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94-18111009-33 JHHW:BDQ:.rhc 02/03/93 06/14/94 CITY OF ANAHEIM RESOLUTION NO. 94R- 3. 81 RESOLUTION AUTHORIZING EXECUTION OF A SECOND ,a,2VIE~MENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT RESOLVED, by the City Council of the City of Anaheim (the "City"), as follows: WHEREAS, the City and and Taormina Industries, Inc. (formerly known as, ~tnd as successor to, Anaheim Disposal, Inc.) (the "Operator"), have heretofore entered into that certain Operating Agreement for Recycling Equipment, dated as of July 1,1989, amended by the First Amendment to Operating Agreement for Recycling Equipment, dated as of Febhast3' i, 1993, by and between the City and the Operator (collectively, the "Operating Agreement for Recycling Equipment"), pursuant to which the City and 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 witIx such financing; and WH-EREAS, the City and the Operator desire to amend Operating Agreement for Recycling Equipment in com~ection with ~.he granting by the City to the Operator of an exclusive franchise pursuant to ordinance of tile City Coundl; NOW, THEREFORE, it is hereby DE2ZILMIN'ED a~d ORDERED as follows: Section 1. A second 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 sueAt 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 offidals of the City are hereby authorized and directed to execate 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 19th day of July, 1994. 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. 94R-181 was Introduced and adopted at a regular meeting provided by law, of the Anaheim City Council held on the 19th day of July, 1994, by the following vote of the members thereof: AYES: COUNCIL MEMBERS: Feldhaus, Simpson, Pickler, Daly NOES: COUNCIL MEMBERS: None ABSENT: COUNCIL MEMBERS: Hunter AND I FURTHER CERTIFY that the Mayor of the City of Anaheim signed said Resolution No. 94R-181 on the 20th day of July, 1994. IN WITNESS WHEREOF, I have hereunto set my hand and affixed the official seal of the City of Anaheim this 20th day of July, 1994. 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. 94R-181 was duly passed and adopted by the City Council of the City of Anaheim on July 20, 1994. CITY CLERK OF THE CITY OF ANAHEIM EXHIBIT A FORM OF SECOND AMENDMENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT SECOND AMENDMENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT Dated as of June 1,1994 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, amended as of February 1, 1993 by and between the City of Anaheim, California, and Anaheim Disposal, Inc. Exhibit A Page 1 / SECOND AMENDMENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT THIS SECOND AMENDMENT TO OPERATING AGREEMENT FOR RECYCLING EQUIPMENT (this "Second Amendment to Operating Agreement for Recycling Equipment"), made and entered into as of June 1,1994, by and between the CITY OF ANAHEIM, a munidpal corporation and charter dry organized and existing under the laws of the State of California th "Ci" ( e ty ), 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, amended by-' the First Amendment to Operating Agreement for Recycling Equipment, dated as of February 1, 1993, 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 the granting by,,th,,e. City to the Operator of an exclusive franchise pursuant to ordinance of the City Council (the 'New Franchise"); NOW, THEREFORE, in consideration of the premises and the mutual covenants contained herein, the parties hereto hereby agree as fonows: Section 1. Definitions. Unless the context dearly otherwise requires or unless otherwise defined herein, the capitalized terms in this Second 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 Second Amendment to Operating Agreement for Recycling Equipment, and has taken all actions necessary to authorize the execution of this Second Amendment to Operating Agreement for Recycling Equipment by the officers and persons signing it. Section 3. New Frarrchise. All references to the Franchise Agreement in the Operating Agreement for Recycling Equipment are hereby amended to mean the "New Franchise". Section 4. Amendment to Section 6 of the Operating Agreement for Recvdlrtg Equipment. Section 6 of the Operating Agreement for Recycling Equipment is hereby afroended in full as follows: "SECTION 6. Compensation to Operator. Compensation to the Operator for provision of the Services shall be as set forth in the Franchise Agreement. The Operator shall have no obligation to make separate payment to the City for the use of the Equipment or to pay any amounts relating to the Certificates dm-ing the term of this Agreement. The Operator shall have no right to any investment earnings or other moneys held by the Trustee or the City relating to the Certificates." 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 Second Exhibit Page 2 Amendment to Operating Agreement for Recycling Equipment, are hereby confirmed as applicable to this Second Amendment to Operating Agreement for Recycling Equipment. Section 6. Governing Law. This Second 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 Second 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 agt~exnent. Section 8. Separability of Invalid Provisions: In case any one or more of the provisions contained in this Second Amendment to Operating Agreement for Recycling Equipment or in the Certificates shall for any reason be held to be invalid, illegal or unenforceable in any respect, then such invalidity, illegality or unenforceability shall not affect a~.y other provision of this Second Amendment to Operating Agreement for Recy. ding Eqmpment, and this Second 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 Second Amendment to Operating Agreement for Recycling 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 Second Amendment to Operating Agreement for Recycling Equipment may be held illegal, invalid or unenforceable. Exhibit Page 3 IN WITNESS WHEREOF, the parties hereto have executed this Second Amendment to Operating Agreement for Recycling Equipment as of the date and year first above written. CITY OF ANAHEIM, CALIFORNIA By (S E A L) Mayor Attest: City Clerk APPROVED AS TO FORM: By [Deputy] City Attorney TAORMINA INDUSTRIES, INC. By Title Attest: Title Exhibit A Page 4