HomeMy WebLinkAboutResolution 93-79 04/06/19933
Resolution No. 93-79 N.C.S.
of the City of Petaluma, California
RESOLUTION AUTHORIZING MEMBER VOTE ON COMPOSTING
AGREEMENT BETWEEN THE SONOMA COUNTY WASTE MANAGEMENT
AGENCY, THE COUNTY OF SONOMA, AND THE JOINT VENTURE GROUP OF
SONOMA 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 Cx) 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) 0UtK"x0ftK 0 meeting ---.-
on the ..6th•................ day of.......AWA.......................................... 19.93. by the
following vote: -- ------- ••-•---•----
tyt ney
AYES: Barlas, Read, Vice Mayor Sobel, Mayor Hilligoss
NOES: Nelson, Shea, Hamilton
ABSENT: None
ATTEST: _ _ — ............
City Clerk
Council File ...........
CA 10-85 Res. N.A..3-79
N.C.S.
.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 OF SONOMA
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 hereinafter collectively referred 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 .(the "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 ("RVQP") dated; June 1992 for the purpose of selecting
and 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 De'bris composting and Wood]Debrisdiversion handling ' and
processing services-; and
WHEREAS, Contractor repte , sents that it
. directly, hai's the
necessary. experience- and I e'kpertise to receive ifiuLnicipal'. Yard
Debris
i s and Wood Debris,, 1 process.' . stic-
h materials into marketabl*e,.
products,' and mazke't''the'Products; and
WHEREAS, Contractor is: willing to operate and maintain a Yard
�compos� ing, -and Wood Debris iversion processing facility
Debris t diversion
to recei ' ve, handle,,,,' and process A4eancyY'ard Debris and �q6od
Debris' for a -fee and market the praducts, therefrom; and
WHEREAS-', Agency and Contractor des ire'to fulfill part of
Agency's' obligation to divert recyclable- materials f_roM! landfill
disposal by &-onverting' Agdncy*1'.s'Yard 'Ddbris, rand W66d"Pebris into
c, valuable, ommo'diti6s thus enhanCihgL the, 'environment and.
preserving ournatural,respurces; an, d
WHEREAS, an' initial study mitigated -,--negative de-claration
have been prepared f or the _'program :in accordance with. the�
California Environmental Quality. Act;` and
WHEREAS, the County adopted the mitigated 'negative declArat-idn
on Mardh,.2,4,, 1992 and, a Notice.,of Determination was filed; and
WHEREAS,, Agency and Contractor desire to enter into: -this
Agreement whereby Contractor shall Perform Yard -:Debris dbmp 6sting
,and Wood Debris diversion'.processing services related to-.A'gendy:1s
Y'ard"Debris Composting and 'Wood Debris Diversion Program.
NOW, THEREFORE, Agency, County and Contractor do hereby
as follows:
A G A t, E *M E N, - T
1. DEFINITIONS
As, used in --,this Agreement, the tdlloiwing t6rm*.-4 's'hAl'l have
the-meani-n h _g set forth below. Any term may be used in the plural
or past,tense.,
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RESQ.
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 Landfill". Central Landfill shall mean the -
landfill located on 500 Mecham Road,-west.of Cotati, which is
owned and operated by the County.
1.5 "Collector". Collector. shall mean the contractor or
contractors who perform collection services for Yard Debris and
Wood Debris pursuant to agreements with the Agency's -members.
1:6 "Compost"'. Compost shall mean stable humus -like
product of the composting•process that results from having the
organic components ' of the Yard Debris metabolized to relatively
stable intermediates (i..e., the material can be stored .without
producing a nuisance or can be applied to the soil and neither
inhibit vegetative development).
1.7 "Composting1O'. Composting shall mean the controlled
biological decomposition of organic solid waste.
1.8 "Contaminants". Contaminants shall mean any
material not normally 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 plastic). 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 the term'of this Agreement, to the Effective -Date
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anniversary in, the next calendar year.
1.10.. "Contractor.". Contractor shall mean the -joint
venture. group comprised of. Sonoma Compost and EWM.
1..1I "Co ntractor -Improvements:'. Contractor .Improveiiients
shall mean,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
politicaI- subdivision of the State of California*.-. ,
1.13 "County Improvements", County Improvements.•shall.
mean the,.improvements made in. -connection with. the Pacility,by
County which are more specifically despribed.in Exhibit-" "
.attachedhereto and:incorporated.:herein.
1.14 "CPI". CPI shall mean the .Consumer_Price Index for
All .Urh,an-.Consumers for San 'Francisco -Oakland .based on the yea-r
,.
1982-.19Z4 = 100 as ,-published.-•by'the U.S'. Department 'of -','Labor I.s
Bureau .Of -Labor Statistics.
1.15' "Effective :Date":. Ef"fective Date ,shall -mean.- the
date first written above.
1-. 16 MEWM". EWM shall mean - Empire Waste ,Management, a,
division of Waste Management.Collection.:Recycling,Incorpor-a,ted, a
California corporation.
1.•17 `.`Facility'.. Facility shall mean the, Yard .Debris
composting*and Wood. Debris ' diversion processing facility' located
at the Central Landfill asx••more particularly depicted on. Exhibit
attached.;hereto and incorporated,herein.
1-.18,•"Finished Products" F nished.'Products',•shall mean.
wood •chips;. mulch.,: screened compost, and ;other usable 'arid/or
marketable products produced ifr.ot',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 "hazardous" or "toxic"
under any federal, state,. local or administrative agency
ordinance or. law or any material that because of its quantity,
concentration, 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 regulation, order, -,rule or requirement :adopted thereunder, as
well as, any.formaldehyde, urea, polychlorinated biphenyl,
petroleum, petroleum product or by-product, crude oil, natural
gas, natural gas liquids, .liquefied natural gas or synthetic gas
usable for fuel or mixture thereof, radon, asbestos, and
"source," "spec !
ial nuclear" and 'by-product" material as defined
in the Atomic'.Energy Act of 1985, 42 U.S.C. section 3011 et sea.
1.23 "Marketing Plan". Marketing Plan shall mean the
marketing plan submitted by Contractor and approved by Agency in
accordance with Article 8 below.
1.24 "Mixed�Organic Materials". Mixed Organic Materials
shall mean a mixture of Wood Debris and Yard Debris.
1.25 ".Other Haulers". Other Haulers 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 Days shall mean all
days of the year except New Years Day, Easter Sunday,.,
Independence Day, Labor Day.1 Thanksgiving and Christmas Day.
1.27 "Operating Equipment". Operating Equipment shall
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mean the equipment- supplied b
. y the, Contractor and located at the
Facility which'is more specifically described in EkhIbit
attached hereto -and Incorporated herein.-
1,28 e.t
."Program. .,Program shall mean the Agency's Yard
Debris Composting and Wood Debris Diversion program for diverting
material from the solid waste stream by receiving and processing
Yard, Debris and Wood Debris -into Finished Prodddts.*
L. Z9 "Sonoma Compost", Sonoma,Compo,st shall. mean -Sonoma.
Comp,ost Company, a California general partnership;. The parties,
hereby ' understandi* that Sonoma Compost- may incorporate during
uring the
term of this Agreement.
1. 10 -.":Start bate,,,.. - Start Date shall. mean the dAte
designated by Contractor 'as the- date, by' which Contractor shall be,
prepared,' to receive. and process Yard "Debris and, Wood" :Debris;;
provided., however,. that in'no event- shall the Start Date -.'be, Iatet,
than'sixty- (60) ;days after the Effective- Date Contractor, Shall
notify Agency In writing of the designated Start Data at least
ten (10) workin'g, "days in advance of the Start ba'te.,
1,11 IITPDII. TPD, sha*ll 'mean tons; "per day:.,
1. 3 2 "Win " drdw!'. Windrow shall mean an elongated pile of
Comp6sting material.,
1.33 "Wood :Debris". Wood �Debris. shall'mean dimensional
lumber, pallets, shipping dunnage, and, similar discarded wood
materials.'
1.34 "Wood Debris Ptoducts'l- Wood. Debris Products. shall
mean product ' s made from the woody,fracti. ' s, onof. Yard Debris. ,or
Wood Debris which. -has been mechanically reduced in size and
screened to.-specifted sizieis and used -fdr war ious'. .finished
.' bedding,mlilch, weed and: soil. abatement', decorative uses or as
fuel .to .generate, electricity.
1.3,5 "Yard Debir-i-s"'... ,Yard Debris,, shall •mean green
debris including grass dlippings; leaves, prunIngp, weeds,
branches,,* btugh, �tree :portions not exceeding f iv , e , (5) feet irt
length or two (2). inches in diameter- and 6their forms of organ1c,
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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 mechanically processed and
biologically decomposed to Compost or a similar soil amendment.
2. SCOPE OF SERVICES.
2.1 Receivincr, Weiahina and`Handlina.
2.1.1 Account'ina for'Materials Delivered. All
materials delivered by Collectors and Other Haulers for
processing by Contractor shall be accounted*for.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 Landfill.,
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 Contra ctorlizeceiving area. The load volumes will be
converted to tons using. mutually 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 Debris 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 and process such material is:
(i) not caused by either.the acts or omissions of Contractor, its
employees or 'agents, or (Ai) caused by events beyond Contractor's
reasonable control.
2.1..3 Determination of A.ccevtabili,ty of Materials.
In the event Contractor believes delivered material is
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unacceptable for processing due to the presence of Contaminants,
Contr.act.or shall first attempt to reach agreement with the :
individual Collector or Other' Hauler who, delivered such materials
to the Facility. Should Contractor bd,unable to reach agreement.,
with the particular Collector or Other Hauler responsible for
delivering the Contaminants, Contractor shall. set the disputed
materials in an a rea:.adjacerit, to the. processing area so. that the
Agency-Represeritat`.ive can inspect the materials. The Agency
Representative shall have forty-eight (4.8) hours to In :such
materials ,from the time, the, Agency Representative receivedi4iot°ce
of the disputed materials. Agency Representative' shall.
determine, - .in' ..his, or Iher sole discretion, the fractions `of Wood
Debris,. Yard -'Debris. and Contaminants Once' the Agency
Representative has made such a written d'eterniinatiori, Contractor
shall be responsible for the appropriate disposition of the,
delivered 'mat'erial din a timely manner. Contractor reserves. the
right to reject 'Contaminated loads from entry, onto: the processing'
area .of the Facility.,
..2.2 Minimum Process�ina.' * •Contractor-. shall provide the .
necessary labor and' equipment for°the processing of all'Yard
Debris and. Wood '.D,ebiis accepted ' at' the Central .Mandf:i1LI
including-., without, limitation", Yard -.Debris and Wood.' Debris. .
accepted' .up to and on they 'last- day of : the- term of. this Agreement,
into'Fanished Products in accordance'.wth this Agreement._
2.3„ Disposal of 'Contaiinants. Contractor.; at
Contractor's sole- .cost and,e.xpense,, shall properly dispose of all
Contaminants which remain after processing -of, Yard. -Debris and
Wood :-Debris.• pr,;ovided, .however; that Contractor `shall :be ''all -owed
to dispose `of - Contaminants at' the Central Landf ill at ",no 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 calendar°�month:. Where Contaminants', are
disposed of..at.a disposal site -other than the Central Landfill;
Contractor` shall:.di•spose of such materials at its. own. cost, and
shall insure that the hauling operation. for'Contaminahts.is at
all times performed in compliarice with -'all._ federal, - stata.and
local permt.requiremerits;.laws and regulations.
2..4 Time of"Aberation.., Contractor shall accept delivery
of Yard .Debris and-Wo'od Debris between the .hours of 7:00 a.m. and
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4:00 p.m., seven days a week, except for the holidays of, New
Years Day,' Easter Sunday,. Independence Day, Labor Day,
Thanksgiving Day and Christmas Day.
2.5 Emplovee Traininct. 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 employees, 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. -.Compliance -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 and applicable 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 understood 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 construction of the.Facility and
shall maintain such permit for the duration of this Agreement.
3. TERM OF AGREEMENT.
3..1 Initial Term._ The term of'this Agreement shall be
for an initial term of five (5) years commencing on the Effective
Date.
3.2 Option to Extend the Term. 'The, -parties shall have
the option to extend the term of this Agreement for an additional
two (2) years on all 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 notice of its desire to'ektend
no later, than one hundred eighty,. (18'0)- days prior to the, 'end of
i term of, the'Al the "Ini - t at 1 t 6' re,6mdnt6- The other party shall respond
such days to ch notice within sixty (60). y " of receipt.
4. COMPENSATION FOR SERVICES.,
.4. m -1, Co'bensation. Contractor
ntractor shall be, -paid for its
services in, accordance With, thd:�payment matrix. which is attached
hereto as Exhi , bit (hereinafter' r.ef erred to as. the "Payment
Matrix") The applicable rate to, us.fe� from thel''Paymerit- , Matrix.to
deter -mine the amount of comiperisation depends upon the: amountofmaterials received at the Facility, and` the type of n'ot,ic,e,. gi iven
by the 'Agency, if. any, to,. -'Contractor :regarding, the'ek-pect,ed,
vol * ume, of. Yard, 'Debris' tobe received and processed .'by. the.
Facility:
4.141 Comloens'at--dn.f-ar,..Yard Debris. i4hete Agency
has', -not notified in 'WrIting as to Agency's;' desire to
trigger a" particular price rate,. fors Y'rd Debris -has-4d- on a-n
Yard'
expected volUme.*of Yard Debris;, Agency shall pay 'the rate
identified' for -minimum tonnage Of. Yard Debris 'times' the actual.,
volume of Yard'Debris delive-red.-to, the Facility. For. -example,'
using :the current Payment Matrix rates, if the. Facility receives
10D tons of Yard Debris, Agenc"y y will be required to pa' $2,"572-00 .
for Yard Debris ($25.72'X iOO tons-), Agency may.*take advantage,,'
of the lower rates,. - in the Payment Matrix by notifying. -Contract e or
that . Agiemcy' expects that, the Facility w i 1 1 teceive� 'more than 75 -
tons, of Yard, .Debris
Debt . is.. By-o, . s'notifying Contractor,,Agency will be
required ,to pay for the m'inimum'!amount of Yard'.D'bris ant-icipat6d
A
in the notwithstandift 't -ha-t the Facility. may -not � receive
4-
the minimum expected volume during Such, petio'd: In Additi'on,
the parties hereby ackndwledge that Contractor will 11 be r I equired
to invest, in .certdin capital'equipment in the event that the
Agency gives notice to Contractor that it expects that the
Facility, will receive more than" 75 , TPD -of Yard Debris,.
Therefore', upon such notif ica:tl.bh ty, Agency, Conttactdr ;4111' be
required to complete Facil-ity improvements to increase, peak
throughput. capacityAgency
t o, 4;00 TPD within n-inety, (90) days and
will be required to comp ensate, Contractor for -a minimum. 75 TPD-
_
per day of Yard Debris, tal lbwing,'not'i-f icat ion land demonstration -
to Agency that necessary -improvements have been, domplet-ed.'' OnceL
the necessary improvements have been made, the compensation' for
the remainder of the term of this Agreement shall be based on a
volume of Yard Debris in excess of 75 TPD, at.a minimum,
regardless of the actual volume of Yard Debris received at the
Facility. For example; using the current Payment .Matrix rates,
if Agency notifies. Contractor that it expects the Facility to
receive 125 tons of Yard. Debris, and the actual amount of Yard
Debris received is 130 tons, Agency: would be required to pay
$3,091.40 for Yard Debris ($23.78 X 130 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,$1,929.0O ($25.72 X 75
tons) .
4'..1:.2 Compensation for.Wood Debris. Compensation
for Wood Debris depends.upon the use of the Wood Debris Products
and the amount processed. Agency shall compensate Contractor for
Wood Debris on an actual volume basis timesthe 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. $162.50.'($2.50 X 65 tons).
4.1.3 Notice Reauirements. Any notices given by
Agency pursuant to Section 4.1.1 shall*be given to Contractor at
least forty-eight (48) 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 Adiustments in Compensation.
4;.2.1 Annual Adjustments. 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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adjustments. in rates exceed 'three percent (A). in any twelve (12)
month period: In the event'. that- the partie's cannot: agree on the,
amount of adjustment under. this Section 4,.2.1, '.,the dispute shall
be resolved in accordance! with Section 17 of this Ngteement.
4..2..2 Unforeseen* Events: ;Concer-n-incr''Envlr'6hmeht-al,
Recrulat ions. In the -event that requirements i mgo,sed on th`e
Facility by state- or lodal--agencies, that are the,. result of,- n I ew or
revised regulations proposed and enacted.afte'r the Effectiver,bate
.of, this Agreemment,"'caude Contractor to have 'to. expend -:more than
Ten Thousand, D(61-11ars ($1.0, 0'0,0),.,,,.in-. the, -aggregate In any' tw6lve-
(12).morith period,, the dX66ss over Ten -Thousand D.ollars.($-,1,Q,000),
shall -be considered pass through: posts to the Agency. Contractor
shall have the burden. of proving to the Agency,
m , the,'Amount f-
.expense incurred, as a result of such new -or revisea'reguilatio-n.
Under no circumstances -shall Contractor have to'expend more than
three .percent (3%.) of its gross revenues to fulfill It's
obligat�io'ns Under* this Section; 4.2.2,;
4i.2.3,-- Chanaes in' Market Prices. The parties
. -s
pa e
estimate minimum market prices of $27:00- pertonfor.-Wbod Debtis
and $10.00 per ton of Yard -Debris FOB Central Landfill Facility.
In the event that actual Average market pr-ices:. are le's's. than+'the
above estimates for a period 'of At"least six (6), 'months, as
documented by. invoices- or Other e'Viddnce acceptable, to the
Agency,, ,Contractor. and. Agency.shall renegotiate Guaranteed
Revenue for the, respective material.,
-4,.2.4, Revenue.. from Finished Products. Finished.
Product. Revenue. shall be allocated between Wbdd Debris znd''Yar'd
Debris, materials in accordance, with the approved,�Ma-r-kdtdng :Plan.
All revenue generated will ,fi-r,st be.al'l-ocated to: Guaranteed
Revenue,,, As illustratedin, the Payment Matrix,. Contract-ot And
Agency shall,equally ,share any revenue' gen'erated--i'n''excess of
Guaranteed.Revenue.
4.3 Determlhation.'ot C6mDensation- Wood -Debris and Yard
.Debris deliv_ek6d for' 'process ing 'will be measured by, the. County' at
th'e.-Central Landfill g6td.i Material .delivered . by Cdl . lectors -or
Other Haulers identified, as materia-f gathered in, a residential
yard. debris, collection program will be ve-l'ghed and zccounted.,for'
as Yard Debris, with 'appropriate compensation to Contractor.
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Material delivered by.'Collectors or other. Haulers identified at
the gate as Wood Debris will be weighed and accounted for as Wood
Debris, with appropriate compensation to the Contractor. A
portion of the organic 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 delivered tonnage of Mixed Organic Materials and the
weight of Wood Debris- Products generated 'by .the Program. For -
example, if 50 TPD. of Mixed Organic Materials, 50 TPD.of' Yard
Debris and 30 TPD of Wood Debris are delivered to the Facility
averaged over a one month period, and during 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 'Acencv Product Distribution. Contractor shall make
available to the Agency, commencing six (6)-months after the
Start Date, ten percent (l0e) of the Finished Products, as set
forth in the 'Marketing 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-five (45) days of .notice by 'Contractor of its availability,.
shall be .marketed by Contractor in 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 Taxes. 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, interest,, or penalty shall
become due -or'be imposed by operation of `law for their
nonpayment. If, however, the law expressly permits the payment
-13-
14'RES®. 9 3 - 7 9 • .N -
V. I
of any, or.alli.of-the above items, in installments. '
- rac
(whether�,or
not interett'.accrues on the unpaid -balance,) , Cont ,tI
or- may,, at
Cbntractor1SLIe.l:ect.ion, utilize -,the permitted -in* stallm—eht method,
but shall pay each installmerit,with--Any interest;
delinquency. 'It' � i,s ..expressly understood by the partie's that
Contractor shall :be responsible., for those - taxes directly related
to Contract ' or ' Is, operations, and the revenue' generated:on,
Contractor's behalf.' In °no event, shall contractor -be responsible
for taxes directly related to County Improvements.
5. PROCESSING. FACILITY.
5. 1Facility Desi-an.. Contractor has had an opportunity
'
to thoroughly examine --and investigate the.,areas s l6d.tqkd for the,
. I . e-
,working, sutfa:ce of the Facility at the Central Landfilland,,
hereby accepts the surface area for: Facility; -s,-, "as, is,"
y. lit' in,it
ya
cohdition,subject to --the .provisions. ,of Section 5.4 ,below..
Contractor-shallsubmit adesign ,of theproposed
. Falqility, to
Agency and County for.their,revipw and,approval. ''Desdgn, of. the
Facil-ity- shall be to accordance 'with the following -;minimum
standards:
5-1. 1 - Throuahr)Ut 4 daracitv., The Facility shall
initially have a peak throughput capacity of at least 150 -TP - D-,
total. material during, - each .�Qperating day. The Fac"llity design
mus,t incorporate allowances for scheduled ma'interfa:ncd and,,kepair
, ,
'thtoughout, the year. _- Fac 11 ity de's i4n.. sha 11 allow low forthe
'possibility'of. future,expa . o,, nsin. to,400.TPD of peak throughput
, r-rdughput
capacity..
5,.1.2 ! Deli:v6r-v Area. Thee, tipping .,area. for . org . an -it',
materials delivered by.',Coll-ectors shall, be -�designed to
accommodate any common wastd.hauling vehicle (packer trucks
roll -offs, etc,.),excluding tractdr-trailers. -requiring . 'delivery
site *hydraillic, tippers;: The Facility lay6ut shall provide space
'SepAtate-fr* the primary tipping, ,2-arewhere Collector vehicle's
and Other- Hauler 'vehicles can -,safely deposit' Wood Debris: and Yard'
Debris.
5.1.3...,Onars"i "te Storaae,'. . The Facility Ohall_includ - e
adequate,'storage and' trans'fer*.yequippent, for all other products
generated as., a.. resul-t.of�,--the.-Compost.xng,proceiss. .-The Facility.,,.
-14-
C'S
RES06
shall have adequate site storage -capacity to 'accept and store
unprocessed organic.mater'ial in the event of processing equipment
failure and during routine equipment maintenance. The Facility
receiving area will also have a designated site to temporarily
store reusable lumber. The Facility shall provide load -out
points for Finished Products and Contaminants. Contractor shall
maintain the Finished Products storage areas. 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: "(a) one month of Yard Debris Products
at a delivery rate of 150 TPD; and (b) one 'month of Wood Debris
Products at a delivery rate of 50 TPD. The Facility shall
incorporate designated storage facilities and receiving areas,
including associated processing equipment for nutrient source
materials, if deemed necessary by the Contractor. The cost of
such nutrient,, source storage and pumping/handling equipment shall
be included in the Payment. Matrix.
5.1.4 Minimization 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 Proctram..' 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 .Facility shall
include one.or more product_ test plot areas where growth tests
and soil improvement tests can be conducted.
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1, $®. J` 3: ®7 9 N °Cds
1 5-1-.7 Encr,,ineerincr -Standards. The- Facility, ,
including, Without, limitatio.n_j .;the 'Opdrating-Equipment shall be
designed and constructed to c6mjaly, With. all apprl
icable industrial
codes and all applicable - code'' req�iirements� of - the Ain' erdca:n
Soc iety, of Me.chalni.cal Engineers and other`technical societies.,
either as ;stated or as is standard 'in'ind stry prac
tice.
ctice,
5..'2' F:ac"ilitv`Co'nst'ruction.,
5.2-1 Contrai-ctor RetjoonSibi 6 Contractor
lities ntradtor
shall be re-,sp--onsible'for constructing al 1 - Contractor Improvements
rovements,
and - providing the necessary equipment to process the Wood Debris"
and Yatd,,Debris '.
5.2.2 County Resb-onsibilities. County shall. be
responsible for constructing all, County Improvements..
5.2,.3 Verificatibn 0
I 'f''Faci1itV Completion. The
.
Agency sha,11-have"the right to insp4dt'--:the Facility in `;,operation
upon completion I of the FaciliI ty -in.' ,order to verify,tp Agency's
co polete,...s-At.i.-sfacti:on:.,I that the Vacility is capable of aperating
in comp'liance� with the design and operating requirements set'
forth in-- this Agreement., The acceptance, test may, be scheduIed.by
Agency Representative at any time within one hundred twenty (.120
days from, the' Start .'Datei.-*
5.3 Facility bnerati6n.. Contractor"shall operate the
Facility in accordance with the following minimum standards:
5:. 3_1 - Proc I ess% I ina. Contractor shall provide
sufficient nt equipment -for the efficieht receipt, I handling
and
loading of 'Wood Debris; -Yard. Debris, - reusable* lumber; recyclable,
materials;, and Contaminanta.. Contractor -shall operate -th6
Facility and Provide, equipment ' xedu ' ndandy and replacement as
necessery"to ensure 4 smooth; �- continuous operation:
5.3.2 Housekeebinai.i-. Storage,. To mini-mize, �internal-
and external dust, Contractor shaIll'a-piplv water to the Faclility'
area to control dust. Contractor shall- also, sup
ply for
safety and public health protectiom, including without
limitation, a fire c o,Int-rol pr,9gr , am ana-proyision for vector
col6trol. The ,Cdmppst'shal-1 �be� . maintained in an aerobic. condition
-16�--.
RIESO. 7 9�.
�j "j, 101.1
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 control measures are employed to eliminate nuisance,
health, and safety problems. In the event Contractor fails to
store materials in an acceptable manner as set forth in this
Agreement, Contractor shall defend and indemnify Agency and
County from all liability and expense resulting from such
failure,.including;:.without limitation; nuisance claims by
neighboring land owners.
5.3.3' Health'and Safety. Contractor shall operate
the Facility so as to minimize potential health and safety
problems for Contractor and County employees, -at the Central
Landfill, users of the Central Landfill and neighboring
properties. Contractor shall operate andmaintain the Facility
in a neat and orderly.manner-and shall police daily, or more
frequently if necessary, to prevent litter from blowing off the
grounds of the Facility.
5.3.4 Testincr. The Facility shall be equipped with
the necessary laboratory and testing,imstruments 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 Operatina 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,minimum;:the following issues: (a) receipt
and processing of organic material; (b)_handling of hazardous -
waste received; (c.) site security;'(d) management -of- nonorganic
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 public education
opportunities and other appr.opriate activities as described in
the Operating Plan and as mutually agreed upon by the parties.
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Ra- S®. 9. 3- - 7 9, N� C�
k
5.1.7 Env--ir.(b*hmental Reatirements.' Contractor -shall
ensure that operation of the Facility will" be in compliance with
all permit conditions issued for the "Program,. including without
limitation, permits issued, by- the California Integrated Waste
Management. B6.ard, the California Regional Water Quality Control
Board, the Bay Area Air Quality -Management District, and the
County.
5-4 Facility Maintenance.
5. 4.. .1' -, 'Mainteri6Lhde :Obliciatkons of Contractor:
Submiss�ion and Abbroval _�of_:Ma l-ntenance Plan. Contractor.. shall 'be
resp6nslble. for 'mairi'taining,'the Facility,. including the working
surfa:c.e on'&'daily '.basis, withthe exception of tho.se'maintenance
responsibilities of" the :CQunty as, identified, in'Sect,`iorls 5.4.2
and 5.4-3. below. Cont-rdct'or shall subirfit within- thirty' (30) days.
of the Effective Date., a maintenance plan that ;details procedures
for the.routine maintenanc'e.of the Facility and the' Operating'
Equipment, to the Agency for `its, review and approVal.
5.4..2 Maintenance' :of 'WorkincT .Sur -face. The, -.part1es
hereb ' y,under'stand and acknowledge that the working strface for,
the Facility will be plated, on 4, landf-ill and as a result .,7 a-y- be
,prone to; maintenance. ,prob-lems,rlesult'ing, from. settlement and
d .
subsidence that. is typicallyassociatedlandfills. County
shall be responsible for repairing problems, w lith the w6rkirig
surface that "are directly, caused by settlement H6f the,, -Landfill.- -
County's, obliga-tion shall include. maintaining the working surface
grade to* avoid the.: accumulation- of standing. water- caused by
settlement- of. the filled area.
5.4..;3 Maintenance of Access Road's!. County shall be
responsible, for maintai-iiing the-acces's road between the lower
processing area and the: upper Compost pad which shall. -be
maintained for all weather travel.
-6.- FINISHED PRODUCT-STANDARbS.
6.1 Pr6ductlion Of Finished' 'Products. -contractor, shall'
produce market -able, Finished Products on a continuous basis :and in
_18-
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 Facil-ity can be developed. The marketing and
distribution of Finished Products, with the. exception of the ten
percent (16%) provided. to. Agency, shall be the sole
responsibility of Contractor and shall be in accordance with the
approved Marketing Plan.
6.2 Process Testincr. 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 inorganic 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 the 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-
S . 9,-3: m . 9 N C '7
the Hazardous Materials to, the Facility, Contractor may notify
Agency Representative: and request that the Agency proceed in
accordance with the procedures. set forth in the County of, Sonom&
Departmentof Public Works Household Hazardous Waste Exclusion
Project, InL the event. Cohtrattor and Agency are' -unsuccessful in
getting thd Individual".or entity responsibl e for -delivering the
Hazardous, Materials atdtials to retrieve such*'ma-terials and,properly
dispose of the 'same, Contractor . shall .:be resPdns for.'properly
disp.osln" of''the Hazardous Material; and the portipns of Yard9
Debris and/or'Wood Debris that,, -are contaminated, at."ContrActor's
sole cost and, ,exp ense at an appkqVed, ha-zardous waste .treatment.,
storage and'dispbsal . f acility. ' It is expressly understood that
the.. costs-associated-ited with the l proper-, disposal of. such Ha-zardous
Materials shall be -deducted. from, reveh - ue prior to'the
calculatin-
os:.of shared revenue.n add,- Iition, Contractor may 4y
request that "the -.Couhty'accept and store up' -to two hundred -twenty
(2'20Y.pounds of 'materials identified. in Exhibit, in any
Contract Tear, provided, however, that the acceptable materials
do not., exceed five (5). pounds 'in 'any one day. Contractor shall -
be responsible for paying the standard rates charged for
disgosIng of such materials -that County stores pursuapt to this
Section 7. 1 i2 and such costsshall- not, be offset agaInst, Program
revenue , in Any fashion,* In the event C=t ' ractor fails to..-use
o *
reasnable'diligence in identifying'and/or disposing of Hazardous
Materials,,, Contractor shall defend and indemnify -Agency and'
County f . tdm all liabi'lity"and expe I ns-e. resulting- from such
failure.,
S. - MARKETING PLAN.
8.1 Approval of Marketina Plan. Within thirty (36)days
after, the Effecti,ve, Date. Contractor shall -submit a detailed
MArke,ting, Plan to Agency for its review and., approval,. The
detailed Mariketing 21anshall generally fpllow. the I plan- proposed
in, Exhibit attached hereto and incorporated 'herein,. but
with more extensive,-detai'l of the following
issues_:; (a)
definition of products.to be sold,(b) allocation- by, percentage
weight of*,products produced from. Wood Debris and Yard Debris.; (d),
records to� begenerated on�productsAle, revenue and-d-istribution.;-
and (4)..allocation ..of revenue to 'Contractor- and .Agency.. The,
detailed MArketing.'Plan:shall be",kept: conf ideintial, by the Agency.
The approved Markieitin4 Plan shall be- revised by Contractor on 'an�
720-
R9,89,93 7, 9'. VICIS
k
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 Marketingt Plan. In the
event Contractor deems it necessary.to deviate,from the approved
Marketing Plan, in a manner resulting ina 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 approved 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, prepar6d 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 identifies the -revenues and inventory and separately
identifies'the tonnage of both Yard 'Debris 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 office, for the
primary purpose 'of reviewing operations, 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
:11AC
'n F I f
dKE90- 9- 3 ® 7� 9. � N ,C
said deficiencies to, Agdncyl.s reasonable satisfaction then
Agency or- its 'authorized represen ta tl ve, may Jcre'ate-.'su-ch adequate
and .separdt6 recoeds-and Cdfttractor shall,, reimburse' A cy for
Agency ,
the ' costs of such, services, A11'r'ek=ords of Contractor that , are
,not needed to verify -complianc'e, -with-th'is, Agreement and.. to. Audit
figures Used -in 'f o r-mul:A - determinations shall be" considered
confidential and "the private prpperty of Contracto
r
tor
shall have -a-recipro'dal r1ght.---to -audit County, gate records and
any other information that
t directly relate 'to performance under,
this Agreement and/or formula determinations.'
-9.-2 Over-T6PAvments to Contractor. In'the event 'that an
audit or inspectiori reveals that.the amount of ?com'oe'niati' " a
I -li- ion,paid,
to Contractor 'by. Agency is greater than the amount `actually' due
hall
to,Cbntf,,Act&r 'under the terms' of thlis, Agr6em4nt,,- Contractor shall
remit such excess compensation td Agency., including .interest --from
the date of over -payment- at the rate, -.of ten per0`en#'_'
.:(10*) per
year ,i within thirty (30) days of-, invoice by Agency of such
excess. If such. reimbursement-, is not,uiade'by, Contractor. within
the specified time periodi 'Agency may deduct themonies due to
Agency from. Contra(ttor".s.nex+--monthly'.payment.
9.5 Under-Pavm6nts to Contractor. Tn the event. -,an audit
or inspection reveals an error'. on the part of Aqenc'y,!.su*ch that
the, amount-. of - compensation -paid to -Contractor by' Agency Is less
than 'the .amount., actually 4ueto Contractor under the terms of
this'Agr ' e - emeilt, Agency - shal-1 remit, to 'Contractor such
-compensation due;, including.interest from the. date o.f -, under-
payment a.,t the * rate -of ten- percent ( 10%). per year:, within_' thirty
(30) days of invoice -by Contr&ct6r-'o,f sud_h-,qnder-pAyme#_t.
Interest shall not be due to- 'Contractor.1f. un'der-payment, is -due
to anIncor , rect' invoice submitted, by qgntractor",or dispute'. over
compensation adjustments.
9.4 -Insiodcti6n, of Acc6unts' -and - Records-i'.1 . Contractor Is -
accounting record.s as',described.,ab'ove, shall. be available at .
Contractor'sl p-ri-ndipAl office in ',,-Sonoma County at any time during
regular of ftde' hours for inspection and/or audit by. -Agency or its
,authorized representatives,' -for a, period., of three (3) years
following' the termination, 2 of this Agreement-..
1-0. 'REPORTS.
-22-
r"RES.O., -,:'7-,9, Y.
10.1 Dailv Retorts. Contractor shall have available for
inspection by Agency Representative at the .Facility daily logs
that are used to support the information contained in all
reports.
10.2 Monthlv Reports. Contractor, shall submit a monthly
report and invoice to the .Agency Representative within fifteen
(15) calendar days following 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 following categories. of
materials: total tons of Yard Debris delivered to the Facility,
tons per day of Yard Debris, total tons of 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, leaving 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 Debris 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 (15).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, include 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, amount. (by
weight and volume) and type of Contaminants;.
(c) 'Explanation of any changes from the operating
plan inc=eluding the type and amount of.processing required by
Finished Product. The•Composting process report shall also
include a brief discussion of operations -including monthly
Windrow characteristics; additives,. moisture addition and results
of all -moisture content measurements, applications, results of
-23-
RESO j 9 31- 7 9 fj.0 S. .
all temperature measurements and fluctuations,
of Aeration; -
type and frequency
(cl) A description of. any :highlights or '-anomalies
associated with this data, including" weather, operatio . ns
equipment shutdowns, Yard Debris and Wood Debris, material
delivered and processed;
(e) ' Results, of' test ing',,progrAms to 'include :the,,,
results-, from-lab.orlatory tests,,, including the number of . .,samples -
taken,, thelocations of . samples takian, and,- ana'lyticAl' kesults:•
from '.off--s'ite, .1aboratorie's and. other Iabo'ratory analysis!'
completed by, the Contractor or subcontractors-
:,ff description off the- sale and. distribution of
Finished Products including_ the types-, of materials sold.1''.z'
delivery showing date, time, product de;isc'ripti=, - net, 'we'light
and 'destinat_16n� of each 'lo-ad lea.vihg, the Facility. Retail', small
quantity (less, than five (5) cubic yards) shall be exempt, from
individual- load reporting -And ;all report -in infOrmAtior! shall, bi_'
9 e
qoff,fidential And proprietary... .4 pricing structu I te. showing all
material -types-` as de -fined In. the Marketing Plan and ;sold on
monthly basis.
Quantities and weight tags, (in. tons' -and,*'cubic
,yards), of Contaminants landfilled, recovered or recycled;
(h,) Record of complaints regarding environmental
concerns and' Contractotls steps taken 'to resolve. complaint.;,
W. Record of 'other problems Associated'.-"wi_th the
Facility and as.sociatd.d.:,opera�tioris,.,-and considerations and
accounts.of 'what` is being done to resolve I the problem,/- %
(j,). Tonnage, volume and composition of Finished
Products produced by,,typd;
(k) Estimated, percent weight ',loss due to"moisture,
for each type of processing, operation'I -and
(1)' Tonnage fin'cIuding weight tags) and volumes, of,
Finished Products due to Agency and/'or de'llvered t6r'-Agdndy.by
-24,-
R!E90;;,9`,3,--!-79 NCS
type.
Contractor shall submit two separate monthly invoices.
One invoice shallbe for processing and marketing Wood 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 provided 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 processingcosts due to Guaranteed
Revenue and Finished Product Revenue; and
(d) Total due to Contractor.
10.3 ouarterly 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 notify,Contr:actor of any deficiencies in writing
within thirty (30) working days. -of receipt of the report.
Contractor shall -,have fifteen (15) working days fromm receipt of
notice of deficiencies to correct such deficiencies and resubmit
the report to Agency. The quarterly report shall include, .at a
minimum, the -following:
(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
measures taken -to resolve problems, increase efficiency and
increase quality of Finished products; and
(c) A discussion of the markets for the Finished
Products and the types of marketing approaches used.
10.4 Annual Reports. Contractor shall: submit annual
-25-
R-SO.�93®79'NC_.
reports, to the Agency Representative'•Within thirty-(3Q)` calendar"
days of the end of each Contract, Year..The Agency Representative
:will - review Contractor's annual report and notify Contractor of
any defic.iericies , in writing; within _thirty (30) working days* of.
receipt of, the report '°Contractor,shall have thirty (30) working
days from, receipt bf notice of deficiencies to correct 'such
`def.iciencies and "resubmit, the report to Agency. The:annual
report shall include, -at a m n•imum,'the "following:
('a). A summary o;f, the, information contained in the
monthly reports and total,weight and volume of material
processed.;
(.b) A discussion of,. theProgram,, .along -with
measures taken to reso"lve.problems.;,, increase efficiency and
increase quality'of Finished products; and
(.c) AA discussion of 'the: markets fore the Finished
Products and the 'types of,.marketing"approaches used..
10.5 Final Report Within thirty (30), fcadendar days of
theend of the term of. this Ag;reeinent,: `or within th{irty , (30)
calendar days of the. earlier termination of this�,Agreement,,
..Contractor shall submit to. Agency Representative final, report.
Agency Representative will review:Contractor'°s".final: report and
notify Contractor of any •deficiencies' in -writing within thirty
(30). working, days: of receipt of the.. report. Contractor shall
have thirty (30) working;;days .from the -receipt of notice of
deficiencies to correct s'uc*h. deficiencies and. resubmit the ,report
.to Agency. - The final report ,shall include at. -a min-imum the -
foll,owing
(a). A summary of all the preceding years' data and
annual reports; and
(b.) A discussion. of the Program, including
highlights,, problems, and problem resolution.'
10.6 Reports Reauired by Law. ,Contractor shall assist
Agency in, the, ,,preparation of <ail- .reports that,. arei required under -
applicable law concerning the Program.
-2 6 -
7.9 1� ,�
11. CONTRACTOR REPRESENTATIONS.
In order to induce Agency and County to enter into this
Agreement, Contractor represents and warrants to Agency that the
following statements are true, correct and complete:
11.1 Oraanization and Good.Standina.. 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, Litiaatio'n. There are no actions, suits or
proceedings pending -,or threatenedagainst 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 Bindincr Oblicration. The Agreement -has been duly
authorized, executed and delivered and is.valid and legally
binding 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
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-I
HE SO. 93 m 7 9 N C S
Insurance to 'Cover its employees, with statutorylimits as
requited by _ the tabor Code of the Sta:tg•of -Cali:fprnia,. Each such
policy shall be endorsed with the following specific- language:
a. This policy shall, not, be. cancelled, :"or,materla-lly
4
changed without first. giving thirty (30.),. days'' prior
written notice to the Sonoma County Waste Management
Agency by registered mail-
1Z. 2 Commercial/Comprehensive General Liabilitv-
Commercial.br. comprehens,ive_� genera- 1 liability insurance covering
ring
bodily. injury and property damag,40 -utilizing an occurrence- policy
form, in -an amount no_lessthan--One Million Dollars. (;$41,,060110'60)
combined single limit for each occurrence. Said" comprehensive
mp . - rehensIve or
commercial general liability'- Insurance policy shAll,-either .be
endorsed with the f o1lowing tpecif ic. language or contain
equivalent language in the, policy:,,
a. The Sonoma: Co'unty.Waste Management -Agency,, its,'
members, officers e plo 'eer.,'is.named as
P. y - named . _ 4
additional, insured. for all liability, aris,ing . out of
the operatiofts.'by or on, behalf of, the named insured
in the perfortnancetf this agreement.
b. The inclusion ofmore.than one insured :shall •nbt
operate to impair. the rights of one insured against
another insured.,, and the coverage. a.f.foirded shall"
apply as though separate:.,'policies had been issued to
each insured., but' the, inclusion of' more'thart one
insured shall not operate to increase the. limits of
the: -company"s - liability-
C. The, insurance -provided herein is primary coverage to
the', 'Sonoma County Waste Management 'Agency with
respect to- any insurance or self-insurance, programs
mainta,i-ned by the Agency'.
d,. This-'po,li(ty shall not, be. cancelledor materially
changed withqu*t, Ffirst giving thirty (30) days' pri,or
written notice to the -Sonoma. County Vas.td, Management
Agency.
-28-
I
RE50. 7 -9
12.3 Automobile.. Automobile liability insurance
covering bodily injury and property damage in an amount no less
than One Million Dollars ($1.,000,0'00) combined single limit for
each occurrence. Said insurance" -shall include 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 shall
be submitted to the Agency:
a. Properly executed Certificates, of Insurance clearly
evidencing all coverage, 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 copies of'the specified 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. Said policy copies shall be
submitted within thirty (30) days of Agency's
request.
12.5 Policv Obliaations. Contractor's indemnity and
other obligations shall not be limited by the foregoing insurance
requirements.
12.6 Material Breach. If Contractor, for.any reason,
fails to ma-intain 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-
breach. -.Alternatively, -.Agency - may purchase. such required
insurance coverage., and without :further notice to Contractor,
Agency may deduct from sums due -,to Contractor 'any .priamium:
.advanced by Agency f.or - such- insiitance.. These remedies shall. be
in addition to any other remedies, zvallable to the Agency.
13.' FAITHFUL PERFORMANCE BOND,:..
.Contractor shall provide the Agency with.a: faithful .
performance bond in the amount % of $1,.000,000, in: order -to''ziecure
the Contractor',;performance obligations under the Agreement.
Such bond shall, be. 'executed by.:a surety company licensed to., do
businessin the -State. of California. The initial term.of the
f a ithful 'poairf ormance bond - sha 11, be, f or -,one year commencing with
the execution by the parties of, the . Agreement and shall, -be
renewed on an annual basisuntil the termination.o the
Agreement. ,The condition of the foregoing- bond shall be such
that if' Contractor shall well --and truly perform the- covenants,
promises,, -'Undertakingsi, and obligatio n-s, under the terms,.of-, this.
Agreement, then-, 'the, obligation of, ..said bond shall , e, void;
othetwiso it shall remain in full 'forde and effect. Agency shall
be able to collect on said, bond for discrepancies or other
covered losses dilsco_verad-up'tp';the time when all Yard Debris and
Wood Debris delivered to, Contractor under the terms of this
Agreement have been processed into Finished Products, and all
other obligations'" of. Con tractor. under 'this Agreement, have been
satisfied.
14. INDEMNIFICATION.
Contractor agrees, tol, accept all responsibility for loss
or damage
amage to any person or entity, and to defend; indemnify, hold
harmless and.,telease County,, Agency, heir'members,_ off icers,
9 t
agents employees,.from and
d against any.'ana all.'actio
ns;
claims, damages.,_ li.abilit- , ies,,,or expenses that may be asserted. by_
any` person.';dr entity-, includ.,ing.-Contractori arising out, of or in
connection with the nerformahce of Contractor hereunder, whether
or not there is, concurrent negligence. on the part, of the, Agency
and/or - Countyj but excluding Iiability �due to the. sole active
negligence,or . sole willful ,'m1t, sconducof,th`4 Agehcy—and/or
County.., This indemnif icati - on obligation is "'not - limited- in any
way by any limitation on the amount or type of damages or
-10-
RES01. 9 3- 19, N' C 8
compensation payable to. or for Contractor or its agents under
workers' compensation acts, disability benefits acts or other
employee benefit acts. In addition, Contractor shall be liable
to County, Agency and their members for any 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 -have the right to seek specific 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; provided, however, that any failure
of the Contractor to accept materials due to,problems 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 Contractor 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 regulation, which order or notice. is not -complied with by
Contractor within ten (10) days following the issuance, thereof,
provided that if such order, or 'notice cannot be reasonably
complied with within such ten (10) day period,,.. -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 complete such compliance within thirty (30) days following
-31-
• 01 V:N`
written notice from the 4,bVerntental.agen.cy of such,,order or
notice; i - or to complete such within a . lesser 'time, p6 od if. the
period
:.,failure to d6 so would, ',in, the k4asOnAbler determination ', of the
Agency, 'cause, (_1) -the 'completion of.Copt-r-actor"improveme,ht--s
-to be completed; later than —the Start'Date or (i . i) :Contractor to
be unable to accept .Wo`pd,:Ddbk1sand/or Yatd,,,,Debkis for -a p .*e-;7-i,od
of ten(10)' or more consecutive Operating Days.
(d) cessation of the work of` the construction of the
Contractor Iiriprovehents, ',prior to the completion of, such
improvements, for a_. continuous -,period- of twenty - (20). 'days or
more, provided that if *such-- cessation is due to causes' ;beyond'
Contractor's --reasonable control.,'''an event of default shall". not; -be-
deemed to have ,occurred unless such 'cessation
ssation continues for- a:
period totaling .more than -..sixty �-('6_61) days or such. les'ser per)iod
if such cessation would' 'in the'reasohable determination of
Agency,, cause the Contractor Improvements to be completed later'
than the Start Date.
Failure of.. Contractor to proceed in, accordance with
the approved Facility -design such that -there ate deviations in
the 'work of "construction, of the Contractor: Improvements without -
the 'prior written "approvAl-of Agency or the ap-peara,nde, -of
defedtive workmanship' or material's;'Iwhich, sadd "deviation's or
defects are. not corrected within- ten (i-O), days:atter receipt- by,
Contractor ot writtian'h6tiee. thereof ,'provided that if' .:any such
deviation or defect is capable of* c - orrectio'n,.but . cannot -be
reasonably. corrected -'within such. ten ("10.)' day period". an. event of
defaul-t shall not' be*.• ddem6dtdP'hav4 -occurred unless Contractor',
fails to commence the correction within -such ten (LO) day period
or to. diligently and,ingood faith
h prosecute t . he `correction
,thereafteri or tb lete . com �sudh, cori�-ecti-dn within: th-irty . 3,0)
_P
days f ol-lowin g written tom, Agency of: ;such defect or,
dev-iatdon ,or -to complete such .correction within -a: lesser time
period- if the'fai'lure to db-,,so wowld,-, in the reasonable -
-I;-
determina'tion. bt-.Agency;_ .,pause-.the"Contractor 'Improvements to,be
completed : °`later 'than the. Start -Date,..
(f,),. - Any failure on Contractor,",s 'part to comply with any
other.covenant or -'.agreement contained. in,this 'Agreement.. ,,(Which
does not *dons titute, a- breach default that. could becidme an
event of default under any other subparagraph of,,this Section)
R Eso 79 N_-U
which failure remains uncured for ten (10) days following written
notice thereof by Agency,. provided that if any such failure to
comply or breach is capa°ble of cure but cannot reasonably be
cured within such ten-(10) day. period, an event, of default shall
not be deemed to have occurred unless Contractor fails to
commence the cure of such failure or breach within such ten (10)
day period or to diligently and in good faith prosecute the cure
thereafter, or to complete such cure within'thrty (30) days
following written notice from Agency of such failure or breach..
(g) (i) Contractor 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`receiver,-.custodian or
other similar official for it or for all or any substantial part
of its assets, or Contractor, shall make a general assignment for
the benefit of its creditors; '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
undismissed 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 results` 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 (iv) Contractor -shall take any action in
furtherance of, or indicating its consent to approval of, or
acquiescence in, any of -the acts set forth in clause (i), (ii) or
(iii) of this subparagraph ,(g); or'(y) 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-
RESO. 9 3 - 719 C
judic-ial- seizure, of .all or Any sub'stantial, portion of
ContrAdtor,'-s assets; Which, attachm ent e.xecuti.on..or, seizburd is not
disdhazged,wi,thin.thirty .(30) days.
(h) Any substantial change "shall occur in the ,mandgement
or control of'Contractor without."the.prior written approval of
Agency.
(i) Any representation;or disclosure -made to'the Agency
by Contractor proves to. be; fal'se or -misleading in any 'material'
respect on the.date as of which,madewhether , Or not.thAt.-
representation or disclosureappears, in this Agreement.
16. EXPIRATION OF AGREEMENT.
16. 1.'.Exm'ira*tioh. At the :expiration or earlier
termination of -the. term;_-Cohtractoj:-. shall surrender to Agency
the possessionL 6f.'the:Facility. Contractor shall- I.eave-the
surrendered Facility and any other property in, qdod'. condition. and
repair. , At the !ex__p'ixat.iPn or -sooner, termination. of the 'term,.
Agency may at Agpncyl's. dlection',, demand. the removal, from. the
Facility df,.a:ll or any
ny ContrActoe-lImprove ments or -Operating,'
Equipment 'as specified in the notice 'provided, for below. A
.demand to take -effect- at.the.T-iorma 1.- exp i,ation' of 'the tetm,zhal:1,
b
_re'effected by notice 'giv-en. at any'' time, within three (3), months
before 'thiB "ekpiration date. A,, -demand to 'take eff ft p
ect - oany other
termination. of the Agreement 'sha ' 11 be effected by notice. gAyen in;.
or concurrently with notice of su ch, terminati.oh,Jor withln,'sixty_
(60) days after t such -termination. Contractor shalt- comp'l,y, w#-A
the notice before.the m expiration date for normal teitmin'at-ionj, ' And
p 1, __
within, thirty days after -the notice for other tiei rmInat ions.
The duty imposed by th i S: h ,prpv-isipn,-includes, without limitation.;'
the duty, _if so. requested,, to leave' the Facility safe and free,
from debris and, hatakds.;- All.'property 'that Contractor is not,
required to surrender but, that d6ntractor., does, Abandon, shall' at
Agency's ei,1e&,t1on1.,.b1ed0me Agency -Is property.'at termination... If
Contractor tailsr to surrender--,thefacility At the expi-ration or
sooner,. ,.termination of, this Agreement 'Contractor shall defend,. and
indemnify Agency., and'County from all 11ability, and expense
resultin u in resulting: from the delay or failure to'' surrender, ihc,.l d ". 9'
without limitation, claims made by any, succeeding contractor,
based. on 'ot'xesuiting from Conti,7a',Ptd'r1s- failure to,su'_rr.dnder..
SO,
q
16.2 First Riaht of Refusal to Purchase Oberatincr
Eauipmeftt. 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 hereto as Exhibit
17. ARBITRATION.
Arbitration may 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 which the notice is given, the notice is
ineffective unless given '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 Arbitration 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 action pending on the
same matter shall, if the arbitration is -required or consented
to, be deemed amended to limit the issues to. those, contemplated
by the rules ,prescribed 'Above. Each party shall pay half the
cost of arbitration including'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' applicable-, the California Code of Civil
Procedure, in effect at the time of the notice, the:parties have
hereby established 'their own rules for selecting arbitrators.
There shallbe three arbitrators appointed as follows:
(i) Within thirty (30) days after notice requiring•
arbitration, each patty -shall appoint one arbitrator and give
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XESQ - 9,3 - 7 9 ,N:.0 8
notice of the appointment to the other parties..
(ii), .'The two arbitrators;shAll chooi:-.e a. third arbitrator
within ten (10) days, after appointment of the 'second.'
(iii) If - either party 'fails. to- appoint an arbitrator, or
if the two arbitrators fail to dhooMB a third,, the Appointment
shall be made by the .then .presiding,
judge of the Superior Court
for Sonoma,County, acting in his or her individual and
non -official capacity, on: the application of either party and on
ten (10) days' hdtlte to,the other, party;• provided that ei-ther
party may,' by given befdre, commence1ent:of the: arbitration
hearing,,, . consent to arbitration by the arbitrator. appointed 'by
the. other party-. In that event.,,'. no further appointment's of
arbitrators shall be. made.'and any other arbitiators-.previously
appointed shall, be dismissed.
1.8. ATtORNEYV FEES.
If either party, -brih.4s*1-any claim,, suit, action, or
proceeding .(including 'arbitration), 'against the, other to enforce,
protect,,, or establishany-'. right or remedy arising out !--lof: this
Agreement,. the prevailiqg;,party, shall-. be,entitled''to recover
reasonable attorneys' -fees.
19., - GENERAL PROVISIONS.
f Ass ianm6nt.. - The experience and expertmise � of
Contractor are material- cons iderations, for this Agreement -
Contractor 'shall riot. &ssign or.tra,n�sfer, 'whether voluntarily,
involuntarily., by operAtiori of'lawl., its interest° in this
Agreement -or -any- part.. thereof .Vithout. the prior. ,written approval
of Agency... No such,.-,ass1qnment or transfer for which Agencyls
prior written. consent Is, required shallbe valid or binding
without said. prior 'Written approval, and, then, only - upon. the
condition as. I su . ch, Ass " i . gr1ge. . -or,. other successor in interest shall
agree in writing to, b'e'. bound -by dach7and,. all of the covenants,,
cqriditio' ris and restrictions at the -Agreement, An attempted
- . . I I P -
assignment or transfer.not in, com liahce with proVisloris of
i; for Ageppy's t4s�r'minatloh. of
Section- is, -i shall be, ground. . - termination
the Agreement. Consent 'to 'any assignment or transfer shall: not
be deemed a waiver, of this requirement as - to' any, subsequent, -
-36-
-ItESM-9
4!11-
"?'r, eFt,;;•>-IRu
P
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 2'3% change in ownership of
Contractor-" shall mean, the transfer of the right to share in
more than'25% of the profits. of the general. partnership or
corporation.
19.2 Amendments. Only the,.Members of the Agency, by a
majority vote, may authorize extra or. changed work or amend this
Agreement. The parties expressly recognize that Agency personnel
are without authorization to order extra or changed work or waive
contract requirements.. Failure of'Contractor to secure Agency
authorization for extra or changed work shall constitute a waiver
of any and all right to adjustment in the compensation due to
such unauthorized work 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, religion, sex, marital
status, age, medical condition, pregnancy, disability, or other
prohibited basis. .All 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 of any term or promise contained in this Agreement shall
not be deemed to be a waiver of such term or, provision or any
subsequent breach of the same .or any other term'or promise
contained in this Agreement.
19.5 Construction. To the fullest extent allowed by
law,, the provisions of this-, 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 ofcompetent jurisdiction to be invalid, void, or
-37-
ftESQ- 9 3- 3. 9 NCII
unenforceable 'the remainder of the provisions hereof shall-
remainin full force and .effect and .shall in no way be af;fectedi
impaired, or -invalidated thereby..
19- 6. No 'Third _Party. Beneficiaries. Nothing comained in
this Ag-reement shall be! construed, to.' create and the parties do
not intend .to -.create any rights-in.third parties,-
19.:7 Applicable Law and Forum. This Agreement- -shall be
construed~; and interpreted accord"ng to . California - law and any
action to enforce the terms-ot this Agreement or -for the breach
thereof shall be :brought and.°tried in the County of Sonoma::.
1-9�.8' Captions:.' - The captions„ in this Agreement. are
solely for convenience of ,reference. They are not ,a part .of this
Agreement, and,' shall have no effect on.its construction or
interpretation.
. •19-.;9 Mer-aer:` Thl s _writing is intended. both 'as. the final
expression :o,f, the agreement.' between '`the 'parties hereto with
respect to 'the included terms. and *,as, a. complete and exclusive
statement..of. the. terms. of the Agreement, pursuant to- Code of
Civil Procedure Section .1856. No modification of. this Agreement.
shall .be-ef;f.ective 'unl'ess and until such modifIcation is- r
evidenced by a Writing'signed-by'both parties.
19 . 10 . Time: of _ Essence':. Time is and shall 'be of -the-
essence'of'this Agreement "and every provision hereof.
IN WITNESS IWHEREOF, this Agreement.:has -been executed by* the
duly authorized representatives of all parties.
AGENCY: SONOMA.CO.UNTY WASTE
MANAGEMENT AGENCY
-38"
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
-39-
APPROVED AS'TO FORM:
By:
Agency Counsel
-4Q-
p,Eg®. 9, N C S ,
I
EXHIBIT A
ORGANIC MATER.IAL,.PROCESSING, COMPOSTING & MARKETING SERVICES
SONOMA COUNTY WASTE MANAGEMENT AGENCY
WOOD DEBRIS
Average Tons 10
Per Day
IWood Waste Cost I $19.98
Per Ton
Less Guaranteed I $12..00
Revenue
Net Cost Per I $ 7.98
Ton
YARD DEBRIS
Average Tons Per
Day
Yard Waste -Cost
Per Ton
Less Guaranteed
Revenue*
Net Cost Per Ton
25
50
75
100
I 125
I 175
I 200
$13.62
I
$ 8.50
I
$ 7.96
I
` $ 7.45
I
$ 7.86 I
I
$ 6.88
I $ 6.29
I$12.00
( $12.00
I $12.00
I $12.00
I $12.00 I
$12.00 I
$12.00
I$ 1.62
<$3.50>
I <$4'.04>
I <$4.55>
<$4.14> I
<$5.12> I <$5. %.^_>
75
100
I
125
�
l 150
l
I 175
200
$31.72
1 $29.21
1-$27.28
$26.37.1$24.52
1$22.52
$ 6..00
1 $ 5.00
1 $ 3.50
I $ 3.00
I$ 3.00
I$ 3.00
$25.72
1 $24.21
$23.78
1 $23.37
1 $21.52
$19.52
WOOD DEBRIS -Marketing to Non -Fuel Markets
Average Tons j
10 I
25 I
50
I
75
I 100 I
125
I 175
I 200
Per Day
Wood Waste Cost I
$13.98
$13.62 _I
$ 8.50
I $
7.96
I $ 7.45 I $
7.86
I $ 6.88
I $ 6.2:
Per Ton
Less Guaranteed I
$ _ 6.00 (
$ 6.00
$ 6.00
I $.
6.00
I $ 5.00 I $
3.50
I $ 3.00
I $ 3.00
Revenue,
Net Cost Per I
$, 7.98 I
$ 7.62 I
$ 2.50
$
1.96
I $ 2.45 I $
4.36
I $ 3.88
$ 3.23
Ton
*Yard Debris Revenue is
projected
assuming
50%
shrinkage, except
@
75 TPD, which
is projected at 40% shrinkage.
A11 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.
RES®. 9 3-6"7`9 N C
I
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 competitive 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. Market Development
a. Identification of target markets including: local agricultural, horticultural,
commercial landscapers, soil dealers, retailers, home gardeners, and public
agencies.
b. How the Contractor iritends 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 take 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;
d. Estimated volumes of each :product. 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 regardinig trade names, logos and desired market'image.
4. Developing Identified Target Markets
a. A. description of market. input' mechanisms;
b.'.,-How the composting site will'be used_asa sales and, .p.ublic ,educatidn tool;-
,C. Employee training;
d. Pricing policies;
e. Proposed. ,costs for transporting . finished product fio identified markets
f. Advertising;
g. Public relations including.. planned public events, lectures;. signs; . media
.relations, cooperation with Agency members;
h. Public events;
I. Description of the Contractors anticipated .direct sales efforts.
5. Public Education
a, How the Contractor will.'utilize- the; .site as a public education .and sales. tool;
b. How the. project will :interface . with- local ,jurisdiction's efforts 10 promote
„backyard. composting education;
c..'Step the Contractor- will take to include pafcipants oucurbside.,collection
programs` in the project;
d. How the :Contractor intendsl ao demonstrate the urban_/rural' connection in .
compost generation and -utilization.