HomeMy WebLinkAboutMid Valley Disposal - Purchase Trucks and Containers for Solid Waste, Recyclable Materials and Organic Materials0
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o PURCHASE AGREEMENT
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U This PURCHASE AGREEMENT ("Agreement") is made as of November 18,
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2011 (the "Effective Date") by and between the City of Fresno ("City" or "Seller"), a
charter city and municipal corporation, and Mid -Valley Disposal ("Buyer"), a California
corporation (collectively, the "Parties").
RECITALS
A. Seller desires to convey to Buyer, and Buyer desires to acquire from Seller,
certain City -owned collection trucks ("Trucks") and containers ("Containers")
used to collect solid waste, recyclable materials and organic materials within the
City as more particularly described in Exhibit A (Bill of Sale for Trucks) and
Exhibit B (Bill of Sale for Containers), respectively, attached hereto and
incorporated herein by reference.
B. Buyer and Seller have entered into that certain Franchise Agreement dated
November 1, 2011 ("Franchise Agreement") pursuant to which Buyer will provide
solid waste, recyclable materials, and organic materials collection services in a
designated service area within the City.
C. Sections 8.3.1 and 8.4 of the Franchise Agreement contemplate that Buyer will
acquire ownership and possession of the Trucks and Containers at the
Commencement Date (as defined in the Franchise Agreement), and permit the
use of the Trucks and Containers in the provision of solid waste, recyclable
materials, and organic materials collection services by Buyer pursuant to the
Franchise Agreement.
D. In mutual acknowledgement of their rights and obligations with respect to the
Trucks and Containers under the Franchise Agreement, Buyer has offered to
purchase, and Seller desires to sell, the Trucks and Containers pursuant to the
terms and conditions set forth in this Agreement.
NOW, THEREFORE, the Parties agree as follows:
1. Purchase of Trucks and Containers. Seller hereby agrees to convey to Buyer, and
Buyer agrees to purchase and accept from Seller, the Trucks and Containers
described in Exhibits A and B for the total purchase price set forth in Section 2.
2. Purchase Price.
a. Buyer, upon final inspection and acceptance of the Trucks and Containers
as set forth in Section 6, agrees to pay Seller the total purchase price of
Two Million One Hundred Ninety Two Thousand Three Hundred Thirty
One Dollars and Forty -One cents ($2,192,331.41). Buyer shall pay the full
amount of the purchase price prior to the Commencement Date, and prior
11103-000711313407v5.doc
to taking possession of the Trucks and Containers, by submitting to the
City's Finance Department a certified or cashier's check in such amount
payable to the City of Fresno, or by wire transfer.
b. Buyer and Seller mutually acknowledge the difficulty in arriving at a
precise number of Containers to be transferred under this Agreement
because nearly all of those Containers are at service locations. The
Parties have each reviewed the invoice attached to Exhibit B and are
reasonably satisfied the number of Containers described therein is
accurate. In the event that either party identifies an error in the number of
Containers described in Exhibit B, and that error exceeds twenty five
thousand dollars ($25,000) in value, the identifying party shall report such
finding to the other party. The finding may be reasonably investigated by
the other party to verify the accuracy of the reported finding. All
investigations to identify such errors shall be concluded, with findings
reported to the other party, within 90 days after the Commencement Date.
In the event that the Parties concur that an error exists and that the error
exceeds twenty five thousand dollars ($25,000) in value, and such error
resulted in an overpayment by the Buyer to the Seller, Seller shall refund
Buyer the amount of the error, within ten (10) business days of the Parties
reaching concurrence on the existence and value of the error. In the
event that the Parties concur that an error exists and that the error
exceeds twenty five thousand dollars ($25,000) in value, and such error
resulted in an underpayment by the Buyer to the Seller, Buyer shall make
an additional payment to the Seller in the amount of the error, within ten
(10) business days of the Parties reaching concurrence on the existence
and value of the error. Any finding of such an error after the above-
mentioned 90 day period shall not be eligible for refund or additional
payment.
3. Special Provision for Trucks. Pursuant to Section 8.3.1 of the Franchise Agreement,
Seller shall ensure that each Truck is in such a condition that it would pass California
Highway Patrol "BIT" inspection criteria, prior to Buyer taking possession of the
Truck. Further, Seller shall ensure that each Truck has a full tank of fuel (less any
normal evaporation) prior to Buyer taking possession of the Truck.
4. "As -is" Condition. Seller hereby conveys the Trucks and Containers in an "as -is"
condition and disclaims any and all warranties as to the condition of the Trucks and
Containers. Buyer warrants and represents to Seller that it has inspected the Trucks
and Containers, consulted with persons knowledgeable in proper operating
conditions of the Trucks and Containers, and is fully apprised of the condition of the
Trucks and Containers. Buyer accepts the conveyance of the Trucks and
Containers in their "as -is" condition.
In accepting the Trucks and Containers in their "as -is" condition, the Buyer, on
behalf of itself and its successors and assigns, does fully and forever remise,
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11103-0007A1313407v5.doc
release and discharge the City, its elected and appointed officials, employees and
agents, from any and all causes of action, damages, claims, demands, torts, actions,
suits, obligations, losses and liabilities of whatever kind or nature, in law, equity, or
otherwise, whether known or unknown, for any and all damages arising from the
Trucks and Containers as well as the use or condition of the Trucks and Containers.
5. Indemnification. Buyer shall defend, indemnify and hold harmless the City, its
elected and appointed officials, employees and agents, from any and all causes of
action, damages, claims, demands, torts, actions, suits, obligations, losses and
liabilities of whatever kind or nature, including, without limitation, attorney fees and
costs, in law, equity or otherwise, for any and all damages arising from the Trucks
and Containers and the use or condition of the Trucks and Containers.
6. Date of Possession. Subject to Section 16 of this Agreement, Buyer shall take
possession of the Trucks and Containers no later than December 4, 2011 upon
payment of the total purchase price to Seller as set forth in Section 2 above. Buyer
shall take possession of the Trucks, and any Containers in the possession of the
City that are not placed at customer service locations, at the City's Municipal Service
Center. Buyer shall conduct a final inspection of the Trucks and Containers at the
time Buyer takes possession. Such inspection may include reasonable tests and
use of the Trucks and Containers by Buyer.
7. Conveyance of Title. Seller shall convey title of the Trucks and Containers to Buyer
at the time that Buyer takes possession of the Trucks and Containers, by executing
the Bills of Sale in the form attached hereto as Exhibits A and B. Seller agrees and
covenants to execute any documents reasonably requested by Buyer that are
required by the California Department of Motor Vehicles (DMV) to finalize the
transfer of registration of the Trucks from Seller to Buyer. Buyer agrees to
expeditiously process the transfer of registration of the Trucks with DMV, and to
include in the documents filed with the DMV an acknowledgement of the option to
purchase set forth in Section 10.b of this Agreement.
8. Delivery of Documents. At the time of delivery of possession pursuant to Section 6
of this Agreement, Seller shall deliver to Buyer copies of all factory and aftermarket
manuals, policies, procedures, guidelines and records pertaining to the Trucks and
Containers that are in the possession of the City's Public Utilities Department.
9. Buyer's Authority and Consent. Buyer represents and warrants it has the right,
power, legal capacity, and authority to enter into and perform its obligations under
this Agreement. No approvals or consents of any persons are necessary in
connection with Buyer's execution, delivery, and performance of this Agreement,
except for such as have been obtained on or prior to the Effective Date hereof. The
execution, delivery, and performance of this Agreement by Buyer have been duly
authorized by all necessary action on the part of Buyer and constitute the legal,
valid, and binding obligations of Buyer, enforceable against Buyer in accordance
with their respective terms. The person or persons executing this Agreement on
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11103-0007\1313407v5.doc
behalf of Buyer warrants and represents that he or she has the authority to bind
Buyer to the performance of its obligations hereunder.
10. Option to Repurchase or Lease Trucks and Containers.
a. The Parties acknowledge that upon expiration or early termination of the
Franchise Agreement, Seller has the right to purchase the Containers
from Seller pursuant to the terms set forth in Section 8.4.D of the
Franchise Agreement. The Parties further acknowledge that pursuant to
Section 13.3 of the Franchise Agreement, Seller has the sole option to
purchase the Trucks and Containers from Buyer at their net book value in
the event of termination of the Franchise Agreement for default or for
Buyer's failure to provide Article XIII Indemnification as set forth in Section
12.2 of the Franchise Agreement.
b. Buyer hereby grants to Seller the option to repurchase or lease the Trucks
and Containers from Buyer, in the event of a restraining order or injunction
preventing the provision of services by Buyer pursuant to the Franchise
Agreement. If purchased, Seller shall pay an amount equivalent to the
purchase price paid by Buyer. If leased, Seller shall pay the reasonable
rental value for such property, not to exceed fifty dollars ($50) per day for
each Truck, less any costs incurred by City to maintain such Trucks and
Containers. This option to repurchase or lease shall expire upon the date
that is 270 days after the date of this Agreement.
11. Entire Agreement. This Agreement contains the entire understanding between the
parties relating to the obligations of the parties described in this Agreement. All prior
or contemporaneous agreements, understandings, representations and statements,
oral or written, are merged into this Agreement and shall be of no further force or
effect. This Agreement may be amended only by a written instrument signed by
both Buyer and Seller.
12. Severability. Wherever possible, each provision of this Agreement shall be
interpreted in such a manner as to be valid under applicable law. If any provision of
this Agreement is determined by a court to be invalid, void or unenforceable, the
remaining provisions shall nevertheless continue in full force and effect.
13. Governing Law. Buyer and Seller understand and agree that the laws of the State
of California, without regard to conflict of law doctrines, principles or provisions, shall
govern the rights, obligations, duties and liabilities of the parties to this Agreement
and also govern the interpretation of this Agreement. Any litigation concerning this
Agreement shall take place in the superior or federal district court with geographic
jurisdiction over the City.
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11103-0007A13134070.doc
14. Headings and Captions. The headings and captions used in this Agreement are for
convenience only and shall in no way define, limit or describe the scope or intent of
this Agreement or any part of it.
15. Notices. All notices, bills, invoices required by this Agreement shall be deemed
given: (i) on the day of delivery if delivered by hand during regular business hours;
or (ii) on the third business day following deposit in the United States Mail, if given
by certified or registered mail, postage prepaid, return receipt requested, addressed
to the party at the addresses set forth below:
City: City of Fresno
2600 Fresno Street
Fresno, California 93721
Attention: Solid Waste Manager
Buyer: Mid Valley Disposal
15300 W. Jensen Ave.
Kerman, California 93630
Attention: General Manager
16.Conditions to Performance. The obligations of Seller to convey the Trucks and
Containers to Buyer, and the obligation of Buyer to pay the purchase price and
acquire the Trucks and Containers, shall be subject to the satisfaction (or waiver by
Seller) of all conditions listed in Section 3.2 of the Franchise Agreement, and to the
Franchise Agreement being in full force and effect, with no restraining order or
injunction preventing the provision of services by Buyer pursuant to the Franchise
Agreement, and no default by Buyer under the Franchise Agreement.
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11 103-0007\13 134070.doc
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed on the date stated in the introductory clause.
SELLER:
CITY OF FRESNO, a municipal
corporation
ark Scott
City Manager
Attest:
BUYER:
Mid -Valley Disposal, a California
corporation
By:
Name: J seph Kalpakoff
Title: neral Manager
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11 103-0007\13 13407v5.doc
EXHIBIT A
BILL OF SALE FOR TRUCKS
For good and valuable consideration, the receipt of which is hereby acknowledged, THE
CITY OF FRESNO ("Seller"), a charter city and municipal corporation, does hereby sell,
transfer and convey to MID -VALLEY DISPOSAL, a California corporation ("Buyer"), without
recourse or warranty, all personal property owned by Seller and described in Attachment A
attached hereto.
This Bill of Sale is entered into pursuant to that certain Purchase Agreement between
Seller and Buyer dated November 18, 2011, which agreement contains an option to repurchase or
lease the personal property in certain specified circumstances.
This Bill of Sale shall be governed by and construed in accordance with the laws of the
State of California.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of this eighteenth day
of November, 2011.
SELLER:
CITY OF FRESNO, a municipal corporation
Attest:
City Clerk
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11103-000711313407v5.doc
ATTACHMENT A TO BILL OF SALE FOR TRUCKS
Description of Personal Property
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11103-0007A1313407v5.doc
City of
,OSON804w
am-�s���■
370016 - 2004 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FE74H2O0139
$
DPU
370022 - 2004 AUTOCAR WXLL64
Solid Waste Division
;c Q
62,587.00
370027 - 2004 AUTOCAR WXLL64
146 . Nk
$
1325 EI Dorado St.DEPARTME"z
OF
PUBLIC UTILITIES
November 11, 2011
Fresno, Ca. 93706
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1
Phone 559.621.1452 Fax 559.266.1009
$
Sale of Refuse
370032 - 2005 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FEX5H2O1447
Trucks
Bill To:
370033 - 2005 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FE15H2O1448
Joseph Kalpakoff
62,587.00
370034 - 2005 AUTOCAR WXLL64
Mid Valley Disposal
$
62,587.00
15300 W. Jensen Ave.
Body:STS VI N# 5VCHC6FE351-1201452
$
Kerman, Ca., 93630
370039 - 2005 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FE55H2O1453
Phone 559.843.2467
62,587.00
370041 - 2006 AUTOCAR WXLL64
THANK YOU FOR YOUR BUSINESSI
DESCRIPTION
AMOUNT
370016 - 2004 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FE74H2O0139
$
62,587.00
370022 - 2004 AUTOCAR WXLL64
Body:STS VW# 5VCHC6FEX4H2O0135
$
62,587.00
370027 - 2004 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FE94H2O0191
$
62,587.00
370028 - 2004 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FE24H2O0145
$
62,587,00
370029 - 2004 AUTOCAR WXLL64
Body:STS VI N# 5VCHC6FE84H200134
$
62,587.00
370032 - 2005 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FEX5H2O1447
$
62,587.00
370033 - 2005 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FE15H2O1448
$
62,587.00
370034 - 2005 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FE35H2O1449
$
62,587.00
370038 - 2005 AUTOCAR WXLL64
Body:STS VI N# 5VCHC6FE351-1201452
$
62,587.00
370039 - 2005 AUTOCAR WXLL64
Body:STS VIN# 5VCHC6FE55H2O1453
$
62,587.00
370041 - 2006 AUTOCAR WXLL64
Body:Mammoth VIN# 5VCHC6FE66H2O3391
$
62,587.00
370043 - 2006 AUTOCAR WXLL64
Body:Mammoth VIN# 5VCHC6FEX6H2O3393
$
62,587.00
370046 - 2007 AUTOCAR WXLL64
Body:Mammoth VIN# 5VCHC6FE47H2O4105
$
62,587.00
370047 - 2007 AUTOCAR WXLL64
Body:Mammoth VIN# 5VCHC6FE87H2O4107
$
62,587.00
370049 - 2009 AUTOCAR WXLL64
Body:AMREP VIN# 5VCHC6LE69H2O9006
$
62,587.00
370050 - 2009 AUTOCAR WXLL64
Body:AMREP VIN# 5VCHC6LE89H2O9007
$
62,587.00
370051 - 2009 AUTOCAR WXLL64
Body:AMREP VIN# 5VCHC6LE69H2O9008
$
62,587.00
370054 - 2009 AUTOCAR WXLL64
Body:AMREP VIN# 5VCHC6LE69H2O9011
$
62,587.00
370057 - 2011 AUTOCAR WXLL64
Body:AMREP VIN# 5VCACLLE6AH211617
$
62,587.00
370058 - 2011 AUTOCAR WXLL64
Body:AMREP VW# 5VCACLLEXAH211619
$
62,587.00
260118 - 2008 FORD F350 BIN DELIVERY
TRUCK VIN#1 FDWF36R38ED75679
$
8,571.00
280005 - 2001 BIN TRUCK WI CRANE VIN#1HTSCABN61 H403226
$
1.00
Total
$
1,260,312.00
Sales Tax @ 7.875%
$
99,249.57
Grand Total
$
1,359,561.57
Make all checks payable to City of Fresno, SWMD
If you have any questions concerning this invoice,
Jerry Schuber Sr., (559) 621-1801 Jerry.Schuber@Fresno.Gov
THANK YOU FOR YOUR BUSINESSI
EXHIBIT B
BILL OF SALE FOR CONTAINERS
For good and valuable consideration, the receipt of which is hereby acknowledged, THE
CITY OF FRESNO ("Seller"), a charter city and municipal corporation, does hereby sell,
transfer and convey to MID -VALLEY DISPOSAL, a California corporation (`Buyer"), without
recourse or warranty, all personal property owned by Seller and described in Attachment A
attached hereto.
This Bill of Sale is entered into pursuant to that certain Purchase Agreement between
Seller and Buyer dated November 18, 2001, which agreement contains an option to repurchase or
lease the personal property in certain specified circumstances.
This Bill of Sale shall be governed by and construed in accordance with the laws of the
State of California.
IN WITNESS WHEREOF, Seller has executed this Bill of Sale as of this eighteenth day
of November, 2011.
SELLER:
CITY OF FRESNO, a municipal corporation
Attest:
C;ty- Clerk
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11103-000711313407v5.doc
ATTACHMENT A TO BILL OF SALE FOR CONTAINERS
Description of Personal Property
10-
11103-0007A1313407v5.doe
City of
Solid Waste Division
1325 EI Dorado St.
Fresno, Ca. 93706
Phone 559.621.1452 Fax 559.266.1009
Bill To:
Joseph Kalpakoff
Mid Valley Disposal
15300 W. Jensen Ave.
Kerman, Ca., 93630
Phone 559.843.2467
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DPU
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DEPARTMENT OF
PUBLIC UTILITIES
November 17, 2011
Sale of Refuse
Containers
DESCRIPTION
UNITS
PRICE EA.
AMOUNT
1 Cubic Yard Bins - Solid Waste
2,086
$
54.86
$
114,437.96
2 Cubic Yard Bins - Solid Waste
1,434
$
66.11
$
94,801.74
3 Cubic Yard Bins - Solid Waste
1,112
$
75.10
$
83,511.20
4 Cubic Yard Bins - Solid Waste
1,048
$
86.34
$
90,484.32
5 Cubic Yard Bins - Solid Waste
14
$
99.39
$
1,391.46
6 Cubic Yard Bins - Solid Waste
125
$
112.88
$
14,110.00
1 Cubic Yard Bins - Recycling
924
$
54.86
$
50,690.64
2 Cubic Yard Bins - Recycling
1,028
$
66.11
$
67,961.08
3 Cubic Yard Bins - Recycling
385
$
75.10
$
28,913.50
4 Cubic Yard Bins - Recycling
835
$
86.34
$
72,093.90
5 Cubic Yard Bins - Recycling
-
$
99.39
$
-
6 Cubic Yard Bins - Recycling
101
$
112.88
$
11,400.88
35 Gallon Solid Waste Carts
-
$
20.00
$
-
64 Gallon Solid Waste Carts
1,571
$
20.00
$
31,420.00
96 Gallon Solid Waste Carts
1,933
$
20.00
$
38,660,00
96 Gallon Recycling Carts
2,517
$
20.00
$
50,340.00
96 Gallon Organics Carts
1,088 1
$
20.00
$
21,760.00
Total
$
771,976,68
Sales Tax @ 7.875%
$
60,793.16
Grand Total
1.$
832 769.84
Make all checks payable to City of Fresno, SWMD
If you have any questions concerning this invoice,
Jerry Schuber Sr., (559) 621-1801 Jerry. Sch uber@ Fresno.Gov
THANK YOU FOR YOUR BUSINESS!