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HomeMy WebLinkAboutStaff Report 2.D 04/20/20092.D CITY OF Pl✓TALUMA, CALIFORNIA April 20, 2009 AGENDA BILL Agenda Title: Resolution Approving a Fifth Amendment to the Agreement Meeting Date: between the City of Petaluma and the Sonoma County Waste Management April 20, 2009 Agency to Provide Petaluma Citizens Continued Use of the County's Central Disposal Site for Household Hazardous Waste Disposal and Other Meeting Time: 7:00 PM AB 939 Required Services Category: ❑ Presentation ❑ Appointments ® Consent ❑ Public Hearing ❑ Unfinished Business ❑ New Business f Department: Director: Public Works Vincent, a,engo 1 � Total Cost of Proposal or Proiect: $157,723 FY 09110 for all SCWMA services Amount Budgeted: $157,723 in pass-through refuse fees Contact Person: Phone Number: Vincent Marengo 778-4467 Name of Fund: General Fund: Public Works Department Account Number: 1100.16100.54110 Current Fund Balance: NIA Recommendation: It is recommended that the City Council take the following action: Approve a fifth amendment to the City's Agreement with Sonoma County Waste Management Agency to provide Petaluma citizens continued use of the County's Central Disposal Site for household hazardous waste disposal and other AB 939 required services. 1. ❑ First reading of Ordinance approved unanimously, or with unanimous vote to allow posting prior to second reading 2. ❑ First reading of Ordinance approved without unanimous vote: Ordinance has been published/posted prior to second reading; see Attachment 3. ❑ Other action requiring special notice: Notice has been given, see Attachment Summary Statement: In 2004, the City of Petaluma opted out of the JPA's use of the County's central landfill facility for solid waste disposal and began hauling out of County. To allow Petaluma citizens continued use of the facility for household toxic waste disposal, an agreement between the Sonoma County Waste Management Agency (Agency) and the City was executed, in which the Agency agreed to provide household hazardous waste (HHW) services to Petaluma residents for calendar year 2005. Since that time, yearly amendments to the agreement have been approved by the Agency and the City of Petaluma, to extend the Agreement and allow Petaluma continued access to the HHW facility, as well as to AB 939 required services. This resolution is to approve a fifth amendment to that Agreement. Attachments to Agenda Packet Item: 1. Resolution 2. Draft Fifth Amendment to the Petaluma Services Agreement, including Exhibit A 3. SCWMA Resolution of March 18, 2008, approving a fifth amendment to the Agreement 4. Original Agreement of January 1, 2005, including Amendments 1-4 Reviewed by Finance Director: Reviewed by City Attorney: Aper ved lzv_City Manager: C -U PU— w ate: �� 0(jDatc: Date: Rev.eDate Last Revise ste Mata acnnent 1=olccrApcnla Ittiis\l Inu,elol: t�iC� 4 I-l;Izardous A a',Wl111lW, Amend 5\2009 0%, atcnda bill,dor CITY OF PETALUMA, CALIFORNIA APRIL 20, 2009 AGENDA DEPORT FOR RESOLUTION APPROVING A FIFTH AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF PETALUMA AND THE SONOMA COUNTY WASTE MANAGEMENT AGENCY TO PROVIDE PETALUMA CITIZENS CONTINUED USE OF THE COUNTY'S CENTRAL DISPOSAL SITE FOR HOUSEHOLD HAZARDOUs WASTE DISPOSAL AND OTHER AB 939 REQUIRED SERVICES 1. RECOMMENDATION: Approve a fifth amendment to the City's Agreement with Sonoma County Waste Management Agency to provide Petaluma citizens continued use of the County's Central Disposal Site for household hazardous waste disposal and other AB 939 required services. 2. BACKGROUND: When Petaluma began hauling its solid waste outside of the County, it became necessary to negotiate with the County for continued access to its household hazardous waste disposal program, normally paid for through participants' tipping fee surcharges. In November 2004, the SCWMA Board approved an agreement with the City of Petaluma in which SCWMA would provide HHW services to Petaluma residents for calendar year 2005, with the cost to be paid directly by Petaluma in lieu of tipping fee surcharges. A subsequent amendment to the Agreement extended the term until the end of FY 05-06 (June 30, 2006). A second amendment (revised) to the Agreement extended the term until the end of FY 06-07 (June 30, 2007) and added additional SCWMA surcharge -funded services, in addition to HHW services. A third amendment extended the agreement for another year, and also stipulated that Petaluma would provide monthly tonnage reports to the Agency for the purpose of AB 939 reporting, and establishing compensation amounts (the current tipping fee surcharge applied to actual tonnage of solid waste hauled by GreenWaste Recovery during the previous year). The fourth amendment (revised) to the Agreement, approved in May 2008, extended the term until the end of FY 08-09 (June 30, 2009) and added all Agency surcharge -funded services, in addition to HHW services. 3. DISCUSSION: The City of Petaluma would like to continue paying directly for Agency services as it has for the past four years. At its meeting of March 18'11, the Sonoma County Waste Management Board approved a resolution for a fifth amendment to the Agreement (Attachment 2). During the term of the Fifth Amendment, Petaluma would provide monthly solid waste tonnage reports to the Agency for AB939 reporting purposes and to establish subsequent compensation amounts. The proposed fifth amendment extends the term of the original agreement for one year, providing Petaluma residents access to AB 939 required programs and HHW management services for FY 09110, and acknowledges the full financial participation of Petaluma in the SCWMA. 2 S:\%Vaste idana.teaient Foldee,,4oenda Iteiw\.1lousehold 1 laiardous Waste 11111W Amend 5070 )9 0ty a-encki hil€.doe 4. FINANCIAL IMPACTS: Petaluma's direct payment for Agency services - based on tons of solid waste disposed within calendar year 2008 - is calculated to be $157,723, based upon a $5.40/ton tipping fee surcharge placed on 29,208 tons. Compensation for services is calculated using the tipping fee surcharge applied to the actual tonnage of solid waste disposed during the prior year by the City's franchised waste hauler, GreenWaste Recovery, Inc., with payments to be made to the Agency by Petaluma on a quarterly basis. S: Wastc ManaLcmcm FoldcrAgcndu HJZ!111.10Us 1Vu;tc'Fllllb' A11101d 5 2009 Citi aecnda hillAOL: ATTACHMENT 'I RESOLUTION APPROVING A FIFTH AMENDMENT TO THE AGREEMENT WITH SONOMA COUNTY WASTE MANAGEMENT AGENCY TO PROVIDE PETALUMA CITIZENS CONTINUED USE OF THE COUNTY'S CENTRAL DISPOSAL SITE FOR HOUSEHOLD HAZARDOUS WASTE DISPOSAL AND OTHER AB 939 REQUIRED SERVICES WHEREAS, in conformance with AB 939 waste diversion requirements, the City of Petaluma promotes safe and proper disposal of household hazardous waste as an important component of its waste management program; and WHEREAS, when the City of Petaluma began hauling its garbage outside of the County, it entered into an agreement with the Sonoma County Waste Management Agency (herein referred to as Agency) that, in return for a yearly fee, Petaluma residents would have continued use of the County's Household Hazardous Waste Facility; and WHEREAS, the Household Hazardous Materials Facility Use Agreement (herein referred to as Agreement), dated January 1, 2005, was subsequently amended on January 1, 2006, to extend the terms to the end of FY 07 (June 30, 2006); a second amendment, dated July 1, 2006, extended the terms for one year and added additional Agency surcharge -funded services; a third amendment, dated July 1, 2007, extended terms for one year and revised the method of calculating compensation amounts, based on the previous year's actual tonnage of solid waste disposed by the City's contracted hauler during the previous year; and a fourth amendment extended the Agreement for Petaluma's participation in the Household Hazardous Waste Program and other Agency services for an additional twelve (12) months, until June 30, 2009, and to adjust compensation; and WHEREAS, a fifth amendment is proposed to extend the Agreement for Petaluma's participation in the Household Hazardous Waste Program and other Agency services for an additional twelve (12) months, until June 30, 2009, and to adjust compensation; and WHEREAS, during the term of the fifth amendment, Petaluma will continue to provide monthly tonnage reports to the Agency for the purpose of AB 939 reporting, and for calculation of subsequent compensation amounts, calculated using the tipping fee surcharge applied to the actual tonnage of solid waste disposed during the prior year by the City's franchised waste hauler, Green Waste Recovery, Inc., with payments to be made to the Agency by Petaluma on a quarterly basis; and WHEREAS, the amount of the proposed fifth amendment is $ 157,723 for FY 09-10, based upon a $5.40/ton tipping fee surcharge placed on 29,208 tons. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Petaluma hereby authorizes the City Manager to enter into a fifth amendment to the Household Hazardous 4 5:`%Vi l"ic %1 h1Ias~c111cui PIilller'A,ellla Itcros`I-]ousd10ILI I I1l/Ai-d MIS III IW ,Amoid 5 -1009 Cite a,emla hiII.Lit W Materials Facility Use Agreement, dated January 1, 2005, with the Sonoma County Waste Management Agency, to allow the City of Petaluma's participation in Sonoma County Waste Management Agency's AB 939 services, including disposal of household hazardous waste, for a period of one year from July 1, 2009, to June 30, 2010, at a cost not to exceed $157,723, to be paid on a quarterly basis from refuse collection rates. During the term of the fifth amendment, the City of Petaluma will continue to provide monthly tonnage reports to the Agency for the purpose of AB 939 reporting, and for calculation of subsequent compensation amounts. 5 5:`,.11'asie N anagcment Folc[&NAgenda Ittm;lE Iousehold I [arardous Waste1€11INV AmCna -5•2009 C'it\- au nda biil.doc ATTACHMENT 2 FIFTH AMENDMENT TO AGREEMENT Household Hazardous Waste and AB 939 Program Services This Fifth Amendment to Agreement, effective the 15t day of July, 2009, ("Effective Date"), is made and entered into by and between the City of Petaluma, a municipal corporation and a charter city, hereinafter referred to as "CITY," and the Sonoma County Waste Management Agency, a joint powers agency, hereinafter referred to as "AGENCY." WHEREAS, CITY and AGENCY entered into an Agreement effective January 1, 2005 and terminating ,on January 1, 2006, governing the use of AGENCY's Household Hazardous Waste Facility (hereinafter the "Agreement"); and WHEREAS, CITY and AGENCY approved the First Amendment to the Agreement to extend the term of the Agreement for an additional six (6) months, until June 30, 2006; and, WHEREAS, CITY and AGENCY approved the Second Amendment to the Agreement to (1) add additional services for compliance to the requirements mandated by AB 939, (2) compensate the Agency for services managed and performed by the Agency, and (3) extend the term of the Agreement for an additional twelve (12) months, until June 30, 2007; and, WHEREAS, CITY and AGENCY approved the Third Amendment to the Agreement to compensate the Agency for services managed and performed by the Agency, and extend the term of the Agreement for an additional twelve (12) months, until June 30, 2008; and, WHEREAS, CITY and AGENCY approved the Fourth Amendment to the Agreement to compensate the Agency for services managed and performed by the Agency, and extend the term of the Agreement for an additional twelve (12) months, until June 30, 2009; and, WHEREAS, CITY and AGENCY wish to amend the Agreement a fifth time (in this Fifth Amendment) to adjust the compensation to the Agency for services managed and performed by the Agency, and extend the term of the Agreement for an additional twelve (12) months, until June 30, 2010. NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions contained in this Fifth Amendment, AGENCY and CITY agree as follows: Section 1. Section 2. of the Agreement, "Compensation; Business Tax Certificate," is amended to read as follows: 2. Compensation A. For the full performance of the Services as described herein, City shall compensate Agency one hundred fifty seven thousand, seven hundred twenty-three dollars ($157,723) under the terms defined in Exhibit A., Payment of this amount is due in four equal quarterly installments, upon invoice, beginning July 1, 2009. 6 5:'+Wasle Mana.uement Folder\Auendo Ilernsll Iousehold l livardous Waste1111 I W Amend 5'•2009 City agenda bill.doc ATTACHMENT 4 PROFESSIONAL SERVICES AGREEMENT Household Hazardous Materials Facility Use THIS PROFESSIONAL SERVICES AGREEMENT ("Agreement") is entered into and effective as of January 1, 2005 ("Effective Date"), by and between the City of Petaluma, a municipal corporation and a charter city ("City") and Sonoma County Waste Management Agency ("Agency"), (collectively, the "Parties"). WHEREAS, the Parties enter into this Agreement for the purpose of Agency providing professional services to City under the terms and conditions set forth herein. THEREFORE, in consideration of the mutual covenants contained in this Agreement, the Parties agree as follows: Services. Agency shall provide the services as described in and in accordance with the schedule set forth in Exhibit "A" attached hereto and incorporated herein ("Services"). 2. ComiDensation; Business Tax Certificate, A. For the full performance of the Services as described herein, City shall compensate Agency under the following terms: One Hundred Forty Thousand and 001100 dollars ($140,000.00) per year, due quarterly upon invoice, beginning January 1, 2005. B. Agency shall submit detailed quarterly reports reflecting all services perforined during the preceding three (3) months, and including a revised schedule for performance and additional documentation requested by City, as applicable. C. Agency shall be compensated for services in addition to those described in Exhibit A, only if Agency and City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. In no case shall the total compensation under this Agreement exceed $140,000.00 annually without prior written authorization of the City Manager. D. Notwithstanding any provision herein, Agency shall not be paid any compensation until such time as Agency has on file with the City Finance Department current information requested on the "Vendor hiformation" form available from City. E. City's obligation to pay compensation to Agency as provided herein is contingent upon Agency's performance of the Services pursuant to the terms and conditions of this Agreement and any amendments thereto. 3. Term. The term of this Agreement commences on the Effective Date, and terminates on January 1, 2006, unless sooner terminated in accordance with Section 4. fa d. Termination. City or Agency may terminate this Agreement without cause upon ninety (90) days' written notice to the non -terminating party. City may immediately terminate or suspend this Agreement for cause. Cause for immediate termination or suspension shall include, but not be limited to, any breach of this Agreement by Agency or Agency's bankruptcy or insolvency. Upon receipt of notice of termination or suspension for cause, Agency shall immediately stop all work in progress under this Agreement. In the event of early termination of this Agreement by City, Agency she be entitled to payment for all Services performed to the date of termination to the extent such Services were performed to the satisfaction of City in accordance with the terms and conditions of this Agreement. If City terminates this Agreement for cause, Agency shall be liable to City for any excess cost City incurs for completion of the Services. 5. Agency's Representation; Independent Contractor. Agency represents that Agency has hired a subcontractor who possesses distinct professional skills in performing the Services. City has relied upon said representation as a material inducement to enter into this Agreement. Agency shall, therefore, provide properly skilled professional and technical personnel to perforin all Services under this Agreement. It is expressly understood that Agency and its agents and employees, shall act in an independent capacity and as an independent contractor and not as officers, employees or agents of City. This Agreement shall not be construed as an agreement for employment. 6. Facilities and Equipment. Agency shall, at its sole cost and expense, furnish all facilities and equipment that may be required for furnishing Services pursuant to this Agreement. City shall furnish to Agency no facilities or equipment, unless the City otherwise agrees in writing to provide the same. 7. Licenses, Permits, Etc. Agency shall, at Agency's sole cost and expense, keep in effect at all times during the term of this Agreement any licenses, permits or other such approvals which are legally required for performing the Services. S. Time. Agency shall devote such time to the performance of the Services as may be reasonably necessary for satisfactory performance of Agency's obligations pursuant to this Agreement. 9. Inspection. Agency shall provide the City every reasonable opportunity to ascertain that the Services are being performed in accordance with the requirements and intentions of this Agreement. All work done and materials furnished, if any, shall be subject to inspection and approval by the City. The inspection of such work shall not relieve Agency of any of its obligations pursuant to this Agreement. 10. Progress Reports. Upon the City's request, Agency shall provide, in a form acceptable to City, written progress reports of all oral and written observations, opinions, recommendations, analyses, progress and conclusions related to Agency's performance of the Services. 11, Agenev No Aaent. Except as City may specify in writing, Agency shall have no authority, express or implied, to act on behalf of City in any capacity whatsoever as an agent. Agency shall have no authority, express or implied, pursuant to this Agreement to bind City to any obligation whatsoever. 12. Standard of Performance. Agency shall perform all the Services in a manner consistent with the standards of the household hazardous waste operation and management. All instruments of service of whatsoever nature, which Agency delivers to City pursuant to this Agreement, shall conform to such standards. All such instruments of service shall become the sole and exclusive property of City upon delivery of the same. 13. AssiLunment/Transfer. No assignment or transfer in whole or in part of this Agreement shall be made without the prior written consent of City. 14. Subcontractors. The parties aclalowledge that the services will be performed by a subcontractor. The subcontractor shall be required to comply, to the full extent applicable, with the terms and conditions of this Agreement, including but not limited to, procuring and maintaining insurance coverage as required herein and which shall name City as an additional insured. 15. Comnlianee With All Laws. Agency shall fully comply with all applicable local, state and federal rules, laws, regulations and ordinances pertaining to the performance of the Services required hereunder. 16. Discrimination. During the perfonnance of this Agreement, Agency shall not discriminate against any employee or applicant for employment because of race, religion, creed, color, national origin, ancestry, gender, sexual orientation, age or physical or mental disability in violation of any applicable law. 17. Notice. Except as otherwise specified in this Agreement, all notices to be sent pursuant to this Agreement shall be made in writing, and sent to the Parties at their respective addresses specified below or to such other address as a Party may designate by written notice delivered to the other Party in accordance with this Section. All such notices shall be sent by: (i) personal delivery, in which case notice is effective upon delivery; (ii) certified or registered mail, return receipt requested, in which case notice shall be deemed delivered on receipt if delivery is confirmed by a return receipt; (iii) nationally recognized overnight courier, with charges prepaid or charged to the sender's account, in which case notice is effective on delivery if delivery is confirmed by the delivery service; or (iv) facsimile transmission, in which case notice shall be deemed delivered upon transmittal, provided that (a) a duplicate copy of the notice is promptly delivered by first-class or certified mail or by overnight delivery, or (b) a transmission report is generated reflecting the accurate transmission thereof. Any notice given by facsimile shall be considered to have been received on the next business day if it is received after 5:00 p.m. recipient's time or on a nonbusiness day. P -I City: City Clerk City of Petaluma Post Office Box 61 Petaluma, California 94953 Telephone: (707) 778-4360 Facsimile. (707) 778-4554 And: Agency: So. Co. Waste Management Agency Director 2300 County Center Drive, 4B 100 Santa Rosa, CA 95403 Telephone: 707-565-3788 Facsimile: 707-565-3701 18. Indemnification. Agency shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any and all liability, loss, damage, claims, expenses, and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with Agency's performance of the Services or its failure to comply with any of its obligations contained in this Agreement, except such Liability caused by the sole negligence or willful misconduct of City. Notwithstanding the foregoing, to the extent that this Agreement is a "construction contract" within the definition of Civil Code Section 2783, as may be amended from time to time, such indemnity shall not include Liability for the active negligence of City. 19. Insurance. Agency shall ensure that its subcontractor complies with the "Insurance Requirements for Consultants" in Exhibit B-2, attached hereto and incorporated herein by reference. 20. Amendment. This Agreement may be amended only by a written instrument executed by both Parties. 21. L itieation. If litigation ensues which pertains to the subject matter of Agency's services hereunder, Agency, upon request from City, agrees to testify therein at a reasonable and customary fee. 22. Construction. This Agreement is the product of negotiation and compromise on the part of both Parties and that the Parties agree that, notwithstanding Civil Code section 1654, any uncertainty in the Agreement shall not be construed against the drafter of the Agreement. 23. Covernine Law; Venue. This Agreement shall be enforced and interpreted under the laws of the State of California and the City of Petaluma. Any action arising from or brought in connection with this Agreement shall be venued in a court of competent jurisdiction in the County of Sonoma, State of California. 13 24. Non -Waiver. The City's failure to enforce any provision of this Agreement or the waiver thereof in a particular instance shall not be construed as a general waiver of any part of such provision. The provision shall remain in full force and effect. 25. Severabilitv. If any term or portion of this Agreement is held to be invalid, illegal, or otherwise unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall continue in full force and effect. 26. No 'Third Party Beneficiaries. The Parties do not intend to create, and nothing in this Agreement shall be construed to create any benefit or right in any third party. 27. Mediation. The Parties agree to make a good faith attempt to resolve any dispute arising out of this Agreement through mediation prior to commencing litigation. The Parties shall mutually agree upon the mediator and shall divide the costs of mediation equally. 28. Auenev's Books and Records. A. Agency shall maintain any and all ledgers, books of accow-its, invoices, vouchers, canceled checks, and other records or documents evidencing or relating to charges for services, or expenditures and disbursements charged to the City for a mini -num period of three (3) years or for any longer period required by law, from the date of final payment to Agency pursuant to this Agreement. B. Agency shall maintain all documents and records which demonstrate performance under this Agreement for a minimum period of three (3) years or for any longer period required by law, from the date of termination or completion of this Agreement. C. Any records or documents required to be maintained pursuant to this Agreement shall be made available for inspection or audit, at any time during regular business hours, upon written request by the City Manager, City Attorney, City Finance Director, or a designated representative of these officers. Copies of such documents shall be provided to the City for inspection at Petaluma City Hall when it is practical to do so. Otherwise, unless an alternative is mutually agreed upon, the records shall be available at Agency's address indicated for receipt of notices in this Agreement. D. Where City has reason to believe that such records or documents may be lost or discarded due to dissolution, disbandment or termination of Agency's business, City may, by written request by any of the above-named officers, require that custody of the records be given to the City and that the records and documents be maintained in Petaluma City Hall. Access to such records and documents shall be granted to any party authorized by Agency, Agency's representatives, or Agency's successor in interest. 29. Headines. The headings used in this Agreement are for convenience only and are not intended to affect the interpretation or construction of any provisions herein. I Ll 30. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating liability between City and Agency shall survive the termination of this Agreement. 31. Entire Agreement. This Agreement, including the exhibits attached hereto and incorporated herein, constitutes the entire agreement between the Parties with respect to the Services, and supersedes all prior agreements or understandings, oral or written, between the Parties in this regard. IN WITNESS WHEREOF, the parties hereto have executed this document the day, month and year first above writtep. CITY OF PETALUMA �'� Q City Manager SONOMA COUNTY WASTE MANAGEMENT AGENCY �..LM . - B�q Matthew Mullan ATTEST: Ci y Clerk APPROVED AS TO FORM: City Attorney APPROVED: 11X�L- Departmei t Director APPROVED: Chairman Title 2300 Countv Center Drive. #B100 Address Santa Rosa CA City State Taxpayer I.D. Number Petaluma Business Tax Certificate Number 01 isk Manager D APPR071 D: > L 2004 'Li Fina4 ��' e I� 95403 Zip Exhibit "A" Services Under the terms of this agreement, Agency shall allow the City and its residents use of the Household Hazardous Waste Facility at the Central Landfill, without additional charge during the term of the agreement. Tris includes any other privilege or right enjoyed by other member agencies of the Sonoma County Waste Management Agency regarding the promotion and use of the facility at the Central Landfill. IN FIRST AMENDMENT TO AGREEMENT Household Hazardous Materials Facility Use This First Amendment to Agreement, entered into and effective this 1st day of January, 2006 is made and entered into by and between the City of Petaluma, a municipal corporation and a charter city, hereinafter referred to as "CITY," and the Sonoma County Waste Management Agency, hereinafter referrod to as "AGENCY." WHEREAS, CITY and AGENCY entered into an Agreement effective January 1, 2005 and terminating on December 31, 2005, governing the use of AGENCY's Household Hazardous Waste Facility (hereinafter the "Agreement"); and WHEREAS, CITY and AGENCY wish to amend the Agreement to extend the term of the Agreement for an additional six (6) months. NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions contained in this First Amendment, AGENCY and CITY agree as follows: Section 1. Section 3 of the Agreement, "Term," is amended to read as follows: 3. Terre. The term of this Agreement commences on the Effective Date and tenninatcs at midnight on June 30, 2006, unless extended or terminated sooner pursuant to the provisions of this Agreement. Section 2. Except as expressly amended hereby, all the remaining provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Agreement to be executed as of the date first set forth above. 11� CITY OF PETALUMA SONOMA COUNTY WASTE MANAGEMENT AGENCY City Manager lai mai n ATTEST: City Clerk APP OVED AS 7 TO FORM: City Attorney PRZ)VvED V, Department Director Ysk Mana r PROVED: Administrative Services Director SECOND AMENDMENT TO AGREEMENT (revised) AB939 and Household Hazardous Waste Facility Services This Second Amendment to Agreement, entered into and effective this I" day of July, 2006, is made and entered into by and between the City of Petaluma, a municipal corporation and a charter city, hereinafter referred to as "CITY," and the Sonoma County Waste Management Agency, hereinafter referred to as "AGENCY." WHEREAS, CITY and AGENCY entered into an Agreement effective January 1, 2005 and terminating on January 1, 2006, governing the use of AGENCY's Household Hazardous Waste Facility (hereinafter the "Agreement"); and WHEREAS, CITY and AGENCY approved the First Amendment to the Agreement to extend the term of the Agreement for an additional six (6) months, until June 30, 2006; and, WHEREAS, CITY and AGENCY wish to amend the Agreement to (1) add additional services for compliance to the requirements mandated by AB 939, (2), to compensate the Agency for services managed and performed by the Agency, and (3) extend the term of the Agreement for an additional twelve (12) months, until June 30, 2007; NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions contained in this Second Amendment, AGENCY and CITY agree as follows: Section 1. Section 1 of the Agreement, "Services," is amended to read as follows: 1. Services. Agency shall provide the services as described in and in accordance with the schedule set forth in Exhibit "A1" attached hereto and incorporated herein ("Services"). Section 2. Section 2. of the Agreement, "Compensation; Business Tax Certificate," is amended to read as follows: 2. Compensation: Business Tax Certificate. A. For the full performance of the Services as described herein, City shall compensate Agency $122,224 under the terms defined in Exhibit Al, due in four equal payments quarterly upon invoice, beginning July 1, 2006. B. Agency shall submit detailed quarterly reports reflecting all Services: performed on behalf of the City of Petaluma during the preceding three (3) months, and including a revised schedule for performance and additional documentation requested by City, as applicable. C. Agency shall be compensated for services in addition to those described in Exhibit Al, only if Agency and City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. In no case shall the total compensation under this Agreement exceed $150,000 without prior written authorization of the City Manager. Section 3. Section 3 of the Agreement, "Term," is amended to read as follows: 3. Term. The term of this Agreement commences on the Effective Date and terminates at midnight on June 30, 2007, unless extended or terminated sooner pursuant to the provisions of this Agreement. Section 4. Section 5 of the Agreement, "Agency's Representation: Independent Contractor', is amended to read as follows: 5. Agencv's Rer)resentation: Independent Contractor. Agency represents that Agency has hired a subcontractor who possesses distinct professional skills in performing the household hazardous operations and services. It is expressly understood that Agency and its agents and employees, shall act in an independent capacity and as an independent contractor and not as officers, employees or agents of City. This Agreement shall not be construed as an agreement for employment. Section 5. Section 14 of the Agreement, "Standard of Performance", is amended to read as follows: 14. Standard of Performance. Agency shall perform all the Services in a manner consistent with the standards required by AB 939 regulations and for household hazardous waste operations and management. Section 6. Section 16 of the Agreement, "Subcontractors", is amended to read as follows" 16. Subcontractors. The parties acknowledge that the household hazardous waste operations and services will be performed by a subcontractor. Section i. Except as expressly amended hereby, all the remaining provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this First Amendment to Agreement to be executed as of the date first set forth above. CITY OF PETALUMA <L--- /,',A City Manager ATTEST: City Clerk 1 A 7O D AS TO FORM: City Attorney APPRO ED: /., , `disk Manager`, AP' R D: Finance Director SONOMA COUNTY WASTE MANAGEMENT A ENCY f hairman f 0�I Exhibit "Al" Services City shall compensate the Agency directly for services in the same proportion as other Agency members provide through the tipping fee surcharge from garbage collected by compacted vehicles, as measured by the Sonoma County Refuse Information Management System. Compensation for services shall be calculated on an annual basis as shown in the example below: Compensation example: 12% 1 x 52% 2 x $1,958,520 _ $122,224 where; 1 the most recent estimate of the percentage of City's population of the total Agency population listed by the California Department of Finance 2 the percentage of garbage collected by compactor refuse vehicles in Sonoma County, as measured by the Sonoma County Refuse Information Management System " total next FY estimated revenue from tipping fee surcharge 1(100% - City's population percentage) or $1,723,5001(100%-12%) = $1,958,520 At fiscal year end, if refuse quantities actually disposed in the County disposal system during the year are more than I% different than the estimated quantity, a true -up of the compensation will be invoiced or credited to City, such that City's direct contribution will continue to match the other members' funding from the tipping fee surcharge. Under the terms of this agreement, the Sonoma County Waste Management Agency shall allow the City and its residents use of the Household Hazardous Waste Facility (HHW Facility) at the Central Disposal Site during the term of the Agreement. City residents shall be provided any other privilege or right enjoyed by other member agencies of the Sonoma County Waste Management Agency regarding the promotion and use of the HHW Facility at the Central Disposal Site as well as charges, if any, for services of the HHW program paid by other member agencies. Services will also include educational efforts, recycling and other waste diversion services, compliance with AB 939 reporting requirements and any updates necessary to state and/or county planning documents on behalf of City as required by the Countywide Integrated Waste Management Plan and state regulations. THIRD AMENDMENT TO AGREEMENT Household Hazardous Waste and AB939 Program Services This Third Amendment to Agreement, effective the 1" day of July, 2007, ("Effective Date"), is made and entered into by and between the City of Petaluma, a municipal corporation and a charter city, hereinafter referred to as "CITY," and the Sonoma County Waste Management Agency, a joint powers agency, hereinafter referred to as "AGENCY." WHEREAS, CITY and AGENCY entered into an Agreement effective January 1, 2005 and terminating on January 1, 2006, governing the use of AGENCY's Household Hazardous Waste Facility (hereinafter the "Agreement"); and WHEREAS, CITY and AGENCY approved the First Amendment to the Agreement to extend the term of the Agreement for an additional six (6) months, until June 30, 2006; and, WHEREAS, CITY and AGENCY approved the Second Amendment to the Agreement (revised) to (1) add additional services for compliance to the requirements mandated by AB 939, (2) compensate the Agency for services managed and performed by the Agency, and (3) extend the term of the Agreement for an additional twelve (12) months, until June 30, 2007; and, WHEREAS, CITY and AGENCY wish to amend the Agreement a third time to adjust the compensation to the Agency for services managed and performed by the Agency, and extend the term of the Agreement for an additional twelve (12) months, until June 30, 2008. NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions contained in this Third Amendment, AGENCY and CITY agree as follows: Section 1. Section 1 of the Agreement, "Services," is amended to read as follows: 1. Services. Agency shall provide the services as described in and in accordance with the schedule set forth in Exhibit "A" attached hereto and incorporated herein ("Services"). Section 2. Section 2. of the Agreement, "Compensation; Business Tax Certificate," subsections A, B and C are amended to read as follows: 2. Compensation; Business Tax Certificate. A. For the full performance of the Services as described herein, City shall compensate Agency one hundred fifty seven thousand, four hundred dollars ($157,400.) under the terms defined in Exhibit A, Payment of this amount is due in four equal quarterly installments, upon invoice, beginning July 1, 2007. B. Agency shall be compensated for services in addition to those described in Exhibit A, only if Agency and City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. Section 3. Section 3 of the Agreement, "Term," is amended to read as follows: 3. Term. The term of this Agreement commences on the Effective Date and terminates at midnight on June 30, 2008, unless extended or terminated sooner pursuant to the provisions of this Agreement. Section 4. Section 18 of the Agreement, "Indemnification,," is amended to read as follows: 18. Indemnification. Agency shall indemnify, defend with counsel acceptable to City, and hold harmless City and its officers, officials, employees, agents and volunteers from and against any liability, loss, damage, claims, expenses, and costs (including, without limitation, attorney's fees and costs and fees of litigation) (collectively, "Liability") of every nature arising out of or in connection with Agency's performance of the Services required pursuant to this Agreement, except such Liability caused by the negligence or willful misconduct of City. Notwithstanding the foregoing, to the extent that this Agreement is a "construction contract" within the definition of Civil Code Section 2783, as may be amended from time to time, such indemnity shall not include Liability for the active negligence of City. Section 5. Section 31 of the Agreement, "Entire Agreement." is amended to read as follows: 31. Entire Agreement. This Agreement, including Exhibits A and B2 attached hereto and incorporated herein, constitutes the entire agreement between the Parties with respect to the Services, and supersedes all prior agreements or understandings, oral or written, between the Parties in this regard. Section 6. Except as expressly amended hereby, all the remaining provisions of the Agreement shall remain in full force and effect_ � �i IN WITNESS WHEREOF, the parties hereto have caused this Third Amendment to Agreement to be executed as of the date first set forth above. CITY OF PETALUMA City Manager ATTEST: Ll abL6 O'� City Clerk 9 03 '113 a00, a00 APPROV�AS TO FORM. Ciiy-Aftorney' :--:• - A: 111 Risk Manager AF:,vPROVED: :'Admini§trative Services Director APPROVED epartment Direct& SONOMA COUNTY WASTE MANAGEMENT AGENCY Agency Chair APPROVED AS TO FORM: Agkcy Counsel a Exhibit "A" — Third Amendment Services and Compensation Under the terms of this agreement, the Sonoma County Waste Management Agency shall allow the City and its residents use of the Household Hazardous Waste (HHW) Facility at the Central Disposal Site, without additional charge during the term of the Agreement. City residents shall be provided any other privilege or right enjoyed by other member agencies of the Sonoma County Waste Management Agency regarding the promotion and use of the HHW Facility at the Central Disposal Site. Services provided by this agreement shall also include educational efforts, recycling and other waste diversion services, compliance with AB 939 reporting requirements and any updates necessary to state and/or county planning documents on behalf of City as required by the Countywide Integrated Waste Management Plan and state regulations. The annual compensation for services shall be calculated by applying the SCWMA tipping fee surcharge rate on the actual tonnages of solid waste disposed of by the City of Petaluma's franchised waste hauler, GreenWaste Recovery, Inc. during the period of January 2006 through December 2006. Petaluma's franchised waste hauler disposed of 29,144 tons of solid waste during the period January 2006 through December 2006. The tipping fee surcharge is $5.40/ton, therefore, Petaluma's compensation for FY 07-08 to the Agency is not to exceed $157,400, due in four equal quarterly installments, upon invoice, beginning July 1, 2007. During the term of the Third Amendment, City shall provide to Agency monthly reports of the solid waste disposed by its franchised waste hauler by the 20th of each following month for AB939 reporting purposes. '9w FOURTH AMENDMENT TO AGREEMENT Household Hazardous Waste and AB 939 Program Services This Fourth Amendment to Agreement, effective thel" day of July, 2008, ("Effective Date"), is made and entered into by and between the City of Petaluma, a municipal corporation and a charter city, hereinafter referred to as "CITY," and the Sonoma County Waste Management Agency, a joint powers agency, hereinafter referred to as "AGENCY." WHEREAS, CITY and AGENCY entered into an Agreement effective January 1, 2005 and terminating on January 1, 2006, governing the use of AGENCY's Household Hazardous Waste Facility (hereinafter the "Agreement"); and WHEREAS, CITY and AGENCY approved the First Amendment to the Agreement to extend the term of the Agreement for an additional six (6) months, until June 30, 2006; and, WHEREAS, CITY and AGENCY approved the Second Amendment to the Agreement to (1) add additional services for compliance to the requirements mandated by AB 939, (2) compensate the Agency for services managed and performed by the Agency, and (3) extend the term of the Agreement for an additional twelve (12) months, until June 30, 2007; and, WHEREAS, CITY and AGENCY approved the Third Amendment to the Agreement to compensate the Agency for services managed and performed by the Agency, and extend the term of the Agreement for an additional twelve (12) months, until June 30, 2008; and, WHEREAS, CITY and AGENCY wish to amend the Agreement a fourth time (in this Fourth Amendment) to adjust the compensation to the Agency for services managed and performed by the Agency, and extend the term of the Agreement for an additional twelve (12) months, until June 30, 2009. NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions contained in this Fourth Amendment, AGENCY and CITY agree as follows: Section 1. Section 2. of the Agreement, "Compensation; Business Tax Certificate," is amended to read as follows: 2. Compensation A. For the full performance of the Services as described herein, City shall compensate Agency one hundred sixty seven thousand, nine hundred dollars ($167,900) under the terms defined in Exhibit A., Payment of this amount is due in four equal quarterly installments, upon invoice, beginning July 1, 2008. B. Agency shall be compensated for services in addition to those described in Exhibit A, only if Agency and City execute a written amendment to this Agreement describing the additional services to be performed and the compensation to be paid for such services. In no case shall the total compensation under this Agreement exceed $167,900 without prior written consent of the City Manager. Section 2. Section 3 of the Agreement, "Term," is amended to read as follows: X1 3. Term. The term of this Agreement commences on the Effective Date and terminates at midnight on dune 30, 2009, unless extended or terminated sooner pursuant to the provisions of this Agreement. Section 3. Except as expressly amended hereby, all the remaining provisions of the Agreement shall remain in full force and effect. IN WITNESS WHEREOF, the parties hereto have caused this Fourth Amendment to the Agreement to be executed as of the date first set forth above. CITY OF PETALUMA City Manager ATTEST: kaj'�� City Clerk9 j ��o Q� AP 0VV�AS TO FORM: City Attorney APPROVED: isk Managed AP OVED- Administrative Services'irector Department Director SONOMA COUNTY WASTE MANAGEMENT AGENCY f Agency Chair APPROVED AS TO FORM: 7g­4'ncy Counsel MAE Exhibit "A" — Fourth Amendment Services and Compensation Under the terms of this agreement, the Sonoma County Waste Management Agency shall allow the City and its residents the use of the Household Hazardous Waste (HHW) Facility at the Central Disposal Site, without additional charge during the term of the Agreement. City residents shall be provided any other privilege or right enjoyed by other member agencies of the Sonoma County Waste Management Agency regarding the promotion and use of the HHW Facility at the Central Disposal Site. Services provided by this agreement shall also include educational efforts, recycling and other waste diversion services, compliance with AB 939 reporting requirements and any updates necessary to state and/or county planning documents on behalf of City as required by the Countywide Integrated Waste Management Plan and state regulations. The annual compensation for services shall be calculated by applying the SCWMA tipping fee surcharge rate on the actual tonnages of solid waste disposed of by the City of Petaluma's franchised waste hauler, GreenWaste Recovery, Inc. during the period of January 2007 through December 2007. Petaluma's franchised waste hauler disposed of 31,096 tons of solid waste during the period January 2007 through December 2007. The tipping fee surcharge is $5.401ton; therefore, Petaluma's compensation for FY 08-09 to the Agency is not to exceed $ $167,900, due in four equal quarterly installments, upon invoice, beginning July 1, 2008. During the term of the Fourth Amendment, City shall provide to Agency monthly reports of the solid waste disposed by its franchised waste hauler by the 20th of each following month for AB 939 reporting purposes.