
determine what, if any, adjustment should be made to the garbage collection rates, in the
third or subsequent years, taking into consideration the annual audits of the Contractor's
operations, the reports submitted pursuant to Section 8.U of this Agreement, and all other
Cactors and information deemed relevant by the City Council. Thereafter, unless the
City Council should determine otherwise at any rate hearing referenced herein, the rates
shall automati ally increase or decrease annually every two years by the Contract CPL.
2
4. Section 6 of the Franchise Agreement is amended to read as follows:
6. GARBAGE COLLECTION BILLING
City has responsibility for all garbage collection billing. The City shall receive a
fee of three percent (3%) of the said amounts billed and collected for this service, all in
accordance with Section 12 of Exhibit "A," except a billing fee will not be collected on
commercial accounts billed directly by Contractor. In addition, Contractor shall pay to
the City a contract coordination and oversight fee of $10,000.00 each year.
5. Section 8, subsections D and E of the Franchise Agreement are amended to read as
follows:
D. Sale of Recyclabte Materials. Contractor shall sell all Recyclable Materials
collected from the curbside or from commercial accounts by Contractor pursuant
to this Agreement for fair market value. For purposes of this Agreement fair
market value equals $30,000.00 as of the Effective Date . Contractor shall keep
accurate records of the quantities of Recyclable Materials collected under this
Agreement and of its receipts from the sale of Recyclable Materials. Every three
years, at the same time that rates are reviewed pursuant to Section 4 of this
Agreement, the Contractor shall file a report with the City containing its actual
receipts for Recyclable Materials and any other information reasonably requested
by the City that reflects the fair market value of Recyclable Materials. The City
shall review the Contractor's report and may review any other records maintained
by the Contractor. Revenue obtained from the sale of Recyclable Materials shall
be retained by Contractor but shall be considered by the City Council as off-
setting income, when the City Council conducts rate hearings as provided in
paragraph 4 of this Agreement and sets rates for collection and recycling.
E. Expansion of Program. Contractor and the City shall continue developing
and implementing plans and schedules for expanding or improving the recycling
program in connection with the development of a waste management plan under
Chapter 1095 of the Statutes of 1989 ("AB 939"). In expanding or improving the
program, the City may approve changes in the Contractor's method of picking up,
processing or disposing of recyclable materials, including changes in the
containers specified in this Section 8. Commencing on or before January 1, 2002,
Contractor shall implement aSingle-Stream Recycling Automated Collection
System ("System") pursuant to which recyclable materials need not be sorted
before pick-up by the Contractor but are co-mingled with each other, but not with
solid waste that does not constitute Recyclable Materials. A detailed description
of the System shall be prepared by Contractor for the City's review and approval.
Once approved by the City, the Contractor shall operate the system in compliance
with the approved written description.
Wherefore, this Agreement is entered by the parties on the Effective Date.
3
THE CI"fY OP UKIAIf, a municipal corporation
ATTEST:
"Contractor"
~~
SOLID WASTE SYSTEMS, INC.,
A California corporation
By:
By:
i3y: ~~
Its: ~7Zd //I}~/C~i`7C _~~
~ecremry
EXHIBIT B
AGREEMENT FOR RECEIPT OF WOOD AND GREEN WASTE
This Agreement ("Agreement") is made and entered into effective this 1 ~' day of September, 2007, by and
between Pacific Recycling Solutions, Inc., a California corporation ("PRS"), Ukiah Waste Solutions, Inc.,
a California corporation ("UWS"), and Solid Waste Systems, [nc., a California corporation ("SWS").
RECITALS
A. PRS owns and operates a green waste and wood waste processing facility in Mendocino
County, California (the "Facility").
B. The Facility is fully permitted to accept and process Green Waste and Wood Waste, as defined
below ("Materials").
C. SWS holds a contract with the City of Ukiah for the operation of the Ukiah Valley Transfer
Station for the receipt, collection, transportation and disposal of municipal, commercial and
industrial solid waste, and UWS holds a contract with the City of Ukiah for the collection and
disposal of solid waste. SWS and UWS desire to enter into an agreement with PRS which will
provide for disposal of 10,000 tons annually of Materials at the Facility.
In consideration of the aforementioned recitals and upon the terms and conditions herein set forth, the
parties hereto agree as follows:
1. DeTinitions: The following terms shall have the respective meanings set forth below:
"Green Waste" shall mean green trimmings, grass, weeds, leaves, prunings, branches, dead plants,
brush, tree trimmings, dead trees, small wood pieces and other types of organic yard waste,
provided that dead trees and branches may not exceed six (6) inches in diameter and four (4) feet
in length.
"Wood Waste" shall mean clean pieces of unpainted and untreated wood.
"Process" shall mean handle, grind or chip and recycle Materials.
2. Agreement to Accept Materials: PRS agrees to accept and Process all Materials collected at
SWS's transfer station or collected by UWS, as provided for under their contracts with the City of
Ukiah, and delivered by SWS or UWS to the Facility, on the terms herein.
3. Processing Rate: As consideration for the receipt and proper Processing by PRS of the Materials
delivered by SWS or UWS, SWS and UWS shall pay PRS a fee of Thirty Dollars ($30.00) per ton
for Materials received by PRS at the Facility from SWS and U WS, respectively, as adjusted
pursuant to Paragraph 3 herein (the "Processing Rate"). Fees shall be paid by SWS and UWS
within thirty (30) days of receipt from PRS of a written invoice detailing the amount of Materials
received by PRS for each month.
4. Adjustment of Processiug Rate: The Processing Rate of Thirty Dollars ($30) per ton shall be
held constant for the first five (5) years, provided that, at the beginning of the sixth (6`h) year and
annually thereafter the Processing Rate will be increased by a percentage equal to the percentage
increase, if any, in the Consumer Price Index, All Items, for the San Francisco-Oakland
Metropolitan Area published by the United States Department of Labor, Bureau of Labor Statistics
("Index"), for the preceding year, using the Index published for the month nearest the beginning
and the month nearest the end of such year. Notwithstanding any other provision herein, to the
extent any government having jurisdiction over the Facility should impose any fee or tax
("Government Tax") on the Facility associated with the Processing of Materials, the Processing
Rate shall be increased by the amount of such Government Tax, either at the per ton rate of such
Tax or if such Tax is not assessed on a per ton basis, in [he proportion that the total tonnage of
Materials PRS reasonably projects to accept from SWS an UWS during the period for which the
Government Tax will pertain compared with other users of the Facility. On each adjustment of the
Processing Rate, PRS shall deliver to SWS and UWS written notice stating the adjusted
Processing Rate.
Term of Agreement: This Agreement shall expire as to each of SWS and U W S on the expiration
of its respective contract with the City of Ukiah, 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 U WS any Materials that are not in
conformance with the standards set forth herein. Notice of rejection ofnon-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 oY'the preceding sentence shall forfeit FRS's right [o reject such non-conforming Materials.
SWS or U WS 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. Amouut of Waste to be Delivered: SWS and UWS estimate that they will 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
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 S WS, U WS and FRS.
1 I . Confidentiality: Neither party shall disclose the Processing Rate to any person except with the
express written permission of the other, which permission shall not be unreasonably withheld.
Without limiting the generality of the foregoing, PRS shall agree to allow S W S or U WS to
disclose the Processing Rate as may be reasonably requested or required by a franchisor under a
franchise 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 Beneficiary: The City of Ukiah is a third party beneficiary of this Agreement.
Date:
Date:
Date:
Pacific Recycling Solutions, Inc.
By: David Carroll
Solid Waste Systems, Inc.
By: John Shea
Ukiah Waste Solutions, Inc.
By: John Shea
ATTACHMENT3
ASSIGNMENT AND CONSENT
[TRANSFER STATION CONTRACT]
THIS ASSIGNMENT AND CONSENT (the "Agreement") is made this _ day of October,
2007, by and between the City of Ukiah, a municipal corporation ("City"), Solid Waste Systems, Inc., a
California corporation ("SWS"), North Bay Corporation, a California corporation ("Affiliate"), and
Yulupa Investments, LLC, a California limited liability company ("Yulupa"), with reference to the
following:
A. City, S WS and Affiliate are parties to that certain Agreement dated November 20, 2001,
as amended April 17, 2002 (the "Contract"), for the operation of the Ukiah transfer station ("Transfer
Station"), a copy of which is attached hereto as Exhibit A.
B. At a closing to be held on or about October 31, 2007, all the outstanding shares of SWS
will be sold to David Carroll, John Shea and Bruce McCracken and/or their family trusts ("Buyers") and
the real property located at 3151 Taylor Drive, Ukiah, California, also known as Mendocino County
Assessor Parcel No. 184-140-13 (the "Property"), that houses the Transfer Station will be sold to Yulupa
(the "Closing").
D. Under the Contract:
"Contractor shall not directly or indirectly, voluntarily or involuntarily assign, mortgage, pledge or
encumber any interest in all or a part of the contract and shall not transfer any controlling stock or
ownership interest in Contractor or take any other action which would result in any individual or entity
other than Contractor as it existed on the effective date of this Contract providing services hereunder
without the prior written consent of the 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 paragraph."
E. Subject to the terms and conditions as further stated herein, the parties wish [o document
City's consent to the sale of the stock in S WS to Buyers and the sale of the Property to Yulupa
(collectively, the "Sale"), 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:
I . Approval. Subject to the conditions as set forth in paragraph 3 below, each of which must
be satisfied prior to or at the Closing, SWS shall continue to possess all of its right, title and interest in the
Contract. SWS hereby agrees to continue to keep, perform, fulfill and be bound by all of the terms,
covenants and conditions required to be kept, performed, and/or fulfilled by it under the Contract from and
after the Closing. As of the Closing, Affiliate hereby assigns, conveys, transfers and sells to Yulupa all of
Affiliate's right, title and interest in the Contract. Yulupa hereby agrees to continue to keep, perform,
fulfill and be bound by all of the terms, covenants and conditions required to be kept, performed, and/or
fulfilled by Affiliate under the Contract from and after the Closing.
2. Release of Affiliate. Subject to the conditions as set forth in paragraph 3 below, each of
which must be satisfied prior to or at the Closing, Affiliate shall be forever released from all duties and
obligations, to the extent assigned to and assumed by Yulupa, under the terms of the Contract. Thereafter,
Affiliate shall have no liability with respect to the Contract or the performance of any obligations
thereunder or any breach or default under the terms thereof, to the extent that such liabilities and/or
obligations relate to the Contract and arise after the Closing.
3. Consent to the Sale. Subject to the following, each of which must be satisfied prior to or
at the Closing, City hereby consents to the Sale:
a. All deeds of trust encumbering the Property prior to the Closing shall be conveyed
and removed as encumbrances on the Property, and the Property shall not be used as security for any loans
or other debts for the remaining term of the Contract.
b. A Memorandum of Agreement approved by City shall be recorded, providing
notice of the City's lease and purchase rights under the Contract.
c. The Ratto Group of Companies Inc., a California corporation (the "Ratto Group"),
shall execute in a form approved by the City and be bound by an agreement that guarantees the
performance of SWS and Yulupa under the Contract for a period of three (3) years from the Closing.
d. The Ratto Group shall execute in a form approved by the City and be bound by an
agreement that indemnifies the City and SWS against any failure or refusal by Portrero Flills Landfill, Inc.,
or its successor or assigns ("Portrero"), to comply with the Agreement for Landfill Disposal Services
between Portrero and SWS, dated April 10, 1997, for a period of three (3) years from the Closing.
e. SWS may take to the facility located at 4200 North State Street, Ukiah, California
("North State Street Facility") green and wood waste delivered by self-haulers or contract waste haulers to
the Transfer Station for as long as more than 50% of the voting stock of Pacific Recycling Solutions, [nc.,
a California corporation ("PRS"), is owned by Buyers or any of them and PRS operates the Facility in
accordance with all governmental approvals and legal requirements and provided that PRS accepts such
waste in accordance with the Agreement for the Receipt of Green and Wood Waste between PRS and
SWS, dated September 1, 2007 and a copy of which is attached hereto as Exhibit B ("Green Waste
Agreement'), or any successor agreement with the same terms and conditions. The term of the Green
Waste Agreement, including the provision providing for a cost of living increase only in the gate fee after
September I, 2012, coincides as to S WS with the remaining term of the Contract and the City shall be
deemed a third party beneficiary of the Green Waste Agreement.
f SWS shall not charge more than $14.95 for each appliance accepted for disposal
at the Transfer Station, unless a different rate is approved by the City. If, in the future, SWS is reimbursed
by the City, the ratepayers or any governmental or private industry program for all or part of the cost to
accept or process appliances, the fee charged by S WS shall be reduced by the amount of that
reimbursement.
g. SWS shall not seek a rate increase at the Transfer Station based on any reduction
in Transfer Station revenues resulting from the City authorizing Ukiah Waste Solutions, Inc. to take green
and wood waste or single stream recycling to the North State Street Facility.
h. If PRS receives all required governmental approvals for a materials recovery
facility ("MRF") at the North State Street Facility and for as long as more than 50% of the voting stock of
PRS is owned by Buyers or any of them and PRS operates the MRF in accordance with those approvals
and all other legal requirements, the City consents to SWS taking recyclable materials delivered to the
Transfer Station by self-haulers or contract waste haulers to the MRF in addition to its existing approval to
take such materials to the Timber Cove Recycling, Inc. facility located at 3417 Standish Avenue in Santa
Rosa, California.
i. SWS shall use its best efforts to maintain in full force and effect the Recyclable
Materials Agreement between SWS and Timber Cove Recycling, Inc., dated August 13, 2007 and attached
hereto as Exhibit C, for the remaining term of the Contract and the parties to that contract agree that the
City shall be deemed a third party beneficiary of that agreement.
Section 9.03(a) of the Contract is amended to read as follows:
"To initiate default proceedings under this Section, the City shall give written notice to
Contractor and its Surety describing the nature of the default and the City's intention to declare Contractor
in default. Contractor may be declared to be in default if it fails to cure the default within thirty (30) days
of receipt of the City's notice; provided, however, that if the nature of the default is such that it cannot be
cured within thirty (30) days, Contractor shall not be declared to be in default as long as it commences a
cure within thirty (30) days of receipt of the notice from the City and diligently pursues such cure to
completion. If Contractor fails to so cure the default, and unless Contractor promptly shows cause to the
City's satisfaction why it should not be declared in default under the Contract, the City may declare
Contractor in default and notify Contractor and its Surety of such declaration, in which event the
consequences of such default as provided in Section 9.02 shall apply. Notwithstanding the foregoing,
Contractor shall be liable for liquidated damages as provided in Section 9.02 from the date the City gives
written notice as provided in this Section until the Contractor cures the default in accordance with this
Section."
k. The City shall continue its current self-hauling practices with respect to solid
waste produced by City government operations.
4. Contract in Effect. The Contract is in full force and effect, and, except as provided herein,
has not been modiFed, altered or amended in any respect and contains the entire agreement between the
parties with respect to the operation of the Transfer Station.
5. No Default. SWS, Affiliate and City are not in any respect in default in the performance
of the terms and provisions of the Contract, nor to any party's knowledge is there now any fact or condition
which, with notice or lapse of time or both, will become such a default. S WS and Affiliate have not
assigned, transferred, sublet or hypothecated their interest under the Contract, or any portion thereof.
6. No Offsets. Neither SWS or Affiliate nor City has any claim, charge, defense or offset
under the Contract or otherwise, against charges due or to become due thereunder, nor has any party
asserted any such claim, charge, defense or offset.
7. Governine 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 two (2) or more counterparts, each ofwhich
shall be deemed an original but when taken together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the parties have executed this Agreement effective as of the day and
year first above written.
CITY OF UKIAH
By:
SOLID WASTE SYSTEMS, INC.
NORTH BAY CORPORATION
ey:
YULUPA INVESTMENTS, LLC
ay:
Its:
EHHIBIT A
AGREEMENT BETWEEN
CITY OF UKIAH
and
SOLID WASTE SYSTEMS, INC.
and
NORTH BAY CORPORATION
TABLE OF CONTENTS
Pape
ARTICLE I
DEFINITIONS
6
ARTICLE II
2.01.
2.03.
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
2
09.
O5.
06.
07.
08.
09.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.
CONTRACTOR RESPONSIBILITIES -
Facility Design Permitting and Construction
Waste Transfer Transportation and Disposal,
Recvclina - - - - -
Operation by Contractor..
Operational Standards.
Hours of Operation.
Maintenance
Mobile Equipment
Staffing
Operational Procedures
Buv-Back Recvclina
Drop-Off Recycling
Household Hazardous Waste Recvclina .
Yard and Wood Waste Recvclina .
Reuse Facility.
Unacceptable Waste Prohibited .
Refusal of Waste
Title to Waste
Subcontractors
Title.
Permits - - - -
Records and Access
Applicable Law
20
20
22
23
~-- za
25
25
25
26
26
27
27
28
28
28
29
29
29
29
31
31
31
32
ARTICLE III . THE CITY'S RESPONSIBILITIES 32
3.01_ Waste Flow to Transfer Station. 32
3.02. Competing Facilities 33
3.03. Hazardous Waste Locker Service 33
ARTICLE IV. PAYMENTS 33
4.01. Components of Service Fee 33
9.02. CPI Adjustment 35
4.03. Additional Adjustment of Disposal Cost Component 36
4.04. Taxes or Fees 36
4.05. Billing and Payment 37
9.06. Construction Costs 37
08.
4 Service Fee on Wood Waste and Yard Waste 38
.
9.09. Self Haul Service Fee. 39
9.10. Load Check Hazardous Waste 39
4.11. Recvclina Fees 39
t
9.12. Change Orders. - - - - - - - 9U
ARTICLE V. ALLOCATION OF RISK; UNCONTKOLLABLE CIRCUMSTANCES
. 40
5.01. Contractor Reliance 91
5.02. Uncontrollable Circumstances 41
5.03. Notification 91
5.09. Alternative Service Arrangements 41
5.05. Insurable Uncontrolled Circumstances 42
ARTICLE VI. INDEMNIFICATION 42
6.01. Hold Harmless - 92
ARTICLE VII. SURETY - - 92
7.01. Operational Performance Bond. 92
7.02. Construction Performance Bond 43
7.03. Material and Labor Bond. 93
7.09. Defective Material and Workmanship Bond 93
7.05. Notification of Surety Companies 99
ARTICLE VIII . ASSIGNMENT - - - - 49
8.01. Assignment - - - - - 94
ARTICLE IX. DEFAULT - - - - 95
9.01. Contractor Default 45
9.02. Consequences of Contractor Default. 97
9.03. Default Procedure - 49
9.09. The City's Use of Contractor Equipment. - 51
9.05. Remedies Not Exclusive 51
ARTICLE X. INSURANCE 52
10.01. Insurance - - 52
10.02. Fire and Damage Insurance 56
ARTICLE XI. DISPUTE RESOLUTION 57
11.01. Independent Engineer - 57
11.02. Independent Engineer Costs 58
11.03. Arbitration for Specified Disputes Only.
- 58
11.04. .
Determination - 59
11.05. Studies and Surveys - - 60
11.06. Optional Arbitration 60
ARTICLE XII . OBLIGATION TO PURCHASE 60
12.01. Purchase of Improvements and Equipment 60
12.02. Purchase or Lease of Site. 61
ARTICLE XII I. GENERAL PROVISIONS - 62
ii
13.01. Governing Law. 63
13.02. Severability - - - - - 63
13.03. Time of the Essence; No Waiver. - 63
13.09. Construction of Terms - 63
13.05. Personal Liability - - - - 63
1.3.06. Subsidiary Contracts 69
13.07. Independent Contractor 64
13.08. Notices 69
13.09. Article Section and Subsection References 65
13.10. Amendment or Waiver 66
13.11. Integration - 66
13.12. Execution in Counterparts 66
ARTICLE XIV
14.01.
ARTICLE XV
TERM 66
Term of Contract 66
CONDITION TO CONTRACT
67
iii
AGREEMENT
Phis Contract amends and replaces the Contract made
and entered into as of May ~, 1998, by and between the
CITY OF UKIAH, a municipal corporation (the "City"),
SOLID WASTE SYSTEMS, INC., a California corporation
("Contractor"), and NORTH BAY CORPORATION, a California
corporation ("Owner") This Amended Contract includes
the Amendment to the Contract entered by the parties on
August 17, 2000. This Amended contract is made and
entered into as of November ~ 001, by the same
parties, with reference to the following facts:
a. The City is obligated to provide for
reliable and economical disposal of solid waste
for its citizens.
b. The City and Contractor have heretofore
entered into an agreement entitled "Contract
for Collection, Transportation and Disposal of
Garbage, Refuse and Rubbish and Recycling of
Recyclable Materials from Within the City of
Ukiah," dated March 23, 1992, and as later
amended (the "Franchise Agreement"), granting
Contractor the exclusive right of arranging for
the collection, removal and disposal of solid
waste from within the City.
c. Owner owns the real property at 3151
Taylor Drive, Ukiah, California (Assessor's
Parcel No. 184-140-13) (the "Site"), which is
suitable for construction of a Transfer
Station. Owner and Contractor represent and
warrant to the City that Owner has by separate
agreement with Contractor granted Contractor
authority to construct the Transfer Station on
the Site and otherwise make use of the Site to
perform Contractor's obligations under this
Contract.
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November 8, 20UI
d. Following extensive analysis of the terms
and conditions available from different private
concerns, the City has determined that the
public interest will be served by awarding to
Contractor this Contract for Transfer Station
Construction and Operation and Solid Waste
Transportation and Disposal.
NOW, therefore, the parties agree as follows:
ARTICLE I. DEFINITIONS
For purposes of this Contract, the following terms
shall have the following meanings, unless a different
meaning is otherwise expressly provided or is evident
from the context in which the term is used:
1.01. "Acceptable Waste" means all putrescible and
nonputrescible solid waste including but not limited to
garbage, rubbish, refuse, paper and cardboard; plant
and grass clippings and leaves; commercial, industrial,
demolition and construction wastes including non-
friable asbestos; mixed wood waste; septage screenings,
discarded home and industrial appliances; vegetable or
animal solids and semisolid wastes, but excluding
source separated recyclable or compostable materials
intended for diversion from solid waste disposal or
those materials defined herein as Unacceptable Waste.
1.02. "Applicable Law" means all law, statutes,
rules, regulations, guidelines, permits, actions,
determinations, orders, or requirements of the United
States, State of California (or any other state having
jurisdiction over solid waste transportation and
disposal services), county, regional or local
government authorities, agencies, boards, commissions,
courts or other bodies having applicable jurisdiction,
that from time to time apply to or govern Performance
Obligations, the transfer station, transport services,
disposal services, or the performance of the parties'
respective obligations hereunder, including any of the
S:\U\AgrmisU l\Tra nlcrtim.A MTI I-7. wlvl 2
November S, 2001
foregoing which concern health, safety, fire,
environmental protection, labor relations, mitigation
monitoring plans, building codes, zoning,
non-discrimination, and payment of minimum wages.
1.03. "Change in Law" means the occurrence of any
event or change in Applicable Law as follows:
(a) the adoption, promulgation, modification,
or change in judicial or administrative
interpretation occurring after the date hereof
which adoption, promulgation, codification, or
change in judicial or administrative interpretation
relates to any Applicable Law, other than laws with
respect to taxes based on or measured by net income
or any payroll, employment or franchise taxes; or
(b) any order or judgment of any federal,
state or local court, administrative agency or
governmental body issued after the date hereof if:
(i) such order or judgment is not also
the result of the willful misconduct or
negligent action or inaction of the Party
relying thereon or of any third party for whom
the Party relying thereon is directly
responsible; and
(ii) the Party relying thereon, unless
excused in writing from so doing by the other
Party, shall make or have made, or shall cause
or have caused to be made, Reasonable Business
Efforts in good faith to contest such order or
judgment=, it being understood that the
contesting in good faith of such an order or
judgment shall not constitute or be construed
as a willful misconduct or negligent action of
such Party); or
(c) the imposition by a governmental authority
or agency of any new or different material
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November 8, 2W I 3
conditions in connection with the issuance,
renewal, or modification of any Permit after the
Transfer Station commences full operations in
compliance with Contractor's Performance
Obligation.
1.04. "Construction Costs" means Contractor's
costs arising from the design, engineering, permitting
(including compliance with the California Environmental
Quality Act ("CEQA")), site preparation, off-site
improvements, construction, paving, utilities and fixed
equipment acquisition and installation for the Transfer
Station. Construction Costs shall not include any
Contractor's costs in preparation of its proposals to
the City prior to execution of this Contract, or any
costs associated with the recycling processing building
which was proposed by Contractor to the City in 1997
and approved by the City, or costs of mobile equipment,
office equipment, supplies, or any item which does not
constitute a fixture of. the Transfer Station.
1.05, "Consumer Price Index" (CPI) means the
Consumer Price Index For All Urban Consumers (1982-1984
= 100), U.S. City Average, All Items, published by the
United States Department of Labor, Bureau of Labor
Statistics. In the event the CPI is discontinued or
otherwise not available, "CPI" shall mean such
comparable statistics on the purchasing power of the
consumer dollar as is reasonably agreed on between the
City and Contractor.
1.06. "Contract" means this Contract for Transfer
Station Construction and Operation and Solid Waste
Transportation and Disposal between Contractor and the
City.
1.07. "Contractor" means Solid Waste Systems,
Inc., a California corporation. Reference to
"Contractor" refers to Contractor's subcontractors as
well, unless explicitly provided otherwise. Reference
to subcontractors includes lower tier subcontractors as
51U\Agrmg0l\7tan(crSln AM'(I IJ.w~I
November 8, 2 W I 4
well as those with direct contractual relationships
with Contractor.
1.08. "Direct Costs" means the sum of (a) payroll
costs directly related to the performance, or
management of supervision of any obligation pursuant to
the provisions hereof, comprised of compensation plus
fringe benefits comprised of vacation, sick leave,
holidays, retirement, Workers Compensation Insurance,
federal and state unemployment taxes and all medical
and health insurance benefits, plus (b) the costs of
materials, services, direct rental costs and supplies;
which Direct Costs are substantiated by (i) a
certificate signed by the principal financial officer
of Contractor setting forth the amount of such cost and
the reason why such cost is properly chargeable and
stating that such cost is a competitive price, if there
are competitive prices, secured in an arm's length
transaction for the services or materials supplied; and
(ii) if the City requests, such additional backup
documentation to substantiate any such Direct Cost
including invoices from suppliers.
1.09. "Disposal Facility" means the Potrero Hills
landfill or a fully-permitted Subtitle D approved solid
waste landfill, approved by the City, to which
Contractor will transport Acceptable Waste received at
the Transfer Station.
1.10. "Franchised Waste Haulers" means companies
which possess a permit, license or contract from a
public agency authorizing them to collect and transport
solid waste from residences and/or businesses.
l.ll. "Hazardous Waste" means a type of
Unacceptable Waste which by reason of its quality,
concentration, composition or physical, chemical or
infectious characteristics may cause or significantly
contribute to an increase in mortality or an increase
in serious illness or pose a substantial threat or
potential hazard to human health or the environment
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Novcmher 8, 2W I S
when improperly treated, stored, transported or
disposed of or otherwise mismanaged; or any waste which
is defined or regulated as a hazardous waste, toxic
waste, hazardous chemical substance or mixture, or
asbestos under Applicable Law, excluding Recyclable
Household Hazardous Wastes, but including:
(a) "Hazardous Waste" pursuant to Section
40141 of the California Public Resources Code,
regulated under Chapter 7.6 (commencing with
Section 25800) of Division 20 of the California
Health and Safety Code; all substances defined as
hazardous waste, acutely hazardous waste, or
extremely hazardous waste by Sections 25110.02,
25115, and 25117 of the California Health and
Safety Code (the California Hazardous Waste Control
Act), California Health and Safety Code Section
25100 et seq., and future amendments to or
recodification of such statutes or regulations
promulgated thereunder, including 23 California
Code of Regulations Sections 2521 and 2522; and
(b) materials regulated as hazardous waste
under the Resource Conservation and Recovery Act,
42 U.S.C. Section 6901 et seq., as amended
(including, but not limited to, amendments thereto
made by the Solid Waste Disposal Act Amendments of
1980), and related federal, state and local laws
and regulations;
(c) materials regulated under the Toxic
Substance Control Act, 15 U.S.C. Section 2601 et
seq., as amended, and related federal, State of
California, and local laws and regulations,
including the California Toxic Substances Account
Act, California Health and Safety Code Section
25300 et seq.;
(d) materials regulated under the
Comprehensive Environmental Response, Compensation
and Liability Act, 92 U.S.C. 9601, et seq., as
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Novcmlxr 8, 2UU I 6
amended, and regulations promulgated thereunder;
and
(e) materials regulated under any future
additional or substitute federal, state or local
laws and regulations pertaining to the
identification, transportation, treatment, storage
or disposal of toxic substances or hazardous waste.
If two or more governmental agencies having concurrent
or overlapping jurisdiction over hazardous waste adopt
conflicting definitions of "hazardous waste" for
purposes of collection, transportation, processing
and/or disposal, the broader, more restrictive
definition shall be employed for purposes of this
Contract.
1.12. "Including" means including without
limitation.
1.13. "Independent Engineer" is the engineer named
in Article 11 or thereafter chosen in accordance with
such Section.
1.14. "MSWMA" means the Mendocino Solid Waste
Management Authority, a joint powers agency organized
in 1990 by the County of Mendocino, City of Ukiah, City
of Fort Bragg, and City of Willits, or any other entity
or jurisdiction approved by the City performing
services or functions MSWMA is providing or is
authorized to provide.
1.15. "Operating Ratio" means Contractor's costs
of meeting Performance Obligations, less landfill and
processing tipping fees, divided by operating revenues.
Operating revenues include sales of recyclables
collected at the Transfer Station. Costs of operation
do not include facility capital debt service. Any
related party payments included in costs of operation
shall be not greater than the existing market value for
those goods or services.
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Novcmtwr 8, 2W I
1.16. "Performance Obligations" means the good
faith and di.li.gent performance of each and every
obligation and liability of Contractor hereunder,
including Transfer Station design, permitting,
construction, and testing, Transfer Station operation,
transportation of Acceptable Waste, Wood Waste, Yard
Waste and recyclables, disposal at a City approved
landfill, and securing and maintaining performances
bonds, insurance and any other performance assurances
hereunder, including any conditions of approval
contained in any Permits issued to Contractor in
connection with the construction and operation of the
Transfer Station.
1..1~. "Permits" means all federal, state, other
local and any other governmental unit permits, orders,
licenses, approvals, authorizations, consents and
entitlements of whatever kind and however described
which are required under Applicable Law to be obtained
or maintained by any person with respect to the
performance of any obligation hereunder or matters
covered hereby, as renewed or amended from time to
time.
1.18. "Plans and Specifications" means the
detailed construction drawings and specifications for
construction of the Transfer Station and the Site,
prepared in accordance with accepted industry practice
for comparable facilities and signed and stamped by a
professional engineer and/or architect, as required by
Applicable Law.
1.19. "Reasonable Business Efforts" means those
efforts a reasonably prudent business person would
expend under the same or similar circumstances in the
exercise of such person's business judgment, intending
in good faith to take steps calculated to satisfy the
obligation which such person has undertaken to satisfy.
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November 8, 2001
1.20. "Self Haulers" means persons delivering
Acceptable Waste on their own behalf, and not as a
Franchised Waste Hauler.
1.21. "Service Area" means all of Mendocino
County.
1.22. "Service Fee" means the charge levied on
users of the transfer station to dispose of Acceptable
Waste.
1.23. "Site" or "Transfer Station Site" means a
portion of the parcel of land at 3151 Taylor Drive,
Ukiah, California, Mendocino County Assessor's Parcel
No. 184-140-13, which is depicted and described in
Exhibit B, attached hereto and incorporated herein.
1.24A. "Subcontractor" means any person or entity
contracting with Contractor or any Subcontractor to
perform Performance Obligations.
1.24. "Ton" or "tonnage" means a short ton of
2,000 pounds.
1.25. "Transfer Station" means the Transfer
Station located on the Site, as described in the Plans
and Specifications, including furnishings, building,
equipment, parking, signs, fencing and landscaping.
1.26. "Uncontrollable Circumstances" means any
act, event or condition, whether affecting the Transfer
Station or either Party or Contractor's subcontractors,
beyond the reasonable control of such Party and not the
result of willful or negligent action or inaction of
such Party (other than the contesting in good faith or
the failure in good faith to contest such action or
inaction), which materially and adversely affects the
ability of either Party to perform any obligation
hereunder comprised of:
5:1IMgimLt01 \TianlirSm. A MT I I -7. w,xl
November 8, 2001 9
(a) an act of God, landslide, lightning,
earthquake, fire, flood (other than reasonably
anticipated weather conditions for the geographic
area of the Transfer Station, primary
transportation routes, backup transport routes,
primary Disposal Facility and backup Disposal
Facility), explosion, sabotage, acts of a public
enemy, war, blockade or insurrection, riot or civil
disturbance;
(b) the failure of any appropriate federal,
state, or local public agency or private utility
having operati-onal jurisdiction in the area in
which the Transfer Station is located, to provide
and maintain utilities, services, water, sewer or
power transmission lines to the Transfer Station
which are required for Transfer Station development
or Transfer Station operation;
(c) a Change in Law other than any Change in
Law adopted by the City, unless such Change in Law
is mandated by state, federal or other governmental
agency law, regulation or directive.
(d} any enforcement of any encumbrance on the
Site or on any improvements thereon not consented
to in writing by, or arising out of any action or
agreement entered into by the party adversely
affected thereby;
(e) governmental pre-emption of materials or
services in connection with a public emergency or
condemnation or other taking by eminent domain of
any portion of the Transfer Station Site. In event
of any condemnation, neither party waives its
rights to assert claims in such condemnation
proceedings;
(f) failure of the California Integrated Waste
Management Board to approve a Solid Waste
Facilities Permit for the Transfer Station;
1:\UWgrmLS01~9ianfcr5ln AMII I-7.w1n1
Novemhcr 8, 2001 l o
(g) failure of the Mendocino County Air
Quality Management District to grant authority to
construct and operate the Transfer Station;
(h) failure of the California Water Resources
Control Board to issue a Notice of Intent for
Construction Activity Stormwater Permit;
(i) failure of the local enforcement agency to
issue a Solid Waste Facilities Permit;
(j) failure of the Mendocino County Planning
and Building Department to issue necessary building
permits;
(k) failure of any other governmental agency
or department to issue any Permit required under
Applicable Law for construction or operation of the
Transfer Station;
(1) freight embargoes, shortages of materials,
labor, fixtures or equipment (provided that
Contractor furnishes proof that it has made
diligent attempts to obtain same) or delays of
subcontractors due to such causes, provided that
Contractor shall within ten (10) days from the
beginning of such delay notify the City in writing
of the delay;
(m) an order of a state or federal court that
prohibits the City from developing, building or
operating the Transfer Station;
(n) failure of the railroad or rail transport
subcontractor to perform its obligations in a
timely manner due to circumstances not involving
the wrongful or negligent act or omission of
Contractor.
Uncontrollable Circumstances exclude, without
limitation:
S\U\AgrmLSU I\Tranfcr5ln AMll 1-7. wld
November 8, 2W I 11.
(i) either Party's own breach of its
obligations hereunder;
(ii) adverse changes in the financial
condition of either party or Contractor's
subcontractors;
(iii) the consequences of errors, neglect
or omissions with respect to Transfer Station
development, transfer services, transport
services or disposal services or any other
Performance Obligations on the part of
Contractor, its employees, agents,
subcontractors or affiliates, including errors
in Plans and Specifications or the operations
plan or failure to comply therewith;
(iv) except as otherwise specifically
provided herein, the failure of Contractor to
secure patents, licenses, trademarks, and the
like necessary to meet its Performance
Obligations;
(v) as to Contractor, the failure of any
Transfer Station technology to perform in
accordance with Performance Guaranties, unless
caused by Uncontrollable Circumstances;
(vi) general economic conditions,
interest or inflation rates or currency
fluctuation;
(vii) union or labor work rules,
requirements or demands which have the effect
of increasing the number of employees employed
by Contractor or its subcontractors hereunder
or otherwise increasing the cost or burden of
Contractor or Contractor's subcontractors of
meeting C:ontractor's Performance Obligations;
S:\UWgrmIS01\TranlBrSm AM"fl I-].wlxl 1 2
November 8, 2001
(viii) failure of equipment or any
technology used or relied upon in satisfaction
of Performance Obligations;
(ix) any impact of prevailing wage law,
customs or practices on Contractor's
Performance Obligations;
(x) any increase for any reason in
premiums charged by Contractor's or its
subcontractors' insurers or the insurance
markets generally;
(xi) any act, event or circumstance
occurring outside of the United States;
(xii} the failure of any subcontractor or
supplier to furnish labor, services, materials
or equipment, except the railroad or rail
transport subcontractor as provided in
subsection (n), above;
(xiii) any conditions included in any
Permit or other entitlement of use or approval
required for the design, construction or
operation of the Transfer Station in compliance
with Contractor's Performance Obligations;
(xiv) failure to exert Reasonable
Business Efforts to secure any Permits.
1.27. "Unacceptable Waste" means wastes that the
Transfer Station may not receive under this Contract
unless authorized by the permits issued for the
operation of the Transfer Station, including:
(a) animal manures;
(b) friable asbestos materials that can be
crumbled with pressure and are therefore likely to
emit fibers, being a naturally occurring family of
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November H, 2VU1 1 3
carcinogenic fibrous mineral substances, which may
be a Hazardous Waste if it contains more than one
percent asbestos;
(c) ash residue from the incineration of solid
wastes, including municipal waste, infectious waste
described in item (8) below, wood waste, sludge,
and agricultural wastes described in item (a)
above;
(d) auto shredder "fluff" consisting of
upholstery, paint, plastics, and other non-metallic
substances which remains after the shredding of
automobiles;
(e) dead animals;
(f) Hazardous Waste, explosives, ordnance,
highly flammable substances and noxious materials;
(g) industrial solid or semi-solid wastes
resulting from industrial processes and
manufacturing operations, including cement kiln
dust, ore process residues;
(h) infectious wastes which have disease
transmission potential and are classified as
Hazardous Wastes by the State Department of Health
Services, including pathological and surgical
wastes, medical clinic wastes, wastes from
biological laboratories, syringes, needles, blades,
tubings, bottles, drugs, patient care items such as
linen or personal or food service items from
contaminated areas, chemicals, personal hygiene
wastes, and carcasses used for medical purposes or
with known infectious diseases;
(i) liquid wastes which are not spadeable,
usually containing less than fifty percent (50~)
solids, including cannery and food processing
wastes, landfill leachate and gas condensate,
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Novcmbcr K, 2001
boiler blowdown water, grease trap pumpings, oil
and geothermal field wastes, septic tank pumpings,
rendering plant byproducts, sewage sludge, and
those liquid wastes which may be Hazardous Wastes;
(j) radioactive wastes under Chapter 7.6
(commencing with Section 25800) of Division 20 of
the State Health and Safety Code, and any waste
that contains a radioactive material, the storage
or disposal of which is subject to any other state
or federal regulation;
(k) sewage sludge comprised of human (not
industrial) residue, excluding grit or screenings,
removed from a waste water treatment plant or
septic tank whether in a dry or semidry form;
(1) special wastes designated from time to
time by the California Integrated Waste Management
Board, including contaminated soil;
(m) bulky items which cannot fit within
standard roll.-off containers or municipal refuse
collection vehicles;
(n) concrete slab material exceeding 2 feet on
a side and 6 inches thick;
(o) tree stumps exceeding 18 inches in
diameter;
(p) other wastes which are prohibited as a
condition of the transfer station's Solid Waste
Facility Permit or wastes excluded by written
agreement between Contractor and the City.
1.28. "Viable Market" means a buyer is identified
who will pay a price sufficient to cover the handling
cost and transportation cost to get the recyclable to
the market.
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Novcmtrcr 8, 2W I 1 S
1.29. "Wood Waste" means unpainted lumber and
boards separated from mixed solid waste.
1.30. "Yard Waste" means grass clippings, brush,
garden trimmings, leaves and similar natural vegetative
materials separated from mixed solid waste, but not
including tree limbs more than 10 feet in length or 18
inches in diameter.
ARTICLE II, CONTRACTOR RESPONSIBILITIES
2.01. Facility Design Permitting and Construction
(a) Design. The Transfer Station shall be
designed as a top-load facility with on-the-floor
crushing and compaction, with an adequate number of
loading bays for both truck and rail haul and with
through-put capacity of at least: two hundred (200)
tons per day average and a peak of four hundred
(400) tons per day. The Transfer Station design
shall include facilities for drop-off recycling
for: (i) Pay Items: Wood Waste, Yard Waste,
tires, appliances, including appliances containing
CFCs, antifreeze, oil filters; and (ii) Free Items:
cans, glass bottles and jars, newspaper, corrugated
cardboard, magazines, office paper, box board,
plastic containers, milk and juice cartons, foam
padding, scrap metals, motor oil and any additional
items for which a viable recycling market is
identified; and (iii) Buy-Back Items: California
Redemption beverage containers. The Transfer
Station design shall additionally include a re-use
facility where salvageable items such as doors,
windows, furniture, appliances, toys and tools may
be donated by Self Haulers and made available for
give-away or sale to others. Contractor shall
construct the Transfer Station in accordance with
Plans and Specifications approved by the City
Council of the City. Contractor shall submit Plans
and Specifications to the City Council for review
and approval. The City Council may comment on the
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Novcmhcr 8, 2001 1
plans and specifications, and Contractor shall use
Reasonable Business Efforts to incorporate such
comments. The City Council shall approve or
comment on the Plans and Specifications within
thirty (30) days of Contractor's submission
thereof. Any disputes with respect to approval of
the Plans and Specifications shall be resolved by
the Independent Engineer in accordance with Section
11.03.
(b) Permitting and Construction. Contractor
will design, permit, construct, equip, start-up and
test the Transfer Station on the Site in accordance
with Applicable Law. If and to the extent that the
construction of the Transfer Station is required to
be performed by a licensed building contractor,
Contractor may, at its option, either obtain the
appropriate license and perform such work or retain
a licensed contractor to perform such work. If
Contractor elects to retain a licensed contractor
to perform such work, Contractor will seek the
lowest qualified bidder.
2.02. Start of Operations. Contractor will begin full
operation of the Transfer Station on June 4, 2001. If,
for any reason, the Contractor cannot commence
operations by June 4, 2001, due to any cause, whether
or not constituting an Uncontrollable Circumstance,
Contractor shall do all of the following:
A. Arrange to transport and dispose of
Acceptable waste originating in the City in accordance
with all applicable provisions of this Agreement
governing the proper collection and disposal of
Acceptable Waste, except for provisions applicable
solely to the operation of the permitted transfer
station;
B. Prior to commencing the out of county
transport of Acceptable Waste originating within the
City, obtain City approval for a detailed plan
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NovcmFer 8, 2001 1 7
describing how Contractor will collect, transport and
dispose of Acceptable Waste without a permitted
transfer station at the Taylor Street site in
accordance with the requirements of this Agreement,
including the provisions of this amendment. Contractor
understands that City must comply with the California
Environmental Quality Act (\\CEQA") prior to approving
such a plan. Accordingly, Contractor shall seek City
approval of the plan in sufficient time to permit
compliance with CEQA prior to the City reviewing and
approving the plan.
C. In collecting and disposing of Acceptable
Waste, comply with the City approved plan, all
applicable laws and regulations, including City
ordinances, state laws and federal laws;
D. Arrange for the collection and disposal of
recyclable materials in accordance with sections 2.11 -
2.15;
E. Charge for
with this Agreement, ex
component shall remain
as set forth in Exhibit
is fully operational an
rate shall remain in of
transfer station is ful
public.
these services in accordance
;ept that the operating cost
it the rate for the first year
A, until the Transfer Station
~ open to the public, and that
°ect for a full year after the
Ly operational and open to the
2.03. Waste Transfer Transportation and Disposal,
Recycling. Contractor will receive Acceptable Waste
delivered to the Transfer Station during receiving
hours in accordance with Section 2.06 by Self Haulers
and Franchised Waste Haulers. Contractor will conduct
buy-back, drop-off, household hazardous waste, Yard
Waste, and Wood Waste recycling and operate the reuse
facility, in accordance with Sections 2.11-2.15,
including marketing and transportation thereof, as
applicable. For the first five (5) years after the
Transfer Station commences operations the Contractor
5'.\U\Ag,mIS01\TnnfcrSln AMTI I-7.wTd 18
Novembcr A, 2001
shall transfer and transport Acceptable Waste to the
Disposal Facility by truck. Contractor shall evaluate
~~Road Railers" or an equivalent truck transfer trailer
that can be used in both truck and rail haul
operations. If, using reasonable business judgment,
Contractor determines Road Railers or their equivalent
provide a practical means for the transport of
Acceptable Waste, it shall use Road Railers to
transport Acceptable Waste to the disposal site. At
any time after the fifth (St") such year, City shall
have the right as further provided herein to direct
Contractor to transport Acceptable Waste by rail rather
than truck. When rail transport commences, the Service
Fee, payable pursuant to Article 4 of this Contract,
shall be based on the actual direct cost to Contractor
of transporting Acceptable Waste by rail, but not to
exceed the Transportation Cost Component agreed upon by
the parties as shown in Exhibit A, subject to the CPI
adjustments as provided in Section 4.02. However,
Contractor and City shall cooperate in arranging for
rail transport of Acceptable Waste and City must
approve Contractor's method of soliciting and
negotiating a rail haul subcontract and the terms of
any such subcontract. Contractor will be responsible
for all activities at the Transfer Station and
associated with its Performance Obligations, including
collecting Service Fees, traffic control, inspection of
solid waste, exclusion of Unacceptable Waste, temporary
storage of Hazardous Waste removed from other wastes,
and distributing informational materials supplied by
the City to Self Haulers. Contractor will be
responsible for any errors, deficiencies or failure of
Contractor's officers, employees, and subcontractors to
fully and timely meet Performance Obligations.
2.04. Operation by Contractor. Contractor will
directly operate the Transfer Station, including solid
waste crushing and loading and recycling buy-back and
drop-off services, using Contractor's own employees,
unless the City gives prior approval in writing to the
51UUgrmts0l\Trvnl<rSln AMTI1-7.wrA
Novemlkr K, 2001 1 9
use of a subcontractor for those services, which
approval shall not be unreasonably withheld or delayed.
2.05. Operational Standards. Contractor will:
(a) Remove all Acceptable Waste from the
tipping floor of the Transfer Station at least once
every twenty-four (29) hours.
(b) Remove all railcars or truck transfer
trailers of Acceptable Waste from the Site as soon
as possible, but not more than forty-eight (48)
hours from time of loading, unless the Acceptable
Waste has been placed in sealed containers.
(c) Wash the tipping floor not less than once
per week.
(d) Keep all recyclables contained in bins or
bunkers except as may be otherwise provided for
specific items in this Contract.
(e) Keep the Site secure from unauthorized
entry.
(f) Use best management practices to prevent
the transmission of detectable odors across the
Site boundaries.
(g) Ensure that vehicles do not queue onto
Taylor Drive.
(h) Comply with any operational standards
contained in any Permits, entitlements for use or
approvals issued in connection with the siting,
construction or operation of the Transfer Station.
(i)Comply with the operational plan attached
hereto as Exhibit C and incorporated herein by this
reference.
S'.UMgrmis0l\Tranl'crSIn.AMT114.wpd 2 O
November 8, 2001
2.06. Hours of Operation. Contractor will receive
Acceptable waste and Recyclables at the Transfer
Station only between the hours of 5 a.m. and 5 p.m. on
each Monday through Saturday throughout the year,
except for the following holidays: New Year's Day,
Thanksgiving Day and Christmas Day. Within this
schedule, Contractor may specify different hours for
Franchised Waste Haulers and Self-Haulers. No
Acceptable Waste or Recyclables will be allowed to
enter the Site except during the such hours.
2.07. Maintenance. 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. Contractor 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
the City.
2.08. Mobile Equipment. Contractor will supply at
a minimum the following mobile equipment for use in
operating the Transfer Station:
(a) Rubber-tired front loader;
(b) Track loader.
Contractor will further supply, or cause its
subcontractors to supply, equipment to meet its
Performance Obligations with respect to transport of
Acceptable Waste, Yard Waste, Wood Waste and
recyclables, and disposal of Acceptable Waste at the
Disposal Facility.
S\UWgrmIS01\7FanlcrSm AMTII-7. wld 2 1
Novembu S, 2W I
2.09. Staffing. Contractor shall assign
sufficient staff to the Transfer Station to meet the
Performance Obligations. Contractor shall assign only
competent personnel who are qualified to perform the
assigned tasks. All personnel will possess the
required licenses, permit or training for the tasks
they perform. Contractor will use its best efforts to
remove any personnel who are incompetent, disorderly,
intoxicated, or abusive to the public. Contractor will
assign, at a minimum, the following full-time personnel
at the Transfer Station:
(a) Equipment operator;
(b) Gate attendant;
(c) Spotter/Operator/Load Checker.
In addition, Contractor shall assign a Station
Manager/Supervisor with overall responsibility for
management of the Transfer Station who is authorized to
accept notices from the City and to act for Contractor.
Contractor shall provide and comply with periodic
staffing plans for City approval which approval shall
not be unreasonably withheld.
2.10. Operational Procedures. Contractor will
receive, load and transport Acceptable Waste as set
forth in the following additional provisions:
Traffic Management. Signs at least 3-foot by
3-foot in size will direct Self Haulers to remove
recyclable materials in the recycling drop-off area
prior to entering the transfer building. Gate
attendant will turn back Self Haulers with
recyclables to the recycling drop-off area. Self
Haulers and Franchised Waste Haulers will be
directed to separate areas in the transfer building
for dumping.
S.\U\AgrmtsU l\'franlcSm.n M'I I I-7 wld
November K, 2UUI 2 Z
Vehicle turnaround. Contractor shall ensure that
vehicles delivering Acceptable Wastes will be able
to begin unloading within 30 minutes of arriving at
the entrance to the Site, absent vehicle breakdown
or driver negligence.
Scalehouse. Cashier in scalehouse will charge all
incoming vehicles according to volume or weight of
solid waste, and will keep daily records of all
receipts and solid waste volumes in a manner
approved by the City.
Traffic Spotter. An attendant inside the transfer
building will direct customers to the correct
location to dump, will enforce safety rules, and
will check loads for Unacceptable Waste.
Safety. Safety procedures will be developed by
Contractor for all employee activities, customer
recycling, and customer waste dumping, and
submitted to the City for review and approval.
2.11. BuX-Back Recycling. Contractor will operate
a California Certified Redemption Center at the
Transfer Station under permit from the California
Department of Conservation which will provide
redemption buy-back from the hours of 10 a.m. to 9 p.m.
Monday through Saturday.
2.12. Drop-Off Recycling. Contractor will provide
and service separate bins to receive the following
segregated recyclable items from the public: aluminum
cans, tin cans, glass bottles and jars, newspaper,
corrugated cardboard, magazines, office paper, box
board, plastic containers, milk and juice cartons, foam
padding, appliances, tires and scrap metals. No charge
will be made to the public for drop-off recycling of
the specified recyclables, except for appliances and
tires as stated herein. Contractor will accept
additional recyclable items when a Viable Market is
available. Contractor may cease accepting a recyclable
S'.\U\AgrmIS011Trnnfa5or AMII I-7.avlwl
Novcmlwr 8, 2001 2 3
item upon written agreement by the City that a
satisfactory recycling market no longer exists.
Contractor will ensure that a1.1 recyclables received
will be sold or donated to bona fide recyclers who will
divert the materials from disposal. Contractor will
retain all revenues from sale of recyclable materials.
MSWMA or another entity designated by City shall have
the option to provide refrigerant removal from
appliances received at the Transfer St=ation at no cost
to the Contractor.
2.13. Household Hazardous Waste Re~clina.
Contractor will provide and service a tank for
recycling of used motor oil, at no charge to the public
for up to ten (10) gallons per customer per day.
Contractor will accept used oil filters and store them
in an appropriate container. Contractor will provide
and service a tank for recycling of used antifreeze.
Contractor will provide and service a container for
recycling of used vehicle batteries, which will be
accepted from the public without charge.
2.14. Yard and Wood Waste Reeling. Contractor
will accept recyclable and compostable Yard Waste and
Wood Waste from customers at a designated area.
2.15. Reuse Facility. Contractor will provide a
reuse area where salvageable items such as doors,
windows, furniture, appliances, toys, and tools may be
donated by the Self Haulers and made available for
give-away or sale to others by Contractor. Contractor
will maximize the recovery of reusable items, subject
to the constraints of customer demand and storage
space. Any reuse item for which Contractor sets a
price for sale will nevertheless be given away without
charge if it is not sold within ninety (90) days.
Contractor will keep the reuse area in a neat and
orderly condition and provide bins, walls or enclosures
as necessary to contain reuse items. Contractor shall
provide clear written notice to customers that
Contractor has the sole ownership and responsibility
S]U llAgnnls0llT ~an(~5tn AMT I I-7 wpd
Novunhcr x, 2001 2 4
for any reuse items sold or given away at the refuse
facility and that Contractor disclaims any warranty for
use or fitness of reuse items.
2.16. Unacceptable Waste Prohibited. Contractor
shall not knowingly accept Unacceptable Waste at the
Transfer Station, except for those recyclable household
hazardous wastes accepted in the drop-off recycling
area. Contractor shall continuously inspect customer
vehicles and the tipping floor for presence of
Unacceptable Waste. Unacceptable Waste shall be
refused and returned to 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 safely segregate, contain,
store and dispose of it in accordance with Applicable
Law.
2.17. Refusal of Waste. On every occasion where
Contractor refuses Unacceptable Waste of any
description which 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 scalehouse.
2.18. Title to Waste. Contractor shall accept
ownership and title to all waste materials and
recyclables at the time of unloading of such materials
at the Transfer Station. Ownership shall have no
implication with respect to revenue sharing agreements,
if any, or Disposal Facility designation provisions,
which shall be governed by specific provisions herein.
2.19. Subcontractors.
(a) Contractor shall not subcontract to provide
any of the services under this Agreement without
the prior written approval of the City; the City
5 VU~Agrmis0lCCmnfct$In AMTI I-7 wpd
Novemher K, 20U I 2 5
must approve the form and content of all
subcontracts.
(b) Contractor will transport, or cause to be
transported, all Acceptable Waste to the Disposal
Facility. Contractor acknowledges that
transportation is a critical portion of the
Performance Obligations hereunder. Contractor may
subcontract for such transportation subject to
approval by the City of subcontractor and/or terms
of the subcontract, which shall not be unreasonably
withheld, but Contractor shall remain liable to the
City for its Performance Obligations with respect
to transportation hereunder. Any subcontract for
transportation shall be assignable to the City in
event of termination of this Contract or use of the
Transfer Station and equipment under Section 9.04.
The City shall be named a third-party beneficiary
of Contractor's rights under any such subcontract.
Such subcontract shall require the subcontractor to
provide the City with notice of any breach or
default by Contractor thereunder or the termination
thereof.
(c) Contractor will dispose of all Acceptable
Waste at the Disposal Facility and shall secure
rights as necessary and sufficient to provide for
disposal of such Acceptable Waste for the term
thereof. If a Disposal Facility is unable to
perform its obligations under any agreement with
Contractor and the City has elected option (1)
under Section 9.01(c), the City agrees to cooperate
with Contractor in arranging for an alternate
Disposal Facility and in making any changes to the
Disposal Cost Component of the Service Fee
necessary to share with the City, on an equitable
basis reasonably agreed on by the parties, any
decreased costs resulting from using an alternate
Disposal Facility, subject, however, to Section
9.03.
S:\U W grmts0l \Tranl crSln.A MT' 1 I-7.vmd 2 6
November 8, 2001
(d) Contractor will not direct or transport
any Yard Waste received at the Transfer Station to
any processor or user that has not been approved by
the City.
(e) Contractor will not direct any Wood Waste
received at the Transfer Station to any processor
or user that has not been approved by the City.
(f) Contractor will notify the City of the
names and addresses of all subcontractors
undertaking any work arising from the construction
or operation of the Transfer Station.
2.20. Title. During the term of this Contract,
title to the Site shall be and remain the property of
Owner and title to all improvements on the Site shall
be and remain the property of Contractor, and their
successors and assigns.
2,21. Permits. Contractor will obtain and keep in
effect all permits required for the Transfer Station at
its own expense, including, but not necessarily limited
to: Authority to Construct and Permit to Operate from
the Mendocino Air Quality Management District; Notice
of Intent for Construction Activity Stormwater Permit
from California Water Resources Control Board; Solid
Waste Facilities Permit from Local Enforcement Agent;
and Major Use and Building Permits from Mendocino
County Planning and Building Department. Contractor
will copy to the City all permit correspondence, permit
notices, draft permits and permits.
2.22, Records and Access. Contractor will
maintain accurate and daily records of expenditures and
revenues arising from this Contract separate from other
business activities of Contractor. Contractor will keep
and preserve records of all loads of Acceptable Waste,
Yard Waste, Wood Waste, Recyclables and household
hazardous waste received at the Transfer Station, and
will report the total quantities and payments received
5.\UUgnnts0l\TranlcrSmAMI'I I-7.w1x1
Novemlkr 8, 2001 2 7
in each month to the City not later than the tenth
(10th) day of
the following month. Contractor shall establish an
auditable cash management plan for City's approval
which approval shall not be unreasonably withheld. The
City's designated representative shall be allowed
access to the Site at all times when the Transfer
Station is open, and shall be allowed to inspect any
and all records upon request to verify the
record-keeping procedures of Contractor. The City's
designated representative shall be allowed access to
the Site during non-operating hours upon notification
of Contractor's designated representative. Contractor
shall keep records of Hazardous Waste disposal as
required by Applicable Law.
2.23. Applicable Law. Contractor shall perform
all its Performance Obligations under this Contract,
and shall cause all its Subcontractors to perform
Performance Obligations, in accordance with Applicable
Law, including Permits. Contractor shall be solely
liable for all fines and penalties that may be imposed
on Contractor for violations of Applicable Law,
including Permits.
ARTICLE III. THE CITY'S RESPONSIBILITIES
3.01. Waste Flow to Transfer Station. Within the
limits of its legal and constitutional authority under
Applicable Law, the City agrees that all Solid Waste
generated within the City shall be directed to the
Transfer Station. No other local government
jurisdiction shall be required to direct its solid
waste to the Transfer Station. No solid waste from
outside the Service Area will be received at the
Transfer Station without prior written consent of the
City, and the City shall not unreasonably withhold its
consent. Contractor shall identify and keep records
acceptable to City of the jurisdiction of origin of all
Acceptable Waste received at the Transfer Station, and
S.\U\Agrmrs0l\TranfcrSm AMTI I-7.wpd
November 8, 2W I 2 8
those records shall be available upon request to any
such jurisdictions or their agents.
3.02. Competing Facilities. The City will not
participate as owner or operator of any competing
large-volume transfer stations or transfer systems for
waste, nor will they issue requests for proposals for
such competing facilities or systems, except in
connection with the termination of this Contract as
permitted by its terms. Existing and planned self-haul
transfer stations that direct solid waste to the
Transfer Station are not considered to be competing
facilities.
3.03. Hazardous Waste Locker Service. Subject to
the provisions of Section 9.10, MSWMA, at no cost to
Contractor, will remove and dispose of Hazardous Waste
which Contractor has stored on site in the hazardous
waste locker and which MSWMA's household hazardous
waste collection vehicle is authorized to transport.
Contractor will not place any recyclable household
hazardous materials in the hazardous waste locker which
can be received in the Transfer Station's drop-off
recycling area. Contractor shall not place leaking or
open containers in the hazardous waste locker and will
not place incompatible materials in proximity to one
another. Contractor shall be responsible for removal
and disposition of any Hazardous Waste which MSWMA's
vehicle cannot transport.
ARTICLE IV. PAYMENTS
9.01. Components of Service Fee. Contractor will
collect the Service Fee for use of the Transfer
Station. Contractor will not be entitled to any other
payments by the City or the public for performance of
the work described in this Contract, except as stated
herein. The Service Fee shall be stated and charged in
dollars per ton, except as noted herein. In no event
shall Contractor charge the users from the City a
Service Fee which is higher than it charges any other
S9UV+grmis0l \TranlcrSmAMT I 1-2wlxi
Novemtxa B, 2001 Z 9
user of the Transfer Station. The total Service Fee for
solid waste shall consist of the sum of the following
components; provided, however, that the initial Service
Fee shall be $50.50, which shall remain in effect for
waste from City residents from October 1, 2001 to
September 30, 2002 and for all waste from all other
users from October 1, 2001 to November 30, 2001, unless
the jurisdiction for those users enters a contract
directing all Acceptable Waste from that jurisdiction
to the Transfer Station for an initial term of fifteen
(15) years, in which case Contractor shall charge that
jurisdiction the same Service Fee it charges for
Acceptable Waste from the City:
(a) Operating Cost Component, which shall be
the sole compensation to Contractor for operation
of the Transfer Station and the handling of
recyclables received at the Transfer Station
(Contractor may only charge for recyclables
pursuant to Section 4.11). The Operating Cost
Component will initially be set at $7.60 per
compacted ton, but will be subject to adjustment
as provided in Section 4.02.
(b) Transportation Cost Component, which shall
be the sole compensation to Contractor for
transportation of Acceptable Waste to the Disposal
Facility. The Transportation Component will
initially be set at $11.54 and remain at that
amount until October 1, 2002 and will thereafter
be subject to adjustment as hereafter provided.
(c) Disposal Cost Component, which shall be
the sole compensation to Contractor for the
disposal of Acceptable Waste at the Disposal
Facility. At the City's option, the Disposal Cost
Component will be set at $19.00 until October 1,
2002, and thereafter be subject to adjustment as
provided in Section 9.02
S1U\Agrmis0l\TranfcrSln AMTI I-7.wpd
November 8, 2W I 3 ~
(d) Construction Cost Component, which shall
reimburse Contractor for the capital costs
incurred in construction of the Transfer Station,
pursuant to the terms of this Contract. The
amount of the Construction Cost Component will be
set pursuant to Section 4.06, "Construction
Costs."
(e) City Surcharge Component, which shall be
set by the City imposed on any Solid Waste
received at the Transfer Station as directed by
the City and be collected by Contractor and paid
monthly to the City to fund certain solid waste
services to the public. Contractor shall
implement and collect the City Surcharge Component
and any change in the City Surcharge Component
within thirty (30) days of notice from the City.
Any other member of MSWMA may direct with thirty
(30) days' notice that a surcharge, including the
MSWMA surcharge, shall be collected and paid
monthly by Contractor on any Acceptable Waste
originating within its jurisdiction, provided that
the same surcharge is collected on any other Solid
Waste generated within that jurisdiction, so that
Contractor will not be put at a competitive
disadvantage.
4.02. CPI Adjustment. On September 30, 2002, and
each September 30 thereafter, the Operating Cost
Component, the Transportation Cost Component and the
Disposal Cost Component, if the City elected option
(1) under Section 4.01(c) of the Service Fee will
each be increased or decreased by a factor equal to
fifty percent (500) of the percentage change in the
CPI during the immediately preceding calendar year
(January to December); provided, however, that any
S \U ~A grmis0l\Tranl crtilnA M'fll-7.wpJ
Nwcmhcr S, 2001 3 ~-
increase or decrease shall not exceed five percent
(50) in a single year. If the City elects the rail
haul option as authorized by paragraph 2.03, each year
thereafter, the Service Fee will each be increased or
decreased by a factor equal to seventy-five percent
(750) of the percentage change in the CPI rather than
fifty percent (50%) For purposes of calculating the
CPI adjustment, the Operating Cost Component shall not
include fees or taxes subject to adjustment as
provided in Section 4.04. If the City elects option
(1) under Section 4.01(c), the Disposal Cost Component
shall not include any such fees or taxes.
4.03. Additional Adjustment of Disposal Cost
Component. If during the term of this Contract,
Contractor's costs for the disposal of Acceptable
Waste decreases because of a change of the Disposal
Facility, then the savings from such decrease shall be
retained by Contractor, up to the amount of any
increased costs to Contractor in transporting
Acceptable Waste to the new Disposal Facility. If the
amount of the savings from such decrease exceeds the
increased costs to Contractor in transporting
Acceptable Waste to the new Disposal Facility, then
fifty percent (50°s) of the excess shall be retained by
Contractor and the other fifty percent (50a) of the
excess shall be applied as the City may direct from
time to time. This paragraph only applies if the City
has selected option 4.01(c)(1). If the City has
selected option 4.01(c)(2) 1000 of the savings will
automatically be passed through to the City.
4.04. Taxes or Fees. Contractor is solely
responsible for payment of all taxes, fees, and
utility charges associated with Contractor's
Performance Obligations and use of the Site as of the
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NovemFcr R, 2001 3 2
date hereof. Contractor shall increase or decrease
the Operating and Disposal Component of the Service
Fee to offset changes in Contractor's operating costs
which result from the imposition or change after the
date hereof in the rates of federal, state or local
taxes and fees imposed upon and paid by Contractor for
the transfer, transport or disposal of Acceptable
Waste provided that such taxes or fees apply only to
solid waste facilities or solid waste management
activities; provided further that if the City elects
option (2) under Section 4.01(c), and such fees or
taxes are included in the charges of the Disposal
Facility, Contractor shall not be entitled to an
adjustment to reflect such fees or taxes under this
Section 4.04.
4.05. Billing and Payment.
During such time as City bills for garbage service
under the Contract for Collection, Transportation and
Disposal of Garbage, Refuse, and Rubbish, and
Recycling of Recyclable Materials From Within the City
of Ukiah, dated March 23, 1992, as amended ("Franchise
Agreement"), it shall pay Contractor the Service Fee
for accepting City's Acceptable Waste at the Transfer
Station from City's Franchised Waste Hauler within
fifteen days of the date the City receives a bill
therefor.
4.06. Construction Costs.
(a) Contractor will keep a separate record of all
Construction Costs. Upon completion of construction
of the Transfer Station, Contractor will present to
the City an accounting of all Construction Costs, as
documented by receipts and other records.
S:\(nq grmU01\7 ranlcrSm AM1'I I4.w~
Novemt~er 8, 2001 3 3
(b) The Construction Cost Component of the
Service Fee in each year of the contract shall be
$12.36 per ton (This fee was computed by amortizing
actual Construction Costs over 15 years at a 5o simple
annual interest rate and assuming annual tonnage of
compacted Acceptable Waste of 20,640 and annual cubic
yards of self-hauled (uncompacted) Acceptable Waste of
42,998).
(c) The Contractor shall not include a
Construction Cost Component in the Service Fee,
commencing on the day the actual construction costs,
including debt service at the assumed 5o simple annual
interest rate, has been fully repaid based on the
actual compacted Acceptable Waste and actual cubic
yards of uncompacted self-hauled Acceptable Waste
received at the Transfer Station. If the Contract is
extended beyond the initial fifteen (15) year term,
there shall be no Construction Cost Component in the
second term or any subsequent term, regardless of
whether the actual construction costs including debt
service has been fully repaid.
(d) If Contractor recovers from any third party
any of the actual construction costs,50o of the net
recovery (less any amounts actually spent by
Contractor to recover those costs, such as attorneys'
fees and litigation expenses, not to exceed a
reasonable amount)shall be deducted from the actual
construction costs and credited to the repayment of
those costs for the purposes of this Section 4.06.
4.08. Service Fee on Wood Waste and Yard Waste.
Contractor may charge and collect a Service Fee for
Wood Waste and Yard Waste delivered to the Transfer
Station in an amount equal to Contractor's Direct
S:\tMgrm\s01\'fra nferSln AMTII-7.wpd
November 8, 20o I 3 4
Costs of receiving, handling, transporting and
disposing of such materials, plus ten percent (l00).
4.09. Self Haul Service Fee. Section 4.09. Self
Haul Service Fee. Contractor may elect to levy a
charge for delivery of Acceptable Waste from Self
Haulers which is based on volume, instead of weight,
The initial self haul service fee shall be $10.75 per
cubic yard, of which $6.71 is subject to the fee
adjustment provisions of Sections 4.02 and 4.03 of
this Agreement. The Construction Cost Component of the
self haul fee, which is $2.70, shall be deducted from
the self haul fee in accordance with Section 4.6(c)
4.10. Load Check Hazardous Waste. Contractor
acknowledges that MSWMA currently provides household
hazardous waste collection and the removal of
collected Hazardous Waste which have been removed from
the waste stream through the load check programs.
This Contract is made on the assumption that MSWMA
service will be available for load check hazardous
waste will continue to be provided without cost to
Contractor, If the same or a similar service from
MSMWA is no longer available, the parties shall meet
and in good faith renegotiate Operating, Transport and
Disposal Components of the Service Fee to reasonably
compensate Contractor for additional costs to
Contractor, if any.
4.11. Recycling Fees. Contractor may charge and
collect fees approved by the City per item of
appliances, tires, used oil filters and antifreeze,
respectively, delivered to the Transfer Station, in
amounts equal to Contractor's Direct Costs of
transporting such materials to processing or recycling
facilities and paying processing or recycling fees
thereof, plus ten percent (10%) to compensate
S1UlAgnms011Tranf Bm.AMT114.wpd
Novcinber 8, 2(101 3 S
Contractor for handling such recyclables; provided,
however, if three of the four current members of MSWMA
executed ten (10)-year agreements with Contractor
which obligate the agencies to direct their waste
stream to the Transfer Station, the ten percent (100)
additional charge to the Recycling Fee shall not be
charged during the term of such contracts.
4.12. Change Orders.
(a) The City may direct a Change Order to the
final Plans and Specifications, both before and
after the completion of construction of the
Transfer Station. The total of Construction Costs
shall be adjusted to reflect any such Change
Order, and the required completion date may be
extended if required to carry out the Change
Order.
(b) The City may direct a Change Order in the
scope of Performance Obligations, including
Transfer Station operations, transport services or
locations and/or disposal services, at any time.
The Operating and Disposal Component of the
Service Fee shall be adjusted if necessary to
offset any increased or decreased costs to
Contractor arising from such a Change Order.
(c) Any disputes between Contractor and the
City concerning the impacts of a Change Order on
costs or completion date shall be decided by the
Independent Engineer as provided by Section 11.03.
ARTICLE V. ALLOCATION OF RISK; UNCONTROLLABLE
CIRCUMSTANCES
S \U\Agnnts0l\TranfcrStn.AMTI IJ.wryl 3 6
Navcmber $ 2001
5.01. Contractor Reliance. Contractor warrants
that prior to entering into this Contract, it has
examined carefully and acquainted itself with: (a) all
Contract documents, (b) the Transfer Station project,
(c) all applicable federal, state, and local laws,
regulations, ordinances, codes and rules, and (d) any
and all other matters necessary to the performance of
this Contract.
5.02. Uncontrollable Circumstances. Breach of
Contractor's Performance Obligations and the City's
obligations hereunder are excused by Uncontrollable
Circumstances that necessarily and unavoidably prevent
performance of any component of the project, provided
the party claiming prevention exerted due diligence to
prevent the occurrence and mitigate the effects of
such Uncontrollable Circumstances.
5.03. Notification. The party with knowledge of
the occurrence of an Uncontrollable Circumstance shall
notify the other of the event and its effect on its
Performance Obligations promptly, but in no case more
than twenty-four (24) hours after the discovery of the
event. Notice shall again be given when the effect of
the occurrence of an Uncontrollable Circumstance has
ceased.
5.04. Alternative Service Arrangements.
Notwithstanding the provisions of Section 5.02, in the
event that Contractor fails or is unable to fully and
timely meet its Performance Obligations because of an
Uncontrollable Circumstance, Contractor shall use its
Reasonable Business Efforts to make available to the
City feasible alternative arrangements meeting its
Performance Obligations, at the prevailing fees then
in effect for such services, for the period during
s+uwb~m~sonr~~~r~~s~,~.nrw~n I-zwpe
November R, 2001 3 7
which such event continues. Failure of Contractor to
secure alternative arrangements as provided in this
Section shall not be deemed a breach of this Contract,
provided that Contractor has exercised good faith
efforts to make such alternative arrangements. The
City has the right to make such alternative
arrangements independent of Contractor.
5.05. Insurable Uncontrolled Circumstances. If
any of the equipment at the Transfer Station or
Contractor's vehicles are damaged or destroyed due to
explosion, floods, fire or other events for which
Contractor is obligated to carry insurance pursuant to
Article 10, Contractor shall act diligently to
promptly collect and apply insurance proceeds to the
correction or reconstruction of the equipment or
vehicles.
ARTICLE VI. INDEMNIFICATION
6.01. Hold Harmless. Contractor shall assume the
defense of, and indemnify and save harmless, the City,
and its officers, officials and employees, from all
suits, actions, costs, damages, claims, judgments or
losses arising from Contractor's performance, acts,
errors, or omissions under the Contract, but excluding
liability due to the sole and active negligence or
willful misconduct of the City.
ARTICLE VII. SURETY
7.01. Operational Performance Bond. Contractor
shall provide and continue in force an irrevocable
letter of credit with the City designated as sole
payee, or a cash deposit, or a performance bond issued
by a corporate surety company authorized to issue
S.\U\Agrmts0l\TranfcrSmAMTI I-7.wpd 3 8
Novcmbcr 8, 2W I
performance bonds by the State of California and
approved by the City, to insure the faithful
performance by Contractor of its Performance
Obligations in the amount of Five Hundred Thousand
Dollars ($500,000).
7.02. Construction Performance Bond. Contractor
shall furnish a bond of a surety company acceptable to
City conditioned upon the faithful performance of all
covenants and stipulations under the contract for the
construction of the Transfer Station. The amount of
the bond shall be one hundred percent (1000) of the
total contract price.
7.03. Material and Labor Bond. Contractor shall
furnish a bond of a surety company acceptable to the
City in a sum not less than fifty percent (50%) of the
total Transfer Station construction contract price for
the full payment of all persons, companies, or
corporations who perform labor upon or furnish
materials to be used in the work under the
Construction Contract for the Transfer Station, in
accordance with the provisions of Civil Code sections
3247 through 3252.
7.04. Defective Material and Workmanship Bond.
Contractor shall furnish a bond of a surety company
acceptable to the City in a sum not less than five
percent (50) of the total Transfer Station
construction contract price to hold for a period of
one (1) year after completion and acceptance of the
Work to protect Contractor against the results of
defective materials, workmanship and equipment (in
addition to any warranties furnished by manufacturers)
during that time. This bond must be delivered to
Contractor with a copy to the City in a form
ti:\UUgrmIS01\franlcrSln.A M'I II-7. wIx1 3 9
November 8, 2001
acceptable to the City before final payment under the
construction contract may be made.
7.05. Notification of Surety Companies. The
surety companies shall familiarize themselves with all
of the conditions and provisions of this Contract and
the Transfer Station construction contract, and they
waive the right of special notification of any change
or modification of this Contract or the Transfer
Station constructs-on contract or of any extension of
time, or decreased or increased work, or of the
cancellation of said contracts, or of any other act or
acts by the City or its authorized agents, under the
terms of this Contract or of contractor or its
authorized agents under the construction contract; and
failure to so notify the aforesaid surety companies of
changes shall in no way relieve the surety companies
of their obligation under this Contract or the
Transfer Station construction contract.
ARTICLE VIII. ASSIGNMENT
8.01. Assignment. Contractor shall not directly
or indirectly, voluntarily or involuntarily assign,
mortgage, pledge or encumber any interest in all or a
part of the contract and shall not transfer any
controlling stock or ownership interest in Contractor
or take any other action which would result in any
individual or entity other than Contractor as it
existed on the effective date of this Contract
providing services hereunder without the prior written
consent of the 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 paragraph. Any
action requiring City Council approval under this
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Nwcm6cr 8, 2 W I 4 ~
paragraph that occurs without such approval shall give
City the right to terminate this Agreement without
prior notice to Contractor or its successors or
assigns.
ARTICLE IX. DEFAULT
9.01. Contractor Default. There shall be three
classes of default by Contractor in its performance
under this Contract:
(a) Class A Default includes:
(i) Contractor's failure to procure
and/or maintain any performance bond, payment
bond, or insurance required hereunder;
(ii) Contractor filed a voluntary claim
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, or custodian of
Contractor for any part of Contractor's
operating assets or any substantial part of
Contractor's property, or shall make any
general assignment for the benefit of
Contractor's creditors;
(iii) A court having jurisdiction enters
a decree or order for relief in any
involuntary case brought under any bankruptcy,
insolvency, debtor relief or similar law now
or hereafter in effect, or Contractor consents
to or fails to oppose any such proceeding, or
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November 8, 2W I - 4 1
any such court enters a decree or order
appointing a receiver, liquidator, assignee,
custodian, or trustee of Contractor for any
part of Contractor's operating equipment or
assets, or orders the winding up or
liquidation of the affairs of Contractor;
(iv) Contractor's failure to transfer all
Acceptable Waste from the tipping floor of the
Transfer Station in accordance with Section
2.05 and transport such Acceptable Waste to
the Disposal Facility on more than three
occasions of three or more days' duration in
any calendar year.
(b) Class B Default includes:
(i) Contractor's failure to meet its
Performance Obligations with respect to
starting operation of the Transfer Station by
the time provided in Section 2.02;
(ii) Contractor's breach or default under
any subcontracts relating to Contractor's
Performance Obligations, including
subcontracts for transportation and disposal;
Contractor's failure to secure provisions in
such subcontracts requiring the subcontractor
to promptly notify the City of such breaches
or defaults; and Contractor's failure to
promptly notify the City of such breaches or
defaults;
(iii) Contractor's failure to deliver
Acceptable Waste to the Disposal Facility in
accordance with Section 2.03 and Yard Waste
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November 8, 2oUi 4 2
and Wood Waste to the City approved facilities
in accordance with Section 2.14;
(iv) Contractor's failure to divert
recyclables from disposal in accordance with
Section 2.12;
(v) Contractor's direct or indirect
change of control or transfer of a direct or
indirect controlling interest in the
beneficial ownership of Contractor in
violation of Section 8.01.
(c) Class C Default includes any other
failure by Contractor to fully and timely meet its
Performance Obligations.
9.02. Consequences of Contractor Default.
(a) Class A Default. In the event Contractor
is declared in default because of a Class A
default, the City may at its sole discretion:
(i) be released from its obligations
under this Contract and use any other method
or person to operate the Transfer Station and
to transport and/or dispose of solid waste,
including direct operation of the Transfer
Station by the City or its agents, and may sue
for actual damages;
(ii) seek judicial remedy of specific
performance;
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November 8, 2 W I 4 3
(iii) pursue any combination of the
foregoing or any other remedy provided under
this Contract; or
(iv) foreclose on the performance bond
required by Section 7.01, "Performance Bond."
(b) Class B Default. In the event Contractor
is declared in default because of a Class B
default, Contractor or Surety shall be permitted
to remedy the default within fifteen (15) days
from notice by the City that Contractor has been
declared in default and shall pay to the City,
from the date of that notice to the date the
default is remedied, liquidated damages in the
amount of One Thousand Five Hundred Dollars
($1,500) per day. If the Class B default is not
timely remedied, the City may, at its sole option,
exercise the remedies provided in subsection (a).
(c) Class C Default. In the event Contractor
is declared in default because of a Class C
default, Contractor or Surety shall be permitted
to remedy the default within thirty (30) days from
notice by the City that Contractor has been
declared in default and from the date of that
notice to the date that the default is remedied
shall pay to the City liquidated damages in amount
of One Thousand Five Hundred Dollars ($1,500) per
day. If such default is not timely remedied, the
City may, at its sole option, exercise the
remedies provided in subsection (a).
(d) The amount of liquidated damages
stipulated in this Section shall be adjusted
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November 8, 20U I
annually by the CPI in the same manner as the
Service Fee.
(e} The parties acknowledge that consistent,
efficient Transfer Station Operation is of utmost
importance to the City, and the City has
considered and relied upon Contractor's
representations as to its quality of service
commitment in entering into this Contract. The
parties further recognize that quantified
standards of performance are necessary and
appropriate to ensure consistent and reliable
service. The parties further recognize that if
Contractor fails to meet is Performance
Obligations, Self Haulers, Franchised Waste
Haulers and the City and the public will suffer
damages and that it is and will be impracticable
and extremely difficult to ascertain and determine
the exact amount of such damages. Therefore, the
Parties agree that the above-stated liquidated
damages represent a reasonable estimate of the
amount of such damages.
9.03. Default Procedure.
(a) Notice. To initiate default proceedings
under this Section, the City shall give written
notice to Contractor and its Surety describing the
nature of the default and the City's intention to
declare Contractor in default. Contractor may be
declared to be in default if it fails to cure the
default within thirty (30) days of receipt of the
City's notice; provided, however, that if the
nature of the default is such that it cannot be
cured within thirty (30) days, Contractor shall
not be declared to be in default as long as it
5'..\lMgrmts0l\TranlcrSln.AMTI l4 wpd
Novem6cr K, 2UOI 4 5
commences a cure within thirty (30) days of
receipt of the notice from the City and diligently
pursues such cure to completion. If Contractor
fails to so cure the default, and unless
Contractor promptly shows cause to the City's
satisfaction why it should not be declared in
default under the Contract, the City may declare
Contractor in default and notify Contractor and
its Surety of such declaration, in which event the
consequences of such default as provided in
Section 9.02 shall apply.
(b) Performance by Surety. In the event that
because of a default the City is entitled to order
Contractor to discontinue further performance
under the Contract and to transfer Contractor's
obligation to perform to the Surety, the Surety
shall, within twenty-four (24) hours, assume
performance of the Contract and, as soon
thereafter as possible, but no later than
seventy-two (72) hours after the City transfers
Contractor's obligations to the Surety, take
possession of all vehicle and equipment necessary
to perform the work in accordance with applicable
law. The Surety's action under this Section shall
not relieve it of its obligations under the
Contract and the bond.
(c) Failure by Surety; the City Substitution.
If the Surety fails to effectively and competently
assume or continue performance within four (4)
days of the effective date of notice from the
City, the City may exercise its rights to
foreclose on the performance bond.
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November S, 2001 4 6
(d) Uncontrollable Circumstances. A delay or
interruption in the performance of all or any part
of the Contract resulting from Uncontrollable
Circumstances shall not be deemed a default under
this Section, except that, if an Uncontrollable
Circumstance occurs and prevents the City or
Contractor from performing the Contract for a
period in excess of ninety (90) days, then each
Contractor and the City shall have the right, in
its sole discretion, to terminate this Contract.
9.04. The City's Use of Contractor Equi ment. If
the Contract is terminated for cause by the City, the
City or its agents may utilize all or any portion of
Contractor's equipment as is appropriate to operate
the Transfer Station. Contractor hereby grants to the
City, at no cost to the City, an irrevocable offer to
a one (I) year lease, or portion thereof in monthly
increments, of any or all of Contractor's equipment at
a fair market lease rate in the event the City
terminates this Contract for cause. At the time of
termination, the City shall give written notice to
Contractor of its desire to lease all or a portion of
Contractor's equipment by specifying the item of
equipment the City desires to lease. With respect to
each item of equipment specified, the City may
immediately begin using such equipment and may take
physical possession of it. The equipment of
Contractor shall be returned to Contractor in the same
condition as existed at the time when the City
obtained the same, with the exception of ordinary and
reasonable wear and tear.
9.05. Remedies Not Exclusive. The City's rights
and remedies in the event of Contractor's breach and
default hereunder are not exclusive. The City's
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November B, 2001 4 7
exercise of one such remedy is not an election of
remedies.
ARTICLE X. INSURANCE.
10.01. Insurance. Contractor shall procure and
maintain for the duration of the contract insurance
against claims for injuries to persons or damages to
property which may arise from or in connection with
the performance hereunder by Contractor, its agents,
representatives, employees or subcontractors.
(a) Minimum Scope of Insurance. Coverage
shall be at least as broad as:
(i) Insurance Services Office from number
GL 002 (Ed. 1/73) covering Comprehensive
General Liability and Insurance Services
Office form number GL 0404 covering Broad Form
Comprehensive General Liability; or Insurance
Services Office Commercial General Liability
coverage ("occurrence" form CG 0001).
(ii) Insurance Services Office form
number CA 0001 (Ed. 1/78) covering Automobile
Liability, code 1 "any auto" and endorsement
CA 0025.
(iii) Builder's risk insurance on "all
risk" basis (including collapse) on a
completed value form for full replacement
value covering the interests of Contractor and
the City in all work incorporated in and all
materials and equipment for the Project. All
materials and equipment in any off-site
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Novembcr 8, 2001
storage location intended for permanent use in
the Project, or incident to the construction
thereof shall be insured on an "all risk"
basis as soon as the same have been acquired
by Contractor.
(iv) Worker's Compensation insurance as
required by the Labor Code of the State of
California and Employer's Liability insurance,
if Contractor has employees who will directly
or indirectly provide service or support
Contractor in its provision of services under
this Contract.
(b) Minimum Limits of Insurance. Contractor
shall maintain limits no less than:
(i) General Liability: $1,000,000
combined single limit per occurrence for
bodily injury, personal injury and property
damage. If Commercial General Liability
Insurance or other form with a general
aggregate limit is used, either the general
aggregate limit shall apply separately to this
project/location or the general aggregate
limit shall be twice the required occurrence
limit.
(ii) Automobile Liability: $1,000,000
combined single limit per accident for bodily
injury and property damage.
(iii) Workers' Compensation and
Employer's Liability: Workers' compensation
limits as required by the Labor Code of the
S-AU V~gnnlsU I Cfranl i-r Sln. At~t'I 1 1-7 wryl 4
Novcminr 8, 2 W I
State of California and Employer's Liability
limits of $1,000,000 per accident.
(c) Deductibles and Self-Insured Retentions.
Any deductibles or self-insured retentions must be
declared to and approved by the City. At the
option of the City, either the insurer shall
reduce or eliminate such deductibles or self-
insured retentions as respects the City, its
officers, officials, employees and volunteers; or
Contractor shall procure a bond guaranteeing
payment of losses and related investigations,
claim administration and defense expenses.
(d) Other Insurance Provisions. The policies
are to contain, or be endorsed to contain, the
following provisions:
(i) General Liability and Automobile
Liability Coverages.
(A) The City, its officers,
officials, employees and volunteers are to
be covered as insureds as respects;
liability arising out of activities
performed by or on behalf of Contractor,
products and completed operations of
Contractor, premises owned, occupied or
used by Contractor, or automobiles owned,
leased, hired or borrowed by Contractor.
The coverage shall contain no special
limitations on the scope of protection
afforded to the City, its officers,
officials, employees or volunteers.
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November 8, 2001 5
(B) Contractor's insurance coverage
shall be primarily insurance as respects
the City, its officers, officials,
employees and volunteers. Any insurance
or self-insurance maintained by the City,
its officers, officials, employees or
volunteers shall be in excess of
Contractor's insurance and shall not
contribute with it.
(C) Any failure to comply with
reporting provisions of the policies shall
not affect coverage provided to the City,
its officers, officials, employees or
volunteers.
(D) Contractor's insurance shall
apply separately to each insured against
whom a claim is made or suit is brought,
except with respect to the limits of the
insurer's liability.
(ii) Workers' Compensation and Employer's
Liabili~ Coverage. The insurer shall agree
to waive all rights of subrogation against the
City, its officers, officials, employees and
volunteers for losses arising from work
performed by Contractor for the City.
(iii) All Coverages. Each insurance
policy required by this Section shall be
endorsed to state that coverage shall not be
suspended, voided, canceled by either party,
reduced in coverage or in limits except after
thirty (30) days prior written notice by
S'.\U\Agrmu0l\TmnlcrSm AMTI I-7 w~xl 51
November K, 2001
certified mail, return receipt requested, has
been given to the City.
(e) Acceptability of Insurers. Insurance is
to be placed with insurers with a Best's rating of
no less than A:VII.
(f) Verification of Coverage. Contractor
shall furnish the City with certificates of
insurance and with original endorsements affecting
coverage required by this Section. The
certificates and endorsements for each insurance
policy are to be signed by a person authorized by
that insurer to bind coverage on its behalf. The
certificates and endorsements are to be on forms
provided by the City. Where by statute, the
City's workers' compensation-related forms cannot
be used, equivalent forms approved by the
Insurance Commissioner are to be substituted. All
certificates and endorsements are to be received
and approved by the City before work commences.
The City reserved the right to require complete,
certified copies of all required insurance
policies, at any time.
(g) Subcontractors. Contractor shall include
all subcontractors and insureds under its policies
or shall furnish separate certificates and
endorsements for each subcontractor. All
coverages for subcontractors shall be subject to
all of the requirements stated herein.
10.02. Fire and Damage Insurance. Upon
completion of the construction of the Transfer
Station, Contractor shall carry fire insurance with
extended coverage endorsements approved by the City,
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November K, 2001
jointly in the names of Contractor and the City,
covering not less than the full insurable value of all
improvements on the Site. Said policy or policies, or
copies thereof, shall be deposited with the City, and
Contractor shall pay all premiums and other charges
payable with respect to such insurance. in the event
of damage to any portion of the Transfer Station on
the Site, Contractor shall rebuild, repair or
otherwise reinstate the damaged Improvements in a good
and substantial manner according to applicable Uniform
Code standards. The reconstruction required herein
shall commence within ninety (90) days after the
damage occurs, and shall be pursued diligently to
completion.
ARTICLE XI. DISPUTE RESOLUTION.
11.01. Independent Engineer. The Independent
Engineer shall be selected by mutual agreement of the
parties within ten (10) days of the date of this
Contract. The Public Works Director of the City shall
have the authority to represent the City in the
selection of the Independent Engineer. Jim Salyers,
or such other manager designated by Contractor, shall
have the authority to represent Contractor in the
selection of the Independent Engineer. In the event
the Independent Engineer resigns or is otherwise
unable to perform services hereunder or either party
wishes to select a different engineer, each Party
shall prepare a separate list of five (5) independent
engineers having experience in the design,
construction, acceptance and operation of transfer
stations, material recovery facilities and yard waste
processing facilities, in numerical order with the
first preference at the top, and exchange and compare
lists. The independent engineer ranking highest on
59U~AgrtntsO l\TranlcrSm.AMTi I-7.wpd 5 3
November 8, 2001
the two lists by having the lowest total rank order
position on the two lists shall be the Independent
Engineer. In case of a tie in scores, the Independent
Engineer having the smallest difference between the
rankings of the two parties shall be selected; other
ties shall be determined by a coin toss. If no
independent engineer appears on both lists, this
procedure shall be repeated. If selection is not
completed after the exchange of three lists or sixty
(60) days, whichever comes first, then each Party
shall select one independent engineer having
experience described above and the two engineers so
selected shall together select an Independent
Engineer.
11.02. Independent Engineer Costs. Parties shall
pay the costs of the Independent Engineer in
accordance with the provisions hereof; provided, that
if no provision is specifically made, the Parties
shall share the costs of the Independent Engineer
equally for the first three arbitrations or mediations
brought in any Contract Year, and thereafter shall be
borne by the loser, as determined by the Independent
Engineer.
11.03. Arbitration for Specified Disputes Only.
Following the Parties mutual good faith efforts to
resolve disputes listed in this Section below for a
period of no less than thirty (30) days, or prior to
the start of operations of the Transfer Station in
accordance with Section 2.02, ten (10) days, the
Parties shall each give the Independent Engineer
Notice detailing the dispute together with a written
statement of each Party's position thereon. Parties
shall simultaneously exchange copies thereof. The
$:\UW grmis0l \Tranl crSm.A MTI 1-Z wpJ
November K, 2WI 54
determination of the Independent Engineer with respect
to these specific disputes shall be binding:
(a) the City approval of plans and
specifications for Transfer Station construction;
(b) the City acceptance of Transfer Station;
(c) Contractor accounting of actual
Construction Costs of Transfer Station;
(d) adjustments in Construction Costs,
Service Fee or completion date due to Change
Orders directed by the City;
(e) any other disputes which both Parties
agree to submit to the Independent Engineer for
determination on a binding basis.
Both Parties shall, in good faith and in writing,
promptly provide the Independent Engineer with any and
all information and documentation the Independent
Engineer requires or requests in order to make its
determination. Each Party shall simultaneously
provide the other Party with copies thereof. Neither
Party shall communicate orally with the Independent
Engineer unless the other Party is privy thereto.
Neither Party shall communicate in writing with the
Independent Engineer unless it simultaneously sends
copies of such communication to the other Party, in
the same manner that it sends such communication to
the Independent Engineer.
11.04. Determination. The Independent Engineer
shall make its determination based on the submissions
of the Parties, the provisions hereof, and other
S:\U\Agrmis(11 \TranlerSm AMTI I-7.wpd 5 5
Novemlxr 8, 2001
factual determinations it may make regarding the
matter in dispute.
11.05. Studies and Surveys. The Parties may
request the Independent Engineer to conduct studies
and surveys with respect to breaches or disputes
hereunder. Cost of such surveys and studies shall be
paid as the Parties may agree.
11.06. Ot~tional Arbitration. In addition to the
specified disputes that will be submitted to the
Independent Engineer, any other dispute may be
referred to binding or non-binding arbitration under
procedures that the Parties shall adopt. Contractor
and the City mutually agree to conduct such
arbitration.
ARTICLE XII. OBLIGATION TO PURCHASE
12.01. Purchase of Improvements and Equipment.
Upon termination of this Contract for any reason,
Contractor shall have the obligation to sell to the
City and the City shall have the option to purchase,
(1) the improvements constructed by Contractor on the
Site ("improvements"), and (2) the equipment used by
Contractor to meet its Performance Obligations in
operating the Transfer Station and transporting
Acceptable Waste and Recyclables to a Disposal Site
and other markets (the "equipment") Such option shall
be exercised by written notice to Contractor and Owner
given not less than six (6) months prior to the date
of termination, unless termination is the result of
Contractor's default as set forth in Article 9 of this
Contract. In the event this Contract terminates as a
result of Contractor's default City shall have the
right to exercise its purchase option, if it gives
S \UW grtnls0l^ ianlerSm.AMTI I-7.wpd rJ 6
Navcmbcr 8, 2001
notice to Contractor and Owner of such election within
sixty (60) days after the Contract is terminated.
The purchase price that the City shall pay
Contractor for the improvements shall be a sum equal
to the total Construction Costs, less that portion of
the Construction Costs amortized and paid through the
Construction Cost Component of the Service Fee through
the date of termination. The purchase price that the
City shall pay Contractor for the equipment shall be
its cost less depreciation calculated on a straight-
line basis over the estimated useful life. If the
Contract remains in effect for the initial fifteen
(15) year term, the City shall pay nothing for the
Improvements, even if some portion of the actual
construction costs remains unpaid by collection of the
Construction Cost Component of the Service Fee.
12.02. Purchase or Lease of Site. Upon
termination of this Contract for any reason, the City
shall have the option to purchase the Site from
Owner, and Owner shall have the obligation to sell the
Site to the City, if the City has elected to purchase
the improvements pursuant to paragraph 12.01. The
purchase price that the City shall pay Owner for the
Site shall be a sum equal to the lesser of (i)
$487,000 increased by the percentage increase in the
CPI between the date of this Contract and the date of
termination, or (ii) the then actual fair market value
of the Site; provided, however, that in no event shall
the minimum purchase price be less than $487,000. The
purchase and sale of the Site shall be on a then "as-
is" basis, and otherwise on commercially reasonable
terms then applicable to the purchase and sale of real
property, including the right of City to demand
indemnification from Contractor for hazardous or toxic
S \U\A ynn ts0l\Tran2 rSln AM I I I-7.wry1
Nurembcr 8, 2W I S
waste contamination arising prior to City's purchase
of the Site and Contractor's obligation to convey to
the City clear, unencumbered fee title to the
Property. If the Contract is not terminated until the
end of the initial fifteen (15) year term, the
purchase price shall be zero ($0.00). Alternately, at
the option of the City exercised by written notice to
Owner given within ninety (90) days of the date of
termination, the City shall lease the Site from Owner
and Owner shall lease the Site to the City, for a
lease term of not less than ten (10) years, at the
then fair market lease value of the Site (less any
value attributable to the improvements) and otherwise
on commercially reasonable terms then applicable to
the ground lease of real property. The parties shall
select and share the cost of an appraiser to determine
the fair market value or fair market lease value of
the property. If they cannot agree on a single
appraiser, they may each produce an appraisal report
by an appraiser of their choice. If the separate
appraisals are within ten percent (l00) of each other,
fair market value shall be the average of the two
appraisals. If the appraisals differ by more than ten
percent (l0o), 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 value or
fair market lease value of the Site. The parties
shall each bear the expense of their separately
selected appraisers and share equally the cost of the
third appraiser.
ARTICLE XIII. GENERAL PROVISIONS
S \UN grmis0l \TranfcrSm. AMT 114. wlxl
November K, 2001 5 8
13.01. Governing Law. This Contract is made in
and shall be construed under the laws of the State of
California, and any actions filed hereunder shall be
filed in the County of Mendocino, State of California.
13.02. Severability. If any Contract provision
is held void, invalid, or unenforceable under any
applicable law, the remaining provisions of the
Contract shall remain in effect and bind the parties;
however, the parties shall negotiate in good faith to
amend the Contract to effectuate the intent of any
void, invalid, or unenforceable provision, if
permissible under applicable law.
13.03. Time of the Essence: No Waiver. Time is
of the essence in this Contract. The City's or
Contractor's failure to object to a breach of any
Contract provision is not and shall not be construed
as a waiver of that provision. The payment or
acceptance of compensation to any breach is not and
shall not be deemed an acceptance of that breach. Any
waiver must be in writing.
13.04. Construction of Terms. Unless otherwise
specified in the Contract, words describing material
or work that have a well known technical or trade
meaning shall be construed in accordance with the well
known meaning generally recognized by solid waste
professionals, engineers and trades.
13.05. Personal Liability. This Contract is not
intended to create or result in any personal liability
for any public official or the City employee or agent,
nor shall the Contract be construed to create that
liability.
5'.\LMgrmIS0l CfranlcrSmAMTII-Zw~d
Novcmlx+r 8, 2 W 1 5 9
13.06. Subsidiary Contracts. No contract between
Contractor and its subcontractors, officers, employees
or agents, including all contracts relating to
construction, use, operation of the Transfer Station,
transportation vehicles or disposal site, shall
prevent, expressly or in effect, Contractor from
performing its obligations under this Contract.
13.07. Independent Contractor. Contractor shall
perform all work under this Contract as an independent
contractor. Contractor is not and shall not be
considered an employee, agent, subagent, or servant of
the City for this Contract or otherwise; Contractor's
subcontractors, employees, or agents are not and shall
not be considered employees, agents, subagents, or
servants of the City for this Contract or otherwise.
Nothing in this Contract shall be construed as
creating a partnership or joint venture between
Contractor and the City or as giving the City a duty
to supervise or control the acts or omissions of any
person performing services or work under the Contract.
13.08. Notices. All demands, directions,
selections, option exercises, orders, requests,
proposals, comments, acknowledgments, approvals,
consents, certifications, waivers and other
communications made hereunder shall be in writing and
deemed served when: (a) delivered in person to the
person to whom it was intended; (b) if sent by
certified mail or other carrier, return receipt
requested, to that person at the person's last known
business address; or (c) if sent by facsimile
(confirmed promptly by the means described in clause
(a) or (b) of this Section). The date or time of
service shall be three (3) business days after the
date or time the relevant document was mailed to that
S \lMgmusU l\Tranl e~Sln AMl 114.wpd
November 8, 2V01 6 Q
address; one (1) business day after the relevant
document was faxed to that fax number; and the same
day if personally delivered to the specified person
and/or address. Contractor shall address all notices
and correspondence to the City to the City's
representative as follows:
City Manager
City of Ukiah
Ukiah Civic Center
300 Seminary Ave.
Ukiah, CA. 95482
FAX: (707)463-6204
The City shall address all notices and correspondence
to Contractor to Contractor's representative as
follows:
James Ratto, CEO
Solid Waste Systems, Inc.
P.O. Box 1916
3417 Standish Ave.
Santa Rosa, CA. 95402
FAX: (707)586-5543
The addresses and phone numbers for the
representatives of the Parties may be updated by
written notice as necessary.
13.09. Article Section and Subsection
References. Any Articles, Sections or subsections
mentioned in this Contract by number only, without
reference to another document, refer to those
Articles, Sections or subsections contained in this
Contract. All Article, Section or subsection headings
contained in this Contract are for convenience and
S:UMgrtnts0l\Tranfcr$tn AMTII-7.wpd 6 1
November 8, 2001
reference only. They are not intended to define or
limit the scope of any provision of this Contract.
13.10. Amendment or Waiver. Neither this
Contract nor any provision hereof may be changed,
modified, amended or waived except by written
instrument signed by the Parties.
13.11. Integration. This Contract and the
Franchise Agreement contain the entire agreement
between the Parties with respect to the transactions
contemplated hereby. This Contract shall completely
and fully supersede all prior understandings and
agreements between the Parties with respect to such
transactions, including those contained in the "Offer
for Construction and Operation and Solid Waste
Transportation and Disposal" previously signed by
Contractor and approved by the City Council of the
City.
13.12. Execution in Counterparts. This Contract
may be executed in any number of original
counterparts. All such counterparts shall constitute
but one and the same Contract.
13.13 No Third Party Beneficiaries Intended.
The terms of this Contract are intended for the
benefit of Contractor, City and Owner only and not for
the benefit of any third parties. Third party
beneficiaries are not created or intended.
ARTICLE XIV. TERM
14.01. Term of Contract. The term of the Contract
shall continue for fifteen (15) years beginning on the
date of the start of operation of the Transfer Station
S:\UWgrmBU l\TranlerSmAM I'1 I-7.wpd
November 8, 2001 6 2
pursuant to Section 2.02,as amended, unless terminated
earlier pursuant to terms of the Contract.
ARTICLE XV. CONDITION TO CONTRACT
In entering this Contract, City agrees to amend
the Franchise Agreement extending the date for the
termination of the Franchise Agreement to the date on
which the term of this Contract terminates; provided,
however, that nothing in this Article 15 shall
prohibit the parties from extending the Franchise
Agreement beyond the termination of this Contract.
IN WITNESS WHEREOF, this Contract was executed by
the parties as of the date first written in above.
Date: /U~~~7.~.~~~t 2001
"City"
THE CITY OF UKIAH, a municipal
corporation
By' ~ -
Its : ~a? z~ .1~Ji9.tJi~~c~i~
ATTEST:
BY = ~L'~!/C~~ L-~~-~~Y-~~~
S\U\Agrmts0l\TranfcrStn AMTII-7.wpd
November 8, 2001 6 3
Date : /j,~/~/i~~/~ ~~ 2 0 O l
Date: ~l~/~J~~% 02~~ 2001
"Contractor"
SOLID WASTE SYSTEMS, INC.,
A California corporation
By:
Date
lyers/ Juice-President
2001
"Owner"
NORTH BAY CORPORATION,
a California corporation
By: ~"'~ /~~~
~s,~~
,Secretary
5'.\lMgrmis0l\TranfarSm.AMTl 1-7.wpd
November 8, 2001 64
President
OPERATIONS PLAN
TAYLOR DRIVE TRANSFER STATION
Solid Waste Systems, Inc. (SWS) will obtain bids for construction from qualified
contractors to construct atop-load facility with on-the-floor crushing and compaction,
with an adequate number of loading bays for both rail haul and truck haul. The lowest
responsible bid will be accepted. The site will be built for athrough-put capacity of 200
tons per day average and a peak volume of 400 tons per day.
SWS will receive refuse and recyclables at the transfer station during permitted
hours of operation. During hours of operation, in addition to accepting waste for disposal,
SWS will also provide recycling buy-back and drop-off services, household hazardous
waste recycling services, yazd and wood waste recycling, and a re-use facility.
A SWS employed gate attendant will either weigh or measure loads being
delivered to the site. The gate attendant will inspect for hazardous waste and recyclables,
reject any hazardous material discovered, and refer the site user to the recycle or re-use
area for recyclables. After paying the site attendant for the waste to be disposed, the site
user will then be directed to the refuse disposal azea. Once at the tipping area an attendant
inside the transfer building will direct site users to the correct location to dump, and the
attendant will check loads as they are unloaded for unacceptable waste. Loads that are
clean wood or yard waste will be directed to the area where wood and yard waste is
consolidated.
Once on the tipping floor the waste will be `walked on" by the track loader to
crush and compact it. Using grubber-tired front loader tractor the waste will then either
be added to the refuse consolidation pile, or loaded directly into the rail cars or transfer
trailers. Wastes will be removed from the tipping floor at least every 24 hours. Loaded
rail cars or transfer trailers will be transported to the landfill as soon as possible, but not
more than 48 hours from time of loading.
STAFFING PLAN
SWS will employ competent personnel who are qualified to perform the assigned
tasks. All personnel will possess the required licenses, permit or training for the tasks
they perform. SW S will not allow any incompetent, intoxicated, or impolite employees at
the transfer station or recycling area. SWS will employ the following personnel at the
transfer station and recycling area.
1) Equipment Operator -responsible for using track loader to crush and
compact waste, consolidating refuse and wood/yard waste to make
room on tipping floor, and loading rail cars or transfer trailers.
2) ~otterlOperator/Load Checker -responsible for directing self-haulers
and franchise haulers to correct location for dumping as well as
directing loads of wood or yard waste to the proper area, check for
inappropriate wastes, aid the equipment operator in compacting refuse
with the track loader during peak times.
3) Buv-BacklDrop-Off/Reuse Area ~Recvclin~ Attendant -responsible
for performing the operations in the State Certified Redemption
Center, directing users of the drop-off recycling azea as well as the
reuse area.
4) Gate Attendant -responsible for inspecting loads for acceptable waste,
recyclables, hazardous waste, and wood or yard waste as a preliminary
load-check. Will also act as cashier to charge incoming vehicles
according to volume or weight of waste, and will keep daily records of
all receipts and volumes of different types of materials delivered to the
site.
A more detailed description of operations of the transfer facility is
contained in Sections 2.01 through 2.17 in the Contract for Transfer Station
Construction and Operation and Solid Waste Transportation and Disposal.
The operations and staffing of the site will also be described in much more
detail in the Mendocino County Use Permit application, the California Solid
Waste Facility Permit, and through the CEQA process.
AMENDMENT TO TRANSFER STATION CONTRACT
BETWEEN
CITY OF UKIAH
AND
SOLID WASTE SYSTEMS, INC.
This agreement is made and entered in Ukiah, California, on Aori117, 2002, by and between the CITY
OF UKIAH ("City"), a general law municipal corporation, and SOLID WASTE SYSTEMS, INC., a California
corporation (" Contractor").
This agreement amends the REVISED TRANSFER STATION AGREEMENT between the parties, dated August
17, 2000 ("Contract"). Except as expressly amended by this agreement, all other terms and conditions of the
Contract remain unchanged and in full force and effect.
Section 2.12 of the Contract is amended to read as follows:
2.12. Droo Off Recyclin¢. Contractor will provide and service sepazate bins to receive the following segregated
recyclable items from the public: aluminum cans, tin cans, glass bottles and jars, newspaper, corrugated cardboard,
magazines, office paper, box board, plastic containers, milk and juice cartons, foam padding, appliances, tires and
scrap metals, when scrap metals are contained in loads of one (])cubic yard or less. No charge will be made to
the public for drop-off recycling of the specified recyclables, except for appliances and tires as stated herein.
Contractor will accept additional recyclable items when a V fable Market is available. Contractor may cease
accepting a recyclable item upon written agreement by the City that a satisfactory recycling market no tonger exists.
Contractor will ensure that all recyclables received will be sold or donated to bona fide recyclers who will divert the
materials from disposal. Contractor will retain all revenues from sale of recyclable materials. MSWMA or another
entity designated by City shall have the option to provide refrigerant removal from appliances received at the
Transfer Station at no cost to the Contrnctor.
Section 4.1 I of the Contract is amended to read as follows:
4.11. Recvclina Fees . Contractor may charge and collect fees approved by the City per item of
appliances, tires, used oil filters, antifreeze, and scrap metals, when scrap metals are delivered in loads of greater
than one (1) cubic yard, respectively, delivered to the Transfer Station, in amounts equal to Contractor's Direct
Costs of transporting such materials to processing or recycling facilities and paying processing or recycling fees
thereof, plus ten percent (10%) to compensate Contractor for handling such recyclables; provided, however, if three
of the four current members of MSWMA executed ten (10)-year agreements with Contractor which obligate the
agencies to direct their waste stream to the Transfer Station, the ten percent (10%) additional charge to the
Recycling Fee shall not be charged during the term of such contracts.
WHEREFORE, this agreement is entered on the date first written above.
SOLID WASTE SYSTEMS, INC. CITY OF UKIAH
Br U °, ,~ Br•
it Asr
ATT' ST:
By: ~~~.~GSC~_.CJ
Marie Ulvila, City Clerk
EXHIBIT B
AGREEMENT FOR RECEIPT OF WOOD AND GREEN WASTE
This Agreement ("Agreement") is made and entered into effective this 1 s' day of September, 2007, by and
between Pacific Recycling Solutions, Inc., a California corporation ("PRS"), Ukiah Waste Solutions, Inc.,
a California corporation ("UWS"), and Solid Waste Systems, Inc., a California corporation ("SWS").
RECITALS
A. PRS owns and operates a green waste and wood waste processing facility in Mendocino
County, California (the "Facility").
The Facility is fully permitted to accept and process Green Waste and Wood Waste, as defined
below ("Materials").
C. S W S holds a contract with the City of Ukiah for the operation of the Ukiah Valley Transfer
Station for the receipt, collection, transportation and disposal of municipal, commercial and
industrial solid waste, and U WS holds a contract with the City of Ukiah for the collection and
disposal of solid waste. SWS and UWS desire to enter into an agreement with PRS which will
provide for disposal of 10,000 tons annually of Materials at the Facility.
In consideration of the aforementioned recitals and upon the terms and conditions herein set forth, the
parties hereto agree as follows:
l . 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 noY exceed six (6) inches in diameter and four (4) feet
in length.
"Wood Waste' shall mean clean pieces of unpainted and untreated wood.
"Process" shall mean handle, grind or chip and recycle Materials.
2. Agreement to Accept Materials: PRS agrees to accept and Process all Materials collected at
SWS's transfer station or collected by UWS, as provided for under their contracts with the City of
Ukiah, and delivered by SWS or UWS to the Facility, on the terms herein.
3. Processing Rate: As consideration for the receipt and proper Processing by PRS of the Materials
delivered by SWS or UWS, SWS and U WS shall pay PRS a fee of Thirty Dollars ($30.00) per ton
for Materials received by PRS at the Facility from SWS and UWS, respectively, as adjusted
pursuant to Paragraph 3 herein (the "Processing Rate"). Fees shall be paid by SWS and UWS
within thirty (30) days of receipt from PRS of a written invoice detailing the amount of Materials
received by PRS for each month.
Adjustment of Processing Rate: The Processing Rate of Thirty Dollars ($30) per ton shall be
held constant for the first five (5) years, provided that, at the beginning of the sixth (6`~) year and
annually thereafter the Processing Rate will be increased by a percentage equal to the percentage
increase, if any, in the Consumer Price Index, All Items, for the San Francisco-Oakland
Metropolitan Area published by the United States Department of Labor, Bureau of Labor Statistics
("Index"), for the preceding year, using the Index published for the month nearest the beginning
and the month nearest the end of such year. Notwithstanding any other provision herein, to the
extent any government having jurisdiction over the Facility should impose any fee or tax
("Government Tax") on the Facility associated with the Processing of Materials, the Processing
Rate shall be increased by the amount of such Government Tax, either at the per ton rate of such
Tax or if such Tax is not assessed on a per ton basis, in the proportion that the total tonnage of
Materials PRS reasonably projects to accept from SWS an UWS during the period for which the
Government Tax will pertain compared with other users of the Facility. On each adjustment of the
Processing Rate, PRS shall deliver to SWS and UWS written notice stating the adjusted
Processing Rate.
5. Term of Agreement: This Agreement shall expire as to each of SWS and UWS on the expiration
of its respective contract with the City of Ukiah, including extensions, subject to earlier
termination, as follows. PRS, on the one hand, and either of SWS or Uws, on the other, shall be
entitled to terminate this Agreement in the event of the other party's material breach hereof unless
such breach is cured within thirty (30) days after written notice thereof. This Agreement shall
terminate automatically as to any party in the event of such party's insolvency, bankruptcy,
assignment for the benefit of creditors or other debt reorganization unless, in the case of
bankruptcy, the petition is removed or withdrawn within thirty (30) days.
6. Type of Waste: PRS shall only accept, and SWS and UWS shall only be entitled to provide,
Materials not containing any prohibited substances or hazardous waste. PRS shall be entitled to
inspect the Materials and reject and/or return to SWS or UWS any Materials that are not in
conformance with the standards set forth herein. Notice of rejection of non-conforming Materials
shall be given in writing prior to the close of business on the day PRS receives such non-
conforming Materials at the Facility. Failure to provide written notice in accordance with the
terms of the preceding sentence shall forfeit PRS's right to reject such non-conforming Materials.
SWS or UWS shall bear all costs associated with inspecting, testing and rejecting any non-
conforming Materials. Each party agrees to comply with all laws applicable to such party in the
performance of its duties hereunder.
7. Amount of Waste to be Delivered: SWS and UWS estimate that they will 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
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.
1 1. ConTidentiality: Neither party shall disclose the Processing Rate to any person except with the
express written permission of the other, which permission shall not be unreasonably withheld.
Without limiting the generality of the foregoing, PRS shall agree to allow SWS or UWS to
disclose the Processing Rate as may be reasonably requested or required by a franchisor under a
franchise 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.
l3. Third Party Beneficiary: The City of Ukiah is a third party beneficiary of this Agreement.
Date:
Date:
Pacific Recycling Solutions, Inc.
By: David Carroll
Solid Waste Systems, Inc.
By: John Shea
Date:
Ukiah Waste Solutions, Inc.
By: John Shea
EXHIBIT C
PROPRIETARY AND CONFIDENTIAL INFORMATION
RECYCLABLE MATERIALS AGREEMENT
This RECYCLABLE MATERIALS AGREEMENT is entered into by and between
Timber Cove Recycling, Inc. ("Buyer") and Lake County Waste Solutions, Inc., Clearlake Waste
Solutions, Inc., Ukiah Waste Solutions, Inc. and Solid Wastes Systems, Inc. (collectively,
"Seller"). Seller and Buyer shall collectively be referred to herein as the "Parties."
WHEREAS, Seller and its affiliates are in the business of collecting and transporting
solid waste and recyclable materials; and
WHEREAS, Buyer wishes to purchase and Seller wishes to sell recyclable materials
collected by Seller and its affiliates.
NOW, THEREFORE. in consideration of the mutual covenants and promises contained
herein, Seller and Buyer hereby agree as follows:
1. Recyclable Materials. During the term of this Agreement, Buyer agrees to
purchase and Seller agrees to sell up to an aggregate maximum of 20,000 tons per year of all of
the type(s) of recyclable materials identified in Exhibit A attached hereto and incorporated
herein collected by Seller or its affiliates within the California counties of Mendocino and Lake,
including, without limitation, the California cities of Ukiah and Clearlake, or generated at
Seller's Ukiah transfer station ("Recyclable Materials"). The Recyclable Materials shall meet
the standards and specifications set forth in Exhibit A or such other standards and specifications
as shall be agreed upon in writing by Seller and Buyer.
2. Delivery: Inspection. Delivery of the Recyclable Materials shall be made from
Seller to Buyer's facility located at 3417 Standish Avenue in Santa Rosa, California and
commonly know as the Materials Recycling Facility (the "MRF") in accordance with a schedule
as agreed upon in advance by Buyer and Seller. Buyer shall be entitled to inspect the Recyclable
Materials and, in accordance with this Section, shall have the right to reject and return to Seller
any Recyclable Materials that are not in conformance with the standards and specifications set
forth in Exhibit A. Notice of rejection of non-conforming Recyclable Materials shall be given
by Buyer to Seller in writing prior to the close of business on the day Buyer receives such non-
conforming Recyclable Materials. Failure to provide written notice in accordance with the terms
of the preceding sentence shall forfeit Buyer's right to reject non-conforming Recyclable
Materials. Buyer shall not be obligated to pay the purchase price for non-conforming Recyclable
Materials that are rejected in accordance with this Section but shall bear all costs associated with
inspecting, testing and rejecting any non-conforming Recyclable Materials.
3. Pricine: Payment. Buyer shall pay Seller the price per ton set forth in Exhibit B
attached hereto and incorporated herein for each type of Recyclable Materials that is received
and not rejected by Buyer in accordance with Section 2. The Recyclable Materials shall be
weighed at Seller's or Buyer's facility, as agreed by the parties, and proof of weight shall be
provided to Seller. Seller shall, on a monthly basis, transmit an invoice to Buyer showing the
Page 1
types and number of tons of Recyclable Materials received by Buyer hereunder during the
preceding month and the total amount due therefor. Buyer shall remit to Seller the full amount
due no later than the fifteenth (I 5th) day of the month following the month in which Recyclable
Materials were received by Buyer. Each late payment shall be subject to a late fee of one and
one-half percent (1-1 /2%) and shall bear interest at the higher of 10% per annum or the highest
rate permitted by applicable law until paid in full.
4. Term; Default; Termination.
4. I Subject to Section 9 below, the term of this Agreement shall be for a period
commencing on the last date set forth on the signature page hereof and ending on the later of
December 31, 2020 or the expiration date of the longest franchise or operating agreement of
Seller or any of its affiliates (including any extensions thereof) pursuant to which Seller or such
affiliate delivers Recyclable Materials to Buyer.
4.2 If at any time either Party determines or becomes aware that the other Party
is in default under or has breached any of the terms of this Agreement, the non-defaulting Party
shall provide written notice to the other Party as to the nature of such default. If the defaulting
Party fails to make any payment due hereunder within five (5) days, and/or fails to cure any
default in the performance of any other obligation under this Agreement within thirty (30) days,
after receipt of such written notice, the non-defaulting Party shall have the right to terminate this
Agreement upon giving written notice; provided, however, that, other than for failure to make
any payment hereunder, in the event the defaulting party shows cause why it should be entitled
to reasonable additional time to cure a default, the non-defaulting Party shall allow such
reasonable additional time to cure.
5. Representations and Warranties. In performing this Agreement, each of the
Parties shall fully comply with all applicable federal, state and local laws, ordinances, decisions,
orders, rules or regulations. Each of the Parties shall, and shall cause any carrier with which it
contracts to, handle and transport the Recyclable Materials in a safe and workmanlike manner
and all of the Parties' driver personnel and any carrier with which the Parties contract are, and
shall at all times relevant to the performance of this Agreement remain, properly licensed and
otherwise fully qualified to perform the services required hereunder. By the commencement
date of this Agreement and throughout the term of this Agreement and any extension thereof,
each Party shall be duly licensed, permitted and authorized pursuant to all applicable federal,
state and local laws to handle and transport the Recyclable Materials and each Party's facility or
facilities will have been issued all licenses, permits and authorizations required by all applicable
federal, state and local laws to handle Recyclable Materials.
6. Indemnification. Each Party hereto (the "-ndemnitor") hereby agrees to
indemnify, hold harmless and defend the other Party, and its owners, officers, directors,
employees and agents (collectively, the "Indemnitees"), from and against any and all liabilities,
penalties, fines, forfeitures, demands, claims, causes of action, suits, judgments and costs and
expenses incidental thereto, including reasonable attorneys' fees (collectively, "Damages"),
which any or all of the Indemnitees may hereafter suffer, incur, be responsible for or pay out as a
result of personal injuries, property damage, or contamination of or adverse effects on the
Page 2
environment, to the extent directly or indirectly caused by, or arising from or in connection with
the breach of any representations and warranties set forth in this Agreement of, the Indemnitor,
or any negligent or intentional actions or omissions or willful misconduct of the Indemnitor, its
employees, officers, owners, directors or agents in the performance of this Agreement or the
transportation, handling or disposition of the Recyclable Materials by the Indemnitor, its
employees or subcontractors. Such indemnity shall be limited to exclude Damages to the extent
they arise as a result of any negligent or intentional actions or omissions or willful misconduct of
the Indemnitees or their employees, officers, owners, directors or agents. If any claims
indemnified against under this paragraph have the potential for coverage under any insurance,
then the indemnities set forth in this Agreement shall apply only to the extent the amount of any
indemnified claim exceeds all amounts collected under any insurance covering such claim.
Before pursuing recovery under this indemnity, the Indemnitees shall exhaust all recovery
available for such claim from insurance.
7. Insurance. Each of the Parties shall obtain and maintain during the term of this
Agreement commercial general liability insurance which conforms to the industry standard for
the services being performed by each hereunder and workers' compensation insurance that
complies with applicable state statutory requirements.
8. Assignment. This Agreement shall be binding upon the successors and assigns of
the Parties hereto; provided, that no assignment of this Agreement shall be binding upon the
other Party without the other Party's consent, which consent shall not be unreasonably withheld
or delayed; and provided further, that no assignment shall be valid and binding which endeavors
to relieve the assigning Party of any obligations to make payments hereunder which accrued
prior to the date of assignment or in which the assignee does not affirmatively agree, in writing,
to assume all obligations of the assignor under this Agreement.
9. Force Majeure. Except for the obligation to pay for Recyclable Materials
received by Buyer, the performance of this Agreement may be suspended to the extent that and
for so long as either Party's obligations hereunder are delayed or hindered by a cause or causes
beyond the reasonable control of such Party. Such causes shall include, but not be limited to,
acts of God, landslides, lightning, forest fires, storms, floods, freezing, earthquakes, civil
disturbances, strikes, lockouts or other industrial disturbances, acts of the public enemy, wars,
blockades, public riots, breakage, explosions, or other similar causes. The parties further
acknowledge that (a) the cities and counties served by Seller and its affiliates may have the right
to direct Recyclable Materials to a facility other than the MRF and Seller and such affiliates shall
not be under any obligation to deliver to the MRF or sell to Buyer hereunder Recyclable
Materials so directed to another facility; and (b) Seller and its affiliates are in the process of
creating their own materials recovery facility and shall be under no obligation to continue to
deliver to the MRF or sell to Buyer hereunder Recyclable Materials that can be accepted at such
new facility.
10. General Provisions.
(a) No waiver by either Party of any one or more defaults or breaches by the
other in the performance of this Agreement shall operate or be construed as a waiver of any
Page 3
08/13/2007 I7: 18 707-546-13b0 LAW OFFIt~S PAC£ 05/07
lefaults or taesche~ whether of a like
s declared invalid +~ tmenforceable, fl
4geement and I not affiect the rea
~
retwem the Parts ~ Agreement an
and na represeatat
retries in writing, modify,•thaag~
j
his Agreement. Tht s Agreeemmt may
feller and Buyer,
(c) notices wader tt
lelivmed or smtby oertitie
xrnfirmod to the addt+essea dr
~dthtss as other P~j
sted
i
fe
d nc ~' shaIl sp~xify by
~ex'ved Huse (3) b
g
ven an
a
Iotice given by defive¢y or se
seemed given upoa eipt.
(d) validity, intap
Sovemed and consty ued in acoordeae~
rrospective of Choi of law principle
EXECUTED atld effective as <
[ imber Cove Recyc ling, tat.
Dace: $- f 3 ' ~ ~~
Address for receipt l
df notices:
I
I _
*or on the date of c tm' sing for the Stoc
Exhibit 7. I
RECYCt.ABtF MA A6REEMFNT-Final
or diffetca cht~rsucter. If say provision of this Agremnent
rm such poltitot shall be deemed to be sevetabie flora this
taittder herons
d all Er6obits hereto repteseat the entire undtrstanding
ions, statements ca sgceemeats. tmless agreed W by the
e, amend or otherwise atiect the obligations tmdettalcean in
only be amended by a written agreement mcecuted by
us Agreement shall be in writing sad shall be sffeetive if
d mat7, postage: prepaid, or by overnight caviar or
et forth on the signature page hae~ or to sunk other
written surtice so given Any notia smt by wait shall be
us3nesc days efts the ante deposited in fire mail. Any
mt by overnight catrirx ar confirmed facsuaile shad be
relation aad performac:Ce of this Agtmzeat shall be
with the internal laws of UIe state of California,
3 ~ applicable federal laws and mgulativas.
rf the Latest date set forth below:'
C&S Waste Sohrtions-'Ukiah
Ttansfer,Tnc.
~`~1'dw~ It
its: ',
Date: ~" ~ ~'
Address for recxipt of notices:
k and Asset P~uchase Agreeaaeat t0 mhieh this agreement is '
Page 4
F,XHIBIT A
TYPES. STANDARDS & SPECIFICATIONS OF RECYCLABLE MATERIALS
Material Specifications
During the course of operations, any changes to the material specifications for any inbound
commodity will be agreed to by both parties prior to introduction of the new commodity.
Residential Materials
Materials collected through curbside recycling include: glass bottles and jars, tin and aluminum
cans, aluminum foil, plastic food and beverage containers (#1-#7) and milk and juice cartons,
newspaper, OCC, magazines, junk mail, chipboard, white and office paper, and telephone books.
Inbound materials may not contain more than 5% reject material.
Commercial Materials
Clean Corrugated Containers
Consists of baled or loose corrugated containers having liners of either test liner, jute or kraft.
Prohibitive materials ..............................................1%
Total Outthrows may not exceed ................................5%
Mixed Office Paper
Consists office fiber waste including envelopes, files, file folders, white ledger, color ledger,
CPO, copy paper (coated or uncoated), brochures, forms and associated staples, clips, bindings
and bands.
Prohibitives include glass, food, shredded paper, restroom waste and hospital waste.
Total outthrows may not exceed 5%.
Page 5
EXHIBIT B
PRICE SCHEDULE
$25/ton F.O.B.
Page 6
ATTACHMENT 4
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF UKIAH APPROVING ASSIGNMENT AND
CONSENT [WASTE COLLECTION CONTRACT]
AND CONSENT TO SALE [TRANSFER STATION
AGREEMENT] AUTHORIZING THE ACQUISITION
OF TANSFER STATION AND WASTE
COLLECTION BUSINESSES FROM THE RATTO
GROUP BY DAVID CARROLL, JOHN SHEA AND
BRUCE MCCRACKEN AND AUTHORIZING THE
MAYOR TO SIGN SAME.
WHEREAS,
1. The City contracts with Solid Waste Systems, Inc. ("SWS") for the
collection of solid waste in the City under a Contract for Collection,
Transportation and Disposal of Garbage, Refuse, and Rubbish, and Recycling of
Recyclable Materials from Within the City ("Waste Collection Contract"); and
2. The City contracts with SWS for the operation of a solid waste transfer
station on Taylor Drive under an Agreement between City of Ukiah and Solid
Waste Systems, Inc. and North Bay Corporation ("Transfer Station Agreement");
and
3. SWS has entered agreements to sell the waste collection and transfer
station businesses to David Carroll, John Shea and Bruce McCracken ("Buyers")
via a stock sale and an assignment of the Waste Collection Contract to a newly
formed company owned by Buyers; and
4. Under the Waste Collection Contract and the Transfer Station
Agreement the City Council's approval is required for these transactions; and
5. The City Council has considered the ability of the Buyers to operate the
businesses successfully and has carefully considered the impact of this sale on
the residents of the City who use and pay for these services; and
6. The City Council has determined that it is in the best interests of the
City to approve these transactions on the terms and conditions as set forth in the
Assignment and Consent [Waste Collection Contract], attached hereto as Exhibit
1, and the Consent to Sale [Transfer Station Agreement], attached hereto as
Exhibit 2;
NOW, THEREFORE, BE IT RESOLVED that Exhibits 1 and 2 are hereby
approved and the Mayor is hereby authorized to sign said exhibits on behalf of
the City.
ATTACHMENT 4
PASSED AND ADOPTED by the Ukiah City Council on October 29, 2007,
by the following roll call vote:
AYES:
NOES:
ABSTAIN:
ABSENT:
Mari Rodin, Mayor
ATTEST:
Linda Brown, City Clerk
2
ITEM NO: 2b.
MEETING DATE: October 29, 2007
AGENDA SUMMARY REPORT
SUBJECT: ADOPTION OF RESOLUTION EXTENDING PARTIAL SUSPENSION OF THE
ENFORCEMENT OF SEWER LATERAL INSPECTION AND REPAIR
ORDINANCE
SUMMARY: The City Council suspended, in part, the enforcement of the sewer lateral
inspection and repair ordinance, until November 1, 2007, recognizing that if the City reached
agreement with River Watch on amendments to the Consent Decree, the suspension could
be extended to allow time for court approval of those amendments and their implementation.
As the City Council knows, River Watch has approved amendments to the Consent Decree
proposed jointly by the City and the Ukiah Valley Sanitation District. Documents amending
the Consent Decree are in the process of being signed and will be submitted to the Court,
EPA and the United States Attorney for approval. Once approved, the City and the District
will have 90 days to implement the new sewer lateral inspection and repair program.
The attached resolution extends the current suspension of enforcement from November 1,
2007, until the new program is implemented.
RECOMMENDED ACTION: Adopt the resolution extending suspension of enforcement
of sewer lateral inspection and repair ordinance.
ALTERNATIVE COUNCIL POLICY OPTIONS: N/A
Requested by: Rick Kennedy, Interim Director of Water and Sewer
Prepared by: David J. Rapport, City Attorney
Coordinated with: Rick Kennedy, Candace Horsley, City Manager
Attachments: Attachment 1- Resolution Of The City Council Of The City Of
Ukiah Extending the Partial Suspension of the Enforcement of
Sewer Lateral Inspection and Repair Ordinance
Approved:
Candace Horsley, City I anager
Attud ~ment #
RESOLUTION NO. 2007-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF UKIAH
EXTENDING THE PARTIAL SUSPENSION OF THE
ENFORCEMENT OF SEWER LATERAL INSPECTION AND
REPAIR ORDINANCE
WHEREAS,
1. The City of Ukiah ("City") has adopted Sections 3799.1-3799.7 of the Ukiah City
Code, requiring the inspection and repair of sewer laterals upon a change in ownership of
a property served by a sewer lateral, upon the issuance of a building permit to remodel
structures on such a property, and upon other "triggering events"; and
2. These City Code sections were adopted, in part, to comply with sections I I I(6)(b )
and III(6)(c) of the Consent Decree in River Watch v. Ukiah et al. (N.D. Cal.) Case No. CV-
04518-CW ("River Watch"); and
3. Pursuant to a stipulation among the City, the Ukiah Valley Sanitation District
("District") and River Watch, on May 30, 2007, the federal district court in River Watch
issued an order suspending the obligation of the City and the District to comply with
sections I I I(6)(b) and II I(6)(c) until November 1, 2007, to allow the City and the District time
to analyze the feasibility of developing an alternative sewer lateral inspection and repair
program; and
4. The City Council adopted a resolution establishing a partial suspension until
November 1, 2007: and
5. The City has reached an agreement with River Watch to amend the Consent
Decree;
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF UKIAH,
CALIFORNIA, DOES RESOLVE AS FOLLOWS:
1. Enforcement of Ukiah City Code Sections 3799.1-3799.7 is hereby suspended
until a new sewer lateral inspection and repair program is implemented in accordance with
the agreed upon amendments to the Consent Decree ("the Suspension Period").
2. City staff is directed to update the notice of that suspension on the City's website.
3. During the Suspension Period a triggering event will require the inspection but
not the repair of the sewer lateral serving the lot or parcel subject to that event.
Resolution No. 2007-
Page 1 of 2
PASSED AND ADOPTED this
vote.
AYES:
NOES:
ABSENT:
ABSTAIN:
th day 2007, by the following roll call
Mari Rodin, Mayor
ATTEST:
Linda C. Brown ,City Clerk
Resolution No. 2007-
Page 2 of 2