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w . <br /> "Presermng public tmst,providink professional services' <br /> w <br /> Ro <br /> ' -a = o Manager dney Q. <br /> Town Managrer Mashpoe Town Ha <br /> 5 5 4 � 'A 16 Great Neck Road North <br /> roc a hpeema.go ahpee 02649 <br /> Sent via Certified ail-Return Recellpi Requested <br /> September 23,2019 <br /> Michael Camara, President <br /> New Bedford'Waste' ;Services, LLc <br /> 1245 Shawm ut Avenue <br /> P.P. Box 50934 <br /> New Bedford, MA 02745 <br /> Re August 9, 2019 Solid Wa.ste,Price [ncrease Notification to Town of iashpee <br /> Dear Mr. Camara: <br /> I submit the within reply on behwalf of the Town, of Mashpee "Town" to your August 9, 2019 <br /> c�6rrespo-ndence purporting to' notify the Town of a .solid Waste Price Increase in accordance with the <br /> provisions of Article 13 (Uncantrollable Circumstances) of the Nov&rnber 15, 2013 Waste Disposal <br /> Agreement by and between, The Town and Nev Bedford Waste Services, LLC ("NRW5"), as amended,,I <br /> have reviewed said correspondence and the underlying contract dacaments with Town Counsel, and it is <br /> th <br /> e position of the`ro° rn that the circur�nsta-nces cited,by Ivy in said correspondence do not constitute <br /> an 'Uncoitrollal le Circumstance' for-purposes of Article 13 thus,your unilateral,purported increase of <br /> the contract price is without merit. Accordingly, your August 9, 20 , "Notification"' is re�pectfull°y <br /> rejected <br /> hviousl , the Disposal Fee.to he charged by N WS is an material term of our Agreement, which is <br /> addressed specifically .n Article of both the .arch 5, o 4-Amendment#,1 To Was e isp���e� r�cr �r�t <br /> and the initial November 15, 2013 Waste Disposal Agreement. changes in general econarnic or industry <br /> conditions over the term of the Agreement.are a risk assumed-by the parties and any amendment or <br /> modification to the Disposal Fee terms of the Agreement based thereon should be effected b mutual <br /> w <br /> negotiation and written agreement of the parties, w as was the case when the Town and LBWS.negotiated <br /> a <br /> and executed Amendment # 1 in March 2014. Article 8 of the Agreement (charges and Payments), <br /> supports construction of parties'. <br /> pp �" construction p 'A intent with respect-to the estallisfirn.e#nt of charges and rates to <br /> be paid by the Town, <br /> The ncontro lla le rcun stances rc lsien set forth i-n Art cle�i3 'is a co pr6hensive "force ma jeure'� <br /> clause, insulating NBWS from `material adverse effects" caused by"any act, event-or condition occurring <br /> g 3 A�-H itemizes eight specific <br /> on or after the effective date of the Agreement. As-you ou know, Article ... <br /> categories of such acts, events or conditions which would constitute an Uncontrollable Circumstance <br /> ("'UCC")for purposes 'of the,Agreement;. l note that the 'diminishing capacity of approved disposal in the <br /> Commonwealth of Massachusetts', which you reference in your August 9, 2019 letter to the Town.as the <br /> basis for your invOCatiM of an Article 13 price increase does not fall within the scope of any of the UCC <br /> categories referenced in Article 13. To the contrary,Article 13.1 states, in relevant part, "It is specifically <br /> understood that, without limitation, none of the following acts, events or circumstances shall constitute <br />