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DMASWA - Waste Delivery Contract CITY OF DUBUQUE, IOWA MEMORANDUM June 17, 1999 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Waste Delivery Contract Operations and Maintenance Department Manager Don Vogt is recommending execution of a contract with the Dubuque Metropolitan Area Solid Waste Agency that will guarantee the City collected waste stream to the landfill through June 30, 2004 and commits the City to providing recycling services to customers. In return the City will receive a $3.00 per ton rebate from the Agency's posted rate. I concur with the recommendation and respectfully request Mayor and City Council approval. MCVM/j Attachment cc: Barry Lindahl, Corporation Counsel Tim Moerman, Assistant City Manager Don Vogt, Operations and Maintenance Department Manager ~ ". '0:-' CITY OF DUBUQUE, IOWA MEMORANDUM June 16, 1999 TO: Michael C. Van Milligen, City Manager FROM: Don Vogt, Operations and Maintenance Manager~\...../ ~ SUBJECT: Waste Delivery Contract Introduction The purpose of this memorandum is to request endorsement of the waste delivery contract tendered by the Dubuque Metropolitan Area Solid Waste Agency. Discussion At its May meeting, the Agency voted unanimously to tender a contractual relationship to the City of Dubuque. In return for the guarantees that all municipal solid waste (MSW) collected by City of Dubuque employees will be brought to the Agency's landfill facility and that recycling services will be provided and/or maintained, the City of Dubuque will be eligible for a $3 per ton rebate from the Agency's current $28 per ton fee - effective July 1, 1999. Accompanying this letter are two contract copies. If this agreement proves desirable, please endorse both and return to me. Action Step Your consideration and action as outlined above are requested. DJV:vle Enclosures WASTE DELIVERY CONTRACT This Waste Delivery Contract ("the Contract") is made by and between Dubuque Metropolitan Area Solid Waste Agency ("the Agency") and City of Dubuque. Iowa (legal name) 50 West 13th Street. Dubuq.ue. Iowa 52001 (address) WHEREAS, pursuant to Iowa Code Chapter 4558 and Chapter 2gE, 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 environmentally sound landfill known as the Dubuque Metropolitan Area Sanitary Landfill (Agency Landfill); and WHEREAS, 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 WHEREAS, the Hauler has delivered at least 1,000 tons to the Agency Landfill during the Agency's previous fiscal year; and WHEREAS, the Hauler desires to deliver solid waste to the Agency Landfill and receive a rebate offthe Posted Tipping Fee Rate; and WHEREAS, the Agency desires to receive all the Acceptable Waste collected by the Hauler in the Agency's Service Area within the State ofIowa; and WHEREAS, the Agency desires to increase the diversion of Recyclables from 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 ofIowa to the Agency Landfill subject to the terms and conditions set out below. NOW THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, the parties hereto agree as follows: ARTICLE I - TERM This Contract shall commence on July I, 1999 (or the date of execution by both parties, if later), and continue through June 30, 2004, unless earlier terminated pursuant to this Contract. This Contract may be extended by the parties upon mutually agreeable terms. 1 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. CommerciaIlIndustrial 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 from construction or demolition of structures. E. Hazardous Waste is as defined in Chapter 455B.4II(3)(a)(b). F. Holidays at the Agency Landfill are New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. G. Out-oC-State Waste is any Acceptable Waste that originates from a location outside of the Agency's Service Area within the State ofIowa. H. RecycIables are discarded materials that have value as secondary materials for processing into new products. I. Residential Waste is solid waste collected from 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: Asbury Balltown Bankston Bernard Cascade Centralia Dubuque Durango Dyersville Epworth Farley Graf Holy Cross Luxenburg New Vienna Peosta Rickardsville Sageville Sherrill Worthington Zwingle Rural Dubuque County 2 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. K. 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 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 ofIowa. 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 conditions. 3. The execution of this Contract does not conflict with any other agreement, indenture or any other instrument to which the Hauler is a party. 4. The Hauler plans to maintain the capability of delivering at least 1,000 tons (approximately 80 tons per month) to the Agency Landfill each fiscal year (July I to June 30). 5. The Hauler plans to maintain or increase its current Recyclables collection and/or drop-off services for its customers. B. AGENCY REPRESENTATIONS 1. The execution of the Contract does not conflict with any other agreement, indenture or any other instrument to which the Agency is a party. 2. The Agency plans to maintain the necessary capacity needed to accommodate the Hauler. 3 ARTICLE IV - COMPLIANCE WITH REGULATORY REOUIREMENTS A. The Hauler shall at all times operate its business of collecting and transporting solid waste in compliance with all applicable local, state, and federal laws, rules, regulations and ordinances. B. The Hauler shall obtain and maintain all necessary licenses, permits and other authorizations required by each mWlicipality and any other governmental agency having jurisdiction over its activities. C. The Hauler shall comply with the requirements of the State ofIowa regarding solid waste and Comprehensive Planning Areas, specifically that no waste will be brought by the Hauler to the Agency Landfill from another Iowa Comprehensive Planning Area. ARTICLE V - OPERATIONS A. DELIVERY OF ACCEPTABLE WASTE I. 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's Landfill. The Hauler further agrees that it will not deliver Acceptable Waste generated in the Agency Service Area within the State ofIowa to any other destination Wlless directed in writing by the Agency to do so. 2. The Hauler agrees not to deliver any Hazardous Waste to the Agency Landfill. 3. 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. 4. 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. 5. 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. 4 6. Depending on the location ofthe 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 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 (DNR). If and when the DNR approves the Comprehensive Plan modification, the Agency shall notifY the Hauler in writing that the Agency shall 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. b. 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 Daviess. c. 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 the waste from outside the Agency Service Area only after receiving written permission from the Agency. e. 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: 5 . 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). f. Hauler acknowledges that the Agency may conduct spot checks 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 .A6(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. B. REJECTION OF DELIVERIES AND RESPONSIBILITIES FOR HAZARDOUS WASTE A delivery of waste may be rejected at the Agency Landfill under one or more of the following circumstances: I. The Hauler may be denied entrance if waste is delivered at hours other than those specified herein. 2. The Hauler may be denied entrance if it does not keep its account satisfactorily within the Agency's credit policies. 3. 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. 6 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 Hauler's claim shall be resolved by mutual decision of one representative of the Hauler and one representative of the Agency. C. GENERAL DELIVERY REOUIREMENTS I. 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 Board of Directors. 4. 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 A. POSTED TIPPING FEE RATES From July I, 1999 to June 30, 2000, the Posted Tipping Fee Rate shall be $28 per ton. B. REBATES The Hauler shall receive credit for a rebate of $3 per ton offthe Posted Tipping Fee Rate for each ton of Acceptable Waste delivered to the Agency Landfill. During the term of this Contract, in the event the Agency provides a more favorable rebate to another hauler, that rebate shall also be provided to the Hauler. The Hauler shall begin earning the rebate credit effective July I, 1999. 7 C. CHANGES IN POSTED TIPPING FEE RATES Beginning July I, 2000, and each July I thereafter, the Agency reserves the right to raise the Posted Tipping Fee Rate listed in VLA above by an amount not-to-exceed the Consumer Price Index for all urban consumers (CPI-U): U.S. city average. 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 $3 rebate per ton off the revised Posted Tipping Fee Rate. 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-Iaw. 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. D. DISTRIBUTION OF REBATE CREDIT The Agency shall hold Hauler's rebate credit (without interest paid to 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 the Contract, but only as 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 invoice for each ofthe prior three months rebate credits as if the Contract was still in effect. ARTICLE VII - ACCESS AND AVAILABILITY The Agency may not arbitrarily 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 VIlLA. ARTICLE VIII - DEFAULT AND REMEDIES A. HAULER DEFAULT The following shall constitute defaults by the Hauler: I. Failure to comply with all legally applicable laws, ordinances, rules and regulations relating to waste hauling, including each municipality's solid waste ordinances; 8 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 1,000 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 recycling services to its customers. B. AGENCY DEFAULT The following shall constitute a default by the Agency: Failure to perform any of its material obligations under this Contract. C. 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 anyone or more of the following remedies: 1. Retain any rebate amounts remaining to be paid to the Hauler pursuant to this Contract. 2. Sue and recover all rebates already paid to Hauler pursuant to this Contract. 9 3. 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 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. 4. Terminate the contract according to Article X, Section J. 5. 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 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. D. 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( s) 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 a basis for future guidance of all parties on the issues so resolved. The cost of the arbitration hearing shall be shared equally between the parties. Each party shall pay for its own attorney fees and witness costs. 10 ARTICLE IX - INDEMNIFICATION AND INSURANCE A. INDEMNIFICATION The Hauler shall indemnifY, defend and save harmless the Agency, its member cities or 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 of 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 obtain and keep in force at all times during this Contract, insurance as follows: 1. Any policy of insurance or certificate of insurance required hereunder shall be with a carrier authorized to do business in Iowa and a carrier that has received a rating of A or better in the current Best's Rating Guide. 2. Any policy of insurance required hereunder shall provide for a thirty (30) day notice to the Agency of any material change or cancellation of the policy prior to its expiration date. 3. The Hauler shall have its insurance agency or company certifY in writing that any policy of insurance required herein with an aggregate limit of liability has not been reduced by paid or reserved claims at the time of issuance of policy or certificate. 4. The Hauler shall furnish copies of the following policies to the Agency, with limits not less than the following, or greater if required by law, and shall also furnish certificates of insurance from all independent contractors or subcontractors hired by the Hauler or any independent subcontractor, which certificates shall provide evidence of coverage for the following with limits not less than the following, or greater if required by law: Commercial General Liability General Aggregate Limit Products-Completed Operation Aggregate Limit Personal and Advertising Injury Limit Each Occurrence Limit Fire Damage Limit (anyone occurrence) Medical Payments $2,000,000 $1,000,000 $1,000,000 $1,000,000 $ 50,000 $ 5,000 11 OR Combined Single Limit Medical Payments $2,000,000 $ 5,000 Coverage is to include: occurrence form, premises/operations/products/completed operations coverage, independent contractors' coverage, contractual liability , broad form property damage, personal injury, Dubuque Metropolitan Area Solid Waste Agency named as an additional insured with thirty (30) days written notice of change or cancellation. ARTICLE X - MISCELLANEOUS A. 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: Agency: Hauler: C. RELATIONSHIP OF THE PARTIES For the purpose 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, all equipment and personnel necessary to fulfill its obligations under this Contract. 12 D. ASSIGNMENT Nothing herein shall limit the Hauler's ability to transfer or assign all or a portion of its hauling business, but upon such transfer or assignment, the assignee/transferee shall be bound by the covenants herein, but no such assignment shall be permissible unless 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 laws, resolutions, ordinances, rules, regulations and executive orders pertaining to unlawful discrimination on account ofrace, 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 The Contract shall constitute the entire agreement between the parties and shall supersede all prior oral and written negotiations. H. GOVERNING LAW The Contract shall be interpreted and construed according to the laws of the State ofIowa. I. ALTERATION CLAUSE Any alteration, modification or waiver of the provisions ofthe Contract shall be valid only after it has been reduced to writing and duly signed by all parties. J. TERMINATION I. In the event that the Hauler and the Agency mutually agree in writing to terminate this Contract, such termination shall take effect immediately. 13 ~', . ".. 2. Either party may terminate by reason of the default of the other party following thirty (30) days written notice to the defaulting party. Provided, however, that this Contract shall not be terminated if the defaulting party immediately takes reasonable steps to cure the default and in fact cures the default within a reasonable time not more than thirty (30) days from the mailing of the notice of default. K. EXECUTION OF CONTRACT This Contract shall become legally binding when signed by the Hauler and the Agency. IN WITNESS WHEREOF, the parties have caused this Contract to be executed as of the _ day of , 19_, notwithstanding the date of the signature ofthe parties. DUBUQUE METROPOLITAN AREA SOLID WASTE AGENCY CITY OF DUBUQUE, IOWA Byt?~f~~o~"6' By Date (-B-99 Date t-~ ~'-?r Attest: Dated: ffia;d,~ 14