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HomeMy WebLinkAboutRegional Disposal Company - Amendment No. 3A RESOLUTION OF THE MASON COUNTY BOARD OF COMMISSIONERS RESOLUTION NO. IN REF: APPROVAL OF CONTRACT ADDENDUM (1998) FOR SOLID WASTE EXPORT AND DISPOSAL SERVICES WHEREAS, Mason County (the County) entered into a Contract for solid waste export services with Regional Disposal Company (RDC, - Contractor) on August 31, 1994; and WHEREAS, on June 28, 1994 the Mason County Board of Commissioners approved a Contract addendum as described in Resolution No. 61-94; and WHEREAS, on November 18, 1997 the Mason County Board of Commissioners approved a Contract addendum as described in Resolution No. 136-97; and WHEREAS, the Mason County Board of Commissioners (hereinafter referred to as the "Board") have reviewed a 1998 Addendum to the existing Contract regarding solid waste export services for Mason County. The purpose of this 1998 Addendum is to approve the acquisition of RDC, a Washington general partnership, by Allied Waste Industries, Inc. A Delaware corporation ("Allied"), and to approve Allied and RDC as the Contractor under the Contract and to amend the Contract per the contents of the 1998 Addendum which includes but is not limited to the following, and that except as specifically provided in this 1998 Addendum, each and every provision of the Contract and the 1994, 1997 Addendum remains as is, in all respects, in full force and effect: * A new Subsection 6.4 (a) is hereby added to the Contract which relates to a Irrevocable Letter of Credit in the amount of $25,000 which the Contractor will provide and maintain in force for two years from the effective date of this addendum. * The Contractor shall not receive an annual Consumer Price Index adjustment for the calendar year 1999. The per ton cost will remain (same as 1998) at $40.88 through January 1, 2000 at which time the Contractor shall be entitled to annual CPI adjustments (based on the previous year's CPI) in accordance with Subsection 8.1(d) of the Contract. * The Contractor shall provide to the county, at no charge and for no compensation , transport and disposal services for all acceptable waste received at the transfer station during any four days designated by the county during each calendar year. We will also receive an additional three days for disasters declared by the Governor. WHEREAS, the 1998 Addendum has been approved by the Mason County Board of Commissioners and is made part of this Resolution as Attachment A; and WHEREAS, after due consideration is appears to be in the best public interest to approve this contract addendum; NOW THEREFORE BE IT RESOLVED that the Board of County Commissioners authorize execution of the 1998 Contract Addendum between Mason County and Regional Disposal Company/Allied Waste Industries, Inc. PASSED IN REGULAR SESSION this 1st day of December, 1998. BOARD OF COMMISSIONERS MASON COUNTY, WA. PROVED AS TO FORM: J� C � VR Qi� r- pPi DEPUTY PROS. ATT. ATTEST: (:&fr,e0' CLERK OF THE BOA CHAIRPERSON ER COM SSIONER 1998 ADDENDUM TO CONTRACT REGARDING SOLID WASTE EXPORT SERVICES FOR MASON COUNTY 1. INTRODUCTION -AGREEMENT. Mason County ("County") and Regional Disposal Company ("RDC") are parties to the Contract Regarding Solid Waste Export Services for Mason County, dated August 26, 1993, addendum dated June 14, 1994, and 1997 Amendments to Contract Regarding Solid Waste Export Services for Mason County, dated November 25, 1997 (collectively, "Contract"). This 1998 Addendum to the Contract ("Addendum") adds to and is made a part of the Contract and, as such, is fully subject to the Contract's terms. If conflicts are found to exist between the Addendum and the Contract, the Addendum prevails over the Contract as the more recent expression of the intent of the parties. Unless otherwise specified, capitalized terms used herein have the meanings provided in the Contract. Except as specifically provided in this Addendum, the Contract shall remain in full force and effect. 2. EFFECTIVE DATE. This Addendum is effective as of the 15 r day of DAL e , 1998 ("Effective Date"). 3. PURPOSE. The purpose of this Addendum is to approve the acquisition of RDC, a Washington general partnership, by Allied Waste Industries, Inc., a Delaware corporation ("Allied"), and to approve Allied and RDC as the Contractor under the Contract. 4. CONTRACTOR. Wherever the terms "Contractor" or "Regional Disposal Company" are used in the Contract, those terms shall be deemed to mean Allied operating through its subsidiary, RDC. 5. ROOSEVELT REGIONAL LANDFILL. Contractor shall cause' the Roosevelt Landfill, 500 Roosevelt Grade Road, Roosevelt, Washington, to be available for accepting Acceptable Waste under the Contract throughout the Term. Contractor shall use the Roosevelt Landfill as the Disposal Site under the Contract, unless the Roosevelt Landfill cannot accept Acceptable Waste in accordance with Applicable Law. In such event, Contractor shall provide alternate Facilities in accordance with the Contract. 6. CONTRACTOR REPRESENTATIVE. The Contractor's Representative under Contract Section 5.2 shall be located within Washington state. 7. LETTER OF CREDIT. A new Subsection 6.4(a) is hereby added to the Contract to read as follows: (a) Irrevocable Letter of Credit. In addition to the Performance Bond required under Section 6.4(b), from and after the Effective Date of the 1998 Addendum to Contract Regarding Solid Waste Export Services for Mason County, the Contractor shall provide and maintain in force for two (2) years, an irrevocable standby letter or letters of credit in substantially the form attached to that Addendum as Exhibit A, which Exhibit A is incorporated herein by this reference. The letter of credit shall be in the amount of twenty-five thousand dollars ($25,000) and shall -1- 50027079.01 provide that the County may. draw upon it, upon a County determination of a default under Section 16.3. The County shall be entitled to draw upon the letter of credit to provide for its damages (including without limitation liquidated damages) and other losses, costs or expenses resulting from a default under this Contract. Failure to replace the letter of credit with another letter of credit (or provide evidence satisfactory to the County of renewability of the existing letter of credit) at least ninety (90) days prior to the expiration of an existing letter of credit shall, among other defaults, constitute a default for which the County may draw upon that existing letter of credit. Upon such a draw for nonreplacement, or upon receipt of amounts from a Surety resulting from the Contractor's failure to procure, maintain and/or replace the letter of credit, the County shall place the proceeds of that draw or payment in a separate fund. That fund shall constitute a guarantee fund, the amounts in which may be used by the County to compensate itself for any damages (including without limitation liquidated damages) and other losses, costs or expenses resulting from any other default under this Contract. Contractor shall be responsible for all letter of credit fees. • 8. ONE-TIME RATE FREEZE. The Contractor shall not receive an annual CPI adjustment for the calendar year 1999. Therefore, the adjusted unit prices under the Contract shall be the same during calendar year 1999 as they are in 1998. Commencing January 1, 2000, Contractor shall be entitled to annual CPI adjustments (based on the previous year's CPI) in accordance with Subsection 8.1(d) of the Contract. 9. UNCHARGED TRANSPORT AND DISPOSAL SERVICE. A new Section 8.6 is added to the Contract, as follows: 8.6 In consideration of the mutual benefits accruing to the respective parties under the Contract, the Contractor shall provide to the County, at no charge and for no compensation, Transport and Disposal services for all Acceptable Waste received at the Transfer Station during any four (4) days designated by the County during each calendar year. The County will provide the Contractor with not less than two (2) weeks' prior notice of the day(s) so designated. In addition, in the event that the Governor of the State of Washington declares all or a portion of Mason County to be a disaster area (or issues a declaration of similar import), Contractor shall provide to the County, at no charge and for no compensation, Transport and Disposal services for all Acceptable Waste resulting from the disaster and received at the Transfer Station during as many as three (3) days designated by the County. The County shall, in consultation with Contractor, develop a protocol for determining which Acceptable Waste arriving at the Transfer Station resulted from the disaster. 10. ALTERNATE DISPOSAL SITE AGREEMENT. On or before the Effective Date of this Addendum, RDC's rights under the Alternate Disposal Site Agreement shall be transferred to Contractor. 2 50027079.01 11. NOTICE OF CHANGE IN LAW — UNACCEPTABLE WASTE. Section 10.5 of the Contract is hereby amended and restated to read as follows: 10.5 Notice of Difference in Law — Unacceptable Waste. In the event Contractor Disposes of waste under this Contract at a Disposal Site located outside of the state of Washington, Contractor shall provide the County with notice of any differences in the laws of that state regulating the type of materials that may lawfully be Transported to and/or Disposed of at such Disposal Site, within forty-eight (48) hours of Contractor's obtaining knowledge of such differences. 12. WASHINGTON DISPOSAL SITE; SERVICE FEE ADJUSTMENTS. Section 13.1 of the Contract is hereby deleted. 13. ASSIGNMENT; CORPORATE CONTROL; SUCCESSORS. Contract Sections 18.2, Assignment, and 18.3, Change in Control or Ownership, are hereby superseded and shall have no further force and effect. A new Section 18.2 is added to the Contract, as follows: 18.2 Assignment. Any Assignment (as that term is defined below) by Contractor shall constitute a class B default under this Contract, unless the County gives its prior written consent to the Assignment. For purposes of this Contract, "Assignment" means the assignment or transfer of any of Contractor's Contract rights or obligations, Contractor's corporate reorganization, change of organization, a merger involving Contractor, or any Acquisition or Disposition (as such terms are further defined hereafter). For purposes of Article 18, "Acquisition" means the agreement by Contractor or any of its subsidiaries to acquire or agree to acquire by merging or consolidating with, or by purchasing a substantial portion of the assets of, or by any other manner, any business or any corporation, partnership, association, or other business organization or division thereof or otherwise acquire or agree to acquire any assets in Washington, Oregon, Idaho or California or British Columbia that are material, individually or in the aggregate, to the Business Condition (as that term is defined below) of a party. For purposes of Article 18, "Disposition" means the agreement by Contractor or any of its subsidiaries to sell, lease, license, transfer, mortgage, encumber or otherwise dispose of any of its assets or cancel, release, or assign any indebtedness or claim in Washington, Oregon, Idaho or California or British Columbia, except (i) in the ordinary course of business or (ii) in amounts that are not material, individually or in the aggregate, to the Business Condition of a party. 3 50027079.01 As used in Article 18, "Business Condition" with respect to any entity means the business, financial condition, results of operations or assets (giving effect to the consequences of the transactions contemplated by this Agreement) of any party. Notwithstanding the foregoing, the County may determine in its sole discretion and at Contractor's sole expense (including but not limited to the County's attorneys' fees and other costs related to reviewing a proposed Assignment) to consent to an Assignment. 14. A new Article 19 is added to the Contract, as follows: ARTICLE 19 AUTHORITY Allied represents and warrants to the County as follows: 19.1 Organization and Qualifications. It is a duly organized and validly existing corporation under the laws of the State of Delaware, with full legal right, power and authority to enter into and perform its obligations under the Contract and this Addendum. 19.2 Authority. (a) This Addendum has been duly authorized, executed and delivered by it and the Contract and Addendum constitute a legal, valid, and binding obligation of it, enforceable against it in accordance with its terms. (b) Neither the execution or delivery by it of this Addendum, nor the performance by it of its obligations in connection with the transactions contemplated hereby or thereby, nor the fulfillment by it of the terms or conditions hereof or thereof: (i) conflicts with, violates, or results in a breach of any constitution, law, or governmental regulation applicable to it; or (ii) conflicts with, violates, or results in a breach of any material term or condition of any order, judgment or decree, or any agreement or instrument to which it is a party or by which it or any of its properties or assets are a party. 19.3 Compliance With Laws. There is no action, suit or proceeding, at law or in equity, before or by any court or governmental authority pending or, to the best of its knowledge, threatened against it, which might materially adversely affect the performance by it of its obligation hereunder, or which, in any way, questions the validity, legality or enforceability of this Addendum or any other agreement or instrumententered into by it in connection with the transaction contemplated hereby. 19.4 Defense. Contractor shall pay all costs, expenses and reasonable attorneys' fees incurred by the County in the defense of any action, claim or suit by a person not a party to the Contract challenging the validity or enforceability of the Addendum. 4 50027079.01 MASON COUNTY NAWAA,C2- CHAIR, BOARD OF COMMISSIONERS REGIONAL DISPOSAL COMPANY By: .e Title: Exic .n I jC vice fe-cS( ALLIED W4STE INDUSTRIES, INC. THOMAS VAN WEELDEN PRESIDENT AND CHI FT EXECUTIVE OFFICER 5 50027079.0 I STATE OF WASHINGTON ) )ss. COUNTY OF ' ' fal'7 ) I certify that I know or have satisfactory evidence that Shn ,Bo/-eriWet- signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the Chair of the Board of Commissioners of Mason County, Washington, a municipal corporation, to be the free and voluntary act of Mason County for the uses and purposes mentioned in the instrument. Dated this lr S7 day of L ec e 6 e LAR Noisy Public —State ofy zhington My Commission Expires 3-19-01 , 1998. (Signature of Notary) 2:76 A) L .4re-inS-120n/6' (Legibly Print or Stamp Name of Notary) Notary public in and for the State of Washington, residing at 7-% urs¢vJ 7 CO-G7.n / VI — My appointment expires 3 / 9 `O / 50027079.01 STATE OF ) ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the of Regional Disposal Company, to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated this day of , 1998. (Signature of Notary) (Legibly Print or Stamp Name of Notary) Notary public in and for the State of Washington, residing at My appointment expires -7 50027079.01 STATE OF ) ) ss. COUNTY OF ) I certify that I know or have satisfactory evidence that Thomas van Weelden signed this instrument, on oath stated that he was authorized to execute the instrument and acknowledged it as the President and Chief Executive Officer of Allied Waste Industries, Inc., to be the free and voluntary act of such party for the uses and purposes mentioned in the instrument. Dated thiday of k)Open' -Cii , 1998. a l Uvv D Notary) of (Signature �� 45')(N V60YCIA') cJ jt_ tit.l (Legibly Print or Stamp Name of No ) Notary public in and for the State of i i2 residing at "D c _ My appointment expires 8 50027079.01 EXHIBIT A FORM OF LETTER OF CREDIT (BANK LETTERHEAD) [Jurisdiction], Washington Ladies and Gentlemen: We hereby establish effective [date], our Irrevocable Letter of Credit No. in your favor, at the request and for the account of , for an amount up to but not exceeding twenty-five thousand U.S. dollars ($25,000). Funds are available under this Letter of Credit upon presentation of: 1. A sight draft, purportedly signed by an authorized representative of County (the "County"), Washington, bearing reference to this Letter of Credit No. _, and 2. The following statement, purportedly signed by an authorized representative of the County: "I certify that County, Washington (the "County") has determined that is in material default under that certain [title of contract], dated , and that accordingly the County is entitled to the amount of this draw. The County has sent written notification by certified mail of its intention to draw on this Letter of Credit to 's receipt of said notification is evidenced by the enclosed copy of the signed certified mail return receipt, and ten business days have passed since .'s receipt of said notification," and 3. A copy of Notification of Intention to Draw referred to in Paragraph 2 above. Partial draws are permitted. We hereby agree with you that all drafts drawn under and in compliance with the terms of this Letter of Credit will be duly honored by us upon presentation at our Letter of Credit section at [insert bank address] on or before , the expiration date of this Letter of Credit. A-1 50027079.0 t This Letter of Credit is subject to the Uniform Customs and Practice for Documentary Credits (1993 Revision), International Chamber of Commerce Publication No. 500. (Bank Name) (Authorized signatures) A-2 50027079.01 GARY YANDO, DIRECTOR • DEPARTMENT OF COMMUNITY DEVELOPMENT PLANNING - SOLID WASTE - UTILITIES BLDG. I • 411 N. 5TH ST. • P.O. BOX 578 SHELTON, WA 98584 • (360) 427-9670 December 2, 1998 Gary Grim Contracts Manager Regional Disposal Company 200 - 112th Ave. N.E. , Suite 300 Bellevue, Washington 98004 Dear Mr. Grim: Well I think the long process is now completed. You will find enclosed the approved and signed 1998 Addendum To Contract Regarding Solid Waste Export Services For Mason County. I will be in contact with you regarding the free dump days sometime after the first of the year. I thought what I would do is have one each quarter. I want to also point out that I am in the process of securing the new vehicle that was included in the 1997 Addendum. Once we have the purchase documents completed we will forward them to you to let you know what we picked up. Basically it will be a 1999 small size pickup similar to an S10 (might be an S10) with an extended cab and canopy. If there are any questions, please call me at X270. Since ly, Gary Y Director ofDCD cc: Tom Moore Recycled