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HomeMy WebLinkAbout120-86 RESOLUTIONre A RESOLUJTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE A WASTE DISPOSAL AGREEMENT WITH THE NORTHWEST ARKANSAS RESOURCE RECOVERY AUTHORITY, THE CITY OF WEST FORK, ARKANSAS AND WASHINGTON COUNTY, ARKANSAS. BE IT RESOLVED BY THE BARD OF DIRECTORS OF THE CITY OF FAYEITEVILLE, ARKANSAS: That the Mayor and City Clerk are hereby authorized and directed to execute a waste disposal agreement with the Northwest Arkansas Resource Recovery Authority, the City of lest Fork, Arkansas and Washington County, Arkansas. A copy of the agreement authorized for execution hereby is attached hereto marked Exhibit "A" and made a part hereof. PASSED AND APPROVED this s day of r APPROVED A1'1'LST By: By: BY: nar amhar 1986. This AGREEMENT executed this 22nd day of December 19 86 , 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", the City of Fayette- ville, Arkansas and the City of West Fork, Arkansas (political subdivisions existing under the laws of the State of Arkansas), hereinafter called "the Cities", and Washington County, Arkansas (a political subdivision existing under the laws of the State of Arkansas) hereinafter called "the County". WHEREAS, the Fayetteville Board of Directors, the West Fork City Council, and the Washington County Quorum Court have determined that provision must be made for the sanitary disposal of solid waste generated within the Cities and the County; 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 Cities and the County have considered the system prcposed by the Authority and have found that said system will afford 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: -2 - ARTICLE I Defi^itions and Terms of Agreement: SDCTICN 101 — Definitions: As used in this Agreement, the words and terns 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; provided that acceptable waste shall not include non -acceptable waste and shall not include waste containing more than occasional rubber tires as would normally be disposed of by household or commercial establishments which are not engaged in the manufacture, sale or exchange of rubber tires and tubes. Authority Member shall mean the City of Fayetteville, Arkansas, the City of West Fork, Arkansas, and Washington County, Arkansas. Billica Period shall mean each calendar month in each Contract Year. Business Dav shall mean each Monday, Tuesday, Wednesday, Thursday, Friday and Saturday which is not a legal holiday of the State. Change -in -taw 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. Comtenceme^.t Date shall mean the date on which the Operator commences commercial operation of the Facility following the start-up process 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 Cities and the County in writing that the Facility is prepared to receive Acceptable Waste from the Cities and the County. Commercial Haulers shall mean haulers of waste designated by the Cities and the County 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 Commencement Date occurs. Contractor shall mean M -K Ferguson Company, Cleveland, Ohio. Facility shall mean the solid waste disposal and electricity conversion resource recovery facility to be constructed and operated pursuant to an Agreement between the Contractor and the Authority, entitled "Facility Design/Construction Agreement" dated the 7th day -4 - of November , 19 86 and to be operated pursuant to a contract between the Authority and the Operator entitled "Facility Management Agreement" dated the 7th day of November , 19 Uncontrollable Circumstance means any act or event that has had or may reasonably be expected to have a material adverse effect on the rights or obligations of the Cities, the County or the Authority under this Agreement or a material adverse effect on the Facility, the Facility Site, or the construction, operation or ownership or possession of any or all of them, if such act or event 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 Agreement. Such acts or events shall include but shall not be limited to the following: (a) an act of God, epidemic, landslide, lightning, earthquake, fire, explosion, storm, flood or similar occurrence, an act of a public enemy, war, blockade, insurrection, riot, general arrest or restraint of government and people, civil disturbance or similar occurrence. (b) the order and/or judgment of any federal, state, local or foreign court, administrative agency or governmental officer or body; (c) suspension, termination, interruption, denial, or failure of renewal of any permit, license, consent, authorization or approval essential to the construction of the Facility as provided for herein or required with respect hereto, if such act or event is not also the result of willful or negligent action or failure to act of the party relying thereon, or violation of the duties under this Agreement of the party relying thereon; (d) adoption, promulgation, modification or change in interpretation of any federal, state, or local law, regulation, ordinance or court order after August 8, 1986, or establishment by the United States Enviroamental Protection /Agency (the "USEPA") of requirements differing from those specified by the Arkansas Department of Pollution Control and Ecology in their Permit No. 737—AR-1 -5- Tipping Fees shall be the direct charge by the Authority to the Cities and the County (1) for each to of Acceptable Waste delivered to the Facility by the Cities and the County or by Commercial Haulers and accepted by the Operator of the Facility or (2) otherwise charged pursuant to §401 hereof. Minimum Commitment shall mean an average of 33,565 tons per year of Acceptable Waste for the City of Fayetteville each Contract Year, an average of 728 tons per year of Acceptable Waste for the City of West Fork each contract year, and 1,095 tons per year of Acceptable Solid Waste for Washington. County. Nor. -Acceptable Waste shall mean pesticides, insecticides, chemicals (when not in normal 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 or regulation would not be allowed to be disposed of at a permitted, non -hazardous waste landfill, or which the Cities, the County, the Authority or the 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 M -K Ferguson Company. Period shall mean Billing Period. -6 - venture, association, 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 mean 2,000 pounds. Notice of Default shall mean written notice specifying the asserted event of default which, if not corrected within. thirty (30) days from receipt of said notice, shall create a right to terminate this Agreeme^t; provided, this Agreement may only be terminated upon an event of default if the Authority provides the Trustee for the Authority's Revenue Bonds Fixed/Adjustable Rate, Series 1985 .(the "Series 1985 Bonds") and any Additional Bonds ("Additional Bonds") issued u^der the Indenture (herein sometimes collectively called the "Bonds"), as supplemented (the "Indenture") between the Authority and Union National Bank of Little Rock as Trustee (the "Trustee") with sufficient funds to redeem and the Series 1985 Bonds and any Additional Bonds shall be defeased under the Indenture. SECTION 102 — Term of Aareement: The term of this Agreement shall commence on the date hereof and shall continue until (1) the Series 1985 Bonds and any Additional Bonds and all Bonds issued by the Authority to finance construction of the Facility have been redeemed, or (2) such earlier date as the Authority provides the Trustee with sufficient funds to redeem the Series 1985 Bonds and any Additional Bods and such Bonds shall be defeased. ARTICLE II Services to be provided: SECTION 201 — Responsibilities of the Cities, the County and Authority: A. Each month the Cities and the County shall cause Acceptable Waste in an amount not less than 1/12 the Minimum Commitment to be delivered to the Facility; provided, the failure of the Cities or the County to deliver or cause to be delivered the Minimum Commitment shall not constitute a breach of this Agreement if the stipulated Tipping Fees have been paid. 8. 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 Cities and the County 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 Cities or the County of their responsibility to use their best efforts to prevent the delivery, by the Cities or the County or by Cammercial Haulers, to the Facility of Non-acceptable Waste. The Cities and the County acknowledge and agree 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 Cities or the County. 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 Commitment, the Authority shall offer each member of the Authority the right to increase its respective Commitment. Should the combined Commitments requested by the respective members of the Authority exceed the capacity of the Facility, the Commitment of each requesting member shall be reduced on a prorata basis. Any increase or decrease shall be calculated using the following formula: Original Percentage of Total Minimum Commitment X Number of Tons Available Before Capacity of Facility Reached = Number of Tons which Commitment shall be increased or decreased. ARTICLE III Obligations during period when an Uncontrollable Circumstance has occured. SECTION 301 -- Cbliaations of the Parties: If an Uncontrollable Circumstance prevents the Operator of the Facility frau 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 use its best efforts to provide the Cities and the County an alternative site for disposal of the Cities' and the County's Acceptable Waste. ARTICLE IV Payments, Procedures: The Cities' and the County'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 Cities and the County 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 subject the Cities and the County to a late payment charge of 10% per annum on the unpaid balance, but not to exceed the highest rate allowed by law. Such late payment charge shall be added -10 - only to any unpaid amount due except when the amount of the delivery is disputed. In such case, said charge shall be paid on the amount finally determined to be due and payable. Should a monthly payment due and payable by the Cities and the County 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 Cities and the County until payment in full, including interest, is received by the Authority. Discontinuance of the Authority's acceptance of waste shall not abate the Cities' and the County's obligation to pay Tipping Fees as required hereby. (b) The Cities and the County shall commence making payments at the end of the calendar month following the earlier of (a) the date on which waste is first delivered to the Facility after the ConmKnce- ment Date, or (b) the last month in which the amount on deposit in. the Construction Interest Account under the Indenture relating to the Bonds as capitalized interest are sufficient to pay all debt service on the Bonds payable during or accrued through the last day of such month (c) The Cities' and the County's obligation to pay Tipping Fees shall be payable solely out of income received by the Cities and the County from charges for the disposal of garbage and trash (Sanitation Fund Revenues). The Cities and the County agree that said charges, together with other revenues and funds to be collected by the Authority during the current Fiscal Year and to be available to the Authority for such purposes shall, at all times during -11 - the term of this Agreement, be maintained and collected at a level sufficient to enable. the Cities and the County to pay the Tipping Fees established by this Agreement, which Tipping Fees shall, at all times during the term of this Agreement be sufficient for the Authority to (1) pay, when due, all operating and maintenance expense of the Authority for the current Fiscal Year, including, without limitation, amounts sufficient to pay all costs of performing the Authority's obligation as tenant under the Lease Agreement for the Facility and all Operating and Maintenance Expenses, as defined in the Indenture, and all costs of the Authority performing its obligations under this Agreement, (2) pay, when due, the principal, interest, trustee's fees, and paying agent's fees for Bonds issued by the Authority to finance construction of the Facility, (3) pay, when due, any amounts necessary Indenture revenues, to replenish to reserve funds in accordance with the executed by the Authority, and (4) to insure that net after payment of operating and maintenance expenses in the current fiscal year, together with amounts on deposit in the Rate Stabilization Fund of the Indenture shall be sufficient to provide amounts sufficient to pay debt service in an amount equal to 110% thereof. Tipping Fees shall be adjusted upon issuance of Additional Bonds under the Indenture in an amount sufficient to pay any amounts arising under or with respect to such Additional Bonds analogous to those described in (1) through (4) above for the initial Series 1985 Bonds, including, without limitation, debt service on fees relating -12 - to and reserve fund payments under such additional bonds and any additional costs of operation and maintenance attributable thereto. (d) The City of Fayetteville unconditionally agrees and guarantees to charge, collect and pay from Sanitation Fund Revenues all obligations under (c) above. (e) Notwithstanding anything in this Agreement to the contrary, the foregoing obligations of the Authority, the Cities, and the County to collect or pay Tipping Fees shall be absolute and unconditional, and such Tipping Fees shall be maintained and collected without any offset, abatement, credit or deduction whatsoever. SECTION 402 Dispute on Billing: In the event of a dispute as to any portion of any bill, the disputing Authority Member shall, within five (5) days from due date of the disputed bill, give the Authority written notice 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. If the disputing Authority Member and the Authority are unable to resolve a disputed bill, the dispute shall be resolved by arbitration with disputing Authority Member and the Authority selected decision to each select an arbitrator and the two arbitrators so to select a third arbitrator. The arbitrators shall render a in writing within thirty (30) days of their final selection, and the decision by a majority of the arbitrators shall be binding on the disputing Authority Member and the Authority. -13 - ARTICLE 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 Cities and the County 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 Cities and the County during reasonable business hours. On each delivery, the Cities and the County shall receive a copy of the ticket showing the date and weight. ARTICLE VI Other Users, Hours of Operation, and Other Matters: SECTION 601 -- Ccmoetitive Facilities: The Cities and the County will forthwith take such action as is necessary or proper to enable it to deliver Acceptable Waste to the Facility on and after the Ccr:mencement Date. After the Commencement Date, the Cities and the County shall not directly or indirectly cause or permit Acceptable Waste to be delivered by its employees, subcontractors or agents to facilities other than the -14 - Facility; provided, the Cities and the County may place containers for recyclable material at or adjacent to the Facility, in which event Acceptable Waste which is recyclable may be placed in said containers and shall be recycled and disposed of by the Cities and the County. The Cities and the County may take such action as they determine 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 Operator of the Facility of waste from the Cities and the County 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 restriction and shall not in any way obligate the Operator of the Facility thereafter to accept Non -Acceptable Waste. SECTIO 602 — Ownership Rights: Upon delivery of any Acceptable Waste to the Facility, it shall become the property of the Authority; provided, Acceptable Waste placed in containers for recycling by the Cities and the County shall be the property of the Cities and the County. SECTION 603 — Hours of Operation and Office: The Facility shall remain open to receive Acceptable Waste between the hours of 7 a.m. and 4 p.m., Monday through Friday and 7:00 a.m. and 12:00 noon on Saturday. Said hours may be modified by mutual agreement of the Authority and the Operator of the Facility. -15 - ARTICLE VII SECTION 701 — Default: A. Remedies for Default. Any event of default under this Agreement shall be remedied solely by suit for damages or specific performance and shall not give rise to a right of termination or any right of offset, abatement, credit or deduction whatsoever, unless the Authority provides the Trustee with sufficient funds to redeem all outstanding bonds under the Indenture and such bonds shall have been defeased under the Indenture. B. Events of Default by the Authority. Each of the following shall constitute an Event of Default on the part of the Authority: (1) The persistent or repeated failure or refusal by the Authority to substantially fulfill any of its obligations under this Agreement; provided, however, that no such default shall constitute an Event of Default unless and until: (a) An Authority member has given prior notice to the Authority specifying that a default or defaults exist(s) which will, unless corrected, constitute a material breach of this Agnement on the part of the Authority. (b) The Authority either has not corrected such default or has not initiated reasonable steps to correct the same within thirty (30) days of receipt of such notice, and thereafter does not continue to take reasonable steps to correct such default. (2) The filing by the Authority of a petition seeking relief under the Bankruptcy act or any Federal or State Statute -16- intended to provide relief for political subdivisions which are insolvent or unable to meet their obligations as they mature. C. Events of Default by Authority Member. Each of the following shall constitute an Event of Default on the part of an Authority Member: (1) The persistent or repeated failure or refusal by an Authority Member to substantially fulfill any of its material obligations in accordance with this Agreement; provided, however, that no such default shall constitute an Event of Default unless and until: (a) the Authority has given prior written notice to the Authority Member specifying that a default or defaults exist which will, unless corrected, constitute a material breach of this Agreement on the part of the Authority Member; and (b) the Authority Member either has not corrected such default, or has not initiated reasonable steps to correct the same within thirty (30) days from the date of such notice and thereafter does not continue to take reasonable steps to correct such default. (2) The filing by the Authority Member of a petition seeking relief under the Bankruptcy Act or any Federal or State Statute intended to provide relief of political subdivisions which are insolvent or unable to meet their obligations as they mature. -17 - ARTICLE VIII SECTION 801 — Maintenance and Repairs: On days when the Facility is shut down for maintenance or repairs, and during any other partial or full shutdown of the Facility, the Cities and the County shall dispose of waste at disposal locations provided by the Authority at the Authority's expense during the shutdown. period. The Authority shall be entitled to the Tipping Fees prescribed in this Agreement during said shutdown periods. ARTICLE IX Miscellaneous. SECTION 901 -- Limitations upon consent: whenever, under the provision of this Agreement, either party is called upon to give its written consent, such written consent will not be unreasonably withheld. SECTION 902 — Form of Consent: All consents of any kind required under this Agreement shall be in writing. whenever, under the terms of this Agreement, the Authority is authorized to give consent, such consent may be given and shall be conclusively evidenced by the Chairperson of the Authority. Whenever, under the terms of this Agreement, the Authority Member is authorized to give its consent, such consent may be given and shall be conclusively evidenced in writing by the chief executive of the Authority Member. -18 - SECTION 903 — Notices, Documents and Consents: All notices required to be given or authorized to be given by any party pursuant to this Agreement shall be in writing and shall- he served personally or sent by certified mail, return receipt requested, to: City of Fayetteville c/o City Manager 113 W Mountain Street Fayetteville, AR 72701 City of West Fork c/o Mayor City Hall West Fork, Arkansas Northwest Arkansas Resource Recovery Authority c/o Chairperson 113 W Mountain Street Fayetteville, AR 72701 Washington County, Arkansas c/o County Judge Washington County Courthouse 72774 Fayetteville, Arkansas 72701 Union National Bank of Little Rock c/o First Vice Preside..^.t and and Trust Officer 3rd Floor Union National Bank Little Rock, AR 72201 SECTION 904 -- Amendments: Financial Guaranty Insurance Company c/o President 175 Water Street New York, N.Y. 10038 This Agreement may be amended frau time to time by written agreement duly authorized a..d executed by the parties hereto, provided, any amendment must have the prior written approval of the Trustee and Financial Guaranty Lnsurance Company. SECTION 905 -- Execution of Documents* This Agreement shall be executed in several counterparts, any of which shall be regarded for all purposes as an original and all of which constitute but one and the same instrument. Each party agrees that it will execute any and all deeds, documents or other instruments, and take such other action as is necessary to give effect to the terms of this Agreeme..t. • -19- SECTION 906 — Waiver: No waiver by either party of any term or condition of this Agreement will be deemed or construed as a waiver of any other terms or condition, nor shall a waiver of any breach be deemed to constitute a waiver of any subsequent breach, whether of the same or of a different Section, subsection, paragraph, clause, phrase, or other provision of this Agreement. Making payment pursuant to this Agreement during the existence of a dispute shall not be deemed to and shall not constitute a waiver of any of the claims or defense of the party making such payment. SECTION 907 -- Entirety: This Agreement merges and supersedes all prior negotiations, represen- tations, and agreements between the parties hereto relating to subject matter hereof and constitutes the entire agreement between the parties hereto in respect thereof. SECTION 908 — Indemnities: The Authority will indemnify and hold the Cities and the County harmless from and against all liabilities, losses, damages, penalties, causes of action, suits, costs and expenses (including, without limitation, attorneys fees and expenses), and will pay any fines, claims or judgments of any nature rendered against the Cities and the County for injuries (including death) to any person or damage to any property due to or arising out of or in connection with the performance of the Authority's obligations under this Agreement or the failure of the Authority to comply, or any alleged failure to comply, with any applicable Federal, State or local law, ordinance, rule or regulation, order or other requirement; provided, the amount of indemnification shall be limited to the amount of liability insurance proceeds received by the Authority. SECTION 909 — Independent Contractor: Throughout the term of this Agreement, the Authority will operate as an independent contractor. Nothing herein shall be construed as creating a partnership or joint venture between the parties hereto, and neither party shall have the power to bind or obligate the other to an agreement with a third party.