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.
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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:
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'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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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:
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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.
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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,
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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.
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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:
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Schedule A
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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.
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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:
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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.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:
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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.
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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,
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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.
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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
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