06-050, Zanker Rd Resource Management, Ltd.
TABLE OF CONTENTS
SECTION PAGE
RECITALS 1
1. DEFINITIONS
1.1 City 2
1.2 Compostable Waste 2
1.3 Contaminated Materials 2
1.4 Contractor 2
1.5 Debris Box 2
1.6 Designated Hauler 2
1.7 Hazardous Materials 3
1.8 Premium Quality Compost 3
1.9 Processing Facility 3
1.10 Residential Yardwaste Containing Food Scraps 3
1.11 Tipping Fee 3
1.12 Ton 4
1.13 Yardwaste 4
2. CITY'S RESPONSIBILITIES
2.1 Delivery of Yardwaste and Compostable Waste 4
2.2 Unauthorized Waste 4
2.3 City Compost 5
2.4 Reduction of City Compost 5
2.5 Purchase of Additional Compost 6
2.6 Purchase of Wood Chips and Ground Cover 6
2.7 Exchange of City Compost for Other Products 6
2.8 Exclusive Contractor 6
3. CONTRACTOR'S RESPONSIBILITIES
3.1 Receipt of Yard Waste 7
3.2 Receipt of Compostable Waste 7
3.3 Operational Requirements 7
3.4 Designated Haulers 8
3.5 Compliance with Laws and Regulations 8
3.6 Permits, Licenses, and Approvals 9
3.7 Inspection of Operations 9
3.8 Safety Provisions 9
4. TERM OF AGREEMENT
4.1 Effective Date of Performance 9
4.2 Term 9
5. COMPENSATION
5.1 Tipping Fee 10
5.2 Contaminated Materials & Hazardous Materials Mgmt.' 10
5.3 Annual Adjustment of Tipping Fee and Other Charges 10
5.4 Adjustments for Damages 11
5.5 Payment 12
5.6 Full Payment 12
5.7 Additional Governmental Charges 12
6. ASSURANCE OF PERFORMANCE
6.1 Force Majeure 13
6.2 Insurance Requirements 14
6.3 Hold Harmless and Indemnification 14
7. GENERAL PROVISIONS
7.1 Independent Contractor 16
7.2 City Warranty 16
7.3 Venue 17
7.4 Dispute Resolution 17
7.5 Savings Clause 18
7.6 Section Headings 18
7.7 Amendment 18
7.8 Assignability 18
7.9 Notices 18
7.10 Waiver 19
7.11 Law to Govern 19
7.12 Attorney's Fees 19
7.13 Entirety 19
EXHIBITS
Exhibit A. Cost of Service
21
Exhibit B. Weight to Volume Conversion Table
23
Exhibit C. List of Designated Haulers
24
Exhibit D. Reporting Forms
25
Exhibit E. Insurance Requirements
26
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AGREEMENT FOR PROCESSING OF
YARDWASTE AND COMPOSTABLE WASTE
This AGREEMENT is made and entered into this _ day of May 2006, by and
between the CITY OF CUPERTINO, CALIFORNIA, a California municipal corporation
(herein "City"), and Zanker Road Resource Management, Ltd., a Limited Partnership
(herein "Contractor").
RECITALS:
WHEREAS, City desires to contract for processing of its residential yardwaste into
premium quality compost and other usable products in order to avoid landfilling of
this material; and
WHEREAS, City desires to contract for processing of both its residential and
commercial compostable waste into premium quality compost and other usable
products in order to avoid landfilling of this material; and
WHEREAS, Contractor owns and operates the Zanker Road Landfill and the Z-Best
Composting Facility ('Processing Facility') and also has a contract with the
GreenWaste Recovery Processing Facility and is in the business of accepting
yardwaste and compostable waste, and converting it into compost and other usable
products.
NOW THEREFORE, in consideration of the mutual promises, covenants and
conditions contained in this Agreement, and for other good and valuable
consideration, the parties to this Agreement hereby agree as follows.
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SECTION 1. DEFINITIONS
The following capitalized names and terms shall have the respective meanings
indicated:
1.1 City
'City" means the City of Cupertino, California, a municipal corporation organized
under the laws of the State of California, all of the geographic area lying within the
municipal boundaries of the City.
1.2 Comoostable Waste
"Compostable Waste" means organic solid waste, including vegetable, fruit, grain,
meat, and dairy wastes, non-residential landscaping trimmings (e.g., grass, leaves,
prunings, flowers, wood chips), sod, animal manure, clean wood wastes and saw
dust, waxed and non-waxed cardboard, paper and soiled paper, compostable
plastics and compostable plastic bags. Compostable Waste includes organic wastes
from food processors, canneries, distributors, grocery stores, restaurants,
institutional cafeterias and residential complexes. Compostable Waste also includes
other wastes deemed acceptable as compostable by the Contractor."
1.3 Contaminated Materials
"Contaminated Materials" means any material, other than hazardous materials, not
normally produced from gardens or landscapes, that is not easily compostable, such
as, but not limited to, brick, rocks, gravel, large quantities of dirt, concrete, sod,
non-organic wastes, oil, and painted or treated wood.
1.4 Contractor
"Contractor" means Zanker Road Resource Management, Ltd., a California Limited
Partnership, its successors and assigns, as approved by City.
1. 5 Debris Box
"Debris Box" means a roll-off waste container used to collect, without compaction,
tree trimmings and similar materials.
1.6 Desiqnated Hauler
'Designated Hauler" means the waste hauler(s) named by City pursuant to
subsection 3.4 to deliver Yardwaste or Compostable Waste to the Processing
Facility .
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1. 7 Hazardous Materials
'Hazardous Materials' means a waste, or combination of materials, which because of
its quantity, concentration, or physical, chemical, or infectious characteristics, may
either:
(a) Cause or significantly contribute to an increase in mortality or an
increase in serious irreversible, or incapacitating reversible illness.
(b) Pose a substantial present or potential hazard to human health or
environment when improperly treated, stored; transported, disposed of, or
otherwise managed.
1.8 Premium Quality Compost
"Premium Quality Compost" means organic materials that have been allowed to
decompose for at least 30 days and no longer resemble the original materials from
which it was derived; have a mixture of fine and medium size particles (having
passed through a 3/8-inch or finer mesh screen); are biologically mature or stable;
has a balanced pH, a dark brown color; are free of viable weed seeds and
objectionable odors, and contain only trace amounts of man-made foreign matter
(especially plastics and glass shards); have been processed to meet 'Process to
Further Reduce Pathogens' [PFRP] standards to eliminate pathogens.
1.9 Processino Facility
'Processing Facility" means the equipment and property used by Contractor to
transfer and process Yardwaste and Compostable Waste into compost at the Zanker
Road Landfill located at 705 Los Esteros Road, San Jose, California, the GreenWaste
Recovery Processing Facility located at 625 Charles Street, San Jose, California, and
the Z-Best Composting Facility located at 980 State Highway 25, Gilroy, California.
1.10 Residential Yardwaste Containing Food Scraps
"Residential Yardwaste Containing Food Scraps" means Yardwaste collected
together with food waste from residents.
1.11 Tipping Fee
'Tipping Fee" means the amount, as set forth in Exhibit A, and adjusted annually
as described in Section 5.3 of this Agreement, payable to Contractor by City for
each Ton of Yardwaste, Yardwaste Containing Residential Food Scraps or
Compostable Waste delivered to the Processing Facility by a Designated Hauler
pursuant to this Agreement.
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1.12 Ton
"Ton" means a short Ton of 2,000 pounds avoirdupois.
1.13 Yardwaste
"Yardwaste" means all materials containing not less than ninety-five percent (95%)
by weight, per load, of plant debris, including grass clippings, leaves, prunings,
brush, tree trunks and branches not exceeding six (6) inches in diameter, clean
dimensional lumber, and other forms of organic waste generated from landscapes
and gardens.
SECTION 2. CITY'S RESPONSIBILITIES
2.1 Deliverv of Yardwaste and Compostable Waste
Subject to the other provisions of this Agreement, during the term of this
Agreement, City will deliver or cause delivery of Yardwaste, Yardwaste Containing
Residential Food Scraps, and Compostable Waste to the Processing Facility for
conversion into Premium Quality Compost and other usable materials in accordance
with this Agreement.
The City shall deliver the Yardwaste to the Zanker Road Landfill from July 1, 2006
until the GreenWaste Recovery Processing Facility permitted capacity expansion is
completed; after which time the City shall deliver Yardwaste, Yardwaste Containing
Residential Food Scraps, and Compostable Waste to the GreenWaste Recovery
Processing Facility.
Contractor, with the mutual agreement of City and City's Designated Haulers, may
specify an alternate drop-off location for the City's Yardwaste, Yardwaste Containing
Residential Food Scraps, and Compostable Waste. This alternate drop-off location
will be located so City, or City's Designated Hauler, incurs no additional cost for
transportation or tipping fee.
2.2 Unauthorized Waste
City and City's Designated Haulers shall make reasonable efforts to prevent delivery
of Contaminated Yardwaste or Hazardous Materials to the Processing Facility by
City, or City's Designated Hauler. Incidental amounts of Hazardous Materials are
expected to be mixed with delivered Yardwaste and Compostable Waste.
City shall pay Contractor a cleanup charge for management of any Contaminated
Yardwaste or Hazardous Materials delivered by City, or City's Designated Hauler.
Contractor shall notify City and Designated Hauler by phone, e-mail or Facsimile
within 24 hours of finding Contaminated Yardwaste or Hazardous Materials in a load
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of Yardwaste or Compostable Waste, and shall provide information regarding time
of day received, truck number and type of Hazardous Materials. If the Contractor
intends to impose a cleanup charge, Contractor shall provide City a reasonable
opportunity for a representative of City, or City's Designated Hauler, to examine the
contaminated load.
2.3 City Compost
The Contractor shall return to City, at no additional charge to City, Premium Quality
Compost in an amount of up to fifteen percent (15%) of the weight of Yardwaste,
Yardwaste Containing Residential Food Scraps, and Compostable Waste delivered to
the Processing Facility by City in accordance with this Agreement.
City shall be responsible for hauling and distribution of City's portion of compost
pursuant to this Agreement. However, Contractor shall, at no additional charge to
City, load the Premium Quality Compost into City supplied trucks and weigh the
compost provided to City.
City shall pick up and haul away said compost on a regularly scheduled basis, in
debris box or transfer trailer size loads, as such compost becomes available.
Contractor shall notify City when the compost is available for pickup, and City shall
have one hundred eighty (180) days from such notification to pickup and haul away
said compost. In the event City does not pickup and haul away said compost within
said one hundred eighty (180) day period after notification, City shall lose the right
to receive that compost not picked up and that compost will be retained by
Contractor, free of charge. All compost provided to City pursuant to this Agreement
shall be Contractor's Premium Quality Compost.
City may designate a hauler to transport its portion of compost or other materials
as specified in this Section 2 of this Agreement. Upon request of City, Contractor
shall provide the hauling services at the rate provided in Exhibit A of this
Agreement. Compost or other material shall be transported to a location within the
City mutually agreed upon by City and Contractor.
2.4 Reduction of City Compost
City may elect, upon thirty (30) days prior notice to Contractor, to retain only ten
percent (10%) of the compost rather than the fifteen percent (15%) provided for in
paragraph 2.3 hereof, for a period of time to be specified by City at the time of such
notice. In the event of said reduction, Contractor shall reduce its then existing
Yardwaste, Yardwaste Containing Residential Food Scraps, or Compostable Waste
Tipping Fee as provided in Exhibit A of this Agreement.
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2.5 Purchase of Additional Compost
City shall have the right to purchase additional compost from Contractor. City may
purchase up to an additional ten percent (10%) of the weight of Yardwaste and
Compostable Waste delivered to the Processing Facility in accordance with this
Agreement, at the same price and on the same terms that Contractor is selling said
material to its other bulk sales customers at the time of the request. City shall give
Contractor at least two weeks advance notice of its desire to purchase additional
compost.
2.6 Purchase of Wood Chios and Ground Cover
In order to fulfill the requirements of AB 939, City shall have the option, on
reasonable notice, to purchase up to one hundred percent (100%) of the wood
chips and ground cover produced from the City's Yardwaste and Compostable Waste
delivered to the Processing Facility in accordance with this Agreement, at the same
price and on the same terms that Contractor is selling said material to its other bulk
sales customers at the time of the request.
2.7 Exchanae of Citv Comoost for Other Products
City shall have the right to acquire other products produced by Contractor, in lieu of
any portion of the fifteen percent (15%) of the compost City is entitled to receive
pursuant to paragraph 2.3 hereof. The amount to be exchanged shall be based on
the then existing unit prices charged by the Processing Facility for its Premium
Quality Compost and the current price charged for the other products for which the
compost is to be exchanged. (For example: If the City wishes to exchange 100 tons
of compost which is then selling at $20 per ton, the City would be entitled to
acquire $2,000 worth of other products produced by the Processing Facility at their
then current price. So if mulch were selling for $10 per ton, City would be entitled
to receive 200 tons of mulch).
2.8 Exclusive Contractor
Subject to requirements of City's Franchise Agreement with its solid waste hauler,
City will exclusively utilize the Contractor for all recycling and processing services
for its curbside generated Yardwaste and Compostable Waste, for the term of this
Agreement, and for any extensions thereof.
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SECTION 3. CONTRACTOR'S RESPONSIBILITIES
3.1 Receipt of Yardwaste
During the term of this Agreement, Contractor shall accept and process all
Yardwaste delivered to the Processing Facility in accordance with this Agreement.
3.2 Receipt of Compostable Waste
During the term of this Agreement, Contractor will accept and process all
Compostable Waste, from both commercial and residential collection programs
within the City, delivered to the Processing Facility in accordance with this
Agreement.
3.3 Ooerational Reauirements
3.3.1 Hours
Contractor shall operate the Processing Facility for the receipt of Yardwaste
from the Designated Haulers from at least 6:00 a.m. to 5:00 p.m. Monday
through Friday and from 8:00 a.m. to 4:00 p.m. on Saturday, except that the
Processing Facility may be closed on Christmas Day, the fourth Thursday of
November, and New Year's Day.
3.3.2 Scales and Cubic Yard Conversion
Contractor shall operate and maintain a certified scale, and weigh all
Yardwaste and Compostable Waste delivered by Designated Haulers to the
Processing Facility.
In the event that the scale is temporarily out of service to weigh Yardwaste
and Compostable Waste delivered to the Processing Facility, then, for the
purposes of this Agreement, the ton equivalent of cubic yards of waste,
measured at the entrance of the Processing Facility, shall be as set forth in
Exhibit B. Weight to Volume Conversion Table, attached hereto and made a
part hereof.
Contractor shall weigh all compost returned to City. In the event that the
scale is temporarily out of service to weigh Yardwaste and Compostable
Waste delivered to the Processing Facility, then, for the purposes of this
Agreement, the ton equivalent of cubic yards of waste, measured at the
entrance of the Processing Facility, shall be as set forth in Exhibit B. Weight
to Volume Conversion Table, attached hereto and made a part hereof.
Upon reasonable prior notice, City or City's designated representative shall
have a right to inspect said scale at any time during normal business hours
provided that such representative does not interfere with work being
performed by Contractor.
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3.3.3. Comoost Quality
Contractor shall produce Premium Quality Compost from the Yardwaste and
Compostable Waste delivered to the Processing Facility by City in accordance
with this Agreement.
3.3.4 Records
Contractor shall maintain daily records for each Designated Hauler necessary
to compile the monthly report to be provided by Contractor to City pursuant
to subsection 5.5.1.
Upon reasonable prior notice, City, or City's designated representative, shall
have the right to inspect such records and the record keeping procedures at
any time during normal business hours. Contractor shall provide the records,
and an appropriate place for City to review such records, so that such
representative does not interfere with work being performed by Contractor.
The Contractor shall respond to all requests for information from City by the close of
business on the next working day.
3.4 Desianated Haulers
3.4.1 Acceotance of Yardwaste and Comoostable Wastes
Subject to provisions of this Agreement, Contractor shall accept all Yardwaste
and Compostable Wastes from City's Designated Hauler(s) and shall charge
City the Tipping Fee and other charges provided for in Exhibit A of this
Agreement.
3.4.2 City Desianation
City shall designate those waste haulers responsible for delivery of Yardwaste
and Compostable Waste to the Processing Facility, provided that those so
designated shall agree to observe all rules and regulations at the Processing
Facility and to operate according to safe industry practices. City may add or
delete Designated Haulers at any time, following written notice to Contractor.
A list of Designated Haulers is provided in Exhibit C of this Agreement.
3.5 Comoliance with Laws and Reaulations
Subject to the other terms and conditions of this Agreement, Contractor agrees
that, in the operation of the Processing Facility and the performance of services
under this Agreement, Contractor will qualify under, and comply with, any and all
federal, state and local laws and regulations now in force and which may hereafter,
during the term of this Agreement, be enacted and become effective, which are
applicable to Contractor, its employees, agents, or subcontractors, if any,
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concerning the operation of the Processing Facility. However, Contractor shall have
the right to contest in good faith the application of such law or regulation to
Processing Facility and Contractor shall not be deemed in breach of this Agreement
during such good faith contest for failure to comply.
3.6 Permits. Licenses. and Aoorovals
Subject to the other terms and conditions of this Agreement, Contractor shall be
responsible, at its sole expense, for obtaining and maintaining all necessary
permits, licenses and approvals from any and all governmental entities having
jurisdiction over the Processing Facility in order that Contractor may operate the
Processing Facility in accordance with the terms and conditions of this Agreement
and any laws or regulations applicable to the Processing Facility.
3.7 Inspection of Ooerations
The designated representative of City shall have the right to observe and review
Contractor's operations and enter Contractor's premises at the Processing Facility
for the purpose of such observation and review during normal operating hours,
subject to reasonable notice. This provision shall not be construed as giving to City
any right to exercise control over the business or operation of Contractor or to
direct any operations of Contractor or to direct in any respect the manner in which
the business and operations shall be conducted.
3.8 Safety Provisions
Contractor shall operate the Processing Facility in compliance with all applicable
federal, state and local laws and regulations pertaining to safety.
SECTION 4. TERM OF AGREEMENT
4.1 Effective Date of Performance
Performance hereunder shall commence on July 1, 2006.
4.2 Term
The Term of this Agreement shall be for the period July 1, 2006 through October
31, 2010. City shall have an option to renew this Agreement for three (3)
additional terms of three (3) years each, on the same terms and conditions. City
shall notify Contractor of its intent to extend the term of this Agreement not less
than 120 days prior to the end of the Term of this Agreement. Contractor shall have
60 days to accept or decline each offer of extension by City.
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SECTION 5. COMPENSATION
5.1 Tippinq Fee
The Tipping Fee for the delivery of Yardwaste and Compostable Waste to the
Processing Facility shall be the amounts specified in Exhibit A.l, Processing Cost
Form, commencing on July 1, 2006, and ending on December 31, 2006.
Beginning on January 1, 2007, the tipping fee for the delivery of Yardwaste and
Compostable Waste to the Processing Facility shall be the amounts specified in
Exhibit A.2, Processing Cost Form. This amount shall be adjusted annually in
accordance with Section 5.3 of this Agreement. For this amount, the Yardwaste,
Residential Yardwaste Containing Food Scraps, and Compostable Waste shall be
processed and converted to Premium Quality Compost or other usable materials at
the Processing Facility.
5.2 Contaminated Materials and Hazardous Materials Manaqement
City shall pay Contractor the amounts specified in Exhibit A for the proper
management and disposal of Contaminated Materials and Hazardous Materials
found in loads of Yardwaste, Residential Yardwaste Containing Food Scraps, and or
Compostable Waste delivered to the Processing Facility in accordance with this
Agreement. This amount shall be adjusted annually in accordance with Section 5.3
of this Agreement.
5.3 Annual Adjustment of Tipoing Fee and Other Charges
Consumer Price Index. The Tipping Fee and other charges provided for in this
Agreement shall be adjusted as of July 1 of each year, beginning as of July 1, 2007,
(the "Rate Adjustment Date") in accordance with the following formula:
P = A x (.8 x B)
A = The Tipping Fee in effect as of the rate adjustment date. As of the
date of this Agreement, the Tipping Fee is that specified in Exhibit A,
Proposal Cost Form.
B = The net percentage change in the Consumer Price Index (CPI), all
items, 1982-1984 equals 100 for all urban consumers (CPI-U), for San
Francisco-Oakland-San Jose, California, published by the U.S. Department of
Labor, Bureau of Labor Statistics.
P = The amount of the Tipping Fee for the new twelve (12) month period.
All "net percentage changes", as that phrase is used above, are to be computed as
the difference between the applicable index values for the month of April
immediately prior to the current Rate Adjustment Date and for the month of April
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immediately prior to the last Rate Adjustment Date (April 2006 in the case of the
first adjustment hereunder), divided by the index value for the month of April
immediately prior to the last Rate Adjustment Date.
Contractor shall notify City in writing of any adjustment under this Section at the
earliest practicable time. On the next billing date after the receipt of Contractor's
statement showing adjustment under this Section, City shall pay to Contractor or
contractor shall credit to City, as the case may be, a lump sum equal to any
increase or decrease applicable to that period which has elapsed during which the
new Tipping Fee is effective. Thereafter, the Tipping Fee charged by Contractor
shall not be modified to reflect any change under this Section until a subsequent
adjustment statement is received by City. Adjustment to the Tipping Fee will only
be made in units of one cent ($0.01). Fractions less than one cent ($0.01) will not
be considered in making adjustment.
Should the index named in this Section not be published for April of any given year,
the calculations shall be performed using the index value as published for the last
month immediately preceding the April in question (or, in the case of a quarterly
published index, the index value for the quarter including the April in question).
Should the index named in this Section be discontinued, a successor index shall
replace same. A successor index shall be that index which is most closely
equivalent to the discontinued index as recommended by the publishing agency.
5.4 Adiustments for Damaaes
City shall charge the Contractor any costs City incurs for the Contractor's failure to:
receive and process Yardwaste and Compostable Waste, and other costs relating to
failure of the Contractor to comply with all other aspects of this Agreement.
City and Contractor agree that the following liquidated damage amounts represent a
reasonable estimate of the amount of such damages, including the relationship of
the sums to the range of harm to City that reasonably could be anticipated, and the
anticipation that proof of actual damages would be costly or inconvenient.
Damages for failure to perform as specified, include, but are not limited to, failure
to allow delivery of collected materials during the times specified, failure to prOVide
premium quality compost to City as specified, failing to submit the required reports
on time, or other similar incidents, may be assessed by City. Damages will start at
$50.00 per incident, and mav, at City's discretion, increase in $50 increments to
$500 per incident, for repeated failure to perform as specified in the Agreement.
Continued failure to perform may lead to termination.
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5.5 Payment
5.5.1 Monthlv Invoice and Report
On or before the tenth (10th) day of each month, Contractor shall submit to
City an invoice for the preceding month. Said invoice shall state the tonnage
of Yardwaste and Compostable Waste received and the Tipping Fee for that
tonnage, any other charges then in effect, and the total amount due for the
invoice month, as calculated in accordance with the provisions of this
Agreement.
At the time Contractor submits the monthly invoice, Contractor shall also
submit to City a report stating, for each Designated Hauler, the information
in substantially the form of the sample report form attached hereto as
Exhibit D. Reporting Forms, and made a part hereof.
Without prior written approval of the City's Environmental Programs
Manager, for every calendar day that the monthly invoice and completed
report are late, City shall deduct $25.00 from the payment due to Contractor.
Contractor shall invoice City only for City's materials received from the City's
Designated Haulers, and shall not invoice City for any other materials
received.
5.5.2 Time of City's Payment
City shall review the monthly invoice and the monthly report received from
Contractor. City shall have thirty (30) working days from receipt of the
report to request reasonable additional information regarding the report.
Such request shall be in writing and shall specify the information requested.
Contractor shall have ten (10) working days from the date of the request to
supply to City the requested additional information. City shall remit payment
to contractor within thirty (30) days of receipt of the requested additional
information, or, if no additional information is requested, within thirty (30)
days of receipt of the monthly invoice and report.
5.6 Full Pavment
Contractor hereby agrees to accept payments from City as described above as full
compensation for services rendered under this Agreement.
5.7 Additional Governmental Charaes
In the event that any governmental agency imposes upon the Contractor any
additional regulations which result in additional expenses, charges, fees, or taxes to
the Contractor, not caused by Contractor's negligence, and which relate specifically
to the conversion of City's Yardwaste or Compostable Waste into compost and other
usable materials, such expenses, charges, fees, or taxes shall be added to the
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Tipping Fee on a pro-rata basis, based on the percentage that the total tonnage of
Yardwaste or Compostable Waste delivered to the Processing Facility pursuant to
this Agreement bears to the total tonnage of Yardwaste or Compostable Waste
delivered to the Processing Facility from all sources.
SECTION 6 ASSURANCE OF PERFORMANCE
6.1 Force Majeure
6.1.1 Events Resultina in Force Majeure
The obligations of City and Contractor are subject to riots, wars, civil
disturbances, insurrections, acts of terrorism at the Processing Facility,
epidemics, landslides, hurricanes, earthquakes, lightning, floods, washouts,
explosions, fires, acts of God, government orders and regulations and other
similar catastrophic events which are beyond the reasonable control of City or
Contractor, as the case may be.
It is specifically understood that rather similar catastrophic events does not
include, among other things, strikes, lockouts, other labor disturbances or
breakage or accidents to machinery, equipment or plants.
6.1.2 Suspension of Obligations
In the event either party is rendered unable, wholly or.in part, by the
occurrence of any event described in subsection 6.1.1 to carry out any of its
obligations, then the obligations of such party, to the extent affected by such
occurrence and to the extent that due diligence is being used to resume
performance at the earliest practicable time, shall be suspended during the
continuance of any inability so caused but for no longer period. Any time
that such a party intends to rely upon the occurrence of an event described in
subsection 6.1.1 to suspend obligations as provided in this Section 6, such
party shall notify the other party as soon as reasonably possible, setting forth
the particulars of the situation. Notice shall again be given when the effect of
the occurrence of such event has ceased.
6.1.3 Alternative DisDosal Arrangements
In the event that Contractor fails or is unable to accept any Yardwaste or
Compostable Waste which it is obligated to accept and process under the
terms of this Agreement because of any event other than described in
subsection 6.1.1 whose occurrence materially and adversely affects
Contractor's ability to accept and process such Yardwaste or Compostable
Waste at the Processing Facility, Contractor shall transport such Yardwaste or
Compostable Waste to an alternate processing facility selected by Contractor
at no additional cost to City for hauling or processing, or in the alternative, at
Contractor's option, shall reimburse City for any and all extra costs incurred
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by City for hauling and processing, over and above the Tipping Fee, to use
such other locations where City hauls or arranges for hauling of said waste.
It is understood that these costs may include costs incurred by the City which
are payable by City to Designated Haulers for using an alternate site.
6.2 Insurance ReQuirements
Contractor shall obtain and shall maintain throughout the term of this Agreement at
least the minimum insurance policies, with at least the required coverage limits and
endorsements, as is set forth in Exhibit E. Insurance Requirements, attached
hereto and made a part hereof.
Before Contractor performs any work, Contractor shall furnish certificates of
insurance evidencing the foregoing insurance coverages and such certificates shall
provide the name and policy number of each carrier and policy and that the
insurance is in force and will not be canceled or modified without thirty (30) days
written notice to the City. Contractor shall maintain all of the foregoing insurance
coverages in force until work under this contract is fully completed. The '
requirement for carrying the foregoing insurance shall not derogate from the
provisions for indemnification of the City by Contractor under this contract and for
the duration of the warranty period. Notwithstanding nor diminishing the
obligations of Contractor with respect to the foregoing, Contractor shall maintain in
full force and effect during the life of this contract, the following insurance in
amounts not less than the amounts specified and having a Best's Guide Rating of A,
Class VII or better or that is otherwise acceptable to the City.
Contractor shall provide updated Certificates of Insurance annually, through the
term of this Agreement.
6.3 Hold Harmless and Indemnification
6.3.1 By Contractor
Contractor agrees to protect, defend, hold harmless and indemnify City, its
Council, officers, employees, and agents from and against any and all
liability, including but not limited to, contractual liability, losses, penalties,
claims, demands, damages to property (real and/or personal), environmental
contamination, including attorneys fees, and personal injury to or death of
any person or persons, and all expenses resulting from any claim or cause of
action of any nature, including clean up or remedial action sought by private
or governmental parties occurring by reason of:
(i) Contractor's sole negligence;
(ii) Contractor's comparative share of the joint negligence of the
parties;
(iii) Contractor's breach of this Agreement; or
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(iv) Contractor's operation of the Processing Facility.
6.3.2 Bv City
City agrees to protect, defend, hold harmless and indemnify Contractor and
its affiliated corporations, and their officers, employees, partners and
shareholders, directors and agents from and against any and all liability,
including but not limited to, contractual liability, losses, penalties, claims,
demands, damages to property (real and/or personal), environmental
contamination, including attorneys fees, and personal injury to or death of
any person or persons, and all expenses resulting from any claim or cause of
action of any nature, including clean up or remedial action sought by private
or governmental parties, occurring by reason of:
(i) City's sole negligence;
(ii) City's comparative share of the joint negligence of the parties;
(Hi) City's breach of this Agreement; or
(iv) Delivery by City of Contaminated Yardwaste or Hazardous
Materials to the Processing Facility. This provision applies only to
such material as is shown to have originated in Cupertino and is
further, subject to Section 2.2.
6.3.3 Nealigence Defined
For purposes of Sections 6.3.1 and 6.3.2, negligence shall be deemed to
include both negligent acts and errors and omissions, and the negligence of a
party shall include the negligence of its respective officers, employees or
agents, including all subcontractors.
6.3.4 Notice and Access
The party claiming a right to indemnity shall:
(i) give written notice thereof within a reasonable period following
the earlier of actual or constructive notice of the event or
occurrence as to which the right to indemnification is or may be
asserted, provided, that any delay in or failure to give such notice
shall not alter any obligation of indemnity herein except to the
extent the indemnifying party is materially prejudiced thereby;
and
(ii) allow the other party (including their employees, agents and
counsel) reasonable access to any of its employees, property and
records reasonably related to the matter giving rise to the claim
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for indemnification (excluding records protected by the privilege
applicable to communications between attorney and client and the
work product of attorneys) for the purpose of conducting an
investigation of such claim and taking such other steps as may be
necessary to preserve evidence of the occurrence on which the
claim is based.
6.3.5 Insurance Coveraoe
Provision of the insurance coverages set Jorth in Section 6.2 does not relieve
Contractor or its subcontractor(s) from liability under the above hold
harmless and indemnification clause.
6.3.6 Survival
The indemnities contained in this Section 6 shall survive expiration or
termination of this Agreement.
SECTION 7. GENERAL PROVISIONS
7.1 Independent Contractor
It is expressly understood and agreed that Contractor shall perform all work and
services described herein as an independent contractor and not as an officer, agent,
servant or employee of City; that Contractor shall have exclusive control of and the
exclusive right to control the details of the services and work performed hereunder
and all persons performing the same; that Contractor shall be solely responsible for
the acts and omissions of its officers, agents, employees, contractors and
subcontractors, if any; and that nothing herein shall be construed as creating a
partnership or joint venture between City and Contractor. No person performing
any of the work or services described hereunder shall be considered an officer,
agent, servant or employee of City, nor shall any such person be entitled to any
benefits available or granted to employees of City.
7.2 City Warranty
City warrants to Contractor that:
(i) City has full power in accordance with applicable law to enter into this
Agreement
(ii) the entering into this Agreement will not constitute a violation or breach
by City
(a) of any contract or other instrument to which the City is a party,
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(b) of any Judgment, order, writ, injunction or decree issued against or
imposed upon City, or
(c) that will result, to the actual knowledge of the City, in a violation of
any applicable law, order, rule or regulation of any governmental
authority; and
(Hi) this Agreement constitutes a valid and binding obligation of City in
accordance with its terms, including, without limitation, for the full period of
the term of this Agreement notwithstanding the future change of elected or
appointed City officials or the City's failure to budget and appropriate
sufficient funds for this Agreement.
7.3 Venue
The parties agree that should any action, whether real or asserted, at law or in
equity, arise out of the terms and conditions of this Agreement, venue for said
action shall be in Santa Clara County, California.
7 A Dispute Resolution
704.1 Call for Mediation - If the parties are unable to resolve a dispute
arising under this Agreement in a cooperative manner, either party may call
for mediation, as hereafter described. The party calling for mediation shall
serve notice in writing upon the other party setting forth the question or
questions to be mediated. The costs of the mediation shall be borne equally
by the parties.
704.2 Mediation - Within ten (10) days after delivery of the notice called for
under Section 704.1, the parties shall select a mutually acceptable mediator
from the Judicial Arbitration and Mediation Service ("JAMS") or other
mutually agreeable organization. In the event the parties are unable to
agree on a mediator, a mediator shall be selected for them at random by the
San Francisco office of JAMS. However, either side may reject the proposed
mediator and JAMS will select another. Within ten (10) days thereafter, the
parties shall meet with the mediator in a good faith attempt to resolve their
dispute. The parties shall continue to meet with the mediator until their
dispute is resolved or the mediator indicates that he or she does not believe
that further efforts are likely to result in a successful resolution.
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7.5 Savinas Clause
If any nonmaterial provision of this Agreement shall for any reason be held to be
invalid or unenforceable, the invalidity or unenforceability of such provision shall not
affect any of the remaining provisions of this Agreement and this Agreement shall
be enforced as if such invalid and unenforceable provision had not been contained
herein.
7.6 Section Headings
The Section and paragraph headings contained herein and the Table of Contents
attached hereto are for convenience in reference and are not intended to define or
limit the scope of any provision of this Agreement.
7.7 Amendment
This Agreement may be amended only by written agreement duly authorized and
executed by the parties hereto.
7.8 Assianabilitv
This Agreement is assignable with the written consent of both parties and shall be
binding upon and inure to the benefit of the parties hereto and their respective
heirs, successors in interest, and assigns. Such consent shall not be withheld
unreasonably, nor shall such consent be required in the event of any of the
following: (i) an assignment by operation of law or (ii) an assignment to a
subsidiary of Contractor.
7.9 Notices
Notices by either party to this Agreement to the other party shall be deemed given
if personally served or if sent by 'express mail or deposited in the United States mail
as certified mail, return receipt requested, postage prepaid, addressed to the other
party as designated below, or to such other place designated in writing.
Such notice shall be deemed effective on the date personally served or when
actually received. Notice that a party intends to rely upon the occurrence of an
event described in subsection 6.1.1 hereof to suspend obligations under this
Agreement may be given verbally; provided that written notice is provided
immediately following such verbal notification.
To City:
City Manager
10300 Torre Avenue
Cupertino, CA 95014
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To Contractor:
Zanker Road Resource Management, Ltd
675 Los Esteros Road
San Jose, CA 95134
7.10 Waiver
A waiver of any breach of any provision of this Agreement shall not constitute or
operate as a waiver of any other breach of such provision or of any other provision,
nor shall any failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision.
7.11 Law to Govern
It is understood and agreed by the parties that the law of the State of California
shall govern the rights, obligations, duties and liabilities of the parties to this
Agreement and shall govern the interpretation of this Agreement.
7.12 Attorney's Fees
In the event legal action is instituted to enforce this Agreement the prevailing party
shall be entitled to reasonable attorneys' fees and actual costs incurred in
connection with such action.
7.13 Entirety
The parties agree that this Agreement represents the full and entire agreement
between the parties to this Agreement with respect to matters covered herein.
II
II
II
II
II
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THE PARTIES TO THIS AGREEMENT hereby indicate their acknowledgment and
acceptance of the terms and conditions stated herein by the following signatures of
their duly authorized representatives.
.
Name: Chade5 K, bCt.V\
CITY OF CUPERTINO, CALIFORNIA
A Municipal CorRoration
B~~4
Name: R,'clMJ ~eJ/)-rt,.Q.. /
APPROVED AS TO FORM
AN D LEGALI
By:
Title:
City Attorney
Title:
Mayor
ATIEST:
By: ~~
Name: - K i mbe.( ; ,<)YYl~
10300 Torre Avenue
Cupertino, CA 95014
"City"
Title:
City Clerk
,....---.
/~R
BY:/-:;'~~~ ~
""':. ~
t~ame: _ ~~fi /j?)~r7i; L
Jesse Weigel
Title: General Manager
Name:
Zanker Road Resource Management, Ltd
(a California Limited Partnership)
675 Los Esteros Road
San Jose, CA 95134
ATIEST:
By:
Title:
"Contractor"
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Exhibit A.l Cost of Service
For materials delivered to the Zanker Road Landfill, the Rates shall be:
A.l. Yardwaste Processing
$44.00 per ton for Processing Yardwaste
A.2. Compostable Waste Processing
$59.00 per ton for Processing Compostable Waste
A.3. Cleanup of Contaminated Wastes (See Agreement Section 2.2.)
$65.00 per ton for processing Contaminated Materials
A.4. Cleanup of Hazardous Materials (See Agreement Section 2.2.)
$100.00 per ton for processing Hazardous Materials
A.5. Hauling Services (See Agreement Section 2.3.)
$180.00 per truck load (approximately 20 tons)
A.6. Reduction of City Compost (See Agreement Section 2.4.)
$0.24 per ton reduction in processing fee
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Exhibit A.2 Cost of Service
For materials delivered to the GreenWaste Recovery Processing Facility, the Rates
shall be:
A.1. Yardwaste Processing
$39.70 per ton for Processing Yardwaste
A.2. Compostable Waste Processing
$47.00 per ton for Processing Residential Yardwaste Containing Food Scraps
$74.00 per ton for Processing loads of Compostable Waste
A.3. Cleanup of Contaminated Materials (See Agreement Section 2.2.)
$65.00 per ton for processing Contaminated Materials
A.4. Cleanup of Hazardous Materials (See Agreement Section 2.2.)
$100.00 per ton for processing Hazardous Materials
A.5. Hauling Services (See Agreement Section 2.3.)
$180.00 per truck load (approximately 20 tons)
A.6. Reduction of City Compost (See Agreement Section 2.4.)
$0.24 per ton reduction in processing fee
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Exhibit E. Insurance Requirements
Before Contractor performs any work, Contractor shall furnish certificates of
insurance evidencing the foregoing insurance coverages and such certificates shall
provide the name and policy number of each carrier and policy and that the
insurance is in force and will not be canceled or modified without thirty (30) days
written notice to the City. Contractor shall maintain all of the foregoing insurance
coverages in force until work under this contract is fully completed. The
requirement for carrying the foregoing insurance shall not derogate from the
provisions for indemnification of the City by Contractor under this contract and for
the duration of the warranty period. Notwithstanding nor diminishing the
obligations of Contractor with respect to the foregoing, Contractor shall maintain in
full force and effect during the life of this contract, the following insurance in
amounts not less than the amounts specified and having a Best's Guide Rating of A,
Class VII or better or that is otherwise acceptable to the City.
The Contractor will be required to carry adequate insurance
including, but not limited to, comprehensive general liability, automobile
liability, workers' compensation and employers' liability. Insurance
coverage will, at a minimum, be as follows:
. General Liability - Combined single limit of $1,000,000 million per
occurrence; $2,000,000 million in the aggregate.
. Automotive Liability - combined single limit of $1,000,000 per occurrence.
. Worker's Compensation & Employer's Liability - In accordance with the
Worker's Compensation Act of the State of California - Worker's comp -
"statutory" per CA Law; Employers' Liability - $500,000 per occurrence.
. Hazardous Waste and Environmental Impairment Liability of $1,000,000 per
occurrence.
The Contractor shall name as additional insured the City of
Cupertino, and the Contractor's wholly or majority owned subsidiaries and
any interest which may now exist or hereinafter be created or acquired
which are owned or operated by anyone of those named insureds.
Contractor's insurers must be acceptable to the City. All
insurers must be identified by full name; rating, according to the latest
edition of Best's Key Rating Guide (or other listing acceptable to City); and
status as insurers admitted in California. If the company is not rated,
current financial information should accompany the quotation. The City
would prefer to use insurers with a Best's rating of at least A VI, but other
insurers will be considered.
Proof of insurance coverage must be submitted to City before
award of Contract.
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