HomeMy WebLinkAbout93-006 Zanker Road Resource Management 93-006 ZANKER ROAD RESOURCE MANAGEMENT
i
FIRST AMENDMENT TO AGREEMENT
FOR PROCESSING OF YARDWASTE INTO COMPOST
CITY OF CUPERTINO
THIS AGREEMENT is made, entered and is effective this 1st _
d..y of October 1996, by and between the CITY OF
CUPERTINO, CALIFORNIA, a California municipal corporation,
(hereinafter "City") and ZANKER ROAD RESOURCE MANAGEMENT, LTD. , a
California limited partnership (hereinafter "Contractor") .
RECITALS
A. On or about February 9, 1993 , City and Contractor
entered into an agreement for processing of yard waste into
compost;
S. The parties hereto desire to amend some of the
provisions of said agreement;
In consideration of the mutual promises, covenants and
conditions contained in this First :amendment to Agreement and for
other good and valuable consideration, City and Contractor hereby
agree that the following sections of the aforesaid agreement
dated February 9, 1993 are amended to read as follows:
(1) Section 2 . 3 is hereby amended in its entirety to read
as follows:
"Receipt of Compost.
City shall be responsible for hauling and distribution of a
portion of compost generated by Contractor at the Processing
Facility for Yardwaste delivered pursuant to this Agreement.
Contractor shall load the finished compost into City
supplied trucks and shall weigh the compost hauled away by
City.
The amount of compost to be hauled and distributed by City
shall be equal, on a monthly basis, to fifteen percent (15%)
of the weight of Yardwaste delivered to the Processing
Facility in accordance with this Agreement.
City shall pick up and haul away said compost on a regularly
scheduled basis as such compost is available. Contractor
will notify City when the compost is available for pickup
and the City shall have one hundred eighty (180) days from
the first of the month following the month in which the
Yardwaste is delivered to Contractor to pickup and haul away
said compost. In the event City does not pickup and haul
away said compost with said one hundred eighty (180) day
period, City shall lose the right to receive the compost not
picked up and that compost will be retained by Contractor,
free of charge. All compost delivered to the City pursuant
to this Agreement shall. be Contractor' s 7-Best Premium
Compost Blend. "
(2) Section. 2 . 5 is hereby added to said agreement to read
as follows:
112 . 5 Purchase of Additional Compost
City shall have the right to purchase from Contractor, on a
monthly basis, additional compost up to ten percent (10%) of
the weight of Yardwaste delivered to the Processing Facility
in accordance with this Agreement . The price paid for said
additional compost shall be $5 per ton which amount shall be
adjusted in accordance with Section 5. 3 hereof. City shall
give Contractor at least two weeks advance notice of its
desire to purchase additional compost. "
(3) Section 2 . 6 is hereby added to said agreement to read
as follows:
112 . 6 Reduction of Compost
The City may elect, upon thirty (30) days prior notice to
Contractor, to retain only ten percent ( 10%) of the compost
rather than the fifteen percent (1.6%) provided for in
paragraph 2 . 3 hereof. In the evrnt oZ said reduction,
Contractor shall reduce its then existing Tipping Fee by
fifty cents ($ . 50) per ton for such period of time as City
is receiving only ten percent (100) of the compost generated
from its Yardwaste . City shall be entitled to a reduction
up to three times per year during the term of this Agreement
or any extension hereof . "
(4) Section 2 . 7 is hereby added to said agreement to read
as follows:
112 .7 Exclusive Contractor
Subject to requirements of City' s franchise with its solid
waste hauler, City will exclusively utilize the Contractor
for all recycling and processing services for it' s curbside
generated yard wastes, for the term of this Agreement and
for any extensions thereof. "
(5) Section 2 . 8 is hereby added to said agreement to read
as follows:
2
o
"Exchange of Compost 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 Zanker for
its Z-Best Premium Compost Blend and the current price
charged for other products to 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 Zanker at their then current price. So
if gypsum was selling for $20 per ton, City would be
entitled to receive 100 tons of gypsum) . "
(6) Section 4.2 is amended in its entirety to read as
follows:
"Section 4.2 . Term. This agreement shall continue for five
(5) years from the date of this Agreement and City shall
have an option to renew this agreement for two additional
terms of five (5) years provided that City and Contractor
agree on the Tipping Fee to be charged for said extension or
extensions. "
(7) Section 5. 1 is hereby amended in its entirety to read
as follows:
115. 1 Tipping Fee
The Tipping Fee for the delivery of Yardwaste to the
Processing Facility (including processing and ultimate
conversion to compost or other usable materials at the
Processing Facility) initially shall be $24 . 00 per Ton,
commencing as of the date of this Agreement, which amount
shall be adjusted in accordance with Section 5. 3 hereof. "
(8) Section 5. 3 is amended in part to read as follows:
115. 3 Annual Adjustment of Tipping Fee
Section 5.3 is hereby amended to change the beginning date
to October 1, 1997 , and component "D" in the adjustment
formula shall be revised to read as follows:
'D = Eighty percent (800) of the net percentage change
in the Consumer Price Index (CPI) , all urban consumers
(CPI-U) , for San Francisco-Oakland, California,
published by the U.S. Department of Labor, Bureau of
Labor Statistics' . "
3
e
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(9) Section 7 . 3 is hereby added to said agreement to read
as follows:
"'7.3 Credit for Compost
On the date of this Agreement, Contractor shall credit City
with the sum of $5 per ton in exchange for all compost that
City has accumulated under this Agreement up to the date of
this Agreement" .
WHEREFORE, the parties hereto have set their hand and seal
on the date affixed next to their signature.
Dated: October 11. 1996 , 1996 CITY OF CUPERTINO, a
municipal corporation,
By: ak 1
It -Mayor
ZANKER ROAD RESOURCE
MANAGEMENT, LTD. , a California
limited partnership
By: ZANKER ROAD RESOURCE RECOVERY,
INC. , a California
corporation, General Partner
Richard A. Cristina, President
4
P.
PUBLIC WORKS
FEB 8 1993
AGREEMENT FOR PROCESSING OF YARDWASTE INTO COMPOST
BETWEEN
THE CITY OF CUPERTINO
AND
ZANKER ROAD RESOURCE MANAGEMENT, Ltd,
TABLE OF CONTENTS
SECTION PAGE
rFCITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
I . DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1 . 1 City. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1 .2 Contaminated Yardwaste . . . . . . . . . . . . . . . . . . 2
1 .3 Contractor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
1 . 4 Debris Box . . . . . . . . . . . . . . . . . . . . . . 2
1 . 5 Designated Hauler . . . . . . . . . . . . . . . . . . . . . . . 2
1 . 6 Hazardous Material . . . . . . . . . . . . . . . . . . . . . . 3
1 .7 Processing Facility . . . . . . . . . . . . . . . . . . . . . 3
1 . 8 Tipping Fee . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1 . 9 Ton . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
1 .10 Yardwaste. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 . CITY` S RESPONSIBILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2 .1 Delivery of Municipal Yardwaste. . . . . . . . . 4
2 .2 Unauthorized Waste . . . . . . . . . . . . . . . . . . . . . . 5
2 . 3 Receipt of Compost . . . . . . . . . . . . . . . . . . . . . . 5
2 .4 Purchase of Wood Chips/Ground Cover . . . . . 5
3 . CONTRACTOR' S RESPONSIBILITIES. . . . . . . . . . . . . . . . . . . . . 6
3 . 1 Receipt of Municipal Yardwaste . . . . . . . . . . 6
3 .2 Operational Requirements . . . . . . . . . . . . . . . . 7
3 .2 . 1 Hours . . . . . . . . . . . . . . . . . . . . . . . . . . . .
3 .2 .2 Scales, Cubic Yard Conversion. . . . 7
3 .2 . 3 Records . . . . . . . . . . . . . . . . . . . . . . . . . . 7
3 . 3 Designated Haulers . . . . . . . . . . . . . . . . . . . . . . 8
3 . 3 . 1 Acceptance of Waste . . . . . . . . . . . . . . 8
3 . 3 . 2 City Designation. . . . . . . . . . . . . . . . . 8
3 .4 Compliance with Laws and Regulations . , . . 8
3 . 5 Permits, Licenses, Approvals . . . . . . . . . . . . 9
3 . 5 . 1 Contractor to Obtain . . . . . . . . . . . . . 9
3 .6 Inspection of Operations. . . . . . . . . . . . . . . . 9
3 . 7 Safety Provisions . . . . . . . . . . . . . . . . . . . . . . . 9
4 . TERM OF AGREEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
4 . 1 Effective Date of Performance. . . . . . . . . . . 10
4 . 2 Term. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
i .
COMPENSATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5 . 1 Tipping Fee. . . . . . . . . . . . . . . . . . .. . . . . . . . . . . 10
5 . 2 Hazardous Material Cost . . . . . . . . . . . . . . . . . 10
5 .3 Annual Adjustment of Tipping Fee . . . . . . . . 11
5 . 4 Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
5 .4 . 1 Monthly Invoice and Report . . . . . . . 13
5 .4 .2 Time of City 's Payment . . . . . . . . . . . 13
5 . 5 Full Payment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
5 . 6 Additional Governmental Charges. . . . . . . . . 14
6 . ASSURANCE OF PERFORMANCE. . . . . . . . . . . . . . . . . . . . . . . . . . 14
6 . 1 Force Majeure. . . . . . . . . . . . . . . . . . . . . . . . . . . 14
6 . 1 .1 Events Resulting in Force Majeure 14
6 . 1 .2 Suspension of Obligations. . . . . . . . 15
6 . 1. 3 Alternative Disposal Arrangements 15
6 .2 Insurance Requirements . . . . . . . . . . . . . . . . . . 16
6 . 3 Hold Harmless and Indemnification . . . . . . . 16
6 .3 .1 By Contractor . . . . . . . . . . . . . . . . . . . . 16
6 .3 .2 By City. . . . . . . . . . . . . . . . . . . . . . . 17
6. 3 . 3 Negligence Defined. . . . . . . . . . . . . . . 18
6 .3 .4 Notice and Access . . . . . . . . . . . . . . . . 18
6. 3 .5 Insurance Coverage. . . . . . . . . . . . . . . 19
6 .3 . 6 Survival . . . . . . . . . . . . . . . . . . . . . . . . . 19
7 . GENERAL PROVISIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
7 . 1 Independent Contractor . . . . . . . . . . . . . . . . . . 19
7 . 2 City War.•ranty . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
7 .3 Venue. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
7 . 4 Savings Clause. . . . . . . . . . . . . . . . . . . . . . . . . . 21
7 . 5 Section Headings . . . . . . . . . . . . . . . . . . . . . . . . 21
7 .6 Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7 . 7 Assignability. . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7 . 8 Notices. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7 . 9 Waiver . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7 . 10 Law to Govern . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
7 . 11 Attorney' s Fees . . . . . . . . . . . . . . . . . . . . . . . . . 23
7 .12 Entirety. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
EXHIBITS
"A" Unincorporated Geographic Area of Santa Clara County
"B" Equivalent Weight of Municipal Solid Waste
"C" Report of Refuse Received at the Recyclery/Zanker
Road Processing Facility
"D" Insurance Requirements
ii .
AGREEMENT FOR PROCESSING OF YARDWASTE INTOCOMPOST
THIS AGREEMENT is made and entered into this day of
1993, by and betwee,� the CITY OF CUPERTINO,
CALIFOR IA, a California municipal corporation (herein "City" ) ,
and ZANKER ROAD RESOURCE MANAGEMENT , Ltd . , a California Limited
Partnership ( herein "Contractor " ) .
R E C I T A L S :
WHEREAS, City desires to contract for "recycling" of its
residential yardwaste into compost and other usable materials
in order to avoid landfilling of this material ; and
WHEREAS, Contractor owns and operates the Zanker Road class
III landfill ( the "Processing Facility" ) and is in the
business of accepting yardwaste and converting it into compost
and other usable materials .
NOW THEREFORE, in consideration of the mutual promises,
covenants and conditions contained in this Agreement , and for
other good and valuable consideration, the par ;::ies to this
Agreement hereky agree as follows .
1 .
-rF.CT:CN 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 and all of
the geographic area lying within such unincorporated
areas of Santa Clara County, California as are set forth
and described in Exhibit °A' , attached hereto and made a
part hereof .
1.2 Contaminated Yardwaste
"Contaminated Yardwaste" means any material, other than
hazardous materials, not normally produced from gardens
or landscapes such as, but not limited to, brick, rocks,
gravel, large quantities of dirt, concrete, sod, non-
organic wastes, oil, and wood or wood products. Also
included are stumps and diseased elms and other, diseased
trees and fibrous materials, such as palm branches.
1 . 3 Contractor
'Contractor° means Zanker Road Resource Management, Ltd. ,
a California limited partnership, its successors and
assigns .
1 . 4 Debris Box
•Debris Box' means a roll-off waste container used to
collect, without compaction, construction debris and
similar materials .
2 .
1 . 5 Desionated Hauler
"Designated Hauler " means the waste haulers named by City
pursuant to subsection 3 . 3 . 2 to deliver yardwaste to the
Processing Facility.
1.6 Hazardous Material
"Hazardous Material" 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, tLansported, or disposed of, or otherwise
managed .
1 .7 Processing Facility
"Processing Facility" means the equipment and property
used by Contractor to process yardwaste at the Zanker
Road Class III Landfill located at 705 Los Esteros Road,
San Jose, California, 95134 , or the equipment and
property used by the Contractor to process yardwaste at
the Owens-Corning landfill site located on Los Esteros
Road, San Jose, California , 95134 , if and when said
Owens-Corning site is fully permitted.
3 .
1 . 8 Tipping Fee
"Tipping Fee" means the amount , as set forth in Section
5 , payable by City to Contractor for each Ton of
Yardwaste delivered to the Processing Facility pursuant
to this Agreement .
1 .9 Ton
"Ton" means a short Ton of 2 , 000 pounds avoirdupois .
1 . 10 Yardwaste
"Yardwaste" means all materials containing not less than
99% by weight, per load, of plant debris, including grass
clippings, leaves, prunings, branches, brush, tree trunks
not exceeding six ( 6 ) inches in diameter , and other forms
of organic waste generated from landscapes and gardens .
SECTION 2 . CITY ' S RESPONSIBILITIES
2 . 1 Delivery of Municipal Yardwaste
Subject to the other provisions of this Agreement, during
the term of this Agreement , City will deliver or cause
delivery of Yardwaste to the Processing Facility for
conversion into compost and other usable materials in
accordance with thi= Agreement .
4 .
2 .2 Unauthorized Waste
City and City's Designated Hauler shall use reasonable
business efforts to prevent delivery to the Processing
Facility by City or City's Designated Haulers of
Contaminated Yardwaste or Hazardous Materials. Minimal
amounts of such material are expected to be mixed with
delivered Yardwaste, however, this minimal amount shall
not exceed one percent by weight, per load. City shall
pay Contractor a cleanup charge of $40 (forty dollars)
per ton for the entire truckload of Contaminated
Yardwaste or Hazardous Materials whenever said one
percent limnit is exceeded as shown in the following
example:
Example: Eight ton load with over one percent
Contaminated Yardwaste ( 8 tons x $40 .00 = $320 .00 for
this load ) .
Contractor shall notify City and Designated Hauler by
phone or Facsimile within 24 hours of finding a load of
Contaminated Yardwaste and shall provide information
regarding time of day received, truck number and type of
contamination . A representative of tre Designated
Hauler , and the City if it desires, shall be provided a
reasonable opportunity to examine the contamin< _ed load
prior to the cleanup charge being levied .
2 . 3 Receipt of Compost
City shall be responsible for hauling and distribution of
a portion of compost generated by Contractor «t the
Processing Facility for Yardwaste delivered pursuant to
this Agreement . Contractor shall load the finished
compost into City supplied trucks and shall weigh the
compost hauled away by City.
5 .
The amount of compost to ce '..auiec and districutec
City seal: to equal , on an.. annual basis , to the lesser of
( a ) twenty-five ( 25% ) Fercent cf the weight of Yardwaste
delivered to the Processing Facility in accorcance with
this Agreement or ( b ) ene hundred ( 100% ) percent of the
compost produced from the Yardwaste delivered to the
Processing Facility in accordance with this Agreement .
City shall pick up and haul away said compost on a
regularly scheduled basis as such compost is available .
The process time to convert the Yardwaste to compost is
approximately ninety ( 90 ) days . Contractor will notify
City when the compost is available for pickup and the
City shall have thirty ( 30 ) days to pickup and haul away
said compost .
2 .4 Purchase of Wood Chips/Ground Cover
In order to fulfill the requirement of AB 939, City shall
have the option, on reasonable notice, to purchase up to
one hundred percent ( 100% ) of the wood chips/ground cover
produced from the yard 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 customers .
SECTION 3 . CONTRACTCR"S RESPONSIBILITIES
3 . 1 Receipt of. Municipal Yardwaste
During the term of this Agreement , Contractor shall
receive all Yardwaste delivered to the Processing
Facility in accordance with Lhis Agreement .
6 .
3 .2 Operational Recuirements
3 . 2 . 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 .2.2 Scales; Cubic Yard Conversion}
Contractor shall operate and maintain a scale
or scales to weigh awl Yardwaste delivered by
Designated to the Processing Facility.
In the event that the scales are temporarily
out of service to weigh Yardwaste delivered to
the Processing Facility, then, for the pur-
poses 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" , attached hereto and made
a part hereof. Upon reaGonable prior notice,
City or City's designated representative shall
have a right to inspect said scales at any
time during normal business hours provided
that such representative does not interfere
with work being performed by Contractor.
7.
3 .2 . 3 Records
Contractor shall maintain daily records for
each Designated Hauler necessary to compile the
monthly report to be provided by Contractor
pursuant to subsection 5 .4 . 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
provided that such representative does not
interfere with work being performed by
Contractor .
7A.
3 .3 Designated Haulers
3 .3 . 1 Acceptance of Waste
Subject to provisions of this Agreement,
Contractor shall accept all Yardwaste from
City 's Designated Haulers and shall charge City
the Tipping Fee and other charges that are
provided in this Agreement .
3 . 3 . 2 City Designation
City shall designate those waste haulers
responsible for delivery of Yardwaste 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.
3 .4 Compliance with Laws and Regulations
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 e:iacted and become
effective, which are applicable to Contractor , its
employees, agents, or subcontractors, if any, 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.
8 .
3 . 5 Permits, Licenses , Approvals
3 . 5 . 1 Contractor to Obtain
Subject to the other terms and conditions of
this Agreement, Contractor shall be
responsible, at its sole expense, -Ior 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 .6 Inspection of Operations
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 . 7 Safety Provisions
Contractor shall operate the Processing Facility in
compliance with all applicable federal, state and local
laws and regulations pertaining to safety.
9 .
SECTION 4 . TERM OF AGREEMENT
4 . 1 Effective Date of Performance
Performance hereunder shall be deemed to have commenced
on February 9 , 1993 .
4 .2 Term
This Agreement shall continue in full force and effect
for five years from the effective date of performance.
SECTION 5 . COMPENSATION
5 .1 Tipping Fee
The Tipping Fee for the delivery of Yardwaste to the
Processing Facility ( including processing and ultimate
conversion to compost or other usable materials at the
Processing Facility) initially shall be $28 . 50 per Ton
which amount shall be adjusted in accordance with Section
5 .3 .
5 . 2 Hazardous Material Costs
In the event City or Designated Hauler delivers to the
Processing Facility Yardwaste which contains Hazardous
Material , City shall pay to Contractor the sum of $40 per
ton for said Hazardous Material load as provided in
paragraph 2 .2 hereof . In addition to said $40 per ton
charge, City shall arrange for the prompt pickup and
proper disposal of said Hazardous Material .
10 .
5 .s Annual Adjustment of Tipping Fee and Other Charges
The Tipping Fee and other charges provided for in this
Agreement shall be adjusted as of January 1 of each year ,
begir ing as of January 1 , 1994 , ( the "Rate Adjustment
Date" ) in accordance with the following formisla :
P = A ( . 1 x B + . 1 x C + . 8 x D)
A = The Tipping Fee. As of the date of this
Agreement, the Tipping Fee is $28 . 50 .
B = The net percentage change in the Employment
Cost Index (Compensation ) , Private Industry
Workers - Non-manufacturing, published by the
U.S. Department of Labor , Bureau of Labor
Statistics.
C = The net percentage change in the Gross National
Product Implicit Price Deflator for Producer ' s
Durable Equipment ( non-residential ) , published
quarterly by the U.S . Department of Commerce,
Bureau of Economic Analysis .
D = The net percentage change in the Consumer Price
Index (CPI ) , All Urban Consumer (CPI-U) , for
San Francisco-Oakland, California, published by
the U.S. Department of Labor , Bureau of Labor
Statistics .
P = The amount of adjustment to the Tipping Fee for
the new twelve ( 1.2 ) month period.
11 .
All "net percentage charges" , as that phrase is used above, are to
be computed a: the difference between the applicable index values
for the month of September immediately prior to the current Rate
Adjustment Date and for the month of September immediately prior
to the last Rate Adjustment Date (September 1992 in the case of
the first adjustment hereunder ) , divided by the index value for
the month of September 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
consic' -red in making adjustment .
Should the indices named in this Section not be published for
September of any given year , the calculations shall be performed
using the index value as published for the last month immediately
preceding the September in question (ot , in the case of a
quarterly published index, the index value for the quarter
including the September in question ) .
Should the indices named in this Section be discontinued ,
successor indices shall replace same . Successor indices shall be
those indices which are most closely equivalent to the
discontinued indices as recommended by the publishing agency.
12 .
5 . 4 Payment
5 . 4 . 1 Monthly Invoice and Repert
On or before the tenth ( loth) day of each
month, Contractor shall submit to City an
invoice for the preceding month. Said invoice
shall state the Tipping Fee and other charges
then in effect and the amount due for the
invoice month 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
"C" and made a part hereof .
5 . 4 .2 Time of City' s Payment
City shall review the monthly invoice and the
monthly report received from Contractor . City
shall have ten ( 10 ) 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 with thirty ( 30 ) days of
receipt of the requested information, or , if no
additional information is requested, within
thirty ( 30) days of receipt of the invoice and
report .
13 .
5 . 5 Full Pavment
Contractor hereby agrees to accept payments from City as
described above as full compensation for services
rendered under this Agreement .
5 .6 Additional Governmental Charges
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 , and which relate specifically to the
conversion of City' s Yardwaste into compost and other
usable materials, such expenses, charges, fees , or taxes
shall be added to the Tipping Fee on a prorata basis,
based on the percentage that the total tonnage of
Yardwaste delivered to the Processing Facility pursuant
to this Agreement bears to the total tonnage of Yardwaste
delivered to the Processing Facility from all sources .
SECTION 6 . ASSURANCE OF PERFORMANCE
6 . 1 Force Majeure
6 . 1 . 1 Events Resultir.a in Force Majeure
The obligations of City and Contractor are subject to
riots , wars, civil disturbance;, 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.
14 .
It i-- specifically understood that "other 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 Disposal Arrangements
In the event that Contractor fails or is unable
to accept any Yardwaste which it is obligated
to accept and process under t-he 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 at
the Processing Facility,
15 .
Contractor shall transport such Yardwaste to an
alternate processing facility selected by
Contractor at no additional cost to City for
hauling/processing or in the alternative, at
Contractor 's option, shall reimburse City for
any and all extra costs incurred by City for
hauling/processing, over and above the Tipping
Fee, to use such other location . 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
it 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 "D" , entitled
"INSURANCE REQUIREMENTS" , attached hereto and made a part
hereof . Within ( 30 ) days of the effective date of this
Agreement , Contractor shall submit proof of the aforesaid
coverage in the form of Certificates of Insurance, with
copies of all required endorsements attached thereto, to
City.
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,
16 .
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;
( iiiMo ntractor ' s breach of this Agreement ; or
( iv) Contractor 's operation of the Processing
Facility.
6 .3 .2 By 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:
M City ' s sole negligence;
( ii ) City's comparative share of the joint
negligence of the parties;
17 .
(iii) City's breach of this Agreement; or
(iv) Delivery by City of materials or
substances to the Processing Facility
which are Contaminated Yardwaste or
Hazardous Material. 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 Negligence 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 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
18.
( 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 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 Coverage
Provision of the insurance coverages set forth
in Section 6 .2 does not relieve Contractor or
its subcontractor from liability under the
above hold harmless/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;
19 .
that Contractor small have exclusive control of ana the
exclusive right to �-cn� 1 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,
( b) of any judgement , 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
20 .
( iii ) this Agreement constitutes a valid and indir.g
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 electea 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 . 4 Savings 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 . 5 Section Headings
The Section and paragraph headings contained herein and
the table cf contents attached hereto are for convenience
in reference and are not intended to define or limit the
scope of any provision of this Agreement .
21.
e '
1 .6 Anendment
This Agreement may be amended only by written agreement
duly authorized and executed by the parties hereto .
7 . 7 Assignability
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 . 8 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
22 .
To Contractor :
Zanker Road Resource Management, Ltd.
625 Charles Street
San Jose, CA 95112
7 . 3 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 . 10 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 . 11 Attorney ' s Fees
In the event 1Pgal 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 .12 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.
23 .
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 .
APPROVED AS TO FORM AND CITY OF CUPERTINO, CALIFORNIA,
LEGALITY: a municipal corporation,
By: Charles Kilian By: Nick Szabo '
Name Name. A r
Title. City Attorney TitlLI/
y r
10300 Torre Avenue
ATTEST: Cupertino, California 95014
BY:,� t 'City,
Name: Roberta Wolfe
Title: City Clerk
It
Alec
Zanker Road Resource Management,
Ltd. , a California Limited
Partnership
Zanker Road Resource Recovery,
Inc. , a California corporation,
general partner
Name: w=f _
Title: President
625 Charles Street
San Jose, CA 95112
ATTEST:
By: �v
�r 'Contractor'
Name:
Title: — G
24 .
EXHIBIT "A"
UNINCORPORATED GEOGRAPHIC AREA OF
SANTA CLARA COUNTY
INCLUDED WITHIN DEFINITION OF CITY
See Attached Map
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8' JFJ
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EXHIBIT A
CUPERTINO BOUNDARY MAP
` AGREEMENT FOR PROCESSING OF
YARDWASTE INTO COMPOST,
ZANKER ROAD RESOURCE
MANAGEMENT, LTD. AND
CITY OF CUPERTINO
4
i
EXHIBIT "B"
EQUIVALENT WEIGHT
OF YARDWASTE
Typc of. Vehicle/Container Ton Equivalent
Per Cubic Yard
1 . Compacted Yardwaste
a . Front Loader or
Side Loader Vehicle . 375 Ton/Cubic Yard
b. Rear Loader Vehicle . 375 Ton/Cubic Yard
2 . Debris Box ( Loose Yardwaste) . 10 Ton/Cubic Yard
a
3y�t1
—✓"Noy J S 1 '�`4a�
yso')
3y�N
so
Son SO
EXt?IBIS "U°
INSURANCE REQUIREMENTS
A. ( 1 ) An EXTENDED BROAD FORM MINIMUM COMPPEHENSIVE GENERAL
LIABILITY INSURANCE POLICY covering Bodily Injury and
Property Damage with a combined singie limit of at least
Two Million Dollars ( $2 ,000 ,000 ) per occurrence providing
the following coverages :
(a ) Premises Operations
(b) Independent Contractors
( c) Contractual Liability ( for liability of others
assumed by the Subcontractor in the contract between
the Subcontractor and Contractor ) .
( d) Property Damage Liability arising out of the 'XCU'
hazards ( explosion, collapse and underground
damage ) .
(e ) Completed Operations - Products
( f ) Broad Form Property Damage Endorsement
( g) Personal Injury Endorsement
(2 ) A WORKERS' COMPENSATION AND EMPLOYERS ' LIABILITY POLICY
( if required by State law) written in accordance with the
laws of the State of California and providing the
following coverages for any and all employees of
Contractor :
(a ) Statutory workers ' Compensation Coverage A
( statutory limit) .
( b ) Employees ' Liability Insurance -- Coverage B. Not
less than: $100 , 000 each accident/BI , $500 , 000
Policy limit BI by disease and $100, 000 each
employee BI by disease .
( 3 ) A COMPREHENSIVE VEHICLE POLICY with a minimum combined
limit of not less than One Million Dollars ($1, 000,000 )
for bodily injury and property damage, applicable to
vehicles used pursuit of any of the activities associatea
with this Agreement and providing the following coverages
(without deductibles) :
(a ) All owned vehicles
( b) Employer ' s Non-ownership Liability
(c) Hired vehicles or motorized equipment
EXHIBIT "D' (Continued )
( 4 ) ENDORSEMENTS AND CLAUSES . All of the following clauses
and endorsements, of similar provisions, are required to
be made a part of each of the above required policies :
(a) A 'Cross Liability" or 'Severability of Interest"
clause; and
( b) City, its employees, officers, agents and
contractors are hereby added as insureds with
respect to all exposures or occurrences arising out
of Contractor ' s obligations or performance under
this Agreement; and
(c) This policy shall be considered primary insurance as
respects any other valid and collectible insurance
City may possess, including any self-insured
retention City may have, and any other. insurance
City possesses shall be considered excess insurance
only; and
(d) NO CANCELLATION OR NON-RENEWAL OF THIS POLICY OR
MODIFICATION OF THE COVERAGE AFFORDED UNDER THIS
ENDORSEMENT SHALL BE EFFECTIVE UNTIL WRITTEN NOTICE
HAS BEEN GIVEN AT LEAST THIRTY ( 30 ) DAYS PRIOR TO
THE EFFECTIVE DATE OF SUCH MODIFICATION OR
CANCELLATION TO THE CITY OF LOS ALTOS, CALIFORNIA.
ATTENTION: CITY MANAGER.
B. PROOF OF INSURANCE COVERAGE AND COVERAGE VERIFICATION. A copy
of the Certificate of Insurance and completed coverage
verification shall be provided to City by each of the
Contractor ' s insurance companies as evidence of the stipulated
coverages within thirty (30 ) days of the effective day of this
Agreement . The Certificate(s) of Insurance and coverage
verification shall be mailed to City.
RESOLUTION NO. 8831.
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AUTHORIZING EXECUTION OF AGREEMENT
BETWEEN ZANKER ROAD RESOURCE MANAGEMENT, LTD.
AND THE CITY OF CUPERTINO PROVIDING FOR THE
PROCESSING OF YARD WASTE INTO COMPOST
WHEREAS, there has been presented to the City Council a proposed agreement
between Zanker Road Resource Management, Ltd. and the City of Cupertino providing
for the processing of yard waste into compo-st; and
WHEREAS, the provisions, tc, ms and coiaditions of said agreement have been
reviewed and approved by the Director of Public Works and the City Attorney;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Cupertino hereby approves the aforementioned agreement and authorizes the Mayor and
the City Clerk to execute said agreement on behalf of the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 16th day of y February , 1993 by the following vote:
Vote Members of the City Council
AYES: Dean, Goldman, Koppel, Sorensen, Szabo
NOES: None
etfE t. 7❑ CERTIFY -'rt,;,'i" ^t :'/iTNIN
id i'(idUNIENT ISA'TRuE A.ND CORRECT COPY
ABSENT: None
OF THE ORMINAI_ ON TILL IN THIS OFFICE.
ATTEST
ABSTAIN: None CITY CLCR [3F- THE CITY OF CLIPERT NO
BY
*U Y
ATTEST: APPROVED:
/s/ Dorothy Cornelius /s/ Nick Szabo
City Clerk Mayor, City of Cupertino
705 Los Esteros Road
San Jose, CA 95134
n e r Phone: 408-263-2385
Road Landfill
Fax: 408-263-2393
March 10, 1993
City of Cupertino
10300 Torre Avenue
Cupertino, Ca.95014
Attention: Dorothy Cornelius, City Clerk
Department of Public' Works
Agreement between the City of Cupertino and Zanker Road Resource
Management Limited.
Enclosed please find one ( 1 ) signed copy of the Agreement by and
between the City of Cupertino and Zanker Road REsource Management
Limited which has been fully executed.
Sincerely,
4�-r
r
Hazel Rundquist
Enc.
printed can reeve ec paper.
4
Out of Cie perti"o
10300 Torre Avenue
Cupertino.CA 95014-3255
Telephone:1408)252-4505
FAX:(408)252-0753
DEPARTMENT OF THE CITY CLERK
March 2, 1993
Rich Cristina
Christina and Hall
625 Charles Street
San Jose, CA 95112
AGREEMENT BETWEEN THE CITY OF CUPERTINO AND ZANKER ROAD RESOURCE MANAGEMENT, LTD.
We are enclosing to you two (2) copies of the Agreement by and between the
City of Cupertino and Zanker Road Resource Management, Ltd. , which has
been fully executed by City Officials, along with two (2) certified copies
of Resolution No. 8831, which was enacted by the City Council of the City
of Cupertino, at their regular meeting of Tuesday, February 16, 1993.
Would you please after completion by Zanker return one (1) copy to this
office.
Thank you for your cooperation.
Sincerely,
or
DOROTHY CORNELIUS
CITY CLERK
CITY OF CUPERTINO
DC/so
encl.
cc: Department of Public Works
RIESOL.UTION NO. 8831
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CUPERTINO AUTHORIZING EXECUTION OF AGREEMENT
BETWEEN ZANKER ROAD RESOURCE MANAGEMENT, LTD.
AND THE CITY OF CUPERTINO PROVIDING FOR THE
PROCESSING OF YARD WASTE INTO COMPOST
WHEREAS, there has been presented to the City Council a proposed agreement
between Zanker Road Resource Management, Ltd. and the City of Cupertino providing
for the processing of yard waste into compost; and
WHEREAS, the provisions, terns and conditions of said agreement have been
reviewed and approved by the Director of Public Works and the City Attorney;
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Cupertino hereby approves the aforementioned agreement and authorizes the Mayor and
the City Clerk to execute said agreement on behalf of the City of Cupertino.
PASSED AND ADOPTED at a regular meeting of the City Council of the City of
Cupertino this 16th day of February , 1993 by the following vote:
Vote Memh;;rs of the City Council
AYES: Dean, Goldman, Koppel, Sorensen, Szabo
NOES: None
ABSENT: None
ABSTAIN: None
ATTEST: APPROVED:
Lt�( �Q,V
City Clerk Mayor,City of Cupertino
v
CITY OF CU'PER•s INO
INTERDEPARTMENTAL Date FEBRUARY 18, 1993
To CITY CLERK From PUBLIC WORKS--SUMI
Q Information MESSAGE: AGREEMENT FOR PROCESSING OF YARDWASTE INTO COMPOST
0 Implement ZANKER ROAD RESOURCE MANAGEMENT, LTD. (CC 2116193_
0 Investigate
LJ Discuss TRANSMITTED ARE TWO SETS OF A R EHM WHICH RF4UIRE ENE UJION
U See me BY BOTH CUPERTINO AND ZANKER. AFTER ACTION BY CITY, FORWARD
CJ Reply BOTH COPIES TO ZANKER FOR ITS ACTION: AFTER WHICH A FULLY
EXECUTED COPY WILL BE RETURNED TO THE rITY. CONTACT PERSON FOR
ZANKER IS: RICH CRISTINA
CRISTINA AND HALL
625 C:HARi FS STRFFT
Reply•
SAN JOSE CA 95112
am _
attach.
SIGNED: DATE
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