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HomeMy WebLinkAboutOrdinance 2341 N.C.S. 07/20/2009EFFECTIVE DATE ORDINANCE NO. 2341 N.C.S. OF ORDINANCE August 20, 2009 introduced by David Glass Seconded by Tiffany Renee AUTHORIZING CITY MANAGER TO EXECUTE THE FIRST AMENDMENT TO THE FRANCHISE AGREEMENT BETWEEN THE CITY OF PETALUMA AND GREENWASTE RECOVERY, INC. FOR SOLID WASTE, RECYCLABLE MATERIALS, AND YARD TRIMMINGS SERVICES WHEREAS, on September 13, 2005, the City entered into an exclusive Franchise Agreement with GreenWaste Recovery, Inc., commencing on January 1, 2006, for collection of solid waste, recyclable materials and yard trimmings, pursuant to Resolution No. 2005-141 N.C.S.; and, WHEREAS, the City desires that rate periods specified in the Agreement (which commence January 1 and end December 31) be modified to coincide with the fiscal years of the City (which commence July 1 and end June 30) and desires that the Term of the Agreement be extended six months so that the Term expires at the end of the City's fiscal year on June 30, 2016 (unless extended in accordance with Section 3.4 of the Agreement); and, WHEREAS, the City desires that other provisions of the Agreement which may be impacted by the change in the start and end dates of the rate periods be amended as necessary; and, WHEREAS, the Parties agreed in 2008 to adjust Rate Period Three to an 18-month rate period to facilitate changing future rate periods to coincide with the City's fiscal year and further agreed to modify Rate Period Three contractor's compensation and rate adjustment procedures for Rate Period Three to reflect an 18-month period and such modifications are not described herein; and, WHEREAS, on September 15, 2008, the City Council adopted Resolution No. 2008-182 N.C.S., modifying Rate Period Three to reflect an 18-month period from January 1, 2008 through June 30, 2009 to reflect fiscal year rather than calendar year rate periods and adjusting Contractor's compensation accordingiy; and, WHEREAS, the City identified that the adjustment method for Contractor's compensation presented in Sections 12.4 does not describe the annual adjustment method for allocated costs related to general and administration, vehicle maintenance, and container maintenance and desires to specify the method. Ordinance No. 2341 N.C.S. Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 NOW, THEREFORE, BE IT ORDAINED by the Council of the City of Petaluma as follows: Section 1. The City Council ratifies the Franchise Agreement between the City of Petaluma and Greenwaste Recovery, Inc. for Solid Waste, Recyclable Materials and Yard Trimmings Services, dated and effective September 13, 2005, ("Agreement") approved by City Council Resolution No. 2005-141 N.C.S. on August 22, 2005, subject to rate period and rate adjustments made pursuant to Resolution No. 2008-182 N.C.S., adopted September 15, 2008. Section 2. The City Council approves the First Amendment to the Franchise Agreement between the City of Petaluma and Greenwaste Recovery, Inc. for Solid Waste, Recyclable Materials and Yard Trimmings Services ("First Amendment"), attached hereto as Exhibit A and incorporated herein by reference, and authorizes the City Manager to execute said First Amendment and any necessary implementing documents. Section 3. If any section, subsection, sentence, clause, phrase or word of this ordinance is for any reason held to be unconstit~tional, unlawful or otherwise invalid by a court of competent jurisdiction or preempted by state legislation, such decision or legislation shall not affect the validity of the remaining portions of this ordinance. The City Council of the City of Petaluma hereby declares that it would have passed and adopted this ordinance and each and all provisions thereof irrespective of the fact that any one or more of said provisions be declared unconstitutional, unlawful or otherwise invalid. Section 4. This ordinance or a synopsis of it shall be posted and/or published for the period and in the manner required by City charter. Section 5. This ordinance shall become effective thirty (30) days after the date of its adoption by the Petaluma City Councii. INTRODUCED and ordered posted/published this b~h day of July, 2009. 30 ADOPTED this 20'" day of July, 2009 by the following vote: 31 32 AYES: Vice Mayor Barrett, Glass, Harris, Healy, Renee, Mayor Torliatt 33 NOES: None 34 ABSENT: Rabbitt 35 ABSTAIN: None 36 37 38 39 40 41 ATTEST: APPROVED AS FORM: 42 43 44 45 Claire Cooper, City Clerk Eric Danly, C~ y Attorney Ordinance No. 2341 N.C.S. Page 2 EXHIBIT A 2 3 4 5 6 7 8 9 10 11 12 13 14 15 FIRST AMENDMENT TO THE FRANCHISE AGREEMENT BETWEEN THE CITY OF PETALUMA AND GREENWASTE RECOVERY, INC. FOR SOLID WASTE, RECYCLABLE MATERIALS, AND YARD TRIMMINGS SERVICES This First Amendment is made and entered into by and between the CITY OF PETALUMA, a charter city, (hereinafter "City"), and GreenWaste Recovery, Inc., a Subchapter S corporation organized and operating under the laws of the state of California (hereinafter "Contractor"). City and Contractor may be collectively referred to herein as the "Parties." 16 RECITALS This Agreement is entered into on the basis of the followings facts, understandings, and intentions of the Parties. WHEREAS, the City and Contractor entered into a Franchise Agreement for Solid Waste, Recyclable Materials, and Yard Trimmings Services (the "Agreement") dated as of September 13, 2005; and WHEREAS, on August 22, 2005, the City Council of the City of Petaluma adopted Resolution No. 2005-141 N.C.S. authorizing a Franchise Agreement between the City and Contractor; and WHEREAS, the City desires that Rate Periods specified in the Agreement (which commence January 1 and end December 31 ~ be modified to coincide with the fiscal years of the City (which commence July 1 and end June 30) and desires that the Term of the Agreement be extended six months so that the Term expires at the end of the City's fiscal year on June 30, 2016 (unless extended in accordance with Section 3.4 of the Agreement); and WHEREAS, the City desires that other provisions of the Agreement which may be impacted by the change in the start and end dates of the Rate Periods to be amended as necessary; and WHEREAS, the Parties agreed in 2008 to adjust Rate Period Three to an 18-month Rate Period to facilitate changing future Rate Periods to coincide with the City's fiscal year and further agreed to modify Rate Period Three Contractor's Compensation and rate adjustment procedures for Rate Period Three to refiect an 18-month period and such modifications are not described herein; and WHEREAS, on September 15, 2008, the City Council adopted Resolution No. 2008-182 N.C.S., modifying Rate Period Three to reflect an 18-month period from January 1, 2008 through June 30, 2009 to reflect fiscal year rather than calendar year rate periods and adjusting Contractor's Compensation accordingly; and Ordinance No. 2341 N.C.S. Page 3 1 WHEREAS, the City identified that the adjustment method for Contractor's Compensation 2 presented in Sections 12.3 and 12.4 does not describe the annual adjustment method for 3 allocated costs related to general and administration, vehicle maintenance, and container 4 maintenance and desires to specify the method; and 5 6 NOW, THEREFORE, for the reasons stated above and in consideration of the provisions 7 and mutual covenants contained herein, City and Contractor agree to amend the Agreement 8 as follows: 1. AGREEMENT MODIFICATIONS. This section describes the modifications to the Agreement. a. Article 1, Definition of "Rate Period" is hereby modified to read as follows: "Rate Period" means a 12-month period for which Contractor's Compensation is calculated commencing July 1 and concluding June 30 with the following exceptions: (i) Rate Periods One and Two shall be 12-month periods commencing January 1 and concluding December 31; and (ii) Rate Period Three shall be an 18-month period commencing Jan~ary 1, 2008 and concluding June 30, 2009." b. Section 3.3, Term is hereby modified to read as follows: "The Term of this Agreement shall continue in full force for a period of 10.5 years from 12:01 a.m. on January 1, 2006 (Commencement Date), to midnight June 30, 2016, unless the Agreement is extended by City pursuant to Section 3.4 or terminated in accordance with Section 15.2." c. Section 3.4, Option to Extend Term is hereby modified to read as follows: "At the City's sole discretion, the City shall have the option to extend this Agreement on one or more occasions provided that the combined extension period does not exceed 36 months or extend beyond June 30, 2019. If the City extends the Agreement, it shall give written notice to Contractor 180 calendar days prior to the initial expiration date or extended expiration date of this Agreement. The City's written notice shall specify the number of months by which it elects to extend the Term of this Agreement and the revised expiration date of the Agreement." d. Section 12.4.1.A.6, Forecasted Annual Cost of Operations for Rate Period Four subsection 6 is hereby modified and new subsections 7 through 10 are added, to read in full as follows: "6. Forecasted allocated costs from general and administration shall be calculated for Rate Period Four by multiplying the allocated costs from general and administration for Rate Period Three by one plus 75% of the percentage change in the "San Francisco-Oakland-San Jose Metropolitan Area Consumer Price Index (Urban Wage Earners; 1982-84=100)," which is compiled and published by the U. S. Department of Labor, Bureau of Labor Statistics or its successor agency, between the most-recently- published monthly index at the time of the application and the corresponding monthly index published 12 months eariier. Forecasted allocated costs from vehicle maintenance shall be calculated for the Rate Period Four by multiplying the allocated costs from vehicle maintenance for Ordinance No. 2341 N.C.S. Page 4 Rate Period Three by one plus the percentage change in the "Motor Vehicle Repair Index, All Urban Consumers, U.S. City Average (PI-U) 1982-1984 = 100," which is compiled and published by the U. S. Department of Labor, Bureau of Labor Statistics or its successor agency, between the most-recently-published monthly index at the time of the application and the corresponding monthly index published 12 months earlier. Forecasted allocated costs from container maintenance shall be calculated for the Rate Period Four by multiplying fhe allocated costs from container maintenance for Rate Period Three by one plus the percentage change in the "Motor Vehicle Repair Index, All Urban Consumers, U.S. City Average (PI-U) 1982-1984 = 100," which is compiled and published by the U. S. Department of Labor, Bureau of Labor Statistics or its successor agency, between the most-recently-published monthly index at the time of the application and the corresponding monthly index published 12 months earlier. 9. Forecasted ailocated depreciation costs for Rate Period Four shall be $13,400. 10. Forecasted annual cost of operations for Rate Period Four shall equal the s~m of the following costs, which shall have been calculated in accordance with procedures in this Section: (1) Forecasted labor-related costs (2) Forecasted vehicle-related costs (3) Forecasted recyclable materials processing costs (4) Forecasted other costs (5) Forecasted depreciation expense (6) Forecasted allocated costs from general and administrative (7) Forecasted allocated costs from vehicle maintenance ~8) Forecasted allocated costs from container maintenance (9) Forecasted allocated costs for depreciation." e. Section 13.2.B, Reconciliation Procedure, is hereby modified to read as follows: "By October 10, of each year of the Agreement, Contractor shall submit to the City its audited financial statement for Contractor's most recently completed fiscal year, which shall describe the act~al Rate Revenues collected for services bifled and performed in the City, and Contractor shall describe any difference in the audited actual Rate Revenues and the Rate Revenues anticipated to be due for the prior Rate Period, as determined by these proced~res. The difference shall be reconciled as described in Section 13.2.A above. The City may request reconciliation of revenue with Customer account information. If such a request is made the Contractor shall provide the actual number of accounts and type and frequency of service along with a copy of the most recent review of its Billings, which shall be reconciled to the audited actual Rate Revenues. Ifi the variance between the actual Rate Revenues determined through the audit process using Customer account information and the actual Rate Revenues reported in the audited financial statements is greater than 0.5%, the amount of the variance between the actual Rate Revenues determined through the audit process using Customer account information and the actual Rate Revenues reported in the audited financial statements shall be deducted from (credited to) the Contractor's Compensation for the next Rate Period." Ordinance No. 2341 N.C.S. Page 5 f. Section 17.6, Severability, is hereby modified to read as follows: "If any non-material provision of this Agreement and this Amendment (including any phrase, provision, covenant, or condition) is for any reason deemed to be invalid and unenforceable, the invalidity or unenforceability of such provision shall not affect any of the remaining provisions of the Agreement, which shall be enforced as if such invalid or unenforceable provision had not been contained herein." 2. HEADINGS. The heading titles for each paragraph of this First Amendment are included only as a guide to the contents and are not to be considered as controlling, enlarging, or restricting the interpretation of the Agreement. 3. MODIFICATIONS. This First Amendment may not be modified orally or in any manner other than by an agreement in writing signed by both Parties. 4. TERMS. All other terms in the Agreement for Solid Waste, Recyclable Materials, and Yard Trimming Services, not specifically amended by this First Amendment shall remain in full force and effecfi. This First Amendment is executed in three (3) duplicate originals, each of which is deemed to be an original. 5. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this First Amendment on behalf of the respective legal entities of the Contractor and the City. This First Amendment shail inure to the benefit of and be binding upon the Parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the City and Contractor do hereby agree to the full performance of the terms set forth herein. 31 C1TY OF PETALUMA City Manager ATTEST: City Clerk APPROVED AS TO FORM: City Attorney APPROVED: CONTRACTOR GreenWaste Recovery, Inc. President Ordinance No. 2341 N.C.S. Page b Department Director APPROVED: Risk Manager APPROVED: Finance Director Ordinance No. 2341 N.C.S. Page 7