HomeMy WebLinkAboutResolution 93-79 04/06/1993Res®luti~on N®. 93-79 N.C.S.
of the City of Petaluma, California
RESOL UTION A UTHORIZING MEMBER VOTE ON COMPOSTING
AGREEMENT BETWEEN THE SONOMA COUNTY WASTE MANAGEMENT
AGENCY, THE COUNTY OF SONOMA, AND THE JOINT VENTURE GROUP OF
SON®MA COMPOST COMPANY AND EMPIRE WASTE MANAGEMENT
1 WHEREAS, the City of Petaluma has elected to participate in a Joint Powers
2 Agreement establishing the Sonoma County Waste Management Agency, and
3
4 WHEREAS, the Agency has solicited proposals for the establishment of a
5 composting facility to be used to dispose of yard/wood waste from the participating
6 cities; and
7
8 WHEREAS, the representatives of the Sonoma County Waste Management
9 Agency have reviewed the proposals, selected a preferred proposal, and negotiated with
10 the preferred proposer to develop a draft contract (Exhibit A); and
11
12 WHEREAS, the City Council has reviewed the agreement and process for the
13 development. of the contract;
14
15 NOW, THEREFORE, BE IT RESOLVED that the City Council hereby
16 authorizes its representative to the Sonoma County Waste Management Agency to vote
17 ~ Yes () No ()Abstain on the proposed composting agreement.
Under the power and authority conferred upon this Council by the Charter of said City.
REFERENCE: I hereby certify the foregoing Resolution was introduced and adopted by the .Approved as to
Council of the City of Petaluma at a (Regular) btt€fii~X~ilt~i~ meetuig.~•--~-~°`"~"
on the ..6th------•---.-..... day of .......~?~1~ ........................................... 19.~~---. by the r ,
following vote: -• •-- -y- ------ - ••-•---•----•
t At rney
AYES: Barlas, Read, Vice Mayor Sobel, Mayor Hilligoss
NOES: Nelson, Shea, Hamilton
ABSENT: None
ATTEST : .. ... .................................................................
City Clerk
Council F(('i'le ...................••°---.-.-...-..
CA ]0-85 Res. No..J.3...7.~ .............. N.C.S.
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ORGANIC MATERIAL PROCESSING,
COMPOSTING AND MARKETING SERVICES
AGREEMENT BY AND BETWEEN
THE SONOMA COUNTY WASTE MANAGEMENT AGENCY,
THE COUNTY OF SONOMA AND
THE JOINT VENTURE GROUP- DF S,ONOMA
COMPOST COMPANY AND EMPIRE WASTE MANAGEMENT
This, Agreement is made•and entered into this' day of
1993, by and between the SONOMA.COUNTY WASTE MANAGEMENT
AGENCY, a joint powers agency (hereinafter referred to as
"Agency"), the COUNTY OF SONOMA, a political subdivision of the
State of California .(hereinafter referred to:_as "County"), and
the joint venture, group of SONOMA COMPOST COMPANY, a California
general partnership ("Sonoma Compost") and EMPIRE WASTE
MANAGEMENT, a division of Waste Management Collection Recycling
Incorporated, a California corporation ("EWM," Sonoma Compost and
EWM are hereinaf er collectively ref,erred to as "Contractor").
Agency, County and Contractor are sometimes collectively referred
to as the "parties" and .singularly, a "party". Unless otherwise
stated, all terms shall have the meanings ascribed to them in
Section 1 below.
R E C I T A L S
WHEREAS,;•Agency desires to. implement a Yard Debris Composting
and Wood Debris Diversion Program .(thee".Program") for the
handling and processing of segregated Yard Debris and Wood Debris
diverted from the solid waste stream; and
WHEREAS, Agency issued a Request for Qualifications and
.Proposals ("RFQP") dated June 199.2 for the purpose of selecting .
arid-entering into an agreement with a qualified vendor to~provide
such 'handling and processing services; and
WHEREAS,. Contractor submitted a proposal in response to
Agency's RFQP; and
WHEREAS, based on Agency's review and .evaluation of all
proposals submitted in response to the RFQP, Agency has
determined that Contractor's proposal best meets Agency's need
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for Yard Debris composting and Wood`-Debris diversion handling and
processing ser-vices~;.and ~.
WHEREAS, Contractor:repre`sents that it:d'rectly ha`s the,
necessary experience- and _ expertise to„ receive mun~cipaT"~ Yard
Debr-is .and Wood Debris,,~process.~such materials into marketable~~
products,` and -market ''the. 'products; and -
WHEREAS, Contractor is w-filling: to operate and:mai:ntan a Yard
Debris composting and ..Wood Debris diversion pr.oce_ssing faci'l,lty
to` receive, handle., 'and proc;ess~ Agency `Y'ard Debris ~a~nd ,Wood ~ -
Debri`s` for - a -fee and market t'he ;products; ~ therefrom; and ~. '
WHEREAS, ,Agency and Contractor de i_re~ to fulfill part..of
Agency's obl,i,gaton to divert recyclable materials from- landf.'13
disposa'1 by converting. Agency's Yard Debris -and Wood ~D'ebr•s into
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valuab e: ;comiaodities thus enhancng° the environment arid.
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preserving our natural resources;°•and - ~ ~.
WHEREAS, ~an~ initial study ;.`and mit~gated.'negatve declaration "
have been prepared for the Pzogram .in accordance with they-'
California Erivir.oninental Qua~Tity. Act;° 'and '
WHEREAS, the' County adopted the mitigated negatve.decla'r,at°ion -
on March..;2~4, 1992 and, a Notice ~of Determ•natior was filed; and
WHEREAS, .Agency and Cont-ract'or desire t'o enter lrito:- thin
- Agreement +whereby Contractorshall perform Y°ard~ Debris ~compostrig .
:and. Wbod Debris diversion '.processiinq services related to -Agency's
Yard~Debrs Composting and `Wood pebris'Diverson Program.:
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NOW, THEREFORE Aenc , County and.-Contractor do hereby .agree
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as follows:
A G R E E .~ E N. T
1, D£FhNhTSONS -
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As used in •~ths Agreement., the foalowng 'term's. shall have
the meaning set forth below. Any term may be used in the plural
or past . tense .. `
1.1 "Aeration". Aeration shall mean the process of
exposing composting material to'oxygen in the air.
1.2 "Agency". Agency shall mean the Sonoma County Waste
Management Agency, a joint powers agency comprised of the
following members: County of Sonoma, City,~of Santa Rosa, City of
Petaluma, City of Rohnert Park; City of Cotati, City of
Healdsburg, City of Cloverdale, City of Sonoma.,. City of
Sebastopol and Town'of Windsor.
1.3 "Agency Representative'". Agency Representative
shall mean a person.or persons assigned by the Agency to .manage
or oversee the Program..
1.4 "Central Landfll1/. Central`Landf:ill shall mean the
landfill located on 50O Mecham Road, west:of Cotat which is
owned and operated by the County.
1.5 "Collector•": Collector. shall mean the' contractor or
contractors who perform coalection services f'or Yard Debris and
Wood Debris pursuant to agreeiaents with the Agency's members.
1:6 "Compost"'. .Compost shall mean stable humus-like
product of the compost°ing'process that results from having the
organic components of the Yard Debris metabgl~zed to relatively
stable intermediates'(..e., the material can be stored .without
producing, a nuisance or can be applied to_the soil and neither
inhibit vegetative development).
1.7 "Compostng10`: Composting sha_11 mean the controlled
biological decomposition of organic solid waste.
!1.8 "Contain-nants"'. Contaminants shall-mean any
mater.,al not normalfiy produced from gardens or landscapes
including, without limitation, brick; rocks, gravel, large
quantities of dirt, concrete,: sod, and non-organic wastes (i.e.;
non-recyclable metal, glass or p-lastic). Contaminants shall not
include any Hazardous, Materials.
1.9 "Contract Year". Contract Year shall mean the
twelve (12) month period from the Effective Date, in any calendar
year of they term ~ of this Agreement, to the Ef fective~ Date
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anniversary in•the next calendar year.
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'~ 1. L0. "Contraactor". ~Contr:actor shall mean, the joint •
ventures.group comprised•of.~Sonoma Compost a'nd EWM. •
1.11 "C:ontractor Improvements:'. Contractor~Improvements
,shall inean.the improvements made to•the Facility by Contractor
which are°more specifically described. in Exhibit " ° attached
hereto and incorporated herein _
.1.12 "County". .County shall: mean the County of Sonoma., a
pol'•it;•ical• subdivision of the State of Calfornia~.~ .
1:.13 !'Count, Im _rovements", County Improvements.'s~hall. -
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.mean the,. impro.v.,emerits made iri..conriecton with'- the Racili-ty ' by '
County which are more specifcall~y described . in ExYiib,t " " .
.attached hereto and incorporated:.heren.
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1.14 "CPI". .CPI shall mean 'the .Consumer_Prce-Index•for
A11 .Urban,. Consumers for San 'Francisco-Oakland .based on the Yea-r'
,.
1982 19'84 100 as published.-•by"• the `U. S . D:epa~rtment of~ ~ Labor's
Bureau `o f'- Labor Statistics:. ~ -
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1. 1'S' ''~Efifectve :Date". • Ef"fectve Date shall "mean.- the _
date first written above. ~. ,
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1:.16 EWM". EWM shall mean~~Empre Waste~Management, ,a _
•~.dvison of Waste~Manag.ement.Collection.:Recycling.Incorpor-a,ted,, a
California corporation. ~ -, •
1.•17 ''.'Facility".. - Facility shall 'mean the, ;Yard ,Debris _
compostn~•and Wood. Debris diversion processing facility located
at the Central Landfill asx•more partcul~ar;ly depicted on. Exhibit
attached..hereto'~and incorporated herein. -
• 1.18; • 1°Finshed Products'°°. F-finished. Products ~:<shall mean
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wood •chips,, mulch.,:~ screened compost,..and .other .usable and/~or
mar-]cetab e'products •produc'ed ~~from': Yard Debris and Wood Debris::~
1.•19 -:!'Finished Product Revenue";: Finished Product
,.. ,_.
Revenue shall mean the sum of'the revenue-from Wood .Debris _
Products and,•Yard Debris Products: ~ ..
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1.20 "FOB". FOB shall mean the value of Finished
Products at the Central Landfill (i.e., excluding any
transportation costs associated with deliveries to off site
markets).
1.21 "Guaranteed Revenue". Guaranteed Revenue shall mean
the revenue collected by Contractor through sale of Finished
Products and such revenues are used to directly offset the
operating charges for the Program.
-1.22 "Hazardous Materials". Hazardous Materials shall
mean any substance, chemical, waste or other material which is
listed, defined or otherwise identified as "haz'ardous" or "toxic"
under any f:ederal,, state.,. local or administrative agency
ordinance or. law or any material that because of its quantity, ,
concentr-ation, or physical or chemical characteristics~,_poses a
significant, present or potential hazard to human health or
safety or to the environment if released into the .environment, or
any rsgulat~on, order, ~ ru.Te or requireaterit :adopted thereunder, as
well as. any forma>ldehyde, urea, polychlorinated biphenyl,
petroleum,. petroleum product or by-product, crude oil, natural
gas, natural gas liquids, aiquefied natural gas or synthetic gas
usable for fuel or mixture thereof, radon, asbestos, and
"source," "special nuclear" and !'by-product" material as defined
in the Atomic. Energy Act of 1985, 42 U.S.C. .section 3011 et se~C.
1.23 "Marketing-Plan". Marketing .Plan shall mean the
ma-rketing plan submitted by Contractor and approved by Agency in
accordance with Article 8 below. .
1.24 "Mxed~Organic Materials.". ..Mixed Organic Materials
shall mean a mixture of Wood Debris and Yard Debris.
1.25.: ":Other Haulers" . ~ Other Hauler-s shall mean
individuals. or entities,~other then Collectors, who deliver Yard
Debris and/or Wood Debris to the Central Landfill.
1.26 "Operating Days'". Operating .Day shall mean all
days of the year except New Years Day, ..Easter Sunday,.,
Independence Day, Labor Day.,- Thanksgiving and Christmas .Day.
1.27 "Operating Equ°ipment". Operating Equipment shall
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mean th'e equpment"supplied,by the;•Contractor and located at the
Facility which.'s more specfically~descrbed .in Exhibit '° "
attached 'hereto~and"incorporated herein: "
1..,28 Pro am.. Pro
" gr " gram,. shall ;mean the Agency's Yard -,
Debris Composting and Wood .Debris Divers=ion program for. diverting
material from the solid waste stream by receiving and processing
Yard, Debris and Wood Debris into Finished Products. - .
1 2;p ysoa'oCalifornia"~eneralmpartnershphalTheepa=rt~es~a
Compost Com an g
hereby understand that Sonoma Compost aiay incorporate during the
term.: of this Agreement.
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1.30 •.":Start, Da~te11.: ~ Start Date shall. mean thedate
designated by .Contractor-- as tl%e date. ~by" which .Contractor shall be` '
prepared to receive: ~a~nd .process Yard' 'Debr'is and' Wood" Debris;; '
provided, however, .that in 'no event.. shall. the. Start Dat.e•. be~ later
than "sixty` ('60)' ,days; after 'the .Effecfve• Date:. °Contra~ctor shall
notify 'Agency in ~wr-itinq of the d"esignarted Start Date ~at least
ten (10) working; 'days in advance of the Start' Date. , , '
1.:31 " TPD"'. TPD shall mean tons; per day`.
1.32 !';Windrow". Windrow shall mean an elongated pile of
Composting material:.•
1, 3`3 ";Wood Debris" . Wood'- Debris, shall mean dimensional
lumber, pallets, s ippng 3uririage, and.sim a= d_scarded.wood,
materials.
1,.34 "-Wood Debris Products" . WoodDebris °Products, shal•1
mean products made- from the, woody :fractions of. Yard Debris ,or
Wood Debris,whYch.,has been mechanics-lly'reduced in size and
screened to ~~spec f`ed sizes: 'and used for various°•.f,inshed .
bedding„ mulch; weed and: sol.abatement~, decorative uses or as
fuel to .generate electricity'. "
' '.1.3'5 "Yard `Debris", .Yard' Debrs~ shal ~~mean green .plant
debris nc uding grass clippings; leases, prunngs:, weeds,
branches; brush, tree :portions not exceeding five '( 5",) ,feet in ,
length or 'two (2) inches in diameter and .other forms of organ~i~c-
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waste generated from landscapes and gardens.
1.36 "Yard Debris Products'=. Yard Debris Products shall
mean. those products that have been mechanicaly'processed and
biologically decomposed o Compost or a similar soil amendment.
2. SCOPE OF SERVICES.
2.1 Receiving, Weghinct a'nd`'HandlinQ.
2.1.1 Account`na for Materials Delivered. All
materials. delivered by Collectors and Other Haulers .for
processing by Contractor shall be account:ed~fo.r.by the County at
the Central Landfill.. Such material will be categorized by the
County into one of the following three'categoriesi (i).Wood
Debris; (ii) Yard .Debris; or (iii) Mixed Organic Materials. The
County will also account for the jurisdictional source of all
material delivered to.~the Central Land"fill... Wood Debris, Yard
Debris and Mixed Organic Materials will be measured by weight or
volume (for loads less than five (5) cubic, yards) at the Central
Landfill gate and will be delivered by.Collectors and Other
Haulers.to Contractor's`~receving area. .The load volumes will be
converted to tons using mut:uaYly agreed upon conversion factors.
The. conversion factors shall 'be tested with a frequency and
methodology-mutually .agreed upon by the parties.
2.1.2 Acceptance of'Materials. Contractor- shall
accept all materials delivered to the Facility and ,shall ,process.
such .materials into Yard bebrs Products or. Wood Debris `Products..
In the event that Contractor is unable to receive and process
acceptable material, Contractor shall be responsible for the cost
of removal, transport,; disposal and any other costs incurred .by
the Agency to divert acceptable organic material to other
.locations as'designated by the. Agency Representative, provided,
however., that Contractor shall not be responsible where
Contractor's inability to .receive anfl process such material is:
(i) not caused by ether.~the acts or omissions of Contractor, its
employees or agents, or (.ii) caused by events beyond-Contractor's
reasonable `control.
2.1..3 Determination of Acceptability of Materials.
In the event Contractor believes delivered material is
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unacceptable f'or' pro'cess;i.ng due to the presence of~Contam-inants,
Contractor s~hal~fi .first a_;tteiapt to reach 'a'greement with the
in~d~ividua•1 Col~leetor or Other- Hauler who, delivered ~ such mater~aTs
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to the Facility., Should Contractor" be-. unable to :reach ag"reement.,
with the particular Collector or Otter HauTe~r responsible for
delivering the: Contamin'a~nts, Contractor shall set the disputed -
~materals •n" a=n area ad~acerit. to 'the, processing area so. that. the.
Agency Representatve can inspect the materials. The Agency
Representative shall have forty-eight (4.8j hours to .inspect such
materials :f=rom the time, the, :Agency Repr-esentat-ive .'received `not°ce
of the disputed materials. Agency'.Representative"shall,
determine, ~ :in .hs, or 'her sole discretion, the fractions °o'f Wood
Debris , : Yard -'Debris. and Contaminants . Once the Agency
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Representative has, made such a written d'eterm'ination,, Copt=actor
shall be responsi=ble for the appropriate di position of the,
delivered ma_.ter'al ~n.a timely manner'... Contr=actor reserves. the
right to reject 'Contaminated loads from entry. onto the processing'
area .of the Facility.. ~. - -_
,2 .;2 Minimum Process~ina: ~ •Contractor.. shall pr,.ovde the -
necessary labor arid' ~ equ°pment for ° the processrg o_f' all Yard"
Debris and. Wood ~D,ebri's accepted at` the Central "Landf~ill~;
i-ncludng., without, lim'itaton~, Yard :Debris and Wood' Debr'=s: .
accepted .up to and :on they ~la"st- d'ay o'f -the- term of: thin Agreement.,
into~Fnshed Products in accordance"'.w,ith this Agreement.. .•~
2.3„ :Disposal of `Coritainnan s. Contractor.; at~
Contractor's sole .cost-and,e:xpense,, shall properly dis=pos=e of all
Contaminants- which rema~n•,after processing o€, Yard.-Debris and
Wood :bebrs.; pr,;ovided; .however;:. th`a"t Contractor `shalh :be all=owed
to dispose `of ~ Cont'aiaina~nts at' the Central Landfill, at ~;rio cost to
Contractor. to~the extent that such materials do not exceed one'
percent (1%) of the monthly, volume of materials processed by .
Contractor in 'any.calendaramcnth. where Contamnants'"are~~ .
disposed of..at.a disposal site other than the Central Landfill;
Contractor` shahh dispose of sucYi materials at i;ts :own. cost, and.
shall. :'insure that the. hauling operation for,'Contaminant5.s at
aTT times pe=formed in compliance with 'all._ federal, - state:.and •.
local permit .re_qurements; .laws .and regulat~ior"s. ~. •
2..4 Time of°.O:pe=anion... Contractor shahaccept delivery
of Yard Debris and~WO'od Debris between, the .hours o'f 7:00 a.m: and
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4:00 p.m., seven days a, week, except for the holidays o.f, New
Years Day,' Easter Sunday;. Independence Day, Labor Day,
Thanksgiving Day and Christmas Day.
2.5 Employee Training. Contractor shall train
processing crews and office staff regarding the. requirements of
this Agreement before commencing operations. Contractor shall
regularly conduct.safety.training of all einp~loyees, particularly
those involved in equipment operation. Contractor shall conduct
an education program which will train-COntractor's employees in
the identification• of Hazardous Materials.
2.6 Standard of Care;.Complianee.with Laws. Agency has
relied upon the special expertise and experience of Contractor as
a material inducement to enter into this Agreement. Contractor
hereby warrants that all~its work will be performed in accordance
with generally accepted. andapplicable professional practices and
standards as well as, the requirements of applicable federal,
state and local laws; including without limitation, health and
safety requirements., labor requirements, and requirements
(including permit conditions) of the California Regional Water
quality Control Board, the Bay Area Air Quality Management
District., the California Integrated Waste Management Board, and
the County, it being under.stovd that acceptance of•Contractor's
work by Agency shall not operate as a waiver or release. It is
expressly understood by the parties that Agency and County shall
have full responsibility for obtaining the solid waste facility
permit issued by the. California Integrated Waste Management Board.
necessary for the ,operation and construct-ion of the .Facility and
shall maintain such permit for the duration of this Agreement.
3. TERM OF AGREEMENT.
3.,1 I-nitial Term._ The term of 'this Agreement shall be
for an initial term of five (5) years commencing on the Effective
Date.
3.2 motion to Extend the Term. The-parties shall have
the option to extend the term of this Agreement for an additional
two (2) years on al;l-the same terms including compensation if
mutually agreeable. Any party desiring to extend the Agreement
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shall give the other party written notce~o-f its .desire to~extend
nb later ,than one hundred eighty,. (;18`0)• .days prior to the, end o,f '•
,the ~•ntial term of .the Agreement. "The other pa~r:ty shah respond
to such notice within sixty (6.0~)• days o:f receipt. '
4. COMPENSATION FOR SERVICES.,
,•4..1, Compensation.. Contractor shall be. Raid for its
services in accord'a`nce with 'the payment matt"ix. which is attached
hereto as Exhib".t ~". !' -(;here~i after referred 'to a~s the "'Payinerit
determine theeamountco•flcoirigens`ationedependshuponythetamountXO.to
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materials received at the. ~Facipty, and: the type of not•ice~. given
by the Agency, if, any,. toy Contractor. ,regarding, the expected ,
volume-of ,Yard Debris to tie received and processed by thee..-
Facility:..
• • ~ 4.1.1 Compensation f'or~ Yard Debris. Whe=.e Agency-
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has' ,not notified -Cont:ractgr• in writing as to Agenc;y~'s;' des°re to
trigger,,. a` .par-t°cuTar price rate; fora Yard' Debt-is • based • on an
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expected volume of Yard D.ebris;, Agency shall pay the 'rate .
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identified forminimum tonnage of Yard Debris ,times, the actual:
vo ume of Yard' Debris, delvered:'to the Facility, For -example,'
using the current `Payment Matrix rates, •if the. Facility receives
10,0 tons ~of Yard. Debris, Agency will be required to pay $2, 57`2..QO
for Yar-d Debris $2.5.72 ' X 1.:00 tons), .. Agency may taker advanta~ge~`
of the lower rates,.•,n the Payment Matrix by notif in Contractor
that A enc', ' ex ects that t•he Facili-t' "will receive more than 'ZS
tons: of Yard .gebrs . By so "notifying Contractor,; Agency •wl'l be
requir-ed °to pa for the inininum 'amount _of' Yard D;ebr-is anticipated
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in the notice;: notwithstanding; that the Facility. may" 'snot receive
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the mantes herebted voluiae during such period In;add~ton,
p y acknowledge that Contractor wall be required
to invest in .certain capital equipment in the event~.tha•t the
Agency gives notice to Contractor that it expects that th;e.
Facility,, will receive more ~than~' 75:TP:D of Yard Debris:.,
:.
Th°eref;or•e; upon. such notification `by~ Agency, Cont=actor will, be
required to complete Facility improvements to increase, peak
throughgut.capacty to. 4;0'A TPD within ninety (9D) days and Agency
will be required -to compensate, Contractor- for "a minimum: 75: TPD •
p,er d`ay o;f Yard Debris ~f.ollowing'` notification °and! demonstration
to Agency that necessary ,improvements have been,completed:• Once ••
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the necessary improvements have;'been made, the compensation f,or
the remainder of the term of this Agreement shall be based on a
volume of Yard Debris in excess of 755 TPD, at•a minimum,
regardless of the actual volume of Yard Debris received at the
Facility. .For example,- us'~ng the current Payment .Matrix rates,
if Agency notifies. Contractor-that it expects the Facility to
receive i25 tons of Yard. Debris, and the actual amount of Yard
Debris received is 130 tons, Agency: would be required to pay
$3,09.1.40 for Yard Debris ($,23.78 X 13O tons). On the-other-hand
if Agency notifies Contractor that it .expects to deliver 100 tons
of Yard Debris, and the actual amount. of-Yard Debris is 60 tons;
Agency would be required to pay Contractor-$1,929.00 ($25.72 X'75
tons) .
4..1:.Z Compensation for .Wood Debris. Compensation
for Wood Debris depends.upon the use of the Wood Debris Products
and the amount processed. Agency shall compensate Oontractor for
Wood Debris on an actual volume basis times. the rate identified
for the use: of the Wood Debris Products. For example, if the
Facility receives 65 tons•of Wood Debris that is to be marketed
to fuel markets,'Agency would be credited $.227:.50 (<$3.50> X 65
tons`). On the other hand, if -the Contractor marketed the
products to non-fuel markets, Agency would be required to pay
Contractor. $152.50. '($2.50 X 65 tons).
4.1:3 Notice Recruirements: Any notices given by
Agency pur want to Section 4.1.1 shal'l~be given to Contractor at
least forty-eight (4S) hours prior to the date. that•Agency
desires to modify the rate under the~Payment Matrix and shall be
delivered :no•more frequently than once a.month.-'The new rate
shall be deemed effective forty-eight..(48) hours after Contractor
receives such notice.
4.`2 Adjustments in Compensation.
4,'.2.1. Annual Adiustments:.~ The rates'specified in
the Payment Matrix shall be adjusted<every twelve (12,}.months on
the anniversary of the' Effective Date, commencing at the start of
the second Contract Year: The adjustment shall be calculated by
taking fifty percent (50~) of the net percentage change in CPI
and increasing the net compensation rates~in the Payment Matrix
by the same percentage; provided, however, that in no event shall.
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ad.justments: in rates exceed three percent (3%~): in any twelve (12)
month • period: In the event. that the parties cann'ot° ag=.ee :6n the
amount of ad~'ustment under :this Section 4•:2.1,''the dspute,shall
be resolved in "accor-da~nce~ with Section 17 of this Agreement:..
4:2..2 U_nfore"s'een~ ~Events~ ;Concerning `Enu-r-onmental .
Regulations. In the -event that. requirements imposed on tYie ,- ,
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revised rby sta't-e. or local •agenc'es that are the result •o'f new qr
egulat`ions pzoposed and enacted.'after the Ef_fectwe ;Date •
of ,this Agreement, `'`cause Contractgr to have 'to expend- ;mor;e than
.Ten Thousand. Do lags: ($10 , 0`0,0) ,_, n• the; .'aggregate ,in ariy twelve. - .
(12) ,month per'od., the excess over Ten ~ Thousand D"oll°ars . ($10, OQ0 ): -
shall ~be consder.ed pass through, cos-ts to the Agency. Contractor
shall have the burden of proving to the Agency, the,: amount =of
expense incurred, as a result of such new- or rev~sed,•regulat~on.
Under no circumstances-sh=all. Contractor.haFve to'expend more than
three .percent ;(3~) :.of its gro _s revenue's.. to fulfill its.
obligations under this Sect'iorr 4.2..2--.
' 4:.2,.3- Ch`anges° .i=n Market. Prices: The pa~rte's ~ ~~ ~~
estimate m_iPimum market-`prices of $'27:.00' p:er; ton for Wood `Debris. .
and $10.00 er 'ton of Yard Debris FOB: Central Land'fil,l Facility.
In the ev"ent that actual average market ;prices:. arse ,les`s.:than~~ tle.
above. estimates for' a period- yof at ~ avast six (6) ;months , as -
documented by. invoices or other evidence acceptatble to `the .. .
g y . g ,. - ,.
Agency,,, Contractor and A enc shall retie ot'iate Guaranteed
Revenue for the,respectwe material.
4,.2.4 Revenue :from Fin~isted Eroducts. finished,
= -• _ .
Product Revenue. shall ,be aYlocated between Wood debris and Yard
Debris materials in 'accordance with the appr.oved,'Marketing Plan.
All revenue generated.wh first be :allocated tb:Guaranteed
.
.Revenue,. as illustrated-n'the Payment Matrix,. Contractor and •
Agency shall equally share ~-any revenue `generated' _n' excess of
Guaranteed Revenue. - -
4.3 Determnat-ion ~of Comgensat'on..~ Wood ,Debris and;. Yard
,Debris delivered for 'pro°cessi~ng; 'will be measured by• the County at
th`e ~ Central Landfill gate.. Material .delivered by CoI'lectors aor
Other Haulers 'dentf'i=ed as material gathered in a residential ~~ '
,yard. debris, collection program will be -weighed and .acco,unted .~f;or -
'as Yard Debris '
,with appropriate compensation to Contractor.
-12- ,,.
. ~ ~ ~F~~'~. ~>~. a ,~, -9.: ~ C;S '
. ,`yam , i~' ~S~ ! , ~.7; : i "~. i
Material deliver:red by .Collectors or .Other.Haulers identified at
the gate as Wood Debris will be weghed.and accounted for as Wood
Debris, with appropriate compensation to the. Contractor. A
portion of the org.anie material delivered ta.the Program will be
delivered as Mixed Organic Materials,Compensation for'Wood
Debris processing and Yard Debris processing for this material
shall be based upon a formula measuring the difference in weight
between the deli~rered tonnage of Mixed Organic Materials and the
weight of Wood Debris-Products generated by. the Program.. For
example, if 50 T-PD.of Mixed Organic Materials, 5'0 TPD.of Yard
Debris and 30 TPD of Wood Debris are delivered to the Facility
averaged over a one. month period, and dur~`ng such one month
period Contractor generates 60 TPD~of Wood Debris Products,
Contractor would be paid for 60 TPD of Wood Debris and .70 TPD of
Yard Debris. The~specifie level of compensation for each
fraction would be based on the Payment Matrix and any other
applicable terms of this Agreement.:
4.4 ~AQency Product Distribution. Contractor shall make
available to the Agency,, commencing six (6)-months after the
Start Date, ten percent (1O e) of theFinished Products, as set
forth in 'the ~Market`ing .Plan, for Agency use: Distribution shall
be among Agency members at the Facility as agreed upon by a
majority vote of the Agency. Finished .Products allocated to '-
Agency in accordance with this section and not. claimed within
forty-f:ve (45) days of .notice by Contracto"r of its availability,.
shall be .marketed by Contractor n'the~same manner `as set forth.
in the Marketing Plan. In the event unclaimed materials are
marketed by Contractor, Contractor shall account for revenue
generated from such materials .by allocating such revenue to the
50:50 revenue share with the Agency.
~4.5 axes. Contractor shall be fully responsible for
and agrees to pay any and all lawful taxes,.general and special
assessments`, and other charges of every description, levied .on or
assessed against any Contractor Improvements made as a result of
this Agreement or upon any personal property located at the
Facility. Contractor 'shall make all such payments directly to
the assessing 'authority, at least ten (10) days before
delinquency and before any fine, int'erest,, or penalty shall
become due or be imposed by operation of `Taw for their
nonpayment. If, however, the law expressly permits the payment
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,.~~b~~®o 9 3 ®'7 9 ~ .N ACS
of any, or, all, of" the above items„~ in installments: (whether;.or
not interest .accrues. on the unpaid :balance) , ~ Contr-actor may, at
Contractor's election, utilize the permitted nstallmen_t-method;
but: shall ;pay :each installment, ;with-any interest;, .before
de~linquericy. It' ~ ins •.expressly .understood by -the partie's that
' Contractor` shall be responsble:.for those taxes .d°rect' y :r:elated
to Contraet;or's. operations' and the revenue genera:t~ed;.-ori~
Contractor's ~behal€. In °no event shall Contractor .be responsb-le ~,~
.for taxes d_irectly'related"to' County Improvements. ~ •.
5. PRO.GESSING FAChLITY.. .. ~ '
5,1' Eaci~lity Desian;. Contractor has hard an opportunity
to thoroughly :examine' and irvest~gate the ~are'as, selected for the.
working, surface of the Facility- at the Central Landfll• and..:
hereby accepts the surface area' for 'the Facility. 'n its~~, "as . is"
coidit-iort, •subject ,to •the provisions. ~of Section _5.4 below.. -
Contractor - sha submit a des ign ~of: the proposed Fac'1,i,ty' to ~ ~ -
Agency .:and County for. their rev±ew, and. approval. ':Des~gn° ~bf the -
Fac,l-ty~ shall. be `n accor-dance "with 'the following-;minimum
standards r . . - .
5.::1 1 _Throuahput.Capacitv.~ The. Facility shall
initially have a peak througYiput capacity of ~at least `150 TPD _ of
tota•1 matera'1 durng• each •°operat~ing day.. 'The Eac~ilty de gn .~
must incorporate allowances for scheduled mantena~nce.and;~repar -
~throughout~ the. year. = Facility -design: sha1T allow :f~or~ the
possibility' of .future expanso"n. to. 40:0 T.PD of peak. t~hro`ughput
capacity ..
• 5.`1.2 Delivery Area. The, tipping area; for .or-gan'c ' ,. •
materials delivered .by° •Collectors shall:. be ~ designed to -
' accommodate, any~common,.waste.hauling vehicle ('packer trucks,
ro '1-offs, ;etc ); exc udng .t=actor-trailers ~requir ng ~de.lvery '
..
site 'hydraulic t-ippers; TYie ~F.aclrty .layout shall provide space
separate from' "the primary tgp~i~ng area where Collector vetc'les
. and ,Other Hauler- 'vehicles can safely deposi`t' Wood. Debris: and Yard;
Debris. , .
5.._1.. 3; . ~On s`i'te Storage,. Tfie Facility" shall, include ` .~
adequate. storage and` transfer' .equ'i'pment for' all other products
generated as. a.. result of~-~the,.Compostng process. .';Th'e Facility.. •~ ..
'+•Y
shall have adequate site stora;ge~capacity toyaccept and store
unprocess"ed organc:mat'er~ial in the event of processing equipment
failure and during routine equipment mainte"riance. The Facility
receiving area will also have a" designated site to temporarily
store reusable lumber.- The Facility shall provide load-out
points for Finished Prodii'cts and Contaminants. Contractor shall
maintain the F'i;nished~Products storage area ." The storage areas
shall be capable of accommodating, subject~to the physical
constraints"of the size of the processing area provided to
Contractor, a minimum~of "(.aJ one' month of Yard Debris Products
at a delivery rate o'f' 150 TPD; and (b) one month of Wood Debris.
Products at a delivery rate of 50 TPD. The Facility shall
incorporate designated storage fac-1-hies and"receiving ,areas,
including associated processing equipment for nutrient source
materials,"if deemed necessary by the Contractor. The cost of.
such nutrientisource storage and pumping/handling equipment shall
be included in the Payment. Matrix.
" 5.1.4. Minim-ization of Odors. The Facility shall be
designed to minimize odors.>_especially the migration of odors
off-site to adjacent property. It is specifically acknowledged
by the Agency, that :by their nature, even well. designed and"
operated aerobic composting facilities may occasionally generate
offensive odors. The Contractor shall not be considered in
default if offensive odors are generated-occasionally, provided
the Facility is operated according to the provisions of the
Agreement and the requirements of applicable permits and
regulations. In "the event that offensive odors are generated
occasionally which result in complaints and Contractor is
operating .the Facility in accordance with this Agreement and
applicable permits and regulations, Contractor shall assist
Agency and/or County in resolving such complaints.
5.1.5 Fire Control Program..' Contractor shall
design the Facility so that a fire control"program can"be
implemented. The fire control program shall be implemented in
:accordance with, requirements of the appropriate local fire
agency,"insurance underwriters requirements and all local rules.
5.1.6 .Product-Test. Area. The
include one .or more product test plot areas
and soil improvement tests can be conducted.
-15-
.Facility shall
where growth tests
5.1.7 Enctfineering Stand'ards:. The Facility; ..
including, without; limitat;on,_the O;peratng.Equpment,. s~hail,be.
designed and constructed to, comp,ly~ with. all ap_ pl;i,cabie industrial
code "
s and :al'l app'1ieaYiT,e ~ code ~requiremen;ts of the Amerca~n-
Society. of Mech;an~cal Eng,ineers`'and other` .technical societies,-.;_
either as stated or as is standard "in' industry practice. '
5.~2 ~ .Facility` Construction,., '
5.-2:..1 Contractor ResAOn'siblites Contractor
_ .
shall. be responsible ~ for con. trusting ;a_11 Contractor Tnprovements
and.pr.OVidng,the necessary equipment to process tfie Wood Debris
and Yard" ;Debris .
5,2,.2 ,County Responsibilities. County shal3.be
respons^'~ble for ,construct"ing ai`1 Co.urty hnp"rovements..
5.:2.,3 Uerficat'i~on.o~f~`Faai 'tv Completion. The
Agency shad-l ha~e~the right to inspect: the Facility n~~operation
upon eomp~letion of the Facility in order to verify to Agency's
complete satisfaction,; that the Ea~cil'ity is capaYile of o,p,eratng
in comp~liance,wth the design andop.erating requirements set'
forth. n° this Agreement. The acceptance test. may, be sche'du~led by
Agency. Representative at any time w~th~in orie hundred' twenty (;120)'
days from ,the Start .Date:~ .
5.3 ., Facility 'Operation':. Contractor" shall operate the
Facility ri accordance with :the .following minimum standards:
"~ ~ 5.3 1 ~~ ~Process~na. .Contractor shall, prov,de'
sufficient equipment f,or the efficient reee"ipt, 'handling; and '
... :..
loading. of Wood Debis; 'Xard D.ebr.is, reusable lumber; recyc•lable~
materials;, and' Con~famnants':.. Contractor 'shall opera_to the _
Facility and provide, equpment.redund'ancy, and. replacement as
necessary 'to. ensure °a smooth; continuous operation:
5.3.2 Ho"usekeepng Storage. To minimize ~nternal
and external dust; Contractor sha~ll.'appYy water to the. Facility,'
area to control dust. .Contractor. sYiall also supply~sys',tems for
safety, and public health p"rotecton including without.
limitation, a faire."control_pr-ogram and~proyision for vector
contro_1. The Compost shal-1 ~be mainta-fined in an aerobic condition
-16-.
c -
k, y'
to avoid odors produced by anaerobic conditions. Contractor
shall ensure that all materials are only stored as specified in
this Agreement. Unprocessed .Yard Debris or. Wood .Debris shall be
stored on-site for a maximum of four (4`) days.. Storage is only
acceptable to the extent that satisfactory odor, vector; dust,
and fire controlmea'sures are employed to eliminate nuisance,
health, and safety problems. In .the event Contractor fails to
store materials in an acceptable manner as set for-th in this
Agreement, Contractor shall defend and indemnify Agency and
County from all liabilty~and expense resulting from such
failure,.including;:.without limitation; nuisance claims by
neighboring Iand owners.
5.3.3' Health and Safety. Contractor shall operate.
the Facility so as to minimize potential he:a-lth and safety.
problems for Contractor and County emplo,y~ees,-.at the Central
Landfill, users of the Central Landfill and, neighboring
properties. Contractor shall operate and. maintain the Facility
in a neat and orderay.manner and shall police daily, or more
frequently if necessary, to prevent litter from 'b lowing off the
grounds of the Facility.
5.3.4 Testincr. The Facility shall be equipped with
the necessary labors-tor-y `a-nd testing„ instruments to efficiently
monitor the composting .processing and to ensure that final
product quality satisfies the specifications of this Agreement,
as well as applicable state requirements.
5.3.5 OQerat1nq,Plan. Contractor shall submit
within thirty (30) days- of the °Effective Date., a detailed -
operating plan, to the Agency for its review and approval. Such.
plan shall cover, at a,minmum;;the following issues: (a) receipt
and processing of organic materia`T; (?b) :handling of hazardous
waste received; (c,) site securi€y;~(d) management~of~ nonorganie
material residue: and reject `material; (e) provisions .for handling
peak seasonal material quantities; and (f )' provision of equipment
redundancy and replacement.
5.3.6 Educational Opportunities. The Facility
shall be operated in a:manner that'wil`l provide puba~c education
opportunities and other appr-.opr-fate activities as described in
the Operating Plan and as mutually agreed upon by the parties.
-17-
~~`~~®. ~; 3 ®~ 9~ N~ C
a, k
5:3t.-7 Env~ir-onmental Requirements. ~ Contract'or shall
ensure.. that operation of the F'acl~ty w`il ~~ be i~n compl;ance with
all permit ;conditions issued f.or the "P,rogram, . including without
limitation, ~ permits %ssued-~ by th'e Ca ifornia 2ntegra•,ted Waste
Management..Board, the California Rego,na;l Water- Quality Control
Board,, the.B:ay Area Air-Quality Management District; a-rid the
County. ... .. . ,
5..4 Fac itv Maintenance.
5.4:, L -,`Ma,ntenaiice :Obli'crat~ons of Contractor;
Submission :and, Approval of~ Maint-eriance Plan. Contr:ac-,,tor.. shall `be ,
responsb a fore•main'taning~~the Facility;. including the working
surface on' a*~ daily` :basis; with the exception of those'ma~intenance
respons;bi~lhes. of~ the~:County as, .id'entifed'irn~.Sect°ion's_ 5.4.2
and 5..4..3. below, Contractor shaT,l subm°t within thirty` (30) days'
of the Effective Date, a maintenance plan ,that details procedures
for the routine maintenance .of the Facility and the' Operating'
Equipment, t`o the Agency for 'its' review gild .approval., =
5.4.2 Maintenance` :of `Working .Surface.. The. spar-t=ies
hereby .understand and acknowledge that the working sirface~f;or
:the .Fac'lity wl,T `be placed,. on a• landf~ l and as a result,'may~be
.prone:, to maintenance. °problems result°ng ~from~ settlement and
sub deuce that. =is typ;cally° associated with landfills. Ca.unty
shall be res,pons,ble for repairing problems• ~w.th the working
surface that 'are. directly, caused by settlement Hof the : l~andf.ill.
County's 'o.bligation shall include: ma-intan`i.-ng the working: aurface
grade to' avoid the: accumulation- of standng• water .caused- by
ettlement bf~the filled area.
• 5.4=.3 Maintenance' of -Access 'Ro'a'd"s~. County shawl; be
responsible; for ,main"ta~in`ng the ~ acces's road between the lower
proces's;irig~ area ~a'nd .thee: ,upper Compost 'pad .which shall. be
want^aned .for all .weather travel.
6 . FINISHED PRODUCT 'STAATDARDS
6 . T ~ Product'or. o~f F,nshed' `Products:. Contractor, shall
produce marketable Finished Product on a continuous bas's .and in
- -18-
~r~fn.'-J®a '~~~ e.' ~~k~vfNf~
r 4
f
such a manner that a market for the total amount of Finished,
Products .from the Yard Debris and Wood Debris received for
processing at the Facility can be developed. The marketing and
distribution of Finished Products, with the. exception of the ten
percent (10%) provided.to.Agency, shall be the sole
responsibility of Contractor and shall be in accordance with the
approved Marketing Plan,
6.2 Process T_estina. The Facility shall be equipped
with the necessary analytical-instruments and equipment to carry
out the following, ongoing; routine composting .,:process tests:.. (a)
measuring moisture content.; (b) temperature readings; and (c)
other tests, mutually agreed upon by.the parties, to .optimize the
marketability of the Finished Products.as. Finished compost
product testing and analysis shall include moisture content,
organic and inorgan%c contaminants analysis,
maturity/stabilization testing, macro- and micro-nutrient
analyses, and microbiological tests which shall be performed by a
qualified, independent laboratory. Prior to having any off-site
laboratory conduct testing. of the Finished Products, Contractor
shall notify Agency so that Agency Representative may observe the
taking of the samples. Agency reserves the right to collect
samples of Finished Products for its own use.
6.3 Finished Product Standard. The finished compost
product shall maintain physical and chemical specifications such
as to: (a) achieve the results required under the Marketing Plan;
and (b) comply with all applicable laws, ordinances, regulations
and permit conditions.
7. CONTAMINANTS.
7.1 Separation of Contaminants.. Contractor shall.
visually inspect each load of materials for Contaminants as the
load is delivered to Contractor's processing area and shall
proceed in strict accordance with this Agreement.
7.2 Hazardous Materials. If Hazardous Materials are
contained in any of th'e materials that are accepted at the
Facility, Contractor shall remove all identified Hazardous
Material ~arid shall immediately notify Agency. Where Contractor
can identify the individual or entity responsible for bringing
-19-
the Hazardous Materials to. the Facility, Contractor may=notify
Agency Repre entatv.e:and request that the Ageney;procee°d in
accordaance with the procedures set forth, in the County o•f Sonoma-
..
Depar,tiaent .of' Public Works 'HouSeYio'ld Ha-z'ardous Waste Exclusion
Project,. Im the event.•Contractor.and Agency are'~unsuccessful in
getting the -indi~idual~:or entity responsible for d'e'livering the
Hazardous Materials to, retrieve . such "ma'terals and> properly
dispose of thesame., Contractor shall ..'be r.espons-i`ble for :properly
dispos_,ing of• ~-the :Hazardous Material; and. the portions of Yard
Debris and,/or'Wood Debris that,~are contaminated., .at'.Contractor's
so a cost and: e-xpense, . at an approved' hazardous 'wa'st`e treatment.,
storage and dspo al~faclty. It is expressly under-stood that -
the.costs associated with the proper disposal of. such Hazardous
Materials shall be;~deducted.from.revenue pror•to'the
calcul`at=ons:.of shared revenue. ,~ I-n 'addition, -Contractor ntiay .
.request that`the'•County accept and st'or;e up"to 'two hundred `twenty
(2''2.0) pounds of materials; identified. in Exhbt~'° "'' in any
Contract Year, prow-ided, •howe~er,. that the acceptable materials.
do not, exceed f.iwe .('S'j . pounds ~ in "any one day. Contractor shall.
be responsible for paying the ataiidard`rates charged for
dsp'osi-ng of such materials ~ that; County stores pursuant ~to this
Section 7.x::2 and such costs shall- not., be off;s'et against Program
revenue 'ri any' fashion.' In the event •Contractor fails t'o. use
reasonable`dlgence in identifying`and/or disposing of Hazardous
Mater"ials•, Contractor. shall defend and indemnify _Agency and
County from all labi`Ity~and expense. resulting-from such
failure.
8. MARKETING PLAN.
•
8.l Approval of Marketngr Plan. Within thirty' (30.). days
after the Effective Date, Contractor shall submit a detailed
harket:ng 'Plan to ,Agency for its review and.~approaal.,. The
detailed Marketing,Plan shall generally- '~follow~ the' ,plan proposed
in Exhibit 10 " attached :hereto and incorporated ;herein,. but.
with more `ext`ensive;' detai-i of the following issues :; (~a)
definition of products to be sold, (b) aalocatiori by„ percentage
weight o•f~products,producedfrom Wood•Debris and Yard Debris; (c)
records to' be gerierated' on'• product' sale revenue :and ~d-istrbution•;
and (d`) _ allocation .:of revenue to Contractor- and Agency,. The,
detailed Marketing.'Plan shall be .kept confdentiah by the Agency.
The appro ed Marketing Plan shall be•.revsed by Contractor on'a_n~
-2A-
.. j; _
i ~ x~
'~ ~
~$',±,e4.9~~''~~'-` ~~,~ t ray ~ 5:e.
. ~+!
annual basis and submitted to the Agency no later than sixty (60)
days prior to the commencement of the next `Contract Year for its
review and approval.
8..2 Deviations from. Approved Marketing Plan. In the
event Contractor deems it necessary .to deviate,from the approved
Market-ing Plan, in a manner resulting in a material change
affecting .revenue to the Agency or the diversion rate resulting
from this Program under AB939, Contractor shall first obtain,
Agency's prior written consent by submitting .documentation to the
Agency, at least fourteen (14) calendar days :prior to a regular
scheduled Agency meeting, which sets forth Contractor's
justification for the. need to deviate from the approved Marketing
Plan. Agency shall consider such request and shall have the
absolute discretion to determine, by majority vote, whether~to
allow Contractor to deviate from the appro~ed;Marketing Plan.
9. ACCOUNTING AND RECORDS.
9.1 Maintenance.. and .Audit of_Records,. Contractor shall
maintain, in its principal office in Sonoma County, full and
complete accounting records, prepared in accordance with
.generally accepted accounting principles, separately reflecting
Contractor's revenue and :inventory from the. receipt of Yard
Debris and Wood Debris at the Facility, Contractor shall
maintain its accounting records in~a manner-.which clearly and
separately identf-ies the revenues and inventory and separately
id`entifss~ the ,tonnage. of both Yard ~Debr,s andWood Debris. Such
records shall include, without"limitation, shipping documents,
receiving and delivery .logs, invoices, ,and other documents for
revenues and inventory., Such books and records shall be subject
to audit and inspection by Agency and its authorized
representatives., agents or employees, at any reasonable. time as
determined by Agency, at,Contractor's principal off ice, for the
primary purpose~of reviewing ope"rations, verifying tonnages
disposed and processed, and~substantiating~payments made to
Contractor by Agency. In the event such audit..or inspection
reveals-that Contractor does not maintain adequate and separate
records in accordance with the terms of this Agreement, Agency
shall notify Contractor in writing of any alleged deficiencies in
the accounting. Contractor shall have fifteen (15) calendar days
to correct said deficiencies. If Contractor fails to correct
-21-
~~E~"®e 9~~ 3~ ® 7~ 9. ~ N ~C`
said. deficiencies to Agency's reasonable sats,fact.ion;, tYien--
Agency or.- its ~author•iz~ed represeritat~ve may create.'s,uch adequate
and .separate records 'and Con "ractor sha.ll:,reimburse~Agency f:or
,-
the .cost of such, s:ervices,., All„ re'cord's. of Contractor that a=re
not needed to verif.,y comp°lance,with th~i;s~. Agreement .and: to: _aud'_t
figures used in foriaula ~ determ`n_atons shall be"considered; -.
confidential - ;and "the; .priva:t'e pr-;operty .of Contract=or•~: C.ontract_or
shall have ~a''r-eciprocal rgh't~=to audit County gate records `and
anp otHer -nforinat%on that directly °relate ~to performance und'er~
this Agreement andJor formula d`eterminations.' - -
~9 . 2 Over ~P"ay'tn'ent`s to. Contractor. In 'the event 'that an
_.-. .. -_
audit or ins;pectori' reveals ~tha't. the amount of ~compen~sa'ton paid;
to C,ontractor'by.,Agency is 'greater than the amount actually'due
to : Con.tracto`r under the te~rias of ah`s; Agreement;,, Contractor s_ hal
remit such excess compensaton~to°Ag.ency;, including .interest-from
the date of over payment- •at the rat:e of ten ,percent'.= (~10'%) per
year; within thirty (30) days of~invoice by Agency of suc-h
excess . If such reimbursement~ is not. -made bg Coritraetor. W'ithi
the specified time, ;per°od'; Agency may deduct the mone due- to
Agency from, Contractor's next mbnthly'.~payment. _ ;
9..3 Urider-Payments to Contractor. In the event.~an audit
or inspection reveals an error'. on the part of Agency; .such that
the- amount, of - compensat~on,~ paid °to •Cont°r.;actor by' Agency ~°s less
than tYie .amount. actually due to Contractor under- the t"erms o_f
,= _
this,. ,Agreement, Agency-shalh remit. to Contractor such •. -
c,ompensation due;- inctlud•nq ~:iriterest from the. date o:f ~ under-
payment at the:-"rate ~o:f' ten percent (1'0%:), per year~,~ w;th;iri thirty
(30) days of invoice 'by Contractor.~o'f such-~u_nder-payment. : .
Interest: shall not be due tg.Contractor.:if. under-payment i due
to an :incorrect- n~,o:ce subm`i-tted. by Contractor :or disp,ute~ .over.
compensation adj"ustments.:~
9.4 ~ finspecton ~ of Accounts' -sand -Records -- - Contractor''s
accounting records :as':descrbed;.above, hal .be avai able-at...-
Contracto='s~;prncpal o'ffee n~;Sonoma County at any time during
regular office' hours for inspection a~ndjor audit byAgency o'r its
author-zed representatives, for a period of three,(3`) years -
fo~Tlow~+ng' the t'erm~nation: of this Agreement,. -
1.0 . `REPORTS .
22~
~, ~ ~ ~,-
d c ~~; d x,~ ~!
~, <`
10.1
inspection by
that are used
reports.
Daily Reports. Contractor shall have,
Agency 'Representative at the .Facility
to support the information contained
available for
daily logs
in all
10.2 Monthly Reports. Contractor :shall submit a monthly
report and invoice to the .Agency Representative within fifteen
(15) calendar days fo lowing'the receipt by Contractor of the
monthly tonnage report prepared by the County. The tonnage
report prepared by the. County shall set; forth tonnage
information, on a monthly basis, for the rfol•lowing categories. of
materials: total tons of Yard Debris delivered to the Facility,
tons per day of Yard Debris, total tons o€ Wood Debris delivered
to the Facility, tons per day of° wood Debris, total tons of Mixed
Organic Materials delivered to the Facility, tons:-per day of
Mixed Organic Materials,, total tons of Wood_ Debris Products
leaving the Facility; tons per day of Wood 'Debris Products, total
tons of Yard Debris,Products~°leavinq the Facility, and.tons per
day of Yard Debris Product. The report shall also include' copies
of all receiving data record forms and weight tags for each-..load
of Yard Debris, Wood Debr..s and Mixed Organic Materials. The
Agency Representative will review Contractor's monthly report and
invoice, and notify Contractor of any deficiencies in writing
within fifteen (-5) .working days. of receipt of the report.
Contractor shall have fifteen (15) working days_from Contractor
receipt of notice of deficiencies to correct such deficiencies
and resubmit the information to the ,Agency. The monthly report
shall, at .a'minimum, includ'e~ the following:
(a) A summary of tonnages for each material
received per day;
(b) A listing of loads containing more. than one
percent (1~) by weight of Contaminants and the date., ainount.(by
weight and volume) and type of Contaminants;.
~' (c) "Explanation of any changes from the .operating
plan inc=~ludng the type and amount of~processing required by
Finished Product. The~Compostng process report shall a so
include a brief discussion of operations -including monthly
Windrow characteristics; additives,. moisture addition and results
of all moisture content measurements, applications, results of
-23-
~~~~ j 9 3:1- ~ 9 ~-C ~ .
all temperature , measurements and f luctuations, 'type 'and .frequency
of Aeration; ~ ~ ~ "
(;d') A description of, any highlights or anomalies
associated with`ths_data, .including;, weather, operations;,
- equipment shutdowns, Yard~Debrs and Wood Debris,-material
delivered and processed; -•- - ~-
' (e) :Results of'` tes inq~. programs to include the,, .
results •from laboratory tests, -ncluding; the number oaf .samples
taken,, the locations of samples `taken,, and.- analytcal.~r-esultsi;
from off-site'laboratories and other ,laboratory arial.y,sis
completed by the Contractor or subcontr-actors; ~'•
~.(f;) ~A descrip ion ofd the- sale and. distr:butgri of
Finished P ,odrets .including the types ~ of: materials sold.; .a
.. -
- delivery log showing date, time:,,; product descript%on., net, weight
and ~ destina•t~on o'f each load -leaving, the' 'Facility. 'Retail: sma;l.l
quantity (~less_ than five (:5') cubic yards) shall .be exempt, from
- ind~,vidual load ,reporting and ;all report-ing 'information shall, be
con"fident`al a=nd proprietary'..: A pricing structure. showing al;l
mat~era`l types- as defined :in: the Marketing Plan and ,sold on a'
m`onthly` bas-is;
. - (g) Qua~nt'tes and_ weight tags; (in. tons .arid,' cubic
yards} of C'on'taminants l~and'f`illed, recovered or recycled;
(h;) Record of complaints regarding environmental
concerns and Contractor's steps taken to'resolve~compaaint.;,, .
• (~.) - Recor-d of 'other prob erns associated, with the
Facility and as ocated.;operations~~~and considerations and
accounts .of what is being done to resolve the problem:;
. ~(°j.) Tonnage,: voaume and composit%on of Finished ,
Products .produced `by,• type;
- (k) Est`ma~ted percent. we'ght foss due to 'moisture,
•for each type of processing'operation~; and -
•
1 ~ Tonna e ~ '
( ) g" (n`cLud~ng weight tags) and. volumes of
Finished. Products due to~Agencyand/'or delivered to."Agency by '
n -24-
~~ ~
type.
Contractor shall submit two separate monthly invoices.
One invoice shall be for processing and marketing Woad Debris
and the other invoice shall.be.for processing and marketing Yard
Debris materials. The invoices shall include at a minimum the
following: ~ ,
(a) Tonnage information pr:gv°ded by County in -
County's monthly tonnage report;
(b) Processing fees derived from the Payment Matrix
and associated with the respective materials;
(c) Offsets~to processing~cos.ts due to Guaranteed
Revenue and Finished Product Revenue; and
(d) Total due to Contractor.
10.3 Quarterly Reports. Contractor-shall submit a
quarterly report to the Agency Representative within twenty (20)
calendar days of the end~of the quarter in any Contract Year.
The Agency Representative will review Contractor's quarterly
report and notfy~Contractor of any deficiencies in writing
within thirty (30) working days-of receipt of the report.
Contractor shall ~ha~ye fifteen (15 ) working days .from receipt of ,
notice of deficiencies to correct such.defeiencie's and resubmit
the report to Agency. The quarterly report shall include, .at a
minimum, the foalowng:
(a) A summary of the information contained in the
monthly reports .and total weight and volume of material
processed;
(b) A: discussion of the Program, along with
mea-sores taken-to resolve problems,, increase efficiency and
increase quality of Finished products', and
(c) A discussion of th'e markets for the Finished
Products and'the types of marketing approaches used.
10.4 Annual Reports. Contractor shall: submit annual
-25-
reports, to the Agency R'epr.esentative -w-it~hn thirty (.30,) calendar
days oaf the end of each Contract,,Year. The Agency Regresentat=ve
will review Contractor's annual report and notify Goritractor of
.any def~c.en'ces ~ _n writing; withn• th rty-•(30) working days of.
receipt. ~of, the• report. '°Contractor shall have thin-ty ,(-30) working
days from, receipt ~of notice of deficeneie`s to correct such.
`de-f.icences, and resubmit; the report to Agency. Thee ;annual
report. sh°all include, . at a mi-n•nium, 'the foilowing: ..
('a ). A summary o;f; the information contained in the '
monthly reports` and. total' weight acid volume of .material
processed.; .
(:b) A. discussion of,. the Programs, .along -with .
measures,to-ken to resolve problems ;;.increase efficiency and '
increase qualty~of Fn'shed;products and
(.c) ~A discuss.on oaf 'the. °.markets for theFinished ~ '
:Products and the types of marketing approaches used.. '
1;0.5` Final Repot"t. Within thirty (30;.)~ ~ca~lendar days of
_. .. ,
the. end of the term, of, this Agreement, 'or within th{irty, , (,30)
calendar days of the e'arl~ier t'erminati'o,n of this°°` 'Agreement,,
:Contras"tor shall submit to. Agency Representative 'a .final, report.
Agency :Representative w1T revew:Contractor'•s final; report and
notify Contractor o'f any defic.encies'n'writng within thirty. '
(30),. working, d~a~ys of receipt of the.: report. Contractor shawl .
have thin"ty~ (30',) working; ;days ~ from the ~ receipt of notice Hof ,'
def.feiences to correct s'iicti~ def`icienc'ies and, resubmit the •report
.to Agency. The final report. shall ,include at.-a minimum the-
foll,owng
a A summar of gall `t~Yie ~ recede ear data and '
(_).~ Y P gy
annual; reports; and '
(b.) A d'scussion.of the. Program,~including
highlights,, problems, .and. problem resolution. :,
10..6:, Reports Recruited by" Law. ''Contractor shall assist
Agency in, the; ,,preparation of <all, .reports - hat are, required under,',,.
applicable law concerning the Program.. ~ °~
-2 6 - , .
.,
11. CONTRP,CTOR REPRE&ENTATIONS.
In order to induce Agency and County to enter into this
Agreement, Contractor represents and warrants to Agency that the
following statements are tr-ue, correct-and complete:
11.1 Orctanzat°on and Good :Stand'nct:. Contractor is a
duly formed and validly existing joint venture consisting of
Sonoma Compost and EWM and• that Sonoma Compost and EWM are in
good standing under the laws of the State of California, and that
Contractor has all requisite power and authority to carry on the
business of the Contractor, to enter into the Agreement and to
consummate the transactions hereby contemplated.
11.2 Authority,and Authorization.- Contractor has
requisite power and authority to 'enter .into the Agreement and
that the execution, delivery-and performance of the Agreement
have been duly authorized by the governing authority, if any, of
Contractor and no other action is requisite to the execution,
delivery and performance of the Agreement.
11.3, Litigation. There are no actions, suits or
proceedings pending; or threatened. against or affecting
Contractor, EWM or Sonoma Compost.in any.-court of law or in
equity, or before or by any governmental department, commission,
'board, bureau, agency or instrumentality that might adversely
affect the ability of any such person or entity to perform its
respective obligations under the Agreement.
11.4 Binding O'biigation. The Agreement"has been duly
authorized, executed and delivered and is.vald and legally
bihdinq on Contractor.
12: "INSURANCE.
With •r-.espect to the performance of the work hereunder,
Contractor-shall take out and maintain at all times during the
life of this Agreement,- and • shall require all of its
subcontractors, consultants and other agents to maintain, the
following policies of insurance:
12.1 Workers' Compensation. Workers' Compensation
-27-
:a ,-~
RESO.93m'~9 NCS
Insurance to~cgwer its emp,Toyees, with statutory lmts,as
required by ;the Labor. Code of the S~tat;e •of ~Cali~f;brna„ ~ Each such
policy shall be endorsed with .the following specific languages
a. This policy shall not,be;.cancelled,.:or.materally
changed without first. g;i"ving thirty (3 Q;). days:'' prior
written, notice, to the. Sonoma County Waste Management
Agency by registered mail., .,
12;.,2 Commercial/Comprehensive General :Liability,.,
Commer~ial.br comprehens~ive~general. liability insurance covering
bodily.inju~ry and property damage utilizing an oc:currence.po;lcy
form, in ~ an amount no_ Tess' than One Million Do'lla~rs. ('$'1,, OqO, 00'q')
combined sngae limit for eaYch occurrence. Said"eompr,ehensve~or
commercial :general liability insurance policy shall, ,:either be
endorsed with the -following specific: language or contain
equivalent language in the policys•
a. ~ The- Sonoma; County. Waste Management:_Agency,, its
members, officers .and. emp.,Toyees,,, ' is. named as°
additions-1•. insured for .all liability, ar!szng; 'out of
the operations-~by or on~ be'haTf o:f th'e 'named insured'
in the performance of this agreement. .~
b. The inclusion o~f ;more thane one insured sYal-l •no~t
operate to impair: the; sights o~f one insured"against
another insured,-, and the. coverage: afforded shall,
apply as though separate ,"policie's. ha'd been issued to
each insured,,-but"the inclusion of more than' one,`
' , p ase 'the.. limits o,f
insured shall not o era_9te to ncre
.~. the-. ~eompany''s ~ liability.
c. The;insurance provided. `herein is pr;mary° coverage to
. ~ the'. "Sonoma County Waste Manag;emerit "Agency with
respect to~ any insurance or self-insurance., .programs
mainfained by the Agency'. ~,
d,.: ~ Theis- `policy shal'1 not be .:cancelled or ,mater~al.'ly,
changed without ~f `rst giving thirty' (,3,0) days' ,prior
written notice to the~..5onoma County "Wastes Management
Agency. ~ '
-28-
~~ ff ~~ a to V.~' ~1.~ i ~~ wp ~ k~A:.
12.3 Automobile.. Automobile liability insurance
covering bodily injury and pr-operty damage in an amount no less
than. One Million Dollars ($1.,000,00'0) combined single limit for
each occurrence. Said insurance". 'shall nc ude coverage for
owned, hired, and non-owned vehicles.Said policy shall be
endorsed with the following language:
a. This policy shall not•be cancelled or materially
changed without first giving thirty (30)~ days' prior
written notice to the Sonoma County waste Management
Agency.
12.4 Documentation. The following documentation sha•11
be submitted to the Agency:
a. Properly executed Certificates, of Insurance clearly
evidencing all cover-age., limits.,. and•endorsements
required above.. Said Certificates shall be
submitt°ed prior to the execution of this Agreement,
provided; however, that Sonoma Compost shall submit
its Certificates of Insurance the earlier to occur
of ;• (i) the" Start Date; or (ii) thirty (30) days
from the Effective Date.
b. Signed copie of the pecified endorsements for each
policy. Said endorsement copies shall be submitted
within thirty (30) days' of execution of Agreement.
c. Upon Agency's written request., certified copies of
insurance"policies. Sa~iS pol%cy copies shall be
submitted within thirty (30-) days of Agency's
request.
12.5 Policy Oblcrations. Contractor's indemnity and
other obligations shall not be limited by the foregoing insurance
requirements.
12.6 Mater:al Breach. If Contractor, for. any reason.,
fails to ma-ntan~ insurance coverage which is required pursuant
to this Agreement, the same shall be deemed a material breach of
contract. Agency, at its sole option., may terminate this
Agreement and "obtain damages from"Contractor resulting from said
-29-
RES""~•
breach. _ Alternatively,-. Agency .may purchase. such req%red
insuta"nce cover-age:, and without :further .notice to Contractor.,
Agency :may deduct from sums d"ue to Contractor 'any pi^emum :co`sts
advanc°ed by. Agency f.or ~ such- °insrarice: These remedies shall. be
in addition to any other remedies -ava~i-lable to theAgency.
13. ~ FAITHFUL PERFORMANCE BOND.::.
.Contractor shall provide the :Agency with .a fatYiful
performance bond in the amount of $1,.000, 000• inorder- t'o ~;seeure
_. -
the Contractor's performance oblgat;ons under the Agreement.
Such bond shall, be. executed by ;a surety company- licensed to do
business in the State. of California:. The initial term, of the
faithful `per-formance bond -shall, :bey .f;or ~ one year commencing w._th
the~executon by the parties of the Agreement and shat-1 be
renewed on an annual basis until the termination . o;f_" the:
~Agre.ement.._Theeeonditon of ,the foregoing bond shall be `such
that if Contractor- shall welt and tru-Ty perform the: covenants
prom_ses,; ~und'ertak`ngs~ ,and obligat~io:n`s under 'the; -terms ;o:f` thin
Agreement,, then, the obligation of,~:sad bond. shall ~be: void;:
otherwise it shall r.ema•n in fullforce and effect. ;Agency >shall
be able t`o collect on said,bond'`for discrepaneies.or other
covered .losses discovered up to;the dine when-all Yard Debris and
Woad ,Debris de ver,ed to Contractor under the ferias of this
Agreement ha a been processed into F:n~shed Products and' all
other -obl.,gations of. Contractor under 'this Agreeaient~ have .been
satisfied.
14. ~INDEMNIFICATIQN.
.g cept all responsibility for loss
Contractor a r'ees to• ac
or damage to any. person or entity, ands to -def.end,; indemnify, hold
harmless. and,. release. .County,. Agency,,, their members,,.. officers,
agents and :employees,. from and against any and all~`actions;,
claims, damages,, liablties~.:or expensesthat may Yie asserted by_
any person.: ,or..entity, nclud'nq~ :Contractor,; arising out of .or in
connection with the performance of Contractor her-eunder, whether
or not there is concurrent negligence. on the part of the, Agency
and/or County, but excluding ~liabilty~due to the sole active.
negligence: 'or sole willful ~~mi~sconduct of ,the. Agency .and/or
County.., This nd'eimn"if Caton ob`liga`t.on .is ,`no limited in any
way by any~lmitaton on the amount or :type of damages or '
-30-
R~SO.9 3 ®.~ 9 ~ N~ C ~.
~.~.,,~ 2.~ •. ,.
~ ~+'
'~~
compensation payable to,or for Contractor or its agents under
workers' compensation acts, disability benefits acts or- other
employee benefit acts. Sn addtion,_Contractor shall be liable
to County, Agency and their meiabers for ariy loss or damage to
Agency or County property or Agency's members' property arising
from or in connection with Contractor's performance hereunder.
15. EVENTS OF DEFAULT; REMEDIES.
Upon an event of default, Agency shall have the right to
foreclose upon the performance bond~and may elect at its option
to terminate this Agreement, purchase the Operating Equipment and
operate the Facility. These remedies shall not be exclusive and
Agency shall_hav:e the right to seek pecf;ic performance of the
Agreement. For .purposes ,of this Agreement.,. an event of default
shall be deemed to have occurred upon the happening of any one or
more of the following events:
(a) Failure of Contractor to accept Wood Debris and/or
Yard Debris on more than.: (i) thirty (30') Operating -Days during
any twelve,,(12) month period; or (ii) ten (10) or more
consecutive~Operating Days; pr~,ovded, howe"ver, that any failure
of the Contractor to accept materials due toyproblems with access
roads, the operating surface, water system,. or water collection
system provided and maintained by the County', shall not be
considered cause for default.
. (b) Failure of Contractor to operate the Facility in
compliance with. the terms~~of the Agreement.
,(c) . Receipt by ,Contr.;actor of any order or notice from . .
any governmental agency that all or~any portion of the Contractor
Improvements or Operating. Equipment have been or are proposed. to
be performed- or used contrary to the, :terms- of,• any law, ordinance
or regulat-ion, 'which order or notice.. is not-complied with by
Contractor within t'en (10) days following the issuance. thereof,
provided that if such order•or notice cannot be reasonably
complied with within such ten (10) day per:iod,.~an Event of
Default shall not be deemed to have occurred unless Contractor
fails to commence compliance within such ten,(10). day period or
to diligently and in good faith. prosecute compliance thereafter,
or to complet°e such compliance within thirty (30) days following
-31-
wri~.tten .notice from the g'owernniental agency of such.,order or
notice; or to complete;. such within- :a lesser 't'ime, period -if ~ the
failure to d'o Aso would, ~,in, thereasonabae~ determrat:on •: of the
Agency, cause (:) •the `comp-let~on of .'the .Cont-ractor .Improvements
..
to be conipaeted~ Ia'ter than, the.. Start,~Date; or (ii) Contractor to
be unable to accept -Wood .Deb"ris and%o"r Yard,.~Debrs for .a per-;od
of •ten- (10 )• or more consecutive 'Operating Days . -
(d) Ces'sat'ion of the work of` the construction o;f the; -
Contractor Improvements, prior to the completion of , succh;. - •
improvements, f;or `a~. cont°inuous. ,period- of twenty - (20). days or
more,. ;provided that- -f `suchcessation is due to causes' beyond' •
Contractor's -~reasona-ble contrb;l.;••an event qf: d-efault sha11~ n_o~t be-
deemed_ to ::have ,occurred unless .such •cessation continues fo.r -_a.
period totaling .more than s-xty -,(•60) days yr such. rlesser~ period
if such cessat=ion would,, in 'the' .reasonable determination of ~~
.Agency',, cause the Contractor Improvements t'o :be comp eted lager,'
than the Start Date.
. , . ::;
• • „(e.) Failure of:. Contractor 'to ,proceed in° accordance with
the approved Facilty•desgn such tYat`there areidevations in •
the -work of construction, of the: Contra'ctor~ Improvements .without
the prior written `approval oaf Agency.; or the appearance :of -
def:ectve •workmanshp' or material's;' which said de~iatForis or-
defects are not corrected w'ithin-'ten (10);. days after receipt by' - -
Cgn'tractor o~f` written' notice. thereof , "provided that if' ..any such
deviation or d'°e~feet° is capable of correction but.` cannot ;be ~ -
reasonabl.y .'corr.ected~-within, such ten, (1,0,) day period,,: an. event, of
defaul-t shall ,not` be'• de`emed toy-have occurred unless Contractor •.
fails tv commence ;the correction within-such ten :(.10)• day' period
. __
or to- diligently -and -;in good faith prosecute the'`cprrection -
.
there•a>f'ter;, or to•- comp etc such;- correction within thirty.,- (:3~0)
days following written notice,. 'fr.om ,Agency o€~ such defect: or •
dewiat~on '.or -'tb complete such .correction :within a; aesser time
:period- if the' failure to d'o, so wou~ld,~.• in. 'the 'reasonable
determination.of.Agency~;_,cause~the~Contractor Improvements to .be
-completed :°`later -than the: Sta=t.• Date:.. -
- ~ _ -
(.f );. Any failure. •on Contractor's :part. to comply wth• any
other. covenant.or`.agreement cont'ained.n.=.ths Agreement~~(which -
does not `eonst-tote ~a ~ breach ;or • default that . co~u!ld become an .
event of d'efa~ult under any other subparagraph of, th~s° Section.). ,
.. -;3 2 - . -
. nil ?f
which failure remains uncured~•for ten (10) days foliowing written
notice thereof by Agency,• provided that if any such failure to
comply or breach is capa°b le of cure but cannot reasonably be
cured within such ten (10) day~perod, an event, of default shall
not be deemed tc haye occurred unless Contractor fails to
commence the cure of such failure or breach within such ten (10)
day period or to diYigently and in good faith prosecute the cure
thereafter,. or to complete such cure within'thrty (30) days
following written i-otice from Agency of such•failure or breach..
(g) (i) Contra•ctor shall voluntarily commence any case,
proceeding or other action (A) under the Federal Bankruptcy Code,
as amended from time to time, or~under any other existing or •
future law of any jurisdiction, domestic or foreign, relating to
bankruptcy, insolvency,•reorganization or relief of debtors,
seeking to have an order for relief entered with.respect to it,
seeking to adjudicate it a bankrupt or~insolvent or seeking
reorganization, arrangement, adjustment; winding-.up, liquidation,
dissolution, composition .or other relief .with respect to it or
its debts, or (B) seeking appointment of `a `rece- er,-.custodian or
other similar official for it or for all or'any substantial part
of its assets, or Contr.a'ctor•shall make a general assignment for
the benefit of its creditor ;`or (ii) there shall be commenced
against Contractor any involuntary case,•proceeding or other
action of a nature referred to in clause (i.) of•this subparagraph
(g) which (A) results; :in the entry: of an order for ~ relief of any
such adjudication .or appointment or (`B) remains unstayed and
undismssed for a period of sixty (60~) days; or (iii) there shall
be commenced against Contractor any case, proceeding or other
action seeking issuance•.of a warrant of attachment, execution,
distraint or similar process against all.~or any substantial part
of its assets, which re"suits` in the entry of an order for any
such relief which shall-not have been vacated, .discharged or
stayed~or•bonded pending appeal within thirty (30) days from the
entry thereof; or ( iwj Contractor sfiall take any action in
furtherance of, or indicating its consent to approval of, or
acquescence'in, any of-the acts set forth in clause (i), (ii) or
(iii) of this subparagraph ,(g); or'(v) Contractor shall generally
not, or shall be unable to, or shall admit 'in writing its
inability to; pay its debts as they become due; or (vi) any
termination or voluntary suspension of the transaction of
business of Contractor, or any attachment, execution or other
• -33-
~f ~r~ •
t,J ~ . .w-
.....~ u .: Y.
.~.~s®. 9 3 - ~' 9 ~ C ~
judic=i~al seizure: of •aal or any substantial, portio;ri of
Contr~actor'~s as ets 'which ~ attachment; ::execution.. or sezbur,e .is not
discharged .within thirty .(3 0') days . • -_
(h) Any substaritial change "shall ,:occur rn the management
or. control of. Contractor-wthout~the_pror written appro.va'1 of -
Agency. :. ,:
. ,,. .. , •
O Any representation :or disclosure made to'the.Ageney
by ..Contractor proves to. be', false or ;misaeadng in any `material
respect on thee. date as of which 'made, whether or- not that
representation or disclosure appears, in this Agreement.
16 .. .EXPIRATION OF AGREEMENT.'
. ,.
.. ~, .
16.1 _', Expiration. At the exgirat~ion _ or earlier ._ ~--~ ~ .
termination of.the~term;~'Contractor shall surrender t`o.Agency
:the po ession of =the Facil-ity. Contractor shall leave • the: ~ "
surrendered Facility and .any other'property in good-•eondition.'and ,
repair. , ,At the ~exp'rat-ion. or sooner• termination. of the term,.
Agency may: at ,Agency's election, demand. the removal; from the
Facility of ,all or any Contractor Improvements ors Operatng,'
Equipment ~as specif°i`ed~ in the notice `provided' f'or below A
demand to take :effect at. thee.. normal expiration of, the term; shai_1>
be 'ef'fected by notice gwen_ a:t ,any' t~me• with°n three .(`3 )~ months ., .
before theexpiration date. A, °d'emand to 'take .e,ffect on any other
. -
termnaton. of the ;Agreement shall .be; effected by notice: given. inc.
or concur-rentl;y with notice of ~such• termnaton,.:or within; s-ixty .•
,:
(60,) :days after,. such termZnaton.,. Contractor shall comply, with
the notice before. the expiration date f:or normal ter~nat:on,,~;and
within. thirty (~~30), days .after the no ice for other ••te_rminatons.
The duty imposed by this'. provision includes, without: limitation.;'
the duty, _f so. requested, to leave the Facility safe and free:
from: debris and: hazards. - -All property 'that'Contractor, is not` .
required to surrender but: that 'Coritractor.~, does' abandon shall; at •
Agency's electon,~•become Agency's property 'at termin_ation,.. If .
Contractor failsr to surrerid'e•r•.the Fac-ility -at the. exp-ration or
sooner- ,:te'rm nation of • thus Agreement,, .Contractor shall defend~• and
°indemnfy Agency and County from all liability ,and expense
resulting. ;from the :delay or failure to; • urrender,, including, .
without li"mtatiori; :c•1"aims :,made by any succeeding contractor .~
based: on ~or`,resul~t•ng from Contractor's failure to ~ surrender,;
. -34- ,
16.2 First Rictht of Refusal "to Purchase Operatinct
Equipment. Upon. the expiration, or earlier termination of this
Agreement, Agency shall have the first right of refusal to
purchase the"Operating Equipment in the event Contractor offers
said equipment for sale-. Terms of such"a sale would be in"
accordance with the :purchase formula attached h"ereto as Exhibit
~~ ~~ "
17. ARBITRATION.
Arbitration ma~y'be required for matters for. which
arbitration is mentioned in this Agreement or where this Section
"17 is expressly referred to in this Agreement... For other
matters, the party served with notice of arbitration may reject •
the"notice by failing "to respond to it., by giving notice of
rejection, or by taking. action inconsistent with arbitration.
Arbitration is initiated and required. by giving notice specifying
the matter to be arbitrated. If action is already pending on any
matter concerning ~wh"ch"the notice is given, the notice is
ineffective unless gwen~before the expiration of ten (10)' days.
after service of process on the person giving the notice.
Arbitration shall be in' conformity with and subject to applicable
rules and procedures of the American Arbtranon Association. If
the American Arbitration Association is not then in existence or
for any reason fails or refuses to act,. the arbitration shall be
in conformity with and subject to provisions of the California
Code of-Civil Procedure relating to arbitration as they stand
amended at "the time of 'the notice." The arbitrators shall be
bound by this Agreement. Pleadings.and~any act"ion pending on the
same matter shall.,, if the :arbitration is required or consented
to, be deemed amended to "limit the issues to."those°contemplated
bg the rules,prescr•bed above. Each party shall pay half the
cost o.f arbitration incl'uding`arbitrators"' fees... Attorneys'' fees
shall be awarded as provided in Section 18°of -this Agreement. To
the extent permitted by the rules of the American Arbitration
Association or, if•applcable", the California Code of Civil
Procedure, in effect at the time of the notice,-the: parties have
hereby established~ther own ..rules for selecting arbitrators.
There shall. be three arbitrators appointed as follows:
(i) Within, thirty (30) days after notice requiring•
arbitration, each party shall appoint one arbitrator and give
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notice o'f the appointment to the other parties..
. ,. •
(ii), .The two arbitrators, hall choose a third arbitraaor
within. ten ('loj days; of:ter .appointment of .the.second. • -
(iii) If• either paray 'f`ails:: to- appoint an ar-biteator, or
if the two arbitrators fail to choose a :thrd.;~th'e ap.poin»tment
shall. be made :by the then presiding, Judge. of the Superior Court
for Sonoma~Cb.unty, acting in ;his or her individual ,and _ -
_ non-of f is-ial capacity, on ttie application of either ,party aril on
ten (T 0) days' snot°ce to ...the other party,; • provided that either
party` may, ,.' by .notice given bef'ore• coaimencement.:o'f the; arbitration
hearing,, consent to arbitration., by the arbitrator appointed 'by _..
._
the other party. In that ,event:;.. no further appointments of
arbitrators shawl be. made.: and any .other arbitr'.a"tors ;previously- ,; ~~
appo-i~rited s~haTY, be~ dismissed. ••. ,' ~ - ~' ~ ~~ ~ ~ ~ ~: '
18 . ATT,ORN°EY;S' FEES .
_ - - _ ,.
.If either party,-brings: any c aim,: suit, °actioii. or
proceeding .(including arbitrat'on,)° ~agairi`st the•. other to enforce,
protect, or' .establ'sh any-;right or "remedy ~aris.ing' out;`-~of" this
. Agreement,, th`e prevail%ng,party sha11~. be ,entitled' to recover
reasonable at€orneys'' fees.
19 ., GENERAL PROUhSIONS_.
• ~
1,9.1 .Ass.Qnment:. The ~expe.rence and'.. expertise of ••
Contr-.actor are ;material , considerat;ions for this Agreement,.
Contractor- shall not assignor,transfer, wYiether voluntarily, ~ '
involuntarily; ,or by operation of~'law, its nterest'n this
Agreement ' o"r a_iy • part.: thereof . w~ttiout "the'• prior ,written approval
of Agency-. No such,. ass=gruaent or transfer .f;or which Agency's
prior written. consent :is, xequred shall be va-aid or- brding
w'ithqut said. prior "written approval, and° then on"ly upon .the
condition as such, .assignee or~other successor in interest sha l
agree. in wsitng td be'~-bound ~by each, and: all of the covenants;
coriditors~ and .res.trct°ions of 'the :Agreement.. An attempted:
• ~ 'assignment' or treans'fer-- .not in compl.,a~nce. with the • provs~ioris of
this S'ect~on 19,.1 shall be, grounds fbr- .Agency's terinnat°on of:, '
the Agreement.. Consent 'to 'any assignment or- transfer shaT not
be deemed a waiver, 9f th%s requirement as• t'o' any subsequent
n.
~! ;_
assignment or transfer. As used in this Section, the term
"assignment" shall include a "more than 25% change in ownership
of Contractor.!' A,"more than 2'S% change in ownership of
Contractor" shall mean, the transfer of the right to share in
more than'25% of the profits, of the genera 1. partnership or
corporation.
19.2 Amendments. Only the.Members of the Agency, by a
majority vote, 'may authorize extra. 9r.chahg.ed work or amend this
Agreement. The parties expressly recognize-;that Agency personnel
ar,e without authorization to order extra or~changed work or waive
contract requirement`s... Failure of'Contractor to secure Agency
authorization for extra or changed work shall constitute a waiver
of any~and all rght_to adjustment in the compensation due to
such unauthorized wor-k :and thereafter Contractor shall be
entitled to no compensation whatsoever for the performance of
such work. Contractor further expressly waives any .and all right
or remedy.by way of. restitution and. quantum meruit for any and
all extra work performed without the express and prior written
authorization of the .Agency.
19.3 Nondiscrimination. Contractor shall comply with.
all applicable federal., state and local. laws,, rules and
regulations in regard to nondiscrimination in employment because:
of race, color, ancestry, national origin, rehigion, sex, marital
status, age, medical condition, pregnancy, disability, or other
prohibited basis. ~A1:1 nondiscrimination rules or regulations
required by law to be included in this Agreement are incorporated
by this reference.,
19.4 No Waiver of Breach. The waiver by Agency of any
breach o:f any term or ,promise contained in thus Agreement shall
no.t be deemed. to be a waiver of such term or~provision or any
subsequent breach of the ame-or-any other term, or promise'.
contained in this Agreement.
19.'5 Construction. To the fullest extent allowed by
law,, the pr.gvisions of ths~.~Agreement shall be construed and
given effect in~a manner that avoids any violation of statute,
ordinance;., regulation; or law. The parties covenant and agree
that in the event that any provision of this Agreement is held by
a court of~competent jurisdiction to be invalid, void, or
^-37-
r~ ti ro ~; . ~ ~. .. ~~..~ ~~
.. -
un°enforceable,.'the, Tema.:index of the provisions hereof shat-l
remain. in full force -and .effect and' .shall in no way be af,f;ected;~
impaired, or~nvaldated thereby.. ~ ~ - ~ '
19.. 6~ No °Thrd Party . Bene~f is-cries . Nothing conta-fined in
this Ag-reement shal'1 bey construed, to,'create and the parties' do
. not intend .to- .create any. r,~ights' in- thr-d parties,,.. ,
.~ 19..7 AppTicabl~e Law and Forum ThisAgreement shall be ~ -
- ~ construed ~ and interpreted accord~ng to Caaifornia -law and.., any
action to~~~enforce 'the t:erais~ o:f this :Agreement or -for the `breach
thereof ~ stiall.~ be :brought and. °tred- in the County b'f Sonoma:: ,
j `1-9 ~. 8 ~ Captions..' The captions„ in thus .Agr-,eement. afire
so ely for convenience of reference. They are not ,a part ;of this
Agreement, rand sha1T have no effect on .its construction or
interpretation,.
•19.9' ~Mer-aer;." This. -writing is intended both ~as. the final
exp 'ess~on :o,f~ the agreement:' between '`the ;parties ~iie~reto with
~~ respect to 'the. included terms: and :a`s a. comp etc and exclusive
statement o;f. the: terms oaf the Agreement, pursuant to Code of
Civil Procedure Section `18`56. No modification of. thus Agreement.
shal`1 ;be effective 'unles's and until such modif=icato,n is- r
evidenced by a Writing~signed~by`both parties.
19.10 Time: of Essence': Tine is a>nd~ shall 'be of -the- •
essence 'of' this Agreement and ~ emery provision hereof .
IN WITNESS_~WHER~EOF, this. Agreement has -be"en executed by~ the
duly authorized representatives of ali parties. •
AGENCY: ~' SQNOMA.CO.UNTY WASTE ~~° ~ -
MANAGEMENT AGENCY ,
. \
- ~ -38= ~ ~ ,
xx~ i~ ., -
< ., .
__ .. •' i ~_ i1
3n ~?!~,1
By:
.Chairman, Sonoma County
Waste Management .Agency
COUNTY: COUNTY OF SONOMA
By:
Chairman,
Board of Supervisors
CONTRACTOR: SONOMA COMPOST.. COMPANY,
a .California general partnership
By:
EMPIRE WASTE MANAGEMENT,
a California corporation
By:
APPROVED AS TO SUBSTANCE BY
AND CERTIFICATES OF INSURANCE
ON FILE WITH:
By:
Director of .Agency
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~n ~;.~ 3:~ R~~O.9 3 - ~~-.,g ,. ~ ~ S
. ~
EXHIBIT A
ORGANIC MATER.IAL,.PROCESSING, COMPOSTING & MARKETING SERVICES
SONOMA COUNTY WASTE MANAGEMENT AGENCY
WnnD DEBRIS
Average Tons 10 25 50 75 100 125 175 200
Per Day
Wood Waste Cost $19.98 $13.62 $ 8.50 $ 7.96 $ 7.45 $ 7.86 $ 6.88 $ 6.23 '~
Per Ton
Less Guaranteed $12..00 $12.00 $12.00 $12.00 $12..00 $12.00 SI2.00 $12.00
Revenue
Net Cost Per $ 7.98 $ 1.62 <$3,50> <$4.04> <$4.55> <$4.14> <$5.12> <$5.%:^_~ ':
Ton
vARn i1F.RRTS
Average Tons Per 75 100 125 150 175 200
Day
Yard Waste-Cost
Per Ton
$31.72.
$29.21
527.28
$.26.37.
$24.52
$22.52
Less Guaranteed
Revenue*
$ 6..00
$ 5.00
$ 3.50
$ 3.00
$ 3.00
$ 3.00
Net Cost Per Ton
$25.72
$24.21
$23.78
52.3.37
$21:52
$19.52
wnnn T1F'RRT'.4-MarkPt-incT t~ Nan-Fuel Markets
Average Tons 10 25 50 75 100 125 175 200
Per 'Day
Wood Waste Cost $13.98 $13.62 $ 8.50- $ 7.96 $ 7.45 $ 7.86 $ 6.88 $ 6.23
Per Ton
Less Guaranteed $ 6.00 $ 6.00 $ 6.00 $. 6.00 $ 5.00 $ 3.50 $ 3.00 $ 3.00 '
Revenue `
Net Cost Per $, 7.98 $ 7..62 $ 2.50 $ 1.96 $ 2.45 S 4.36 $ 3.88 $ 3.23
Ton
*Yard Debris Revenue is projected assuming 50~ shrinkage, except @
75 TPD, which is projected at 40$ shrinkage.
All revenue in excess of guaranteed revenue will be split 50/50 between the Agency
and the Contractor.
These market prices are based on minimum prices of $27.00 for wood and $10.00 for
yard debris. ,
t? .~?
.,.
Exhibit ( )
MARKETING PLAN
The Marketing Plan submitted by the Contractor annually for Agency approval shall
.include the following elements:
1. Market Analysis
a. The current California compost and ground wood products market;
b. Future projections regarding the California, compost and. ground wood
product market;
c. An overview of .local market conditions. including a eornpetitive market
analysis indicating existing product availability and pricing structure.
d. Seasonal sales cycles;
e. A discussion of issues regarding diversion credits for finished yard and
wood waste products.
2. Mazket Development
a. Identification of target. markets including: .local agricultural, horticultural,
commercial landscapers, soil dealers, retailer-s, home gardeners, and public
agencies.
b. How the Contractor intends to reach 'identified markets;
c. The estimated volume of finished product by catagory that the Contractor
anticipates selling to targeted markets;
d: An overview of the bulk and bagged compost and mulch products markets;
e. Special marketing projects to be 'initiated;
f. Steps the Contractor will #ake to insure that- existing local .businesses (soil
dealers) will be included in the marketing loop:
3. The Product Lines
a. A description~of the .marketable products that will be produced with yard
°and' wood waste ,broken out seperately;
b. A breakdown of products to be sold. in bulk or by the bag;
_.:
c. A description. of amendments or. additives the Contractor anticipates ~~
using to add value. to the base products;
..,1 -,
d. Estimated volumes of each, prgduct~ broken out by estimated annual'
tonnage or estimated percentage. of total volume. of finished. ;product; ~ ~-
,... , .
e. A 'brief ,discussion .about how' :the products produced will compete with '~
products already in the market; _.
f. Details showing how the Contractor plans to insure product quality;
g: A discussion regarding trade names, logos and desired market"image:
4.~Developing Identified Target Markets ~- ~ ~,
a. A. description of market: input' necllarusms;
b: How the composting site will `be .used-as :a sales and..p:ublic'education fool° .
'.e. Employee training; ~ ~ - .
d. Pricing. policies;
e. Proposed, ,costs for transporting finished product to ;identified inarke`ts~
£ Advertising; ~ _
g Public relations including; planned public. events, lectures;. signs; ,media
relations, cooperation yvfh Agency members; .
h. Fub;lc events;
I. Descnption of the Contractors anticipated ,direct saes efforts..
5. Public Educatiior ~ ~ - -
a. How the Contractor will.'utilize~ the: site as a public education ,:and sales': tool;
b. ,How tle, project will :interface :with local ,jurisdiction's efforts ~to promote ~ '
„backyard. composting education; ~ .
c., Step, the Contractor will take ,to include ~parcipants of ~curbsde~~eollection
:programs` in the project; _
d. How the ~Contracfior intends. ao demonstrate the urban/rual~, connection in
. - , ~ ., -
compost generation aril ~ utilization.