11/04/2019 BOARD OF SELECTMEN Agenda Packet

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"Preserving public trust, providing professional services" ��•cowry or Rodney C. Collins ( = a J Office of the Town Manager Town Manager >', Mashpee Town Hall 508-539-1401 9RN�AULG COP 16 Great Neck Road North rccollins@mashpeema.gov Mashpee,MA 02649 Sent via Certified Mail-Return Receipt Requested September 23,2019 Michael Camara, President New Bedford Waste Services, LLC 1245 Shawmut Avenue P.O. Box 50934 New Bedford, MA 02745 Re: August 9, 2019 Solid Waste Price Increase Notification to Town of Mashpee Dear Mr. Camara: I submit the within reply on behalf of the Town of Mashpee ("Town") to your August 9, 2019 correspondence purporting to notify the Town of a Solid Waste Price Increase in accordance with the provisions of Article 13 (Uncontrollable Circumstances) of the November 15, 2013 Waste Disposal Agreement by and between The Town and New Bedford Waste Services, LLC ("NBWS"), as amended. I have reviewed said correspondence and the underlying contract documents with Town Counsel, and it is the position of the Town that the circumstances cited by NBWS in said correspondence do not constitute an "Uncontrollable Circumstance" for purposes of Article 13; thus, your unilateral purported increase of the contract price is without merit. Accordingly, your August 9, 2019, "Notification" is respectfully ..__........_.. . . rejected. Obviously, the Disposal Fee to be charged by NBWS is an material term of our Agreement, which is addressed specifically in Article 1 of both the March 5,2014 Amendment#1 To Waste Disposal Agreement and the initial November 15, 2013 Waste Disposal Agreement. Changes in general economic or industry conditions over the term of the Agreement are a risk assumed-by the parties and any amendment or modification to the Disposal Fee terms of the Agreement based thereon should be effected by mutual negotiation and written agreement of the parties, as was the case when the Town and NBWS negotiated and executed Amendment # 1 in March 2014. Article 8 of the Agreement (Charges and Payments) supports this construction of the parties' intent with respect to the establishment of charges and rates to be paid by the Town. The Uncontrollable Circumstances provision set forth in Article i3 is a comprehensive "force majeure" clause, insulating NBWS from "material adverse effects" caused by"any act, event or condition occurring on or after the effective date" of the Agreement. As you know, Article 13 A-H itemizes eight specific categories of such acts, events or conditions which would constitute an Uncontrollable Circumstance ("UCC")for purposes of the Agreement. I note that the "diminishing capacity of approved disposal in the Commonwealth of Massachusetts", which you reference in your August 9, 2019 letter to the Town as the basis for your invocation of an Article 13 price increase does not fall within the scope of any of the UCC categories referenced in Article 13. To the contrary, Article 13.1 states, in relevant part, "it is specifically understood that, without limitation, none of the following acts,events or circumstances shall constitute