RUSSELL J. SKOGSTAD, JR. VIENNA CITY ATTORNEY

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1 RUSSELL J. SKOGSTAD, JR. VIENNA CITY ATTORNEY July 9,2008 c Bill Flenner Public Service Commission of WV 201 Brooks St. PO Box812 Charleston, WV Dear Mr. Flenner, As per our conversation of July 2,2008 you will find enclosed a hard copy of the proposed contract between the City of Vienna and Haul-A-Way Trash, LLC. Also you will find attached a copy of the City of Vienna s recycling ordinance governing how the city will collect and dispose of recyclable materials. Just to be clear, as I understand it, the PSC, if it is so inclined, wil not be able to approve the contract by the time of the next City Council meeting on July 10,2008. It is possible that PSC approval could come at or around July 24,2008, the next after scheduled City Council meeting. If you have any questions, please feel free to contact me. Sincerely, FP Russell J. Skogstad, Jr.

2 CONTRACT FOR THE COLLECTION OF RESIDENTIAL RECYCLED MATERIALS IN THE CITY OF VIENNA, WV July 1,2008 -June 30,2011 City of Vienna Wood County, West Virginia th St. Vienna, WV

3 CONTRACT FOR THE COLLECTION OF RESIDENTIAL RECYCLED MATERIALS IN THE CITY OF VIENNA, WV THIS AGREEMENT, made and entered into this day of,2008, by and between THE CITY OF VIENNA, a West Virginia municipal corporation, hereinafter referred to as City and JON FERGUSON, DBA, HAUL-A-WAY-TRASH, LLC, Elizabeth, WV, hereinafter referred to as Contractor WHEREAS the City of Vienna has adopted an ordinance, numbered 953 as set out in the Codified Ordinances of the City of Vienna, West Virginia, establishing a mandatory curbside collection and recycling program (attached as Exhibit A ) (the Ordinance ) as required by West Virginia Code , et seq as amended. WHEREAS, in order to implement certain portions of said Ordinance, it is necessary that the City contract with Contractor regarding the curbside collection and removal of recyclable materials as more fully stated in said Ordinance. NOW, THEREFORE, in consideration of the recitals hereinabove stated and the covenants and agreements hereinafter set forth, the parties agree as follows. GENERAL SPECIFICATIONS AND REQUIREMENTS 1. JURISDICTION - The laws of the State of of West Virginia shall govern all rights and duties under the Contract, including, without limitation, the validity of this Contract. 2. NON-FUNDING - All services performed under this contract are to be continued for the terms of the Contract, contingent upon funds being appropriated by the Vienna City Council, if said appropriations are necessary, or otherwise being made available. In the event funds are not appropriated or otherwise available for these services, this contract becomes void and of no effect. 3. COMPLIANCE - Contractor shall comply with all Federal, State, and local laws, regulations, and ordinances. 4. MODIFICATIONS - This writing is the party s final expression of intent. No modification of this order shall be binding unless agreed to in writing by the City 5. ASSIGNMENT - Neither this Contract, nor any monies due, or to become due hereunder may be assigned by the Contractor without the express written consent of the City. 2

4 6. BANKRUPTCY - In the event that the Contractor files for bankruptcy protection, this Contract is automatically null and void, and is terminated without further order CANCELLATION - The City reserves the right to cancel this contract immediately upon written notice to the Contractor if the services supplied are of an inferior quality or do not conform to the specifications of the contract herein. RATE - In consideration for the obligations and undertakings as set forth by Contractor, the City shall pay unto Contractor on a quarterly basis the sum of two dollars and twenty-five cents ($2.25) per household, per month, as payment for Contractor s services hereunder; provided, however, that City shall have no responsibility or obligation to pay unto Contractor any sums for services hereunder not actually collected and received by City. The City agrees to take all reasonable and necessary steps to enforce the provisions of the aforementioned Ordinance and to collect monies due for the collection and removal of recyclable materials. TERM OF THIS AGREEMENT - The terms of this exclusive contract for the collection and removal of recyclable materials within the City of Vienna shall be for a period of three (3) years, commencing July 1,2008, and ending June 30, 201 1, provided, however that any contract entered into hereunder may be extended at the same or lower rates for an additional two (2) year period upon agreement of Contractor and the City of Vienna. 10. INDEMNIFICATION - Contractor agrees to indemnify and hold harmless the City, its elected officials, officers, employees and agents, against any and all claims, suits actions, debts, damages, costs, charges, and expenses, including court costs and attorneys fees, and for all losses which City may sustain, for bodily injury or property damage arising from Contractor s undertakings as set forth in this agreement. City agrees to indemnify and hold harmless the Contractor, its elected officials, officers, employees and agents, against any and all claims, suits, actions, debts, damages, costs, charges and expenses including court costs and attorneys fees, and for all losses which Contractor may sustain, for bodily injury or property damages arising from City s undertakings as set forth in this agreement. 3

5 OPERATIONAL SPECIFICATIONS AND REQUIREMENTS 1. LABOR - Contractor shall furnish all labor, materials, and equipment, except as otherwise provided herein, necessary to collect, remove, and dispose of the recyclable materials which may, from time to time, be added thereto, such collection to be conducted throughout the City of Vienna. 2. COLLECTION SCHEDULE - Contractor shall remove, collect, and dispose of said recyclable materials on a weekly basis upon those days and at such time as agreed upon by Contractor and the Recycling Coordinator for the city. 3. CHANGES TO LIST OF RECYCLABLES - Contractor is hereby permitted to request the City to amend the list of recyclable materials from time to time, as market conditions change for such materials and City agrees, in good faith, to consider such request. 4. PERFORMANCE BOND - Contractor shall present upon execution of this agreement, written evidence of a performance bond in an amount equal to 100% of the annual contract to secure the faithful performance of the contract on part of Contractor. 5. LIABILITY INSURANCE - Contractor shall also certify that it carries an insurance policy providing complete third party comprehensive general liability insurance for bodily injury and property damage with the limits of no less than one million dollars ($1,000,000) per occurrence and one million dollars ($1,000,000) aggregate covering Contractor and the City as a named additional insured. 6. ACCIDENTAL DAMAGE INSURANCE - Contractor shall also certify that it carries an insurance policy providing insurance coverage for sudden and accidental damage with limits of no less than one million dollars ($1,000,000) per occurrence and one million dollars ($1,000,000) aggregate covering Contractor and City as a named additional insured. 7. WORKERS COMPENSATION - Contractor shall also provide proof that it has adequate Worker s Compensation coverage for each of its employees under the laws of the State of West Virginia. 8. DEFINITION OF RECYCLABLE MATERIALS - Recyclable Materials are defined as those items identified in City of Vienna s Ordinance Article 953 and as currently collected, a copy of which is attached hereto as may be amended fiom time to time. 4

6 9. DISPOSAL OF RECYCLABLES - All Recyclable Materials collected shall be disposed of in accordance with all West Virginia Department of Environment Protection guidelines regarding disposal of Recyclable Materials. 10. CONTAINERS - The City shall provide recycling containers to its residents for the purpose of placing materials therein for collection. 11. BILLING AND COLLECTIONS - The City shall be solely responsible for all billing and collection of accounts including delinquent accounts resulting from the collection of recyclable materials. In consideration for the obligations and undertakings included in these GENERAL AND OPERATIONAL SPECIFICATIONS AND REOUIREMENTS, the City shall render payment to Contractor, on a quarterly basis, for monies actually collected and received by the City, being the fifteenth (1 5) day of January, April, July, and October; the first disbursement being October 15,2008, and continuing in the above fashion for the remainder of the Contract. 12. DELINQUENT ACCOUNTS - Contractor Shall not be obligated to provide the collection of recyclable materials services to any customer within the City who has not paid its bill to the City or which bill remains unpaid for a period of sixty (60) days from the date of such billing. The City Shall inform Contractor in writing of any customer within the City who has not paid his or her bill to the City or which bill remains unpaid for a period of sixty (60) days. Upon such notice from the City, Contractor may elect in its sole discretion, to cancel all collection services to the customer until such time as being notified by the City that such customer s account is current. In this regard, Contractor shall provide City at all times during the life of this contract an updated and current list of all customers as well as monthly tonnage reports, and City shall supply Contractor with all information necessary in order to determine the status of any such customer s account. 13. REPORTS - Contractor shall provide prompt semi-annual records of the residential recycling collection volumes to the City, said reports are due on or before September 30th and March 3 lst for a total of six (6) during the contract period. 14. EXCLUSIVITY - The City agrees that no person, firm or corporation shall be entitled to remove, collected or dispose of recyclable materials other than that firm authorized by the City and that the City will, at the written request of Contractor, take all appropriate steps to enforce this provision of the Contract. 5

7 15. PROCESSING FACILITY - Contractor shall provide evidence of ownership or evidence of an agreement covering use of a processing facility for a period coinciding with the Initial Contract Year through the end of the contract. WITNESS the following signatures: City of Vienna, By: David C. Nohe, Mayor Jon Ferguson, DBA, Haul-A-Way Trash Company 6

8 APPENDIX A EXHIBIT A - Recycling Ordinance 7

9 materials; prohibitions; rules and enforcement. S le p"t ESTABLISHMENT. (a) There is hereby established and created a mandatory curbside source separated collection and recycling program for the City of Vienna. (b) Effective September 6, 1993, each owner or oc d within the City of Vienna shall separate ers provided by the City and place the s by the City, the recyciable materials liste rence and made a part hereof. (c) Curbside collection of recyclable materials pursuant to article shall be made one time per week. The RecycIing Coordinator so designated by the Mayor, shall( prescribe the days and hours for co recyclable materials. n \ +- - (d) The City reserves the right to add or remove an item or items from its designated list of recyclable materials at any time upon notification of the public. (e) Special recycling containers shall be provided to each person subject to the provisions hereof, free of charge. A replacement fee of five dollars ($5.00) shall be charged to such person if a recycling container must be replaced. (0 Upon the direction of the Recycling Coordinator, or any other person so designated by the Mayor, a comprehensive public information and education program shall be established covering, among other things, the specific requirements and benefits of the recycling program and recycling in general. (Passed ) 1995 Replacement

10 SEVERABILITY. If any section, subsection, paragra base of this article shall be declared invalid for any reason ch invalid section, subsection, paragraph, sentence, clause or phrase shall not affect the remaining valid portions of this article which shall remain in force and effect, and for this purpose, the provisions of this article are hereby declared to be severable. (Passed ) EXEMPTIONS. Commercial structures and multi-family units are exempt from the provisions of this article. (Passed ) indicated. (a) DEFINITIONS. As used in this article, the following words and terms shall have the meanings "Recyclable material" mans a material which would otherwise become municipal, industrial or commercial solid waste which can be source separated, collected, processed and returned to the economic mainstream in the form of raw materials or products. "Recycling" means any process where waste materials are collected, manufactured into new material, and used or sold again in the form of new products or raw materials. "Source separate" means the removal of recyclable materials at the point o solid waste generation from that waste which is to be landfilled. "Designated recyclable materials" means those recyclable materials specified by the City of Vienna Recycling Coordinator or other duly authorized person. "Multi-family unit" means a single building structure or portion thereof containing three or more dwelling units. "Residential unitvn means any single family, duplex apartment or other building used for residential purposes, except units used for residential purposes within a multi-family unit as defined herein. "Commercial structures" means any building or structure used to manage, conduct or carry on any business and is intended to include buildings or structures used for commercial, retail, industrial or professional purposes and shall include warehouses. (Passed ) PENALTY. Whoever violates any provision of this article shall be fined not more than one hundred dollars ($100.00). A separate offense shall be deemed committed each day during or on which a violation OCCUTS or continues. (Passed ) 1993 Replacement