HomeMy WebLinkAboutCompostUSA of Sumter County, LLC -Biosolids Treatment Agreement - Fully Executed 12-16-16 (2) BIOSOLIDS TREATMENT AGREEMENT
THIS BIOSOLIDS TREATMENT AGREEMENT (the "Treatment Agreement" or "Agreement")
is made and entered into on this 16 of December, 2016�y C mpostUSA Hof'Sumter County, LLC, a
Florida limited liability company, whose address is i -J. / X 6 97 t- OWO /Z - (herein,�N/7(0
"Treatment Facility"), and the CITY OF WINTER SPRINGS, a Florida municipal corporation whose
address is 1126 E. State Road 434, Winter Springs, Florida 32708 (herein"Source Facility").
RECITALS
WHEREAS, Source Facility is a public entity that produces biosolids from wastewater treatment
activities and desires to enter into a contract with Treatment Facility for the treatment and disposal of said
biosolids; and
WHEREAS, Treatment Facility is the operator of a Residuals Management Facility (RMF), and said
RMF has been approved and is operating under a Florida Department of Environmental Protection
(FDEP)permit(Facility ID:FLA841692); and
WHEREAS, Treatment Facility is responsible for the maintenance and operations of an RMF in
compliance with 40 CFR Part 503, Chapter 62-640, F.A.C., FDEP Permit #FLA841692, and all other
applicable local, state, and federal laws and regulations; and
WHERAS, a biosolids treatment management facility such as Treatment Facility shall be responsible for
proper treatment, management, use, land application, and disposal of biosolids it accepts from a Source
Facility according to the requirements of Chapter 62-640, F.A.C.;
WHEREAS, Source Facility shall not be held responsible for treatment, management, use, land
application or disposal violations that occur after its biosolids have been accepted by a permitted biosolids
Treatment Facility in accordance with Section 62-640.880(i)(c);and
WHEREAS, as a condition precedent to obtaining a valid operation permit for the RMF, FDEP requires
Treatment Facility to file a Facility Management Plan whereby Treatment Facility certifies that their
residuals shall be composted to meet Class AA standards; and
WHEREAS, Treatment Facility has entered into a separate agreement with P&H Senesac, Inc.
("Transportation Company"), to accept biosolids that have been generated by Source Facility and
dewatered and transported by Transportation Company.;and
WHEREAS, Treatment Facility has a total capacity of 1750 tons per week available for residuals
treatment;and
NOW THEREFORE, in consideration of the mutual covenants herein contained and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties above
named hereby agree as follows:
1.0 Recitals. The foregoing recitals are incorporated herein by reference as though fully set forth below.
2.0 Source Faeilit� Responsibilities. The Source Facility agrees to undertake the following obligations
pursuant to this Treatment Agreement.
2.1 Produce residuals that meet the chemical criteria as stated in Chapter 62-640,F.A.C., and any
other applicable federal or state requirements. The quality of residuals for composting under
the Treatment Facility's permits are at a minimum, Sub Class B stabilized as defined in 40
CFR Part 503 and 62-640, F.A.C. Treatment Facility shall not accept residuals that have
been lime sterilized. Source Facility further warrants that the residuals shall not contain
hazardous,toxic, industrial, or radioactive waste or prohibited substances except as permitted
by applicable federal or state laws or regulations. Source Facility shall screen its digester
tanks to remove rags and trash material prior to conveyance or transfer to P&H Senesac, Inc.
for dewatering.
3.0 Treatment Facility Responsibilities. The Treatment Facility agrees to undertake the following
obligations pursuant to this Treatment Agreement.
3.1 Treatment Facility agrees to accept Source Facility's produced biosolids for treatment and
disposal. Treatment Facility warrants that, as provided above, it has sufficient permitted
capacity to receive Source Facility's estimated annual dry tons of biosolids of approximately
550 dry tons.
3.2 Treatment Facility shall also comply with all requirements of federal, state, and local laws,
rules, regulations, standards, and/or ordinances applicable to the performance of services
under this Treatment Agreement, including, but not limited to Chapter 62-640 F.A.C.
Treatment Facility shall also secure and maintain any and all permits and licenses required to
complete this Treatment Agreement.
4.0 Compensation. Treatment Facility hereby acknowledges and agrees that Source Facility shall not
pay any compensation to Treatment Facility for the services herein described. Rather, Treatment
Facility acknowledges that all payment for acceptance of biosolids shall be made by P&H Senesac,
Inc., in accordance with that separate agreement entered into by P&H Senesac, Inc. and Treatment
Facility.
5.0 Resection bN Treatment Facility. Treatment Facility will endeavor to accept biosolids delivery at all
times delivery is attempted. Treatment Facility may reject biosolids if the material does not meet the
criteria described above and/or if acceptance of the biosolids by Treatment Facility will cause a
violation of any permit required to perform the services under this Agreement.
6.0 Term. The term of this Agreement shall be one(1)year from the date of the execution by both parties
to this Agreement. The parties may extend this Agreement in one (1) year renewal increments by
mutual written agreement of the parties.
7.0 Termination. Either party may terminate this Agreement if the other party is in material violation of
any term or conditions set forth in this Agreement by providing the other party with ten (10) days
written notice of termination. Said notice shall state with specificity the reason for the termination
notice and shall provide the other party with at least ten (10) days in which to cure the material
violation to the reasonable satisfaction of the other party. In addition, the Source Facility may
tenninate this Agreement for convenience, without penalty, by providing the Treatment Facility with
at least sixty(60)days written notice of said termination.
8.0 Venue, Applicable Law, and Severabilit . This Agreement shall be deemed to be a contract made
under the laws of the State of Florida, and shall for all purposes be construed and enforced in
accordance with the laws of the State of Florida. In the event that either parry deems it necessary to
institute legal action arising from this Agreement, such action shall be instituted in Seminole County,
Florida. If any provision shall be held invalid or unenforceable, the validity and enforceability of the
remaining provisions shall not be impaired.
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9.0 Force Maieure. In the event any party hereunder fails to satisfy a requirement imposed by this
Agreement in a timely manner, due to a hurricane, flood, tornado, or other Act of God or force
majeure (not to include a strike or work stoppage), then said party shall not be in default hereunder;
provided,however,that performance shall recommence in a reasonable time there-after.
10.0 Notice. Any notice,request, instruction,or other document to be given as part of this Agreement
shall be in writing and shall be deemed given under the following circumstances: when delivered in
person; or three (3) business days after being deposited in the United States Mail, postage prepaid,
certified or registered;or the next business day after being deposited with a recognized overnight mail
or courier delivery service; or when transmitted by facsimile or telecopy transmission, with receipt
acknowledged upon transmission; and addressed as follows (or to such other person or at such other
address,of which any party hereto shall have given written notice as provided herein):
TO THE SOURCE FACILITY:
City Manager
City of Winter Springs
1126 East State Road 434
Winter Springs,FL 32708-2799
407-327-1800(Phone)
407-327-4753 (Fax)
WITH A COPY TO:
Anthony A.Garganese
City Attorney
Garganese,Weiss&D'Agresta,P.A.
1 i 1 N. Orange Avenue, Suite 2000
P.O.Box 2873
Orlando,FL 32802-2873
407-425-9566(Phone)
407-425-9596(Fax)
TO TREATMENT FACILITY: �p X45!(JSr dt"° ,JdrJ M4_ CTV
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11.0 Insurance
11.1 LiabilitN Amounts. During the term of this Agreement, Treatment Facility shall be
responsible for providing the types of insurance and limits of liability as set forth below.
11.1.1 The Treatment Facility shall maintain commercial general liability insurance
coverage, including but not limited to, premises operations, products/completed
operations, products liability, contractual liability, advertising injury, personal
injury, death, and property damage in the minimum amount of$1,000,000 for
each occurrence and $2,000,000 general aggregate to protect the Treatment
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Facility from claims which may arise from any Services performed under this
Agreement whether such Services are performed by the Treatment Facility or by
anyone directly employed by or contracting with the Treatment Facility.
11.1.2 The Treatment Facility shall maintain commercial automobile liability insurance
in the amount of$1,000,000 combined single limit bodily injury to protect the
Treatment Facility from claims for damages for bodily injury,including wrongful
death, as well as from claims from property damage, which may arise from the
use of non-owned automobiles, including rented automobiles whether such
operation be by the Treatment Facility or by anyone directly employed by the
Treatment Facility.
11.1.3 The Treatment Facility shall maintain,during the life if this Agreement, adequate
Workers' Compensation Insurance and Employers' Liability Insurance in at least
such amounts as $1,000,000 for all of its employees performing Work for the
Source Facility pursuant to this Agreement or as otherwise provide by law.
11.1.4 The Treatment Facility shall maintain Pollution Liability Insurance coverage,
which covers any and all losses caused by pollution conditions(including sudden
and non-sudden pollution conditions)arising from the servicing and operations of
Treatment Facility (and any subcontractors, representatives or agents) in the
minimum amount of $1,000,000 per occurrence and $2,000,000 general
aggregate.
11.2 Special Requirements.Current,valid insurance policies meeting the requirements herein
identified shall be maintained during the term of this Agreement. Renewal certificates shall
be sent to the Source Facility promptly upon renewal. There shall be prompt notification to
the Source Facility by the Treatment Facility in the event of cancellation or modification of
any stipulated insurance coverage. The Source Facility shall be an additional insured on
stipulated insurance policies included in article 11.1.1. 11.1.2, and 11.1.4 herein. as its
interest may appear,from time to time.
11.3 The insurance required by this Agreement shall include the liability and coverage
provided herein, or as required by law, whichever requirements afford greater coverage. All
such insurance shall remain in effect until final payment. Thirty (30) day notice of
cancellation or non-renewal will be given by the Treatment Facility to the Source Facility. In
the event that the Treatment Facility shall fail to comply with the foregoing requirement, the
Source Facility is authorized, but in no event shall be obligated, to purchase such insurance,
and the Source Facility may bill the Treatment Facility. The Treatment Facility shall
immediately forward funds to the Source Facility in full payment for said insurance. It is
expressly agreed that neither the provision of the insurance referred to in this Agreement nor
the Treatment Facility's acceptance of the terms, conditions or amounts of any insurance
policy shall be deemed a warranty or representation as to adequacy of such coverage. The
stipulated limits of coverage above shall not be construed as a limitation of any potential
liability to the Source Facility, and Source Facility's failure to request evidence of insurance
shall not be construed as a waiver of Treatment Facility's (or any contractors') obligation to
provide the insurance coverage specified. All insurance coverage shall be with insurer(s)
rated as "A" by Best's Rating Guide (or equivalent rating and rating service as reasonably
determined by the Treatment Facility)and authorized by the State of Florida to engage in the
business of writing of insurance. Unless agreed to by the Treatment Facility to the contrary,
the Treatment Facility shall be named on the insurance policies included in article 11.1.1,
11.1.2, and 11.1.4 as "additional insured." The Treatment Facility shall cause its insurance
broker prior to the effective date of this Agreement to furnish insurance certificates
specifying the types and amounts of coverage in effect pursuant hereto, the expiration dates
of such policies. If the Source Facility has any objection to the coverage afforded by or other
provision of the insurance required to be purchased and maintained by the Treatment Facility
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in accordance with this paragraph on the basis of its not complying with the Agreement, the
Source Facility shall notify the Treatment Facility in writing thereof within thirty (30) days
of the date of delivery of such certificates to the Source Facility. For all Work performed
pursuant to this Agreement, the Treatment Facility shall continuously maintain such
insurance in the amounts,type, and quality as required by the Agreement.
11.4 Independent Contractors and Consultants. All independent contractors and
consultants employed by Treatment Facility to perform any services hereunder shall fully
comply with the insurance provisions contained in this Section.
12.0 Indemnification and Waiver. Treatment Facility acknowledges and agrees that it shall be
responsible for proper treatment, management, use, land application, and disposal of biosolids it
accepts from a Source Facility according to the requirements of Chapter 62-640, F.A.C.; Source
Facility shall not be held responsible for treatment, management, use, land application or disposal
violations that occur after its biosolids have been accepted by a permitted biosolids Treatment
Facility in accordance with Chapter 62-640 F.A.C. Treatment Facility expressly acknowledges and
agrees that title to biosolids passes to Transportation Company upon the biosolids' entrance into the
hoses, pipes, or conveyances connecting the Source Facility's Waste Water Treatment Plant(s) and
the Transportation Company's dewatering equipment. Thus, Treatment Facility expressly waives any
and all claims against Source Facility for dewatering, transportation, treatment, management, use, or
disposal violations that occur after Source Facility's biosolids have been transferred to Transportation
Company.
For all activities and services permitted and occurring under this Agreement, the Treatment Facility
agrees to the fullest extent permitted by law, to indemnify and hold hannless the Source Facility and
its employees, officers, and attorneys from and against all claims, losses, damages, personal injuries
(including but not limited to death), or liability (including reasonable attorney's fees), which directly
or indirectly arises out of, or results from any act or failure to act of Treatment Facility which in any
way is related to Treatment Facility's obligations under this Agreement, and/or the services and
activities provided and performed under this Agreement.
The indemnification provided above shall obligate the Treatment Facility to defend at its own
expense or to provide for such defense,at the option of the Source Facility, as the case may be, of any
and all claims of liability and all suits and actions of every name and description that may be brought
against the Source Facility or its employees, officers, and attorneys which may arise or result from
this Agreement. In all events the Source Facility shall be permitted to choose legal counsel of its sole
choice, the fees for which shall be reasonable and subject to and included with this indemnification
provided herein.
Source Facility agrees to save and hold harmless Treatment Facility from any actions and/or penalties
arising from the conditions and requirements of the Source Facility's permit or any federal, state, and
local rules and regulations, except to the extent that such responsibilities are undertaken by Treatment
Facility or Transportation Company in this Agreement or that separate Transportation Agreement
between Transportation Company and Source Facility.
This section shall survive termination of this Agreement.
13.0 Attorney's Fees. Should any litigation arise concerning this Agreement between the parties, the
parties agree to bear their own costs and attorney's fees.
14.0 Assiunment. Treatment Facility shall not assign or subcontract this Agreement or any rights or
any monies due or to become due hereunder without the prior, written consent of Source Facility.
Unless specifically stated to the contrary in any written consent to any assigmnent, no assignment
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will release or discharge the assignor from any duty or responsibility under this Agreement. Nothing
under this Agreement shall be construed to give any rights or benefits in this Agreement to anyone
other than Source Facility and Treatment Facility, and all duties and responsibilities under this
Agreement will be for the sole and exclusive benefit of Source Facility and Treatment Facility and
not for the benefit of any other party.
15.0 Sovereign Immunity. The Source Facility intends to avail itself of the benefits of Section
768.28,Florida Statutes and any other statutes and common law governing sovereign immunity to the
fullest extent possible. Neither this provision nor any other provision of this Agreement shall be
construed as a waiver of the Source Facility's right to sovereign immunity under Section 768.28,
Florida Statutes,or other limitations imposed on the Source Facility's potential liability under state or
federal law. Treatment Facility agrees that Source Facility shall not be liable under this Agreement
for punitive damages or interest for the period before judgment. Further, Source Facility shall not be
liable for any claim or judgment, or portion thereof, to any one person for over two hundred thousand
dollars ($200,000.00), or any claim or judgment, or portion thereof, which, when totaled with all
other claims or judgments paid by the State or its agencies and subdivisions arising out of the same
incident or occurrence, exceeds three hundred thousand dollars ($300,000.00). Nothing in this
Agreement is intended to inure to the benefit of any third party for the purpose of allowing any claim
which would otherwise be barred under the doctrine of sovereign immunity or by operation of law.
This paragraph shall survive termination of this Agreement.
16.0 Public Records. Pursuant to Section 119.0701, Florida Statutes and other applicable public
records laws, Treatment Facility agrees that any records, documents, transactions, writings, papers,
letters, computerized information and programs, maps, books, audio or video tapes, films,
photographs, data processing software, writings or other material(s), regardless of the physical form,
characteristics, or means of transmission, of Treatment Facility related, directly or indirectly, to the
services provided to the Source Facility under this Agreement and made or received pursuant to law
or ordinance or in connection with the transaction of official business by the Source Facility, may be
deemed to be a public record, whether in the possession or control of the Source Facility or the
Treatment Facility. Said records, documents, transactions, writings, papers, letters, computerized
information and programs, maps, books, audio or video tapes, films, photographs, data processing
software, writings or other material(s), regardless of the physical form, characteristics, or means of
transmission of Treatment Facility are subject to the provisions of Chapter 119, Florida Statutes, and
may not be destroyed without the specific written approval of the Source Facility's designated
custodian of public records.
IF THE TREATMENT FACILITY HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
TREATMENT FACILITY'S DUTY TO PROVIDE PUBLIC RECORDS
RELATING TO THIS AGREEMENT, CONTACT THE CUSTODIAN OF
PUBLIC RECORDS, THE CITY CLERK, AT (407) 327-59559
_Citz ClerkDepartment' i,wintersprin4,,sfl.orL,, 1126 East State Road 434, Winter
Springs, Florida 32708.
Treatment Facility is required to and agrees to comply with public records laws. Treatment Facility shall
keep and maintain all public records required by the Source Facility to perform the services as agreed to
herein. Treatment Facility shall provide the Source Facility, upon request from the City Clerk, copies of
the requested records or allow the records to be inspected or copied within a reasonable time at a cost that
does not exceed the cost provided by law. Treatment Facility shall ensure that public records that are
exempt or confidential and exempt from public records disclosure requirements are not disclosed except
as authorized by law for the duration of the Agreement term. Upon completion of the Agreement,
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Treatment Facility shall transfer to the Source Facility, at no cost, all public records in possession of the
Treatment Facility, provided the transfer is requested in writing by the City Clerk. Upon such transfer,
Treatment Facility shall destroy any duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements. However, if the City Clerk does not request that the public
records be transferred,the Treatment Facility shall continue to keep and maintain the public records upon
completion of the Agreement and shall meet all applicable requirements for retaining public records. All
records stored electronically must be provided to the Source Facility, upon request from the City Clerk, in
a format that is compatible with the information technology systems of the Source Facility. Should the
Source Facility not possess public records relating to this Agreement which are requested to be inspected
or copied by the Source Facility or any other person, the Source Facility shall immediately notify
Treatment Facility of the request and the Treatment Facility shall then provide such records to the Source
Facility or allow the records to be inspected or copied within a reasonable time. if the Treatment Facility
does not comply with a public records request, the Source Facility may enforce this Section to the extent
permitted by law. Treatment Facility acknowledges that if the Treatment Facility does not provide the
public records to the Source Facility within a reasonable time, the Treatment Facility may be subject to
penalties under Section 119.10, Florida Statutes. The Treatment Facility acknowledges that if a civil
action is filed against the Treatment Facility to compel production of public records relating to this
Agreement, the court may assess and award against Treatment Facility the reasonable costs of
enforcement, including reasonable attorney fees. All public records in connection with this Agreement
shall, at any and all reasonable times during the normal business hours of the Treatment Facility,be open
and freely exhibited to the Source Facility for the purpose of examination, audit, or otherwise. Failure by
Treatment Facility to grant such public access and comply with public records laws and/or requests shall
be grounds for immediate unilateral cancellation of this Agreement by the Source Facility upon delivery
of a written notice of cancellation. If the Treatment Facility fails to comply with this Section, and the
Source Facility must enforce this Section, or the Source Facility suffers a third party award of attorney's
fees and/or damages for violating Chapter 119, Florida Statutes, due to Treatment Facility's failure to
comply with this Section, the Source Facility shall collect from Treatment Facility prevailing party
attorney's fees and costs, and any damages incurred by the Source Facility, for enforcing this Section
against Treatment Facility. And, if applicable, the Source Facility shall also be entitled to reimbursement
of all attorneys' fees and damages which the Source Facility had to pay a third party because of the
Treatment Facility's failure to comply with this Section. The terms and conditions set forth in this
Section shall survive the termination of this Agreement
17.0 Independent Contractor. Regarding all Services performed, it is specifically understood and
agreed between the parties that the contractual relationship between Source Facility and Treatment
Facility is such that Treatment Facility is an independent contractor and not an agent or employee of
Source Facility. Nothing in this Agreement shall be interpreted to establish any relationship, other
than that of an independent contractor, between Source Facility and Treatment Facility, during or
after performing the services. Treatment Facility shall be solely responsible for providing the
services authorized pursuant to this Agreement.
18.0 Warrant}. Treatment Facility warrants that the services and materials will conform to the
requirements of this Agreement. Additionally, Treatment Facility warrants that all services will be
performed in a good, workman-like and professional manner. The City's acceptance of service or
materials provided by Treatment Facility shall not relieve Treatment Facility from its obligations
under this warranty. If any materials or services are of a substandard or unsatisfactory manner as
determined by the Source Facility, Treatment Facility, at no additional charge, will provide materials
or redo such services until in accordance with this Agreement and to the Source Facility's reasonable
satisfaction.
19.0 Entire Agreement. This Agreement represents the entire and integrated Agreement between the
parties and supersedes all prior negotiations, representations, or Agreements, either oral or written,
and all such matters shall be deemed merged into this Agreement.
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20.0 Amendment of Agreement. Modifications or changes in this Agreement must be in writing and
executed by the parties bound to this Agreement.
21.0 Interpretation. Both the Source Facility and the Treatment Facility have participated in the
drafting of all parts of this Agreement. As a result, it is the intent of the parties that no portion of this
Agreement shall be interpreted more harshly against either of the parties as the drafter.
22.0 Non Waiver. No delay or failure by either party to exercise any right under this Agreement, and
no partial or single exercise of that right, shall constitute a waiver of that or any other rights, unless
otherwise expressly provided herein.
23.0 Counterparts. This Agreement may be executed in any number of counterparts, each of which
when so executed and delivered, shall be original; but such counterparts shall together constitute but
one and the same instrument.
24.0 Treatment Facililv's Signatory. The undersigned person executing this Agreement on behalf of
Treatment Facility hereby represents and warrants that he or she has the full authority to sign said
Agreement for Treatment Facility and to fully bind Treatment Facility to the terms and conditions set
forth in this Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this document the day and year first above
written.
COMPOSTUSA of SUMTER COUNTY, City of Winter Springs(Source Facility)
LLC (Treatment Facility)
By: y - - -
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Printed Name Printed N,me
Title: f lZ•ZJ Title: o r / -�y 14"
Date: /;L L6. Date:
Mailing Address:
1126 East State Road 434, Winter Sprin,s.FL 32708
Phone No: 407-327-5989
Fax No: 407-327-6695
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