01/06/2020 BOARD OF SELECTMEN Agenda Packet

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"Preserving public trust,providing professional services," R**pRrie 4t7 r Rodne" C. Collins x' Office of the Town Manager Taman Manager Mashpee Town Hall 508--539-1401 ,, co', 16 Great Neck Road North rccolli.ns@mashpeerna.gov Mashpee,MA 02649 Certified Mail-Return Receipt Requested December 3, 2019 Michael Camara, President New Bedford Waste Services, LLC 1245 Shawmut Avenue P.O. Box 50934 New Bedford, MA 02745 Re: November 21, 2019 Solid Waste Price Increase Notification to Town of Mashpee (Received by Town -on November 25, 2019 at 12:36 pm) Dear Mr.-Camara: I submit the within reply on behalf of the Town of Mashpee ("Town") to your November 21, 2019'Solid waste Price Increase Notification to Town of Mashpee (Received on November 25, 2019 at 12:36 pm) purporting to notify the.Town of a Solid.Waste Price Increase effective January 1, 2020 in accordance with the provisions of Article 13(Uncontrollable Circumstan-ces)of the November 15,2013 waste Disposal Agreement by and between- The Town and New Bedford Waste Services, LLC�"NBVIIS"},as amended. Please be advised that said notification of price increase is REJECTED by the Town. As we have previously discussed, both individually and with the Board of Selectmen, it is the position of the Town that the-circumstances oited by NEWS 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. Again, the Disposal Fee.to be charged by NEWS is a 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 B of,the Agreement (Charges and Payments} supports this construction of th-e parties' intent with respect to the establishment of charges and rates to be paid by the Town. The Uncontrollable Circumstances provision set forth in-Articles i3 is a comprehensive "force majeure" clause, insulating NEWS from "material adverse effects" caused by "any act, event or condition occurring on or after, the effective date" of the Agreement. The Town contends that the alleged diminished approved disposal capacity within.the Commonwealth of Massachusetts,you cite in support of the unilateral price increase is a "general economic condition" or general condition within the waste disposal industry rather than,a UCC event as.specified in Article 13. A-H. We de-ny that such a circumstance;, even if verified, would be a typical "force ma jeure" occurrence.