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Waste Delivery Contract DMASWAMEMORANDUM October 29, 2002 TO:The Honorable Mayor and City Council Members FROM:Michael C. Van Milligen, City Manager SUBJECT:New DMASWA Waste Delivery Contract Operations and Maintenance Manager Don Vogt recommends City Council approval of the waste delivery contract, as tendered by the Dubuque Metropolitan Area Solid Waste Agency's (DMASWA) Board of Directors. This is a long-term contract that provides for a $6.75 per ton rebate to the City. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Don Vogt, Operations and Maintenance Manager October 22,2002 CITY OF DUBUQUE, IOWA MEMORANDUM TO: Michael C. Van Milligen, City Manager FROM: Don Vogt, Operations and Maintenance Manager SUBJECT: New DMASWA Waste Delivery Contract INTRODUCTION The purpose of this memorandum is to recommend that the attached waste delivery contract, as tendered by the Dubuque Metropolitan Area Solid Waste Agency's (DMASWA) Board of Directors, be approved by the City Council. DISCUSSION Recently, the DMASWA's Board of Directors approved a "second generation" waste delivery contract be drafted and tendered to its high volume customers. As with the previous contract signed by the City of Dubuque, it requires that the customer deliver all municipal solid waste collected within the Agency's planning/service area to the Agency's landfill. It also requires that the customer provide recycling services to the accounts it serves. In return for a longer period of commitment, the Agency will rebate $6.73 per ton of the Agency's current $29.73 per ton fee - effective and retroactive to July 1, 2002. In fact, this new contract was anticipated by staff and the FY03 budget for our refuse collection activity reflects the now-tendered fee schedule. Accompanying this letter are two contract copies: As part-time legal counsel to the Agency, Corporation Counsel Barry Lindahl has already reviewed and approved the documents. ACTION STEP I recommend that the contract be approved by the City Council. Enclosures WASTE DELIVERY CONTRACT This Waste Delivery Contract ("the Contract") is made by and between Dubuque Metropolitan Area Solid Waste Aoency ( the Agency ) and c~ oF BUBUQUE, ~OWA ("the Hauler"), (legal name) 50 WEST 13th STREET, DUBUQUE, IA (address) WIIEREAS, pursuant to Iowa Code Chapter 455B and Chapter 28E, the Agency is authorized m provide solid waste management services within its Service Area-commonly referred to as its Comprehensive Planning Area; and WREREAS, the Agency owns and operates an environmentally sound landf-Rl known as the Dubuque Metropolitan Area Sanitary Landfill (Agency Landfill); and WIIEREAS, the Hauler is a waste hauler in the business of collecting and transporting solid wastes for customers and offers Recyclables collection and/or drop-off services to its customers in the Agency' s Service Area; and WBEREAS, the Hauler has delivered at least 800 tons to the Agency Landfill during the Agency' s previous or current fiscal year; and WI:FEREAS, the Hauler desires to deliver solid waste to the Agency Landfill and receive a rebate offthe Posted Tipping Fee Rate; and WRrEREAS, the Agency des/res to receive all the Acceptable Waste collected by the Hauler in the Agency' s Service Area within the State of Iowa; and WEFEREAS, the Agency desires to increase the diversion of Recyctables fi-om the solid waste stream delivered to the Agency Landfill; and WHEREAS, the Agency has agreed to Contract with the Hauler for the delivery of all :: solid waste collected by the Hauler in the Agency' s Service Area within the State of Iowa to the Agency Landfill subject to the terms and conditions set out below. NOw TIIEREFORE, in consideration of the .~rom/ses.and mutual agreements hereinafter set ~ :forth, the parties hereto agree as follows: ~ ARTICLE I - TERM This Contract shall commence on July 1, 2002 (or the date of execution by both parties, if later), and continue through June 30, 2006, unless earlier terminated pursuant to this Contract. Upon written notice to the Hauler of at least 90 days, this Contract may be extended for two additional one-year periods at the sole discretion of the Agency. This Contract may be extended beyond the first two extensions by the parties by written agreement executed in the same manner as this Contract. WAS\KLLI\K:\00 D00~Wast:eD aliveryCon'l:rac~ doc\5000 -I- Model Contract ARTICLE II - DEFINITIONS Acceptable Waste is garbage, refuse and other municipal solid waste from residential, commercial, industrial and community activities, including Residential Waste, Commercial/Industrial Waste, Construction and Demolition Wastes and Special Wastes as approved by the Agency. Agency Landfill is the sanitary landfill owned and operated by the Agency located at U.S. Highway 20 West. Commercial/Industrial Waste is solid waste collected from places of business, industries, institutions, and multi-family residences. Construction and Demolition (C&D) Waste means waste building materials, including wood, metals, and rubble which result from construction or demohtion of structures. Hazardous Waste is as defined in Chapter 455B.41 l(3)(a)(b). Holidays at the Agency Landfill are New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. Out-of-State Waste is any Acceptable Waste that originates from outside of the State of Iowa~ Recyclables are materials that have value as secondary materials for processing into new products that have been separated from mixed municipal sohd waste for the purpose of recycling. These materials currently include paper, glass, plastics, and metals. Residential Waste is solid waste collected from residences as defined by each communlty's ordinance. Service Area. The Service Area (also known as the Agency Comprehensive Planning Area) subject to this Contract includes all the properties located within the corporate limits of the communities of: WAS\KLLZ\K:\00D005\WasteDeJiveryCont~act.doc\5000 -2- Model Contract 'A. Asbury Dyersville Rickardsville Balltown Epworth Sageville Bankston Farley Sherrill Bernard Graf Worthington Cascade Holy Cross Zwingle Centralia Luxemburg Rural Dubuque County Dubuque New Vienna Durango Peosta Colesburg Edgewood Masonville Delaware Greeley Ryan Delhi Hopldnton Strawberry Point Dundee Manchester Rural Delaware County Earlville Any areas annexed by these communities become a part of those communities and will become part of the Agency Service Area. Any communities added to the Agency's Comprehensive Planning Area by mutual agreement of the Agency and the added communities, will be included in the Agency's Service Area covered by this Contract. Nothing in this Contract provides the Hauler with the exclusive right to solid waste collection within the Service Area. Special Waste is any industrial process waste, pollution control waste, or toxic waste which presents a threat to the human health, or the environment, or a waste with inherent properties which make the disposal of the waste in a sanitary landfill difficuk to manage. ARTICLE III - REPRESENTATIONS HAULER REPRESENTATIONS The Hauler is a corporation duly organized, validly existing and properly qualified to do business under the Laws of Iowa. The Hauler has full power and authority to execute this Contract and such execution constitutes a binding legal obligation of the Hauler that is fully enforceable in accordance with its terms and conditions. -3- Model Contract WAS\KLLl\K:\00D00$\WasteDeliver ~Contx'act.doc\5000 3. The execution of this Contract is not prohibited by any other agreement, indenture or any other instrument to which the Hauler is a party. 4. The Hauler will maintain the capability of delivering at least 800 tons to the Agency Landfill each fiscal year (July 1 to June 30). The Hauler will maintain or increase its current Recyclables and/or drop-off services and tonnage for its customers. The Hauler will offer recyclables collection service for at least Recyclable paper to all commercial, industrial, or institutional customers via Hauler's collection equipment or subcontracted services. AGENCY REPRESENTATIONS 1. The execution of the Contract is not prohibited by any agreement, indenture or other instrument to which the Agency is a party. 2. The Agency plans to maintain the necessary capacity needed to accommodate the Hauler. ARTICLE IV - COMPLIANCE WITH REGULATORY REQUIREMENTS The Hauler shall at all times operate its business of collecting and transporting solid waste in compliance with al/applicable local, state, and federal laws, rules, regulations and ordinances. The Hauler shall obtain and maintain all necessary licenses, permits and other authorizations required by each municipality and any other governmental agency having jurisdiction over its activities. The Hauler shall comply with the requirements of the State of Iowa regarding solid waste and Comprehensive Planning Areas, including the requirement that no waste will be brought by the Hauler to the Agency Landfill from another Iowa Comprehensive Planning Area. ARTICLE V - OPERATIONS DELIVERY OF ACCEPTABLE WASTE 1. Except as otherwise provided in this Contract, the Hauler agrees to deliver all Acceptable Waste that it collects in the Agency Service Area within the State of Iowa to the Agency Landfill. The Hauler further agrees that it will not deliver Acceptable Waste generated in the Agency Service Area within the State of Iowa to any other destination unless directed in writing by the Agency to do so. 2. The Hauler agrees not to deliver any Hazardous Waste to the Agency Landfill. WAS\KLLl\K:\00D005\WasteDeJiveryContract.doc\S000 -~- Model Contract The Hauler is not obligated by this Contract to deliver to the Agency Landfill recyclable materials that are recycled. Upon approval of the Agency, a Hauler may deliver to the Agency Landfill recyclable materials which, due to contamination or damage, are not Kecyclables. The Hauler will report to the Agency the quantity, type, and processing facility location of Recyclabtes collected within the Agency's service area. The Hauler will report the information quarterly on forms provided by the Agency. If the Hauler separates Recyclables from Acceptable Waste, the Hauler shall ensure that residual materials left after such separation are delivered to the Agency Landfill. If the Hauler processes Recyclables and there are residual materials left after such processing, the Hauler shall deliver the residual materials to the Agency Landfill. The Agency shall have the right to reject Special Wastes collected by the Hauler. The Agency shall attempt to respond to the Hauler's inquiry regarding a specific Special Waste within one working day. Hauler's initial inquiry and the Agency's initial response may be verbal, but each shall be committed to writing for Agency and Hauler records. If the Special Wastes are accepted by the Agency, the Hauler agrees to cooperate in the Agency's approval process regarding the delivery of Special Wastes and with any special handling requirements or charges associated with the Special Waste. Depending on the location of the Hauler's customer base, the Hauler may desire to deliver Out-of-State Waste to the Agency Landfill. In order to be eligible to deliver any Out-of-State Waste, Hauler shall first provide the Agency with the number of residential, commercial, and industrial accounts the Hauler has in the Agency Service Area within the State of Iowa at the time of Contract commencement and the average weight per week collected for each type of account. The Agency shall compare the quantities calculated by multiplying the number of each type of account times the respective average weights to the delivery tonnage from the Hauler at the time of Contract commencement. After the Agency has this information as a base, the Hauler may request to deliver waste from outside the Agency Service Area to the Agency Landfill by providing a request in writing to the Agency not less than thirt7 (30) days prior to the date the Hauler desires delivery to begin. The Agency shall then attempt to secure appropriate modifications to its Comprehensive Plan from the Iowa Department. of Natural Resources (DNR). If and when the DNR approves the Comprehensive Plan modification, the Agency shall notify the Hauler in writing that the Agency will accept the waste. Initial and continued acceptance of this waste by the Agency shall be subject to the following: a. Waste from another Iowa Comprehensive Planning Area may be delivered only if the Agency amends the Agency Comprehensive Plan to include the waste generator(s) or if the Agency Landfill is named as the approved landfill in the Comprehensive Plan covering the community in which the waste generator is located. WAS\KLLl\K:\00D005\WasteDeliveryContract.doc\5000 -5- Model Contract The Agency shall consider requests by the Hauler to deliver wastes from Hauler's customers located in Illinois but only from customers located in the county of Jo Davies. The Agency shall consider requests by the Hauler to deliver wastes from Hauler's customers located in Wisconsin but only from customers located in the county of Grant. d. Hauler may begin delivery of waste from outside the Agency Service Area only after receiving written permission from the Agency. Hauler shall provide monthly reports to the Agency of Out-of-State Waste delivered to the Agency Landfill. The report shall list the date of delivery, county of waste origin, and the actual scale tonnage or estimate of tonnage for split loads. If and when requested by the Agency, the Hauler shall supply any or all of the following information to the Agency as a means for the Agency to verify Out-of- State Waste deliveries by the Hauler: Number of residential, 'commercial, and industrial waste accounts by county of origin at that time; · Average weights of residential, commercial and industrial accounts per week, and C&D wastes per roll-off delivery; and Hauler shall also make available in Hauler's office a list of customers by aame from outside the Agency Service Area (said list to remain in Hauler's office and not be removed by the Agency representative). Hauler acknowledges that the Agency may conduct spot checks and random inspections of loads delivered by Hauler to the Agency Landfill to look for addresses on items within the load. If several addresses throughout the load are identified from outside the Agency Service Area or other counties previously identified by Hauler and listed in Section V.A.6 (b) and (c) of this Contract, the Agency shall notify the Hauler of the results of the spot check. Any loads containing several addresses throughout the load may be charged by the Agency at twice the rate for the load. If the Agency identifies ongoing deliveries from outside the approved area, the Agency may declare the Hauler to be in default and initiate the Remedies listed in VIII.C of this Contract. REJECTION OF DELIVERIES AND RESPONSIBII,ITII~S FOR HAZARDOUS WASTE, A delivery of waste may be rejected at the Agency Landfill under one or more of the following circumstances: 1. The Hauler may be denied entrance if waste is delivered at hours other than those specified herein. The Hauler may be denied entrance if it does not keep its account satisfactorily within the Agency's credit policies. -6- Model Contract WAS\KLLl\K:\00D005\WasteDelNeryContract.doc\$000 The Hauler may be denied entrance if there is a reasonable basis to believe that a vehicle contains Hazardous Waste. At the Hauler's expense, the Agency Landfill operator may require the Hauler to recover and dispose of waste deposited at the working face which contains Hazardous Waste. If the Agency Landfill operator has reasonable, factual information indicating that Hazardous Waste was delivered by the Hauler, and the Hauler has left the Agency Landfill, the Hauler agrees to return and remove such Hazardous Waste and dispose of it in accordance with all applicable Federal, State and Local laws. In the event waste is rejected by the Agency Landfill operator, the Hauler shall be provided with documentation certifying the rejection and reasons therefore. All costs of removal and disposal of Hazardous Waste shall be borne by the Hauler. In the event the Hauler disagrees with a decision to reject a load of waste, the Hauler shall have the right to present information to the Agency in support of its claim that the Agency Landfill operator wrongfully rejected the toad of waste. The Hauler's claim shall be resolved by mutual decision of one representative of the Hauler and one representative of the Agency. GENERAL DELIVERY REQUIREMENTS The Hauler agrees that it shall comply with such reasonable rules and regulations regarding the use of the Agency Landfill, including, but not limited to, all posted policies and procedures. 2. The Hauler agrees to comply with the traffic control policies of the Agency. 3. Excluding Holidays, the Hauler may deliver solid waste to the Agency Landfill during the regularly posted hours of operation as established by the Agency. In the event of a natural disaster or other emergency, delivery hours and days of the Agency Landfill may be adjusted and written or verbal notice of such adjustment shall be provided to the Hauler as soon as possible. 5. Delivery hours for any particular day (such as the day before Holidays or other special events) may be modified upon a three-work-day notice. ARTICLE VI -TIPPING FEE AND REBATE POSTED TIPPING FEE RATES From July 1, 2002, to June 30, 2003, the Posted Tipping Fee Rate shall be $29.73 per ton. WAS\KLLl\K:\00D005\WasteDeliver,iContract.doc\S000 -7- Model Contract B. REBATES The Hauler shall receive credit for a rebate of $6.73 per ton offthe Posted Tipping Fee Rate for each ton of Acceptable Waste delivered to the Agency Landfill. The Hauler shall begin earning the rebate credit retroactive to July 1, 2002, if the Contract is signed between July 1, 2002, and September 30, 2002. C. CHANGES IN POSTED TIPPING FEE RATES Beginning July 1, 2003, and each July 1 thereafter, the Agency reserves the right to raise the Posted Tipping Fee Rate listed in VI.A above by $0.75 per ton or if the Consumer Price Index for all urban consumers (CPI-U): U.S. city average increases more than 3.25 percent per year, the Agency reserves the fight to increase the Posted Tipping Fee by the actual percentage change in the CPI-U. The Agency also reserves the right to reduce the Posted Tipping Fee Rate. In the event such an increase or decrease occurs, the Hauler will continue to receive the $6.73 rebate per ton offthe revised Posted Tipping Fee Rate. The twelve-month period of October through September will be used as the one-year period for calculating changes in the CPI-U. If, during the term of this Contract, a regulatory change-in-law beyond the control of the Agency causes the cost of landfill operations to increase, the Hauler agrees that the Agency may increase the Posted Tipping Fee Rate equal to the cost increase due to the regulatory change-in-law. However, any such cost increase that represents more than a 15 percent increase over the Posted Tipping Fee Rate shall be negotiated between the Agency and the Hauler. DISTRIBUTION OF REBATE CREDIT The Agency shall hold the Hauler's rebate credit (without interest paid to the Hauler) for three months prior to beginning distribution on a three-month rolling basis. On the October invoice (issued in November), the Hauler shall receive credit for rebates earned in July and August. On the November invoice (issued in December), the Hauler shall receive credit for rebates earned in September, and so on. At the end of the term of this Contract, but only so long as the Hauler continues to deliver similar quantities of waste to the Agency Landfill~..the Agency shall continue to credit the succeeding three Hauler's monthly invoices for each of the prior three months rebate credits as if the Contract was still in effect. ARTICLE VII -ACCESS AND AVAILABILITY The Agency may not terminate, suspend, or curtail services provided to the Hauler required by this Contract to use the Agency Landfill without the consent of the Hauler or if the Hauler is in default as defined in Article VIII.A. WAS\KLLl\K:\00D005\WasteDeliveryCon~ract.doc\5000 -8- Model Contract ARTICLE VIII - DEFAULT AND REMEDIES HAULER DEFAULT The following shall constitute defaults by the Hauler: 1. Failure to comply with all legally applicable laws, ordinances, roles and regulations relating to waste hauling, including each munlcipality=s solid waste ordinances; 2. Failure to maintain insurance as required by this Contract; 3. Hauling Acceptable Waste from the Agency' s Service Area to a landfill or a site other than the Agency Landfill unless authorized in writing by the Agency to do so; 4. Delivering solid waste from outside of the Agency' s Service Area to the Agency Landfill without written authorization; 5. Failure to deliver at least 800 tons in a fiscal year; 6. Failure to make timely payment of tipping fees charged; 7. Failure to perform any of its material obligations under this Contract; 8. Transfer of any interest under this Contract, whether by subcontract, assignment or novation, in violation of Article X.D; or 9. Failure to offer and maintain recycling services to its customers. AGENCY DEFAULT The following shall constitute a default by the Agency: Failure to perform any of its material obligations under this Contract. REMEDIES If the Hauler is in default, and if the default continues for a period of thirty (30) days after written notice from the Agency, at the election of the Agency, the Agency shall have the right, but shall not be obligated, to exercise any one or more of the following remedies: 1. Sue for specific performance. 2. Retain any rebate amounts remaining to be paid to the Hauler pursuant to this Contract. WAS\KLLl\K:\00D005\WasteDeliveryContract.doc\S000 -9- Model Contract Sue and recover all rebates already paid to Hauler pursuant to this Contract. In the event the Hauler intentionally falls to deliver any Acceptable Waste to the Agency Landfill as required by Article V, the Agency' s remedy for damages incurred by the Agency shall be the sum of the Posted Tipping Fee Rate plus $3.00, multiplied by the tonnage of Acceptable Waste not delivered until the Hauler restores deliveries or to the end of the Contract term, whichever is shorter. The tonnage of Acceptable Waste not delivered shall be calculated by either one of the following: (i) by disposal records for the Hauler at other disposal or transfer facilities; or (ii) by a comparison between the amount of Acceptable Waste disposed of by the Hauler at the Agency Landfill during the time in question and the amount of Acceptable Waste disposed of at the Agency Landfill by the Hauler during another comparable time period. Terminate this Contract according to Article X, Section J. No fight or remedy conferred upon or reserved to the Agency by this Contract shall be exclusive of any other fight or remedy; all rights and remedies conferred upon the Agency by this Contract or by law shall be cumulative in addition to every other fight and remedy available to the Agency. No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default. In the event either party should breach any term contained in this Contract and which is thereafter waived by the other party, such waiver shall be limited to the particular breach so waived and for the time and in the manner so specified. The waiver shall not be deemed to waive any other breach hereunder. In the event either party is required to engage counsel to enforce its fights under this Contract because of default by the other party pursuant to this contract, the prevailing party shall be reimbursed reasonable attorney's fees and litigation costs, including expert witness fees, regardless of whether the court action is commenced, together with any costs and expenses of said court action by the other party. WAS\KLD.\K:\00D005\WasteDeliveryContract.doc\5000 -10- Model Contract DISPUTES All disputes arising under this Contract shall be resolved through arbitration. Each party to this Contract may initiate arbitration by serving a written notice upon the adverse party stating as simply as possible the points of difference between the parties and stating an intent to initiate arbitration procedures. The notice shall be deemed initiation of such procedures. Within ten (10) days thereafter, the parties shall meet and select an arbitrator from a list of seven (7) arbitrators, obtained from the arbitration list maintained by the IPER Board. The arbitration hearing shall be held within thirty (30) days of the selection of the arbitrator. The hearing shall be conducted informally, and the decision shall be reduced to writing and submitted in writing and the determination so made shall be binding upon the parties and shall form the basis for future guidance of all parties on the issues so resolved. The costs of the arbitration hearing shall be shared equally between the parties. Each party shall pay for its own attorney fees and witness costs. ARTICLE IX - INDEMNIFICATION AND INSURANCE INDEMNIFICATION The Hauler shall indemnify, defend and save harmless the Agency, its member cities and its or their agents, elected officials and employees from all. claims, damages, losses, liabilities, costs, expenses and lawsuits whatsoever arising out of the willful misconduct or any negligent act or omission on the part of the Hauler or its contractors, agents, servants or employees in the performance of or in relation to any of the work or services to be performed or furnished by the Hauler under the terms of this Contract. B. INSURANCE The Hauler shall procure and maintain in force at all times during the term of this Contract the insurance specified in Schedule A of this Contract. ARTICLE X - MISCELLANEOUS AUDIT All books, records, documents and accounting procedures and practices of the Hauler relevant to this Contract shall be subject to examination by the Agency upon a one-day notice from the Agency. B. NOTICE All written notices required pursuant to this Contract shall be either hand delivered or mailed to the Hauler and the Agency at the following address or such other address as may be provided in writing to the other party from time to time: WAS\KLLI \K:\00D005\WasteDeliveryContract.doc\S000 -1I- Model Contract Agency: Dubuque Metropolitan Area Solid Waste Agency Attn: Don Vogt 925 Kerper Boulevard Dubuque, Iowa 52001 Hauler: City of Dubuque, Iowa Attn: Michael C. Van Milligen City Manager 50 West 13th Street Dubuque, IA 52001 C. RELATIONSHIP OF THE PARTIES For the purposes of this Contract, the Hauler shall be deemed to be an independent Contractor and not an employee of the Agency. The Hauler shall maintain, at its own expense, ali equipment and personnel necessary to full, il its obligations under this Contract. D. ASSIGNMENT The Hauler shall not transfer or assign all or any part of this Contract without the prior written consent of the Agency. No such assignment shall be effective unless and until the assignee consents to be bound by the terms of this Contract. E. SURVIVAL OF REPRESENTATIONS AND WARRANTIES The representations, warranties, covenants and agreements of the parties under this Contract, and the remedies of either party for the breach of such representations, warranties, covenants, and agreement by the other party shall survive the execution and term of this Contract. F. EQUAL EMPLOYMENT OPPORTUNITY The Hauler agrees to comply with 'all Federal, State, and local taws, resolutions, ordinances, rules, regulations and executive orders pertaining to unlawful discrimination on account of race, color, creed, national origin, sex, marital status, status with regard to public assistance, membership on a local human rights Commission, disability, sexual orientation or age. G. ENTIRE AGREEMENT AND WAIVER The Contract shall constitute the entire agreement between the parties and shall supersede all prior oral and written negotiations. No waiver of any provisions of this Contract shall be deemed or shall constitute a waiver of any other provisions hereof, whether or not similar, nor shall such waiver constitute a continuing waiver. WAS\KI.Ll\K:\00D005\WasteDeliveryContmct. doc\5000 -I2- Model Contract H. GOVERNING LAW This Contract shall be interpreted and construed according to the laws of the State of Iowa. I. ALTERATION CLAUSE Any alteration, modification or waiver of the provisions of the Contract shall be valid only after it has been reduced to writing and duly signed by all parties. J. TERMINATION In the event that the Hauler and the Agency mutually agree in writing to terminate this Contract, such termination shall take effect immediately upon execution of such agreement by both parties. Either party may terminate this Contract by reason of the default of the other party after thirty (30) days written notice to the defaulting party describing such default. Provided, however, that this Contract shall not be terminated if the defaulting party cures the default within thirty (30) days from the date of the mailing of the notice of default. The Agency may terminate this Contract for any reason, with or without cause, by providing ninety (90) days written notice to the Hauler. Notwithstanding such termination, however, rebate credits will continue according to Section x/I.D. K. EXECUTION OF CONTRACT This Contract shall become legally binding when signed by the Hauler and the Agency, and the Waste Delivery Contract between the parties dated the 8th day of July, 1999 shall automatically terminate. L. UNFORESEEN CIRCUMSTANCES The inability of either party to perfo?n any obligation under this Contract due to an "":Onforeseen Circumstance shall not constitUte a breach of any such obligation during the pendency of the Unforeseen Circumstance. "Unforeseen Circumstance" means any act, event or condition that has had, or will have, a material adverse effect on the rights or obligations of the Hauler or the Agency under this Contract, if such act, event or condition is beyond the reasonable control of the party relying thereon as justification for not performing an obligation or complying with any condition required of such party under this Contract. Such acts or events may include, but shall not be limited to, and are qualified by the following: An act of God (but not including reasonably anticipated weather conditions for the geographic area of the Facility) such as a landslide, lightning, tornado, flood, fire, explosion, sabotage or similar occurrence; acts of a public enemy, extortion, war, WASkKLL1 \K:\00 D005\WasteOeli,mryContrac't.do c\$000 -13- Model Contract blockade or insurrection, riot or civil disturbance; The non-issuance, suspension, termination, interruption, denial or failure of renewal of any permit, license, consent, authorization or approval essential to the operation of the Agency Landfill, provided that such act or event shall not be the result of the willful or negligent action or inaction of the party relying thereon and that neither the contesting in good faith of any such order nor the reasonable failure to so contest shall be construed as a willful or negligent action or inaction of such party; A change in law which prohibits or substantially prohibits the cost effective operation of the Agency Landfill as determined by the Agency in its sole discretion; The failure of any appropriate federal, state, county, or city public agency or private utility, having operational jurisdiction in the area in which the Agency Landfill is located, to provide and maintain utilities, services, water and sewer lines, and power transmission lines to the Agency Landfill site which are required for and essential to the operation of the Agency Landfill as determined by the Agency in its sole discretion; and The failure of any subcontractor or supplier to furnish labor, services, materials or equipment during the term of this Contract provided that such failure is caused by an Unforeseen Circumstance and materially adversely affects the Hauler=s ability to perform its obligations, and the Hauler is not able reasonably to obtain substitute labor, services, materials or equipment during the term of this Contract. Strikes by the Hauler=s employees, or subcontractors or failure of any supplier, uncontrolled by the Hauler, to furnish labor, services, materials or equipment during the term of this Contract due to strikes by their employees shall not constitute an Unforeseen Circumstance. M. SEVERABILITY In case any one or more of the provisions contained in this Contract shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Contract, and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. WAS\KLLl\K:\OODOOS~WasteDeliveryContract,doc\SO00 -lq- Model Contract IN WITNESS WHEREOF, the parties have caused this Contract to be executed as of the __ day of ,200_ notwithstanding the date of the signature of the parties. DUBUQUE METROPOLITAN AREA SOLID WASTE AGENCY CITY OF DUBUQUE, IOWA By ks M~YOR D~ed By Its Dated Attest: Dated: WAS\KLLl\K:\00DOOS\WasteDelJveryCont~ctdoc\5000 -15- Model Contract Schedule A WAS\KLL~.\K:\00 D005\WasteD eliveryCo nt tact, do c\5000 -16- Model Contract INSURANCE SCHEDULE A INSURANCE REQUIREMENTSFORTENANTS AND LESSEES OF CITYPROPERTY OR VENDORS(SUPPLIERS, SERVICE PROVIDERS) TO THE CITY OF DUBUQUE All policies of insurance required hereunder shall be with an insurer authorized to do business in Iowa. All insurers shall have a rating of A or better in the current A.M. Best Rating Guide. All policies of insurance required hereunder shall be endorsed to provide a thirty (30) day advanced notice to the City of Dubuque of any cancellation of the policy prior to its expiration date. This endorsement supersedes the standard cancellation statement on the Certificate of Insurance. shall furnish Certificates of Insurance to the City of Dubuque, Iowa for the coverage required in Paragraph 7. Such certificates shall include copies of the endorsements set forth in Paragraphs 2 and 5 to evidence inclusion in the policy. Each Certificate of Insurance shall be submitted to the contracting department of the City of Dubuque, Iowa pdor to commencement of work/service. (The contracting department shall submit the certificates to the Finance Director.) All policies of insurance required in Paragraph 7 shall include the City of Dubuque, Iowa under the attached Additional Insured Endorsement (CG2026) and the attached Governmental Immunities Endorsement. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the insurance required herein shall be considered a material breach of this agreement. shall_be r. equired to carry the following minimum insurance coverages or greater if required by law or other legal agreement: COMMERCIAL GENERAL LIABILITY: General Aggregate Limit Products-Completed Operation Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage Limit (any one occurrence) Medical Payments ,~ , . $ 2,000,000 $1,000,000 $1,000,000 $1,000,000 $ 50,000 $ 5,000 Commercial general liability shall be written on an occurrence form, not a claims made form. Coverage to include premises-operation-products-completed operations, independent contractors coverage, contractual liability, broad form property damage, and personal injury. UMBRELLA OR EXCESS LIABILITY: LIQUOR OR DRAM SHOP LIABILITY: * To be determined on a case-by-case basis by Finance Director. A-1 POLICY NUMBER COMMERCIAL GENERAL LIABILITY THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY. ADDITIONAL INSURED - DESIGNATED PERSON OR ORGANIZATION This endorsement modifies insurance provided under the following: COMMERCIAL GENERAL LLABILITY COVERAGE PART. SCHEDULE Name of Person Or Organization: The City of Dubuque, including all its elected and appointed officials, all it~ employees and volunteers, all its boards, commissions and/or authorities and their board members, employees, and volunteers, (If no entry appears above, information required to complete this endorsement will be shown in the Declarations ss applicable to this endorsement.) WHO IS AN INSURED (Section II) is amended to include as an insured the. person or organization shown in the Schedule as an insured but only with respect to liability arising out of your operations or premises owned by or rented to you. Coovriaht. Insurance Services Office. Inc. 1994 CG 20 26 11 85 CITY OF DUBUQUE, IOWA GOVERNMENTAL IMMUNITIES ENDORSEMENT Nonwaiver of Governmental Immunity- The insurance carrier expressly agrees and states that the purchase of this policy and the including of the City of Dubuque, Iowa as an Additional Insured does not waive any of the defenses of governmental immunity available to the City of Dubuque, Iowa under Code of Iowa Section 670.4 as it is now exists and as it may be amended form time to time. Claims Coverage- The insurance carrier further agrees that this policy of insurance shall cover only those claims not subject to the defense of governmental immunity under the Code of Iowa Section 670.4 as it now exists and as it may be amended from time to time. Those claims not subject to Code of Iowa Section 670.4 shall be covered by the terms and conditions of this insurance policy. Assertion of Government Immnity- The City of Dubuque, Iowa shall be responsible for asserting any defense of governmental immunity, and may do so at any time and shall do so upon the timely written request of the insurance carrier. Non-Denial of Coverage- The insurance carrier shall not deny coverage under this pol'icy and the insurance carrier shall not deny any of the rights and benefits accruing to the City of Dubuque, Iowa under this policy for reasons of governmental immunity unless and until a court of competent jurisdiction has ruled in favor of the defense(s) of governmental immunity asserted by the City of Dubuque, Iowa. No Other Change in Policy- The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. A-3 WASTE DELIVERY CONTRACT This Waste Delivery Contract ("the Contract") is made by and between Dubuque Metropolitan Area Solid Waste A~ency ( the A=ency ) and c~Y OF DUBUQUE, IOWA ("the Hauler"), (legal name) 50 WEST 13th STREET, DUBUQUE, IA (address) WHEREAS, pursuant to Iowa Code Chapter 455B and Chapter 28E, the Agency is authorized to provide solid waste management services within its Service Area-commonly referred to as its Comprehensive Planning Area; and WHEREAS, the Agency owns and operates an environmental/y sound landfill known as the Dubuque Metropolitan Area Sanitary Landfill (Agency Landfill); and Wltl*~REAS, the Hauler is a waste hauler in the business of collecting and transporting so[id wastes for customers and offers Recyclables collection and/or drop-off services to its customers in the Agency' s Service Area; and WHEREAS, the Hauler has delivered at least 800 tons to the Agency Landfill during the Agency' s previous or current fiscal year; and V/RrEREAS, the Hauler desires to deliver solid waste to the Agency Landfill and receive a rebate offthe Posted Tipping Fee Rate; and WlFIEREAS, the Agency desires to receive all the Acceptable Waste coll~fited by the Hauler in the Agency' s Service Area within the State of Iowa; and Wl:II~',REAS, the Agency desires to increase the diversion of Kecyclables from the solid waste stream delivered to the Agency Landfill; and WItEREAS, the Agency has agreed to Contract with the Hauler for the delivery of all :: solid waste collected by the Hauler in the Agency' s Service Area within the State of Iowa to the Agency Landfill subject to the terms and conditions set out below. NOW TItFEREFORE, in consideration of the ~romises ..and mutual agreements hereinafter set : :~orth, the parties hereto agree as follows: ~ ARTICLE I - TERM This Contract shall commence on July 1, 2002 (or the date of execution by both parties, if'later), and continue through June 30, 2006, unless earlier terminated pursuant to this Contract. Upon written notice to the Hauler of at least 90 days, this Contract may be extended for two additional one-year periods at the sole discretion of the Agency. Tkis Contract may be extended beyond the first two extensions by the parties by written agreement executed in the same manner as this Contract. WAS\KLLl\K:\00D005~Wast:eDeJiveryCont:ractdoc\5000 -I. Model Contract ARTICLE II - DEFINITIONS A. Acceptable Waste is garbage, refuse and other municipal solid waste from residential, commercial, industrial and community activities, including Residential Waste, Commercial/Industrial Waste, Construction and Demolition Wastes and Special Wastes as approved by the Agency. B. Agency Landfill is the sanitary landfill owned and operated by the Agency located at U.S. Highway 20 West. C. Commercialflndustrial Waste is solid waste collected from places of business, industries, institutions, and multi-family residences. D. Construction and Demolition (C&D) Waste means waste building materials, including wood, metals, and rubble which result fi-om construction or demolition of structures. E. Hazardous Waste is as defined in Chapter 455B.41 l(3)(a)(b). F. ltolidays at the Agency Landfill are New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. G. Out-of-State Waste is any Acceptable Waste that originates fi-om outside of the State of Iowa. H. Recyclables are materials that have value as secondary materials for processing into new products that have been separated fi-om mixed municipal solid waste for the purpose of recycling. These materials currently include paper, glass, plastics, and metals. L Residential Waste is solid waste collected fi-om residences as defined by each community's ordinance. J. Service Area. The Service Area (also known as the Agency Comprehensive Planning Area) subject to this Contract includes all the properties located within the corporate limits of the communities of: WAS\KLL1 \ K:\00 D005\Wast:eD eJiveryCo ntra ct:.d o c\5000 -2- Model Contract Asbury Dyersville Rickardsville Balltown Epworth Sageville Bankston Farley Sherrill Bernard Graf Worthington Cascade Holy Cross Zwingle Centralia Luxemburg Rural DubuqUe County Dubuque New Vienna Durango Peosta Colesburg Edgewood Masonville Delaware Greeley Kyan Delhi Hopkinton Strawberry Point Dundee Manchester Kural Delaware County Earlville Any areas annexed by these communities become a part of those commmaities and will become part of the Agency Service Area. Any communities added to the Agency's Comprehensive Planning Area by mutual agreement of the Agency and the added communities, will be included in the Agency's Service Area covered by this Contract. Nothing in this Contract provides the Hauler with the exclusive fight to solid waste collection within the Service Area. Special Waste is any industrial process :waste, pollution control waste, or toxic waste which presents a threat to the human hedlth, or the environment, or a waste with inherent properties which make the disposal of the waste in a sanitary landfill difficult to manage. ARTICLE III - REPRESENTATIONS A. HAULER REPRESENTATIONS 1. The Hauler is a corporation duly organized, validly existing and properly qualified to do business under the Laws of Iowa. 2. The Hauler has full power and authority to execute this Contract and such execution constitutes a binding legal obligation of the Hauler that is fully enforceable in accordance with its terms and condkions. WAS\KkLl\K:\OOD00S\WasteOeliveryContract.doc\5000 -3- Model Contract 3. The execution of this Contract is not prohibited by any other agreement, indenture or any other instrument to which the Hauler is a party. 4. The Hauler will maintain the capability of delivering at least 800 tons to the Agency Landfill each fiscal year (July 1 to June 30). The Hauler will maintain or increase its current Recyclables and/or drop-offservices and tonnage for its customers. The Hauler will offer recyclables collection service for at least Recyclable paper to ail commercial, industrial, or institational customers via Hauler's collection equipment or subcontracted services. AGENCY REPRESENTATIONS 1. The execution of the Contract is not prohibited by any agreement, indenture or other instrument to which the Agency is a party. 2. The Agency plans to maintain the necessary capacity needed to accommodate the Hauler. ARTICLE IV - COMPLIANCE WITE[ REGULATORY REQUIREMENTS The Hauler shall at al/' times operate its business of collecting and transporting solid waste in compliance with all applicable local, state, and federal laws, rules, regulations and ordinances. The Hauler shall obtain and maintain all necessary licenses, permits and other authorizations required by each municipality and any other governmental agency having jurisdiction over its activities. The Hauler shall comply with the requirements of the State of Iowa regarding solid waste and Comprehensive planning Areas, including the requirement that no waste will be brought by the Hauler to the Agency Landfill from another Iowa Comprehensive Planning Area. ARTICLE V ~ OPERAr-TIONS DELIVERY OF ACCEPTABLE WASTE 1. Except as otherwise provided in this Contract~ the Hauler agrees to deliver all Acceptable Waste that it collects in the Agency Service Area within the State of Iowa to the Agency Landfill. The Hauler further agrees that it will not deliver Acceptable Waste generated in the A4ency Service Area within the State of Iowa to any other destination unless directed in writing by the Agency to do so. 2. The Hauler agrees not to deliver any Hazardous Waste to the Agency Landfill. WAS\KLLt~K:\OODOOS\Wasl:eDeliveryContract..doc\5000 -4- Model Contract The Hauler is not obligated by this Contract to deliver to the Agency Landfill recyclable materials that are recycled. Upon approval of the Agency, a Hauler may deliver to the Agency Landfill recyclable materials which, due to contamination or damage, are not Recyclables. The Hauler will report to the Agency the quantity, type, and processing facility location of Recyclables collected within the Agency's service area. The Hauler will report the information quarterly on forms provided by the Agency. If the Hauler separates Recyclables from Acceptable Waste, the Hauler shall ensure that residual materials left after such separation are delivered to the Agency Landfill. If the Hauler processes Recyclables and there are residual materials left after such processing, the Hauler shall deliver the residual materials to the Agency Landfill. The Agency shall have the right to reject Special Wastes collected by the Hauler. The Agency shall attempt to respond to the Hauler' s inquiry regarding a specific Special Waste within one working day. Hauler's initial inquiry and the Agency's initial response may be verbal, but each shall be committed to writing for Agency and Hauler records. If the Special Wastes are accepted by the Agency, the Hauler agrees to cooperate in the Agency's approval process regarding the delivery of Special Wastes and with any special handling requirements or charges associated with the Special Waste. Depending on the location of the Hauler's customer base, the Hauler may desire to deliver Out-of-State Waste to the Agency Landfill. In order to be eli~ble to deliver any Out-of-State Waste, Hauler shall first provide the Agency with the number of residential, commercial, and industrial accounts the Hauler has in the Agency Service Area within the State of Iowa at the time of Contract commencement and the average weight per week collected for each type of account. The Agency shall compare the quantities calculated by multiplying the number of each type of account times the respective average weights to the delivery tonnage from the Hauler at the time of Contract commencement. After the Agency has this information as a base, the Hauler may request to deliver waste from outside the Agency Service Area to the Agency Landfill by providing a request in writing to the Agency not less than thirty (30) days prior to the date the Hauler desires delivery to begin. The Agency shall then attempt to secure appropriate modifications to its Comprehensive Plan from the Iowa Department of Natural Resources (DNK). If and when the DNK approves the Comprehensive Plan modification, the Agency shall notify the Hauler in writing that the Agency will accept the waste. Initial and continued acceptance of this waste by the Agency shall be subject to the following: a. Waste from another Iowa Comprehensive Planning Area may be delivered only if the Agency amends the Agency Comprehensive Plan to include the waste generator(s) or if the Agency Landfill is named as the approved landfill in the Comprehensive Plan covering the community in which the waste generator is located. WAS\KLLl\K:\00D005\WasteDeliveryContract.doc\5000 :5- Model Contract The Agency shall consider requests by the Hauler to dehver wastes from Hauler's customers located in Illinois but only from customers located in the county of Jo Davies. The Agency shall consider requests by the Hauler to deliver wastes from Hauter's customers located in Wisconsin but only from customers located in the county of Grant. d. Hauler may begin delivery of waste from outside the Agency Service Area only after receiving written permission from the Agency. Hauler shall provide monthly reports to the Agency of Out~of-State Waste delivered to the Agency Landfill. The report shall list the date of delivery, county of waste origin, and the actual scale tonnage or estimate of tormage for split loads. If and when requested by the Agency, the Hauler shall supply any or alt of the following information to the Agency as a means for the Agency to verify Out-of- State Waste deliveries by the Hauler: · Number of residential, commercial, and industrial waste accounts by county of origin at that time; · Average weights of residential, commercial and industrial accounts per week, and C&D wastes per roll-off delivery; and Hauler shall also make available in Hauler's office a list of customers by name from outside the Agency Service Area (said list to remain in Hauler's office and not be removed by the Agency representative). Hauler acknowledges that the Agency may conduct spot checks and random inspections of loads delivered by Hauler to the Agency Landfill to look for addresses on kerns within the load. If several addresses throughout the load are identified from outside the Agency Service Area or other counties previously identified by Hauler and listed in Section V.A. 6 (b) and (c) of tiffs Contract, the Agency shall notify the Hauler of the results of the spot check. Any loads containing several addresses throughout the load may be charged by the Agency at twice the rate for the load. If~he Agency identifies ongoing deliveries from outside the approved area, the ,Agency ma~ declare the Hauler to be in default and initiate the Remedies listed in ¢III.C of this Contract. REJECTION OF DELIVERIJES AND RESPONSIBILITIES FOR HAZARDOUS WASTE A delivery of waste may be rejected at the Agency Landfill under one or more of the following circumstances: 1. The Hauler may be denied entrance if waste is delivered at hours other than those specified herein. The Hauler may be denied entrance if it does not keep its account satisfactorily within the Agency's credit policies. -6- Model Contract WAS}KLL~.\K:\OODOOS\Wast:eDeiiveryContrac~.doc\SO00 The Hauler may be denied entrance if there is a reasonable basis to believe that a vehicle contains Hazardous Waste. At the Hauter's expense, the Agency Landfill operator may require the Hauler to recover and dispose of waste deposited at the working face which contains Hazardous Waste. If the Agency Landfill operator has reasonable, factual information indicating that Hazardous Waste was delivered by the Hauler, and the Hauler has left the Agency Landfill, the Hauler agrees to return and remove such Hazardous Waste and dispose of it in accordance with all applicable Federal, State and Local laws. In the event waste is rejected by the Agency Landfill operator, the Hauler shall be provided with documentation certifying the rejection and reasons therefore. All costs of removal and disposal of Hazardous Waste shall be borne by the Hauler. In the event the Hauler disagrees with a decision to reject a load of waste, the Hauler shall have the right to present information to the Agency in support of its claim that the Agency Landfill operator wrongfully rejected the load of waste. The Hauter's claim shall be resolved by mutual decision of one representative of the Hauler a. nd one representative of the Agency. GENERAL DELIVERY REQUI~MENTS The Hauler agrees that it shall comply with such reasonable rules and regulations regarding the use of the Agency Landfill, including, but not limited to, al/posted policies and procedures. 2. The Hauler agrees to comply with the traffic control policies of the Agency. 3. Excluding Holidays, the Hauler may deliver solid waste to the Agency Landfill during the regularly posted hours of operation as established by the Agency. 4. In the event ora natural disaster or other emergency, delivery hours and days of the Agency Landfill may be adjusted and written or verbal notice of such adjustment shall be provided to:the Hauler as soon as possible. 5. Delivery hours for any particuthr day (such as the day before Holidays or other special events) may be modified upon a three-work-day notice. ARTICLE VI -TEPPING FEE AND REBATE POSTED TIPPING FEE RATES From July 1, 2002, to June 30, 2003, the Posted Tipping Fee Rate shall be $29.73 per ton. WAS\KLLl\K:\OODOOS\WasteDeliveryContmct:.doc\5000 -7- Model Contract B. REBATES The Hauler shall receive credit for a rebate of $6.73 per ton off the Posted Tipping Fee Rate for each ton of Acceptable Waste delivered to the Agency Landfill. The Hauler shall begin earning the rebate credit retroactive to July 1, 2002, if the Contract is signed between July 1, 2002, and September 30, 2002. CHANGES IN POSTED TIPPING FEE RATES Beginning July 1, 2003, and each July 1 thereafter, the Agency reserves the right to raise the Posted Tipping Fee Rate listed in VI.A above by $0.75 per ton or if the Consumer Price Index for all urban consumers (CPI-U): U.S. city average increases more than 3.25 percent per year, the Agency reserves the right to increase the Posted Tipping Fee by the actual percentage change in the CPI-U. The Agency also reserves the right to reduce the Posted Tipping Fee Rate. In the event such an increase or decrease occurs, the Hauler will continue to receive the $6.73 rebate per ton off the revised Posted Tipping Fee Rate. The twelve-month period of October through September will be used as the one-year period for calculating changes in the CPI-U. If, durin~ the term of this Contract, a regulatory change-in-law beyond the control of the Agency causes the cost of landfill operations to increase, the Hauler agrees that the Agency may increase the Posted Tipping Fee Rate equal to the cost increase due to the regulatory change-in-law. However, any such cost increase that represents more than a 15 percent increase over the Posted Tipping Fee Kate shall be negotiated between the Agency and the Hauler. DISTRI]3LrrlON OF REBATE CREDIT The Agency shall hold the Hauler's rebate credit (without interest paid to the Hauler) for three months prior to beginning distribution on a three-month roiling basis. On the October invoice (issued in November), the Hauler shall receive credit for rebates earned in July and August. On the November invoice (issued in December), the Hauler shall receive credit for rebates earned in September, and so on. At the end of the term of this Contract, bi~t only so long as the Hauler continues to deliver similar quantities of waste to the Agency, Landfitl;..the Agency shall continue to credk the succeeding three Hauler's monthly invbiCes for each of the prior three months rebate credits as if the Contract was still in effect. ARTICLE VH -ACCESS AND AVAILABBL1TY The Agency may not terminate, suspend, or curtail services provided to the Hauler required by this Contract to use the Agency Landfill without the consent of the Hauler or if the Hauler is in defauk as defined in Article VIII.A. WAS\Yd..L'~ \K:\00D00S\Wast:eDeliveryCe nt:~act.do c\5000 -8- Model Contract ARTICLE VIII - DEFAULT AND REMEDrE,,q HAULER DEFAULT The following shall constitute defaults by the Hauler: 1. Failure to comply with all legally applicable laws, ordinances, rules and regulations relating to waste hauling, including each municipality=s sohd waste ordinances; 2. Failure to maintain insurance as required by this Contract; 3. Hauling Acceptable Waste from the Agency' s Service Area to a landfill or a site other than the Agency Landfill unless authorized in writing by the Agency to do so; 4. Delivering solid waste from outside of the Agency' s Service Area to the Agency Landfill without written authorization; 5. Failure to deliver at least 800 tons in a fiscal year; 6. Failure to make timely payment of tipping fees charged; 7. Failure to perform any of its material obligations under this Contract; Transfer of any interest under this Contract, whether by subcontract, assig-ament or novation, in violation of Article X.D; or 9. Failure to offer and maintain recycling services to its customers. AGENCY DEFAULT The following shall constitute a default by the Agency: Failure to perform any of its material ob!~gations under this Contract. REIV[EDIES :: ffthe Hauler is in default, and if the default continues for a period of thirty (30) days aiSer written notice from the Agency, at the election of the Agency, the Agency shall have the right, but shall not be obligated, to exercise any one or more of the following remedies: 1. Sue for specific performance. 2. Retain any rebate amounts remaining to be paid to the Hauler pursuant to this Contract. WAS~KLLt\K:\00D005\WasteDeliveryContraO:.doc\~000 -9- Model Contract 3. Sue and recover all rebates already paid to Hauler pursuant to this Contract. In the event the Hauler intentionally fails to deliver any Acceptable Waste to the Agency Landfill as required by Article V, the Agency' s remedy for damages incurred by the Agency shall be the sum of the Posted Tipping Fee Rate plus $3.00, multiplied by the tonnage of Acceptable Waste not delivered until the Hauler restores deliveries or to the end of the Contract term, whichever is shorter. The tonnage of Acceptable Waste not delivered shall be calculated by either one of the following: (i) by disposal records for the Hauler at other disposal or transfer facilities; or (ii) by a comparison between the amount of Acceptable Waste disposed of by Hauler at the Agency Landfill during the time in question and the amount of Acceptable Waste disposed of at the Agency Landfill by the Hauler during another comparable time period. Terminate this Contract according to Article X, Section J. No right or remedy conferred upon or reserved to the Agency by this Contract shall be exclusive of any other right or remedy; all rights and remedies conferred upon the Agency by this Contract or by law shall be cumulative in addition to every other right and remedy available to the Agency. No delay or omission to exercise any right or power accruing upon any Event of Default shall impair any such right or power or shall be construed to be a waiver of any such Event of Default. In the event either party should breach any term contained in this Contract and which is thereaf£er waived by the other party, such waiver shall be limited to the particular breach so waived and for the time and in the manner so specified. The waiver shall not be deemed to waive any other breach hereunder. In the event either pa.r~y ig required to engage counsel to enforce its rights under this Contract because of default by the other party pursuant to this contract, the prevailing'party shall be reimbursed reasonable attorney' s fees and litigation co~ts, including expert witness fees, regardless of whether the court action is commenced, together with any costs and expenses of said court action by the other party. WAS\KLLl\K:\00DOOS~Wasl:eDeliveryContract, doc\5000 -10- Model Contract .DISPUTES All disputes arising under this Contract shall be resolved through arbitration. Each party to this Contract may initiate arbitration by serving a written notice upon the adverse party stating as simply as possible the points of difference between the parties and stating an intent to initiate arbitration procedures. The notice shall be deemed initiation of such procedures. Within ten (10) days thereafter, the parties shall meet and select an arbitrator from a list of seven (7) arbitrators, obtained from the arbitration list maintained by the PER Board. The arbitration hearing shall be held within thirty (30) days of the selection of the arbitrator. The hearing shall be conducted informally, and the decision shall be reduced to writing and submitted in writing and the determination so made shall be binding upon the parties and shall form the basis for future guidance of all par~es on the issues so resolved. The costs of the arbitration hearing shall be shared equally between the parties. Each party shall pay for its own attorney fees and witness costs. ARTICLE IX - INDEMNEFICATION AND INSURANCE INDEMNIFICATION The Hauler shall indemnify, defend and save harmless the Agency, its member cities and its or their agents, elected officials and employees from all claims, damages, losses, liabilities, costs, expenses and lawsuits whatsoever arising out of the willful misconduct or any negligent act or omission on the part of the Hauler or its contractors, agents, servants or employees in the performance of or in relation to any of the work or services to be performed or furnished by the Hauler under the terms of this Contract. INSURANCE The Hauler shall procure and maintain in force at all times during the term of this Contract the insurance specified in Schedule A of this Contract. ARTICLE X - MISCELI,~fEOU,g AUDIT All books, records, documents and a~ounting procedures and practices of the Hauler relevant to this Contract shall be subject to examination by the Agency upon a one-day notice from the Agency. B. NOTICE All written notices required pursuant to this Contract shall be either hand delivered or mailed to the Hauler and the Agency at the following address or such other address as may be provided in writing to the other party from time to time: WAS\KLLl\K:\OODOOS\Wasl-~De~iveryContract.doc\5000 -1 I- Model Contract Agency: Hauler: Dubuque Metropolkan Area Solid Waste Agency Attn: Don Vogt 925 Kerper Boulevard Dubuque, Iowa 52001 City of Dubuque, Iowa Attn: Michael C. Van Milligen City Manager 50 West 13th Street Dubuque~ IA 52001 C. RELATIONSHI/~ OF THE PARTHES For the purposes of thi~ Contract, the Hauler shall be deemed to be an independent Contractor and not an employee of the Agency. The HaUler shall maintain, at its own expense, all equipment and personnel necessary to fulfdl its obligations, under thi~ Contract. D. ASSIGNMENT The Hauler shall not transfer or assign all or any part of this Contract without the prior written consent of the Agency. No such assignment shall be effective un/ess and until the assignee consents to be bound by the terms of this Contract. E. SURVIVAL OF REPRESENTATIONS AND WARkANTIES The representations, warranties, covenants and agreements of the parties under this Contract, and the remedies of either party for the breach of such representations, warranties, covenants, and agreement by the other party shall survive the execution and term of this Contract. EQUAL E1V[PLOY1V[ENT OPPOKTI~TY The Hauler agrees to comply with~all Federal, State, and local laws, resolutions, ordinances, rules, regulations and executive orders pertaining to unlawful discrimination on account of race, color, creed, national origin, sex, marital status, status with regard to public assistance, membership on a local human rights Commission, disability, sexual orientation or age. G. ENTIRE AGREEMENT AND WAIVER The Contract shall constitute the entire agreement between the parties and shall supersede all prior oral and written negotiations. No waiver of any provisions of this Contract shall be deemed or shall constitute a waiver of any other provisions hereof, whether or not similar, nor shall such waiver constitute a continuing waiver. WAS\KLLt\K:\O0D00b~Wast~eliveryContract, doc\5000 -12- l~lodel Contract: H. GOVERNING LAW This Contract shall be interpreted and construed according to the laws of the State of Iowa. I. ALTERATION CLAUSE Any alteration, modification or waiver of the provisions of the Contract shall be valid only after it has been reduced to writing and duly signed by all parties. TERMINATION In the event that the Hauler and the Agency mutually agree in writing to terminate this Contract, such termination shall take effect immediately upon execution of such agreement by both parties. Either party may terminate this Contract by reason of the default Of the other paxty after thirty (30) days written notice to the default'rog party describing such default. Provided, however, that this Contract shall not be terminated if the defaulting party cures the default wkhin thirty (30) days from the date of the mailing of the notice of default. The Agency may terminate this Contract for any reason, with or without cause, by providing ninety (90) days written notice to the Hauler. Notwithstanding such termination, however, rebate credits will continue according to Section Vt.D. K. EXECUTION OF CONTRACT This Contract shall become legally binding when signed by the Hauler and the Agency, and the Waste Delivery Contract between the parties dated the 8th day of Ju~_y, 1999 shall automatically terminate. UNFORESEEN CIRCUMSTANCES The inability of either party to perf%~ any obligation under this Contract due to an :l~nforeseen Circumstance shall not constitute a breach of any such obligation during the pendency of the Unforeseen Circumstance. "Unforeseen Circumstancer' means any act, event or condition that has had, or will have, a material adverse effect on the rights or obligations of the Hauler or the Agency under this Contract, if such act, event or condkion is beyond the reasonable control of the paxty relying thereon as justification for not performing an obligation or complying with any condition required of such party under this Contract. Such acts or events may include, but shall not be limited to, and are qualified by the following: An act of God (but not including reasonably anticipated weather conditions for the geographic area of the Facility) such as a landslide, lightning, tornado, flood, fire, explosion, sabotage or similar occurrence; acts of a public enemy, extortion, war, WAS~KLLl\K:\OOD00S\WasteDeliveryCont:tact.doc\S000 -13- NIodel Contract blockade or insurrection, riot or civil disturbance; The non-issuance, suspension, termination, interruption, denial or failure of renewal of any permit, license, consent, authorization or approval essential to the operation of the Agency Landfill, provided that such act or event shall not be the result of the willful or negligent action or inaction of the party relying thereon and that neither the contesting in good faith of any such order nor the reasonable failure to so contest shall be construed as a willful or negligent action or inaction of such party; A change in Iaw which prohibits or substantially prohibits the cost effective operation of the Agency Landfill as determined by the Agency in its sole discretion; The failure of any appropriate federal, state, county, or city public agency or private utility, having operational jurisdiction in the area in which the Agency Landfill is located, to provide and maintain utilities, services, water and sewer lines, and power transmission lines to the Agency Landfill site which are required for and essential to the operation of the Agency Landfill as determined by the Agency in its sole discretion; and The failure of any subcontractor or supplier to furnish labor, services, materials or equipment during the term of this Contract provided that such failure is caused by an Unforeseen Circumstance and materially adversely affects the Hauler=s ability to perform its obligations, and the Hauler is not able reasonably to obtain substitute labor, services, materials or equipment during the term of this Contract. Strikes by the Hauler=s employees, or subcontractors or failure of any supplier, uncontrolled by the Hauler, to furnish labor, services, materials or equipment during the term of this Contract due to strikes by their employees shall not constitute an Unforeseen Circumstance. M. SEVERABILITY In case any one or more of the provisions contained in this Contract shall for any reason be held invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Contract, and this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. WAS\KLL~.\K:\00D005\WasteD~iveryCont:racLdoc\5000 -I4- Model Contract WITNESS WHEREOF, the parties have caused this Contract to be executed as of the INkday of k.i10Ve.Ax e r , 20 i/ notwithstanding the date of the signature of the parties. DUBUQUE METROPOLITAN AREA SOLID WASTE AGENCY By ego( -- Its Ctkl- eitrsntik. Dated [-(3--a2-. CITY OF DUBUQUE, IOWA By Dated November 4, 2002 WAS \KLL1\K:\00D005\WasteDeliveryContract.doc\5000 -15- Model Contract