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HomeMy WebLinkAbout08/18/2009 11 Biosolids Application Agreement with Roy Farms, Inc. and WS, Inc. • BUSINESS OF THE CITY COUNCIL )(AMNIA, WASHINGTON AGEN,I-A STATEMENT Item No. 11 . For Meeting of 8/18/09 ITEM TITLE: Consideration of a resolution authorizing the City Manager to execute agreements with Roy Farms, Inc. and WS Inc. for biosolids application to their agricultural lands. SUI: MITTED =Y: Scott Schafer, Wastewater Division Manager Tim Cooper, Biosolids, Chief Operator CONTACT PERSON/TELEPHONE: Tim Cooper, Biosolids, Chief Operator, (509) 249-6871 SUM R;FARY EXPLANATION: Biosolids are produced from processes used for treating wastewater at the City of Yakima Wastewater Treatment Plant (WWTP). The biosolids then can be land applied for the beneficial use of a fertilizer. The Wastewater Division currently trucks biosolids produced at the WWTP to privately operated land application sites in the lower Yakima Valley. In addition to 0 trucking and staff costs tipping fees are also charged for the application of biosolids to the sites. The Wastewater Division has been working with the Department of Ecology to permit new sites for biosolids application on Roy Farms and WS Farms lands. No tipping fees will be required and the biosolids will be trucked to these sites by the WWTP. The land owners will then apply the biosolids for their own use at agronomic rates. Annual savings in tipping fees alone will be over $100,000 and trucking distances and costs will be significantly reduced. (See attached Agreements) Resolution . X Ordinance _ Contract _ Other (Specify) Funding Source: 473 Wastewater Treatment Bio• lids and Operating Equipment APPROVED FOR SUBMITTAL: L . a City Manager STAFF RECO6 if flEN DATION: Staff respectfully requests that City Council adopt the enclosed resolution authorizing and directing the City Manager to execute agreements between the City of Yakima Roy Farms, Inc. and WS Farms, Inc. for land application of biosolids to their permitted sites. BOARD /CO'," ,° ISSION RECOM ENDATION: 0 COUNCIL ACTION: • RESOLUTION NO. R-2009- A RESOLUTION authorizing and directing the City Manager of the City of Yakima to execute agreements with Roy Farms, Inc. and WS Farms, Inc. for biosolids application to their agricultural lands. WHEREAS, the City of Yakima Wastewater Division has been working with the Department of Ecology, to permit new sites for biosolids application on Roy Farms and WS Farms lands; and, WHEREAS, Roy Farms, Inc. and WS Farms, Inc. wish to utilize the . City of Yakima Wastewater Treatment Plant biosolids for beneficial use on their agricultural lands: and, WHEREAS, the City of Yakima will reduce biosolids land application costs significantly; and, WHEREAS, Roy Farms, Inc. and WS Farms, Inc. accept the terms and conditions of this agreement; now, therefore, BE IT . RESOLVED ! =Y THE CITY COU .CIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the fio attached Agreements for the purpose stated above, copies of which are attached hereto and incorporated by this reference. ADOPTED BY THE CITY COUNCIL this 18 day of August, 2009. David Edler, Mayor ATTEST: City Clerk • III CITY OF YAKIMA AND PROPERTY OWNER AGREEMENT This Agreement is entered into by and between the City of Yakima (hereinafter called the City), a first class Washington Municipal Corporation and WS Farms, Inc. (hereinafter called WS Farms). WHEREAS, the City of Yakima operates a Wastewater Treatment Facility near the City of Yakima which generates solid and semi -solid wastes known as biosolids, which provide beneficial use as fertilizer for agricultural crops; and WHEREAS, WS Farms, Inc. owns and operates farms near Zillah and desires to utilize the City's biosolids as agricultural fertilizer, and WHEREAS, the City of Yakima desires to enter into an agreement for the application of biosolids for beneficial uses; NOW, THEREFORE, THE CITY OF YAKI6 MA and WS FARMS agree as follows: 1. Term. The term of this Agreement shall commence upon execution hereof and terminate five years from the date of the last signature set forth on page three of the Agreement, unless terminated sooner in accordance with Section 12. The parties may renew this Agreement by mutual consent for five -year terms thereafter. 0 2. Consideration. WS Farms shall utilize, in a lawful manner, those quantities of biosolids generated by the City's Wastewater Treatment Facility. WS Farms shall receive the benefit of the fertilizer and humus content of such biosolids for agricultural application and the City need not bear the expense of biosolids utilization by other means. Neither party shall pay the other any monetary consideration. WS Farms may refuse to accept biosolids for any reasonable basis. The City may contract with other parties for biosolids utilization. 3. Transportation. Either party may transport biosolids to property leased or owned by WS Farms in accordance with the terms of the permits in Section 4. In the event WS Farms transports City biosolids, their choice of vehicle is subject to the City's approval in regard to health and safety. The City shall not unreasonably withhold such approval. 4. Biosolids A;• iplication. WS Farms shall apply biosolids solely as crop fertilizer and soil amendment in accordance with the provisions of Chapter 173 -308 WAC and the Site Specific Land Application Plan and WS Farms shall comply with all other terms and conditions of permits issued by the Department of Ecology. S. Testing. WS Farms shall allow access to all sites where it applies biosolids, at all reasonable times, to City personnel or their designees for the purpose of carrying on scientific tests. The City shall have responsibility for testing biosolids, WS Farms soils and surface waters according to the .terms and conditions of permits issued by the Department of Ecology. The City makes no guarantees regarding the content or characteristics of its biosolids. The City will make test results regarding the biological and chemical nature of such biosolids available to WS Farms at their request. • C. No Insurance. It is understood the City does not maintain liability insurance for WS Farms and its officers, directors, employees and agents. Page 1 of 3 City of Yakima and WS Farms — Property Owner Agreement 7. Indemnity. WS Farms agrees to hold harmless, indemnify and defend the City, its elected officials, officers, employees and agents from and against any and all suits, actions, claims, liability, damages, judgments, costs and expenses (including reasonable attomey's fees) which result from or arise out of the negligence of WS Farms, its officers, agents, employees or subcontractors in connection with or incidental to the performance or non - performance of this Agreement. WS Farms assumes sole responsibility for biosolids received and applied to its property under the terms of this Agreement. WS Farms retains sole responsibility for its agricultural practices and property including compliance with best farm management practices for irrigation methods, fertilizer application rates and general agricultural practices as well as all applicable federal, state and local laws and regulations. 8. Insurance Provided by WS Farms: On or before the date—this—Agreement is fully executed by the parties, WS Farms shall provide the City with a certificate of insurance as proof of commercial automobile liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) per occurrence /aggregate limit bodily injury and property damage. The certificate shall dearly state who the provider is, the amount of coverage, the policy number and when the policy and provisions provided are in effect. Said policy shall remain in effect for the duration of this Agreement. The policy shall name the City, its elected officials, officers, agents and employees as additional insureds and shall contain a clause that the insurer will not cancel or reduce in limits the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -VII or higher in Best's Guide and admitted in the State of Washington. 411 9. Site & Crops. WS Farms shall have the sole responsibility for the site upon which it utilizes biosolids. WS Farms shall grow on such site only those crops which are not prohibited by applicable law, permits and regulations. 10. Assign.: ent. This Agreement, or any interest herein or claim hereunder, shall not be assigned or transferred in whole or in part by WS Farms to any other person or entity without the prior written consent of the City. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations and liabilities of WS Farms stated herein. - 11. Waiver of Breach. A waiver by either party hereto of a breach by the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 12. Termination. Either party may terminate this contract in the first year of the 5-year period, with or without cause, by providing the other party with written notice of termination sixty (60) calendar days prior to the last day of the first year. 13. Severability. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 14. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: Page 2 of 3 City of Yakima and WS Farms — Property Owner Agreement 111 TO CITY: Richard A. Zais, Jr. City Manager City of Yakima 129 North Second Street Yakima, WA 98901 TO WS FARMS: WS Farms, Inc. 271 Smith Rd. Zillah, WA 98953 15. Third Parties. The City and WS Farms are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide any eight or benefit, whether directly or indirectly or otherwise, to third persons. 16. Drafting of Agreement. Both the City and WS Farms have participated in the drafting of this Agreement. As such, it is agreed by the parties that the general contract rule of law that ambiguities within a contract shall be construed against the drafter of a contract shalt have no application to any legal proceeding, arbitration and /or action in which this Agreement and its terms and conditions are interpreted and/or enforced. 17. Integration. This written document and the attachments constitute the entire Agreement between the City and WS Farms. There are no other oral or written agreements 0 between the parties as to the subjects covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change or addition be in writing and executed by both parties. 18. Governing Law. This Agreement shall be govemed by and construed in accordance with the laws of the State of Washington. 19. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. 20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. CITY OF YAKIMA WS FARMS By: By: R. A. Zais, Jr., City Manager Date: Date: ATTEST: ATTEST: City Clerk III Page 3of3 City of Yakima and WS Farms — Property Owner Agreement CITY OF YAKIMA AND PROPERTY OWNER AGREEMENT This Agreement is entered into by and between the City of Yakima (hereinafter called the City), a first lass Washington Municipal Corporation and Roy Farms, Inc. (hereinafter called Roy Farms). WHEREAS, the City of Yakima operates a Wastewater Treatment Facility near the City of Yakima which generates solid and semi -solid wastes known as biosolids, which provide beneficial use as fertilizer for agricultural crops; and WHEREAS, Roy Farms, Inc. owns and operates farms near Moxee and desires to utilize the City's biosolids as agricultural fertilizer, and WHEREAS, the City of Yakima desires to enter into an agreement for the application of biosolids for beneficial uses; NOW, THEREFORE, T CITY OF YAI}tl°. A and ROY FARMS age as follows: 1. Term. The term of this Agreement shall commence upon execution hereof and terminate five years from the date of the last signature set forth on page three of the Agreement, unless terminated sooner in accordance with Section 12. The parties may renew this Agreement by mutual consent for five -year terms thereafter. 2. Consideration. Roy Farms shall utilize, in a lawful manner, those quantities of biosolids generated by the City's Wastewater Treatment Facility. Roy Farms shall receive the benefit of the fertilizer and humus content of such biosolids for agricultural application and the City need not bear the expense of biosolids utilization by other means. Neither party shall pay the other any monetary consideration. Roy Farms may refuse to accept biosolids for any reasonable basis. The City may contract with other parties for biosolids utilization. 3. Transportation. Either party may transport biosolids to property leased or owned by Roy Farms in accordance with the terms of the permits in Section 4. In the event Roy Farms transports City biosolids, their choice of vehicle is subject to the City's approval in regard to health and safety. The City shall not unreasonably withhold such approval. 4. iosolids Application. Roy Farms shall apply biosolids solely as crop fertilizer and soil amendment in accordance with the provisions of Chapter 173 -308 WAC and the Site Specific Land Application Plan and Roy Farms shall comply with all other terms and conditions of permits issued by the Department of Ecology. 5. Testing. Roy Farms shall allow access to all sites where it a • • `ies biosolids, at all reasonable times, to City personnel or their designees for the purpose of carrying on scientific tests. The City shall have responsibility for testing biosolids, Roy Farms soils and surface waters according to the terms and conditions of permits issued by the Department of Ecology. The City makes no guarantees regarding the content or characteristics of its biosolids. The City will make test results regarding the biological and chemical nature of such biosolids available to Roy Farms at their request. 6. No Insurance. It is understood the City does not maintain liability insurance for Roy Farms and its officers, directors, employees and agents. 7. Indemnity. Roy Farms agrees to hold harmless, indemnify and defend the City, its elected officials, officers, employees and agents from and against any and all suits, actions, Page 1 off 3 City of Yakima and Roy Farms — Property Owner Agreement 111 claims, liability, damages, judgments, costs and expenses (including reasonable attomey's fees) which result from or arise out of the negligence of Roy Farms, its officers, agents, employees or subcontractors in connection with or incidental to the performance or non- performance of this Agreement. Roy Farms assumes sole responsibility for biosolids received and applied to its property under the terms of this Agreement. Roy Farms retains sole responsibility for its agricultural practices and property including compliance with best farm management practices for irrigation methods, fertilizer application rates and general agricultural practices as well as all applicable federal, state and local laws and regulations. 8. insurance Provided by Roy Farms. On or before the date this Agreement is fully executed by the parties, Roy Farms shall provide the City with a certificate of insurance as proof of commercial automobile liability insurance with a minimum liability limit of One Million Dollars ($1,000,000.00) per occurrence/aggregate limit bodily injury and property damage. The certificate shall clearly state who the provider is, the amount of coverage, the policy number and when the policy and provisions provided are in effect. Said policy shall remain in effect for the duration of this Agreement. The policy shall name the City, its elected officials, officers, agents and employees as additional insureds and shall contain a clause that the insurer will not cancel or reduce in limits the insurance without first giving the City thirty (30) calendar days prior written notice. The insurance shall be with an insurance company or companies rated A -V!! or higher in Best's Guide and admitted in the State of Washington. 9. Site & Crops, Roy Farms shall have the sole responsibility for the site upon which it . utilizes biosolids. Roy Farms shall grow on such site only those crops which are not prohibited by applicable law, permits and regulations. 10. Assignment. This Agreement, or any interest herein or daim hereunder, shall not be assigned or transferred in whole or in part by Roy Farms to any other person or entity without the prior written consent of the City. In the event that such prior written consent to an assignment is granted, then the assignee shall assume all duties, obligations and liabilities of Roy Farms stated herein. 11. Waiver of Breach. A waiver by either party hereto of a breach by the other party hereto of any covenant or condition of this Agreement shall not impair the right of the party not in default to avail itself of any subsequent breach thereof. Leniency, delay or failure of either party to insist upon strict performance of any agreement, covenant or condition of this Agreement, or to exercise any right herein given in any one or more instances, shall not be construed as a waiver or relinquishment of any such agreement, covenant, condition or right. 12. Termination. Either party may terminate this contract in the first year of the 5 -year period, with or without cause, by providing the other party with written notice of termination sixty (60) calendar days prior to the last day of the first year. 13. Severability. If any portion of this Agreement is changed per mutual agreement or any portion is held invalid, the remainder of the Agreement shall remain in full force and effect. 14. Notices. Unless stated otherwise herein, all notices and demands shall be in writing and sent or hand delivered to the parties to their addresses as follows: ill Page 2 of 3 City of Yakima and Roy Farms — Property Owner Agreement TO CITY: Richard A. Zais, Jr. City Manager City of Yakima 129 North Second Street Yakima, WA 98901 TO ROY FARMS: Roy Farms, Inc. 401 Waters Rd Moxee, WA 98936 15. Third Parties. The City and Roy Farms are the only parties to this Agreement and are the only parties entitled to enforce its terms. Nothing in this Agreement gives, is intended to give, or shall be construed to give or provide any right or benefit, whether directly or indirectly or otherwise, to third persons. 16. Drafting of Agreement. Both the City and Roy Farms have participated in the drafting of this Agreement. As such, it is agreed by the parties that the general contract rule of law that ambiguities within a contract shall be construed against the drafter of a contract shall have no application to any legal proceeding, arbitration and/or action in which this Agreement and its terms and conditions are interpreted and/or enforced. 17. Integration. This written document and the attachments constitute the entire Agreement between the City and Roy Farms. There are no other oral or written agreements between the parties as to the subjects covered herein. No changes or additions to this Agreement shall be valid or binding upon either party unless such change 40 or addition be in writing and executed by both parties. 18. Bove ing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Washington. 19. Venue. The venue for any action to enforce or interpret this Agreement shall lie in the Superior Court of Washington for Yakima County, Washington. 20. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same Agreement. CITY OF YAKINdA ROY FARMS By: By: R. A. Zais, Jr., City Manager Date: Date: ATTEST: ATTEST: City Clerk 0 Page 3 of 3 City of Yakima and Roy Farms — Property Owner Agreement