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HomeMy WebLinkAboutR-2009-111 Biosolids Application Agreement with Roy Farms, Inc. and WS Farms, Inc.►C i RESOLUTION NO. R-2009-111 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 BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager of the City of Yakima is hereby authorized and directed to execute the attached Agreements for the purpose stated above, copies of which are attached hereto and incorporated by this reference. ADOPTED BY THE CITY COUNCIL this 18th day of August, 2009. ATTEST: 4 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 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 YAKIMA 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 (3) 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. 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 on any reasonable basis. The City may contract with other parties for biosolids utilization. 3. Transportation. The City shall transport biosolids to property leased or owned by WS Farms in accordance with the terms of the permits in Section 4. 4. Biosolids Application. 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. 5. 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. 6. 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 ti 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 attorney'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. 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. 9. Assignment. 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. 10. 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. 11. Dispute Resolution. The parties shall strive in good faith to resolve any dispute that may arise through negotiation. If initial efforts are not successful, the parties shall meet with the City Manager or his designee to attempt to resolve the matter. 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: City of Yakima and WS Farms — Property Owner Agreement Page 2 of 3 TO CITY: TO WS FARMS: Richard A. Zais, Jr. City Manager City of Yakima 129 North Second Street Yakima, WA 98901 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 right 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 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 WS 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 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 By: Za�•��� v R. A. is, Jr., ity Manager Date: 217Zo/o 9 ATTEST:_ ; ; ;� A� .`��,, ATTES City Clerk WS FARMS By: )(eA.,6 Date: 9-�-09 CITY CONTRAC f NO: X007 — 9'V RESOLUTION NO: !R -Rae:? -1 a City of Yakima and WS Farms — Property Owner Agreement Page 3 of 3 September 29, 2009 401 WALTERS RD. • MOXEE, WA 98936 Tim Cooper, Chief Operator/Biosolids Wastewater Treatment Plant 2220 East Viola Yakima WA 98901 (509) 452-3494 • FAX (509) 457-7837 FREEZER (509) 454-4494 • FAX (509) 454-0197 RE: Treated Biosolids Spreading Program Dear Mr. Cooper: Please accept this letter as formal notification that Roy Farms, Inc. withdraws its application to handle/spread biosolid materials to its farmland. Should public opinion change in the future on this matter, Roy Farms would entertain a discussion with you at that time. We appreciate your efforts on the biosolids program and wish you success for the future. With regards, Nick Osbourne, Compost Division Manager Roy Farms, Inc. NJO/mrw o `r k,;�,A :— 14en ifs)( nc cor �io- ffl Ss 4rom (c)ve 2 Y Cv� iMCAI A.I-e1‘6 5C) +4-4 1 :c_A-4---ion W As) frC-r,,-erti-/- PIA --r4 �J e %� h recres pi r'A cJ f, . Tibi n k YQ v C - &>r) a...4_6,, Pri rtSi d-rerj S, (4rpS J -'G 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 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 YAKIMA 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 (3) 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. 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 on any reasonable basis. The City may contract with other parties for biosolids utilization. 3. Transportation. The City shall transport biosolids to property leased or owned by WS Farms in accordance with the terms of the permits in Section 4. 4. Biosolids- Application. 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. 5. 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. 6. 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. 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, claims, liability, damages, judgments, costs and expenses (including reasonable attorney'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. 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. 9. Assignment. This Agreement, or any interest herein or claim 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. 10. 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. 11. Dispute Resolution. The parties shall strive in good faith to resolve any dispute that may arise through negotiation. If initial efforts are not successful, the parties shall meet with the City Manager or his designee to attempt to resolve the matter. 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 Roy Farms — Property Owner Agreement A TO CITY: TO ROY FARMS: Richard A. Zais, Jr. City Manager City of Yakima 129 North Second Street Yakima, WA 98901 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 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 By: R. A. Zais, Jr., ty Manager Date: � 20 !c) ROY FARMS By: Date: ATTEST: ATTEST: City Cle CITY CONTRAC r N0: RESOLUTION N0: ,z09-/1/ City of Yakima and Roy Farms — Property Owner Agreement Page 3 of 3 USINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. 1) 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. SU ROTTED BY: Scott Schafer, Wastewater Division Manager Tim Cooper, Biosolids, Chief Operator CONTACT PERSON/TELEPHONE: Tim Cooper, Biosolids, Chief Operator, (509) 249-6871 SUMMARY 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 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 Biolids and Operating Equipment APPROVED FOR SUBMITTAL: City Manager STAFF RECOMMENDATION: 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/COMMISSION RECOMMENDATION: COUNCIL ACTION: