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HomeMy Public PortalAboutORD08915 BILL N0. r•.�.,,�1.../ / �' � i INTRODUCED BY COUNCILMAN El ORDINANCE NO. AN ORDINANCE OF THE CITY OF JEFFERSON, MISSOURI, AUTHORIZING THE MAYOR AND CITY CLERK TO ENTER INTO A CONTRACT WITH THE ENVIRONMENTAL SANITATION MANAGEMENT, INC. , FOR THE COLLECTION AND REMOVAL OF TRASH AND GARBAGE, WITHIN THE CITY LIMITS. BE IT ORDAINED BY THE COUNCIL OF THE CITY OF JEFFERSON, MISSOURI, AS FOLLOWS: Section 1. The Mayor and City Clerk of the City are hereby authorized and directed to execute a Contract with Environmental Sanitation Management, Inc. , as Contractor, giving the latter a Franchise for the collection of garbage and trash within the City for a period of six (6) years , beginning November 1, 1976. , and expiring October 31, 1982, as set out in the attached Contract. Section 2. The Franchise Agreement is attached to this Ordinance and made a part hereof as though fully set forth herein. Section 3. This ordinance shall be in full force and effect ,from and after the date of its passage and approval. Pass Approved J 19 100, sident �o a Co cil or Attest: City Clerk 5 I� v C O N T R A C T THIS CONTRACT executed on the date hereinafter set out, by and between the City of Jefferson, Missouri, hereinafter called "City", and Environmental Sanitation Management, Inc. , hereinafter called "Contractor". WITNESSETH 1. City hereby grants to Contractor the exclusive right, privilege and franchise, subject to the provisions of Ordinance No. 8320 of the City, with any amendments thereto, to collect, transport and dispose of all garbage from within the City Limits of City. 2. This franchise shall extend for a period of six (6) years, beginning November 1, 1976, and expiring October 31, 1982, except that the franchise shall continue after said latter date until terminated by six (6) months ' notice by one party to the other, in writing, and provided further that should either party desire to terminate the Agreement on October 31, 1982, said party shall advise the other at least six (6) months in advance of its desire to terminate the contract on said date. 3. Between November 1 and November 10, 1976, and for each year thereafter during which this franchise shall remain in effect, Contractor shall pay to the City Collector fifty ($50.00) dollars , plus ten ($10.00) dollars for each truck used by Contractor in the transportation of garbage from the City, as an Occupation Tax, to engage in business , pursuant to this franchise. 4. Contractor shall obtain and maintain in force Workmen' s Compensation Insurance on its employees , as required by law, and shall maintain in force public liability and property damage insurance in the minimum amounts of $100,000.00 for injury to any one person, $300,000.00 in any one accident, and $10,000.00 for property damage, covering each vehicle and all equipment operated in performance of this contract. The Company carrying such required insurance shall file with the City Clerk a Certificate of Insurance Coverage with at least the minimum amounts required above, with a commitment to notify the City Clerk of any cancellation of said insurance at least thirty (30) days prior to such cancellation. r Contractor agrees to indemnify and hold harmless the City from any and every obligation, claim, demand, action, suit or cause of action, ,judgment, or any damages resulting from the performance of this Contract by Contractor, its agents or .employees . Contractor shall also post a Surety Bond in the amount of five thousand ($5,000.00) dollars with the City Clerk, which bond shall guarantee the faithful performance of Contractor's obligations under this Contract, which Bond shall be for the benefit of any person, firm or corporation suffering damage by reason of Contractor's failure to perform its obligations hereunder. 5. Contractor shall operate its disposal area as a sanitary landfill and shall fully comply with all Laws , Statutes , or rules and regulations promulgated by an authorized official under authority of State Statutes or Federal Laws . The disposal area used by Contractor shall be in a location approved by the City Council and shall not be changed except with the consent of the latter . The present landfill area in the vicinity of Hickory Hill, Cole County, Missouri, has the present approval of the City Council. AML 6. Contractor shall maintain an office within the City, equipped with adequate personnel to receive complaints, requests for service, and where payment for charges may be made. Such office shall be open to the public between the hours of 8:00 o'clock A.M. and 5:00 o'clock P.M. , Monday through Friday of each week, excludinAegal holidays, and from 8:00 o'clock A.M. to 12:00 o'clock noon on Saturday mornings, except on legal holidays, for business purposes. The disposal area being used by Contractor shall be open for acceptance of trash or garbage during the same ho rs described above..! et Ce =VI 7. Contractor shall provide collection service at least twice each week for each residence within the City, for the prices and charges hereinafter set forth, which prices shall remain in force at the prescribed rate for a period of two (2) years and until October 31, 1978, at which time prices shall be altered in accordance with the consumers ' price index of 1967, and as more specifically set out. (a) Res ntial uX r4 �u�purchase omdCon20ct,�r 2��C��°acb u Glsc �jJ plastic bagsAfit a charge f fifty ( .50) cents per Sag, wgich cost shall be the total cost per bag for the collection, ® transportation and disposal of said bag containing garbage or trash. The customer shall place such bag or bags at the property line at a point designated by Contractor on the owner's or tenant 's property reasonably convenient for pick up. (b) Users may purchase from Contractor plastic bags intended for use with mechanical compactors, which bags, shall have a thickness of at least ten 10 mills, and th sal ice of said bags, which shall be seventy ( .70) cents per bag, shall include the disposition of the contents of such bags , as described in the preceding paragraph. ® (c) Contractor shall collect from garbage containers , placed on owner's or tenant's property at a point reasonably convenient for Contractor's employees , at least twice a week, and dispose of same as authorized and required by this contract. Such container or containers may be placed underground so long as the contents are placed in an inner container readily removable. The cost for said last described residential collection service shall be, for the initial period of two (2) years , $5.80 per month per residence. The Contractor shall be responsible for removing any spilled garbage or trash when collecting, and in no event shall the City 0 be responsible or liable for disposition of the garbage bags or contents of containers . - 3 - As of November 1, 1978, each of the two above described charges shall be altered by Contractor, based on the 1967 consumer price index. That Index issued on November 1, 1976, or the nearest date thereto, shall be the base Index, and that on October 31, 1978, or the nearest date thereto, shall provide the other basis for such determination, with the difference in percentage of the two indexes to be applied to the prices here- inabove set forth for the collection service. The increase or decrease, however, shall not exceed eight (8%) per cent in any one year. The price index on October 31st of successive years shall become the other basis for determination of percentage increase or decrease, within the limit above described. 8. Contractor will also collect from all commercial establishments within the City all garbage or trash, except materials which are recycleable, and shall charge for such service, for a period of two (2) years and until November 1, 1978, those charges currently being made for such service from such commercial. users . Such current rates shall be subject to alteration in. the same manner as that for residential rates, based on the consumers ' price index. If there be no existing rate for commercial users , a rate shall be negotiated by Contractor and such user for the collection, removal and disposal of garbage and trash. If a rate cannot be negotiated for such customers, ,the Health Officer of the City shall be advised of such failure to agree and will fix a reasonable monthly charge for such service, taking into consideration the time involved and the volume of material to be transported. Either party may appeal from such finding of the Health Official to the Health Committee of the City Council within three (3) days after the determination by the Health Officer, and the said Health Committee shall make a determination of the rate, which shall be final and binding on Contractor and the Commercial User involved. - 4 - 9. Contractor shall permit any resident of the City, or firm or corporation doing business therein, to dispose of garbage, trash or rubbish at the authorized disposal area of Contractor, upon the payment of those fees currently in force for such service, and such charges shall not be changed during the term of this franchise without the consent of the City Council. Such rates shall be posted at the disposal area, and be available at the office of the Contractor, and in the office of the Clerk of the City. The disposal area herein referred to shall include a temporary station at a place selected by Contractor, and the landfill area outside the City operated by Contractor. Any garbage or trash accepted at the City transfer area shall be promptly transported to the landfill by Contractor. The following car es hall be tl-t,pse which rem i effect during the period/ of this f anchise�( � th s er disposal area operated within the City by Contractor: 30 gallon bag or can - - - - - - - - $ .50 55 gallon bag or can - - - - - - - - 1.50 Car load - - - - - - - - - - - - - - 1.50 Station wagon load - - - - - - - - - 4.00 Pick up load (no side racks) - - - - 5.00 Pick up load with side racks - - - - 10.50 10. Contractor shall collect all charges from users of its service, and may require the same to be paid in advance, on a monthly or quarterly basis , and may refuse service to any user not paying such fees as required, with a grace period of thirty (30) days after billing. 11. On discontinuance of service, for non-payment, Contractor may require a reinstatement charge of not to exceed one ($1.00) dollar, in addition to the regular charges due, to reinstitute service. In the event the user shall move from the City, Contractor shall refund, on request, the unearned portion of his payment advanced for service. - 5 - Contractor may require a minimum purchase of ten (10) bags for use in the disposal of garbage, but shall place no upper limit upon the purchase of bags at any one time. 12. There shall be a period of at least seventy-two (72) hours intervening between bi-weekly collections in residential areas, but Contractor shall make daily collections , or more frequently, if necessary, from commercial users . Collections shall not be required on Sundays or legal holidays, except by direct arrangement, if necessary, between the customer and the Contractor. 13. In the removal and transportation of garbage and trash, Contractor shall use only vehicles with sanitary, leak-proof and enclosed beds. Openings to beds shall be kept closed except when deposits are being made in the bed of the vehicle. The outer surface of the vehicles used by Contractor shall be washed at least once each week and shall be painted, and other mainte- nances provided to keep said vehicles in a highly acceptable appearance. 14. Garbage containers shall be kept tightly closed by the owner, and covers shall be replaced by Contractor immediately after collection from the container. All containers furnished by Contractor, which are to contain garbage, shall have covers which shall prevent access of flies and omission of odors . Large van type containers furnished for trash other than garbage shall have attached canvas or vinyl covers which will effectively retain any material deposited therein, and shall be kept closed at all times by the owner and the Contractor. Liquids shall not be placed in a container with garbage, and garbage shall not be deposited in any container intended primarily for trash. No person shall place the garbage or trash of another in his containers and the latter shall be located at ground level, or underground, outside and adjacent to dwellings or places of business from which collection is being made. - 6 - 15. As an additional consideration for this contract, on the part of the Contractor, the latter shall furnish, without additional charge, free disposition of trash or other articles to be disposed of by the owner, during one (1) week in the month of May of each year. Collections are to be made at least twice during said week from each residence, and shall be placed in a location reasonably convenient for collection by Contractor. The Contractor and the Mayor shall agree upon the particular week and the latter shall cause notice to the public to be circulated of the time fixed for such collections. 16 . Nothing herein shall prevent any owner from the disposition of trash, through licensed pick-up haulers , involving special cleanup of storage or other areas of commercial buildings, nor shall it apply to disposition of grass , weeds, limbs, trees or other materials being removed under special contract, oral or written. 17. Any term used in this Contract, which is specifically defined in Section 20.580 of Ordinance No. 8320 of the City, shall have the same meaning as is accorded this term in Section 20.580 of that ordinance. Executed by the City on the day of November, 1976. Executed by the Contractor on the day of November, 1976. CITY OF JEFFERSON, MISSOURI, A Muni rporatio ,--, By Mayo ENVIRONMENTAL SANITATION MANAGEMENT, INC. , 7_"X;,spose -,,4!/ B IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI / ® ENVIRONMENTAL SANITATION ) MANAGEMENT, INC. , ) a corporation, ) /f Plaintiff, ) ) V. ) Cause No. 30935 Division I CITY OF JEFFERSON, MISSOURI, ) a Municipal corporation, ) ) and, ) j CENTRAL MISSOURI JUNK, INC. , j a corporation, ) Defendants. ) ORDER NOW , this b day of 9 , 1981, this cause coming on to be heard, pl 'ntiff is present in person and by counsel , defendants are present and by counsel . Plaintiff presents evidence. The parties stipulate in writing to certain facts which Stipulation has been offered by the parties and received into evidence by the Court. All parties rest. FINDING OF FACTS The Court does hereby find based upon clear, cogent and i convincing evidence presented and the Stipulation of the parties as follows: 1. On October 6, 1976, the plaintiff and defendant City of Jefferson negotiated a contract whereby defendant City of Jefferson agreed to extend to plaintiff an exclusive franchise to collect, haul and dispose of all garbage from the City of Jefferson City and whereby plaintiff was entitled to charge and collect for such work at specified rates to be increased generally based upon the Consumer Price Index and in accordance with the written contract (Plaintiff' s Exhibit 5) authorized by Ordinance 8915. 2. Thereafter, plaintiff and defendant City of Jefferson agreed that plaintiff would have an exclusive franchise to collect, haul and dispose of all commercially generated trash from the City of Jefferson City except for recyclable material and more specifically to permit defendant: Central Missouri Junk Company Inc. , to continue to conduct its business as it was being con- ducted, in exchange for plaintiff's agreement to freeze the rates charged commercial customers, to provide a City clean-up once each year without charge and to freeze rates for dumping commercial garbage, trash and rubbish at plaintiff's authorized disposal area. 3. On October 28 , 1976, the City Council of the City of Jefferson City was presented with a written document purporting to reflect the agreement as aforesaid between the plaintiff and defendant City of Jefferson City in the form of Bill Number 71. Bill Number 71 was amended at the October 28, 1976 Council Meeting and at a subsequent Council Meeting held on November 1, 1976. No amendments were made to provisions pertaining to plaintiff's franchise to collect commercial trash from defendant City of Jefferson City. On November 1, 1976, the City Council of Jefferson City passed Bill Number 71 as Ordinance 8915. 4. On or about November 4, 1976, plaintiff and defendant City of Jefferson City executed the written contract authorized by Ordinance 8915. 5. In Ordinance 8915, as enacted by the City Council of Jefferson City and executed by plaintiff and defendant City of Jefferson City, provisions were included whereby plaintiff agreed to freeze the rates charged commercial customers, to provide a city clean-up once each year without charge, and to freeze rates for dumping commercial garbage, trash and rubbish at plaintiff's authorized disposal area, but said written contract did not contain language providing plaintiff an exclusive franchise to ' collect, haul and dispose of commercial trash from the City of Jefferson City nor any provision clearly allowing defendant Central Missouri Junk Company, Inc. , to conduct its business as it was then being conducted. In Ordinance 8915, as enacted by ® the City Council of Jefferson City and executed by plaintiff and defendant City of Jefferson City, it was provided that the cost -2- for collection from residential garbage containers on owners' or tenants' property shall be, for the initial period of two years, $5.80 per month per residence. 6. Both plaintiff and defendant City of Jefferson City intended that Ordinance 8915 contain language providing plaintiff an exclusive franchise to collect, haul and dispose of commercial trash from the City of Jefferson City and to permit defendant Central Missouri Junk Company, Inc. , to conduct its business as it was being conducted. Such intention was by mutual mistake not included in Ordinance 8915. 7. Plaintiff Environmental Sanitation Management, Inc. , believed in good faith that Ordinance 8915 did give Plaintiff Environmental Sanitation Management, Inc. , an exclusive franchise AdAk to collect all commercial trash generated in the City of Jefferson. Any action taken by plaintiff Environmental Sanitation Management, Inc. , and its agents, servants, or employees, during the years subsequent to the execution of this contract authorized by Ordinance 8915, to maintain and/or to solicit collection service customers was taken in good faith reliance on its belief that there did exist an exclusive franchise as aforesaid. 8. Defendant Central Missouri Junk Company believed in good faith that Ordinance 8915 did permit Defendant Central Missouri Junk Company, to continue to conduct its business as it was being conducted. Any action taken by defendant Central Missouri Junk Company, its agents, servants, or employees, during the years subsequent to the execution of this contract authorized by Ordinance 8915, to maintain or to solicit collection service customers was taken in good faith reliance on its belief that there did exist a right to do so as afore- said. 9. Subsequent to November 4, 1976, defendant City of Jefferson, Missouri, believed in good faith that Ordinance 8915 did not give plaintiff Environmental Sanitation Management, Inc. an exclusive franchise to collect all commercial trash in the -3- City of Jefferson. Any action taken by defendant City of Jefferson and its agents, servants, employees, during the years subsequent to the execution of the contract authorized by Ordinance 8915 to enforce the Ordinance as not giving Environmental Sanitation Management, Inc. , an exclusive commercial trash contract and not allow residential charges on a per container basis was taken in good faith reliance on its belief that an exclusive franchise did not exist and the contract did not allow charges per container. 10. Plaintiff and defendant City of Jefferson City agreed and intended prior to November 4, 1976, that the cost for collection from garbage containers on owners' or tenants' property would be, for the initial period of two years, $5.80 per month per container. Such intention was by mutual mistake not included in Ordinance 8915. 11. Plaintiff would not have agreed to provide a City clean-up each year without charge and would not have agreed to freeze rates, for a two-year period, for commercial customers and would not have agreed to freeze the rates for dumping of a commercial garbage, trash and rubbish at plaintiffs authorized disposal area but for the grant of an exclusive franchise as set forth herein. - j(a) - CONCLUSIONS OF LAW The Court does hereby make the following conclusions of law: 1 . By mutual mistake plaintiff and defendant City of Jefferson failed to include in Ordinance 8915 language to provide plaintiff an exclusive franchise to collect commercial trash in the City of Jefferson subject to the right of defendant Central Missouri Junk Company, Inc. , to continue to conduct its business of collecting, hauling and recycling trash in the City of Jefferson City. 2. The absence of the language described in paragraph 1 of the conclusions of law of the Court is material , was of essence to, and does not provide plaintiff adequate consideration for its agreement to freeze commercial rate for two years, freeze rates for dumping commercial garbage, trash and rubbish at plaintiff' s authorize disposal area and provide defendant a free City-wide clean-up once each year. 3. Plaintiff and defendant City of Jefferson City agreed and intended on or before November 1, 1976, that the residential rate for container service was to be assessed on a per container basis and the language on page 3, in paragraph 7 (c) of Ordinance 8915, of the City of Jefferson City by scrivener' s error reads "per residence" but should read "per container" . 4. Plaintiff does not have an exclusive franchise to collect, haul and dispose of commercial trash within the City of Jefferson City. 5. This Court has equity power to reform Ordinance 8915 to permit plaintiff to charge residential users of its services who utilize containers to dispose of their garbage and trash, on a per container basis. -4- r 6 . This Court has equity power to reform the contract to delete the concessions of the plaintiff to freeze commercial trash rates for two years, to freeze rates for dumping commercial garbage, trash and rubbish at plaintiff' s authorized disposal area and to provide a free annual City clean-up because of the absence of adequate consideration on the part of defendant City of Jefferson for such concessions as originally agreed upon by plaintiff and defendant City of Jefferson, to wit: an exclusive franchise for commercial trash. ORDER IT IS HEREBY ORDtRED, that the provisions of Ordinance 8915 enacted by defendant City of Jefferson City, Missouri be reformed as follows: i Section 7 of Ordinance 8915 shall read: ® 117. Contractor shall provide collection service at least twice each week for each residence within the City, for the prices and charges hereinafter set forth, which prices shall remain in force at the prescribed rate for a period of two (2) years and until October 31 , 1978, at which time prices shall be altered in accordance with the consumers' price index in 1967, and as more specifically set out. (a) Residential users may purchase from Contractor plastic bags of a thickness of 2 mils or more and with a 30 gallon or more capacity at a charge a of fifty ( . 50) cents per bag, which cost shall be the total cost per bag for the collection, transportation and disposal of said bag containing garbage or trash. The customer shall place such bag or bags at the property line at a point designated by Contractor on the owner' s or tenant's property reasonably convenient for pick up. (b) Users may purchase from Contractor plastic bags intended for use with mechanical com- pactors, which bags shall have a thickness of at least ten (10) mils, and a capacity of 30 gallons -5- or more, and the sale price of said bags, which shall be seventy ( . 70) cents per bag, shall include the disposition of the contents of such bags, as described Auk in the preceding paragraph. (c) Contractor shall collect from garbage containers, placed on owner' s or tenant's property at a point reasonably convenient for Contractor's employees, at least twice a week, and dispose of same as authorized and required by this contract. Such container or con- tainers may be placed underground so long as the contents are placed in an inner container readily removable. The cost for said last described residential collection service shall be, for the initial period of two (2) years, $5.80 per month per container. The Contractor shall be responsible for removing any spilled garbage or trash when collecting, and in no event shall the City be responsible or liable for disposition of the garbage bags or contents of containers. As of November 1, 1978, -each of the two above I ! described charges shall be altered by Contractor, based on the 1967 consumer price index. That Index issued on f November 1, 1976, or the nearest date thereto, shall be the base Index, and that on October 31, 1978, or the i nearest date thereto, shall provide the other basis for such determination, with the difference in percentage of the two indexes to be applied to the prices herein- above set forth for the collection service. The increase or decrease, however, shall not exceed eight (8%) per cent in any one year. The price index on October 31st of successive years shall become the other basis for determination of percentage increase or decrease within the limit above-described. " 2. Section 8 of Ordinance 8915 shall read: "8 . Contractor will also collect from all commercial establishments within the City all garbage or trash. -6- Charges for commercial users shall be negotiated by Contractor and such user for the collection, removal and disposal of garbage and trash. If a rate cannot be negotiated for such customers, the Health Officer of the City shall be advised of such failure to agree and will fix a reasonable monthly charge for such service, taking into consideration the time involved and the volume of material to be transported. Either party may appeal from such finding of the Health Official to the Health Committee of the City Council within three (3) days after the determination by the Health Officer, and the said Health Committee shall make a determination of the rate, which shall be final and binding on Contractor and the Commercial User involved. " 3. Section 9 of Ordinance 8915 shall read: "9. Contractor shall permit any resident of the City, or firm or corporation doing business therein, to dispose of garbage, trash or rubbish at the authorized disposal area of Contractor. Any rates charged shall be posted at the disposal area, . and be available at the ' office of the Contractor, and in the office of the Clerk of i the City. The disposal area herein referred to shall include i a temporary station at a place selected by Contractor, and the landfill area outside the City operated by Contractor. Any garbage or trash accepted at the City transfer area shall be promptly transported to the land- fill by Contractor. The following charges for disposal by residential users shall be those which remain in effect during the period of this franchise subject to the provisions of paragraph 7 relating to the Consumer Price Index for the transfer disposal area operated within the City by Contractor: -7- 30 gallon bag or can - - - - - - - - $ . 50 55 gallon bag or can - - - - - - - - 1. 50 Car load - - - - - - - - - - - - - - 1. 50 ' Stationwag onload - - - - - - - - - 4.00 Pick up load (no side racks) - - - - 5.00 Pick up load with side racks - - - - 10. 50 4. Section 15 of Ordinance 8915 shall be deleted in its entirety. IT IS FURTHER ORDERED that each of the parties shall bear its own costs in this proceedinJRIT 63 f:... C JUDGE DATED: O« P t s -8- IN THE CIRCUIT COURT OF COLE COUIJ'1'Y STATE OF MISSOURI. O ENVIRONMENTAL SANITATION ) Do MANAGEMENT, INC. , ) JAN 2 G 1981 a corporation, ) Plaintiff, ) • e -�� '..! r' CQUIT v. ) Cause No. MaCIRCUIT UNTY I�1lSS 'GV�' Division ••� CITY OF JEFFERSON, MISSOURI , ) a Municipal corporation, ) and, ) I CENTRAL MISSOURI JUNK , INC. , ) a corporation, ) Defendants. ) STIPULATION Now, this 23rd Day of January, 1981 , the parties, plaintiff Environmental Sanitation Management, Inc. , and defendants City of Jefferson and Central Missouri Junk Company, Inc. , in light of evidence presented at trial consisting of testimony of Fred Nichols, Thomas Brant, Ken Wildhaber, Darrell Gordon, and testimony expected from Thomas Whitecotton, Ed Rackers and Vince Borgmeyer, do hereby stipulate and agree as follows: 1 . On October 6, 1976, the plaintiff and defendant City of Jefferson negotiated a contract whereby defendant City of Jefferson agreed to extend to plaintiff an exclusive franchise to collect, haul. and dispose of all garbage from the City of Jefferson City, residential and commercial , and whereby plaintiff was entitled to charge and collect for such work at specified rates to be increased generally based upon the Consumer Price Index and in accordance with the written contract (Plaintiff's Exhibit 5) authorized by Ordinance 8915. / 2. Thereafter, plaintiff and defendant City of Jefferson agreed that plaintiff would have an exclusive franchise to collect, haul and dispose of all commercially generated trash from the City of Jefferson City except for recyclable material and more specifically to permit defendant Central Missouri Junk Company Inc. , to continue to conduct its business as it was being con- ducted, in exchange for plaintiff' s agreement to freeze the rates charged commercial customers, to provide a City clean-up once each year without charge and to freeze rates for dumping commercial garbage, trash and rubbish at plaintiff's authorized disposal area. 3. On October 28, 1976, the City Council of the City of Jefferson City was presented with a written document purporting to reflect the agreement as aforesaid between the plaintiff and defendant City of Jefferson City in the form of Bill Number 71 . Bill Number 71 was amended at the October 28, 1976 Council Meeting and at a subsequent Council Meeting held on November 1, 1976. No amendments were made to provisions pertaining to plaintiff' s franchise to collect commercial trash from defendant City of Jefferson City. On November 1, 1976, the City Council of Jefferson City passed Bill Number 71 as Ordinance 8915. 4. On or about November 4, 1976, plaintiff and defendant City of Jefferson City executed the written contract authorized by Ordinance 8915. 5 . In Ordinance 8915, as enacted by the City Council of Jefferson City and executed by plaintiff and defendant City of Jefferson City, provisions were included whereby plaintiff agreed to freeze the rates charged commercial customers, to provide a city clean-up once each year without charge, and to freeze rates for dumping commercial garbage, trash and rubbish at plaintiff's authorized disposal area, but said written contract did not contain language providing plaintiff an exclusive franchise to collect, haul and dispose of commercial trash from the City of Jefferson City nor any provision clearly allowing defendant Central Missouri Junk Company, Inc. , to conduct its business as it was then being conducted. In Ordinance 8915, as enacted by the City Council of Jefferson City and executed by plaintiff and defendant City of Jefferson City, it was provided that "the cost for collection from residential garbage containers on owners' or tenants' property shall be, for the initial period of two years, $5. 80 per month per residence. -2- • 6. Both plaintiff and defendant City of Jefferson City intended that Ordinance 8915 contain language providing plaintiff an exclusive franchise to collect, haul and dispose of commercial trash from the City of Jefferson City and to permit defendant Central Missouri Junk Company, Inc. , to conduct its business as it was being conducted. Such intention was by mutual mistake not included in Ordinance 8915. 7. Plaintiff Environmental Sanitation Management, Inc. , believed in good faith that Ordinance 8915 did give Plaintiff Environmental Sanitation Management, Inc. , an exclusive franchise to collect all commercial trash generated in the City of Jefferson. Any action taken by plaintiff Environmental Sanitation Management, Inc. , and its agents, servants, or employees, during the years subsequent to the execution of this contract authorized by Ordinance 8915, to maintain and/or to solicit collection service . customers was taken in good faith reliance on its belief that there did exist an exclusive franchise as aforesaid. Any such actions cannot be deemed as facts and circumstances that would constitute the basis for a claim of tortious interference with the contract rights of any other parties to this lawsuit. 8. Defendant Central Missouri Junk Company believed in good faith that Ordinance 8915 did permit Defendant Central Missouri Junk Company, to continue to conduct its business as it was being conducted. Any action taken by defendant Central Missouri Junk Company, its agents, servants, or employees, during the years subsequent to the execution of this contract authorized 'by Ordinance 8915, to maintain or to solicit collection service customers was taken in good faith reliance on its belief that there did exist a right to do so as afore- , said. Any such action cannot be deemed as facts and circum- stances that would constitute the basis for a claim of tortious interference with this contract rights of any of the parties to this lawsuit. 9. Subsequent to November 4 , 1976, defendant City of Jefferson, Missouri, believed in good faith that Ordinance 8915 -3- • dick not give plaintiff Environmental Sanitation Management , Inc. an exclusive franchise to collect all commercial trash in the City of Jefferson. Any action taken by defendant City of Jefferson and its agents, servants, employees, during the years subsequent to the execution of the contract authorized by Ordinance 8915 to enforce the Ordinance as not giving Environmental. Sanitation Management, Inc. , an exclusive commercial trash contract and not allow residential charges on a per container basis was taken in good faith reliance on its belief that an exclusive franchise did not exist and the contract did not allow charges per container. Any such action cannot •be. deemed as facts and circumstances that would constitute basis for a claim of tortious interference with this contract rights of any of the parties to this lawsuit. ENVIRONMENTAL SANITATION MANAGEMENT, INC. ROST & CALLAHAN By: Richard Callahan 109 E. High Street Jefferson City, MO 65101 (314 ) 634-2563 i ATTORNEY FOR ENVIRONMENTAL SANITATION ` MANAGEMENT, INC. CITY OF JEFFERSON CITY i CH IST HE GRAHAM City t ney Post ice Box 746 Jeff son City, MO 65102 (31 635-9191 ATTORNEY FOR THE CITY OF JEFFERSON CITY. CENTRAL MISSOURI JUNK COMPANY, INC. HAR TE Attor a Law 101 st High Street Post Office Box. 1251 Jefferson City, MO 65102 (314) 635-9118 ATTORNEY FOR CENTRAL MISSOURI JUNK COMPANY, INC. -4- IN THE CIRCUIT COURT OF COLE COUNTY STATE OF MISSOURI ENVIRONMENTAL SANITATION ) MANAGFMENT, INC. , ) a corporation, ) Plaintiff, ) ) ve ) Cause No. 30935 Division I CITY OF JEFFERSON, MISSOURI, ) a Municipal corporation, ) ) and, ) CENTRAL MISSOURI JUNK, INC. , ) a corporation, ) Defendants. ) ORDER NOW , this c day of , 1981 , this cause coming on to be heard, pl 'ntiff is present in person and by counsel , defendants are present and by counsel . Plaintiff presents evidence. The parties stipulate in writing to certain facts which Stipulation has been offered by the parties and received into evidence by the Court. All parties rest. FINDING OF FACTS The Court does hereby find based upon clear, cogent and convincing evidence presented and the Stipulation of the parties as follows: 1. On October 6, 1976, the plaintiff and defendant City of Jefferson negotiated a contract whereby defendant City of Jefferson agreed to extend to plaintiff an exclusive franchise to collect, haul and dispose of all garbage from the City of Jefferson City and whereby plaintiff was entitled to O charge and collect for such work at specified rates to be increased generally based upon the Consumer Price Index and in accordance with the written contract (Plaintiff' s Exhibit 5) authorized by Ordinance 8915. 2. Thereafter, plaintiff and defendant City of Jefferson agreed that plaintiff would have an exclusive franchise to collect, haul and dispose of all commercially generated trash from the City of Jefferson City except for recyclable material. and more specifically to permit defendant Central Missouri Junk Company Inc. , to continue to conduct its business as it was being con- ducted, agreement to rates ducted, in exchange for plaintiff g freeze the ra e charged commercial customers, to provide a City clean-up once each year without charge and to freeze rates for dumping commercial garbage, trash and rubbish at plaintiff' s authorized disposal area. 3. On October 28, 1976, the City Council of the City of Jefferson City was presented with a written document purporting to reflect the agreement as aforesaid between the plaintiff and defendant City of Jefferson City in the form of Bill Number 71. Bill Number 71 was amended at the October 28, 1976 Council Meeting and at a subsequent Council Meeting held on November 1, 1976. No amendments were made to provisions pertaining to plaintiff's franchise to collect commercial trash from defendant City of Jefferson City. On November 1, 1976, the City Council of Jefferson City passed Bill Number 71 as Ordinance 8915. 4. On or about November 4, 1976, plaintiff and defendant City of Jefferson City executed the written contract authorized by Ordinance 8915. 5. In Ordinance 8915, as enacted by the City Council of Jefferson City and executed by plaintiff and defendant City of ® Jefferson City, provisions were included whereby plaintiff agreed to freeze the rates charged commercial customers, to provide a city clean-up once each year without charge, and to freeze rates for dumping commercial garbage, trash and rubbish at plaintiff' s authorized disposal area, but said written contract did not contain language providing plaintiff an exclusive franchise to ' collect, haul and dispose of commercial trash from the City of Jefferson City nor any provision clearly allowing defendant Central Missouri Junk Company, Inc. , to conduct its business as it was then being conducted. In Ordinance 8915, as enacted by ® the City Council of Jefferson City and executed by plaintiff and defendant City of Jefferson City, it was provided that the cost -2- for collection from residential garbage containers on owners' or tenants' property shall be, for the initial period of two years, $5. 80 per month per residence. 6. Both plaintiff and defendant City of Jefferson City intended that Ordinance 8915 contain language providing plaintiff an exclusive franchise to collect, haul and dispose of commercial trash from the City of Jefferson City and to permit defendant Central Missouri Junk Company, Inc. , to conduct its business as it was being conducted. Such intention was by mutual mistake not included in Ordinance 8915. 7. Plaintiff Environmental Sanitation Management, Inc. , believed in good faith that ordinance 8915 did give Plaintiff Environmental Sanitation Management, Inc. , an exclusive franchise to collect all commercial trash generated in the City of Jefferson. Any action taken by plaintiff Environmental Sanitation Management, Inc. , and its agents, servants, or employees, during the years subsequent to the execution of this contract authorized by Ordinance 8915, to maintain and/or to solicit collection service customers was taken in good faith reliance on its belief that there did exist an exclusive franchise as aforesaid. 8. Defendant Central Missouri Junk Company believed in good faith that Ordinance 8915 did permit Defendant Central Missouri Junk Company, to continue to conduct its business as it was being conducted. Any action taken by defendant Central Missouri Junk Company, its agents, servants, or employees, during the years subsequent to the execution of this contract authorized by ordinance 8915, to maintain or to solicit collection service customers was taken in good faith reliance on its belief that there did exist a right to do so as afore- , said. 9. Subsequent to November 40, 1976, defendant City of Jefferson, Missouri, believed in good faith that Ordinance 8915 did not give plaintiff Environmental Sanitation Management, Inc. an exclusive franchise to collect all commercial trash in the -3- City of Jefferson. Any action taken by defendant City of Jefferson and its agents, servants, employees, during the years subsequent to the execution of the contract authorized by Ordinance 8915 to enforce the Ordinance as not g iving Environmental Sanitation Management, Inc. , an exclusive commercial trash contract and not allow residential charges on a per container basis was taken in good faith reliance on its belief that an exclusive franchise did not exist and the contract did not allow charges per container. 10. Plaintiff and defendant City of Jefferson City agreed and intended prior to November 4, 1976, that the cost for collection from garbage containers on owners' or tenants' property would be, for the initial period of two years, $5. 80 per month per container. Such intention was by mutual mistake not included in Ordinance 8915. 11. Plaintiff would not have agreed to provide a City clean-up each year without charge and would not ::have agreed to freeze rates, for a two-year period, for commercial customers and would not have agreed to freeze the rates for dumping of a commercial garbage, trash and rubbish at plaintiffs authorized disposal area but for the grant of an exclusive franchise as set forth herein. j(a) - CONCLUSIONS OF LAW The Court does hereby make the following conclusions of law: 1 . By mutual mistake plaintiff and defendant City of Jefferson failed to include in Ordinance 8915 language to provide plaintiff an exclusive franchise to collect commercial trash in the City of Jefferson subject to the right of defendant Central Missouri Junk Company, Inc. , to continue to conduct its business of collecting, hauling and recycling trash in the City of Jefferson City. 2. The absence of the language described in paragraph 1 of the conclusions of law of the Court is material , was of essence to, and does not provide plaintiff adequate consideration for its agreement to freeze commercial rate for two years, freeze rates for dumping commercial garbage, trash and rubbish at plaintiff' s authorize disposal area and provide defendant a free City-wide clean-up once each year. . 3. Plaintiff and defendant City of Jefferson City agreed and intended on or before November 1, 1976, that the residential rate for container service was to be assessed on a per container basis and the language on page 3, in paragraph 7 (c) of Ordinance 8915, of the City of Jefferson City by scrivener's error reads "per residence" but should read "per container". 4. Plaintiff does not have an exclusive franchise to ® collect, haul and dispose of commercial trash within the City of Jefferson City. 5. This Court has equity power to reform Ordinance 8915 to permit plaintiff to charge residential users of its services who utilize containers to dispose of their garbage and trash, on a per container basis. -4- 6. This Court has equity power to reform the contract to delete the concessions of the plaintiff to freeze commercial trash rates for two years, to freeze rates for dumping commercial garbage, trash and rubbish at plaintiff' s authorized disposal area and to provide a free annual City clean--up because of the absence of adequate consideration on the part of defendant City of Jefferson for such concessions as originally agreed upon by plaintiff and defendant City of Jefferson, to wit: an exclusive franchise for commercial trash. ORDER IT IS HEREBY ORDrRED, that the provisions of Ordinance 8915 enacted by defendant City of Jefferson City, Missouri be reformed as follows: Section 7 of Ordinance 8915 shall read: 117. Contractor shall provide collection service at least twice each week for each residence within the City, for the prices and charges hereinafter set forth, which prices shall remain in force at the prescribed rate for a period of two (2) years and until October 31 , 1978, at which time prices shall be altered in accordance with the consumers' price index in 1967, and as more specifically set out. (a) Residential users may purchase from Contractor plastic bags of a thickness of 2 mils or more and with a 30 gallon or more capacity at a charge of fifty ( . 50) cents per bag, which cost shall be the total cost per bag for the collection, transportation and disposal of said bag containing garbage or trash. The customer shall place such bag or bags at the property line at a point designated by Contractor on the owner' s or tenant's property reasonably convenient for pick up. (b) Users may purchase from Contractor plastic bags intended for use with mechanical com- pactors, which bags shall have a thickness of at least ten (10) mils, and a capacity of 30 gallons -5- or more, and the sale price of said bags, which shall be seventy ( . 70) cents per bag, shall include the disposition of the contents of such bags, as described in the preceding paragraph. (c) Contractor shall collect from garbage containers, placed on owner' s or tenant's property at a point reasonably convenient for Contractor's employees, at least twice a week, and dispose of same as authorized and required by this contract. Such container or con- tainers may be placed underground so long as the contents are placed in an inner container readily removable. The cost for said last described residential collection service shall be, for the initial period of two (2) years, $5. 80 per month per container. The Contractor shall be responsible for removing any spilled garbage or trash when collecting, and in no event shall the City be responsible or liable for disposition f of the garbage bags or contents of containers. As of November 1, 1978, each of the two above described charges shall be altered by Contractor, based on the 1967 consumer price index. That Index issued on November 1, 1976, or the nearest date thereto, shall be the base Index, and that on October 31 , 1978, or the ' I® nearest date thereto, shall provide the other basis for such determination, with the difference in percentage of the two indexes to be applied to the prices herein- above set forth for the collection service. The increase or decrease, however, shall not exceed eight (8%) per cent in any one year. The price index on October 31st of successive years shall become the other basis for determination of percentage increase or decrease within the limit above-described. " 2. Section 8 of Ordinance 8915 shall read: "8. Contractor will also collect from all commercial establishments within the City all garbage or trash. -6- Charges for commercial users shall be negotiated by Contractor and such user for the collection, removal and disposal of garbage and trash. If a rate cannot be negotiated for such customers, the Health Officer of the City shall be advised of such failure to agree and will fix a reasonable monthly charge for such service, taking into consideration the time involved and the volume of material to be transported. Either party may appeal from such finding of the Health Official to the Health Committee of the City Council within three (3) days after the determination by the Health Officer, and the said Health Committee shall make a determination of the rate, which shall be final and binding on Contractor and the Commercial User involved. " 3. Section 9 of Ordinance 8915 shall read: "9. Contractor shall permit any resident of the City, or firm or corporation doing business therein, to dispose of garbage, trash or rubbish at the authorized disposal area of Contractor. Any rates charged shall be posted at the disposal area, . and be available at the office of the Contractor, and in the office of the Clerk of the City. The disposal area herein referred to shall include a temporary station at a place selected by Contractor, and the landfill area outside the City operated by Contractor. Any garbage or trash accepted at the City transfer area shall be promptly transported to the land- fill by Contractor. The following charges for disposal by residential users shall be those which remain in effect during the period of this franchise subject to the provisions of paragraph 7 relating to the Consumer Price Index for the transfer disposal area operated within the City by Contractor: -7- 30 gallon bag or can - - - - - - - - $ . 50 55 gallon bag or can - - - - - - - - 1. 50 Car load - - - - - - - - - - - - - -- 1.50 Station wagon load - - - - - - - 4.00 Pick up load (no side racks) - - - - 5.00 Pick up load with side racks - - - - 10.50 4 . Section 15 of Ordinance 8915 shall be deleted in its entirety. IT IS FURTHER ORDERED that each of the parties shall bear its own costs in this proceeding. C R IT JUDGE DATED: x i . 35i. r�• QQ i