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93-03311009-33 JHHW:BDQ:rhc 02/03193 CITY OF ANAttEIM RESOLUTION NO. 93R- 33 RESOLUTION AUTHORIZING EXECUTION OF A FIRST AMENDMENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT RESOLVED, by the City Council of the City of Anaheim (the "City"), as follows: WHEREAS, the City aad Anaheim Disposal, Inc. (the "Operator") have heretofore entered into that certain Operating Agreement for Recycling Equipment., dated as of July 1, 1989 (the "Operating Agreement for Recycling Equipment"), pursuant to which the City mid the Operator entered into arrangements for the operation by the Operator of certain recycling equipment financed by the City and for the payment by the Operator to the City of amounts required for the payment by the City of debt service in connection with such financing; and WHEREAS, the City and the Operator desire to asnend operating Agreement for Recycling Equipment in connection with (a) the change of name of the Operator, and (b) the requirements relatiug to the maintenance by the operator of a letter of credit; NOW, 'DtEREFORE, it is hereby DETERMINED and ORDERED as follows: Section 1. A first amendment to the Operating Agreement for Recycling Equipment, in the form attached hereto as Exhibit A, be and the same is hereby approved, and the Mayor, the City Manager or the Finance Director is hereby authorized and directed to execute said amendment, with such changes, insertions and omissions as may be approved by such official, and the City Clerk is hereby authorized and directed to attest to such official's signature. Section 2. The Mayor, the City Manager, the Finance Director, the City Clerk and all other appropriate officials of the City are hereby authorized and directed to execute such other agreements, documents and certificates as may be necessary to effect the purposes of this resolution. Section 3. This Resolution shall take effect upon its adoption. The FOREGOING RESOLUTION was approved and adopted by the City Council of the City of Anaheim this 23rd day of February, 1993. By MAYo~R O~FTitE CITY OF NAIlElM Attest: CITY CLERK OF THE CITY OF ANAHEIM STATE OF CALIFORNIA ) COUNTY OF ORANGE ) ss. CITY OF ANAHEIM ) I, LEONORA N. SOHL, City Clerk of the City of Anaheim, do hereby certify that the foregoing Resolution No. 93R-33 was introduced and adopted at a regular meeting provided by law, of the Anaheim City Council held on the 23rd day of Februaw, 1993, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Hunter, Pickler, Simpson, Daly NOES: COUNCIL MEM[>ERS: None ABSENT: COUNCIL MEMF, ERS: Feldhaus AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Resolution No. 93R-33 on the 24th day of February, 1993. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 24th day of February, 1993. CITY CLERK OF THE CITY OF ANAHEIM (SEAL.) I, LEONORA N. SOHL., City Clerk of the City of Anaheim, do hereby certify that the foregoing is the original of Resolution No. 93R-33 was duly passed and adopted by the City Council of'the City of Anaheim on February 23, 1993. CITY CLERK OF THE CITY OF ANAHEIM EXHIBIT A FORM OF FIRST AMENDMENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT FIRST AMENDMENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT Dated as of February 1, 1993 by and between the CITY OF ANAHEIM, CALIFORNIA and TAORMINA INDUSTRIES, INC. (as successor to Anaheim Disposal, Inc.) Amending that certain Operating Agreement for Recycling Equipment dated as of July 1, 1989 by and between the City of Anaheim, Califomia, and Anaheim Disposal, Inc. Exhibit A Page 1 FIRST AMENDMENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT THIS FIRST AMENDMENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT (this "First Amendment to Operating Agreement for Recycling Equipment"), made and entered into as of February 1, 1993, by and between the CITY OF ANAHEIM, a municipal corporation and charter city organized and existing under the laws of the State of California (the "City"), and TAORMINA INDUSTRIES, INC. (formerly known as, and as successor to, Anaheim Disposal, Inc.), a corporation organized and existing under the laws of the State of California (the "Operator"), amending that certain Operating Agreement for Recycling Equipment, dated as of July 1, 1989, by and between the City and the Operator (the "Operating Agreement for Recycling Equipment"); WITNESSETH: WHEREAS, the City and the Operator desire to amend Operating Agreement for Recycling Equipment in connection with (a) the change of name of the operator, and (b) the requixements relating to the maintenance by the operator of a letter of credit; NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto hereby agree as follows: Section 1. Definitions. Unless the context clearly otherwise requires or unless otherwise defined herein, the capitalized terms in this First Amendment to Operating Agreement for Recycling Equipment shall have the respective meanings which such terms have in Section 1 of the operating Agreement for Recycling Equipment Section 2. Authorization. Each of the parties hereby represents and warrants that it has full legal authority and is duly empowered to enter into this First Amendment to operating Agreement for Recycling Equipment, and has taken all actions necessary to authorize the execution of this First Amendment to Operating Agreement for Recycling Equipment by the officers and persons signing it. Section 3. Amendment to Change Name of Operator. All references to Anaheim Disposal, Inc. in the Operating Agreement for Recycling Equipment are hereby amended to read "Taormina Indusu'ies, Inc.". Section 4. Amendment to Section 6 of the Operating Agreement for Recycling Equipment. Section 6 of the Operating Agreement for Recycling Equipment is hereby amended in full as follows: "SECTION 6. Compensation to Operator; Payments to City; Letter of Credit; Financing Costs. A. Compensation to Operator. Compensation to the Operator for provision of the Services shall be as set forth in the Franchise Agreement. B. Payments to City. In consideration of use of the Equipment during the term of this Agreement, the Operator agrees to pay to the City such amounts as shall be necessary for the City to make all Installment Payments due under the Installment Sale Agreement. Such payments by the Operator shall be made on the first day of each month, commencing January 1, 1990. The amount of such payment shall be an amount equal to one-twelfth Exhibit A Page 2 (1/12th) of the total annual Installment Payments due by the City in each year commencing on July 2 and ending on the succeeding July 1; provided, however, that for each of the six payments due on January 1. 1990, February 1, 1990, March 1, 1990, April, May and June 1, 1990, the Operator shall pay an amount equal to one-sixth (1/6th) of the total Installment Payment due by the City on July 1, 1990; provided, further, however, that the monthly payment to be made by the Operator on June 1 in each year shall be reduced to the extent investment earnings have been deposited and remain in the Installment Payment Fund pursuant to the provisions of the Trust Agreement in the amount specified to the Operator by the City in writing prior to such June 1 payment date and, if such investment earnings exceed the required amount of such June 1 payment, such excess will reduce the payment due by the Operator in the succeeding month. If sufficient amounts shall be on deposit in the Reserve Fund and the Installment Payment Fund to provide for the principal, premium if any, and interest with respect to all Certificates, the Operator's Payment obligation hereunder shall terminate. C. Letter of Credit~ In order to assure the City that amounts payable by the Operator hereunder will be made as set forth in paragraph B above, the Operator hereby agrees to obtain and maintain, throughout the term of this Agreement, an irrevocable stand-by letter of credit with a bank or other financial institution whose long-term debt carries an investment-grade rating, in an amount at least equal to the maximum annual Installment Payments required to be paid by the City under the Installment Sale Agreement. $ueh4et~ of credit shall be for a term of three years and shall provide for an automatic renewal in each year for a one year extension. Pursuant to such letter of credit, in the event amounts payable by the Operator hereunder are not made in each month in the full required amount as set forth in paragraph B above, the City will have the right to draw upon such letter of credit in the full amount of such letter of credit. D. Financing Costs. The Operator agrees to pay any and all costs associated with the financing of the Equipment not otherwise provided for from the proceeds of the Certificates including, but not limited to, (1) any Delivery Costs in excess of the amounts legally payable from the proceeds of the Certificates, (2) the annual costs of the Trustee, and (3) costs of annual rebate computations." Section 5. Confirmation of Operating Agreement for Recycling Equipment. All representations, covenants, warranties and other provisions of the Operating Agreement for Recycling Equipment, unless specifically amended, modified or supplemented by this First Amendment to Operating Agreement for Recycling Equipment, are hereby confumed as applicable to this First Amendment to Operating Agreement for Recycling Equipment. Section 6. Governing Law. This First Amendment to operating Agreement for Recycling Equipment shall be construed and governed in accordance with the laws of the State. Section 7. Execution in Counterparts. This First Amendment to Operating Agreement for Recycling Equipment may be executed in several counterparts, each of which shall be an original and all of which shall constitute but one and the same agreement. Section 8. Separability of Invalid Provisions. In case any one or more of the provisions contained in this First Amendment to Operating Agreement for Recycling Equipment or in the Certificates shall for any reason be held to be invalid, illegal or unenfomeable in any respect, then such invalidity, illegality or unenforceability shall not affect any other provision of this First Amendment to Operating Agreement for Recycling Equipment, and this First Amendment to Operating Agreement for Recycling Equipment shall be construed as if such invalid or illegal or unenforceable provision had never been contained herein. The parties hereto hereby declare that they would have entered into this First Amendment to Operating Agreement for Recycling Exhibit A Page 3 Equipment and each and every other section, paragraph, sentence, clause or phrase hereof and authorized the delivery of the Certificates pursuant thereto irrespective of the fact that any one or more sections, paragraphs, sentences, clauses or phrases of this First Amendment to Operating Agreement for Recycling Equipment may be held illegal, invalid or unenforceable. IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Operating Agreement for Recycling Equipment as of the date and year first above written. CITY OF ANAHEIM, CALIFORNIA (S E A L) Attest City Clerk APPROVED AS TO FORM: By [Deputy] City Attorney TAORMINA INDUSTRIES, INC. By Title Attest: Exhibit A Page 4