Common use of EXTRAORDINARY RATE ADJUSTMENTS Clause in Contracts

EXTRAORDINARY RATE ADJUSTMENTS. Extraordinary Rate adjustments shall be limited to a Change in Law, a Change in Scope or a Change in Fees. If one or more of these occurs, Contractor may petition the Agency for an adjustment to the Rates in excess of the adjustment described in Section 9.1.B. Contractor shall prepare an application for the extraordinary Rate adjustment. Such submittal shall provide all information requested by the Agency’s Designated Representative specific to the nature of the request being made. Contractor shall pay all reasonable costs incurred by the Agency, including the costs of outside accountants, attorneys, and/or consultants, in order to make a determination of the reasonableness of the requested extraordinary Rate adjustment, up to a maximum, for each extraordinary Rate increase request, of ten thousand dollars ($10,000). The application shall clearly document the reason for the proposed adjustment, include calculation of the proposed Rate adjustments, and provide supporting documentation. If Contractor provides reasonable evidence that a Change in Law, a Change in Scope or a Change in Fees has occurred or will occur, that such change has resulted or will result in an increase in Contractor’s costs of performing and/or a decrease in Contractor’s profits under this Agreement, and that such increased costs are reasonable and/or such decreased profits are not reasonable, then Contractor shall be entitled to an adjustment in Rates sufficient to cover such increased costs and/or decreased profits. The decision of the Agency’s Board of Directors regarding reasonableness shall be conclusive. The Agency may also initiate an extraordinary adjustment to Rates due to a Change in Law, a Change in Scope or a Change in Fees. If the Agency provides reasonable evidence that one or more of these has occurred or will occur, that such change will result in a decrease in Contractor’s costs of performing and/or an increase in Contractor’s profits under this Agreement, and that such decreased costs are reasonable and/or such increased profits are not reasonable, then the Agency may adjust Rates sufficient to cover such decreased costs and/or increased profits. The decision of the Agency’s Board of Directors regarding reasonableness shall be conclusive. The Agency’s Designated Representative shall have the right to request any information that he or she, in his or her sole judgment, determines is necessary to establish the reasonableness or accuracy of Contractor’s request for an extraordinary Rate adjustment or an Agency-initiated extraordinary Rate adjustment. After such request is made, Contractor shall promptly provide such information, which may include, but is not limited to, information regarding a Subcontractor or subcontractor. Contractor’s failure to fully cooperate in a timely manner with any reasonable request for information by the Agency’s Designated Representative may result in either the denial of or a delay in the approval of the request for an extraordinary Rate increase. Notwithstanding any other provision of this Section 9.2, in the event Contractor submits an application for an extraordinary Rate adjustment hereunder, the Agency’s Designated Representative may request a Change in Scope to reduce or eliminate the need for an extraordinary Rate adjustment hereunder.

EXTRAORDINARY RATE ADJUSTMENTS. Extraordinary Rate adjustments shall be limited to a Change in Law, an Agency‐directed change in scope of services (pursuant to Section 5.6), or an increase in Contractor’s actual Operating Ratio for any Rate Period of at least two (2) points above the then-effective Operating Ratio for such Rate Period (a “Qualifying Operating Ratio Increase”). For example, a Qualifying Operating Ratio Change occurs when Contractor’s Actual Operating Ratio is 90% or higher in a Rate Year when the then-effective Operating Ratio is 88%. For purposes of this Section 9.3, the effective Operating Ratio for any Rate Year shall be as set forth in Section I of Attachment E. The “Actual Operating Ratio” for any Rate Year shall be determined by applying concepts in Section III of Attachment E to the actual, accrued revenues and expenses occurring during a given Rate Year. The calculation to determine the Actual Operating Ratio is as follows: Total Revenue (III.F), minus the sum of Allowable Cost of Operations (III.A) and Pass-Through Costs (III.D) equals “Actual Profit”. The Allowable Cost of Operations divided by the sum of the Actual Profit and the Allowable Cost of Operations equals the Actual Operating Ratio. If a Change in Scope Law, an Agency‐directed change in scope of services (pursuant to Section 5.6), or a Change in Fees. If one Qualifying Operating Ratio Increase has occurred or more of these occurswill occur, Contractor may petition the Agency for an adjustment to the Rates in excess of the adjustment described in Section 9.1.B. 9.2. Contractor shall prepare an application for the extraordinary Rate adjustment. Such submittal shall be prepared in compliance with the procedures described in Attachment E and shall provide all information requested by the Agency’s Designated Representative specific to the nature of the request being made. Contractor shall pay all reasonable costs incurred by the Agency, including the costs of outside accountants, attorneys, and/or consultants, in order to make a determination of the reasonableness of the requested extraordinary Rate adjustment, up to a maximum, for each extraordinary Rate increase request, of ten thousand dollars ($10,000). The application shall clearly document the reason for the proposed adjustment, include calculation of the proposed Rate adjustments, and provide supporting documentation. If Contractor provides reasonable evidence that a Change in Law, an Agency-directed change in scope of services (pursuant to Section 5.6), and/or a Change in Scope or a Change in Fees Qualifying Operating Ratio Increase for any Rate Period has occurred or will occur, that such change has resulted or will result in an increase in Contractor’s costs of performing and/or a decrease in Contractor’s profits under this Agreement, and that such increased costs are reasonable and/or such decreased profits are not reasonable, then Contractor shall be entitled to an adjustment in Rates in accordance with Attachment E sufficient to cover compensate, to the maximum extent possible, for such increased costs and/or decreased profitsprofits commencing from the date(s) such increased costs and/or decreased profits first occurs. The decision of the Agency’s Board of Directors regarding reasonableness shall be conclusive. The Agency may also initiate an extraordinary adjustment to Rates due to a Change in Law, a Change an Agency-directed change in Scope scope of services (pursuant to Section 5.6), or a Change an increase or decrease in FeesContractor’s actual Operating Ratio (using the calculation method outlined above). If the Agency provides reasonable evidence that one or more of these has occurred or will occur, that such change will result in a an increase or decrease in Contractor’s costs of performing and/or an increase or decrease in Contractor’s profits under this Agreement, and that such increased or decreased costs are reasonable and/or such increased or decreased profits are not reasonable, then the Agency may adjust Rates in accordance with Attachment E sufficient to cover such increased or decreased costs and/or increased or decreased profits. The decision of the Agency’s Board of Directors regarding reasonableness shall be conclusive. The Agency’s Designated Representative shall have the right to request any information that he or she, in his or her sole judgment, determines is necessary to establish the reasonableness or accuracy of Contractor’s request for an extraordinary Rate adjustment or an Agency-initiated extraordinary Rate adjustment. After such request is made, Contractor shall promptly provide such information, which may include, but is not limited to, information regarding a Subcontractor or or, if available to Contractor, a subcontractor. Contractor shall use best efforts to secure such information from Subcontractors and subcontractors. Contractor’s failure to fully cooperate in a timely manner with any reasonable request for information by the Agency’s Designated Representative may result in either the denial of or a delay in the approval of the request for an extraordinary Rate increase. Notwithstanding any other provision of this Section 9.29.3, in the event Contractor submits an application for an extraordinary Rate adjustment hereunder, the Agency’s Designated Representative may request a Change an Agency-directed change in Scope scope of services (pursuant to Section 5.6) to reduce or eliminate the need for an extraordinary Rate adjustment hereunder.

EXTRAORDINARY RATE ADJUSTMENTS. Extraordinary It is understood that the Contractor accepts the risk for changes in cost of providing Services and/or quantities and composition of materials Delivered to the Landfill, and therefore the extraordinary adjustments to Disposal Rate adjustments shall be limited to a Change in Law, or an Authority-directed change in scope of Services. If a Change in Scope Law or a Change Authority-directed change in Fees. If one or more scope of these Services (pursuant to Section 4.20) occurs, the Contractor may petition the Agency Authority for an adjustment to the Rates Disposal Rate in excess of the annual adjustment described in Section 9.1.B. 5.03. Contractor shall prepare an application for the extraordinary Disposal Rate adjustmentadjustment calculating the net financial effect on its operations (both increases and decreases of costs) resulting from the Change in Law or Authority-directed change in scope of Services, clearly identifying all assumptions related to such calculations and providing the underlying documentation supporting the assumptions. Such submittal The application shall provide all information requested by the Agency’s Designated Authority Representative specific to the nature of the request being made. Authority Representative shall evaluate the application for reasonableness. As part of that review, the Authority Representative may request access to the financial statements and accounting records required to be maintained by the Contractor (pursuant to Section 8.13.D) in order to determine the reasonableness of the Contractor’s application. Should the Contractor not grant such access, then the Authority may rely on the Contractor’s September 24, 2018 Proposal for Solid Waste Disposal and Other Materials Handling Services (and subsequent, related correspondence) and other information available to it as the basis for making reasonable assumptions regarding what those accounting and financial records would have shown and therefore the reasonableness of the Contractor’s application. Contractor shall pay all reasonable costs incurred by the AgencyAuthority, including the costs of outside accountants, attorneys, and/or consultants, in order to make a determination of the reasonableness of the requested Rate adjustment. 25 May 2019 SBWMA/BFI Disposal Services Agreement 1200 1201 1202 1203 1204 1205 1206 1207 1208 1209 1210 1211 1212 1213 1214 1215 1216 1217 1218 1219 1220 1221 1222 1223 1224 1225 1226 1227 1228 1229 1230 1231 1232 In the event of such an application for extraordinary Disposal Rate adjustment, up to a maximumit is understood that the Authority or Contractor, for each extraordinary Rate increase requestas the case may be, shall have the burden of ten thousand dollars ($10,000)demonstrating the reasonableness of the requested adjustment. The application shall clearly document Contractor may appeal the reason for the proposed adjustment, include calculation decision of the proposed Authority Representative to the Authority Board of Directors, which shall then make the final determination as to whether an adjustment to the Disposal Rate adjustmentswill be made, and provide supporting documentationif a Disposal Rate adjustment is permitted, the amount of the adjustment. With respect to an extraordinary Disposal Rate adjustment requested by the Authority Representative, the Authority Board of Directors shall then make the final determination as to whether an adjustment to the Disposal Rate will be made and, if an adjustment is permitted, the amount of the adjustment. If Contractor provides reasonable evidence that a Change in Law, a Change in Scope or a Change in Fees has occurred or will occur, that such change has resulted or will result in the extraordinary Disposal Rate adjustment review warrants an increase in the applicable Disposal Rate(s) outlined above to compensate Contractor’s costs of performing and/or a decrease in Contractor’s profits under this Agreement, the adjustment shall cover only Allowable Costs (defined below) and that such increased costs are reasonable and/or such decreased profits are not reasonable, then Contractor Allowable Costs shall be entitled to an adjustment in Rates sufficient to cover such increased costs and/or decreased profits. The decision the proportion of the Agency’s Board total volume that Contractor reasonably projects that the Authority will deliver to the Landfill for the Term of Directors regarding reasonableness shall be conclusive. The Agency may also initiate an extraordinary adjustment to Rates due to a Change in Law, a Change in Scope or a Change in Fees. If the Agency provides reasonable evidence that one or more of these has occurred or will occur, that such change will result in a decrease in Contractor’s costs of performing and/or an increase in Contractor’s profits under this Agreement, and that such decreased costs are reasonable and/or such increased profits are not reasonable, then the Agency may adjust Rates sufficient to cover such decreased costs and/or increased profits. The decision Agreement compared with all other customers of the Agency’s Board of Directors regarding reasonableness shall be conclusive. The Agency’s Designated Representative shall have the right to request any information that he or she, in his or her sole judgment, determines is necessary to establish the reasonableness or accuracy of Contractor’s request for an extraordinary Rate adjustment or an Agency-initiated extraordinary Rate adjustment. After such request is made, Contractor shall promptly provide such information, which may include, but is not limited to, information regarding a Subcontractor or subcontractor. Contractor’s failure to fully cooperate in a timely manner with any reasonable request for information by the Agency’s Designated Representative may result in either the denial of or a delay in the approval of the request for an extraordinary Rate increase. Notwithstanding any other provision of this Section 9.2, in the event Contractor submits an application for an extraordinary Rate adjustment hereunder, the Agency’s Designated Representative may request a Change in Scope to reduce or eliminate the need for an extraordinary Rate adjustment hereunderLandfill.

EXTRAORDINARY RATE ADJUSTMENTS. Extraordinary Rate adjustments shall be limited to a Change in Law, a Change in Scope or a Change in Fees. If one or more of these occurs, Contractor The CONTRACTOR may petition the Agency CITY in writing at reasonable times other than that allowed under 10.4 (Annual Rate Adjustment) for an adjustment in the maximum rates due to (i) extraordinary circumstances beyond the CONTRACTOR’s control, or (ii) due to new programs and services requested by CITY as provided herein. The CONTRACTOR shall provide documentation and analysis to the satisfaction of CITY of the reasons for such adjustment. Petitions regarding extraordinary circumstances beyond the CONTRACTOR’s control shall satisfy all of the following conditions: (i) materially alters CONTRACTOR’s operations or overall costs; (ii) could not reasonably have been foreseen by a prudent operator; and (iii) by all reasonable expectations will continue for a period of at least six (6) months. Such changes shall not include changes in the market value of Recyclables or inaccurate estimates by the CONTRACTOR of its cost of operations. The CONTRACTOR’s request shall contain substantial proof and justification to support the need for the adjustment. For each request brought pursuant to this section CONTRACTOR shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form acceptable to the CITY with support for assumptions made by the CONTRACTOR in preparing the estimate. The CONTRACTOR shall also submit a schedule showing how its total costs and total revenues have changed over the past two years for the services provided under this Agreement. The CITY may request from the CONTRACTOR such further information as it deems necessary to fully evaluate the request and make its determination. CITY may request a copy of the CONTRACTOR’s annual financial statements in connection with the CITY’s review of the CONTRACTOR’s rate adjustment request. CITY shall review the CONTRACTOR’s request and, in Board’s sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the Rates in excess maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment described in Section 9.1.B. Contractor shall prepare an application for the extraordinary Rate adjustment. Such submittal shall provide all information requested by The Board may consider increases or decreases in the AgencyCONTRACTOR’s Designated Representative specific to the nature total revenues and total cost of the request being made. Contractor shall pay all reasonable costs incurred by the Agency, including the costs of outside accountants, attorneys, and/or consultants, in order to make a determination of the reasonableness of the requested services when reviewing an extraordinary Rate adjustment, up to a maximum, for each extraordinary Rate increase rate adjustment request, of ten thousand dollars ($10,000). The application shall clearly document CITY and the reason for CONTRACTOR may make changes in the proposed adjustment, include calculation of the proposed Rate adjustments, and provide supporting documentation. If Contractor provides reasonable evidence that a Change in Law, a Change in Scope or a Change in Fees has occurred or will occur, that such change has resulted or will result in an increase in Contractor’s costs of performing and/or a decrease in Contractor’s profits service levels under this Agreement, and that such increased costs are reasonable and/or such decreased profits are not reasonable, then Contractor shall be entitled to an adjustment in Rates Agreement sufficient to cover such increased costs and/or decreased profits. The decision of the Agency’s Board of Directors regarding reasonableness shall be conclusive. The Agency may also initiate an extraordinary adjustment to Rates due to a Change in Law, a Change in Scope or a Change in Fees. If the Agency provides reasonable evidence that one or more of these has occurred or will occur, that such change will result in a decrease in Contractor’s costs of performing and/or an increase in Contractor’s profits under this Agreement, and that such decreased costs are reasonable and/or such increased profits are not reasonable, then the Agency may adjust Rates sufficient to cover such decreased costs and/or increased profits. The decision of the Agency’s Board of Directors regarding reasonableness shall be conclusive. The Agency’s Designated Representative shall have the right to request any information that he or she, in his or her sole judgment, determines is necessary to establish the reasonableness or accuracy of Contractor’s request for an extraordinary Rate adjustment or an Agency-initiated extraordinary Rate adjustment. After such request is made, Contractor shall promptly provide such information, which may include, but is not limited to, information regarding a Subcontractor or subcontractor. Contractor’s failure to fully cooperate in a timely manner with any reasonable request for information by the Agency’s Designated Representative may result in either the denial of or a delay in the approval of the request for an extraordinary Rate increase. Notwithstanding any other provision of this Section 9.2, in the event Contractor submits an application for an extraordinary Rate adjustment hereunder, the Agency’s Designated Representative may request a Change in Scope to reduce or eliminate avoid the need for an extraordinary Rate adjustment hereundera rate adjustment. Extraordinary rate adjustments shall only be effective after approval by the Board and may not be applied retroactively.

EXTRAORDINARY RATE ADJUSTMENTS. Extraordinary Rate adjustments shall be limited to a Change in Law, a Change in Scope or a Change in Fees. If one or more of these occurs, Contractor ‌ The CONTRACTOR may petition the Agency CITY in writing at times other than that allowed under 10.4 (Annual Rate Adjustment) for an adjustment in the maximum rates due to (i) extraordinary circumstances beyond the CONTRACTOR’s reasonable control, or (ii) due to new programs and services requested by CITY as provided herein. The CONTRACTOR shall provide documentation and analysis to the satisfaction of CITY of the reasons for such adjustment. Petitions regarding extraordinary circumstances beyond the CONTRACTOR’s control shall satisfy all of the following conditions: (i) materially alters CONTRACTOR’s operations or overall costs; (ii) could not reasonably have been foreseen by a prudent operator; and (iii) by all reasonable expectations will continue for a period of at least six (6) months. Such changes shall not include changes in the market value of Recyclables or inaccurate estimates by the CONTRACTOR of its cost of operations. The CONTRACTOR’s request shall contain substantial proof and justification to support the need for the adjustment. For each request brought pursuant to this section CONTRACTOR shall prepare a schedule documenting the extraordinary costs. Such request shall be prepared in a form reasonably acceptable to the CITY with support for assumptions made by the CONTRACTOR in preparing the estimate. The CONTRACTOR shall also submit a schedule showing how its total costs and total revenues have changed over the past two years for the services provided under this Agreement. The CITY may request from the CONTRACTOR such further information as reasonably necessary to fully evaluate the request and make its determination. CITY may request a copy of the CONTRACTOR’s annual financial statements in connection with the CITY’s review of the CONTRACTOR’s rate adjustment request. CITY shall review the CONTRACTOR’s request and, in Board’s sole judgment and absolute, unfettered discretion, make the final determination as to whether an adjustment to the Rates in excess maximum rates will be made, and, if an adjustment is permitted, the appropriate amount of the adjustment described in Section 9.1.B. Contractor shall prepare an application for the extraordinary Rate adjustment. Such submittal shall provide all information requested by The Board may consider increases or decreases in the AgencyCONTRACTOR’s Designated Representative specific to total revenues and total cost of services when reviewing an extraordinary rate adjustment request. The CITY and the nature of the request being made. Contractor shall pay all reasonable costs incurred by the Agency, including the costs of outside accountants, attorneys, and/or consultants, in order CONTRACTOR may agree to make a determination of changes in the reasonableness of the requested extraordinary Rate adjustment, up to a maximum, for each extraordinary Rate increase request, of ten thousand dollars ($10,000). The application shall clearly document the reason for the proposed adjustment, include calculation of the proposed Rate adjustments, and provide supporting documentation. If Contractor provides reasonable evidence that a Change in Law, a Change in Scope or a Change in Fees has occurred or will occur, that such change has resulted or will result in an increase in Contractor’s costs of performing and/or a decrease in Contractor’s profits service levels under this Agreement, and that such increased costs are reasonable and/or such decreased profits are not reasonable, then Contractor shall be entitled to an adjustment in Rates Agreement sufficient to cover such increased costs and/or decreased profits. The decision of the Agency’s Board of Directors regarding reasonableness shall be conclusive. The Agency may also initiate an extraordinary adjustment to Rates due to a Change in Law, a Change in Scope or a Change in Fees. If the Agency provides reasonable evidence that one or more of these has occurred or will occur, that such change will result in a decrease in Contractor’s costs of performing and/or an increase in Contractor’s profits under this Agreement, and that such decreased costs are reasonable and/or such increased profits are not reasonable, then the Agency may adjust Rates sufficient to cover such decreased costs and/or increased profits. The decision of the Agency’s Board of Directors regarding reasonableness shall be conclusive. The Agency’s Designated Representative shall have the right to request any information that he or she, in his or her sole judgment, determines is necessary to establish the reasonableness or accuracy of Contractor’s request for an extraordinary Rate adjustment or an Agency-initiated extraordinary Rate adjustment. After such request is made, Contractor shall promptly provide such information, which may include, but is not limited to, information regarding a Subcontractor or subcontractor. Contractor’s failure to fully cooperate in a timely manner with any reasonable request for information by the Agency’s Designated Representative may result in either the denial of or a delay in the approval of the request for an extraordinary Rate increase. Notwithstanding any other provision of this Section 9.2, in the event Contractor submits an application for an extraordinary Rate adjustment hereunder, the Agency’s Designated Representative may request a Change in Scope to reduce or eliminate avoid the need for an extraordinary Rate adjustment hereundera rate adjustment. Extraordinary rate adjustments shall only be effective after approval by the Board and may not be applied retroactively.