FIRST AMENDMENT TO 2ND AMENDED AND RESTATED AGREEMENT
BETWEEN THE
CITY OF SAN CLEMENTE
AND
CR&R INCORPORATRED
FOR SOLID WASTE HANDLING SERVICES
EFFECTIVE __________________
This First Amendment (“First Amendment”) to the 2nd Amended and Restated Agreement for Solid Waste Handling Services (“Solid Waste Agreement”) by and between the City of San Clemente (“City”) and CR&R Incorporated (“Contractor”), collectively referred herein as the “Parties,” is made and entered into as of the date indicated on the cover page and is based on the terms and conditions set forth herein.
RECITALS
A. The City is currently a party to a Waste Disposal Agreement (“WDA”) with the County of Orange (“County”) wherein the County provides disposal capacity for solid waste generated in the City and under which the City agreed to cause the delivery of certain solid waste generated in the City to County’s disposal system. County has developed and negotiated with City a new Waste Infrastructure Services System Enterprise Agreement (“WISE Agreement”) to replace the WDA. The County and City intend that the WDA will remain operative and in full force and effect until either the WDA expires or the occurrence of the WISE Agreement commencement date (as defined in the WISE Agreement), whichever occurs first.
B. The WISE Agreement also provides the City with the option to participate in the County’s Organic Processing Services pursuant to a separate Organic Services Agreement (“OSA”). City has, at this time, opted to not enter into an OSA with County, and to instead continue to direct that Organic Waste generated and collected within the City limits shall be delivered to the AD Facilities in accordance with Section 5.7.4 of the Solid Waste Agreement. City reserves the right to reevaluate, without limitation as to time or frequency, entering into an OSA with County.
C. The Parties desire to enter into this First Amendment to clarify the obligations of City and Contractor as relates to the WISE Agreement upon its effective date.
OPERATIVE PROVISIONS
A. AMENDMENTS
1. Amendment of Section 1.38 “County Agreement.” Section 1.38 of the Agreement is hereby amended to read as follows:
“1.38 County Agreement
“County Agreement” shall mean that certain Waste Disposal Agreement (“WDA”) between City and County currently operative as of the date of this Amendment which is and shall remain in full force and effect until such time as either the WDA expires or that certain Waste Infrastructure System Enterprise Agreement (“WISE Agreement”) made and entered into and made by and between City and the County of Orange becomes operative, then at such time “County Agreement” shall mean the WISE Agreement.”
2. Amendment of Section 23 “Flow Control: County Agreement.” Section 23 of the Agreement is hereby amended to read as follows:
23. FLOW CONTROL; COUNTY AGREEMENT
A. City’s Exercise of Flow Control. City shall have the option to direct and/or approve which transformation facility, recycling facility, material recovery facility, landfill, or other facility Contractor shall use to retain, recycle, process, and dispose of Solid Waste and construction materials generated within the Franchise Area as required to enable City to comply with the County Agreement, whether the existing WDA or the WISE Agreement; provided, however, if City redirects Contractor to a facility that increases its costs, Contractor and City shall meet and confer in good faith to determine a fair and reasonable adjustment to the maximum rates set forth on Exhibit A in order to compensate Contractor for such additional costs. Contractor expressly consents to City's ability to direct the location for disposal of Solid Waste hereunder and waives any and all rights to challenge City's ability to do so, including without limitation any rights under the Commerce Clause of the United States Constitution.
B. Contractor’s Acknowledgements and Agreements re the WDA. Contractor has expressly acknowledged its awareness of the WDA, which has been adopted and entered into by City. Moreover, Contractor acknowledges that it has previously reviewed the WDA and is aware of the provisions thereof that require all Solid Waste collected in the City Limits to be disposed of in the Orange County landfill system. Contactor further acknowledges that the County of Orange is an intended third-party beneficiary of Contractor’s obligations relating in any way to the disposal of Solid Waste pursuant to this Agreement and the WDA. Contractor has previously adopted as its obligations hereunder such provisions of the WDA that require action or inaction by it as City's Solid Waste franchisee. Contractor represents and warrants that it can and will continue to perform its duties in connection with the WDA in such a manner as to ensure that City does not breach the terms of the WDA as a result of Contractor's actions or inactions. Contractor acknowledges that the City previously exercised its flow control option set forth in this Agreement as to Solid Waste required to be delivered to the Orange County landfill system pursuant to the WDA by view of the fact that City entered the County Agreement; and, further, City is deemed to have exercised such option in a manner consistent with its obligations pursuant to the WDA.
C. Contractor’s Acknowledgement and Agreements re the WISE Agreement. At the earlier of the expiration of the WDA or the commencement date of the WISE Agreement, whichever is the first to occur, the WISE Agreement shall replace the WDA agreement which thereafter shall no further force or effect, and City shall be deemed to have exercised all legal and contractual power and authority to cause Contractor to deliver Controllable Waste (excepting Organic Waste) to County’s Waste Infrastructure System, as those terms are defined in the WISE Agreement. Contractor hereby expressly acknowledges its awareness of the WISE Agreement, that City has provided Contractor with a copy of the WISE Agreement, and that Contactor has reviewed the WISE Agreement and is aware of its terms, conditions, covenants, and obligations thereunder. Contractor specifically acknowledges and agrees that City has the right, without material restriction, to direct the delivery of all Controllable Waste (excepting Organic Waste) to the County’s Waste Infrastructure System, that City hereby designates County’s Waste Infrastructure System as the disposal location pursuant this Agreement, and that City has the authority to otherwise take all actions necessary to comply with the terms, conditions, and covenants of the WISE Agreement. Furthermore, Contractor acknowledges and agrees that Contractor has obligations under the WISE Agreement, for example to provide County with certain information set forth in paragraphs (G) and (H) of Section 3.1 of the WISE Agreement, and that City may be obligated to take enforcement actions against Contractor in the event of Contractor’s failure to adhere to actions required of Contractor under the WISE Agreement. Contractor also acknowledges its responsibility to timely pay the appropriate Contract Rate (as defined in Article IV of the WISE Agreement) inclusive of CPI escalation, increases, and other adjustments (see for example paragraph (B) of Section 4.3 of the WISE Agreement). Contactor further acknowledges that County is an intended third-party beneficiary of Contractor’s obligations relating in any way to the disposal of Solid Waste pursuant to this Agreement and the WISE Agreement. Contractor hereby accepts its obligations hereunder and such provisions of the WISE Agreement that require action or inaction by it as City's Solid Waste franchisee. Contractor represents and warrants that it can and will continue to perform its duties in connection with the WISE Agreement in such a manner as to ensure that City does not breach the terms of the WISE Agreement as a result of Contractor's actions or inactions.
D. City’s Right to Relinquish Flow Control. At any time during the Term of this Agreement, the City Manager may notify Contractor in writing that City no longer desires to exercise its flow control option hereunder, In the event City so notifies Contractor of its desire to cease exercising its flow control option, Contractor shall have the absolute discretion to utilize any transformation facility, recycling facility, material recovery facility, landfill, or other facility of its choosing to retain, recycle, process, and dispose of Solid Waste and construction materials generated within the Franchise Area, provided such facility meets all other requirements of this Agreement.” B. general provisions.
1.1 Continuing Effect of Agreement. Except as expressly amended by this First Amendment, all provisions of the Agreement shall remain unchanged and in full force and effect. From and after the date of this First Amendment, whenever the term “Agreement” appears in the Agreement, it shall mean the Agreement as amended by this First Amendment.
1.2 Adequate Consideration. The Parties hereto irrevocably stipulate and agree that they have each received adequate and independent consideration for the performance of the obligations they have undertaken pursuant to this First Amendment.
1.3 Counterparts. This First Amendment may be executed in duplicate originals, each of which is deemed to be an original, but when taken together shall constitute but one and the same instrument.
1.4 Corporate Authority. The persons executing this First Amendment on behalf of the parties hereto warrant that (i) such party is duly organized and existing, (ii) they are duly authorized to execute and deliver this First Amendment on behalf of said party, (iii) by so executing this First Amendment, such party is formally bound to the provisions of this First Amendment and (iv) the entering into this First Amendment does not violate any provision of any other agreement to which said party is bound.
1.5 Effective Date. This First Amendment shall be deemed effective upon the execution by the Parties.
IN WITNESS THEREOF, the parties have caused their authorized representative to execute this agreement the day and year first above written. city of san clemente
CR&R Incorporated
By:
By:
Andy Hall
Signature
City Manager
Printed Name
Attest:
Title
By:
Laura Campagnolo
City Clerk
Approved as to Form:
Burke, Williams & Sorensen, LLP
By:
Elizabeth Mitchell
City Attorney
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