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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. -2a SHLTION 910 — Assignment to Trustee: This Agreement shall be assigned to the Trustee under the Indenture for the Authority's Bonds, such assignment to be for the benefit. of the Bondholders. The Trustee shall be deemed a third party beneficiary to this Agreement. SECTION 911 — Governing Law: This Agreement shall be governed and construed under and pursuant to the laws of the State of Arkansas. The Authority warrants that under Arkansas law the Authority is authorized to enter into this Agreement. IN WINES ?1EREDF, the parties hereto have executed this Agreement as of the day and year first above written. City fayete By; \FI le, Arkansas �C Mayor Attest: aty C1ep�F' �i z? Washington County, Arkansas By: r/ -- County Ju/dge �l Attes z6c LCot9tit clerk City o st Fork, Arkansas v By: ~Mayor Attest:<w(.N., la.t.4L City Clerk Northwest Arkansas Resource Recovery Authority By: 2aa 4C- Chairperson Attest: Secretary .. • MICROFILMED • .. • s . : . A RESOLUTION 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. o.• THE o-t••a') •.. • i •. 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 West 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 narPmhar , 1986. APPROVED By: 'I C� Mayor ATTEST By: ty lerk This AGRIENF 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 host Fork City Council, and the Washington County Quorum Court have determined that provision mist 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 econanical high -capacity solid waste resource recovery facility ("the Facility") if a sufficient number of political subdivisions are camiitted to its use and support; and, WHEREAS, the Cities and the County have considered the system proposed by the Authority and have found that said system will afford a safe, sanitary and environmentally desirable n -sans for the disposal of sniiu waster for the next t:,r &.ecades. ter TIMBEYCRE'.. ; ; ca . idera:t o . ce the rnuntua'Il pn raises and consid- eraciors, ''nrei se$. iti•t',c.,, it is. ere'7' as. follows:: ! '' ,i Y�, i, rri -2- Definitions and Terms of Agreement: SwrioN 101 — Definitions: As used in this Agreement, the words and terms listed in this Section shall have the following meanings: Acceptable Waste shall man 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 comrercial 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. Billing Period shall :Wean each calendar month in each Contract Year. Business Day shall mean each Monday, Tuesday, Wednesday, Thursday, Friday and Saturday which is not a legal holiday of the State. Chance -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. Ccnmeencement Date shall mean the date on which the Operator ccamlences carmercial 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. Carmercial 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 conmencing on January 1 of each year and ending on the following December 31 except that the first Contract Year shall be for the period coimiencing on the Camienceme^t Date and ending on December 31 of the, calendar year in which the Canmencement Date occurs. Contractor shall mean M -K Ferguson CuLyany, 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 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, fire, explosion, storm, flood a public enemy, war, blockade, or restraint of government and occurrence. landslide, lightning, earthquake, or similar occurrence, an act of insurrection, riot, general arrest ,eopie, civil disturbance or similar (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 charge in interpretation of any federal, state, or local law, regulation, ordinance or court order after August 8, 1986, or establishment by the United States Enviro_mental 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- Tippina Fees shall be the direct charge by the Authority to the Cities and the County (1) for each ton 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 9401 hereof. Minimum Ccmnitment shall mean an average of 33,565 tons per year of Acceptable Waste Eor 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. Non -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 miean. M -K Ferguson Ccmpany. Period shall mean Billing Period. fl 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 fran receipt of said notice, shall create a right to terminate this Agreement; 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 under the Indenture (herein sometimes collectively called the "Bonds"), as supplemented (the "Indenture") between the Authority and Union National Bark 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. SFETICN 102 — Term of Agreement: The term of this Agreement shall ccrsnence 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 Bonds and such Bonds shall be defeased. ill A r C E 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 Commitme^.t shall not constitute a breach of this Agreement if the stipulated Tipping Fees have bee". paid. 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 Ccmrencement 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 — Acceotance 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 Ccraaercial Haulers, if any, that delivery of Non -acceptable Waste to the Facility is prohibited. r 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 Commercial 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 Camnittent shall be increased or decreased. 11 -9- ARTICLE III Obligations during period when an Uncontrollable Circumstance has occured. SECTION 301 -- Obliaations of the Parties: if an Uncontrollable Circumstance 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 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. 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 beer. 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 103 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 commerce 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 Commence- 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 FL nd ve^.ues). The Cities and the County agree that said charges, to,ether 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 • 1 -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 to replenish to reserve funds in accordance with the Indenture executed by the Authority, and (4) to insure that net revenues, 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 Billinc: 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 to each select an arbitrator 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 disputing Authority Member and the Authority. p -13- 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. Other Users, Hours of Operation, and Other Matters: SECLZON 601 — Ccrz)etitive 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 Corriencement Date. After the C ncement 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 • Y: -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 Eor the collection, disposal and treatment of Pion -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. SECTI N 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 — '?ours of operation and Office: The Facility shall remaiopen 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 agreement 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 L • -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 frcm the date of such notice and thereafter does^•ot 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- AFTICIB 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. Miscellaneous. SECTION 901 -- Lunitations 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. SECTIG`I 902 — Form of Consent: All consents of any kind required under this Agreement shall be in writing. Wnenever, 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 Chairperscr: 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, Doctrents 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- be 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 President and and Trust Officer 3rd Floor Union National Bank Little Rock, AR 72201 SDCTICN 904 -- A-nencrents: Financial Guaranty Insurance Cu:pany c/o President 175 Water Street New York, N.Y. 10038 This Agreement .may be amended from time to time by written agreement duly authorized and executed by the parties hereto; provided, any amendment must have the prior written approval of the Trustee and Financial Guaranty Insurance Company. SECTION 905 -- Execution of Dcc rrents: 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 instrrent. Each party agrees that it will execute any and all deeds, docLents or other instruments, and take such other action as is necessary to give effect to the terms of this Agreement. ., -19- SECTICN 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. SECPICN 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. SFXTICN 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 excesses), 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 — Indeeendent Contractor: Throughout the term of this ree:rent, 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 pcoer to bind or obligate the other to an agreement with a third party. . -20- SEJ(TI0N 910 — Assignment to Trustee: This Agreement shall be assigned to the Trustee under the Indenture for the Authority's Bonds, such assignment to be for the benefit of the Bondholders. The Trustee shall be deemed a third party beneficiary to this Agreement. SECTION 911 — Governing Law: This Agreement shall be governed and construed under and pursuant to the laws of the State of Arkansas. The Authority warrants that under Arkansas law the Authority is authorized to enter into this Agreement. IN WITNESS 40F, the parties hereto have executed this Agreement as of the day and year first above written. City,of"Fayet e i le, Arkansas By: Mayor Attest :,/� :c%,., / �a Ctty C1er, Washington County, Arkansas By: County Ju/dge/ Attes e 66 cv-e — Cc .ty Lierk City ofr st Fork, Arkansas B:; Y Mayor Attest: cc.t& City Clerk Northwest Arkansas Resource. Recovery Authority By: / . // Chairperson Attest: Secretary r„ p :rETTEVILL7E, 4R7 OFFICE OF CITY CLERK. 113 W. MOUNTAIN STREET 72701 4 December 19, 1986 CERTIFICATE I. Suzanne C. Kennedy, City Clerk, City of Fayettevi-1'ie;== Q,�r. .i. t 5N Washington County, Arkansas, do hereby certify that the attached is a true and correct copy of Resolution No. 120-86, passed and approved by the Board of Directors of the City of Fayetteville, Arkansas, on the 5th day of December, 1986. CI CLERK Acknowledgement STATE OF ARKANSAS )ss COUNTY OF WASHINGTON) BE IT REMEMBERED, that on this day came before the undersigned, a Notary Public within and for the County aforesaid, duly commissioned and acting, Suzanne Kennedy, Fayetteville City Clerk, to me well known and stated that she had executed the above certificate for the consideration and purposes therein mentioned and set forth. WITNESS my hand and seal as such Notary Public this day of 1986. 4d as c Th oti,� Notary Public My Commission Expires: Y r. RESOLUTION NO 1,n-aF A RE OLUTION 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 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 agreement with the Northwest Arkansas Resource Recovery Authority, the City of West 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 APPIK)VED this 5 day of fPr-PMhAr r 1986. ATTEST J ty lerk �` By: APPROVED By: >'7'kuJJ 941t?L) Mayor a'. . I This AGREQgNP 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 proposed 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: ARTICLE I Definitions and Terms of Agreement: SO TICK 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; 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. Billing Period shall mean each calendar month in each Contract Year. Business Dav shall mean each Friday and Saturday which is Change -in -Law or Regulations regulations,codes, envirc Monday, Tuesday, Wednesday, Thursday, not a legal holiday of the State. means future revisions to statutes, rules, mmental 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 and notifies the Authority in writing that it is prepared to receive it 3 -- 1. 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 Camrencemn_nt 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 Novemtrr 19 Uncontrollable Circumstance means any act or event that has had or may reasonably be expected to have a material adverse effect on the l 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, fire, explosion, storm, flood a public enemy, war, blockade, or restraint of government and occurrence. landslide, lightning, earthquake, or similar occurrence, an act of insurrection, riot, general arrest )eople, civil disturbance or similar (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 Enviro=mental 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 . ,1: 4 L. -5 Tipping Fees shall be the direct charge by the Authority to the Cities and the County (1) for each ton 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. Non -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 goverrment or any agency or political subdivision thereof. State shall mean the State of Arkansas. Ton shall n an 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 Agreement; 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 under 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. SDCTICN 102 — Term of Agreement: The term of this Agreement shall conmence 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 fu`ids to redeem the Series 1985 Bonds and any Additional Bonds and such Bonds shall be defeased. 7 ARTICIE 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 Camnitment 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. ' 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 — Acceotance 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, -8 - 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 Cannercial 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 I 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. 1 -9- ARrICIE III Obligations during period when an Uncontrollable Circumstance has dccured. SEJLTION 301 -- Obligations of the Parties: if an Uncontrollable Circumstance 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 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. Payments, Procedures: The Cities' and the County's payments shall be made monthly to the Authority in Accordance with the following procedures. SE7CfION 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 Commence- 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 Citiesand the County's obligation to pay Tipping Fees shall be payable solely out of intone received by the Cities and the County if ran 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 L 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 to replenish to reserve funds in accordance with the Indenture executed by the Authority, and (4) to insure that net revenues, 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 1100 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 to each select an arbitrator 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 disputing Authority Member and the Authority. 1i 1' a -13- ARrICTE V S& TICK 501 -- Scale and Tests: The Authority will cause to be provided, installed, and used such appropriate scales as are necessary Eor 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 -sharing the date and weight. Other Users, Hours of Operation, and Other Matters: SECTION 601 -- CdTmetitive 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 Commencement Date. After the Co mencement 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 4. G -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 ii 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; provided, Acceptable Waste placed in containers for recycling by the Cities and the County shall be the property of the Cities and the County. SEClICN 603 — Hours of Operation and Office: The Facility shall remain open to receive Accdptable Waste between the hours of 7 a.m. and 4 p.m., Monday through Friday and 7:00 a.m. and 12:00 -:oon on Saturday. Said hours may be modified by mutual agreement of the Authority and the Operator of the Facility. _15_ J ARTIQE VII SECTION 701 — Default: A. Re edies 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 D?fault 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 Agreement 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 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 frcxn 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. N -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. 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. SECTIGN 902 -- Fonn 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 ba given and shall be conclusively evidenced in writing by the chief executive of the Authority Member. -18- SECTION 903 — Notices, Documents and Consents: 2. 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 - 72774 Union National Bank of Little Rock c/o First Vice President and and Trust Officer 3rd Floor Union National Bank Little Rock, AR 72201 SECTIGN 904 -- Amendments: 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 Fayetteville, Arkansas 72701 Financial Guaranty Insurance Company c/a President 175 Water Street New York, N.Y. 10038 This Agreement may be amended from time to time by written agreement duly authorized and executed by the parties hereto; provided, any amendment must have the prior written approval of the Trustee and Financial Guaranty Insurance Company. SECTION 905 -- Execution. of Docturents: 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 Agreement. i -19- SFrrICN 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 sang 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 excenses), 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. SECrICN 909 — Inderendent 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 paver to bind or obligate the other to an agreement with a third party. 1 -20 SECTION 910 -- Assignment to Trustee: This Agreement. shall be assigned to the Trustee under the Indenture for the Authority's Bonds, such assignment to be for the benefit of the Bondholders. The Trustee shall be deemed a third party beneficiary to this Agreement. SECTION 911 — Governing Law: This Agreement shall be governed and construed under and pursuant to the laws of the State of Arkansas. The Authority warrants that under Arkansas law the Authority is authorized' to enter into this Agreement. IN WITNESS WBEREOF, the parties hereto have executed this Agreement as of the day and year first above written. City flFayette i le, Arkansas City o ' st Fork, Arkansas " Mayor ! Mayor Attest:Attest: / Qt'ty Clerks 'City Clerk Washington County, Arkansas By: County Judge Attes� L(,6 G��vt•w�— Cou�'ty . Northwest Arkansas Resource.. Recovery Authority By: ///&a %L . Chairperson Attest:j/G(�� Secretary _ 'y f. ^uI RESOLUTION EA. 120-86 A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK TO EXECUTE_ A WASTE DISPOSAL CONTRACT WITH THE NORTHWEST ARKANSAS RESOURCE RECOVERY AUTHORITY. ♦y •/14 BE IT RESOLVED BY THE BOARD OF DIRfl 1DRS OF THE CITY OF FAYEPIEVII.EE, :. RRAESS. :r': AA • k. Section 1. 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 contractlauthorized for execution hereby is attached hereto marked Exhibit "A" and made part hereof. PASSED AND APPROVED this 5th day of December , 1986 a J:: • ��c• t Ar APPROVED 1By. 6cc/f? ''a" Aayor ATTEST • By. • i1?Cler%k'C 01k' 7) f This AGREEMENT executed this day of 19 , 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 i 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, • r WHEREAS, the Cities and the County have considered the system proposed 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 consi.d- Irations herein set forth, it is agreed as follows: 4 A -3- Acceptable Waste at the Facilityi 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. Camaercial 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 tCamiencement Date and ending on December 31 of the calendar year in which the Commencement Date occurs. Contractor shall mean ti -K Ferguson Company, Cleveland, Ohio. Ecoraric.Viability shall mean that point during operation of the Facility when revenues from tipping fees and from the sale of electricity equal the cost of operation plus debt service requirements. Excess Revenues shall mean revenues from the sale of electricity over and above revenues necessary to achieve economic viability. f. R. AP 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 ?� , a.� r.n `i_r. ^11 • .� II. 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 an this Agreement or a material adverse effect on the Facility, the Facility .T'r. Site, or the construction, operation or ownership or possession of 'any or all of them, if such act or event is beyond the reasonable a control of the party relying thereon as justification for not performing f °f an obligation or canplying with any condition required of such party under this Agreement. Such acts or events shall include but shall not be limited to the following: L •` (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 ofgovernment and people, civil disturbance or similar occurrence." (b) the order and/or judgment of any federal, state, local or i Y foreign court, administrative agency or governmental officer or body;. i (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; ''y!! (d) adoption, promulgation, moiification or change in interpretation riD of any federal, state, or local law, regulation, ordinance or court order after August 8, 1986, or establishment by the United States Environmental Protection Agency (the "USEPA") of requirements differing from those specified by the Arkansas Department of w^ Pollution Control and Ecology in their Permit No. 737 -AR -1 . e5: f ' R Tipping Fees shall be the direct charge by the Authority to the Cities and the County for each ton 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. Minimum Connitment shall mean an average of tons per year of Acceptable Waste for the City of Fayetteville each Contract Year, an average of tons per year of Acceptable Waste for the City of West Fork each contract year, and tons per year of Acceptable Solid Waste for Washington County. tC Non -Acceptable (when not in waste, radioact kind or other Waste shall mean pesticides, insecticides, chemicals normal household waste), pathological avid biological ive mbterials, oil sludges, hazardous refuse of any 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. rator shall mean M -K Ferguson Company. Period shall mean Billing Period ii -6- I Person shall mean any: individual, corporation, partnership, joint venture, association, joint-stock canpany, trust, unincorporated organi- zation or government or any agency or political subdivision thereof. State shall mean the State of Arkansas. Ton shall nean 2,000 pounds. e'. Notice of Default shall mean written notice specifying the asserted event of default which, if not corrected within thirty (30) days 1 Iran receipt of said notice, shall create a right to terminate this Agreement; provided, this Agreement may only be terminated upon an event of default if the Authority provides the Trustee for bonds issued the Authority with sufficient funds to redeem all outstanding bonds it er the indenture and such bonds shall be defeased. fl'ICN 102 -- Term of Agreement: The term of this Agreement shall commence on the Cannencement Date and shall continue until (1) all bonds issued by the Authority to ll'sance construction of the Facility have been redeemed, or (2) such welter date as the Authority provides the Trustee with sufficient ta3s to redeem all outstanding bonds and such bonds shall be defeased. .•I I! �S, -7 Services to be provided: SEL•rICN 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 .rfyM.�lt f. or the County to deliver or cause to be delivered the Minimum -••YxFh`."c.. Commitment shall not constitute a breach of this Agreement if the stipulated Tipping Fees for the Minimum Commitments have been paid. y 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 aid ordinances. 2MIGN 202 — Acceptance of Waste: In order to assure that only Acceptable Waste is delivered to •n the Facility, the Cities and the county shall give written notice to its Collection Contractors and Commercial Haulers, if any, I J -B- 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 Co miercial Haulers, to the Facility of Non -acceptable Waste. The Cities and the County F.Jn acknowled a and agree that the g g 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. 8. 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 pf 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.. -9- ARTICLE III obligations during period when an Uncontrollable Circumstance has occured. gpCrICN 301 — obligations of the Parties: If an Uncontrollable Circumstance prevents the Operator of the Facility :1 f-cxaccepting and processing Acceptable Waste at the Facility (despite wLdu r`:the reasonable efforts of the Operator to continue to receive Acceptable nF:� .._ rrvWaste at the Facility or elsewhere on the Facility site), the Authority • a„ 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 f: payments, Procedures: Camrencing at the end of the first calendar month in which waste is delivered to the Facility, the Cities' and the County's payments shall be made monthly to the Authority in Accordance with the following procedures. StY.FICN 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% Y j -lo- per anum on the unpaid balance, but not to exceed the highest ( rate allowed by law. Such late payment charge shall be added 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 e in full for more than ninety (90) days following the end of the Iy.{pt°y. delivery month, the Authority shall have the right to have the 4 ..I IIS�"yyam' 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 Commence - rent Date, or (b) the date all amounts deposited in the Construction • Interest Account as capitalized interest shall be depleted. (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 at the Facility (Sanitation Fund Revenues). The Cities and the County agree that said charges, together with other revenues • ad funds available to the Authority, shall, at all times during the term of this Agreement, be maintained and collected at a lawl sufficient to enable the Cities and the County to pay the -11 lished by this Agreement which Tipping Fees shall, at all times during the term of this Agreement be sufficient for the Authority to (1) pay all operating and maintenance expense of the Authority for the current year, (2) pay 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 any amounts necessary to replenish the reserve funds in accordance with the Indenture executed by the Authority, and (4) to insure that net revenues, after payment of operating and maintenance expenses, together with amounts on deposit in the Rate Stabilization Fund of the Indenture shall be sufficient to provide debt service coverage in an amount equal to 110%. Tipping fees shall be adjusted upon issuance of Additional Bonds under the Indenture in an amount sufficient to pay debt service on such Additional Bonds. y t (d) The City of Fayetteville unconditionally guarantees to pay from Sanitation Fund Revenues all operating and maintenance expenses it of the Authority which are not offset by energy sale revenues, plus the principal, interest, trustee's fees and paying agents fees for bonds issued by the Authority to finance construction of the Facility. • 2ETICN 402 Dispute on Billing: to the event of a dispute as to any portion of any bill, the disputing +uchority Member shall within five (5) days from due date of the disputed L11, give the Authority written notice of the dispute. Such notice u'411 identify the disputed bill, state the amount in dispute and Y p -12- l set forth a full statement of the grounds which form the basis of such dispute. Flo 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 the disputing Authority Member and the Authority to each select an arbitrator and the two Q;P arbitrators so selected to select a third arbitrator. The arbitrators shall.render a decision in writing within thirty (30) days of their vY y final selection, and the decision by a majority of the arbitrators -°i shall be binding on the disputing Authority Member and the Authority. t•e . 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 limitsrequired 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 td audit by the Cities and the County during reasonable business his• O1 each delivery, the Cities and the County shall receive a WQY of the ticket shaving the date and weight. ARTICLE vi {• other Users, Hours of Operation, and Other Matters: stcrION 601 — Competitive 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 Commencement Date. the Ccnr encement 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 tH 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. il. The Cities and the County may take such action as they determine is eecessary for the collection, disposal and treatment of Non -Acceptable M ste 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 I�.o^e or more instances or under ore or more circumstances shall s • 'at constitute a waiver of such limit or restriction and shall not tt any way obligate the Operator of the Facility thereafter to accept ':^acceptable Waste. yA -14- 6 02 — Ownership Riqhts: 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. SF7Cr1CN 603 — Hours of Operation and Office: The Facility shall remain open to receive Acceptable Waste between de hours of 7 a.m.. and 4 p.m., Monday through Friday and 7:00 a.m. and °12:00 noon 0n Saturday. Said hours may be modified by mutual agreement a the Authority and the Operator of the Facility. SEMCN 701 — Default: A. Remedies for Default. Any event of default under this Agreement shall be remedied solely by suit for damages of specific performance and shall not give rise to a right of termination, unless the Authority provides the Trustee with sufficient funds to redeem all outstanding bonds under the Indenture and such bonds shall be defeased. i. £rents of Default by the Authority. Each of the following shall constitute an Event of Default on the part of the Authority: (l) 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: rA ` 1 -15- y•p. (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 Agreement 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. 3 (2) The filing by the Authority of a petition seeking retef 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. 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 i,A1 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 4 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 .167 (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. ARTICLE VIII s riON 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 lz this Agreement during said shutdown periods. f. \ .• ArMCLE Iii Mtacellaneous, CtION 901 -- Limitations upon consent: under the provision of this Agreement, either party is called `)n to give its written consent, such written consent will not be "�*4541nably withheld. s -17- SOMON 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, v - C under the terms of this Agreement, the Authority Member is authorized to give its consent, such consent may be given and shall be conclusively • 4t evidenced in writing by the chief executive of the Authority Member. SOLTlON 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 be 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 best Fork, Arkansas 72774 Onion National Bank of Little Rock C/o First Vice President and t c; and Trust Officer 3rd Floor Union Natio^al Bank Uttle Rock, AR 72201 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 Fayetteville, Arkansas 72701 Financial Guaranty Insurance Company c%o First Vice President, Department of Risk Management 175 Water Street New York, N.Y. 10038 s -18- S ( sECrICN 904 — Amendments: This Agreement may be amended from time to time by written agreement duly authorized and executed by the parties hereto; provided, any amendment must have the prior written approval of the Trustee and Financial Guaranty Insurance Company. SECTION 905 — Execution of Documents: I ; This Agreement shall be executed in several counterparts, any of which shall be regarded for all purposes as an original and all of which ;�': h•. constitute but one and the same instrument. Each party agrees that y Him 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 Agreement. 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. 4 f f ; 3 i Jr -19- A'. SEMON 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. p;•. srtrlcN 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) toany 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 carply, 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 r. . as an independent_ contractor. Nothing herein shall be construed as treating a partnership or joint venture between the parties hereto, rd neither party shall have the power to bind or obligate the other to an agreement with a third party. , 'at -20- a SEMCN 910 — Assignment to Trustee: This Agreement shall•be assigned to the Trustee under the Indenture for the Authority's Bonds, such assignment to be for the benefit of the Bondholders. The Trustee shall be deemed a third party beneficiary to this Agreement. swrIci 911 — Governinq Law: This Agreement shall be governed and construed under and pursuant ur to the laws of the State of Arkansas. The Authority warrants that kr-under Arkansas law the Authority is authorized to enter into this 'llgceement. IN WITNESS MiERDDF, the parties hereto have executed this Agreement as of the day and year first above written. Cit ayeettte a ka sa/s/ gy�� Mayor Attest: �_ ity C1erK Nshi-ngton County, Arkansas Cou•nty Judge kUs t : Cow:ty Clerk City of West Fork, Arkansas By: Mayor Attest: City Clerk Northwest Arkansas Resource Recovery Authority By: Chairperson Attest: Secretary pF141 AGREEMERr This AGRFFJ4E2Tr 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 [ st Fork City Council, and the Washington County Quorum Court have determined that provision ;rust 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 proposed 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. rni, TfEREFORE, in consideration o€ the mutual promises and consid- erations herein set forth, it is agreed as follows: -2 - ARTICLE I Definitions and Terms of Agreement: SOCrION 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; 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. Billing Period shall mean each calendar month in each Contract Year. Business Day shall mean each Monday, Tuesday, 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 Late 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 -3 - 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. Camiercial 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 Camencement Date and ending on December 31 of the, calendar year in which the Commencement Date occurs. Contractor shall mean M -K Ferguson Cacg�any, 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 Environmental 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 ton 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. Non. -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 ccyany, 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 fran receipt of said notice, shall create a right to terminate this Agreement; 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 under 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 Agreement: The term of this Agreement shall ccnrence 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 Bonds and such Bonds shall be defeased. -7 - 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 delivered to the or the County to Commitment shall the stipulated Til less than 1/12 the Minimum Commitment to be Facility; provided, the failure of the Cities deliver or cause to be delivered the Minimum not constitute a breach of this Agreement if ping Fees have been paid. 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 Cities and the County shall give written notice to its Collection Contractors and Camnercial Haulers, if any, -8 - 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 Commercial 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 Comunitirents 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 Peached = Number of Tons which Commitment shall be increased or decreased. -9 - ARTICLE III Obligations during period when an Uncontrollable Circumstance has occured. SECTION 301 -- obligations of the Parties: If an Uncontrollable Circumstance 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 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. 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 Comrrence- 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 to replenish to reserve funds in accordance with the Indenture executed by the Authority, and (4) to insure that net revenues; 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 collector 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 writtennotice 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 to each select an arbitrator 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 disputing Authority Member and the Authority. -13 - 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. Other Users, Hours of operation, and Other Matters: SECTION 601 -- Camvetitive 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 Carmencement 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. SECMCN 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 'oon on Saturday. Said hours may be modified by mutual agreement of the Authority and the Operator of the Facility. -15- ARCICIE 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 Agreement 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 fran 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. 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- be 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 72774 Union. National Bank of Little Rock c/o First Vice President and and Trust Officer 3rd Floor Union National Bank Little Rock, AR 72201 SECTION 904 -- Pmendments: 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 Fayetteville, Arkansas 72701 Financial Guaranty Insurance Company c/o President 175 Water Street New York, N.Y. 10038 This Agreement may be amended from time to time by written agreement duly authorized and executed by the parties hereto; provided, any amendment must have the prior written approval of the Trustee and Financial Guaranty Insurance 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 Pgreement, -19- SFZTICN 906 — Waiver: No waiver by either party of any tern 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. SF7CPICN 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. SF)C1'ICN 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. SWIN 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. -20- SE7CTION 910 — Assignment to Trustee: This Agreement shall be assigned to the Trustee under the Indenture for the Authority's Bonds, such assignment to be for the benefit -_of the Bondholders. The Trustee shall be deemed a third party beneficiary to this Agreement. SE7CTI0N 911 — Governing Law: This Agreement shall be governed and construed under and pursuant to the laws of the State of Arkansas. The Authority warrants that under Arkansas law the Authority is authorized to enter into this Agreement. IN Wr1NESS ?OF, the parties hereto -have executed this Agreement as of the day and year first above written. City f rF.ay t i le, Arkansas By: Mayor Attest: �`' .' w ty C1ep Washington County, Arkansas By: County Judge A AttestC// �-- !!!�, Co y . erk tr: City o 'st Fork, Arkansas By: Mayor Attest: &" � � T.' • � 1♦ w A City Clerk Northwest Arkansas Recovery Authority By: Ga 4? (/a Chairperson �" Attest: / I r�Gc4. , e%/�C 3 Secretary /& nY. 1 1. .. C-, MM_YJ..Y xrl W .sv; t�>> FAYETTEVILLE, ARKANSAS OFFICE OF CITY CLERK 113 W. MOUNTAIN STREET 72701 (501) 521-7700 December 19, 1986 CERTIFICATE Y P I, Suzanne C. Kennedy, City Clerk, City of Fayetteville, rY� Washington County, Arkansas, do hereby certify that the attached is a true and correct copy of Resolution No. 120-86, passed and approved by e" Ya the Board of Directors of the City of Fayetteville, Arkansas, on the ht. 5th day of December, 1986. CI CLERK Acknowledgement STATE OF ARKANSAS )ss COUNTY OF WASHINGTON) • BE IT REMEMBERED, that on this day came before the undersigned, a Notary Public within and for the County aforesaid, duly commissioned and acting, Suzanne Kennedy, Fayetteville City Clerk, to me well known and stated that she had executed the above certificate for the consideration and purposes therein mentioned and set forth. WITNESS my hand and seal as such Notary Public this f�_ day of L4LPo.o 1 , 1986. . Y• ♦pr "'•`My Commission Expires: 9q 9, t Notary Public RESOIITI'ICN NJ. 120-66 A RESOLUTION AUTHORIZING THE MAYOR AND CITY CLERK IU EXECUTE_ A WASTE DISPOSAL CONTRACT WITH THE NORTHWEST ARKANSAS RESOURCE. RECOVERY AUTHORITY. Section 1. That and directed to execute Arkansas Resource Recover for execution hereby is nart hereof. the Mayor and City Clerk are hereby authorized a waste disposal contract with the Northwest y Authority. A copy of the contract authorized attached hereto marked Exhibit "A" and made PASSED AND APPROVED this 5th day of December , 1986 APPROVED ;� By A; Mayor ATTEST .., BY• .: i Clerk `YT This AGREEti rr executed this day of , 19_ , 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- rA;�. * 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 tir the County". WHEREAS, the Fayetteville Board of Directors, the hest 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 w . 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 proposed 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. 4. t, THEREFORE, in consideration of the mutual promises and consid- Orations herein set forth, it is agreed as follows: A 4 -Vr cif`^ I .3-- $fix 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 hi of each year and ending on the following December 31 except that the first Contract Year shall be for the period commencing on the E,. Commencement Date and ending on December 31 of the calendar year in which the Commencement Date occurs. Contractor shall mean td -K Ferguson Company, Cleveland, Ohio. )4l RY. Economic viability shall mean that point during operation of the Facility when revenues from tipping fees and from the sale of electricity equal the cost of operation plus debt service requirements. Excess Revenues shall mean revenues from the sale of electricity over and above revenues necessary to achieve economic viability. ity 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 rsy reasonably be expected to have a material adverse effect on the rights or obligations of the Cities, the County or the Authority under tnis Agreement or a material adverse effect on the Facility, the Facility .I.. �4' site, or the construction, operation or ownership or possession of w '% 4: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 *:'.n obligation or complying with any condition required of such party' under this Agreement. Such acts or events shall include but shall f , 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 Enviro^mental 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 for each ton 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. Minimum Commitment shall mean an average of tons per year of Acceptable Waste for the City of Fayetteville each Contract Year, an average of tons per year of Acceptable Waste for the City of West Fork each contract year, and tons per year of Acceptable Solid Waste for Washington County. Non -Acceptable Waste shall mean pesticides, insecticides, chemicals (when not in normal household waste), pathological and biological waste, radioactive ntterials, 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. razor shall mean M -K Ferguson Company. Period shall mean Billing Period. -6 - person shall mean any: individual, corporation, partnership, joint 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. shall mean 2,000 pounds. of Default shall mean written notice specifying the asserted of default which, if riot corrected within thirty (30) days , receipt of said notice, shall create a right to terminate this ._ Agreement; provided, this Agreement may only be terminated upon an 4_w "t event of default if the Authority provides the Trustee for bonds issued t [S. the Authority with sufficient funds to redeem all outstanding bonds S. lrtder the indenture and such bonds shall be defeased. StSTICN 102 -- Term of Agreement: W�p 3a' • Me term of this Agreement shall commence on the Commencement Date r^+ • M shall continue until (1) all bonds issued by the Authority to !l�sance construction of the Facility have been redeemed, or (2) such +earlier date as the Authority provides the Trustee with sufficient tQ%% to redeem all outstanding bonds and such bonds shall be defeased. Y'x 1 ••tfL -7 �t- ' F ARTICLE II _ Tyr Services to be provided: SEMCN 201 -- Responsibilities of the Cities, the County and Authority: p, Each month the Cities and the County shall cause Acceptable Waste J j•Y in an amount not less than 1/12 the Minimum Commitment to be delivered to the Facility; pr ovided, 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 for the Minimum Commitments have been paid. Be 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. TICK 202 — Acceptance of Waste: 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, h -8- �r4 that delivery of Non -acceptable Waste to the Facility is prohibited. Yr, The form of such notice must first be approved by the Authority. Such notice shall not relieve the Cities or the County of their 3 responsibility to use their best efforts to prevent the delivery, by the Cities or the County or by Commercial 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. S. 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 Commnitment, 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 To. ^.s which Commitment shall be increased or decreased. S. „ • N -9 - ARTICLE III H.. Obligations during period when an Uncontrollable Circumstance has occured. • jKy SpLria4 301 — Obligations of the Parties: If an Uncontrollable Circumstance 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 s. Haste at the Facility or elsewhere on the Facility site), the Authority flZ:stal1 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 r ayyments, Procedures:' r '> 0mrrencing at the end of the first calendar month in which waste is I delivered to the Facility, the Cities' and the County's payments shall • be made monthly to the Authority in Accordance with the following procedures. StX:PI0N 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% 4N 1. 1 as �.' -10- ielf. tom" r,{ - per anum on the unpaid balance, but not to exceed the highest rate allowed by law. Such late payment charge shall be added 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 a nt due andpayable the Cities and the County not be P Y� by paid • in full for more than ninety (90) days following the end of the Kp r• IAY,.. delivery month, the Authority shall have the right to have the • de; Operator of the Facility discontinue acceptance of waste from .lL Rl i.:. the Cities and the County until payment in full, including interest, •"+*r 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 X at. ' 3.1 end of the calendar month following the earlier of (a) the date on which waste is first delivered to the Facility after the Conrnence- ` rent skate, or (b) the date all amounts deposited in the Construction t Interest Account as capitalized interest shall be depleted. [e) The Cities' and the County's obligation to pay Tipping Fees shall ew be payable solely out of income received by the Cities and the - ;County from charges for the disposal of garbage and trash at the Facility (Sanitation Fund Revenues). The Cities and the Pa.t j _ County agree that said charges, together with other revenues and funds available to the Authority, shall, at all times during • 4r the term of this Agreement, be maintained and collected at a Level sufficient to enable the Cities and the County to pay the -11 lished by this Agreement which Tipping Fees shall, at all times during the term of this Agreement be sufficient for the Authority to (1) pay all operating and maintenance expense of the Authority for the current year, (2) pay 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 any amounts necessary to replenish the reserve funds in accordance with the Indenture executed by the Authority, and (4) to insure that net revenues, after payment of operating and maintenance expenses, together with amounts on deposit in the Rate Stabilization Fund of the Indenture. shall be sufficient to provide debt service coverage in an amount equal to 110%. Tipping fees shall be adjusted upon issuance of Additional Bonds under the Indenture in an amount sufficient to pay debt service on such Additional Bonds. (d) The City of Fayetteville unconditionally guarantees to pay from n �Y Sanitation Fund Revenues all operating and maintenance expenses of the Authority which are not offset by energy sale revenues, plus the principal, interest, trustee's fees and paying agents fees for bonds. issued by the Authority tofinanceconstruction •of the Facility. fl Yt tlON 402 Dispute on Billing: tithe event of a dispute as to any portion of any bill, the disputing hahority Member shall within five (5) days from due date of the disputed b 11, give the Authority written notice of the dispute. Such notice e -"a11 identify the disputed bill, state the amount in dispute and ^'7 .r a.� i t .t a y -12- Nk: 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 the disputing Authority Q , Member and the Authority to each select an arbitrator 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 :L -.al selection, and the decision by a majority of the arbitrators ••,.`.iLl be biiding on the disputing Authority Member and the Authority. .• •its ... • AKrICIE v S=ON 501 — Scale and Tests: The Authority will cause to be provided; installed, and used such As 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 • w W. tolerance limitsrequired 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 • aid audit by •the Cities and the County during reasonable business +re• On each delivery, the Cities and the County shall receive T N COPY of the ticket showing the date and weight. -13- ARIE VI •� i other Users, Hours of Operation, and Other Matters: Y^L. smrION 601 — Competitive Facilities: The Cities and the County will forthwith take such action as is necessary w^ c_ proper to enable it to deliver Acceptable Waste to the Facility .4dd; .or ;,mnd after the Commencement Date. tar the Commencement Date, the Cities and the County shall not directly or indirectly cause or permit Acceptable Waste to be delivered by • t. its employees,subcontractors or agents to facilities other than the lity; 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 *pessary for the collection, disposal and treatment of Non -Acceptable N3ste which the Operator of the Facility has indicated it will not rVnl Swept under this Agreement. Acceptance by the Operator of the Facility - Of waste from the Cities and the County which is not Acceptable Waste Itt one or more instances or under one or more circumstances shall tconstitute a waiver of such limit or restriction and shall not t any way obligate the operator of the Facility thereafter to accept Xs -Acceptable Waste. i `T Y v? •v1Y :, a • -14. sE=ON 602 — Ownership Rights: Upon delivery of any Acceptable Waste to the Facility, it shall become M.. the property of the Authority; provided, Acceptable Waste placed in opltainers for recycling by the Cities and the County shall be the t. property of the Cities and the County. a spCPiCN 603 — Hours of Operation and Office: The Facility shall remain open to receive Acceptable Waste between Che hours of 7 a.m. and 4 p.m., Monday through Friday and 7:00 a.m. and > noon on Saturday. Said hours may be modified by mutual agreement the Authority and the Operator of the Facility. ARITCIE VII SIGN 701 — DefauIrt: &..- Rertedies for Default. Any event of default under this Agreement "r- shall be remedied solely by suit for damages of specific performance and shall not give rise to a right of termination, unless the n »: Authority provides the Trustee with sufficient funds to redeem W. R� all outstanding bonds under the Indenture and such bonds shall be deceased. » ''itirents of Default by the Authority. Each of the following ahail constitute an Event of Default on the part of the Authority: a "tli. 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: -15- , C (a) Ni 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 Agreement •' 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 film by the Authority of a petition, seeking relief ... under the Bankruptcy Act or any Federal or State Statute M '~ intended to provide relief for political subdivisions which j.• are insolvent or unable to meet their obligations as they S 4 • 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: 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 Lr. 'no -such default shall constitute an Event of Default unless 7I and until: .ate :. (a) the Authority has given prior written notice to the Authority Ip -44 flit' Member specifying that a default or defaults exist which r• JMJ.iY • will, unless corrected, constitute a material breach of A this Agreement on the part of the Authority Member; and Fitt -16- (b) the Authority Member either has not corrected such default, or has not initiated reasonable steps to correct the same �..,. . • within thirty (30) days fran the date of such notice and r thereafter does not continue to take reasonable steps to t t t 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. ARTICLE VIII S&rxCN 801 --Maintenance and Repairs: .On days when the Facility is shut down for maintenance or repairs, ltd during any- other partial or full shutdown of the Facility, the 'Cities and the County shall dispose of waste at disposal locations rte,.. ptwided by the. Authority at the Authority's expense during the shutdown period. The Authority shall be entitled to the Tipping Fees prescribed 1a.this Agreement during said shutdown periods. F f MCILE. IX Mlcellaneous, "LYFI0N 901 -- Limitations upon consent: 'suer, under the provision of this Agreement, either party is called '4*'1 to give its written consent, such written consent will not be asonably withheld. - s , ' -17- I' f ,;,,y, SECPICN 902 — Form of Consent: } All consents of any kind required under this Agreement shall be in f et ],i writing. Whenever, under the terms of this Agreement, the Authority is authorized to give consent, such consent may be given and shall f "M be conclusively evidenced by the Chairperson of the Authority. Whenever, i 4 a under the terns 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. nxt+4 ., ! SELTICN 903— Notices, Documents and Consents: • e' t '; .,n,, All notices required to be given or authorized to be given by any party pursuant to this Agreement shall be in writing and shall be served personally or sent by certified mail, return receipt requested, i \AI• 1 y.. City of Fayetteville Northwest Arkansas Resource C/o City Manager Recovery Authority 3 113 W Mountain Street c/o Chairperson i Fayetteville, AR 72701 113 W Mountain Street Fayetteville, AR 72701 City of West. Fork Washington County, Arkansas C/o Mayor c/o County Judge City Hall Washington County Courthouse *st Fork, Arkansas 72774 Fayetteville, Arkansas 72701 ttion National Bank of Financial Guaranty '" Little Rock . Insurance Company ch First Vice President and c%o First Vice President, and Trust Officer Department of Risk Management ltd Floor Union National Bank 175 Water Street Little Rock,'AR 72201 New York, N.Y. 10038 3 I e :� 4 -18- SDCPION 904 — Amendments: This Agreement may be amended fran time to time by written agreement duly authorized and executed by the parties hereto; provided, any amendment must have the prior written approval of the Trustee and Financial Guaranty Insurance Ccwpany. -rn Ar'E SBCPICN 905 — Execution of Doc:mients: 1This Agreement shall be executed in several counterparts, any of which .shall be regarded for all purposes as an original and all of which «onstitute 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 Agreement. a, • 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 shalla waiver of any breach be deemed to constitute a waiver • of any subsequent breach, whether of the same or of a different Section, tJ ' 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. §1 w^ �1 3� yl w.,v IF- iV. 4 lit -19- SE TION 907 — Entirety: This Agreement verges 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. SwnON 908 — Indemnities: Authority will indemnify and hold the Cities and the County harmless xi and against all liabilities, losses, damages, penalties, causes action, suits, costs and expenses (including, without limitation, 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 M w 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. Hsu• ScrION 909 — Independent Contractor: Throughout the term of this Agreement, the Authority will operate -. l L a.9 an independent contractor. Nothing herein shall be construed as creating a partnership or joint venture between the parties hereto, FF? t neither party shall have the power to bind or obligate the other to an agreement with a third party. , t I I -20- ,. suCTICN 910 — Assignment to Trustee: This Agreement shall be assigned to the Trustee under the Indenture for the Authority's Bonds, such assignment to be for the benefit of the Bondholders. The Trustee shall be deemed a third party beneficiary to this Agreement. So=ION 911 — Governing Law: Agreement shall be governed and construed under and pursuant the laws of the State of Arkansas. The Authority warrants that Arkansas law the Authority is authorized to enter into this IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. It.. t; •Ci ayette e ka sas City of West Fork, Arkansas 'i By : Mayor Mayor .w F₹ ii �2 Y � Attest: Attest: - ity Clerk City Clerk .Mr *Shington County, Arkansas Northwest Arkansas Resource " - Recovery Authority wJr'W i By: Judge Chairperson -wk�.,l-rryr4:: Li •t' Attest: County Clerk Secretary Vt A RESOLUTION 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.. y BE IT RESOLVED BY TBE BOARDof' .DIREmutt OF THE CITY OF FAYETTEVILI ., 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 West 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 APPROVFA this s day of DpramhAr , 1986. APPROVED By: Ntayor ATTEST By: ty lerk This AGRFTr 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". WaEREAS, the Fayetteville Board of Directors, the West Fork City Council, and the Washington County Quorum Court have determined that provision rust be made for the sanitary disposal of solid waste generated within the Cities and the County; and, ?1ERFAS, the Authority is willing and able to provide for the design, construction, operation and maintenance of an environmentally satisfactory, efficient and econanical high -capacity solid waste resource recovery facility ("the Facility") if a sufficient number of political subdivisions are cacmitted to its use and support; and, WHEREAS, the Cities and the County have considered the system prcoosed by the Authority and have found that said system will afford a safe, sanitary and environmentally desirable .means for the disposal of sra:U ..Tastes for the next b.o decades. . ,.n consLderatioa cA the rnuatvai prc:cmises and co-sid- er_tiors :h're3nsttr,,, It i.s a5 �=r as follows: .2 - Definitions and Terms of Agreement: sn.ricn 101 — uefinitions: 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, cannercial 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 com ercial 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. Billing Period shall mean each calendar month in each Contract Year. Business Day shall mean each Monday, Tuesday, Wednesday, Thursday, Friday and Saturday which is not a legal holiday of the State. Chance -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. Ccrnrencernrt Date shall mean the date on which the Operator carunences cannercial 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 fran the Cities and the County. Cararercial 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 Camiencement Date and ending on December 31 of the, calendar year in which the Comrencement Date occurs. Contractor shall mean M -K Ferguson Cacyanv, 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 ccmplying 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, fire, explosion, storm, flood a public enemy, war, blockade, or restraint of government and occurrence. landslide, lightning, earthcuake, or similar occurrence, an act of insurrection, riot, general arrest :eople, civil disturbance or similar (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, modificationor charge in interpretation of any Federal, state, or local law, regulation, ordinance or court order after August 8, 1986, or establishment by the United States Environmental Protection Agency (the "USER;") of requirements differing Ercm 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 ton 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 Comnitnent 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. Non -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. Orator shall ,mean M -K Ferguson Ccmpa^.y. Period shall mean Billing Period. I -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 fran receipt of said notice, shall create a right to terminate this Agreement; 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 under 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. SFL'rICN 102 — Term of Aareement: The term of this Agreement shall camence 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 bee" redeemed, or (2) such earlier date as the Authority provides the Trustee with sufficient funds to redeem the Series 1985 Bonds and any Additional Bonds and such Bonds shall be defeased. -7 - 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. 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 Ccannencement 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. SECITCN 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 Caarercial Haulers, if any, -8 - 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 Canmercial 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 Comnitment. Should the canbined 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 Carnitment shall be increased or decreased. -9 - ARTICLE III Obligations during period when an Uncontrollable Circumstance has occured. SDCTICN 301 -- Obligations of the Parties: If an Uncontrollable Circumstance 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 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. • •4 M - Vl Payments, Procedures: The Cities' and the County's payments shall be made monthly to the authority in Accordance with the following procedures. SECr'ICN 401 — Timing 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 Payirents which have not beer. 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 103 per annum on the unpaid balance, but not to exceed the highest rate allaged 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 caitrence 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 Commence- 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 to replenish to reserve funds in accordance with the Indenture executed by the Authority, and (4) to insure that net revenues, 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 Billina: 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 to each select an arbitrator 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 disputing Authority Member and the Authority. -13- A 'ICIE V SECTION 501 -- Scale and Tests: The Authority will cause to be provided, installed, and used such appropriate scales as are necessary Eor 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. ar w��i7i Other Users, Hours of Operation, and Other Matters: SECTION 601 — Catetitive 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 Camencertelt Date. After the Corrrencement 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 Zion -Acceptable Waste. SECTION 602 — Oinership Rights: Upon delivery of any Acceptable Waste to the Facility, it shall beccine 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 Oration and Office: The Facility shall remain open to receive Acceptable Waste between the hours of 7 a.m. and 4 p.m., Monday thrcugh 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- ARTICFE VII SECTI(N 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. Be Events of Default by the Authority. Each of the following shall constitute an Event of Dlefault 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 Agreement on the part of the Authority. (b) The Authority either has not corrected such default or has not initiated rea thirty (30) days does not continue default. sonable steps to correct the sane r4jthj.,. of receipt of such notice, and thereafter to take reasonableTsteps to correct such (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 Pgreement; 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 SE)CPICN 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. Miscellaneous. SEICTICN 901 -- Limitations uoon consent: Whe^ever, under the provision of this Agreement, either party is called upon to give its written consent, such written consent will not be unreasonably withheld. SEICTIG`t 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 Chairrersen 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- be 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 President and and Trust Officer 3rd Floor Union National Bark Little Rock, AR 72201 SECTION 904 -- P.rencrents: Financial Guaranty Insurance Company c/o President 175 Water Street New York, N.Y. 10038 This Agreement may be amended from time to time by written agreement duly authorized and executed by the parties hereto; provided, any amendment must have the prior written approval of the Trustee and Financial Guaranty Insurance Cany. SECTION 905 -- Execution of xcautents: 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 instrurtent. Each party agrees that it will execute any and all deeds, dociztents or other- instruments, and take such other action as is necessary to give effect to the terms of this Agreement. . -19- SECTICN 906 — Waiver: No waiver by either party of arty 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 tern 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 pacer to bind or obligate the other to an agreement with a third party. -20 V. • SECITON 910 — Assignment to Trustee: This Agreement shall be assigned to the Trustee under the Indenture for the Authority's Bonds, such assignment to be for the benefit of the Bondholders. The Trustee shall be deemed a third party beneficiary to this Agreement. SDCIICN 911 — Governing Law: This Agreement shall be governed and construed under and pursuant to the laws of the State of Arkansas. The Authority warrants that under Arkansas law the Authority is authorized to enter into this Agreement. IN WITNESS WHEREOF, the parties hereto.have executed this Agreement as of the day and year first above written. City D ette % le,/Arkansas By. Mayor Attest: Washington County, Arkansas By: County Judge Attes Cou/ tyZierk U City o' st Fork, Arkansas v By:%4;,' L`lr Mayor Attest: , cc.t& Cc City Clerk Northwest Arkansas Resource. Recovery Authority By: Chairperson Attest: /lr�GlijG(/� Secretary