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HomeMy WebLinkAbout33-04 RESOLUTIONRESOLUTION NO. 33-04 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE CONTRACTS WITH ANY WASTE HAULER DOING BUSINESS IN FAYETTEVILLE IN THE FORM OF ATTACHED EXHIBIT A WHEREAS, the City Council of the City of Fayetteville, Arkansas has approved the form of the agreement to haul and dispose of solid waste in the city of Fayetteville at a fair and appropriate contract for any waste hauler wishing to do business in Fayetteville; and WHEREAS, the City Council of the City of Fayetteville, Arkansas wishes to give d all such waste haulers time to agree to this contract so that enforcement of rivate Collectors, contract with City required (adopted in 1959) should not be actively entered until March 16, 2004. sfract, Shad NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the Mayor to execute agreements to haul and dispose of solid waste in the City of Fayetteville (in the form of Exhibit A) with any and all waste haulers operating within the City, and specifically approves the Agreements signed by Waste Management of Arkansas, Inc. and Roll Off Services, Inc. PASSED and APPROVED this the 2nd day of March, 2004. f" Y E T.jF�; APPROVED: (et" By: SONDRA SMITH, City Clerk By: • c. • • • AGREEMENT TO HAUL AND DISPOSE OF SOLID WASTE IN THE CITY OF FAYETTEVILLE This Agreement ("the Agreement"), is entered into on this 2nd day of March, 2004, between the City of Fayetteville, Arkansas, a municipal corporation (the "City"), and Sugarcreek Roll Off, LLC (the "Hauler"), and shall be in full force and effect on the date first written above. City and the Hauler agree as follows: 1. Hauler agrees that from and after the original date of this Agreement, all customer service Agreements for facilities within the corporate limits of the City entered into before or after the effective date of this Agreement, or renewed shall have terms of no more than two (2) years and any subsequent extensions shall be for terms of no more than one'(1) year. 2. The term of this Agreement shall be for three (3) years, unless otherwise terminated pursuant to the terms hereof. 3. Hauler agrees and understands that it may only collect and haul Solid Waste using the type equipment commonly referred to as open -top roll -off style containers with capacities of twenty (20) cubic yards or greater, or roll -off style compactor containers with capacities of twenty (20) cubic yards or greater, containing waste generated from industrial, large commercial or construction/demolition activities, or which is classified as Special Waste, Hazardous Waste, grease or any other type Solid Waste which requires special handling or disposal. Hauler shall not collect any Class 1 or Class 4 material in other containers. No unseparated recyclables collected in any type container shall be hauled from any customer within the corporate limits of the City of Fayetteville. The collection of scrap metal, cardboard and other source -separated recyclables are not controlled or affected by this contract. 4. Hauler agrees and understands that it may utilize the City's transfer station for all Class 1 waste collected pursuant to this Agreement and shall deliver all Class 4 waste to a properly licensed landfill facility. Hauler shall pay all transfer station fees to the transfer station operator and all Class 4 landfill fees to the landfill operator, as they may be established and amended, from time to time. Hauler shall pay all fees due hereunder, along with the required supporting information, on or before the 15ih of each calendar month for the immediately preceding calendar month. Payments of the fees received after the due date shall be assessed a 2% penalty per month. If Hauler failed to pay the fees within forty-five (45) days of the due date, the City may revoke this Agreement upon delivery of written notice to the Hauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the following information: (i) Hauler's worksheet calculating the fees remitted; (ii) a blind list of payments received from customers within the City; (iii) such list shall clearly indicate whether each payment was from a permanent or temporary customer, and (iv) the fee shall be based upon all activity from each customer account within the City, and shall include the normal billing charges for all free or discounted services (excluding those for non-profit organizations) including but not limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges. The City shall have the right to conduct an audit of Hauler's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter. If such audit reveals the • a. • • hauler should have paid at least 5% more than reported, the cost of the audit shall be paid by the Hauler to the City. During such audit, the City may review certain trade secret information, including rates, frequency of service, customer lists, and other customer information provided that such trade secret information may not be copied or removed by the City. Nor shall such information be divulged to any third party by the City, its employees, officers, or elected officials without the express written consent of the Hauler. 6. Hauler agrees and understands that it shall submit to the City on an annual basis a list of all commercial vehicles used to provide services in the City, proof of appropriate vehicle registration, and proof of the insurance required under Section 16. 7. Hauler agrees and understands that it shall provide a list of vehicle operators collecting and hauling waste in the City of Fayetteville, along with proof of their valid and appropriate commercial drivers' licenses issued by the State of Arkansas. The Hauler shall also provide, maintain, and implement a plan to ensure that the vehicle operators maintain their commercial driver's licenses in accordance with applicable federal and state laws. 8. Hauler agrees that it shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters related to providing solid waste collection services under this Agreement. Hauler agrees that all open -top roll -off style containers will be properly covered during transit on streets and highways within Fayetteville. 9. In consideration of the right to provide the services described under this Agreement, Hauler agrees and understands that it shall be required to pay a monthly fee of ten (10%) percent (the Fee) of the gross revenue received for all services provided under this Agreement. Upon execution of this Agreement, a deposit shall be paid in advance to the City. This deposit shall be equal to one-half of the total fees that were or would have been paid by the Hauler within to the City during the previous twelve (12) months. Such deposit shall be reviewed on an annual basis. Any reasonable disagreement in estimated gross revenue will be decided in the favor of the City. The deposit shall be refunded, less any unpaid fees, when the Hauler ceases operation within the City or this Agreement is terminated, whichever is earlier. 10. The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and well-maintained and that all containers are well-maintained and water tight, if necessary. 11. Hauler agrees and understands that it shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station . operator and the Tontitown Landfill operator. Hauler agrees that it shall comply with all practices, policies and procedures as established by the transfer station operator from time to time. Any tipping fee deposits required by the transfer station or landfill operators shall be refunded, less any unpaid tipping fees, when the Hauler ceases hauling activities governed by this Agreement. 12. This Agreement has been entered into freely and voluntarily by Hauler which agrees to abide by all of the terms and conditions as a matter of contractual obligation pursuant to applicable city ordinances. This is a contractual Agreement and is not 2 • • • • intended to be part of or related in any way to any license or ordinance created pursuant to A.C.A. §26-77-102. 13. Neither this Agreement, nor any rights or obligations hereunder may be assigned or transferred to any third party or affiliate. 14. For the purposes of this contract, the Point of Contact of the City of Fayetteville shall be Gary Dumas or his successor. The Point of Contact for the Hauler shall be Kevin Sherman phone #417-226-0076. Communications pertaining to day-to-day aspects of this contract shall be through these individuals. Either party may change its designated Point of Contact upon ten (10) days prior written notice to the other party. 15. Hauler agrees to protect, indemnify, defend and save harmless the City, its officials, officers, employees, agents, subcontractors, representatives and assigns from any loss, claim, liability, penalty, fine, forfeiture, demand, cause of action, suit and costs and expenses incidental thereto (including cost of defense, settlement and reasonable attorneys' fees), to the extent caused by (i) Haulers breach of any term, condition, covenant or warranty contained in this Agreement, or (ii) Hauler's negligent act or omission or willful misconduct related to the delivery of waste to the City transfer station or a properly licensed landfill facility. 16. Insurance: Hauler shall maintain the following insurance coverage during the term of this Agreement: (a) Hauler shall provide and maintain, during the term of this Agreement, comprehensive general liability insurance, to protect against all claims arising out of the performance of its services hereunder that result in bodily injury, death or property damage. The policy or policies shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the City sixty (60) days notice in writing. (b) Upon written request, Hauler shall furnish the City with evidence that the insurance required of it is in force. (c) The types of coverage and limits of liability of all insurance required herein shall be as follows: COVERAGE LIMITS OF LIABILITY Workmen's Compensation Statutory Employer's Liability $500,000 Bodily Injury Liability except Automobile $1,000,000 each occurrence Property Damage Liability Except Automobile $1,000,000 each aggregate 3 • Automobile Bodily Injury $1,000,000 each person Comprehensive General Liability $1,000,000 each occurrence Automobile Property Damage Liability $1,000,000 each occurrence Excess Umbrella Liability $1,000,000 each occurrence 17. Termination: (a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirements or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement fifteen (15) days after the fifteen (15) days in which to cure; or (ii) cure the breach or default at the expense of the Hauler; and (iii) have recourse to any other right or remedy to which it may be entitled by law. The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding of that nature admitting the m aterial allegations of the petition, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted against the offending and such proceeding is not dismissed within sixty (60) days. (b) (c) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 18. All notices required or permitted under this contract shall be submitted in writing to the other party to this contract, by certified mail, return receipt requested, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Dan Coody, Mayor 113 West Mountain Street Fayetteville, AR 72701 Sugarcreek Roll Off, LLC Attn: Kevin Sherman 195 Little Missouri Rd Pineville, MO 64856 19. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville requesting such documents, Hauler will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25- 19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. 4 • 20. This Agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. Capitalized terms herein shall have the same meaning as set forth in ADEQ Reg. No. 22. 21. A waiver by either party of any of the terms or conditions herein shall be limited to that particular instance, and shall not be construed as a general waiver of either party's right to seek appropriate remedies for any other breaches by either party. 22. Each paragraph of this Agreement is severable from all other paragraphs. In the event any court of competent jurisdiction determines that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs shall remain in full force and effect. 23. This contract constitutes the entire understanding of the parities and no modification or variation of the terms of this contract shall be valid unless made in writing and signed by the duly authorized agents of the City of Fayetteville and the Hauler. 24. Each of the undersigned warrants that he or she has the full right, power, and authority to execute this contract on behalf of the party indicated for the purposes herein contained. 25. To the e xtent a definition or a specific t erm i s n of provided herein b ut i s nonetheless required by the context, it is the intention of the parties to incorporate herein the definitions contained in applicable law and regulation in effect as the date hereof, except to the extent subsequent law or regulation shall expressly or implicitly mandate a revised definition. 26. The obligations of the parties to this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive the termination (for any reason), cancellation or expiration of this Agreement. IN WITNESS WHEREOF, we have hereunto set our hands on the date first written above. CITY OF FAYETTEVILLE DAN COODY, as Mayor RA SMITH, City Clerk Sugarcreek Roll Off, LLC By Kevin Sherman President • • AGREEMENT TO HAUL AND DISPOSE OF SOLID WASTE IN THE CITY OF FAYETTEVILLE This Agreement ("the Agreement"), is entered into on this 2nd day of March, 2004, between the City of Fayetteville, Arkansas, a municipal c orporation ( the "City"), and 0 zark Sanitation, Inc. (the "Hauler"), and shall be in full force and effect on the date first written above. City and the Hauler agree as follows: 1. Hauler agrees that from and after the original date of this Agreement, all customer service Agreements for facilities within the corporate limits of the City entered into before or after the effective date of this Agreement, or renewed shall have terms of no more than two (2) years and any subsequent extensions shall be for terms of no more than one (1) year 2. The term of this Agreement shall be for three (3) years, unless otherwise terminated pursuant to the terms hereof. 3. Hauler agrees and understands that it may only collect and haul Solid Waste using the type equipment commonly referred to as open -top roll -off style containers with capacities of twenty (20) cubic yards or greater, or roll -off style compactor containers with capacities of twenty (20) cubic yards or greater, containing waste generated from industrial, large commercial or construction/demolition activities, or which is classified as Special Waste, Hazardous Waste, grease or any other type Solid Waste which requires special handling or disposal. Hauler shall not collect any Class 1 or Class 4 material in other containers. No unseparated recyclables collected in any type container shall be hauled from any customer within the corporate limits of the City of Fayetteville. The collection of scrap metal, cardboard and other source -separated recyclables are not controlled or affected by this contract. 4. Hauler agrees and understands that it may utilize the City's transfer station for all Class 1 waste collected pursuant to this Agreement and shall deliver all Class 4 waste to a properly licensed landfill facility. Hauler shall pay all transfer station fees to the transfer station operator and all Class 4 landfill fees to the landfill operator, as they may be established and amended, from time to time. 5. Hauler shall pay all fees due hereunder, along with the required supporting information, on or before the 15th of each calendar month for the immediately preceding calendar month. Payments of the fees received after the due date shall be assessed a 2% penalty per month. If Hauler failed to pay the fees within forty-five (45) days of the due date, the City may revoke this Agreement upon delivery of written notice to the Hauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the following information: (i) Hauler's worksheet calculating the fees remitted; (ii) a blind list of payments received from customers within the City; (iii) such list shall clearly indicate whether each payment was from a permanent or temporary customer, and (iv) the fee shall be based upon all activity from each customer account within the City, and shall include the normal billing charges for all free or discounted services (excluding those for non-profit organizations) including but not limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges. The City shall have the right to conduct an audit of Hauler's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter. If such audit reveals the 1 • • • hauler should have paid at least 5% more than reported, the cost of the audit shall be paid by the Hauler to the City. During such audit, the City may review certain trade secret information, including rates, frequency of service, customer lists, and other customer information provided that such trade secret information may not be copied or removed by the City. Nor shall such information be divulged to any third party by the City, its employees, officers, or elected officials without the express written consent of the Hauler. 6. Hauler agrees and understands that it shall submit to the City on an annual basis a list of all commercial vehicles used to provide services in the City, proof of appropriate vehicle registration, and proof of the insurance required under Section 16. 7. Hauler agrees and understands that it shall provide a list of vehicle operators collecting and hauling waste in the City of Fayetteville, along with proof of their valid and appropriate commercial drivers' licenses issued by the State of Arkansas. The Hauler shall also provide, maintain, and implement a plan to ensure that the vehicle operators maintain their commercial driver's licenses in accordance with applicable federal and state laws. 8. Hauler agrees that it shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters related to providing solid waste collection services under this Agreement. Hauler agrees that all open -top roll -off style containers will be properly covered during transit on streets and highways within Fayetteville. 9. In consideration of the right to provide the services described under this Agreement, Hauler agrees and understands that it shall be required to pay a monthly fee of ten (10%) percent (the Fee) of the gross revenue received for all services provided under this Agreement. Upon execution of this Agreement, a deposit shall be paid in advance to the City. This deposit shall be equal to one-half of the total fees that were or would have been paid by the Hauler within to the City during the previous twelve (12) months. Such deposit shall be reviewed on an annual basis. Any reasonable disagreement in estimated gross revenue will be decided in the favor of the City. The deposit shall be refunded, less any unpaid fees, when the Hauler ceases operation within the City or this Agreement is terminated, whichever is earlier. 10. The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and well-maintained and that all containers are well-maintained and water tight, if necessary. 11. Hauler agrees and understands that it shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station operator and the Tontitown Landfill operator. Hauler agrees that it shall comply with all practices, policies and procedures as established by the transfer station operator from time to time. Any tipping fee deposits required by the t ransfer s tation or landfill operators shall be refunded, less any unpaid tipping fees, when the Hauler ceases hauling activities governed by this Agreement. 12. This Agreement has been entered into freely and voluntarily by Hauler which agrees to abide by all of the terms and conditions as a matter of contractual obligation pursuant to applicable city ordinances. This is a contractual Agreement and is not 2 intended to be part of or related in any way to any license or ordinance created pursuant to A.C.A. §26-77-102. 13. Neither this Agreement, nor any rights or obligations hereunder may be assigned or transferred to any third party or affiliate. 14. For the purposes of this contract, the Point of Contact of the City of Fayetteville shall be Gary Dumas or his successor. The Point of Contact for the Hauler shall be Kirk Sanborn, 479-665-2115. Communications pertaining to day-to-day aspects of this contract shall be through these individuals. Either party may change its designated Point of Contact upon ten (10) days prior written notice to the other party. 15. Hauler agrees to protect, indemnify, defend and save harmless the City, its officials, officers, employees, agents, subcontractors, representatives and assigns from any loss, claim, liability, penalty, fine, forfeiture, demand, cause of action, suit and costs and expenses incidental thereto (including cost of defense, settlement and reasonable attorneys' fees), to the extent caused by (i) Haulers breach of any term, condition, covenant or warranty contained in this Agreement, or (ii) Hauler's negligent act or omission or willful misconduct related to the delivery of waste to the City transfer station or a properly licensed landfill facility. 16. Insurance: Hauler shall maintain the following insurance coverage during the term of this Agreement: (a) Hauler shall provide and maintain, during the term of this Agreement, comprehensive general liability insurance, to protect against all claims arising out of the performance of its services hereunder that result in bodily injury, death or property damage. The policy or policies shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the City sixty (60) days notice in writing. (b) Upon written request, Hauler shall furnish the City with evidence that the insurance required of it is in force. (c) The types of coverage and limits of liability of all insurance required herein shall be as follows: COVERAGE LIMITS OF LIABILITY Workmen's Compensation Statutory Employer's Liability $500,000 Bodily Injury Liability except Automobile $1,000,000 each occurrence Property Damage Liability Except Automobile $1,000,000 each aggregate 3 17. Termination: (a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirements or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement fifteen (15) days after the fifteen (15) days in which to cure; or (ii) cure the breach or default at the expense of the Hauler; and (iii) have recourse to any other right or remedy to which it may be entitled by law. (b) The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding ofthat nature admitting the material allegations of the petition, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted against the offending and such proceeding is not dismissed within sixty (60) days. (c) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 18. All notices required or permitted under this contract shall be submitted in writing to the other party to this contract, by certified mail, return receipt requested, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Dan Coody, Mayor 113 West Mountain Street Fayetteville, AR 72701 Ozark Sanitation, Inc. Attn: Kirk Sanborn P. O. Box 201 Kingston, Arkansas 72742 19. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville requesting such documents, Hauler will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25- 19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. 4 Automobile Bodily Injury $1,000,000 each person Comprehensive General Liability $1,000,000 each occurrence Automobile Property Damage Liability $1,000,000 each occurrence Excess Umbrella Liability $1,000,000 each occurrence Termination: (a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirements or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement fifteen (15) days after the fifteen (15) days in which to cure; or (ii) cure the breach or default at the expense of the Hauler; and (iii) have recourse to any other right or remedy to which it may be entitled by law. (b) The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding ofthat nature admitting the material allegations of the petition, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted against the offending and such proceeding is not dismissed within sixty (60) days. (c) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 18. All notices required or permitted under this contract shall be submitted in writing to the other party to this contract, by certified mail, return receipt requested, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Dan Coody, Mayor 113 West Mountain Street Fayetteville, AR 72701 Ozark Sanitation, Inc. Attn: Kirk Sanborn P. O. Box 201 Kingston, Arkansas 72742 19. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville requesting such documents, Hauler will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25- 19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. 4 • • 20. This Agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. Capitalized tetins herein shall have the same meaning as set forth in ADEQ Reg. No. 22. 21. A waiver by either party of any of the terms or conditions herein shall be limited to that particular instance, and shall not be construed as a general waiver of either party's right to seek appropriate remedies for any other breaches by either party. 22. Each paragraph of this Agreement is severable from all other paragraphs. In the event any court of competent jurisdiction determines that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs shall remain in full force and effect. 23. This contract constitutes the entire understanding of the parities and no modification or variation of the terms of this contract shall be valid unless made in writing and signed by the duly authorized agents of the City of Fayetteville and the Hauler. 24. Each of the undersigned warrants that he or she has the full right, power, and authority to execute this contract on behalf of the party indicated for the purposes herein contained. 25. To the e xtent a d efinition or a s pecific t erm i s n of provided h erein b ut i s nonetheless required by the context, it is the intention of the parties to incorporate herein the definitions contained in applicable law and regulation in effect as the date hereof, except to the extent subsequent law or regulation shall expressly or implicitly mandate a revised definition. 26. The obligations of the parties to this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive the termination (for any reason), cancellation or expiration of this Agreement. IN WITNESS WHEREOF, we have hereunto set our hands on the date first written above. E rTF`�; •,, ON0\k.., Leo c4)44A474_,— SONDRA SMITH, City Clerk By CITY OF FAYETTEVILLE D • COODY, as Mayor Ozark Sanitatio INC. 5 President • • • AGREEMENT TO HAUL AND DISPOSE OF SOLID WASTE IN THE CITY OF FAYETTEVILLE This Agreement is entered into on this /CM day of April, 2004, between the City of Fayetteville, Arkansas, a municipal corporation, and Waste Management of Arkansas, Inc. (the "Hauler"), and shall supercede the agreement entered into in March, 2004 and be in full force and effect on the date first written above. City and the Hauler agree as follows: Hauler agrees that from and after the original date of this Agreement, all customer service Agreements for facilities within the corporate limits of the City entered into before or after the effective date of this Agreement, or renewed shall have terms of no more than two (2) years and any subsequent extensions shall be for terms of no more than one (1) year. 2. The term of this Agreement shall be for three (3) years, unless otherwise terminated pursuant to the terms hereof. Hauler agrees and understands that it may only collect and haul Solid Waste using the type equipment commonly referred to as open -top roll -off style containers with capacities of twenty (20) cubic yards or greater, or roll -off style compactor containers with capacities of twenty (20) cubic yards or greater, containing waste generated from industrial, large commercial or construction/demolition activities, or which is classified as Special Waste, Hazardous Waste, grease or any other type Solid Waste which requires special handling or disposal. Hauler shall not collect any Class 1 or Class 4 material in other containers. No unseparated recyclables collected in any type container shall be hauled from any customer within the corporate limits of the City of Fayetteville. The collection of scrap metal, cardboard and other source -separated recyclables are not controlled or affected by this contract. Hauler agrees and understands that it may utilize the City's transfer station for all Class 1 waste collected pursuant to this Agreement and shall deliver all Class 4 waste to a properly licensed landfill facility. Hauler shall pay all transfer station fees to the transfer station operator and all Class 4 landfill fees to the landfill operator, as they may be established and amended, from time to time. Hauler shall pay all fees due hereunder, along with the required supporting information, on or before the 151h of each calendar month for the immediately preceding calendar month. Payments of the fees received after the due date shall be assessed a 2% penalty per month. If Hauler failed to pay the fees within forty-five (45) days of the due date, the City may revoke this Agreement upon delivery of written notice to the Hauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the following information: (i) Hauler's worksheet calculating the fees remitted; (ii) a blind list of payments received from customers within the City; (iii) such list shall clearly indicate whether each payment was from a permanent or temporary customer, and (iv) the fee shall be based upon all activity from each customer account within the City, and shall include the normal billing charges for all free or discounted services (excluding those for non-profit organizations) including but not limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges. The City shall have the right to conduct an audit of Hauler's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter. If such audit reveals the 1 • • hauler should have paid at least 5% more than reported, the cost of the audit shall be paid by the Hauler to the City. During such audit, the City may review certain trade secret information, including rates, frequency of service, customer lists, and other customer information provided that such trade secret information may not be copied or removed by the City. Nor shall such information be divulged to any third party by the City, its employees, officers, or elected officials without the express written consent of the Hauler. Hauler agrees and understands that it shall submit to the City on an annual basis a list of all commercial vehicles used to provide services in the City, proof of appropriate vehicle registration, and proof of the insurance required under Section 16. 7. Hauler agrees and understands that it shall provide a list of vehicle operators collecting and hauling waste in the City of Fayetteville, along with proof of their valid and appropriate commercial drivers' licenses issued by the State of Arkansas. The Hauler shall also provide, maintain, and implement a plan to ensure that the vehicle operators maintain their commercial driver's licenses in accordance with applicable federal and state laws. 8. Hauler agrees that it shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters related to providing solid waste collection services under this Agreement. Hauler agrees that all open -top roll -off style containers will be properly covered during transit on streets and highways within Fayetteville. 9. In consideration of the right to provide the services described under this Agreement, Hauler agrees and understands that it shall be required to pay a monthly fee of ten (10%) percent (the Fee) of the gross revenue received for all services provided under this Agreement. Upon execution of this Agreement, a deposit shall be paid in advance to the City. This deposit shall be equal to one-half of the total fees that were or would have been paid by the Hauler within to the City during the previous twelve (12) months. Such deposit shall be reviewed on an annual basis. Any reasonable disagreement in estimated gross revenue will be decided in the favor of the City. The deposit shall be refunded, less any unpaid fees, when the Hauler ceases operation within the City or this Agreement is terminated, whichever is earlier 10. The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and well-maintained and that all containers are well-maintained and water tight, if necessary. 11. Hauler agrees and understands that it shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station operator and the Tontitown Landfill operator. Hauler agrees that it shall comply with all practices, policies and procedures as established by the transfer station operator from time to time. Any tipping fee deposits required by the transfer station or landfill operators shall be refunded, less any unpaid tipping fees, when the Hauler ceases hauling activities governed by this Agreement. 12. This Agreement has been entered into freely and voluntarily by Hauler which agrees to abide by all of the terms and conditions as a matter of contractual obligation pursuant to applicable city ordinances. This is a contractual Agreement and is not 2 • • intended to be part of or related in any way to any license or ordinance created pursuant to A.C.A. §26-77-102. 13. Neither this Agreement, nor any rights or obligations hereunder may be assigned or transferred to any third party or affiliate. 14. For the purposes of this contract, the Point of Contact of the City of Fayetteville shall be Gary Dumas or his successor. The Point of Contact for the Hauler shall be George Wheatley. Communications pertaining to day-to-day aspects of this contract shall be through these individuals. Either party may change its designated Point of Contact upon ten (10) days prior written notice to the other party. 15. Hauler agrees to protect, indemnify, defend and save harmless the City, its officials, officers, employees, agents, subcontractors, representatives and assigns from any loss, claim, liability, penalty, fine, forfeiture, demand, cause of action, suit and costs and expenses incidental thereto (including cost of defense, settlement and reasonable attorneys' fees), to the extent caused by (i) Haulers breach of any term, condition, covenant or warranty contained in this Agreement, or (ii) Hauler's negligent act or omission or willful misconduct related to the delivery of waste to the City transfer station or a properly licensed landfill facility. 16. Insurance: Hauler shall maintain the following insurance coverage during the term of this Agreement: (a) Hauler shall provide and maintain, during the term of this Agreement, comprehensive general liability insurance, to protect against all claims arising out of the performance of its services hereunder that result in bodily injury, death or property damage. The policy or policies shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the City sixty (60) days notice in writing. (b) Upon written request, Hauler shall furnish the City with evidence that the insurance required of it is in force. (c) The types of coverage and limits of liability of all insurance required herein shall be as follows: COVERAGE LIMITS OF LIABILITY Workmen's Compensation Statutory Employer's Liability $500,000 Bodily Injury Liability except Automobile $1,000,000 each occurrence Property Damage Liability Except Automobile $1,000,000 each aggregate 3 • • • Automobile Bodily Injury $1,000,000 each person Comprehensive General Liability $1,000,000 each occurrence Automobile Property Damage Liability $1,000,000 each occurrence Excess Umbrella Liability $1,000,000 each occurrence 17. Termination: (a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirements or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement fifteen (15) days after the fifteen (15) days in which to cure; or (ii) cure the breach or default at the expense of the Hauler; and (iii) have recourse to any other right or remedy to which it may be entitled by law. (b) The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding of that nature admitting the material allegations of the petition, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted against the offending and such proceeding is not dismissed within sixty (60) days. (c) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 18. All notices required or permitted under this contract shall be submitted in writing to the other party to this contract, by certified mail, return receipt requested, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Dan Coody, Mayor 113 West Mountain Street Fayetteville, AR 72701 Waste Management of Arkansas, Inc. Attn: Mr. George Wheatley 2900 West 68th Street Little Rock, Arkansas 72209 19. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville requesting such documents, Hauler will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25- 19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. 4 • • • 20. This Agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. Capitalized terms herein shall have the same meaning as set forth in ADEQ Reg. No. 22. 21. A waiver by either party of any of the terms or conditions herein shall be limited to that particular instance, and shall not be construed as a general waiver of either party's right to seek appropriate remedies for any other breaches by either party. 22. Each paragraph of this Agreement is severable from all other paragraphs. In the event any court of competent jurisdiction determines that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs shall remain in full force and effect. 23. This contract constitutes the entire understanding of the parities and no modification or variation of the terms of this contract shall be valid unless made in writing and signed by the duly authorized agents of the City of Fayetteville and the Hauler. 24. Each of the undersigned warrants that he or she has the MI right, power, and authority to execute this contract on behalf of the party indicated for the purposes herein contained. 25. To the extent a definition or a specific term is not provided herein but is nonetheless required by the context, it is the intention of the parties to incorporate herein the definitions contained in applicable law and regulation in effect as the date hereof, except to the extent subsequent law or regulation shall expressly or implicitly mandate a revised definition. 26. The obligations of the parties to this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive the termination (for any reason), cancellation or expiration of this Agreement. IN WITNESS WHEREOF, we have hereunto set our hands on the date first written above. •-G; OSY Otc \P •-P ; FAYETTEVILLE: ATTEST: cs1 1#iWAN,St oJ?.'� ti;Ncroc %%% By: SONDRA SMITH, City Clerk CITY OF FAYETTEVILLE 13y DAN COOD , as Mayor WASTE MANAGEMENT OF ARKANSAS, INC. B 5 / /. HARLES D. DEES, HI as authorized signatory_ • • CERTIFICATE OF INSURANCE Dat e/29W004 m) PRODUCER Lockton 5847 San Houston, 866-260-3538 866-492-1055 Companies of Houston, Inc. Felipe, Suite 320 TX 77057 (Phone) (Fax) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. INSURERS AFFORDING COVERAGE INSURED: WASTE MANAGEMENT and Waste Management of Northwest Arkansas P.O. Box 1310 11979 Arbor Acres Road Springdale, AR 72764 Insurer A: ACE American Insurance Company Insurer B: Indemnity Insurance Company of North America Insurer C: Insurer D: Insurer E: COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY BE EXHAUSTED BY PAID CLAIMS. INSR LTR TYPE OF INSURANCE POLICY NUMBER EFFECTIVE DATE EXPIRATION DATE LIMITS GENERAL LIABILITY HDO G21693054 1/1/2004 1/1/2005 EACH OCCURRENCE $ 5,000,000 A x COMMERCIAL GENERAL LIABILITY FIRE DAMAGE (ANY ONE FIRE) $ 5,000,000 x OCCURRENCE MED EXP (PER PERSON) x xCU INCLUDED PERSONAL B ADV INJURY $ 5,000,000 x ISO FORM CG 0001 1001 GENERAL AGGREGATE $ 6,000,000 GEN'L AGGREGATE LIMIT APPLIES PER: PRODUCTS/COMP OP AGG $ 6,000,000 x PROJECT x LOCATION AUTOMOBILE LIABILITY ISA H08010948 1/1/2004 1/1/2005 COMBINED SINGLE LIMIT $ 10,000,000 (EACH ACCIDENT) A x ANY AUTO ALL OWNED AUTOS x HIRED AUTOS x NON -OWNED AUTOS x MCS -90 EXCESS LIABILITY/UMBRELLA X00021808234 1/1/2004 1/1/2005 EACH OCCURRENCE $ 15,000,000 A x OCCURRENCE AGGREGATE $ 15,000,000 CLAIMS MADE WORKERS' COMPENSATION WLR C43972765 SCF C43972728 (WI) 1/1/2004 1/1/2005 WORKERS' COMPENSATION STATUTORY B and EMPLOYERS LIABILITY EL EACH ACCIDENT $ 3,000,000 A EL DISEASE -EA EMPLOYEE $ 3,000,000 EL DISEASE -POLICY LIMIT $ 3,000,000 REMARK^S^: DESCRIPTION OF OPERATIONS/LOCATIONSNEHICLES/EXCLUSIONS ADDED BY ENDORSEMENT PROVISIONS: CHECK W BLANKET WAIVER OF SUBROOATION IS GRANTED IN FAVOR OF CERTIFICATE HOLDER ON ALL POLICIES WHERE ANO TO THE EXTENT REQUIRED BY WRITTEN CONTRACT. BOX ISI CERTIFICATE HOLDER IS NAMED AS AN ADDITIONAL INSURED (EXCEPT FOR WORKERS' COMP/EL) WHERE AND TO THE EXTENT REQUIRED BY WRITTEN CONTRACT. CERTIFICATE HOLDER: CANCELLATION: City of Fayetteville 113 West Mountain Fayetteville, AR 72701 SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, THE ISSUING INSURER WILL ENDEAVOR TO MAIL 130 DAYS WRITTEN NOTICE TO THE CERTIFICATE HOLDER NAMED TO THE LEFT, BUT FAILURE TO DO SO SHALL IMPOSE NO OBLIGATION OR LIABILRY OF ANY KIND UPON THE INSURER, ITS AGENTS OR REPRESENTATIVES.'EXCEPT 10 DAYS NOTICE FOR NON-PAYMENT. AUTHORIZED REPRESENTATIVE C .9:-N— .-1C---C._ r NAME OF FILE: CROSS REFERENCE: Item # • Date Document Resolution No. 33-04 w/contracts 1 01/05/04 memo to mayor and city council 2 draft resolution 3 01/26/04 memo to mayor and city council 4 01/08/04 memo to mayor and city council 5 01/30/04 memo to city council 6 03/11/04 memo to Ray Boudreux 7 copy of draft agreement 8 03/02/04 copy of letter from Yeatman & Associates, PA 9 copy of draft agreement 10 03/02/04 faxed signed agreement from George Wheatley 11 03/02/04 faxed signed agreement from Roll Off Services 12 04/22/04 email to city clerk from George Wheatley 13 04/23/04 letter to George Wheatley 14 05/04/04 memo to Gary Dumas 15 01/14/04 Staff Review Form 16 NOTES. FAYETTEVILLE • es • , #1041z COIheehrs/ THE CITY OF FAYETTEVILLE, ARKANSAS Oat -11Q- Tl 4M3 DEPARTMENTAL CORRESPONDENCE To: Mayor and City Council From: Gary Dumas :I0.11).1.1.1^" Date: January 5, 2004 Subject: Waste Hauler Contracts Recommendation: Approve Resolution authorizing the Mayor to execute the attached non-exclusive franchise contract with Waste Management of Arkansas, Roll Off Service Inc., Ozark Sanitation, ---- Background: Background: As the Council directed, the staff has been in negotiation with Waste Management of Arkansas and Roll Off Service, Inc. since last spring in an effort to develop a contract which would allow them and other waste haulers to provide specific services within the corporate limits of Fayetteville. These negotiations begin first with meeting with Waste Management of Arkansas, Roll Off Service, Inc. and HMI, Inc. HMI, Inc. has since ceased operation with Fayetteville. At the conclusion of these negotiations a contract was forwarded on July 25, 2003 for execution by the Haulers. Roll Off Service, Inc. executed and returned their copy, while Waste Management of Arkansas forwarded their copy to their attorneys who requested numerous changes and additional negotiations. Some of the changes requested by Waste Management of Arkansas were incorporated into a second contract. These changes benefited all waste providers and did not impose any additional regulation, only clarified the rules and reduced the bureaucratic red tape. This second contract was again sent on November 18, 2003 to Roll Off Service, Inc. and Waste Management of Arkansas for execution. 2.4%d /yla4i Oi ad? Discussion: All other waste hauling providers known to have service available within the City of Fayetteville have been contacted concerning this required franchise. Only those listed within the Recommendation have executed and returned their contract. Any waste hauler providing service within the City of Fayetteville not having a fully executed contract will be subject to any and all legal and equitable remedies available to the City and will not be permitted to provide service to any Fayetteville customer. Implementation of the Franchise and all related existing Ordinances will begin at the beginning of the month. That start date is anticipated to be February 1, 2004. FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE To: Mayor and City Council From: Gary Dumas r . Date: January 26, 2004 • Dee A a/3/oy Subject: Waste Hauler Contracts — Delete from Agenda Negotiations between the City and the waste haulers and their legal representatives culminated in December with the signed contracts currently in the Council packet. After several months and numerous contract versions with the City Attorney's Office authoring all contract documents, executed copies were returned from Waste Management and Roll Off Service. On Friday January 23, the City Attorney contacted the Administration with numerous revisions. Revised contracts have been forwarded to all haulers and should be returned quickly. FAYETTEVILLE THE CITY OF FAYETTEVILLE, ARKANSAS DEPARTMENTAL CORRESPONDENCE To: Mayor and City Council From: Gary Dumas Date: January 8, 2004 Non -Exclusive Franchise Contracts The following are the highlights of the non-exclusive franchise contracts. Haulers agree that they may only collect and haul Solid Waste using roll -off style containers with capacities of twenty (20) cubic yards or greater. No cardboard, loose or pre -baled, or recyclables, including scrap metal shall be hauled whatsoever from any customer within the corporate limits of the City of Fayetteville 2. Haulers agree that they shall utilize the City's transfer station for all Class I waste collected pursuant to this Franchise and shall deliver all Class 4 waste to the Tontitown Landfill. The City shall have the right to conduct an audit of Hauler's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter at hauler's expense. 4. Haulers agree that they shall submit to the City on an annual basis a list of all commercial vehicles used to provide services in the City, proof of appropriate vehicle registration, and proof of the insurance. 5. Haulers agree that they shall provide a list of vehicle operators collecting and hauling waste along with proof of their valid and appropriate commercial drivers' licenses issued by the State of Arkansas. 6. Haulers agree that they shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters. 7. Haulers agree that they shall be required to pay a monthly franchise fee of ten (10%) percent of the gross revenue received for all services provided under this Franchise conducted within the City. 8. The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and well -maintained and that all containers are well -maintained and water tight, if necessary. 9. Haulers agree that they shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station operator and the Tontitown Landfill operator. 10. Haulers agree that any vehicle operator emptying or hauling waste or any waste hauler operating without a valid Franchise shall be subject to any and all legal and equitable remedies available to the City of Fayetteville, and shall be responsible for paying all costs associated therewith, including reasonable attorney's fees. 11. Hauler agrees to protect, indemnify, defend and save harmless the City to the extent caused by (i) Hauler's breach of any term, condition, covenant or warranty contained in this Franchise, or (ii) Hauler's negligent act or omission or willful misconduct related to the delivery of waste to the City transfer station. 12. Hauler shall maintain insurance coverage during the term of this Franchise: FAYETTEVI LLE THE CITY OF FAYETTEVILLE, ARKANSAS KIT WILLIAMS, CITY ATTORNEY DAVID WHITAKER, ASST. CITY ATTORNEY DEPARTMENTAL CORRESPONDE TO: City Council FROM: Kit Williams, City AttorneyQ( DATE: January 30, 2004 RE: Agreement to Haul and Dispose of Waste LEGAL DEPARTMENT Attached please see what I have recommended for our Agreement to Haul and Dispose of Solid Waste. As you can see, it tracks very closely to the proposed contract in your packet. The primary difference is paragraph 12 which has been completely rewritten to ensure that the waste hauler agrees that this is a voluntary contractual agreement as opposed to a franchise imposed by city ordinance. The City can legally impose a franchise on license requirement by city ordinance (especially if we have trouble arriving at an agreed voluntary contract), but that imposed franchise by ordinance would have to be differently structured and probably more difficult to administer for both the waste hauler and the City. That is why the contracts negotiated by Gary Dumas with Waste Management and Roll Off (with only the minor changes I proposed) are the preferable ways to authorize commercial waste hauling in Fayetteville. S AGREEMENT TO HAUL AND DISPOSE OF SOLID WASTE IN THE CITY OF FAYETTEVILLE This Agreement ("the Agreement"), is entered into on this day of March, 2004, between the City of Fayetteville, Arkansas, a municipal corporation (the "City"), and Hauler (the "Hauler"), and shall be in full force and effect on the date first written above. City and the Hauler agree as follows: Hauler agrees that from and after the original date of this Agreement, all customer service Agreements for facilities within the corporate limits of the City entered into before or after the effective date of this Agreement, or renewed shall have terms of no more than two (2) years and any subsequent extensions shall be for terms of no more than one (1) year. 2. The term of this Agreement shall be for three (3) years, unless otherwise terminated pursuant to the terms hereof. 3. Hauler agrees and understands that it may only collect and haul Solid Waste using the type equipment commonly referred to as open -top roll -off style containers with capacities of twenty (20) cubic yards or greater, or roll -off style compactor containers with capacities of twenty (20) cubic yards or greater, containing waste generated from industrial, large commercial or construction/demolition activities, or which is classified as Special Waste, Hazardous Waste, grease or any other type Solid Waste which requires special handling or disposal. Hauler shall not collect any Class I or Class 4 material in other containers. No unseparated recyclables collected in any type container shall be hauled from any customer within the corporate limits of the City of Fayetteville. The collection of scrap metal, cardboard and other source -separated recyclables are not controlled or affected by this contract. 4. Hauler agrees and understands that it may utilize the City's transfer station for all Class I waste collected pursuant to this Agreement and shall deliver all Class 4 waste to a properly licensed landfill facility. Hauler shall pay all transfer station fees to the transfer station operator and all Class 4 landfill fees to the landfill operator, as they may be established and amended, from time to time. 5. Hauler shall pay all fees due hereunder, along with the required supporting information, on or before the 15'" of each calendar month for the immediately preceding calendar month. Payments of the fees received after the due date shall be assessed a 2% penalty per month. If Hauler failed to pay the fees within forty-five (45) days of the due date, the City may revoke this Agreement upon delivery of written notice to the Hauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the following information: (i) Hauler's worksheet calculating the fees remitted; (ii) a blind list of payments received from customers within the City; (iii) such list shall clearly indicate whether each payment was from a permanent or temporary customer, and (iv) the fee shall be based upon all activity from each customer account within the City, and shall include the normal billing charges for all free or discounted services (excluding those for non-profit organizations) including but not limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges. The City shall have the right to conduct an audit of Hauler's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter. If such audit reveals the hauler should have paid at least 5% more than reported, the cost of the audit shall be paid by the Hauler to the City. During such audit, the City may review certain trade secret information, including rates, frequency of service, customer lists, and other customer information provided that such trade secret information may not be copied or removed by the City. Nor shall such information be divulged to any third party by the City, its employees, officers, or elected officials without the express written consent of the Hauler. 6. Hauler agrees and understands that it shall submit to the City on an annual basis a list of all commercial vehicles used to provide services in the City, proof of appropriate vehicle registration, and proof of the insurance required under Section 16. Hauler agrees and understands that it shall provide a list of vehicle operators collecting and hauling waste in the City of Fayetteville, along with proof of their valid and appropriate commercial drivers' licenses issued by the State of Arkansas. The Hauler shall also provide, maintain, and implement a plan to ensure that the vehicle operators maintain their commercial driver's licenses in accordance with applicable federal and state laws. 8. Hauler agrees that it shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters related to providing solid waste collection services under this Agreement. Hauler agrees that all open -top roll -off style containers will be properly covered during transit on streets and highways within Fayetteville. 9. In consideration of the right to provide the services described under this Agreement, Hauler agrees and understands that it shall be required to pay a monthly fee of ten (10%) percent (the Fee) of the gross revenue received for all services provided under this Agreement. Upon execution of this Agreement, a deposit shall be paid in advance to the City. This deposit shall be equal to one-half of the total fees that were or would have been paid by the Hauler within to the City during the previous twelve (12) months. Such deposit shall be reviewed on an annual basis. Any reasonable disagreement in estimated gross revenue will be decided in the favor of the City. The deposit shall be refunded, less any unpaid fees, when the Hauler ceases operation within the City or this Agreement is terminated, whichever is earlier. 10. The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and well -maintained and that all containers are well -maintained and water tight, if necessary. 11. Hauler agrees and understands that it shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station operator and the Tontitown Landfill operator. Hauler agrees that it shall comply with all practices, policies and procedures as established by the transfer station operator from time to time. Any tipping fee deposits required by the transfer station or landfill operators shall be refunded, less any unpaid tipping fees, when the Hauler ceases hauling activities governed by this Agreement. 12. This Agreement has been entered into freely and voluntarily by Hauler which agrees to abide by all of the terms and conditions as a matter of contractual obligation pursuant to applicable city ordinances. This is a contractual Agreement and is not intended to be part of or related in any way to any license or ordinance created pursuant to A.C.A. §26-77-102. 13. Neither this Agreement, nor any rights or obligations hereunder may be assigned or transferred to any third party or affiliate. 14. For the purposes of this contract, the Point of Contact of the City of Fayetteville shall be Gary Dumas or his successor. The Point of Contact for the Hauler shall be George Wheatley. Communications pertaining to day-to-day aspects of this contract shall be through these individuals. Either party may change its designated Point of Contact upon ten (10) days prior written notice to the other party. 15. Hauler agrees to protect, indemnify, defend and save harmless the City, its officials, officers, employees, agents, subcontractors, representatives and assigns from any loss, claim, liability, penalty, fine, forfeiture, demand, cause of action, suit and costs and expenses incidental thereto (including cost of defense, settlement and reasonable attorneys' fees), to the extent caused by (i) Haulers breach of any term, condition, covenant or warranty contained in this Agreement, or (ii) Hauler's negligent act or omission or willful misconduct related to the delivery of waste to the City transfer station or a properly licensed landfill facility. 16. Insurance: Hauler shall maintain the following insurance coverage during the term of this Agreement: (a) Hauler shall provide and maintain, during the term of this Agreement, comprehensive general liability insurance, to protect against all claims arising out of the performance of its services hereunder that result in bodily injury, death or property damage. The policy or policies shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the City sixty (60) days notice in writing. (b) Upon written request, Hauler shall furnish the City with evidence that the insurance required of it is in force. (c) The types of coverage and limits of liability of all insurance required herein shall be as follows: COVERAGE LIMITS OF LIABILITY Workmen's Compensation Statutory Employer's Liability $500,000 Bodily Injury Liability except Automobile $1,000,000 each occurrence Property Damage Liability Except Automobile $1,000,000 each aggregate fl Automobile Bodily Injury $1,000,000 each person Comprehensive General Liability $1,000,000 occurrence each Automobile Property Damage Liability $1,000,000 occurrence each Excess Umbrella Liability $1,000,000 each occurrence 17. Termination: (a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirements or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement fifteen (15) days after the fifteen (15) days in which to cure; or (ii) cure the breach or default at the expense of the Hauler; and (iii) have recourse to any other right or remedy to which it may be entitled by law. (b) The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding of that nature admitting the material allegations of the petition, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted against the offending and such proceeding is not dismissed within sixty (60) days. (c) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 18. All notices required or permitted under this contract shall be submitted in writing to the other party to this contract, by certified mail, return receipt requested, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Dan Coody, Mayor 113 West Mountain Street Fayetteville, AR 72701 Attn: 19. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville requesting such documents, Hauler will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25- 19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. 20. This Agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. Capitalized terms herein shall have the same meaning as set forth in ADEQ Reg. No. 22. 21. A waiver by either party of any of the terms or conditions herein shall be limited to that particular instance, and shall not be construed as a general waiver of either party's right to seek appropriate remedies for any other breaches by either party. 22. Each paragraph of this Agreement is severable from all other paragraphs. In the event any court of competent jurisdiction determines that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs shall remain in full force and effect. 23. This contract constitutes the entire understanding of the parities and no modification or variation of the terms of this contract shall be valid unless made in writing and signed by the duly authorized agents of the City of Fayetteville and the Hauler. 24. Each of the undersigned warrants that he or she has the full right, power, and authority to execute this contract on behalf of the party indicated for the purposes herein contained. 25. To the extent a definition or a specific term is not provided herein but is nonetheless required by the context, it is the intention of the parties to incorporate herein the definitions contained in applicable law and regulation in effect as the date hereof, except to the extent subsequent law or regulation shall expressly or implicitly mandate a revised definition. 26. The obligations of the parties to this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive the termination (for any reason), cancellation or expiration of this Agreement. IN WITNESS WHEREOF, we have hereunto set our hands on the date first written above. CITY OF FAYETTEVILLE By: ATTEST: By: SONDRA SMITH, City Clerk By: DAN COODY, as Mayor NAME Title YEATMAN & ASSOCIATES, P.A. ATTORNEYS AT LAW 100 MORGAN KEEGAN DRIVE • SURE 440 LITTLE ROCK, ARKANSAS 72202 TELEPHONE SO I .907.05 50 EACSIMILE 501.907.0555 March 2, 2004 Mr. Kit Williams Office of the City Attorney 113 West Mountain Fayetteville, AR 72701 WAILING ADDRESS: P.O. SW 7359 LIIILE ROCK. AR 722177359 GREGORY L. YEATMAN 91yoyeatman.com Re: Agreement to Haul and Dispose of Solid Waste in the City of Fayetteville Dear Kit: I have enclosed a copy of the Agreement to Haul and Dispose of Solid Waste in the City of Fayetteville with a faxed signature page. Tomorrow, I will forward two original executed contracts for execution by the City. Thank you for your assistance in this matter. Sincerely yours, Gregory L. Yeatman GLY:kbh Enclosure cc: Gary Dumas Roger Lawrence George Wheatley AGREEMENT TO HAUL AND DISPOSE OF SOLID WASTE IN THE CITY OF FAYETTEVILLE This Agreement ("the Agreement"), is entered into on this day of March, 2004, between the City of Fayetteville, Arkansas, a municipal corporation (the "City"), and Waste Management of Arkansas, Inc. (the "Hauler"), and shall be in full force and effect on the date first written above. City and the Hauler agree as follows: Hauler agrees that from and after the original date of this Agreement, all customer service Agreements for facilities within the corporate limits of the City entered into before or after the effective date of this Agreement, or renewed shall have terms of no more than two (2) years and any subsequent extensions shall be for terms of no more than one (1) year. 2. The term of this Agreement shall be for three (3) years, unless otherwise terminated pursuant to the terms hereof. 3. Hauler agrees and understands that it may only collect and haul Solid Waste using the type equipment commonly referred to as open -top roll -off style containers with capacities of twenty (20) cubic yards or greater, or roll -off style compactor containers with capacities of twenty (20) cubic yards or greater, containing waste generated from industrial, large commercial or construction/demolition activities, or which is classified as Special Waste, Hazardous Waste, grease or any other type Solid Waste which requires special handling or disposal. Hauler shall not collect any Class 1 or Class 4 material in other containers. No unseparated recyclables collected in any type container shall be hauled from any customer within the corporate limits of the City of Fayetteville. The collection of scrap metal, cardboard and other source -separated recyclables are not controlled or affected by this contract. 4. Hauler agrees and understands that it shall utilize the City's transfer station for all Class I waste collected pursuant to this Agreement and shall deliver all Class 4 waste to properly licensed landfill facility. Hauler shall pay all transfer station fees to the transfer station operator and all Class 4 landfill fees to the landfill operator, as they may bt established and amended, from time to time. 5. Hauler shall pay all fees due hereunder, along with the required supporting information, on or before the 15th of each calendar month for the immediately preceding calendar month. Payments of the fees received after the due date shall be assessed a 2% penalty per month. If Hauler failed to pay the fees within forty-five (45) days of the due date, the City may revoke this Agreement upon delivery of written notice to the Hauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the following information: (i) Hauler's worksheet calculating the fees remitted; (ii) a blind list of payments received from customers within the City; (iii) such list shall clearly indicate whether each payment was from a permanent or temporary customer, and (iv) the fee shall be based upon all activity from each customer account within the City, and shall include the normal billing charges for all free or discounted services (excluding those for non-profit organizations) including but not limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges. The City shall have the right to conduct an audit of Hauler's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter. If such audit reveals the hauler should have paid at least 5% more than reported, the cost of the audit shall be paid by the Hauler to the City. During such audit, the City may review certain trade secret information, including rates, frequency of service, customer lists, and other customer information provided that such trade secret information may not be copied or removed by the City. Nor shall such information be divulged to any third party by the City, its employees, officers, or elected officials without the express written consent of the Hauler. 6. Hauler agrees and understands that it shall submit to the City on an annual basis a list of all commercial vehicles used to provide services in the City, proof of appropriate vehicle registration, and proof of the insurance required under Section 16. 7. Hauler agrees and understands that it shall provide a list of vehicle operators collecting and hauling waste in the City of Fayetteville, along with proof of their valid and appropriate commercial drivers' licenses issued by the State of Arkansas. The Hauler shall also provide, maintain, and implement a plan to ensure that the vehicle operators maintain their commercial driver's licenses in accordance with applicable federal and state laws. 8. Hauler agrees that it shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters related to providing solid waste collection services under this Agreement. Hauler agrees that all open -top roll -off style containers will be properly covered during transit on streets and highways within Fayetteville. 9. In consideration of the right to provide the services described under this Agreement, Hauler agrees and understands that it shall be required to pay a monthly fee of ten (10%) percent (the Fee) of the gross revenue received for all services provided under this Agreement. Upon execution of this Agreement, a deposit shall be paid in advance to the City. This deposit shall be equal to one-half of the total fees that were or would have been paid by the Hauler within to the City during the previous twelve (12) months. Such deposit shall be reviewed on an annual basis. Any reasonable disagreement in estimated gross revenue will be decided in the favor of the City. The deposit shall be refunded, less any unpaid fees, when the Hauler ceases operation within the City or this Agreement is terminated, whichever is earlier. 10. The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and well -maintained and that all containers are well -maintained and water tight, if necessary. 11. Hauler agrees and understands that it shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station operator and the Tontitown Landfill operator. Hauler agrees that it shall comply with all practices, policies and procedures as established by the transfer station operator from time to time. Any tipping fee deposits required by the transfer station or landfill operators shall be refunded, less any unpaid tipping fees, when the Hauler ceases hauling activities governed by this Agreement. 12. This Agreement has been entered into freely and voluntarily by Hauler which agrees to abide by all of the terms and conditions as a matter of contractual obligation pursuant to applicable city ordinances. This is a contractual Agreement and is not 4 intended to be part of or related in any way to any license or ordinance created pursuant to A.C.A. §26-77-102. 13. Neither this Agreement, nor any rights or obligations hereunder may be assigned or transferred to any third party or affiliate. 14. For the purposes of this contract, the Point of Contact of the City of Fayetteville shall be Gary Dumas or his successor. The Point of Contact for the Hauler shall be George Wheatley. Communications pertaining to day-to-day aspects of this contract shall be through these individuals. Either party may change its designated Point of Contact upon ten (10) days prior written notice to the other party. 15. Hauler agrees to protect, indemnify, defend and save harmless the City, its officials, officers, employees, agents, subcontractors, representatives and assigns from any loss, claim, liability, penalty, fine, forfeiture, demand, cause of action, suit and costs and expenses incidental thereto (including cost of defense, settlement and reasonable attorneys' fees), to the extent caused by (i) Haulers breach of any term, condition, covenant or warranty contained in this Agreement, or (ii) Hauler's negligent act or omission or willful misconduct related to the delivery of waste to the City transfer station or a properly licensed landfill facility. 16. Insurance: Hauler shall maintain the following insurance coverage during the term of this Agreement: (a) Hauler shall provide and maintain, during the term of this Agreement, comprehensive general liability insurance, to protect against all claims arising out of the performance of its services hereunder that result in bodily injury, death or property damage. The policy or policies shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the City sixty (60) days notice in writing. (b) Upon written request, Hauler shall furnish the City with evidence that the insurance required of it is in force. (c) The types of coverage and limits of liability of all insurance required herein shall be as follows: COVERAGE LIMITS OF LIABILITY Workmen's Compensation Statutory Employer's Liability $500,000 Bodily Injury Liability except Automobile $1,000,000 each occurrence Property Damage Liability Except Automobile $1,000,000 each aggregate • • Automobile Bodily Injury $1,000,000 each person Comprehensive General Liability $1,000,000 occurrence each Automobile Property Damage Liability $1,000,000 occurrence each Excess Umbrella Liability $1,000,000 each occurrence 17. Termination: (a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirements or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement fifteen (15) days after the fifteen (15) days in which to cure; or (ii) cure the breach or default at the expense of the Hauler; and (iii) have recourse to any other right or remedy to which it may be entitled by law. (b) The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding of that nature admitting the material allegations of the petition, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted against the offending and such proceeding is not dismissed within sixty (60) days. (c) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 18. All notices required or permitted under this contract shall be submitted in writing to the other party to this contract, by certified mail, return receipt requested, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Waste Management of Arkansas, Inc. Dan Coody, Mayor Attn: Mr. George Wheatley 113 West Mountain Street 2900 West 68th Street Fayetteville, AR 72701 Little Rock, Arkansas 72209 19. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto are subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville requesting such documents, Hauler will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25- 19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. rd 03/02/04 15:25 FAX 501 565 6680 WASTE MANAGEMENT • Q001/001 20. This Agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. Capitalized terms herein shall have the same meaning as set forth in ADEQ Reg. No. 22. 21. A waiver by either party of any of the terms or conditions herein shall be limited to that particular instance, and shall not be construed as a general waiver of either party's right to seek appropriate remedies for any other breaches by either party. 22. Each paragraph of this Agreement is severable from all other paragraphs. In the event any court of competent jurisdiction determines that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs shall remain in full force and effect. 23. This contract constitutes the entire understanding of the parities and no modification or variation of the terms of this contract shall be valid unless made in writing and signed by the duly authorized agents of the City of Fayetteville and the Hauler. 24. Each of the undersigned warrants that he or she has the full right, power, and authority to execute this contract on behalf of the party indicated for the purposes herein contained. 25. To the extent a definition or a specific term is not provided herein but is nonetheless required by the context, it is the intention of the parties to incorporate herein the definitions contained in applicable law and regulation in effect as the date hereof, except to the extent subsequent law or regulation shall expressly or implicitly mandate a revised definition. 26. The obligations of the parties to this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive the termination (for any reason), cancellation or expiration of this Agreement. IN WITNESS WHEREOF, we have hereunto set our bands on the date first written above. CITY OF FA'YETTEVILLE �l By: DAN COODY, as Mayor Ii✓✓ ATTEST: �� . By: SONDRA SMITH, City Clerk WASTE MAN , k MENT OFSRKANSAS, INC. By: i authorized signatory 03/02/04 TUE 16:28 [TX/RX NO 5053) 03/02/04 16:59 FAX 501 907 0, YEATHAN & ASSOC,P.A. • 16003 i O' AGREEMENT TO HAUL AND DISPOSE OF SOLID WASTE IN THE CITY OF FAYETTEVILLE This Agreement ("the Agreement"), is entered into on this ____day of March, 2004, between the City of. Fayetteville, Arkansas, a municipal corporation (the "City"), and Waste Management of Arkansas, inc. (the "Hauler"), and shall be in full force and effect on the date first written above. City and the Hauler agree as follows: 1. Hauler agrees that from and after the original date of this Agreement, all customer service Agreements for facilities within the corporate limits of the City entered into before or after the effective date of this Agreement, or renewed shall have terms of no more than two (2) years and any subsequent extensions shall be for terms of no more than one (I) year 2. The tercet of this Agreement shall be for three (3) years, unless otherwise terminated pursuant to the temps hereof 3. Hauler agrees and understands that it may only collect and haul Solid Waste using the type equipment commonly referred to as open -top roll -off style containers with capacities of twenty (20) cubic yards or greater, or roll -off style compactor containers with capacities of twenty (20) cubic yards or greater, containing waste generated from industrial, large commercial or construction/demolition activities, or which is classified as Special Waste, Hazardous Waste, grease or any other type Solid Waste which requires special handling or disposal. Hauler shall not collect any Class I or Class 4 material in other containers. No unseparated rccyclables collected in any type container shall be hauled from any customer within the corporate limits of the City of Fayetteville. The collection of scrap metal, cardboard and other source -separated recyclables are not controlled or affected by this contract. 4. Hauler agrees and understands that it shall utilize the City's transfer station for all Class I waste collected pursuant to this Agreement and shall deliver all Class 4 waste to a properly licensed landfill facility_ Hauler shall pay all transfer station fees to the transfer station operator and all Class 4 landfill fees to the landfill operator, as they may be established and amended, from time to time. 5. Hauler shall pay all fees due hereunder, along with the required supporting information, on or before the 151° of each calendar month for the immediately preceding calendar month Payments of the fees received after the due date shall be assessed a 2% penalty per month. If Hauler failed to pay the fees within forty-five (45) days of the due date, the City may revoke this Agreement upon delivery of written notice to the Hauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the following information: (i) Hauler's worksheet calculating the fees remitted; (ii) a blind list of payments received from customers within the City (iii) such list shall clearly indicate whether each payment was from a permanent or temporary customer, and (iv) the fee shall be based upon all activity from each customer account within the City, and shall include the normal billing charges for all free or discounted services (excluding those for non-profit organizations) including but not limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges_ The City shall have the right to conduct an audit of Hailer's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter. If such audit reveals the 03/02/04 18:59 FAX 501 907 0555 YEATHAN & ASSOC,P.A. • ®004 hauler should have paid at least 5% more than reported, the cost of the audit shall be paid by the Hauler to the City. During such audit, the City may review certain trade secret information, including rates, frequency of service, customer lists, and other customer information provided that such trade secret information may not be copied or removed by the City. Nor shall such information be divulged to any third party by the City, its employees, officers, or elected officials without the express written consent of the Hauler. 6. Hauler agrees and understands that it shall submit to the City on an annual basis a list of all commercial vehicles used to provide services in the City, proof of appropriate vehicle registration, and proof of the insurance required under Section 16. 7. Hauler agrees and understands that it shall provide a list of vehicle operators collecting and hauling waste in the City of Fayetteville, along with proof of their valid and appropriate commercial drivers' licenses issued by the State of Arkansas. The Hauler shall also provide, maintain. and implement a plan to ensure that the vehicle operators maintain their commercial driver's licenses in accordance with applicable federal and state laws. 8. Hauler agrees that it shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters related to providing solid waste collection services under this Agreement Hauler agrees that all open -top roll -off style containers will be properly covered during transit on streets and highways within Fayetteville. 9. In consideration of the right to provide the services described under this Agreement, Hauler agrees and understands that it shall be required to pay a monthly fee often (10%) percent (the Fee) of the gross revenue received for all services provided under this Agreement. Upon execution of this Agreement, a deposit shall be paid in advance to the City. This deposit shall be equal to one-half of the total fees that were or would have been paid by the Hauler within to the City during the previous twelve (12) months. Such deposit shall be reviewed on an annual basis. Any reasonable disagreement in estimated gross revenue will be decided in the favor of the City. The deposit shall be refunded, less any unpaid fees, when the Hauler ceases operation within the City or this Agreement is terminated, whichever is earlier. 10. The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and well -maintained and that all containers are well -maintained and water tight, if necessary. 11. Hauler agrees and understands that it shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station operator and the Tontitown Landfill operator. Hauler agrees that it shall comply with all practices, policies and procedures as established by the transfer station operator from time to time. Any tipping fee deposits required by the transfer station or landfill operators shall be refunded, less any unpaid tipping fees, when the Hauler ceases hauling activities governed by this Agreement. 12. This Agreement has been entered into freely and voluntarily by Hauler which agrees to abide by all of the terms and conditions as a matter of contractual obligation pursuant to applicable city ordinances. This is a contractual Agreement and is not 03/02/04 16:59 FAX 501 907 0 YEATMAN & ASSOC,P.A. i 005 .a intended to be part of or related in any way to any license or ordinance created pursuant to A.C.A. §26-77-102. 13. Neither this Agreement, nor any rights or obligations hereunder may be assigned or transferred to any third party or affiliate. 14. For the purposes of this contract, the Point of Contact of the City of Fayetteville shall be Gary Dumas or his successor. The Point of Contact for the Hauler shall be George Wheatley. Communications pertaining to day-to-day aspects of this contract shall be through these individuals. Either party may change its designated Point of Contact upon ten (10) days prior written notice to the other party. 15. Hauler agrees to protect, indermify, defend and save harmless the City, its officials, officers, employees, agents, subcontractors, representatives and assigns from any loss, claim, liability, penalty, fine, forfeiture, demand, cause of action, suit and costs and expenses incidental thereto (including cost of defense, settlement and reasonable attorneys' fees), to the extent caused by (i) Haulers breach of any term, condition, covenant or warranty contained in this Agreement, or (ii) Hauler's negligent act or omission or willful misconduct related to the delivery of waste to the City transfer station or a properly licensed landfill facility. 16. Insurance: Hauler shall maintain the following insurance coverage during the term of this Agreement: (a) Hauler shall provide and maintain, during the term of this Agreement, comprehensive general liability insurance, to protect against all claims arising out of the performance of its services hereunder that result in bodily injury, death or property damage. The policy or policies shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the City sixty (60) days notice in writing. (b) (c) Upon written request. Hauler shall famish the City with evidence that the insurance required of it is in force. The types of coverage and limits of liability of all insurance required herein shall be as follows: COVERAGE LIMITS OF LIABILITY Workmen's Coaqiensation Statutory Employer's Liability 5500,000 Bodily Injury Liability except Automobile $1,000.000 each occurrence Property Damage Liability Except Automobile S 1,000,000 each aggregate 03/02/04 17:00 FAX 501 907 0 5 YEATYAN & ASSOC,P.A. • 17. Automobile Bodily Injury $1,000,000 each person Comprehensive General Liability £1,000,000 each occurrence Automobile Property Damage Liability $1,000,000 each occurrence Excess Umbrella Liability 51,000,000 each occurrence Termination: (a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirements or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement fifteen (15) days after the fifteen (15) days m which to cure; or (ii) cure the breach or default at the expense of the Hauler, and (iii) have recourse to any other right or remedy to which it may be entitled by law. (b) The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding of that nature admitting the material allegations of the petition, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted against the offending and such proceeding is not dismissed within sixty (60) days. (c) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 18. All notices required or permitted under this contract shall be submitted in writing to the other party to this contract, by certified mail, return receipt requested, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Waste Management of Arkansas, Inc. Dan Coody, Mayor Attn: Mr. George Wheatley 113 West Mountain Street 2900 West 6g'" Street Fayetteville; AR 72701 Little Rock, Arkansas 72209 19. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto are subject to the Arkansas Freedom of Information Act. if a Freedom of Information Act request is presented to the City of Fayetteville requesting such documents, Hauler will do everything possible to provide the documents in a prompt and timely manna as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25- 19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be assessed for this compliance. 03/02/04 17:00 FAX 501 907 05 VEATNAN & ASSOC,P.A. 16007 03/02/04 15:25 PAZ Sol 686 6 WASTE MANAGEMETif • (j001/001 as i4' F 1 1 rI -}u, 1 1 r u L • :I •1 111 • .n,l rJ •)• •: u u 1 1• . I I .4 1 u • 11 • z.. jiiir;, Ii •n � 1.1'� 1.1 11. ••, I. •� � r•rpr r cm Un 11,•i -I '•1 1 03/02/04 TUE 18:28 (TI/RI NO 5053] FROM ROLL OFF SERVICES • (TUE) 3 2 2004 17/ST.17:41/NO.5111051579 P 1 AGREEMENT O HAUL OF flY IEF- DISPO OF SO ID WASTE ThE CITYLL This Agreement ("the Agreement"), is entered into on this 2nd day of March. 2004, between the at, of Fayettevltle. Arkansas, a municipal corporation (the "City"), and Roll Off Service, Inc. (the "Hauler"), and shall be in full force and effect on the date first written above. City and the Hauler agree as follows: I. Hauler agrees that from and after the original date of this Agreement, all customer service Agreements for facilities within the corporate limits of the City entered into before or after the effective date of this Agreement, or renewed shall have terms of no more than two (2) years and any subsequent extensions shall be for terms of no more than one (I) year. 2. The term of this Agreement shall be for three (3) years, unless otherwise terminated pursuant to the terms hereof. 3. Hauler agrees and understands that it may only collect and haul Solid Waste using the type equipment commonly referred to as open -top roll -off style containers with capacities of twenty (20) cubic yards or greater, or roll -off style compactor containers with capacities of twenty (20) cubic yards or greater, containing waste generated from industrial, large commercial or construction/demolition activities, or which is classified as Special Waste, Hazardous Waste, grease or any other type Solid Waste which requires special handling or disposal. Hauler shall not collect any Class I or Class 4 material in other containers. No unseparated recyclables collected in any type container shall be hauled from any customer within the corporate limits of the City of Fayetteville. The collection of scrap metal, cardboard and other source -separated recyclables are not controlled or affected by this contract. 4. Hauler agrees and understands that it may utilize the City's transfer station for all Class I waste collected pursuant to this Agreement and shall deliver all Class 4 waste to a properly licensed landfill facility. Hauler shall pay all transfer station fees to the transfer station operator and all Class 4 landfill fees to the landfill operator, as they may be established and amended, from time to time. 5. Hauler shall pay all fees due hereunder, along with the required supporting information, on or before the l5a of each calendar mundt for the immediately preceding calendar month. Payments of the fees received after the due date shall be assessed a 2% penalty per month. If Hauler failed to pay the fees within forty-five (45) days of the due date, the City may revoke this Agreement upon ';elivery of written notice to the Hauler. The supporting information shall be sufficient to demonstrate the accuracy of the fee calculation, and shall include the following information: (i) Hauler's worksheet calculating the fees remitted; (ii) a blind list of payments received from customers within the City; (iii) such list shall clearly indicate whether each payment was from a permanent or temporary customer, and (iv) the fee shall be based upon all activity from each customer account within the City, and shall include the normal billing charges for all free or discounted services (excluding those fnr.non-profit organizations) including but not limited to delivery, pull charges, disposal charges, transportation charges, final pull charges, and return charges. The City shall have the right to conduct an audit of Hauler's customer files and records for all customers located within the City, provided that such audit privilege shall be limited to once per calendar quarter. If such audit reveals the FROM ROLL OFF SERVICES (TUE) 3 2 2004 1j:42/ST.17:41/NO.5111051579 P 2 • . . hauler should have paid at least 5% Mort than reported, the cost oldie audit shall be paid by the Hauler to the City. During such audit, the City may review certain trade secret information, including rates, frequency of service, customer lists, and other customer information provided that such trade secret information may not be copied or removed by the City. Nor shall such information be divulged to any third party by the City, its employees, officers, or elected officials without the express written consent of the Hauler. 6. Hauler agrees and understands that it shall submit to the City on an annual basis a list of all commercial vehicics used to provide services in the City, proof of appropriate vehicle registration, and proof of the insurance required under Section 16. 7. Hauler agrees and understands that it shall provide a list of vehicle operators collecting and hauling waste in the City of Fayetteville, along with proof of their valid and appropriate commercial drivers' licenses issued by the State of Arkansas. The Hauler shall also provide, maintain, and implement a plan to ensure that the vehicle operators maintain their commercial driver's licenses in accordance with applicable federal and state laws. 8. Hauler agrees that it shall comply with all federal, state and local laws applicable to the safety, environmental and transportation matters related to providing solid waste collection services under this Agreement. Hauler agrees that all open -top roll -off style containers will be properly covered during transit on streets and highways within Fayetteville. 9. In consideration of the right to provide the services described under this Agreement, Hauler agrees and understands that it shall be required to pay a monthly fee of ten (10%) percent (the Fee) of the gross revenue received for all services provided under this Agreement Upon execution of this Agreement, a deposit shall be paid in advance to the City. This deposit shall be equal to one-half of the total fees that were or would have been paid by the Hauler within to the City during the previous twelve (12) months. Such deposit shall be reviewed on an annual basis. Any reasonable disagreement in estimated gross revenue will be decided in the favor of the City. The deposit shall be refunded, less any unpaid fees, when the Hauler ceases operation within the City or this Agreement is terminated, whichever is earlier. 10. The City reserves the right to inspect all vehicles and containers to ensure that the vehicles are safe and.well-maintained and that all containers are well -maintained and water tight, if necessary. 11. Hauler agrees and understands that it shall be required to establish an individual credit or service relationship with the City of Fayetteville transfer station operator and the Tontitown Landfill operator. Hauler agrees that it shall comply with all practices, policies and procedures as established by the transfer station operator from time to time. Any tipping fee deposits required by the transfer station or landfill operators shall be refunded, less any unpaid tipping fees, when the Hauler ceases hauling activities governed by this Agreement. 12. This Agreement has been entered into freely and voluntarily by Hauler which agrees to abide by all of the terms and conditions as a matter of contractual obligation pursuant to applicable city ordinances. This is s contractual Agreement and is not FROM ROLL OFF SERVICES • (TUE) 3 2 2004 17'42/ST.17:41/NO. 5111051579 P 3 intended to be pan of or related in any way to any license or ordinance created pursuant to A.C.A. §26-77-102. 13. Neither this Agreement, nor any rights or obligations hereunder may be assigned or transferred to any third party or affiliate. 14. For the purposes of this contract, the Point of Contact of the City of Fayetteville shall be Gary Datmac or his successor. The Point of Contact for the Hauler shell be Tom Smith. Communications pertaining to day-to-day aspects of this contract shalt be through these individuals. Either parry may change its designated Point of Contact upon ten (10) days prior written notice to the other party. 15. Hauler agrees to protect, indemnify, defend and save harmless the City, its officials, officers, employees, agents, subcontractors, representatives and assigns from any loss, claim, liability, penalty, fine, forfeiture, demand, cause of action, suit and costs and expenses incidental thereto (including cost of defense, settlement and reasonable attorneys' fees), to the extent caused by (i) Haulers breach of any term, condition, covenant or warranty contained in this Agreement, or (ii) Hauler's negligent act or omission or willful misconduct related to the delivery of waste to the City transfer station or a properly licensed landfill facility. 16. Insurance: Hauler shall maintain the following insurance coverage during the term of this Agreement: (a) Hauler shall provide and maintain, during the term of this Agreement, comprehensive general liability insurance, to protect against all claims arising out of the performance of its services hereunder that result in bodily injury, death or property damage. The policy or policies shall contain a clause that the insurer will not cancel or decrease the insurance coverage without first giving the City sixty (60) days notice in writing. (b) (c) Upon written request, Hauler shall furnish the City with evidence that the insurance required of it is in force. The types of coverage and limits of liability of all insurance required herein shall be as follows: COVERAGE LIMITS OF LIABILITY Workmen's Compensation Statutory Employer's Liability $500000 Bodily Injury Liability except Automobile $1,000,000 each occurrence Property Damage Liability Except Automobile $ 1,000,000 each aggregate FROM ROLL OFF SERVICES (TUE) 3 2 2004 I 43/ST.17:41/NO. 5)1)051579 P 4 • Automobile Bodily Injury each person Comprehensive General Liability each Automobile Property Damageeach Liability KS1000000eachoccuffcnce Excess Umbrella Liability each occurrence 17 Termination: (a) Except as otherwise provided herein, if Hauler breaches this Agreement or defaults in the performance of any of the requirements or conditions contained herein, and such breach continues for fifteen (15) days after the City has given the Hauler written notice of such breach or default, the City may: (i) terminate this Agreement fifteen (15) days after the fifteen (15) days in which to cure; or (ii) cure the breach or default at the expense of the Hauler; and (iii) have recourse to any other right or remedy to which it may be entitled by law. (b) The City may terminate this Agreement upon written notice to the Hauler if the Hauler makes an assignment for the benefit of creditors, or files a voluntary petition in bankruptcy, receivership or insolvency, or files an answer in any involuntary proceeding of that nature admitting the material allegations of the petition, or if a proceeding in bankruptcy, receivership or insolvency shall be instituted against the offending and such proceeding is not dismissed within sixty (60) days. (c) In the event that this Agreement is terminated for any reason, any amounts payable to the City by Hauler for services rendered for any reason whatsoever shall become immediately due and payable as of the date of such termination. 18. All notices required or permitted under this contract shall be submitted in writing to the other party to this contract, by certified mail, return receipt requested, which notice shall be effective three (3) days after deposit therein addressed to the following: City of Fayetteville Roll Off Service, Inc. Dan Coody. Mayor Attn: Mr. Tom Smith 113 West Mountain Street P. 0. Box 1700 Fayetteville, AR 72701 Lowell, Arkansas 72745 19. Hauler agrees and understands that this Agreement and documents submitted to the City pursuant hereto arc subject to the Arkansas Freedom of Information Act. If a Freedom of Information Act request is presented to the City of Fayetteville requesting such documents, Hauler will do everything possible to provide the documents in a prompt and timely manner as prescribed in the Arkansas Freedom of Information Act (A.C.A. §25- 19-101 et seq.). Only legally authorized photocopying costs pursuant to the FOIA may be asxssed for this compliance. FROM ROLL OFF SERVICES • (TUE) 3 2 2004 1 3/ST.17:41/NO.5111051579 P 5 • 20. This Agreement shall be interpreted according to and enforced under the laws of the State of Arkansas. Capitalized terms herein shall have the same meaning as set forth in ADEQ Reg. No. 22. 21. A waiver by either party of any of the terms or conditions herein shall be limited to that particular instance, and shall not be construed as a general waiver of either party's right to seek appropriate remedies for any other breaches by either party. 22. Each paragraph of this Agreement is severable from all other paragraphs. In the event any court of competent jurisdiction determines that any paragraph or subparagraph is invalid or unenforceable for any reason, all remaining paragraphs and subparagraphs shall remain in full force and effect. 23. This contract constitutes the entire understanding of the parities and no modification or variation of the terror of this contract shall be valid unless made in writing and signed by the duly authorized agents of the City of Fayetteville and the Hauler. 24. Each of the undersigned warrants that he or she has the full right, power, and authority to execute this contract on behalf of the party indicated for the purposes herein contained. 25. To the extent a definition or a specific Icon is not provided herein but is nonetheless required by the context, it is the intention of the parties to incorporate herein the definitions contained in applicable law and regulation in effect as the date hereof, except to the extent subsequent law or regulation shall expressly or implicitly mandate a revised definition. 26. The obligations of the panics to this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive the termination (for any reason), cancellation or expiration of this Agreement. IN -WITNESS WHEREOF, we have hereunto set our hands on the date first written above. CITY OFJAYETTE ILLE By: By: Tom Smith /u 1 Title !' From: "Wheatley, George" <gwheatley@wm.com> To: 'City Clerk'<city_clerk@ci.fayetteville.ar.us> Date: 4/22/04 10:45AM Subject: RE: Resolution 33-04 Thank you. After they are executed by you and the Mayor, please get one of the originals to me @ 2900 West 68th, Little Rock 72209. —Original Message — From: City Clerk [mailto:city_clerk@ci.fayetteville.ar.us] Sent: Thursday, April 22, 2004 10:43 AM To: gwheatley@wm.com Subject: RE: Resolution 33-04 I received the originals from Gary Dumas yesterday. Thank you for letting me know that he had them. Have a great day! Sondra Smith City Clerk City of Fayetteville 113 W. Mountain Fayetteville, AR 72701 479-575-8323 >>> "Wheatley, George" <gwheatley@wm.com> 04/21/04 01:58PM >>> The originals were executed by Area VP Chuck Dees and sent to Gary Dumas for the Mayor's signature and your signature. Would you please check with Gary to see if he has them? Thanks, •Geo Wheatley —Original Message — From: City Clerk [mailto:city_clerk@ci.fayetteville.ar.us] Sent: Wednesday, April 21, 2004 1:10 PM To: Wheatley, George Subject: Re: Resolution 33-04 I have attached a copy of the Resolution 33-04 that you requested. I still do not show that we have received a contract from you with your original signature. I have only a faxed copy. Would you please send an original signed copy of the contract to my office. Have a great day! Sondra Smith City Clerk City of Fayetteville 113 W. Mountain Fayetteville, AR 72701 479-575-8323 >>> "Wheatley, George" <gwheatley@wm.com> 04/21/04 10:30AM >>> Could you email to me a copy of the above referenced Resolution that was passed March 2, 2004? Waste Management of Arkansas George Wheatley Director - Municipal Marketing gwheatley@wm.com <mailto:gwheatley@wm.com> 2900 West 68th Street <http://maps.yahoo.com/py/maps. py?Pyt=Tmap&addr-2900+West+68th+Street&csz=Li the+Rock%2C+Arkansas++72209&country=us> Little Rock, Arkansas 72209 tel: (501) 570-1277 fax: (501) 565-4723 mobile: (501) 804-9515 <http://www.plaxo.com/signature> Powered by Plaxo ... Want a signature like this? THE CITY OF FAYETTEVILLE, ARKANSAS April 23, 2004 George Wheatley 2900 West 68°' Street Little Rock, AR 72209 Re: Wastehauler Agreement Dear Mr. Wheatley: Per your request a copy of the agreement between Waste Management of Arkansas, Inc. and the City of Fayetteville is enclosed. Please let the clerk's office know if anything else is needed. Thank you. Cordially, A C abl�cel2 % �d l ✓ Clarice Buffalohead-Pearman City Clerk Division /cbp Enc. 113 WEST MOUNTAIN 72701 479-521-7700 FAX 479-575-9257 FAYETTEVI LLE THE CITY OF FAYETTEVILLE. ARKANSAS DEPARTMENTAL To: Gary Dumas Operations Dir. RRESPONDENCE From: Clarice Buffalohead-Pearman City Clerk Division Date: May 4, 2004 Re: Resolution No. 33-04 Attached is a copy of the above resolution passed by the City Council March 2, 2004, regarding waste haulers in Fayetteville. I have attached copies of the originals contracts. This resolution along with attachments will be recorded in the city clerk's office and microfilm. Also, I have attached an original contract with Ozark Sanitation for you to returned to their office. I have sent an original contract to George Wheatley, at Waste Management. If anything else is needed please let the clerk's office know. /cbp attachments cc: Nancy Smith, Internal Auditor STAFF FORM - FINANCIAL OBLIGATff3!I XXX . AGENDA REQUEST CONTRACT REVIEW GRANT REVIEW For the Fayetteville City Council Meeting of: February3,2004 FROM: Gary Dumas Operations Department Name Division Department ACTION REQUIRED: Approve resolution authorizing the Mayor to execute non-exclusive franchise contract(s) for the collection and transporting of specific types of trash and waste. COST TO CITY: -($200,000) $ - Solid Waste Cost of this request Category/Project Budget Program Category / Project Name 5500-0955-4105-07 Franchise from Waste Management 5500-0955-4105-08 Franchise from Roll Off Service 5500-0955-4105-09 $ Franchise from Ozark Sanitation Account Number Funds Used to Date Project Number Remaining Balance BUDGET REVIEW: Budgeted Item O dget Manager Date CONTRACT/GRANT/LEASE REVIEW: STAFF RECOMMENDATION: Program / Project Category Name Solid Waste Fund Name Budget Adjustment Attached Date Inte nal Auditor Date V 19 d at d Purchasing Manager Date Received in Mayor's Office Division Head Date - C7+ Cross Reference: Department Director Date previous Ord/Res#: Finance & Internal Services Dir. Date Orig. Contract Date: Orig. Contract Number: Chief Ad nistrative officer Date New Item: Yea No Mayor RESOLUTION NO. 33-04 A RESOLUTION AUTHORIZING THE MAYOR TO EXECUTE CONTRACTS WITH ANY WASTE HAULER DOING BUSINESS IN FAYETTEVILLE IN THE FORM OF ATTACHED EXHIBIT A WHEREAS, the City Council of the City of Fayetteville, Arkansas has approved the form of the agreement to haul and dispose of solid waste in the city of Fayetteville at a fair and appropriate contract for any waste hauler wishing to do business in / .! Fayetteville; and WHEREAS, the City Council of the City of Fayetteville, Arkansas wishes to give nd all such waste haulers time to agree to this contract so that enforcement of §59.29, rivate Collectors, contract with City required (adopted in 1959) should not be actively entered until March 16, 2004. StntzW Il ii NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF FAYETTEVILLE, ARKANSAS: Section 1: That the City Council of the City of Fayetteville, Arkansas hereby authorizes the Mayor to execute agreements to haul and dispose of solid waste in the City of Fayetteville (in the form of Exhibit A) with any and all waste haulers operating within the City, and specifically approves the Agreements signed by Waste Management of Arkansas, Inc. and Roll Off Services, Inc. PASSED and APPROVED this the 2nd day of March, 2004. may_• 4* pY E T,r� APPROVED: By: yf DfiA ODY, a or By. SONDRASMITH, City Clerk