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HomeMy WebLinkAboutRES CC 2017 3650 2017 1206 RESOLUTION NO. 2017-3650 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MOORPARK, CALIFORNIA, APPROVING THE TRANSFER OF THE SOLID WASTE AND RECYCLING FRANCHISE AGREEMENTS FROM MOORPARK RUBBISH DISPOSAL TO G.I. INDUSTRIES AND APPROVING A CONSENT TO ASSIGNMENT AGREEMENT BETWEEN G.I. INDUSTRIES AND THE CITY OF MOORPARK IN CONNECTION THEREWITH WHEREAS, the City, through waste hauling franchises, provides residential and commercial solid waste and recycling collection services; and WHEREAS, on September 18, 2002, the City Council granted two exclusive Franchise Agreements with G.I. Industries and two exclusive Franchise Agreements with the predecessor-in-interest of Moorpark Rubbish Disposal, LLC, for the collection, transportation, recycling, and disposal of residential solid waste and commercial solid waste in designated areas within the City limits; and WHEREAS, the Franchise Agreements have been extended numerous times and currently are set to expire on December 31, 2017; and WHEREAS, on November 14, 2017, Moorpark Rubbish Disposal requested consent to transfer its Franchise Agreements to G.I. Industries; and WHEREAS, Moorpark Rubbish Disposal's request to transfer its Franchise Agreements to G.I. Industries is expressly conditioned on G.I. Industries completing its acquisition of Moorpark Rubbish Disposal's business operations; and WHEREAS, Moorpark Municipal Code Section 8.36.345.A requires City Council approval of such a transfer, and the terms of each Franchise require that approval to be granted by Resolution of the City Council. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF MOORPARK, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council finds that G.I. Industries has demonstrated the operational and financial abilities to meet all obligations of the Franchise Agreements currently held by Moorpark Rubbish Disposal. SECTION 2. The City Council hereby: (i) consents to the transfer of the Franchise Agreements from Moorpark Rubbish Disposal to G.I. Industries subject to Section 3 of this Resolution, and (ii) approves the Consent to Assignment to Franchise Agreements for Residential and Commercial Solid Waste Collection Services ("Consent to Assignment Agreement") attached hereto as Exhibit "A". Resolution No. 2017-3650 Page 2 SECTION 3. The consent provided in Section 2 of this Resolution shall become effective upon the execution by G.I. Industries of: (i) the MOU between G.I. Industries and the City of Moorpark of this same date, and (ii) the Consent to Assignment Agreement, and satisfaction of the conditions set forth in the Consent to Assignment Agreement. This consent to transfer shall automatically expire if the conditions set forth in this Section 3 are not satisfied by March 31, 2018. SECTION 4. The Mayor is hereby authorized to sign, execute, and deliver all documents related to the transfer as may be reasonably requested by Moorpark Rubbish Disposal or G.I. Industries. SECTION 5. The City Clerk shall certify to the adoption of the resolution and shall cause a certified resolution to be filed in the book of original resolutions. PASSED AND ADOPTED this 6th day of December, 2017. L /1q41--070-} ( Jahice S. Parvin, Mayor ATTEST: Maureen Benson, City Clerk 1 '4 ltt4k, 111 Attachment: Exhibit A 1Wa ' TED Resolution No. 2017-3650 Page 3 EXHIBIT A CONSENT TO ASSIGNMENT OF FRANCHISE AGREEMENTS FOR RESIDENTIAL AND COMMERCIAL SOLID WASTE SERVICES This Consent to Assignment ("Consent Agreement"), dated for reference December 6, 2017, is entered into by and between the City of Moorpark, a municipal corporation organized and existing under the laws of the State of California ("City") and G.I. Industries, a Utah corporation ("G.I."). RECITALS WHEREAS, on September 18, 2002, the City Council granted two exclusive Franchise Agreements with G.I. Industries (the "G.I. Agreements") and two exclusive Franchise Agreements with the predecessor-in-interest of Moorpark Rubbish Disposal, LLC (the "MRD Agreements", together with the G.I. Agreements, the "Current Franchise Agreements"), for the collection, transportation, recycling, and disposal of residential solid waste and commercial solid waste in designated areas within the City limits; and WHEREAS, on November 14, 2017, Moorpark Rubbish Disposal requested the City's consent to transfer the MRD Agreements to G.I. as part of G.I.'s acquisition of Moorpark Rubbish Disposal's parent company; and WHEREAS, Moorpark Municipal Code Section 8.36.345 requires City Council approval of such a transfer, among other requirements, and the MRD Agreements require that such approval be by resolution; and WHEREAS, the City is willing to consent to the transfer of the MRD Agreements to G.I., subject to the terms and conditions of this Consent; and WHEREAS, concurrently herewith, the Parties are entering into a Memorandum of Understanding (MOU), providing, among other things, that the Parties contemplate entering into a new franchise agreement that would supersede the Current Franchise Agreements; and WHEREAS, the Parties have agreed in concept to proposed major terms of a new Franchise Agreement. NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows: Section 1. Recitals; Definitions. The foregoing recitals are true and correct, and incorporated into this Consent Agreement by this reference. Resolution No. 2017-3650 Page 4 Section 2. Consent to Assignment. On December 6, 2017, at a special meeting of the City Council, the City Council of the City of Moorpark approved and consented to the assignment of the MRD Agreements from Moorpark Rubbish Disposal, LLC to G.I. Industries, subject to the provisions of this Consent Agreement. Section 3. Effective Date. This Consent Agreement shall become effective upon the occurrence of both (i) execution of this Consent Agreement by City and G.I., and (ii) satisfaction of the following conditions, and shall automatically expire if the conditions set forth in this Section 3 are not satisfied by March 31, 2018: G.I. and Moorpark Rubbish Disposal, LLC (MRD) shall have executed and delivered to City an assignment agreement or other documentation reasonably acceptable to the City Attorney, documenting the assignment of the MRD Agreements by Moorpark Rubbish Disposal, LLC to G.I., and that such assignment includes all of the rights, interests, and obligations of the Grantee (as that term is defined in the MRD Agreements), including all claims, liabilities, demands, and causes of action that MRD may have against City, if any; G.I. shall have executed and delivered to City this Consent Agreement; G.I. shall have executed and delivered to City the MOU, including the signature of Waste Management of California where indicated on the MOU; G.I. shall have executed, acknowledged and delivered to City the Release and Hold Harmless Agreement, substantially in the form attached to the MOU; G.I. shall have delivered to City the Corporate Guaranty, substantially in the form attached to this Consent Agreement as Exhibit 1, executed by Waste Management, Inc. and acknowledged; G.I. Industries shall have delivered to City evidence reasonably satisfactory to the City Attorney that the individuals executing this Consent Agreement and the various documents required by this Consent Agreement are authorized to bind the parties on whose behalf they are executing the documents; G.I. Industries shall have delivered to City evidence reasonably acceptable to City's insurance advisor of the insurance required by Section 23 of each of the MRD Agreements; G.I. Industries shall have delivered to City the cash deposit required by Section 16 of each of the MRD Agreements; and MRD shall have paid to City the transfer fees required by Section 18 of each of the MRD Agreements. Resolution No. 2017-3650 Page 5 Section 4. Assumption. By executing this Consent Agreement, G.I. represents and warrants to City that it accepts the assignment of the MRD Agreements from Moorpark Rubbish Disposal, LLC, and that it assumes all of the rights, interests, and obligations of the Grantee (as that term is defined in the MRD Agreements) under the MRD Agreements, including all claims, liabilities, demands, and causes of action that MRD may have against City, if any. Section 5. Compliance with Terms and Conditions of MRD Agreements. G.I. represents and warrants that as of the effective date of this Consent Agreement, G.I. is not aware of any act or failure to act by any party that would result in G.I. not being in full compliance with the terms and conditions of the MRD Agreements. Section 6. Exhibits. Each of the exhibits identified in this Consent Agreement are attached and incorporated herein by this reference. Section 7. Effect of Agreement. Except as set forth in this Consent Agreement, the terms of the MRD Agreements shall remain unchanged and in full force and effect. TO EFFECTUATE THIS CONSENT AGREEMENT, each of the parties has caused this Consent Agreement to be executed by its authorized representative as of the date set forth below the authorized signature. CITY: G.I.: CITY OF MOORPARK, G.I. INDUSTRIES, a California municipal corporation a Utah corporation By: By: Janice S. Parvin, Mayor Name: Title: ATTEST: Date: Maureen Benson, City Clerk By: Name: Title: Date: Attachment: Exhibit 1 Resolution No. 2017-3650 Page 6 EXHIBIT 1 CORPORATE GUARANTY Guaranty THIS GUARANTY ("Guaranty") is given as of the day of 2017, and is made with reference to the following facts and circumstances: A. G.I. Industries ("Owner") is a corporation organized under the laws of the State of Utah. Waste Management, Inc. ("Guarantor") is a corporation organized under the laws of the State of Delaware. Owner is an indirect wholly-owned subsidiary of Guarantor. B. Owner and the City of Moorpark ("City")have negotiated a Consent Agreement ("Consent Agreement"), pursuant to which Owner has agreed to assume all of the obligations of "Grantee"under that certain Franchise Agreement between City of Moorpark and Charles Anderson and SEA/SUE Inc., a General Partnership, Doing Business as Moorpark Rubbish Disposal, for Providing Multi-Family and Commercial Solid Waste Services dated October 1, 2002, including all amendments thereto, and that certain Franchise Agreement Between the City of Moorpark and Charles Anderson and SEA/SUE Inc., a General Partnership, Doing Business as Moorpark Rubbish Disposal, for Residential Solid Waste Services dated October 1, 2002, including all amendments thereto (collectively, the"MRD Agreements"). C. It is a requirement of the MRD Agreements and a condition to City entering into the Consent Agreement that Guarantor guarantee Owner's performance of the MRD Agreements. D. Guarantor is providing this Guaranty and other considerations to induce City to enter into the MRD Agreements. NOW, THEREFORE, in consideration of the foregoing, Guarantor agrees as follows: 1. Guaranty of the MRD Agreements. Guarantor irrevocably and unconditionally guarantees to City the complete and timely performance by Owner of each and every term of the MRD Agreements that Owner is required to perform. If Owner fails to perform any term of the MRD Agreements, Guarantor will promptly and fully perform it in the place of Owner, or cause it to be performed. Guarantor also guarantees all obligations to City, including, without limitation payment to City of any damages, costs, or expenses that might become recoverable by City from Owner due to its breach of the MRD Agreements. 2. Guarantor's Obligations Are Absolute. The obligations of Guarantor under this Guaranty are continuing, unconditional, and unlimited, and, with respect to any payment obligation of Owner under the MRD Agreements, constitute a guarantee of payment and not of collection, and are not conditional upon the validity or enforceability of the MRD Agreements. Resolution No. 2017-3650 Page 7 In any action brought against Guarantor to enforce, or for damages or breach of, its obligations under this Guaranty, Guarantor will be entitled to all defenses, if any, that would be available to Owner in an action to enforce, or for damages for breach of, the MRD Agreements (other than discharge of, or stay of proceedings to enforce, obligations under the MRD Agreements under bankruptcy law). 3. Waivers. Guarantor has no right to terminate this Guaranty, or to be released, relieved, exonerated or discharged from its obligations under this Guaranty for any reason, including, without limitation: (a) the insolvency, bankruptcy, reorganization or cessation of existence of Owner; (b) the actual or purported rejection by a trustee in bankruptcy of the MRD Agreements, or any limitation on any claim in bankruptcy resulting from the actual or purported termination of the MRD Agreements; (c) any waiver with respect to any of the obligations of the MRD Agreements guaranteed hereunder, or the impairment or suspension of any of City's rights or remedies against Owner; or(d) any merger or consolidation of Owner with any other entity, or any sale, lease, or transfer of any or all the assets of Owner. Without limiting the generality of the foregoing, Guarantor waives the rights and benefits under California Civil Code Section 2819. Guarantor waives all benefits and defenses under California Civil Code Sections 2846, 2849, and 2850, including without limitation, the right to require City to (a) proceed against Owner; (b) proceed against or exhaust any security or collateral City may now or later hold; or (c) pursue any other right or remedy for Guarantor's benefit. Guarantor agrees that City may proceed against Guarantor for the obligations guaranteed herein without taking any action against Owner, or any other guarantor or pledgor, and without proceeding against or exhausting any security or collateral City may now or later hold. City may, in its sole discretion, exercise all rights and remedies available to it against Owner, or any other guarantor or pledgor, without impairing City's rights and remedies in enforcing this Guaranty. Guarantor expressly waives diligence, presentment, demand for payment or performance, protest and all notices whatsoever, including, but not limited to, notices of non-payment or non- performance, notices of protest, notices of any breach or default, and notices of acceptance of this Guaranty. If all or any portion of the obligations guaranteed under this Guaranty are paid or performed, Guarantor's obligations will continue and remain in full force and effect in the event that all or any part of such payment or performance is avoided or recovered directly or indirectly from City as a preference, fraudulent transfer, or otherwise, irrespective of (a) any notice of revocation given by Guarantor or Owner prior to such avoidance or recovery; and (b) payment in full of any obligations then outstanding. 4. Term. This Guaranty is not limited to any period of time,but will continue in full force and effect until all of the terms of the MRD Agreements have been fully performed or otherwise discharged. Guarantor will remain fully responsible under this Guaranty without regard to the acceptance by City of any performance bond or other collateral to assure the performance of Owner's obligations under the MRD Agreements. Guarantor will not be released from its obligations under this Guaranty so long as there is any claim by City against Owner arising out of the MRD Agreements based on Owner's failure to perform, which failure has not been settled or discharged. Resolution No. 2017-3650 Page 8 5. No Waivers. No delay by City in exercising any rights under this Guaranty, nor City's failure to exercise those rights, will operate as a waiver of those rights. No notice to or demand on Guarantor will be a waiver of any obligation of Guarantor, or right of City, to take other or further action without notice or demand. No modification or waiver of any provisions of this Guaranty will be effective unless it is in writing and signed by City and by Guarantor, nor will any waiver be effective except in the specific instance or matter for which it is given. 6. Attorneys' Fees. If Guarantor breaches its obligations under this Guaranty Guarantor will pay reasonable attorneys' fees, and all other reasonable costs and expenses that are incurred by City in enforcing this Guaranty, or that are incurred in any action or proceeding arising out of or relating to this Guaranty, including any action instituted to determine the respective rights and obligations of the parties under this Guaranty. 7. Governing Law: Jurisdiction. This Guaranty is and will be deemed to be a contract entered into under the laws of the State of California and will be governed and construed in accordance with the laws of California without regard to its conflicts of laws rules for all purposes including, but not limited to, matters of construction, validity, and performance. Guarantor agrees that any action brought by City to enforce this Guaranty may be brought in any court of the State of California, and Guarantor consents to personal jurisdiction over it by those courts. Guarantor appoints the following person as its agent for service of process in California: The Corporation Trust Company 1209 Orange Street Wilmington, DA 19801 With a copy by certified mail to: Waste Management, Inc. 1001 Fannin Street Houston, TX 77002 Attn: General Counsel GCLegal(awm.com 8. Severability. If any portion of this Guaranty is held to be invalid or unenforceable, such invalidity will not affect the remaining portions of this Guaranty, which portions are severable and will continue in full force and effect. 9. Binding On Successors. This Guaranty inures to the benefit of City and its successors and shall be binding upon Guarantor and its successors, including any transferee of substantially all of Guarantor's assets, and its shareholders in the event of Guarantor's dissolution or insolvency. 10. Authority. Guarantor represents and warrants that it has the corporate power and authority to give this Guaranty, that the execution of this Guaranty has been authorized by all Resolution No. 2017-3650 Page 9 necessary action under its articles of incorporation and by-laws, and that the person signing this Guaranty on its behalf has the authority to do so. 11. Notices. Notice shall be given in writing, deposited in the U.S. mail, registered or certified, first class postage prepaid, addressed as follows: To City: City Manager Moorpark City Hall 799 Moorpark Avenue Moorpark, CA 93021 with a copy to the City Attorney at the same address. To the Guarantor: Waste Management, Inc. 1001 Fannin Street Houston, TX 77002 Attn: General Counsel GCLegal@wm.com IN WITNESS WHEREOF, THE FOREGOING IS EXECUTED AS OF THE DATE FIRST WRITTEN ABOVE. WASTE MANAGEMENT, INC. a Delaware corporation By: Authorized Representative Title: Date: By: Authorized Representative Title: Date: Resolution No. 2017-3650 Page 10 STATE OF CALIFORNIA ) COUNTY OF VENTURA ) ss. CITY OF MOORPARK ) I, Maureen Benson, City Clerk of the City of Moorpark, California, do hereby certify under penalty of perjury that the foregoing Resolution No. 2017-3650 was adopted by the City Council of the City of Moorpark at a special meeting held on the 6th day of December, 2017, and that the same was adopted by the following vote: AYES: Councilmembers Mikos, Pollock, Simons, Van Dam, and Mayor Parvin NOES: None ABSENT: None ABSTAIN: None WITNESS my hand and the official seal of said City this 20th day of December, 2017. Maureen Benson, City Clerk (seal) .�'•'� ref 111:+tAtIr*igi reo