AMENDED AND RESTATED OPERATING AGREEMENT OF GENERAL REFUSE SERVICE OF OHIO, LLC
Exhibit
3.520
This Amended and Restated Operating Agreement (the “Agreement”) of GENERAL REFUSE SERVICE OF
OHIO, LLC (the “Company”) is executed as of December 1, 2008, by
BFI WASTE SYSTEMS OF NORTH AMERICA, LLC, a Delaware limited liability company, the sole member of
the Company (the “Member”), and shall bind the Member, the Company, and any other person who may
acquire any interest in the Company. This Agreement shall supersede and replace the Company’s
Operating Agreement dated March 25, 2001, in its entirety.
SECTION 1. DEFINITIONS; THE COMPANY
1.1 Definitions. Capitalized words and phrases used in this Agreement and not
otherwise defined herein shall have the meanings set forth in
Section 7.6.
1.2 Formation. The Company has been formed as a limited liability company pursuant to
the provisions of the Act and upon the terms and conditions set forth in this Agreement and the
Articles of Organization.
1.3 Name. The name of the Company is GENERAL REFUSE SERVICE OF OHIO, LLC. All business
of the Company shall be conducted in the Company name. The Company shall hold its property in the
name of the Company.
1.4 Purpose. The purpose of the Company is primarily to engage in and conduct the
business of non-hazardous solid waste management, and to engage in any other activity permitted
under Ohio law and the laws of any jurisdiction in which the Company may do business.
1.5 Office. The registered office of the Company within the State of Ohio shall be CT
Corporation System, 0000 Xxxx
0xx Xxxxxx, Xxxxxxxxx, Xxxx 00000. The registered office may
be changed to any other place within the State of Ohio upon the consent of the Member. The Company
may maintain a registered office in any state within which it does business at any location
approved by the Member.
1.6 Registered Agent for Service of Process. The name and address of the registered
agent for service of legal process on the Company in Ohio are CT Corporation System, 0000 Xxxx
0xx Xxxxxx, Xxxxxxxxx, Xxxx 00000. The Company’s agent for service of legal process may be
changed upon the consent of the Member.
1.7 Certificate of Formation. The Company’s Articles of Organization were filed with
the Ohio Secretary of State on January 4, 2001, and were amended November 9, 2006 (the “Articles of
Organization”). The Member shall file any amendments to the Articles of Organization deemed
necessary to reflect amendments to this Agreement that the Member adopts in accordance with the
terms. Upon the approval of any amendments, by the Member in
accordance with this Agreement, the Member or a designee of the Member shall be authorized to
execute and file such instruments with the appropriate state agencies.
SECTION 2. MEMBER; CAPITAL CONTRIBUTIONS; LOANS
2.1
Member. The name and address of the sole Member are set forth
in Exhibit A to this
Agreement.
2.2 Contributions of Member. The Member has contributed to the Company the cash or
other assets set forth in Exhibit A to this Agreement. The Member shall not be obligated to make
additional Capital Contributions to the Company.
2.3 Member Loans. The Member may make loans (“Member Loans”) to the Company, which
shall bear interest and be repaid on such reasonable terms and conditions as the Member may
determine. The Member shall not be required to make a Member Loan unless the Member has agreed to
make such Member Loan.
SECTION 3. DISTRIBUTIONS
During the term of the Company, the Member, in its sole discretion shall periodically
distribute the cash and property of the Company. No distribution shall be declared and paid unless,
after the distribution is made, the assets of the Company are in excess of all liabilities of the
Company.
SECTION 4. MANAGEMENT
4.1 General Management Structure. Unless specifically provided otherwise in this
Agreement, all decisions and actions concerning the Company and its affairs, and all matters
requiring the consent or approval of the Member under this Agreement, shall be made within the sole
discretion of the Member. Any party dealing with the Company shall be permitted to rely absolutely
on the signature of the Member as binding on the Company.
4.2 Delegation of Authority to Officers. The Member may designate one or more Persons
as officers of the Company. The officers shall have the authority to act for and bind the Company
to the extent of the authority granted to them in this Agreement or in resolutions duly adopted by
the Member on behalf of the Company. The officers of the Company may include a president, vice
presidents, an executive vice president, a secretary, a treasurer, and such other officers as the
Member deems appropriate. The officers of the Company will be entitled to such compensation for
their services as the Member may reasonably determine from time to time. Unless otherwise specified
by the Member, the following officers shall have the authority to engage in the activities set
forth with respect to their respective offices:
4.2.1 President. The President shall, subject to the control of the Member, have
general supervision of the business of the Company and shall see that all orders and resolutions of
the Member are carried into effect. The President shall execute all bonds, mortgages, contracts and
other instruments of the Company, except where required or permitted by law to be otherwise signed
and executed and except that the other officers of the Company may sign and execute documents when
so authorized by this Agreement, the Member, or the President. The
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President shall also perform such other duties and may exercise such other powers as from time to
time may be assigned to him by this Agreement or by the Member.
4.2.2 Vice Presidents. At the request of the President or in his absence or in the
event of his inability or refusal to act, the Vice President or the Vice Presidents, if there are
more than one, shall perform the duties of the President, and when so acting, shall have all the
powers of and be subject to all the restrictions upon the President. Each Vice President shall
perform such other duties and have such other powers as the President from time to time may
prescribe.
4.2.3 Secretary. The Secretary shall see that all books, reports, statements,
certificates and other documents and records required by law to be kept or filed are properly kept
or filed, as the case may be.
4.2.4 Treasurer. The Treasurer shall have the custody of the corporate funds and
securities and shall keep full and accurate accounts of receipts and disbursements in books
belonging to the Company and shall deposit all moneys and other valuable effects in the name and to
the credit of the Company in such depositories as may be designated by the Member. The Treasurer
shall disburse the funds of the Company as may be ordered by the Member, taking proper vouchers for
such disbursements, and shall render to the President, from time to time, when the Member so
requires, an account of all his transactions as Treasurer and of the financial condition of the
Company. If required by the Member, the Treasurer shall give the Company a bond in such sum and
with such surety or sureties as shall be satisfactory to the Member for the faithful performance of
the duties of his office and for the restoration to the Company, in case of his death, resignation,
retirement, or removal from office, of all books, papers, vouchers, money, and other property of
whatever kind in his possession or under his control belonging to the Company.
4.2.5 Assistant Secretaries. Except as may be otherwise provided in this Agreement,
Assistant Secretaries, if there are any, shall perform such duties and have such powers as from
time to time may be assigned to them by the Member, the President, any Vice President, if there are
any appointed, or the Secretary, and in the absence of the Secretary or in the event of his
disability or refusal to act, shall perform the duties of the Secretary, and when so acting, shall
have all the powers of and be subject to all the restrictions upon the Secretary.
4.2.6 Assistant Treasurers. Assistant Treasurers, if there are any, shall perform such
duties and have such powers as from time to time may be assigned to them by the Member, the
President, any Vice President, if there are any appointed, or the Treasurer, and in the absence of
the Treasurer or in the event of his disability or refusal to act, shall perform the duties of the
Treasurer, and when so acting, shall have all the powers of and be subject to all the restrictions
upon the Treasurer. If required by the Member, an Assistant Treasurer shall give the Company a bond
in such sum and with such surety or sureties as shall be satisfactory to the Member for the
faithful performance of the duties of his office and for the restoration to the Company, in case of
his death, resignation, retirement, or removal from office, of all books, papers, vouchers, money
and other property of whatever kind in his possession or under his control belonging to the
Company.
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4.2.7 Other Officers. Such other officers as the Member may choose shall perform such
duties and have such powers as from time to time may be assigned to them by the Member. The Member
may delegate to any officer of the Company the power to choose such other officers and to prescribe
their respective duties and powers.
4.3 Indemnification. The Company, its receiver or its trustee shall defend, indemnify
and save harmless the Member and its officers and any officers of the Company (the “Indemnified
Parties”) from and against all losses, claims, costs, liabilities and damages incurred by them by
reason of any act performed or omitted to be performed by them in connection with the business of
the Company, including attorneys’ fees incurred by them in connection with the defense of any
action based on any such act or omission; provided, however, no Indemnified Party shall be
indemnified from any liability for fraud, bad faith, willful misconduct, or gross negligence.
4.4 Meetings. No annual or special meetings of the Member shall be required. Any
action required or permitted to be taken at any meeting may be taken without a meeting if the
Member signs a written consent setting forth the action to be taken.
SECTION 5. BOOKS AND RECORDS
5.1 Books and Records. The Company shall maintain and preserve at its office all
accounts, books and other relevant Company documents. The books of account of the Company shall be
prepared and maintained on the same basis and in a manner consistent with the records of the
Member.
5.2 Fiscal Year. The fiscal year of the Company shall be the same as the fiscal year
of the Member.
5.3 Bank Accounts. The funds of the Company shall be maintained in a separate account
or accounts in the name of the Company.
SECTION 6. DISSOLUTION AND TERMINATION
6.1 Dissolution. The Company shall dissolve upon the first to occur of any of the
following events:
(a) The sale of all or substantially all of the Company’s assets and the collection of the
proceeds of such sale;
(b) The Member’s election to dissolve the Company
(c) At any time there are no Members; or
(d) The entry of a decree of dissolution under § 1705.47 of the Act.
6.2 Winding Up.
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(a) General. Following the dissolution of the Company, the Company shall cease to
carry on its business, except insofar as may be necessary for the winding up of its business, but
the Company’s separate existence shall continue until a certificate of cancellation has been filed
with the Ohio Secretary of State or until a decree dissolving the Company has been entered by a
court of competent jurisdiction.
(b) Liquidation and Distribution of Assets. The Member (or its authorized successor in
interest) shall be responsible for overseeing the winding up and liquidation of the Company and
shall take full account of the Company’s liabilities and assets upon dissolution. Any assets not
required to discharge any liabilities of the Company shall be distributed to the Member. Upon the
completion of the winding up, liquidation and distribution of the assets, the Company shall be
deemed terminated. The Company shall comply with any applicable requirements of the Act pertaining
to the winding up of the affairs of the Company and the final distribution of its assets.
6.3 Certificate of Cancellation. When all debts, liabilities and obligations of the
Company have been paid and discharged or adequate provisions have been made therefor and all of the
remaining property and assets of the Company have been distributed to the Member, the Member shall
execute and file a certificate of cancellation with the Ohio Secretary of State.
SECTION 7. MISCELLANEOUS
7.1 Binding Effect. Except as otherwise provided in this Agreement, every covenant,
term and provision of this Agreement shall be binding upon and inure to the benefit of the Member
and its successors, transferees and assigns.
7.2 Headings. Section and other headings contained in this Agreement are for reference
purposes only and are not intended to describe, interpret, define or limit the scope, extent or
intent of this Agreement or any of its provisions.
7.3 Severability. Every provision of this Agreement is intended to be severable. If
any term or provision hereof is illegal or invalid for any reason whatsoever, such illegality or
invalidity shall not affect the validity or legality of the remainder of this Agreement.
7.4 Variation of Pronouns. All pronouns and any variations thereof shall be deemed to
refer to masculine, feminine or neuter, singular or plural, as the identity of the Person or
Persons may require.
7.5 Governing Law. The laws of the State of Ohio shall govern the validity of this
Agreement, the construction of its terms and the interpretation of the rights and duties of the
Member.
7.6 Glossary. For purposes of this Agreement, the following terms shall have the
meanings specified in this Section:
“Act” means the Ohio Limited Liability Company Act, as set forth in Ohio Rev. Code Xxx. §
1705.01, et seg., as amended from time to time (or any corresponding provisions of succeeding law).
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“Agreement” means this Operating Agreement, as amended from time to time.
“Articles
of Organization” has the meaning given that term in
Section 1.7.
“Capital Contribution” means the amount of money and the net fair market value of
property (other than money) contributed to the Company by the Member.
“Company” means the limited liability company formed pursuant to this Agreement and
any limited liability company continuing the business of this Company in the event of dissolution
as herein provided.
“Member” means any Person identified as a Member in the heading to this Agreement. If
any Person is admitted as a Substituted Member pursuant to the terms of this Agreement, “Member”
shall also be deemed to refer to such Person.
“Member
Loans” has the meaning given that term in
Section 2.3.
“Person” means any individual, partnership, corporation, limited liability company,
trust, or other entity.
7.7 No Third-Party Beneficiaries. No term or provision of this Agreement is intended
to or shall be for the benefit of any Person not a party to this Agreement, and no such other
Person shall have any right or cause of action hereunder.
IN WITNESS WHEREOF, the undersigned has entered into this Agreement as of the date first above
written.
| BFI Waste Systems of North America, LLC, a Delaware limited liability company, its Sole Member |
||||
| By: | /s/ Xx Xxxx Xxxxx | |||
| Name: | Xx Xxxx Xxxxx, Secretary | |||
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EXHIBIT A
| Initial Capital | Percentage | |||||||
| Name and Address of Member | Contribution | Interest | ||||||
BFI Systems of North America, LLC |
$ | 100.00 | 100 | % | ||||
00000 Xxxxx Xxxxxx Xxx |
||||||||
Xxxxxxx, XX 00000 |
||||||||
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