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HomeMy WebLinkAbout108-83 RESOLUTIONRESOLUTION NO. 108-83 A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A WASTE DISPOSAL CONTRACT WITH THE NORTH- WEST ARKANSAS RESOURCE RECOVERY AUTHORITY. BE IT RESOLVED BY THE BOARD OF DIRECTORS OF THE CITY OF FAYETTEVILLE, ARKANSAS: That the Mayor and City Clerk are hereby authorized and directed to execute a waste disposal contract with the Northwest Arkansas Resource Recovery Authority. A copy of the contract authorized for execution hereby, is attached hereto, marked Exhibit "A" and made a part hereof. RAYet A{ ` U i + %I �� i a ' Vi '% f . PASSED AND APPROVED this V ki ot,vir, ATTEST: 8th day of September,; 1983. APPROVED: By aaff Mayor am L • • CONTRACT This Contract executed this day of 1984, between Northwest Arkansas Resource Recovery Authority (an authority organized and existing under the provisions of the Arkansas Joint County and Municipal Solid Waste Disposal Act, Arkansas Acts 1979, No. 699) hereinafter called,"the Authority", and the City of Fayetteville, Arkansas, (a political subdivision existing under the laws of the State of Arkansas), hereinafter called "the City". WHEREAS, the Fayetteville Board of Directors has determined that provision must be made for the sanitary disposal of solid waste generated within the City; and, WHEREAS, the Authority is willing and able to provide for the design, construction, operation and maintenance of an environmentally satisfactory, efficient and economical high-capacity solid waste resource recovery facility ("the Facility") if a sufficient number of political subdivisions are committed to its use and support; and, WHEREAS, the Fayetteville Board of Directors has considered the system proposed by the Authority and has found that said system will afford the citizens of the City a safe, sanitary and environmentally desirable means for the disposal of solid wastes for the next two decades. NOW, THEREFORE, in consideration of the mutual promises and consid- erations herein set forth, it is agreed as follows: EXHIBIT. A -2 - ARTICLE I Definitions and Terms of Agreement: SECTION 101 — Definitions: As used in this Agreement, the words and terms listed in this Section shall have the following meanings. Acceptable Waste shall mean all garbage, trash, rubbish, refuse and offal that is normally disposed of by a residential household, commercial business or industrial facility, except any item defined as non -acceptable waste; provided, however, that with respect to rubber tires, a single truckload may contain only such occasional rubber tires as would normally be disposed of by household or commercial establishments which are not engaged in the manufacture, sale, exchange or distribution of rubber tires and tubes, and the Operator of the facility may, in its sole discretion, determine whether any one truckload contains too large a quantity of rubber, tires and tubes. Billing Period shall mean each calendar month in each Contract Year. Business Day shall mean each Monday, Tuesdasy, Wednesday, Thursday, Friday and Saturday which is not a legal holiday of the State. Change -in -Law or Regulations means future revisions to statutes, rules, regulations, codes, environmental limits or ordinances which would require that revisions or modifications be made at the Facility or which would cause the Facility to be closed. Commencement Date shall mean the date on which the Operator commences commercial operation of the Facility following the start-up process -3 - and notifies the Authority in writing that it is prepared to receive Acceptable Waste at the Facility on a regular basis, and the Authority notifies the City in writing that the Facility is prepared to receive Acceptable Waste from the City. Commercial Haulers shall mean haulers of waste designated by the City as having permission to deliver Acceptable Waste to the Operator at the Facility. Contract Year shall mean the twelve-month period commencing on January 1 of each year and ending on the following December 31 except that the first Contract Year shall be for the period commencing on the Commencement Date and ending on December 31 of the calendar year in which the initial twelve month period of this contract is completed. Economic Viability shall mean that point during operation of the facility when revenues from tipping fees and from the sale of steam equal the cost of operation plus debt service requirements. Excess Revenues shall mean revenues from the sale of steam over and above revenues necessary to achieve economic viability. Facility shall mean the solid waste disposal and steam conversion resource recovery facility to be constructed and operated pursuant to an Agreement between the Contractor and the Authority, entitled "Facility Construction Contract" dated the day of , 198 and to be operated pursuant to a contract between the Authority and the Operator entitled "The Management Agreement" dated the day of , 198 . Force Majeure shall mean any event or occurrence beyond the reasonable control of the affected party which prevents the operation of the Facility or the operation' of any landfill utilized by the Operator, or delivery to the facility by the University or its contractor, including, but not limited to, an act of God, an act of the public enemy, war, insurrection, riot or other civil disturbance, explosion, fire, strike or other labor disturbance, or a change in the laws or regulations governing operation of the University, the Facility or any landfill utilized by the Operator or delays beyond the control of the City or the Operator in obtaining needed materials or personnel. Tipping Fees shall be the direct charge by the Authority to the City for each ton of Acceptable Waste delivered to the Facility by the City or by Commercial Haulers and accepted by the Operator of the Facility. Maximum Commitment shall mean an average of Waste per year for each Contract Year. tons of Acceptable Minimum Commitment shall mean an average of tons per year of Acceptable Waste for each Contract Year. Non -Acceptable Waste shall mean pesticides, insecticides, chemicals (when not normally in household waste), pathological and biological waste, radioactive materials, oil sludges, hazardous refuse of any kind or other substances which are not or are hereafter considered harmful, inflammable, hazardous or toxic or which would otherwise not be allowed for burial under regulations of the Arkansas Department of Pollution Control and Ecology or Arkansas Health Department or which under any other Federal, State or Local law not be allowed to be disposed of at a permitted, landfill, or which the City, the Authority or the or regulation would non -hazardous waste Operator reasonably determines could pose a threat to health or safety or which may cause damage to or adversely affect the operation of the Facility. Operator shall mean the business, cot ration or other legal entity under contract with the Authority to provide daily operation and main- tenance of the Facility. Period shall mean Billing Period. Person shall mean any individual, corporation, partnership, joint venture, associatidn, joint-stock company, trust, unincorporated organi- zation or government or any agency or political subdivision thereof. State shall mean the State of Arkansas. Ton shall mead a short ton of 2,000 pounds. Notice of Default shall mean written notice specifying the asserted event of default which, if not corrected within fifteen (15) days frau receipt of said notice, shall create a right to terminate this Agreement. -6 - University shall mean the University of Arkansas ,(Fayetteville campus). SECTION 102 -- Term of Agreement: The term of this Agreement shall commence on the Commencement Date and shall continue for a period of twenty-eight (28) years, or until such earlier time as this Agreement may terminate pursuant to the terms hereof; provided, the term of this Agreement shall be suspended for the period of any Force Majeure; if the dates on which a Force Majeure affecting the City began or ended cannot be agreed upon by the City, and the Authority, said date or dates shall be determined by arbitration with the City and the Authority to each select an arbi- trator and the two arbitrators so selected to select a third arbitrator. The arbitrators shall render a decision in writing within thirty (30) days of their final selection, and the decision by a majority of the arbitrators shall be binding on the City and the Authority. In the event of a Force Majeure affecting the operator and requiring arbitration, said arbitration shall be in accordance with the terms of the contract' between the Operator and the Authority. ARTICLE II Services to be provided: SECTION 201 -- Responsibilities of the City and Authority: A. Each month, except in matters of Force Majeure, the City shall cause Acceptable Waste; in an amount not less than 1/12 the Minimum -7 - Commitment and not greater than 1/12 the Maximum Commitment to be delivered to the Facility; provided, the City's failure to deliver or cause to be delivered the Minimum Commitment shall not constitute a breach of this Agreement if the City has paid the stipulated Tipping Fees for the Minimum Commitment; in such event, the City shall be entitled to a credit on Tipping Fees due for future deliveries of Acceptable Waste which exceed the Minimum Commitment; the amount of said credit shall be the difference between the Tipping Fee for Acceptable Waste actually delivered and the Tipping Fee .for the Minimum Commitment; and said credit shall be cumulative. During any Force Majeure condition, the City shall not be required to pay the stipulated Tipping Fees for the Minimum Commitment. B. The Authority shall provide for the receiving of any Acceptable Waste delivered to the Facility, up to the quantities specified herein, on and after the Commencement Date. The Authority shall provide for the disposal and/or processing for resource recovery of the Acceptable Waste delivered hereunder to the Facility. C. Subject to the terms and conditions herein contained, the Authority shall cause the Facility to be operated and maintained in accordance with all applicable Federal, State and Local laws, regulations and ordinances. SECTION 202 -- Acceptance of Waste - A. In order to assure that only Acceptable Waste is delivered to the Facility, the City shall give written notice to its Collection Contractors and Commercial Haulers, if any, that delivery of Non acceptable Waste to the Facility is prohibited. The form of such notice must first be approved by the Authority. Such notice shall not relieve the City of its responsibility to attempt to prevent the delivery, by the City or by Commercial Haulers, to the Facility of Non-acceptable Waste The City acknowledges and agrees that the Operator of the Facility may refuse to accept any Non-acceptable Waste delivered to the Facility, and that such refusal shall not constitute a breach of this Agreement by the Authority or give rise to a cause of action against the Authority or Operator of the Facility by the City. B. If, pursuant to the Agreement between the Authority and the Operator of the Facility, the Authority is offered the right to increase the Authority's Maximum Commitment, the Authority shall offer each member of the Authority the right to increase its respective Maximum Commitment. Should the combined Maximum Commitments requested by the City and the respective members of the Authority exceed the capacity of the Facility, the Maximum Commitment of each requesting member shall be increased on a prorata basis according to the following formula. Original Percentage of Total Minimum Commitment X Number of Tons Available Before Capacity of Facility Reached = Number of Tons which Maximum Commitment may be increased. • -9- ARTICLE III Obligations during period when an Event of Force Majeure has occurred. SECTION 301 -- Force Majeure: (a) Except as otherwise provided in this Agreement, in the event that any party is delayed in or prevented from the performance of its obligations under this Agreement due to a Force Majeure Condition, such party's obligations and those of such other parties affected thereby shall be suspended for the duration of such Force Majeure Condition, subject to the notice requirements set forth in Paragraph (b) of this Section; PROVIDED, HOWEVER, that the parties shall make all reasonable efforts to continue to meet their obligations during the duration of the Forbe Majeure Condition. (b) Should a Force Majeure Condition affect either or both parties hereto so as to prevent the performance of its obligations as contemplated in this Agreement, the party affected by a Force Majeure Condition shall provide written notice to the other party of the nature of the Force Majeure Condition, when it began, and its projected duration. Such party also shall provide written notice to the other party upon the cessation of the Force Majeure Condition. (c) The party so affected by a Force Majeure Condition shall make all reasonable efforts to eliminate or abate such Force Majeure Condition and to resume its obligations expeditiously upon its -10 - elimination, except that no party hereto will be required to acquiesce to an unfavorable settlement of any labor dispute. (d) The suspension of any obligation owing to a Force Majeure Condition shall neither cause the term of this Agreement to be extended nor affect any rights accrued under this Agreement prior to the Force Majeure Condition. (e) In the event such Force Majeure Condition results in the inability of a party to carry out its obligations for a period of in excess of six months, the other party hereto shall have the right to terminate this agreement by giving the other party written notifi- cation of such termination. Termination of the Agreement under this provision shall have the same affect as the expiration of the term of the Agreement. (f) If the dates on which a Force Majeure affecting the City began or ended cannot be agreed upon by the City and the Authority, said date or dates shall be determined by arbitration with the City and the Authority to each select an arbitrator and the two arbitrators so selected to select a third arbritrator. The arbi- trators shall render a decision in writing within thirty (30) days of their final selection,and the decision by a majority of the arbitrators shall be binding on the City and the Authority. In the event of a Force Majeure affecting the Operator of the Facility or the Authority and requiring arbitration, said arbitration shall be in accordance with the terms of the contract between the Operator and the Authority. -11 - SECTION 302 -- Obligations. of 'the Parties: If an act or event of Force Majeure occurs which prevents the Operator of the Facility from accepting and processing Acceptable Waste at the Facility (despite the reasonable efforts of the Operator to continue to receive Acceptable Waste at the Facility or elsewhere on the Facility site), the Authority shall provide to the City, at the expense of the Authority, an alternative site for disposal of the City's Acceptable Waste The City will be reimbursed for any additional expenses, including additional Tipping Fees or transportation costs which are incurred because of the City's use of such alternative site. The City shall reinstitute deliveries of Acceptable Waste to the Facility immediately after receipt of notice from the Authority that such act or event of Force Majeure has ceased affecting the operation of the Facility. If the event of Force Majeure is the total or substantially total destruction of the Facility, then the City shall not be obligated to deliver the Minimum Monthly Commitment provided for in this Agreement unless and until the Operator of the Facility has agreed in writing to rebuild the Facility and has taken diligent and prompt action to do so and unless the said Operator continues to accept Acceptable Waste delivered to the Facility site. -12 - ARTICLE IV Payments, Procedures: Commencing at the end of the first calendar month in which waste is delivered to the Facility, the City's payments shall be made monthly to the Authority in Accordance with the following procedures. SECTION 401 -- Tipping Fee: (a) Within ten (10) days following the end of each Billing Period, the Authority will render a bill to the City for the aggregate Tipping Fees due for such period. Monthly Payments which have not been paid in full for more than forty-five (45) days following the end of the Billing Period shall accrue interest at the highest legal rate but not exceed five percent (5%) per annum above the Federal Reserve discount rate on the date above stated as the date of this Agreement. Such interest shall be added only to any unpaid amount due except when the amount of the delivery is disputed. In such cases, interest shall be paid on the amount finally determined to be due and payable Should a monthly payment due and payable by the City not be paid in full for more than ninety (90) days following the end of the delivery month, the Authority shall have the right to have the Operator of the Facility discontinue acceptance of waste from the City until payment in full, including interest, is received by the Authority. (b) The Citys obligation to pay Tipping Fees shall be payable solely out of income received by the City from charges for the disposal -13 - of garbage and trash at the Facility (Sanitation Fund Revenues). The City agrees that said charges shall, at all times during the term of this Agreement, be maintained and collected at a level sufficient to enable the City to pay the Tipping Fees estab- lished by this Agreement which Tipping Fees shall, at all times during the term of this Agreement,be sufficient for the Authority to pay the principal, interest, trustee's fees, paying agent's fees and bank letter of credit fees for bonds issued by the Authority to finance construction of the Facility. (c) The Tipping Fee for the first year (12 months) of this contract shall not exceed $30.00 per ton of Acceptable Waste delivered to the Facility. As soon as the Tipping Fee for the first contract year,is established, the Authority shall notify the City in Writing of the amount. Provided, however, the City shall not be obligated to begin making any deliveries under this Agreement until such notice is received by the City. (d) On January 1 of the second contract year, and on each January 1 thereafter during the term of this Contract, the Tipping Fee shall be adjusted by the Authority to reflect the annual percentage increase (or decrease in the "Consumer Price Index for all Urban Customers" (CPI-tJ), for the United States as determined and reported .by the U.S. Department of Labor, Bureau of Labor Statistics. In determining the percentage change, the CPI -U Index on December 31 of the just completed Contract Year shall be compared with the CPI -U Index on December 31 of the previous Contract Year. Notification of the adjusted Tipping Fee for Acceptable Waste (e) -14- shall be sent to the City in writing as soon as practical after it is calculated. In the event that such Consumer Price Index for December is not available during the month of December, the new Tipping Fee shall not be calculated until it is available, at which time it shall be applied retroactively. If the Consumer Price Index ceases to be published or is otherwise unavailable, the parties shall use a comparable from available indices. The Authority agrees that during index or shall interpolate the teen of this Agreement it will not establish, fix, charge or collect Tipping Fees, rates or other charges for disposal of comparable solid waste delivered to the Facility to be paid by other users of the Facility, including members of the Authority, on more favorable tents than those applicable to the City under the terms of this Agreement; this provision shall not preclude the Authority from purchasing wood shavings as a fuel source for the Facility. (f) In the event that the Authority does establish, fix, charge or collect Tipping Fees, rates or other charges for disposal of solid waste delivered to the Facility by other users of the Facility on more favorable terms than those applicable to the City under the terms of this Agreement, the Tipping Fees or other charges set forth in this Agreement will be reduced to an amount that is consistent with the provisions of Section 401(d) of this Agreement and will refund to the City the amount of any Tipping Fees. or other charges paid by the City to the Authority in excess of those amounts permitted under Section 401(d) of this Agreement. -15- (g) The City shall share in all excess revenues received by the Authority under the Authority's contract with the Operator of the Facility based upon the following formula: City's % of Total Waste Contri- bution X Total Excess Revenues = City's Share of Excess Revenues. SECTION 402 Dispute on Billing: In the event of a dispute as to any portion of any bill, the City shall within five (5) days from due date of the disputed bill, give the Authority written notice of the dispute and shall not be required to pay the disputed portion of the bill pending resolution of the dispute. Such notice shall identify the disputed bill, state the amount in dispute and set:forth a full statement of the grounds which form the basis of such dispute. No adjustment shall be considered or made for disputed charges until notice is given as aforesaid; PROVIDED, HOWEVER, that the City shall not be required to give notice within five (5) days from the due date of a disputed bill where such dispute arises by virtue of the provisions of Section 401(e) and Section 401(f) of this Agreement. In any such event, the City shall be required to give notice of such dispute within a reasonable time after determining that there is a basis for dispute as to such bill under the provisions of Section 401(e) and Section 401(f). If the City and the Authority are unable to resolve a disputed bill, the dispute shall be resolved by arbitration as provided in Section 301(f). SECTION 403 -- Failure to Pay Bill: If payment in full of any undisputed bill rendered to the City is not made on or before the close of business on the twentieth (20th) -16 - business day following the date that payment is due, a delayed payment charge at the highest legal rate, but not to exceed five percent (5%) per annum above Federal Reserve discount rate on the date of this Agreement, shall be due and payable by the City. Such interest shall be added only to any unpaid amount due except when the amount of the delivery is disputed. In such cases, interest shall be paid on the amount finally determined to be due and payable. ARITCLE V SECTION 501 -- Scale and Tests: The Authority will cause to be provided, installed, and used such appropriate scales as are necessary for determining the quantity of waste delivered to and accepted at the Facility. The Authority will cause to be designated a weigh master to be responsible for the scales at the Facility and will provide for reasonable access by the City to the scales for inspection of their accuracy on a reasonable periodic basis. The scales shall be maintained within tolerance limits required by Arkansas law. The Authority shall cause the operator of the Facility to maintain weight receipts for a period of 24 months, and the weight receipts will be available for review and audit by the City during reasonable business hours. On each delivery, the City shall receive a copy of the ticket showing the date and weight. -17 - ARTICLE VI Other Users, Hours of Operation, and Other Matters: SECTION 601 -- Competitive Facilities: • The City will forthwith take such action as is necessary or proper to enable it to deliver Acceptable Waste to the Facility on and after the Commencement Date. After the Commencement Date, the City shall not directly or indirectly cause or permit Acceptable Waste (except to the extent the Acceptable Waste exceeds the Maximum Commitment) to be delivered by its employees, subcontractors or agents to facilities other than the Facility. The City may take such action as it determines is necessary for the collection, disposal and treatment of Non -Acceptable Waste which the Operator of the Facility has indicated it will not accept under this Agreement. Acceptance by the Oierator of the Facility of waste from the City which is not Acceptable Waste in one or more instances or under one or more circumstances shall not constitute a waiver of such limit or restrictioA and shall not in any way obligate the Operator of the Facility thereafter to accept Non -Acceptable Waste. SECTION 602 -- Ownership Rights - Upon delivery of any Acceptable Waste to the Facility, it shall become the property of the Authority. {i -18 - SECTION 603 -- Hours of Operation and Office: The Facility shall remain open to receive Acceptable Waste on each business day from 7 a.m. to 4 p.m. Said hours may be modified by mutual agreement of the Authority, the. Operator of the Facility, the University and the City. AKIICIE VII SECTION 701 -- Default: A. Remedies for Default. Except as provided in Article D below, no party shall have :the right to terminate this Agreement for any breach where compensation is an adequate remedy unless an Event of Default shall have occurred and be continuing: An Event of Default shall be deemed to have been corrected for purposes of this paragraph if it has been alleviated to the degree that its existence no longer makes damages an inadequate remedy. Events of Default by the Authority. Each of the following shall constitute an Event of Default on the part of the Authority: (a) The persistent or repeated failure or refusaal by the Authority to cause the Facility to be operated substantially in accordance with this Agreement, unless such failure or refusal shall be excused or justified by Force Majeure, default by the City or other cause justifing or excusing nonperformance as a matter of law, but only if the failure or refusal is -19 - of a material nature for which damages would not be an adequate remedy. (b) The failure of the Authority to cause the acceptance and disposal in any month of 1/12 of the City's Maximum Commitment the Acceptable Waste delivered to the Facility by the City other than as a result of Force"Majeure. C. Events of Default by City. Each of the following shall constitute an Event of Default on the part of the City: (a) The persistent or repeated failure or refusal by the City to fulfill any of its obligations under this Agreement except in the event of Force Majeure or default by the Authority. (b) The filing by the City of a petititon seeking relief under the Bankruptcy Act or any Federal or State statute intended to provide relief for political subdivisions which are insolvent or unable to meet their obligations as they mature. D. Termination. If any party shall have the right of termination for cause in accordance with this Section 701, the same may be exercised by notice of termination given to the party in default. The proper exercise of such right of termination shall bet -in addition to and not in substitution of such other rights, to damages or • otherwise, as the party exercising the right of termination may have and shall not affect any accrued liabilities hereunder through the date of termination.