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Biosolids Management Agreement with Nutri-Ject SystemsMasterpiece on the Mississippi Dubuque bitil All-America City hill! 2007 TO: Michael C. Van Milligen, City Manager FROM: Jonathan R. Brown, W &RRC Manager SUBJECT: Water & Resource Recovery Center Bio- solids Management Contract DATE: March 9, 2012 INTRODUCTION The purpose of this memorandum is to request authorization for the City of Dubuque to enter into an agreement with Nutri -Ject Systems, Inc. of Hudson, IA for the Water & Resource Recovery Center (VV&RRC) Bio - Solids Management Program. BACKGROUND With the W &RRC facilities currently under construction a need for a biosolids management program will be required early spring of 2013. This program will involve the transportation, storage, land application and other acceptable practices of handling anaerobic digested and dewatered biosolids at the W &RRC in an efficient and sustainable manner. The services performed by the contractor will include: Design, construction, and operation of a storage facility that has the capacity to store biosolids generated at the W &RRC for up to 180 days. Sampling of biosolids and soil at approved application sites as required by the City of Dubuque, the Iowa Department of Natural Resources (IDNR), and the United States Environmental Protection Agency (USEPA) Transportation of the biosolids from the W &RRC to either the storage facility, directly to the approved application sites, or another approved facility. Spreading and incorporating the biosolids within 24 hours as dictated by the City of Dubuque, IDNR, and USEPA. Obtaining the necessary permits and submitting the necessary reports to the City of Dubuque W &RRC for filing with the IDNR and USEPA. At the July 5, 2011 City Council meeting the council authorized the City Manager to negotiate a ten year contract with Nutri -Ject Systems, Inc. of Hudson, IA for the Water & Resource Recovery Center (VV&RRC) Bio - Solids Management Program. DISCUSSION City of Dubuque staff has negotiated a ten year service agreement to provide for biosolids management for the City of Dubuque's Water & Resource Recovery Center. The contract as presented has the following cost structure: Fixed Costs: $14,200 per month or $170,400 per year. Variable Costs: $19.50 per wet ton of biosolids. It is estimated that the first full year of operation of the Anaerobic Digesters will yield approximately 10,220 wet tons annually of biosolids resulting in a handling cost of $199,290. Annual Bio- Solids Management costs: $170,400 + $199,290 = $369,690. As a point of comparison the two other respondents to the Bio - Solids RFP for a ten year management agreement had estimated annual costs of $503,860 and $906,512. BUDGET IMPACT The costs for biosolids management were included in operating cost projections developed during the facility planning process and the budget process for the operation of the Water & Resource Recovery Center. This agreement for services is well within the estimates made during the planning process and in the projected operating costs of the Water & Resource Recovery Center going forward. RECOMMENDATION It is my recommendation that the City of Dubuque enter into a ten year service agreement with Nutri -Ject Systems of Hudson, Iowa to manage the biosolids produced at the City of Dubuque Water & Resource Recovery Center. Finance Director Ken Tekippe has reviewed and approved the insurance certificates of Nutri- Ject Systems and City Attorney Barry Lindahl has reviewed and approved the form of contract. ACTION REQUESTED I respectfully request the City Council give approval to enter into a ten year agreement t with Nutri -Ject Systems, Inc. of Hudson, IA for the Water & Resource Recovery Center (W &RRC) Bio - Solids Management Program. cc: Steve Sampson Brown, Project Manager Jenny Larson, Budget Director Attachment: Masterpiece on the Mississippi Dubuque bierd All-America City 1 2007 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Water & Resource Recovery Center Bio- solids Management Contract DATE: March 12, 2012 Water & Resource Recovery Center Manager Jonathan Brown is recommending the City of Dubuque enter into an agreement with Nutri -Ject Systems, Inc. of Hudson, IA for the Water & Resource Recovery Center (VV&RRC) Bio - Solids Management Program. At the July 5, 2011 City Council meeting the council authorized the City Manager to negotiate a ten year contract with Nutri -Ject Systems, Inc. of Hudson, IA for the Water & Resource Recovery Center (VV&RRC) Bio - Solids Management Program. City of Dubuque staff has negotiated a ten year service agreement to provide for biosolids management for the City of Dubuque's Water & Resource Recovery Center. The contract as presented has the following cost structure: Fixed Costs: $14,200 per month or $170,400 per year. Variable Costs: $19.50 per wet ton of biosolids. It is estimated that the first full year of operation of the Anaerobic Digesters will yield approximately 10,220 wet tons annually of biosolids resulting in a handling cost of $199,290. Annual Bio - Solids Management costs: $170,400 + $199,290 = $369,690. As a point of comparison the two other respondents to the Bio - Solids RFP for a ten year management agreement had estimated annual costs of $503,860 and $906,512. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM:sv Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistany City Manager Gus Psihoyos, City Engineer Jonathan Brown, Water & Resource Recovery Center Manager Steve Sampson Brown, Project Manager Jenny Larson, Budget Director AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND NUTRI -JECT SYSTEMS, INC. FOR BIOSOLIDS PROFESSIONAL MANAGEMENT PROGRAM THIS AGREEMENT (the Agreement), dated for reference purposes the 1 qth day of March , 2012, by and between the City of Dubuque, a municipal corporation located in the County of Dubuque, State of Iowa (Owner) acting through its City Council, and Nutri -Ject Systems, Inc., an Iowa corporation with its principal place of business at 515 5t" Street, Hudson, Iowa (NJS). WHEREAS, Owner owns the by- product biosolids as defined in Attachment A and more specifically listed in Attachment B, incorporated herein by reference (the Biosolids), produced at the Water & Resource Recovery Center (also referred to as the Water Pollution Control Plant); and WHEREAS, Owner has the authority under the laws of the State of Iowa (the State) and desires to enter into a professional services contract for the management of the Biosolids produced by Owner; and WHEREAS, NJS is experienced in and capable of supplying professional management services to Owner; and WHEREAS, Owner desires to engage NJS to act as its independent professional Biosolids management firm in the hauling, storage, and land application of all Biosolids produced and stored. NOW, THEREFORE, in consideration of the mutual agreements herein contained, and subject to the terms and conditions herein stated, the parties agree as follows: SECTION 1. PURPOSE. During the Term of this Agreement, Owner agrees to engage NJS as an independent professional Biosolids management firm to haul, store, and land -apply Biosolids produced by Owner (the Biosolids Management Program). Each party hereto agrees that it will cooperate in good faith with the other, its agents, and subcontractors to facilitate the performance of mutual obligations set forth in this Agreement. SECTION 2. SCOPE OF SERVICES. The scope of services to be provided by NJS under this Agreement will include the management, equipment, testing, recordkeeping, storage facilities, labor, and land- application of the Biosolids to the extent set forth in Attachment A -1 (Scope of Services). 1 SECTION 3. BIOSOLIDS CONTROL AND REGULATIONS. 3.1. NJS shall manage the Biosolids to meet applicable laws, including but not limited to 40 C.F.R. Part 503 and Iowa Administrative Code Chapter 67, the requirements of Owner's National Pollutant Discharge Elimination System (NPDES) permit No. 3126001, as may be amended from time to time, as well as all other federal, state, and local requirements (Legal Requirements). 3.2. NJS shall be responsible for Owner's compliance with all Legal Requirements and shall complete all documentation needed for said compliance. 3.3. NJS shall use its best efforts to provide all management at or below a maximum Biosolids production of 46 wet tons per day from the Water & Resource Recovery Center. NJS shall provide the best management possible within the constraints of the Biosolids storage design, physical limitations, and existing stored Biosolids. 3.4. In the event that Abnormal and /or Biologically Toxic Material, as defined in Attachment A, is found in the Biosolids, NJS shall promptly notify Owner and use its best efforts to assist Owner to remove, stabilize, and /or reduce such material using the cooperation, processes and equipment provided at the Water & Resource Recovery Center. If such Abnormal and /or Biologically Toxic Material cannot be stabilized or removed using the processes and equipment provided at the Water & Resource Recovery Center, NJS shall not be responsible for the compliance requirements of this Agreement, or for other consequences of the receipt by Biosolids of such Abnormal and /or Biologically Toxic Material. NJS shall notify the owner within 24 hours of receipt of any abnormal analysis result 3.5. In the event that violations of Legal Requirements occur on any date after 30 or more days from the commencement of services by NJS under this Agreement, NJS shall be responsible for all fines or damages for such Violations that may be imposed by the federal, state, or local environmental agencies, or private actions, if such violations were within NJS's control and are the result of NJS's failure to manage the Biosolids in accordance with the terms of this Agreement. Prior to payment of fines or damages of any kind, NJS reserves the right to contest government or private actions, suits, or proceedings through proper legal procedures. 3.6. During the construction or other modification of the Water & Resource Recovery Center, Owner and NJS will work together to maintain access and minimize disruption. NJS shall not be responsible for Biosolids violations resulting from Owner's construction activity. SECTION 4. MAINTENANCE. NJS shall keep its vehicles and assigned sections of the Water & Resource Recovery Center in a clean, neat and orderly condition. 2 SECTION 5. TESTING AND LABORATORY ANALYSIS. NJS shall perform the testing and laboratory analysis required by Owner's NPDES permit as it pertains to Biosolids, as well as all recordkeeping which is necessary to meet the Class 1 analytical requirements. Laboratory procedures and analysis shall conform to the then current edition of Standard Methods for the Examination of Water and Wastewater or be in accordance with testing requirements of the NPDES permit as they pertain to the Biosolids. NJS shall deliver and certify such results to Owner and assist Owner in submitting such results to all required regulatory agencies. Owner has the right to conduct split sampling and laboratory analysis at any time for any reason. SECTION 6. TECHNICAL SUPPORT. NJS shall provide on -call expertise in Biosolids operations, maintenance, and management as deemed necessary by Owner to ensure performance of Owner's obligations under this Agreement. SECTION 7. STAFFING. 7.1. NJS shall provide an experienced manager with skills to include OSHA compliance, personnel administration, Biosolids treatment, management, land application, transportation, public relations and communications necessary for the management, operation, maintenance, and repair of equipment and manpower. NJS shall also provide personnel with CDL licenses equal to or greater than the level required by the State of Iowa. 7.2. NJS is located in Hudson, IA with 90% of its employees residing in Black Hawk County. NJS will use its best efforts to provide the services required by the Scope of Services by NJS employees residing in the City of Dubuque. 7.3. NJS shall make every reasonable effort to employ minority subcontractor(s) to supplement operations during peak project requirements. 7.4 On or before the date services are to commence under this Agreement, NJS shall designate an authorized representative (Authorized Representative) to administer this Agreement. SECTION 8. TRAINING. NJS shall implement a training Program with both classroom and field training for all NJS and Owner staff associated with the operation, maintenance and disposal of Biosolids. The training shall include equipment operation, process management, maintenance and repair, regulations, first aid, safety, emergency response, hazardous material handling, and right -to -know laws. Representatives of Owner may attend training sessions upon Owner's request. SECTION 9. SECURITY. NJS shall secure its assigned sections of the Water & Resource Recovery Center and NJS storage site within the limits of existing security devices. Any losses or other liabilities resulting from theft, damage, or unauthorized use of Owner's property properly secured within the limits of the existing security devices 3 shall be borne by Owner unless such losses are occasioned by NJS's failure to secure the Water & Resource Recovery Center. SECTION 10. ODOR AND NOISE CONTROL. NJS shall operate the assigned sections of the Water & Resource Recovery Center and NJS Storage Facility and Sites using methods which will minimize odor and noise within the limits and capabilities of the facilities and equipment. Haul trucks shall be covered whenever Biosolids are being transported in the trucks. SECTION 11. HAULING TO ALTERNATE LOCATIONS. Owner may elect to divert up to 10 percent of the Biosolids on a monthly basis to an alternate location and /or for an alternate use or demonstration purpose, such as providing digester seed Biosolids to assist in starting up digester systems at other facilities. New processes may also be tested at the Water & Resource Recovery Center, which may eliminate the need to haul that portion of the Biosolids. NJS will not be entitled to payment for any portion of the Biosolids that are produced by OWNER but do not require transportation or land application by NJS. Owner will work with Contractor to arrange logistics and pricing before implementing any such plan. SECTION 12. LANDFILLING. The purpose of this Agreement and the Program is to beneficially use Biosolids following best management practices with the primary method being land- application of Biosolids. However, if circumstances beyond NJS's control at the Water & Resource Recovery Center or at the land- application Sites result in the Storage Facility being at its capacity and land- application is also not feasible, Biosolids may be disposed of at the Dubuque Metropolitan Area Solid Waste Agency ( "DMASWA ") landfill, provided that DMASWA will accept such material. DMASWA management of the Biosolids and associated tipping fees shall be determined before Biosolids are diverted to the landfill. NJS will be responsible for any additional costs, including, but not limited to, tipping fees associated with such alternatives. Other alternative sites may be used by NJS with the prior approval of Owner. SECTION 13. REMOVAL PROCEDURE 13.1. NJS shall haul dewatered Biosolids from the Water & Resource Recovery Center to the land- application Sites or Storage Facility at such a rate and in such a manner so as not to interfere with the operations of the Water & Resource Recovery Center. Hauling from the Water & Resource Recovery Center shall be scheduled as dewatered Biosolids are produced. Water & Resource Recovery Center staff intend to operate dewatering processes during normal hours (7:00 AM - 4:00 PM) Monday through Friday; however, NJS may propose, subject to Owner approval, and for no additional compensation, an alternative schedule. NJS agrees that Owner may also elect to operate 24 hours a day for one to three days per week to gain the benefit of off peak electricity pricing. 13.2. NJS shall provide the necessary equipment and facilities to ensure its ability to perform the removal operations. Both Owner and NJS shall mutually cooperate to ensure minimum disruption of the other's activities. NJS -owned equipment shall not be 4 stored at the Water & Resource Recovery Center without prior written authorization of Owner. 13.3. Owner shall convey dewatered Biosolids to NJS's vehicles as shown on the contract drawings for the load out facility attached hereto as Attachment C. Excess Biosolids shall be removed from the vehicle exterior by NJS to prevent spillage during transportation. Tarps or other covering mechanisms must be used at all times during transportation of Biosolids. 13.4. NJS shall be responsible for all damage caused by NJS to City -owned property. SECTION 14. HEALTH AND SAFETY STANDARDS. It shall be NJS's responsibility during the Term to maintain a safety and accident prevention Program that exceeds the requirements of federal, state, and local codes, and of all other authorities having jurisdiction over this work. The Administrative Code of the Iowa Division of Labor Services, as well as the Safety and Health regulations for construction as issued by the Secretary of Labor under the Occupational Safety and Health Act of 1970, 40 U.S.C. 327, et seq, (OSHA), shall be complied with where applicable to the work. NJS shall comply with the treatment plant safety requirements, as well as any other plant health and safety requirements, while on the plant site. SECTION 15. SANITARY FACILITIES. NJS may use the toilet facilities at the Water & Resource Recovery Center. If regulatory agencies require NJS to have other sanitary facilities, it shall be NJS's responsibility to provide these facilities. SECTION 16. ADMINISTRATIVE FACILITIES. If regulatory agencies require NJS to have other facilities, it shall be NJS's responsibility to provide these facilities. SECTION 17. This section intentionally left blank. SECTION 18. RESTORATION OF SURFACE. All surfaces at the Water & Resource Recovery Center which have been disturbed by NJS in the performance of its work must be restored within 30 days by NJS to the condition in which they were found prior to the beginning of the work, reasonable wear excluded. SECTION 19. CLEANING UP WORK. NJS shall at all times keep the loading bays and all storage and land application sites, including all public and private property involved in, or adjacent to the work, free from any rubbish, surplus, or loose materials that have been deposited by its employees, or which have accumulated as a result of the work. NJS shall be responsible for the removal of any spillage on public or private property, including property along any transportation route. SECTION 20. DUST CONTROL. NJS shall take necessary measures to control dust and other nuisances generated by its operations. SECTION 21. VECTOR CONTROL. NJS shall take necessary measures to minimize the presence of vectors such as flies, mosquitoes, and rats at the Biosolids Storage Facility and land- application Sites. 5 SECTION 22. COMMUNICATIONS. NJS shall develop and submit to Owner for approval a communications, publicity, and community relations Program in order to keep Owner informed about the Biosolids management Program within the first 120 days of the contract period. NJS shall prepare written summaries of all formal meetings with Owner and provide Owner with a copy. SECTION 23. REPORTS. 23.1. NJS shall maintain Biosolids management records and shall prepare and submit to Owner a monthly report including a narrative summary of operations and all data required for monthly and annual reporting to local, state, and federal agencies. On official reports, Owner should receive at least 14 days in advance of due dates for review. 23.2. One of NJS's full -time employees knowledgeable about the project shall attend Owner's City Council meetings when requested by Owner. SECTION 24. BIOSOLIDS MANAGEMENT & MAINTENANCE BUDGET. Not later than sixty (60) days following the commencement of this Agreement, and on October 1st of each year during the Term, NJS shall submit to Owner a Biosolids management and maintenance budget for Owner's upcoming fiscal year which is July 1 through June 30. The budget shall indicate the estimated Biosolids management and maintenance cost for the Program for the forthcoming year. The budget shall also include 5 -year projection for management and maintenance costs. SECTION 25. This section intentionally left blank. SECTION 26. LITIGATION SUPPORT. At the request of Owner, and at such costs and fees as Owner and NJS agree, NJS will provide for or arrange, at Owner's expense, legal, regulatory, and technical assistance in connection with Owner's defense or prosecution of any third -party actions, claims, suits, administrative, or arbitration proceedings, or investigations whether pending, threatened, or newly initiated and arising out of this Agreement. SECTION 27. ACCOUNTING RECORDS. NJS shall maintain up -to -date financial records as they apply to the terms of this Agreement. All records will be kept in accordance with generally accepted accounting principles. Owner may at its sole cost audit such financial records upon reasonable notice to NJS.SECTION 28. RESPONSIBILITIES OF THE OWNER. 28.1. Owners Representative. On or before the date services are to commence under this Agreement, Owner shall designate an authorized representative (Owner's Authorized Representative) to administer this Agreement. 28.2. Permits. 6 (1) Owner shall be responsible for obtaining and maintaining all necessary permits and licenses and for the payment of all fees required for the ownership and operation of the Water & Resource Recovery Center. NJS shall be responsible for all costs, including, but not limited to, obtaining and maintaining all necessary permits and licenses and for payment of all fees required for ownership and operation of the Biosolids Storage Facility and Land - Application Sites, transportation and land- application of the Biosolids, and equipment used by NJS in connection with this Agreement. (2) It is understood by both parties to this Agreement that NPDES permit No. 3126001 expired on July 14th, 2003. This Agreement is based on current loadings information as furnished by Owner. Changes in the Scope of Services or Base Compensation due to changes in Biosolids production requirements and conditions will be subject to mutual agreement of the parties.. 28.3. Compliance With Laws. Owner shall comply with all applicable local, state, and federal laws, codes, ordinances, and regulations as they pertain to the Water & Resource Recovery Center. NJS shall comply with all applicable local, state, and federal laws, codes, ordinances, and regulations as they pertain to the Biosolids Storage Facility and Land - Application Sites and NJS's performance under this Agreement. 28.4. Taxes. Owner shall be responsible for all real estate and property taxes, utility, excise, and sales taxes for the Water & Resource Recovery Center. NJS shall be responsible for all real estate and property taxes, utility, excise, and sales taxes for the Biosolids Storage Facility and Land - Application Sites and NJS's performance under this Agreement. 28.5. Support. Owner shall permit NJS to use, without charge, all of the dewatered Biosolids conveyance equipment, structures, and facilities at the Water & Resource Recovery Center. NJS shall not operate the Biosolids dewatering equipment. Owner shall provide NJS with all information necessary to operate and manage the Biosolids Program. 28.6. Payment Of Invoices. Owner shall be responsible for promptly paying all amounts due NJS under this Agreement. Upon presentation of invoices by NJS, all payments including Base Compensation and other compensation shall be due and payable within thirty (30) days of invoice or a late penalty, defined in the Compensation section of this Agreement, may apply. 28.7. Notice of Litigation. In the event that Owner or NJS has or receives notice of or undertakes the prosecution of any actions, claims, suits, administrative or arbitration proceedings, or investigations in connection with this Agreement, the party receiving such notice or undertaking such prosecution shall, as soon as practicable, give the other party notice of such proceedings and will inform the other party in advance of all 7 hearings regarding such proceedings as such hearings may apply to NJS under this Agreement. SECTION 29. TERM AND RENEWAL. 29.1. Term. The initial term of this Agreement shall commence on the day of , 2012. Performance of the Scope of Services shall commence not later than the Completion of Construction Date of the Storage Facility (Commencement of Services Date), and shall terminate at midnight 10 years from the Commencement of Services Date, unless this Agreement is terminated as provided herein. 29.2. Construction of the Storage Facility. NJS hereby agrees that construction of Storage Facility shall be commenced on or before , 2011, and shall be substantially completed by , 2012 (Completion of Construction Date). The time frame for the performance of these obligations shall be suspended due to unavoidable delays that are outside the control of the party claiming such delays' occurrences in good faith, which are the direct result of strikes, other labor troubles, unusual shortages of materials or labor, unusually severe or prolonged bad weather, acts of God, fire or other casualty to the Minimum Improvements, litigation commenced by third parties which, by injunction or other similar judicial action or by the exercise of reasonable discretion directly results in delays, or acts of any federal, state or local government which directly result in extraordinary delays. The time for performance of such obligations shall be extended only for the period of such delay. 29.3. Renewal. This Agreement will automatically renew for an additional 10 -year term, unless either party notifies the other in writing of non - renewal not less than one hundred eighty (180) calendar days before the end of the Initial Term (Renewal Term) on the same terms and conditions as the Initial Term. 29.4. Owner's Option to Purchase. At any time during the Term, Owner shall have the following option: (1) Terminate this Agreement by paying NJS a termination fee of $200,000; and 8 (2) Purchase the Storage Facility from NJS. The purchase amount is to be as follows: AFTER BUILDING MONTH: BUYOUT 36 $950,000.00 42 $950,000.00 48 $875,000.00 54 $800,000.00 60 $725,000.00 66 $650,000.00 72 $575,000.00 78 $550,000.00 84 $525,000.00 90 $500,000.00 96 $475,000.00 102 $450,000.00 108 $400,000.00 114 $375,000.00 120 $350.000.00 SECTION 30. DEFAULT. 30.1. Events of Default Defined. The following shall be "Events of Default" under this Agreement and the term "Event of Default" shall mean, whenever it is used in this Agreement, any one or more of the following events: (1) Failure by NJS to cause the construction of the Storage Facility to be commenced and completed pursuant to the terms, conditions and limitations of this Agreement. (2) Failure by NJS to substantially observe or perform any other material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement. (3) Failure by either party to comply with the terms, conditions, duties and obligations set forth in this Agreement. 30.2. Remedies on Default. Whenever any Event of Default referred to in Section 30.1 of this Agreement occurs and is continuing, the party asserting default may take any one or more of the following actions after the giving of written notice of the Event of Default to the party allegedly in default, but only if the Event of Default has not been cured within sixty (60) days following such notice, or if the Event of Default cannot be cured within sixty (60) days and the party allegedly in default does not provide assurances that the Event of Default will be cured as soon as reasonably possible thereafter: 9 (1) The party alleging default may suspend its performance under this Agreement until it receives assurances from the other party, deemed adequate by the party making the allegation, that the party allegedly in default will cure its default and continue its performance under this Agreement; (2) The party alleging default may cancel and rescind this Agreement; (3) Either party may take any action, including legal, equitable or administrative action, which may appear necessary or desirable to collect any payments due under this Agreement or to enforce performance and observance of any obligation, agreement, or covenant under this Agreement. (4) Notwithstanding the foregoing, if Owner determines in its sole discretion that the Event of Default requires immediate action and NJS does not perform such immediate action, Owner may take such action as it determines necessary to cure the Event of Default and assess the costs to NJS. (5) Not less than seven (7) days after giving NJS a notice of an Event of Default, NJS shall provide unrestricted access to and use by Owner of the Storage Facility. 30.3. Notwithstanding the foregoing, if the Event of Default results in Owner being in violation of the NPDES Permit or the Consent Decree, Owner may terminate this Agreement immediately. SECTION 31. ASSIGNMENT OF LEASES AND AGREEMENTS. NJS shall provide Owner with copies of all leases and other agreements to which NJS is a party relating to the performance of this Agreement. Upon termination of this Agreement, NJS shall assign to Owner such leases and other agreements as Owner shall require. SECTION 32. COMPENSATION. 32.1. Base Compensation. (1) Owner shall pay NJS as compensation (Base Compensation) for labor, equipment, materials, testing, monthly storage and supplies and the services performed pursuant to this Agreement the sum of $14,200.00 per month during the Initial Term with adjustments, if any, as specified hereafter. (2) Payments which are delinquent more than thirty days shall accrue interest at one and one -half (1 -1/2) percent per month. (3) The Base Compensation is for the operation and maintenance of the Biosolids Program at the production levels and characteristics at the 10 commencement of this Agreement as designated in Attachment B (the Existing Conditions). 32.2. Biosolids Transportation And Application Fees. (1) In addition to the Base Compensation, Owner shall pay NJS "per wet ton" fees for Biosolids transportation and land- application, based on scale slips from a mutually agreed upon scale site. Upon presentation of invoices and scale slips by NJS, Owner shall pay $19.50 per wet ton Payments which are delinquent more than thirty days shall accrue interest at one and one -half (1 -1/2) percent per month. (2) During the Initial Term, the Program budget will be reviewed as requested by NJS, but no more frequently than annually, to consider an increase or decrease in the "per wet ton" fee based upon the national CCI (Construction Cost Index) as published by American City & County magazine ( www.americancityandcounty.com). Once the new budget has been adopted, an appropriate adjustment may be made in the Biosolids transportation and application fee compensation. SECTION 33. OTHER COST AND EXPENSES. 33.1. NJS shall pay all expenses required for the normal and routine management, operation, rent and maintenance of the Storage Facility and Land - Application Sites and equipment including, but not limited to: personnel costs, fuels, chemicals, repairs due to NJS negligence or damage, laboratory analysis and expendable supplies. 33.2. Unless otherwise agreed in writing by the parties, NJS will not be required to pay the following: (1) Expenses resulting from a change in the Scope of Services (2) Expenses resulting from a change in Owner's NPDES permit, law, or regulations by any federal, state, or local agency or authority. (3) Expenses resulting from the handling and /or disposal of Abnormal and /or Biologically Toxic Materials, as defined in Attachment A. SECTION 34. CHANGES IN SCOPE OF SERVICES. 34.1. No change in the Scope of Services or Compensation shall be effective except by written amendment to this Agreement. 34.2. A change in the Scope of Services includes, but is not limited to, requests for additional service by Owner or additional costs incurred by NJS for (a) treating Abnormal or Biologically Toxic Material; (b) meeting new or changed government 11 regulations or reporting requirements, including increased testing cost (but not including third party lab price increases), changes in allowable metals which increase the cost of disposing of Biosolids; or (c) modification of the Storage Site once constructed. SECTION 35. INDEMNIFICATION. 35.1. NJS agrees to defend, indemnify, and hold Owner, its elected and appointed officers, and employees, harmless from and against any and all claims for damages of any kind caused by or arising out of the performance of services under this Agreement of NJS, its officers, agents, employees, or anyone under NJS's control in the performance of its services under this Agreement. 35.2. Owner agrees to defend, indemnify, and hold NJS, its officers, and employees, harmless from and against any and all claims for damages of any kind caused by or arising out of the negligence of Owner in the performance of its obligations under this Agreement. SECTION 36. NUTRI -JECT SYSTEMS, INC. INSURANCE; PERFORMANCE BOND. 36.1. NJS shall procure and maintain at all times during the Term of this Agreement insurance as described in the Insurance Schedule attached hereto as Attachment E and as such Insurance Schedule may from time to time be amended. 36.2. NJS shall provide a performance bond in a form acceptable to Owner to insure NJS's performance under this Agreement. The performance bond shall be renewed annually and shall be in an amount equivalent to the projected total Biosolids hauling and disposal costs for the following 12 months of operation. Such amount shall be calculated as the unit cost of Biosolids ($ /wet ton) multiplied times the estimated wet tons of Biosolids generated over the following 12 months plus any regular fixed costs being paid as part of NJS's Base Compensation. SECTION 37. OWNER INSURANCE. NJS acknowledges that Owner is a member of the Iowa Communities Assurance Pool (ICAP). Owner shall maintain its membership in ICAP or at its option purchase general liability insurance with equivalent coverage. NJS shall be named as an additional insured according to its interest under such coverage during the Term of this Agreement. SECTION 38. RELATIONSHIP. The relationship of NJS to Owner is that of independent contractor and not one of employment. None of the employees or agents of NJS shall be considered employees of Owner. SECTION 39. NONDISCRIMINATION. In performing under this Agreement, NJS shall not discriminate against any person because of race, religion, color, sex, sexual orientation, gender identity, national origin, age or disability. 12 SECTION 40. ENTIRE AGREEMENT; AMENDMENTS. This Agreement contains the entire Agreement between Owner and NJS, and supersedes all prior or contemporaneous communications, representations, understandings, or agreements. This Agreement may be modified only by a written amendment signed by both parties. SECTION 41. HEADINGS, ATTACHMENTS, AND EXHIBITS. The headings contained in this Agreement are for reference only and shall not in any way affect the meaning or interpretation of this Agreement. The Attachments to this Agreement shall be construed as an integral part of this Agreement. SECTION 42. WAIVER. The failure on the part of either party to enforce its rights as to any provision of this Agreement shall not be construed as a waiver of any of its other rights. SECTION 43. ASSIGNMENT. This Agreement shall not be assigned by either party without the prior written consent of the other party. SECTION 44. ACCESS AND INSPECTION BY OWNER. Owner shall have unrestricted access at all times to inspect NJS's Facilities and equipment. Owner shall have unrestricted access to all applications of the Biosolids and the Storage Facilities to inspect operations and to observe the use of proper techniques. NJS shall provide Owner with access, during normal business hours and upon reasonable prior notice, to NJS's financial and operating records related to this Agreement for the purpose of auditing costs or verifying NJS's performance under this Agreement. SECTION 45. FORCE MAJEURE. A party's performance under this Agreement shall be excused if, and to the extent that, the party is unable to perform because of actions due to causes beyond its reasonable control such as, but not limited to, acts of God, the acts of civil or military authority, loss of potable water source, floods, quarantine restrictions, riots, strikes, commercial impossibility, fires, circumstances reasonably beyond the control of the party obligated to perform, whether such other causes are related or unrelated, similar or dissimilar, to any of the foregoing. In the event of any such force majeure, the party unable to perform shall promptly notify the other party of the existence of such force majeure and shall be required to resume performance of its obligations under this Agreement upon the termination of the aforementioned force majeure. SECTION 46. AUTHORITY TO CONTRACT. Each party warrants and represents that it has power and authority to enter into this Agreement and to perform the obligations, including payment obligations, under this Agreement. SECTION 47. GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa. SECTION 48. NOTICES. All notices must be in writing and must be delivered in person or transmitted by certified mail, return receipt requested. 13 Notices required to be given to NJS must be addressed to: Nutri -Ject Systems, Inc. Attn: Scott Wienands, President 515 5th Street, P.O. Box 398 Hudson, Iowa 50643 -0398 Notices required to be given to Owner must be addressed to: City of Dubuque Water & Resource Recovery Center Attn: Jonathan Brown 795 Julien Dubuque Drive Dubuque, IA 52003 -7996 With copy to: City of Dubuque City Hall Attn: Barry Lindahl, City Attorney 50 W 13th Street Dubuque, IA 52001 SECTION 49. SEVERABILITY. Should any part of this Agreement for any reason, be declared invalid or void, such declaration will not affect the remaining portion which will remain in full force and effect as if the Agreement had been executed with the invalid portion eliminated. SECTION 50. CONSENT DECREE. Contemporaneous with the execution of this Agreement, NJS shall execute the Acknowledgement of an Agreement to Comply with Consent Decree, attached hereto as Attachment F. SECTION 51. DISPUTE RESOLUTION. NJS and Owner agree that for any controversy arising out of or relating to the construction or interpretation of this Agreement, the parties will engage in mediation in accordance with the Commercial Arbitration Rules of the U. S. Arbitration & Mediation, Midwest ("USA &M ") or the American Arbitration Association ( "AAA "). In the event the mediation does not resolve the controversy, the parties will engage in binding arbitration in accordance with the Commercial Arbitration Rules of the U. S. Arbitration & Mediation, Midwest ( "USA &M ") or the American Arbitration Association ( "AAA "). The parties shall divide equally all costs of mediation and arbitration which shall be paid immediately upon billing by the mediation service. 14 CITY OF DUBUQUE, IOWA Attest: By: City Clerk 15 NUTRI -JECT SYSTEMS, INC. By: Scott Wienands, President Attest: By: LIST OF ATTACHMENTS A Definitions A-1 Scope of Services B Existing Conditions B-1 Analytical Report C Design Drawings For Load Out Facility D Storage Facility E Insurance Schedule F Acknowledgement of an Agreement to Comply with Consent Decree ATTACHMENT A DEFINITIONS Abnormal or Biologically Toxic Material: Any substance or combination of substances contained in the Biosolids in sufficiently high concentrations so as to interfere with the biological or physical /chemical processes necessary to, at the minimum, meet the requirements of Class 11 Biosolids as described in Chapter 67 of the Iowa Administrative Code or other requirements of Owner's NPDES permit, or to create process residues, or other material classified as a hazardous waste under RCRA or cause a situation or an environmental hazard to humans limiting the ability to operate and maintain the Biosolids Program. Abnormal or Biologically Toxic Materials include, but are not limited, to heavy metals, phenols, cyanides, pesticides, or herbicides, priority pollutants as listed by USEPA or any substance that violates the local USEPA/IDNR Biosolids and /or land application standards or other portions of any applicable Sewer Use Ordinance only as it relates to the quality of the Biosolids. Best Management Possible: Operating in a manner that meets or exceeds all state and Federal regulations and is in line with the recommended practices of the National Biosolids Partnership, Water Environment Federation, and National Association of Clean Water Agencies. These practices may include practices similar to these examples: limiting land application of Biosolids to slopes no greater than 5 percent slopes, limiting land application of Biosolids to soil types which are classified as acceptable within the top 5 feet of soil profile, covering haul trucks when they contain Biosolids, maintaining buffers of at least 35 feet for land application of Biosolids from open waterways. These practices will also extend to the record keeping, sampling, and documentation of the land application activities and the land included in the program. 17 ATTACHMENT A -1 SCOPE OF SERVICES NJS agrees to provide the following: 1. NJS, to provide the removal of all Biosolids produced from Owner's centrifuge dewatering process and transfer of the solids to the NJS IDNR approved Storage Facility for stockpiling prior to land application. NJS shall obtain all IDNR approvals including building and other approvals. 2. NJS, to maintain Owner's dewatered cake loading bay by hosing all walls and floors on a daily basis and maintaining the floor drains. 3. NJS, to engineer and construct an IDNR approved Storage Facility per all Iowa Administrative Code rules and regulations and lease or otherwise acquire the real estate for the Storage Facility substantially similar to the facility in Attachment D. 4. NJS, to provide for the transfer and land application of all Biosolids in strict accordance to the IDNR Chapter 67 rules and regulations pertaining to the land application of stabilized Biosolids. 5. NJS, to procure all land for the application of the Biosolids and maintain all private roads required for operation of the land application Program. 6. NJS, to generate land application field reports as well as the annual State required report prior to February 19 yearly deadline at least 7 days prior to due date for City approval. 7. NJS, to continue any and all public relations for the land application of the Biosolids with Owner. 8. NJS, to establish and maintain in writing a long -range Program for land application of sewage sludge according to the Iowa Administrative Code Chapter 67 rules. 9. NJS will use dedicated agricultural lands for application of Owner's Biosolids without integrating Biosolids from any other entity. 10. NJS will provide the location of the Storage Facility and land application Sites to Owner for Owner's concurrence prior to initiating activity under this Agreement. 11. NJS shall abide by all Owner's ordinances for transportation of Biosolids to City limits. 18 12. NJS shall conduct their operation to incorporate Best Management Practices for Biosolids hauling, storage, and land application and not merely meet legal limits. 19 ATTACHMENT B EXISTING CONDITIONS The Owner represents that the current solids stored at the site consist of incinerator ash resulting form solids combustion at the plant. The ash will be disposed of under separate contract. Biosolids Characteristics: Analysis Attached. (see appendix B & C) Classification: Iowa Administrative Code Chapter 567 -67.8 (1) (PSRP) Process to Significantly Reduce Pathogens (PSRP) Pathogen + Vector Attraction Chapter 567 -67.8 (c) (1) (IDNR Code) Laboratory Analysis: Quantity of Stored Biosolids (TONS): 0 Production: 2012 Estimate Average - 28 wet tons per day Maximum Month - 33 wet tons per day Yearly - 10,200 wet tons per year 2022 Estimate Average - 39 wet tons per day Maximum Month - 46 wet tons per day Yearly- 14,100 wet tons per year 20 ATTACHMENT B-1 ANALYTICAL REPORT City of Dubuque Water & Resource Recovery Center 795 Julien Dubuque Drive Dubuque, IA 52003-7996 City of Dubuque Water & Resource Recovery Center 795 Julien Dubuque Drive Dubuque, IA 52003-7996 21 Sample No.: Job Number: Sample No.: Job Number: ATTACHMENT C DESIGN DRAWINGS FOR THE LOAD OUT FACILITY 22 NiaLIE11 1 011PP tie 333333.-!..31.1t11V333313t1V31,14,; „ „ . • • „ • • . • • • . • • • „ • • • • 41° 11 , ell Skit Mk 3•33rp•p4 3•33333 vAN3133P33•73 b0•3313333t.34 tire 33'3313.3.34 133.33•3,3,■•633,1 23 331333i 0131333114013 way on 3.131)CODA 3.3 AND 3 03313333 11.43n3 i33 33S PM. .3431.Y 3010 SOLIDS PROOSSSINO HUILDDIO EL IRVA11ODS VATCF1 POI t614.41 d'0010,0t1P7-611T t■G‘..1.4AT1C443 Off 1,0 1.1-3£0,100 KAT PVIAMIL,4 1/V01 6i4,1 0.,. 24 )1 114CLIS IDDISSIDLS g3t3A163 MatOtis4 ANI3 3 13311133 Mb 3 V-133 613,, JULY *die) ■ 040; Alr14. 'OM 01-14.01 t4f+tu4 ognscl C CriV t'I VUNIQCIV 9c1tOW.,1 %011161VO4 04011 SZ 'W04100014 VAPA44,4 40 5:4,1fk VJE..1 OW) f OM 411-0 .) AAVtA OT'S PO 0.9 hIns I4$ 'kW MIVld 311M3A0 vulaltoo v rams-iv/mu nos itlalkipokygioxismv10411,04 '1/4. '7•i ra■ fa:a ,a.f :31 soLlo3 PriOcESSIMOI lat/ILIMA IlAstMeNT MAN • 11 WO PO&tUO41 04:ab,attq tiAttr 010:11Paar1001 vireo Lintt,54,0 Ca,•{, ttlep*va, It ed.b tar( All V:16 OA Ora. 26 THE GV oft4.0P) IfICW1313 AO0C171,4 1,2 PHD 214.Mo Polon TO INC RM. JULY 2.010 © 0 0 0 14, R • SItia IJUILVItia 940 Ok,4 04 ' t.ait.t.it0040KON.M.f044 Mema n40.4 lod1.4,14 I., ft 1.1.44,4tti3OAA 27 f)AAWINLIO At.M.4,14 1.9 AND 11440“, PRI031 TO THO DU Jw,v ROO SVEVAMMITINS. I If 4YETOI atAtilte414 t4t4o43. HAW HOWntAti$010 41/Y VeNtil4 PWaValap,10,01 28 Okt IM $e DeaVvo4 ANnoit)11 1,W ANO Altibtrell pRIOA TO iliC 011),. JUkY 21110 ■410r .43141 4II4LQL 140IUd 0311:474 asy vafaciat adirt381 FulllP41.40 HI 4HA 1.ainn 44,41PfOld Alll 4 kV444444■94 yo 0.41, 108.,404 Hui. 0110* PA,. C tWEd klACEIA AMA PrilaitoU eli153 0* ATTACHMENT D STORAGE FACILITY 30 • = y At. DING SE.C-ICN • VssImemmt '.:Amymr ==■="W CN. S CSC 7,..."`21C1fxS J. ,,, M. .... .... ; Fa;...;1;4aATION AN r:LAN Asm..or. -Eng2rms.^ing„ Own I T C;kaZ.F.. A,S rrI o :" 33 ATTACHMENT E INSURANCE SCHEDULE CITY OF DUBUQUE INSURANCE REQUIREMENTS FOR POLLUTION HAULERS 34 Insurance Schedule H 1. NJS shall furnish a signed Certificate of Insurance to the City of Dubuque, Iowa for the coverage required in Exhibit I prior to commencing work and at the end of the project if the term of work is longer than 60 days. Providers presenting annual certificates shall present a Certificate at the end of each project with the final billing. Each Certificate shall be prepared on the most current ACORD form approved by the Iowa Department of Insurance or an equivalent. 2. All policies of insurance required hereunder shall be with a carrier authorized to do business in Iowa and all carriers shall have a rating of A or better in the current A.M. Best's Rating Guide. 3. Each Certificate shall be furnished to the contracting department of the City of Dubuque. 4. Failure to provide minimum coverage shall not be deemed a waiver of these requirements by the City of Dubuque. Failure to obtain or maintain the required insurance shall be considered a material breach of this agreement. 5. Subhauler and sub - subhaulers performing work or service for the primary hauler shall provide a Certificate of Insurance to the primary hauler per Exhibit I. 6. All required endorsements to various policies shall be attached to Certificate of insurance. 7. Whenever a specific ISO form is listed, an equivalent form may be substituted subject to the provider identifying and listing in writing all deviations and exclusions that differ from the ISO form. 8. Hauler shall be required to carry the minimum coverage /limits, or greater if required by law or other legal agreement, in Exhibit I. 35 Insurance Schedule H (continued) Exhibit 1 A) COMMERCIAL GENERAL LIABILITY General Aggregate Limit $2,000,000 Products - Completed Operations Aggregate Limit $1,000,000 Personal and Advertising Injury Limit $1,000,000 Each Occurrence $1,000,000 Fire Damage Limit (any one occurrence) $ 50,000 Medical Payments $ 5,000 a) Coverage shall be written on an occurrence, not claims made, form. All deviations from the standard ISO commercial general liability form CG 0001, or Business owners form BP 0002, shall be clearly identified. b) Include ISO endorsement form CG 25 04 "Designated Location(s) General Aggregate Limit" or CG 25 03 "Designated Construction Project (s) General Aggregate Limit" as appropriate. c) Include endorsement indicating that coverage is primary and non - contributory, d) Include endorsement to preserve Governmental Immunity. (Sample attached). e) Include additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and /or authorities and their board members, employees and volunteers. using ISO form CG 20 10, Ongoing operations. B) AUTOMOBILE LIABILITY $1,000,000 (Combined Single Limit) C) ENVIRONMENTAL IMPAIRMENT LIABILITY OR POLLUTION LIABILITY including transit General Aggregate Limit $4,000,000 Each Occurrence limit $2,000,000 36 Policy shall include an additional insured endorsement for: The City of Dubuque, including all its elected and appointed officials, all its employees and volunteers, all its boards, commissions and /or authorities and their board members, employees and volunteers. D) WORKERS' COMPENSATION & EMPLOYERS LIABILITY Coverage A Statutory —State of Iowa Coverage B Employers Liability Each Accident $100,000 Each Employee- Disease $100,000 Policy Limit - Disease $500,000 a) Policy shall include an endorsement providing a waiver of subrogation to the City of Dubuque. b) Coverage B limits shall be greater if required by Umbrella Carrier. c) E) Umbrella Liability $5,000,000 37 ATTACHMENT F ACKNOWLEDGEMENT OF AND AGREEMENT TO COMPLY WITH CONSENT DECREE 39 ACKNOWLEDGEMENT OF AND AGREEMENT TO COMPLY WITH CONSENT DECREE RELATING TO THE CITY OF DUBUQUE, IOWA WATER POLLUTION CONTROL PLANT AND SEWER COLLECTION SYSTEM NO CONTRACTOR OR CONSULTANT MAY PERFORM ANY WORK FOR THE CITY OF DUBUQUE RELATED TO THE WATER POLLUTION CONTROL PLANT OR THE SEWER CONNECTION SYSTEM UNLESS A SIGNED COPY OF THIS DOCUMENT IS RETURNED TO THE CITY OF DUBUQUE ENGINEERING DEPARTMENT The City of Dubuque, Iowa has entered into a Consent Decree in the case of The United States of America, and the State of Iowa v. The City of Dubuque, Iowa, Civil Action No. Case 2:11 -cv- 01011-EMJ, Civil Action Number 2008V00041, DOJ Case Number 90- 5 -1 -1- 09339, United States District Court for the Northern District of Iowa. The provisions of the Consent Decree apply to and are binding upon the City and it officers, directors, employees, agents, servants, successors, assigns, and all persons, firms and corporations under contract with the City to perform the obligations of the Consent Decree. The City is required to provide a copy of the Consent Decree to any contractor or consultant retained to perform work required by the Consent Decree. A copy of the Consent Decree is attached. The City must condition any contract to perform work required under the Consent Decree upon performance of the work in conformity with the provisions of the Consent Decree. The Consent Decree also provides that until five years after the termination of the Consent Decree, the City shall retain, and shall instruct its contractors and agents to preserve, all non- identical copies of all documents, reports, data, records, or other information (including documents, records, or other information in electronic form) in its or its contractors' or agents' possession or control, or that come into its or its contractors' or agents' possession or control, and that relate in any manner to the City's performance of its obligations under this Consent Decree, including any underlying research and analytical data. This information - retention requirement shall apply regardless of any contrary City, corporate or institutional policies or procedures. At any time during this information - retention period, upon request by the United States or the State, the City shall provide copies of any documents, reports, analytical data, or other information required to be maintained under the Consent Decree. At the conclusion of the information - retention period, the City shall notify the United States and the State at least ninety (90) Days prior to the destruction of any documents, records, or other information subject to such requirements and, upon request by the United States or the State, the City shall deliver any such documents, records, or other information to the EPA or IDNR. Certification by Contractor or Consultant The undersigned, on behalf of the Contractor or Consultant, with full authority to act on behalf of the Contractor or Consultant, certifies to the City of Dubuque as follows: 40 1. I have received a copy of the Consent Decree in the case of The United States of America, and the State of Iowa v. The City of Dubuque, Iowa, Civil Action No. Case 2:11 -cv- 01011 -EMJ, Civil Action Number 2008V00041, DOJ Case Number 90- 5 -1 -1- 09339, United States District Court for the Northern District of Iowa. 2. All work performed will be in conformity with the provisions of the Consent Decree. 3. All documents, reports, data, records, or other information (including documents, records, or other information in electronic form) that relate in any manner to the performance of obligations under the Consent Decree, including any underlying research and analytical data, will be retained as required by the Consent Decree. The Contractor or Consultant agrees to defend, indemnify, and hold harmless the City, its officers, agents, or employees from and against any claims, including penalties, costs and fees as provided in the Consent Decree, relating to or arising out of the Contractor's or Consultant's failure to comply with the Consent Decree. Contractor or Consultant: i '` i, By: Its Date: ✓�/ /L Return signed copy to: Todd Shoemaker Engineering Department City Hal 13t and Central Ave. Dubuque IA 52001 tshoemaker@cityofdubuque.org 41