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
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•
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.
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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
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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
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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.
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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.
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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:
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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:
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