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DMASWA Waste Delivery ContractTHE CITY OF DUB E Masterpiece on the Mississippi MEMORANDUM C'7 ° ©`C z~~.• May 15, 2007 ~ C:~ ~ `~ c ~~ ~~ Q, c~ cn c~ ~„ _ ~ TO: The Honorable Mayor and City Council Members 3' ~ c O ~ w FROM: Michael C. Van Milligen, City Manager SUBJECT: New DMASWA Waste Delivery Contract The City of Dubuque's current waste delivery contract with the Dubuque Metropolitan Area Solid Waste Agency expires in 2008. Public Works Director Don Vogt is recommending approval of a new contract which would expire June 30, 2012. As in the previous contract, a new contract offers a landfill rebate of $6.73 per ton. This equals a savings of 30¢ per Dubuque residential customer per month. concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Don Vogt, Public Works Director THE CITY OF DuB E MEMORANDUM ~-~~ April 27, 2007 TO: Michael C. Van Milligen, City Manager ~ FROM: Don Vogt, Public Works Director~~vj SUBJECT: New DMASWA Waste Delivery Cont%%ract INTRODUCTION The purposes of this memorandum are to provide information and recommend that the City Council approve the attached waste delivery contract tendered by the Dubuque Metropolitan Area Solid Waste Agency (DMASWA). BACKGROUND For the last ten years, the DMASWA has offered each of its major customers a landfill fee price discount in return for the customer guaranteeing delivery of all the solid waste it collects in the Agency's service area. The City of Dubuque and the Agency's other major customers are now being offered athird-generation contract, due to the scheduled expiration of the current contract in 2008. DISCUSSION The new contract, as in the case of its predecessor, offers a landfill fee rebate of $6.73 per ton. This equals a savings of thirty (30) cents per Dubuque residential customer per month. The contract would extend the terms Dubuque currently enjoys through June 30, 2012. As part-time legal counsel to the Agency, City Attorney Barry Lindahl has already reviewed and approved the contract. RECOMMENDATION I recommend that the Dubuque Metropolitan Area Solid Waste Agency's waste delivery contract be submitted to the City Council for its consideration and approval. BUDGET IMPACT Given the City Council's unanimous approval of the two previous waste delivery contracts with the Agency, staff took the liberty of anticipating approval of the new agreement while preparing its FY08 operating budget recommendations. As a result, continuation of the tonnage fee rebate was anticipated and incorporated into the recommended FY08 monthly solid waste collection fee of $9.91. ACTION STEP I recommend that the City Council approve the new waste delivery agreement with the Dubuque Metropolitan Area Solid Waste Agency and authorize the Mayor's endorsement of the two attached contract copies. CC: Barry A. Lindahl, City Attorney Attachments 7 WASTE DELIVERY CONTRACT BETWEEN THE DUBUQUE METROPOLITAN SOLID WASTE AGENCY AND THE CITY OF DUBUQUE, IOWA This Waste Delivery Contract (the Contract), dated for reference purposes the d2~ day of , 20~, is made and entered into by and between the Dubuque Metropolitan re Solid Waste Agency (the Agency) and the City of Dubuque, Iowa ("the Hauler"). WHEREAS, pursuant to Iowa Code Chapters 4556 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 environmentally sound landfill known as the Dubuque Metropolitan Area Sanitary Landfill (the 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 800 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 off the 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 of Iowa; and WHEREAS, the Agency desires to significantly increase the diversion of Recyclables from the solid waste stream delivered to the Agency Landfill and maintain/achieve the state mandated 25 percent diversion of solid waste; 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, THEREFORE, in consideration of the promises and mutual agreements hereinafter set forth, the parties hereto agree as follows: SECTION 1. TERM This Contract shall commence on July 1, 2007 (or the date of execution by both parties, if later), and continue through June 30, 2012, unless earlier terminated pursuant to the terms of this Contract. Upon written notice to the Hauler of not less than 90 days, this Contract may be extended for two additional one-year periods at the sole discretion of the Agency. This Contract may also be extended by written agreement of the parties executed in the same manner as this Contract. SECTION 2. DEFINITIONS 2.1 Acceptable Recyclable Materials. Recyclables collected from curbside recycling programs generated by residences, small business and institutions, from public drop- offs, or from business recycling containers, that are uncontaminated materials including newspaper; glossy paper; corrugated cardboard; residential mixed paper; clear, green and brown glass food and beverage containers; aluminum, steel and tin food and beverage containers; #1 PET and #2 HDPE plastic containers; and other materials as mutually agreed upon in writing by the Agency and the Hauler. 2.2 Acceptable Waste. 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. 2.3 Agency Landfill. The sanitary landfill owned and operated by the Agency located at U.S. Highway 20 West. 2.4 Commercial/Industrial Waste. Solid waste collected from places of business, industries, institutions, and multi-family residences. 2.5 Construction and Demolition (C&D) Waste. Waste building materials, including wood, metals, and rubble which result from construction or demolition of structures. 2.6 Hazardous Waste. The same meaning as in Iowa Code § 455B.411(3)(a)(b). 2.7 Holidays. New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day, and Christmas Day. 2.8 Out-of-State Waste. Acceptable Waste that originates from a location outside of the Agency's Service Area within the State of Iowa. 2.9 Recyclables. Materials that have value as secondary materials for processing into new products that have been separated by the generator from mixed municipal solid waste for the purpose of recycling. These materials include paper, glass, plastics, and metals. 2.10 Residential Waste. Solid waste collected from residences as defined by each community's ordinance. 2 2.11 Service Area. (also known as the Agency Comprehensive Planning Area). All the properties located within the corporate limits of the following communities: Asbury Dyersville New Vienna Balltown Earlville Peosta Bankston Edgewood Rickardsville Bernard Epworth Rural Delaware County Cascade Farley Rural Dubuque County Centralia Graf Ryan Colesburg Greeley Sageville Delaware Holy Cross Sherrill Delhi Hopkinton Strawberry Point Dubuque Luxemburg Worthington Dundee Manchester Zwingle Durango Masonville Any areas annexed by these communities shall be included in Service Area. Any communities added to the Agency's Comprehensive Planning Area by mutual agreement of the Agency and the added communities, shall also be included in the Service Area. Nothing in this Contract provides the Hauler with the exclusive right to solid waste collection within the Service Area. 2.12 Special Waste. 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. SECTION 3. REPRESENTATIONS 3.1 Hauler Representations (1) The Hauler is a corporation duly organized, validly existing and properly qualified to do business under the laws of the state 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 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 800 tons to the Agency Landfill each fiscal year (July 1 to June 30) during the term of the Contract. 3 (5) The Hauler plans to maintain or increase its current Recyclables and/or drop-off services 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. 3.2 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. SECTION 4. COMPLIANCE WITH REGULATORY REQUIREMENTS 4.1 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. 4.2 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. 4.3 The Hauler shall comply with the requirements of the state of Iowa regarding solid waste and Comprehensive Planning Areas, including specifically that no waste will be brought by the Hauler to the Agency Landfill from another Iowa Comprehensive Planning Area. SECTION 5. OPERATIONS 5.1 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's 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 delivery 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 apparent recyclable materials which, due to contamination, damage, or disposal as low-percentage recycling sort line residuals, are not Acceptable Recyclable Materials. 4 (4) The Hauler will report to the Agency the quantity and type of residential or Commercial/Industrial Recyclables collected within the Agency's Service Area as well as the name and location of the processing facility receiving such Acceptable Recyclables. The Hauler will report the information quarterly on forms provided by the Agency. (5) 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. (6) 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. (7) 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, the 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 beginning of the Term of the Contract 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. Upon receipt of such information by the Agency, 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 will accept the waste. Initial and continued acceptance of this waste by the Agency shall be subject to the following: i. The Agency shall consider requests by the Hauler to deliver wastes from the Hauler's customers located in Illinois but only from customers located in the county of Jo Daviess. 5 The Agency shall consider requests by the Hauler to deliver wastes from the Hauler's customers located in Wisconsin but only from customers located in the county of Grant. iii. The Hauler may begin delivery of the waste from outside the Agency Service Area only after receiving written permission from the Agency. iv. The Hauler shall provide monthly reports to the Agency of Out-of-State Waste delivered to the Agency Landfill. The report shall list the da#e 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: a. The number of residential, commercial, and industrial waste accounts by county of origin at that time; b. The average weights of residential, commercial and industrial accounts per week, and C&D wastes per roll-off delivery; and c. The 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). v. The Hauler acknowledges that the Agency may conduct spot checks of loads delivered by the 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 the 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. vi. 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. 5.2 Resection Of Deliveries And Responsibilities For Hazardous Waste 6 (1) 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. ii. The Hauler may be denied entrance if it does not keep its account satisfactorily within the Agency's credit policies. iii. 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. (2) 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. 5.3 General Delivery Requirements (1) 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 practicable. (5) Delivery hours for any particular day (such as the day before Holidays or other special events) may be modified upon athree-work-day written notice to the Hauler. 7 SECTION 6. TIPPING FEE AND CREDIT 6.1 Posted Tipping Fee. The Posted Tipping Fee for the Agency Fiscal Year ending June 30, 2007 is $32.23 per ton. Beginning July 1, 2007 and during the Term of this Contract, the Posted Tipping Fee shall be subject to change as provided in Article VI. C. of this Contract. 6.2 Credits. The Hauler shall be entitled to a credit of $6.73 per ton against the Posted Tipping Fee 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 credit to another hauler, that credit shall also be provided to the Hauler. 6.3 Changes In Posted Tipping Fee Rates. The Agency reserves the right to increase the Posted Tipping Fee effective July 1 of each year of this Agreement as follows: (1) If the Consumer Price Index for all urban consumers (CPI-U): U.S. city average increases by 3.25 percent or less as compared to the preceding year, the Agency may increase the Posted Tipping Fee by an amount not to exceed $1.00 per ton. (2) If the Consumer Price Index for all urban consumers (CPI-U): U.S. city average increases by more than 3.25 percent as compared to the preceding year, the Agency reserves the right to increase the Posted Tipping Fee by an amount not to exceed the percentage increase in the CPI-U as compared to the preceding year. (3) Notwithstanding any increase in the Posted Tipping Fee, the Hauler shall continue to receive the $6.73 credit per ton against the Posted Tipping Fee . (4) The twelve-month period from October through September of the preceding year shall be used as the one-year period for calculating changes in the CPI-U. (5) If, during the Term of this Contract, in the judgment of the Agency a regulatory change 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 determined by the Agency due to the regulatory change. However, any such cost increase which is greater than a 15 percent increase in the Posted Tipping Fee Rate shall require the mutual agreement of the Agency and the Hauler. If during the Term of this Contract, the per ton Solid Waste Fee paid by the Agency to the Iowa Department of Natural Resources increases or decreases, the Posted Tipping Fee shall be increased or decreased accordingly. 8 6.4 Posting Of Credit (1) The Credit will be posted to the Hauler's invoice with a 3 month lag (e.g., the Credit earned in month one will be posted on the Hauler invoice issued in month four, and so on). The Hauler shall be credited without interest for the previous three-month period. (2) Upon termination at the end of the term of the Contract, the Hauler shall be entitled to the three remaining months of credit as long as the Hauler continues to deliver quantities of waste to the Agency Landfill during each of the next three months greater than or equal to the quantities delivered to the Agency Landfill during the preceding three months. SECTION 7 ACCESS AND AVAILABILITY The Agency shall not terminate, suspend, or modify any services required by this Contract to be provided to the Hauler .without the consent of the Hauler or unless the Hauler is in default as defined in Article VIII.A. SECTION 8 DEFAULT AND REMEDIES 8.1 Hauler Default. The following shall constitute an Event of Default by the Hauler: (1) Failure to comply with all legally applicable laws, ordinances, rules and regulations relating to waste hauling, including the solid waste ordinances of each municipality in the Service Area; (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 from the Agency; (5) Failure to deliver at least 800 tons of solid waste to the Agency Landfill 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; 9 (8) Transfer of any interest under this Contract, whether by subcontract, assignment or novation, in violation of Section 10.4; or (9) Failure to offer and maintain recycling services to its customers. 8.2 Agency Default. Failure to perform any of its material obligations under this Contract. 8.3 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) Bring an action for specific performance. (2) Retain any rebate amounts remaining to be paid to the Hauler pursuant to this Contract. (3) Bring an action to recover all rebates paid to Hauler pursuant to this Contract. (4) 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 Undelivered Acceptable Waste until the Hauler restores deliveries or to the end of the Contract term, whichever first occurs. The tonnage of Undelivered Acceptable Waste shall be calculated by the Agency at its option as follows: (i) the amount of Disposable Waste disposed of by the Hauler at other disposal or transfer facilities during the period in question; or (ii) by a comparison between the amount of Acceptable Waste disposed of by the Hauler at the Agency Landfill during the period in question and the amount of Acceptable Waste disposed of at the Agency Landfill by the Hauler during any other comparable time period. (5) Terminate the contract according to Section 10.10. 8.4 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. 8.5 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. 10 8.6 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. 8.7 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 other party stating the points of difference between the parties and stating an intent to initiate arbitration procedures. The notice shall be deemed the 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 the parties on of the issues so resolved. The costs of the arbitration hearing shall be shared equally by the parties. Each party shall pay its own attorney fees and witness costs. SECTION 9. INDEMNIFICATION AND INSURANCE 9.1 Indemnification. The Hauler shall indemnify, defend and save harmless the Agency, the city of Dubuque, and the county of Dubuque, and their officers, 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. 9.2 Insurance. The Hauler shall obtain and keep in force at all times during this Contract, the insurance specified in the Insurance Schedule attached to this Contract. SECTION 10. MISCELLANEOUS 10.1 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 one-day's written notice from the Agency. 10.2 Notice. All written notices required pursuant to this Contract shall be either hand delivered or mailed to the Hauler and the Agency by regular mail at the following address or such other address as may be provided in writing to the other party from time to time: 11 If to Agency: Dubuque Metropolitan Area Solid Waste Agency Solid Waste Agency Administrator 925 Kerper Court Dubuque, Iowa 52001 With copy to: City of Dubuque Public Works Director 925 Kerper Court Dubuque, IA 52001 If to Hauler: City of Dubuque City Manager Michael C. Van Milligen 50 West 13th Street Dubuque, Iowa 52001 10.3 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, all equipment and personnel necessary to fulfill its obligations under this Contract. 10.4 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 the assignee consents to be bound by the terms of this Contract and the Agency approves the form of the assignment. 10.5 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 agreements by the other party shall survive the execution and term of this Contract. 10.6 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 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. 10.7 Entire Agreement And Waiver. This 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 12 constitute a waiver of any other provisions hereof, whether or not similar, nor shall such waiver constitute a continuing waiver. 10.8 Governing Law. The Contract shall be interpreted and construed according to the laws of the state of Iowa. 10.9 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 both parties. 10.10 Termination (1) In the event that the Hauler and the Agency mutually agree in writing to terminate this Contract, such termination shall take effect as agreed by the parties. (2) Either party may terminate this Contract 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. (3) 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, rebates shall continue according to Section VI.D 10.11 Unforeseen Circumstances. The inability of either party to perform any obligation under this Contract due to an Unforeseen 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: (1) An act of God (but not including reasonably anticipated weather conditions for the geographic area of the Agency Landfill) such as a landslide, lightning, tornado, flood, fire, explosion, sabotage or similar occurrence; acts of a public enemy, extortion, war, blockade or insurrection, riot or civil disturbance; (2) The non-issuance, suspension, termination, interruption, denial or failure 13 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; (3) 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; (4) 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 (5) 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, of 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. 10.12 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. DUBUQUE METROPOLITAN AREA SOLID WASTE AGENCY By -~- Its ~ ~ J~~ /~ ~-! ~'''/ Date ~~/?~fj ~ THE CITY OF DUBUQUE, IOWA By Date play 2 ~ 2007 14 DATE {MM/DDfYYYY'I ~. A~.~~flu CERTIFfCATE f>F LIABILITY INSURANCE o2~24~200~ PRODUCER (563) 55b-0272 FAX (5b3) 55b-4425 THIS GERTIFIGATE 151S5UED AS A MATTER OF INFORMATION INSURANCE AGENCY ONLY AND CONFERS NO RIGHTS UPON THE CERT[FIGATE STREET ADDRESS HOLDER. TFiiS CERTiFiCATE DOES NC}T AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES t3EL01N. CITY, STATE, ZIP CODE 1NSUR>=RS AFFORDING OOVERAGE NAiC # INSURED C -------- ort~any IusuRER A Ins~rante COmpany Street Address INSURER ~. ~ ty , Late , Zip Code INSURED (, . -_ WSURER D _. r.. _.______ _" "_ ~~~ ~. ~ _ INSURER E t._._,.._.___.__.._._..__._.._._. COVERAGES t HE POUCIEb OF iNSURF,Ni:.E LISTED BELOW t•IAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR. THE POLICY fiERIC)L7 WDICATED NOTWIThSTANDIN~ ANY REQUIREMENT. TERM OR COND1710N OF ANY CONTRACT OR 07'}1ER DOCUMENT Wfili RESPECT TO WHICH THIS CERTIF]CATE MAY BE ISSUED OR MAY PERTAIN. ThiE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN 1S SUBJECT TO ALL THE TERf'AS, F,(C1.UStONS AND GOND17tON5 (:JF SUCH POliC1E5. AGGREGATE LJMITS SHOWN MAY HAVE BEEN REDUCED $Y PAID C:!_AlMS 1N8R 0'4 TYPE OF INSURANCE POLICY NUMBER POLICY EFFECTIVE POLICY EXPiRAT10N LIMITS GENERAL LIABILITY " ' EACH OCCURRENCE 5 '~ ~ (~(~ / 000 X ! . OMPo!t:HCI:.L GENEf{U i-L i1ABILClY DAMACi~ T() RF~lTt=D RElAIS1:S ,F:n 2-.•,r r~~ra= " 5U, 000 (:L.AiMS PdA1JE + J~ I o<:Ci1R ~ . ~_ . _, 1 ~ , MED ExP tAny'me r~era«,} s 5 ,OLIO A X ; _._.._____.._. .._....._{ PERSONAL. Y. ADV INJURY 5 2 000 Ot}0 t II ~ __.. ... / _~ i~ ' ~ GFNERAi. AGGREGATE 6 2 , f3QO , OOO ''i 1 L AvGREGATE~IM~ APPLIF4 PER. PRODUCTS - ("U#AP/OP AGG 5 1 , (}(3©T OLIO POLICY X dECT i.OC AUT Obt081fJ_ 1.IA81L1TY ,~~^^+~ ' ' ' X ~~~u ~ ~ ~~ ~~~ ~ r? A ~ COMBINED StNGLi-: UMfT $ . ANY A(ITO y (E8 At~34ertl} (}(}O 1 , T T ~O --- ALL OWNE6AUTOS -~ ~~ AODiI_Y INJUtiY ~ A x SCHEUULEUAUTOS ~ - iPerpe,^snn) ' HIRED fdlT(iS ~r p ~,yry ~ v ~ _._._.___.____.___.__ ~~` ~ I • ~^' '' 80D3LY INJURY S M6N~WP~C A~JTt~S ~~ (Pqr :.u~w~v+f} ~!._ . --- - ______....~_ i ~ PROP ]AZT!' pAMAOE 3 {Par ac~:,derttj GARAGE tJABILITY ~ j 1 AUTD ON!_Y - EA Ai:CIS;~~1T 5 ANY AUTO OTtiET2 THAN EA ACC _ ~ $ 4 __.__._.._ AUTO ONLY- AGG ..._____.__. $ I ?. ; EXCESSlUMBRELLA LWBfUTY ~ . f.ACN OCCURRENCE $ ' l l ` . ~ f1(:CUR i f Ci.AIMLS hS.ADF J ~J ~ AG~Ir~GAe>_ ___ _._ ...~~~~'"". DLUU;;7IBLE I ; _~ $ RETENTi(7e`J $ $ WORKERS COMPENSATION AHD X WC STA7U- 077ti- - -""' EMPLOYERS' LtA81UTY , SS2RY_LIM[S.S..,._..__ _„FJ3._. ANY Pr'20PRlETOR/P/IRTNERIF3(ECUT{VL- F ' ' E.L EACH ACCIDY.kT $ ZOU , 0O ~ICE~ nE~-Af3~E~R .E I IO XCLUDED ? ~ l:,L. DtSEAut - EA C:MPLOYE 3 j~ ~ O { SPECiAi. PROVISIONS lxikatY ! _" ~ F3_ UISFA,SE - PDI.ICY I_IM1T E ~(}() QO OTHER I I ( ~ i a i ~ ----- .-.---. _.. --- ... -....,..-....-..,, ..w...rvr.o ~ rcnn.~o ~ cn~..wwvrya AUVCV tlT t1YUUli~tM tN 1 /.if'ES:IAL PROVISIONS THE DMASWA IS AN ADDITIONAL INSURED ON GENERAL LIABILITY PflLICIE5 INCL. ONGOING & COMPLETED }PERATIOivS COVERAGE EQUIVILANT TO ISO CG 2010 0704 & CG 2037 0704. GENERAL LIABILITY POLICY IS PRIMARY 4 NON-CONTRIBUTING. FORM CG 2503 0397 "DESIGNATED PR©?ECTS" GENERAL LIABILITY AGGREGATE LIMIT SHALL BE [NCL. GOVERNMENTAL IMMUNITIES ENDORSEMENT IS INCL. WAVER OF SUBROGATION IN FAVOR OF DMASWA ON rflRKERS COMPENSATION. ALL POLICIES SHALL BE ENDORSED TO PROVIDE 30 DAYS pt3VANCE NOTICE OF CANCELLATION. SHOULD ANY Uf THE ABOVE DESCRIBED POLICIES fiE CANCELLED BEFORE THE Dubuque Metropolitan Area Solid Waste Agency EXpIRATbNOATETHFJi£OF,THEISSL11NGiN5URERWILLXt~XVf;~ii7bMa1. 925 Kerper Court 3O DAYS WRITTEN NOTICE TO THE CERTiFlCATE HOLDER NAMED TO TFiE LEFT. Dubuque, IA 52001 ~xiX?t-G3F]cif)(dC3Sitilfdh~J~b1(IXtl~Xltii(I~CJE~CXX ~Xr~E'iGX]~i~(~3f~(d~i~)flEXD!#+K'lC3fi( XXXXXXXX AU7HORRED REPRESENTATriJE .4CORD 2S t200'f/0$i C~~RCORD CORPORATION '19RR IMPt3R7ANT If the certificate holder is an ADDlTIC}NAL INSURED, the poiicy(es) must be endorsed. A statement on this certificate doss not confer rights to the certificate holder in lieu of such endorsement{s). If SUBROGATIQN !S WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement. A statement on this rertifi+cate does not confer rights to tfie cerf~cate holder in lieu of such endorsement(s). ~iscu~+,~n~~~R The Certificate of Insurance on the reverse side of this form does not constitute a contract between the issuing insurer(s), authorized representative or producer, and the certificate hoiden, nor does it affirmatively ar negatively amend, extend or af#er the coverage afforded by the paiiaes listed thereon. SPECIMEN '08i POLICY NUMBER: COMMERCIAL GENERAL LIABI#_ITY CG 25 03 03 97 THIS ElVLDflRSEMENT CHANGES THE PpL1CY. PLEASE REAQ IT CAREFULLY. ~ESI~N~4TED CC)IUSTF~U~TIC}t~ F'Rt~J~CT~S} GENERAL AGR~~ATE .EMIT This endorsement modifies insurance provided under the fallowing: COMMERCIAL GENERAL LIABILITY COVERAGE PART SCHEQtJt..E Designated Construction Projects: if nc entry appears above, infiarmation required to complete this as applicable to this endorsement.) A. For all sums which the insured becomes legally obligated to pay as damages caused by "occurrences" under COVERAGE A (SECTIOtd t), and for alt medical expenses caused by acci- dents under COVERAGE C {SECTI{}N 1), which can tae attributed only to ongoing ~eraGons at a single designated construction project shown in the Schedule .above. 7. A separate Designated Construction Project General Aggregate Limit applies to each designated construction project, and that limit is equal to the amount of the General Aggre- gate Limit shown in the Declarations. ~. The Designates! Construction Project General Aggregate Limit is the most we will pay for the sum of all damages under COVERAGE A, except damages because of `bodily injury" ar "property damage" included in the 'products-completed operations hazard'", and far medical expenses under COVERAGE C regardless of the number of: a. Insureds; b. Claims made or "suits" brought; ar c. Persons ar arganizatians making claims or bringing "suits'. 3. Any payments made under COVI=RAGE A for damages or under COVERAGE C for medical expenses shah reduce the Desig- nated Construction Project General Aggre- gate Limit for that designated construction project. Such payments shall not reduce the General Aggregate Limit shown in the Decla- rations nor shat! they reduce any other Des- ignated Construction Project General Aggre- gate Limit for any other designated construc- tion protect shown in the Schedule above_ shown in the 4. The limits shown in the Declarations for Each Occurrence, Fire Damage and Medical Ex- ~se continue to apply. However, instead of being subject to the Genera! Aggregate Limit shown in the Declarations, such limits wilt tie subject to the applicable Designated Con- struction Project General Aggregate Limit B. Far all sums which the insured becomes legally obligated to pay as damages caused by "occurrences" under COVERAGE A (SECTION I), and for all medical expenses caused by acci- dents under COVERAGE C {SECTION I), which cannot be attributed only to ongoing operations at a siru,~le designated tx~nstruction project Shawn in the Schedule shave. 1. Any payments made under COVERAGE A for damages or under COVERAGE C for medical expenses shall reduce the amount available under the General Aggregate Limit or the Products-Completed Operations Ag- gregate Limit, whichever is applicable; and ~. Such payments shall no# reduce any Desig- nated Construction Project General Aggre- gate Limit. C. When coverage for liability arising out of the "products-completed Operations hazard" is pro- vided, any payments for damages because of "bodily injury°' or ,:property damage° included in the 'products-completed operations hazard" will reduce the Products-Completed Operations Ag- gregate Limit, and not reduce the General Ag- gregate Limit nor the Designated Construction Project General Aggregate Limit. :G 2~ t)3 03 97 Copyright,. Insurance Services Office, Inc„ 1996 Page 7 of 2 [3. If the applicable designated construction project has teen abandoned, delayed, or abandoned and then restarted, or if the authorised contract- ing parties deviate from pkans, blueprints, de- signs, specifications or timetables, the project wii! stikl be deemed to be the Same ccrostruction project. E. The provisions of Lirtiits Of Cnsurance {SEGTIC~N ktt) not otherwise modified by this endcyrsPn~ent chalk continue to apply as stipuiaked SPECIMEAI y=:~L(CY ~t.iM~E~: CQMiiA~tGtAI_ GENERAL LiA#31LtTY ~G 2i'd in 07' O~d T; ;lS ENLORS~MEN7 CHANGES THE PC3LICY. F'L~AS~ READ fiT CAf~~F~I.LY. AI~DITit~NA~. lNSURE'D - C)~I'SINEFZS, LESSEES t~R ~t~~ITRACTC)FtS -~ SGNEDU~ED PERSflt~ ~3R:t~A~!I~AT'!~JN This ~ndarsernsnl rnadifies insurance praYidBd urxier the failawirag: ~;W?.t~iERCiAL~"_,E>+.IERAL LU46Etr.t Y CGVE~3RGE PAf~ti' 5CliEgULE _---~-- Nama t}t Addltiattai tnsureti P+2rson{s} Qf Organizatlan{s}. __L;c~tlan~s} {{,3ff Coverwed Qt~eratTorss i;ie l7r~,asw~ including all its °elerded and ~appvinted off7Cials, all its a~?p1~ye~s anct ~rvlu~ateers, a;3 its beards, ''crrs>~ofts at?dCr aukherfties and their ~'~urt~ t~err;ders, einp?ogees and unlunteers. A. Sa~t#on El -- Who b An Ensured is amended #cy B. ±nctude as an additloca:H Insured she person{a} ar 3r~sntzaaMn{s} at~own Tn tl~a Schedule, bv# otd+/ Nnh respect to tlaDit~y for "tsor311y irapury', "property Damage" ar 'persa~t and adverEtaiftg irjttr}t' moused, in whale or ~ Dart, by: '4. `?our acts or ornisstons; cu ~. 'The arxs car omissiaxts of those acting an }roof t7etaail; sn the ;xricarmance of goof or~oirag al~~#~r47! ftx the adctttloraal insuf~sd{a) s# the lac~tiurt(sj de~tig- 'a8te~ 2taav$, ~E~~~iEN ~/Eih res;aec# tca the trnsuranca afffcuu~ded tc tfaes+e addk~raal iasureda, thg ftslitrwing add~l exdu- stotts stopiY This insurant~a does nGt apply #a "b~adlty in;ury' ~or "property damage" ocwuff~g attar. 1. All wofk, uactudng materialtt<„ parts ar eGuCp- ment fumis~ted in connet~iart wilt wrote, on the project {outer aer~s, maln#enafate car repairs) is be pefiontted by ar on b~ettalf of the addttiotrfl ffasufad(a} ~# the icon t>: the C.CYefed OQ8f8tipnii 3f8tt t,}e~en c~npltted; of 2. 71aat pnrtfon ofi "your work" out of which the in}ury ar dar»age arises has bees pu# tta ~ in~ tended use by any person ar orgat~izatton other than anathar contractor ur sutacantractrx an- gaged in pertnfmtng operat+ons for a principal es a part of tfat: same pro~ezt. C ?t7 ap t)7 04 ~ iSC Nroperties, loc.. 2JUa Page 1 at 7 p~LiCu :tiur~tsEi~: cOi`i1ME~~,IAl. GEH~ftAL ~.I~,BlLt~TY ~. ;. ' G 20 37 OZ Od ,THIS. E~IDflRSEM~NT CHANGES THE POLICY; PL~A~E' ~ftEA'I~ lT;CAR~EFU~tLY. ~,D[~~~"~~JC~AL i~S~~.~D -- t)Y~:~~RS,:L~SSE,ES ~R ~c~~T~~C't"~RS -- CtJNiP~E:~ED C~PE~ATIC~N~ - ~: _ _ ~.~ . 7i~~s enacc;em~nt rnadties irslrance,praLided ~ndzr the "~#lowing ., ~~P~}7Y'EP•.~IA.L Gl Ncf?AL.~:iF;81LlT`f~GOVERAGE PPRT " . . SCHEDULE, 1~larne Oi Additional insuee~:Petsoil(sj ;;: Gr CrQani: ati~nls ~ L'"ccati+ort-::ticl D~scri tiort C7i Comet' le't~ed'Q r~af~oti5'.t The Dr~swA 3 »cl:ud et'~4 a ] 7 ?~~s i f ~~ acted and ;apFoi need. of ~:rci a1 s:, a7~~~ ~_ ~~ .s~i~ .. ', F a tick ~ I f,~~ ~~ ~m~ I o~ ees ,and vo..I.un*eer-s , a~i 1 ~_s_ ~, ,~~;~,~-.~-~; ~ ~ ,' 1., ~ :_t.., . ~ ,~.. _ _ _ .. _ _. ,-~ ~n oz nw n,: ~ icy, Proc•er:ies, 1t;v., 2004 Page 1 of 1 Dubuque Metropolitan Area Solid Waste Agency GOVERNMENTAL IMMUNITIES ENDORSEMENT Nonwaiver of Governmental Immunitv. The insurance carrier expressly agrees and states that the purchase of this policy and the including of the Dubuque Metropolitan Area Solid Waste Agency as an Additional Insured does not waive any of the defenses of governmental immunity available to the Dubuque Metropolitan Area Solid Waste Agency under Code of Iowa Section 670.4 as it is now exists and as it may be amended from time to time. 2. 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. 3. Assertion of Government Immunitv. The Dubuque Metropolitan Area Solid Waste Agency 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. 4. Non-Denial of Coverage. The insurance carrier shall not deny coverage under this policy and the insurance carrier shall not deny any of the rights and benefits accruing to the Dubuque Metropolitan Area Solid Waste Agency 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 Dubuque Metropolitan Area Solid Waste Agency . No Other Change in Policy. The above preservation of governmental immunities shall not otherwise change or alter the coverage available under the policy. SPECIMEN 1 of 1 June 2005