HomeMy WebLinkAbout5.a. Compost Facility Joint Power AgreementCITY OF ROSEMOUNT
EXECUTIVE SUMMARY FOR ACTION
CITY COUNCIL MEETING DATE: AUGUST 18, 1992
AGENDA ITEM: COMPOST FACILITY OPERATION
AGENDA SECTION:
AGREEMENT
OLD BUSINESS
PREPARED BY: STEPHAN JILK, CITY ADMINISTRATOR
AGENDA 1T.ER A
IVI #,F,
ATTACHMENTS: DRAFT AGREEMENT,
APPRtVED PY:
MEMO & LETTER FROM JUNE 10, 1992
tel/
On June 16th, 1992 a proposal was presented to you re rding a proposed
joint city operation to operate a Yard Waste Composting Facility in
Lakeville. This facility would be actually operated by a private operator
on land owned by the City of Apple Valley and lying in the City of
Lakeville. This facility is currently being operated by the same operator
under an agreement with Dakota County. Dakota County will be cancelling
their contract with the operator in February of 1993.
This site has been very successful in providing a location for the disposal
of yard waste for residents of Lakeville, Apple Valley, Rosemount and
Farmington. In order that the site continues to be available to these
Communities and their residents the Administrators of these four cities
have developed a proposed agreement with the current operator to continue
composting at the site.
The proposed agreement provides this service to the residents of Rosemount
at no additional cost other than the normal tipping fees already collected.
The contract provides for the City of Apple Valley to lease the site to the
operator at a cost of $900 per year. The operator is responsible in the
upkeep of the site, composting activities, all insurance coverage costs and
all collection of tipping fees. There will be no subsidy provided by any
of the cities involved.
In addition, the cities will each be able to drop off a certain amount of
yard waste at the site without paying tipping fees. Rosemount will be able
to drop 320 cubic yards. This is a fairly large amount for us and seems
adequate for the City's purpose.
I have copied the final draft of the contract to you along with a memo and
letter which accompanied the item in June for your reference.
By Tuesday evening the other three cities will have considered this matter
And I will be able to report to you on their actions.
RECOMMENDED ACTION:
Motion to approve the contract between the cities of Lakeville,
Apple Valley, Rosemount and Farmington and R. D. Pecar & Company, Inc.
For the operation and maintenance of yardwaste facility.
COUNCIL ACTION:
CAMPBELL, KNUTSON, SCOTT & FUCHS, P.A.
Attorneys at Lim -
RECEIVED
Thoimis J. Cimipbcll
Ro,er N. Knur:on
Thomas M. Scat
Gan G. Fuchs
James R. willston
Elliott B. Knetsch
Michael A. Bmhack
Renae D. Steiner
Mr. John Hennen
Lakeville City Hall
20195 Holyoke Avenue West
P.O. Box 957
Lakeville, MN 55044
August 6, 1992
James F. Sheldon, Esq.
Attorney at Law
600 Midway Nat'l. Bank Bldg.
7300 West 147th Street
Apple Valley, MN 55124
AUG 7 1992
CITY U1 HUbr-100UNT
(612).}52.5000
Fax (612) 452-5550
Mr. Jeffrey Weldon
Assistant Administrator
Apple Valley City Hall
14200 Cedar Avenue
Apple Valley, MN 55124
Mr. Stephan Jilk
Rosemount City Hall
2875 - 147th Street West
Rosemount, MN 55068
Mr. Larry Thompson
Mr. Richard D. Pecar City of Farmington
#4 Benhill Road 325 Oak Street
Saint Paul, MN 55105 Farmington, MN 55024
RE: Yardwaste Maintenance Contract
Dear Gentlemen:
Enclosed for your review please find revised contract between
Lakeville, Apple Valley, Rosemount, Farmington, and R.D. Pecar &
Company, Inc. for operation and maintenance of a yardwaste
facility. Insubstantial changes have been made in paragraphs 2.1,
3.18, 8.2, 15.1, and 19.2 at the request of Mr. Pecar. This is
scheduled to be on the Lakeville City Council agenda on August 17,
1992, and the Apple Valley City Council agenda on August 13, 1992.
If you have any concerns or questions, please call me.
Ver truly yours,
CAMPBELL, SON, SCOTT
FUCHS, A.
S
RNK:srn
Enclosure
Roger N. Knu
Suite 31-1 • Ea,andale Office Center • 1380 Corporate Center Curve • Eagan, MN 55121
CONTRACT BETWEEN THE CITIES OF LAKEVILLE,
APPLE VALLEY, ROSEMOUNT AND FARMINGTON
AND R. D. PECAR & COMPANY, INC.
FOR OPERATION AND MAINTENANCE OF YARDWASTE FACILITY
This Contract is made and entered into between the Cities of
Lakeville, Apple Valley, Rosemount and Farmington, hereinafter
"Client" and R. D. Pecar & Company, Inc., P.O. Box 40130, St. Paul,
Minnesota 55104, hereinafter "Vendor".
WHEREAS, the State of Minnesota, through enactment of the
Waste Management Act of 1980, as amended, has declared as stated
policy the improvement of solid waste management through the
separation and recovery of energy and materials from solid waste
and through the reduction of indiscriminate reliance upon land
disposal of solid waste; and
WHEREAS, yardwaste may not be disposed of in mixed municipal
solid waste, in a landfill, or in a resource recovery facility
except for purposes of composting or co -composting; and
WHEREAS, the Client, consistent with these policies, desired
to ensure an alternative to the landfilling of Yardwaste and Brush
pursuant to Dakota County's Solid Waste Master Plan; and
WHEREAS, the Vendor offers to operate and maintain a site for
the receiving, storage, transfer and processing of Acceptable
Materials; and
WHEREAS, the Client agrees to promote the delivery of
Acceptable Materials to the Vendor, and the Vendor agrees to
accept, store, and compost or otherwise process Yardwaste, Brush,
r08/06/92
and Christmas Trees delivered to the Facility and the Vendor
further agrees to market or otherwise utilize or dispose of all
the compost and chips produced at the Facility; and
WHEREAS, the Vendor is a corporation duly organized under the
laws of the State of Minnesota and registered to do business in the
State of Minnesota; and
WHEREAS, Vendor has the authority to execute this Contract as
a binding legal obligation, fully enforceable in accordance with
its terms and conditions.
NOW, THEREFORE, in consideration of the mutual promises and
agreements contained herein the parties agree as follows:
1. GENERAL PROVISIONS.
1.1 Purpose. The purpose of this Contract is to define
the rights and obligations of the parties with respect to the
operation and maintenance of the yardwaste facility.
1.2 Recitals. The recitals set forth in the whereas
clauses above are incorporated by reference as if fully set forth
herein.
1.3 Cooperation. The Client and Vendor shall cooperate and
use their reasonable efforts to ensure the most expeditious
implementation of the various provisions of this Contract. The
parties agree to, in good faith, undertake resolution of any
disputes in an equitable and timely manner.
1.4 Term. The term of this Contract shall commence
February 16, 1993, and terminate on December 31, 1996, unless
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earlier terminated by law or according to the provisions herein.
2. DEFINITIONS.
Unless the language or context clearly indicates that a
different meaning is intended, the words, terms and phrases stated
below, when capitalized, shall have the following meaning:
2.1 Acceptable Materials. Yardwaste, Brush, Christmas
Trees and the bags in which they are delivered. "Brush" shall mean
shrub and tree waste. "Christmas Trees" shall mean fresh -cut
coniferous or evergreen trees or boughs, used for Yuletide
decorations but not such trees or boughs which contain wire or
other contamination. "Yardwaste" shall mean lawn cuttings, leaves,
garden waste, weeds and sod strippings.
2.2 Commercial Entity. Any person, or public or private
entity, delivering Acceptable Materials to the Facility, other than
an Individual delivering Acceptable Materials from his/her own
residence.
2.3 Facility. The following site used for the receiving,
storage, transfer or processing of Acceptable Materials.
Lakeville Compost Site. The Client's yardwaste compost site
located at 17750 Pilot Knob Road in Lakeville, Minnesota.
2.4 Finished Products. Compost in marketable condition and
wood chips, or mulch.
2.5 Individual. Any person who delivers Acceptable
Materials to the Facility from his/her own residence.
3
2.6
Processing. Changing Acceptable Materials, as
delivered
to the Facility, into useful products, through the
natural process of composting, or the mechanical process of
chipping
or grinding, and the preparation needed for these
processes
to occur.
2.7
Receiving Time. That time during which Acceptable
Materials
is received at a Facility.
2.8
Season. February 16 through February 15.
2.9
Tip Fee. A fee charge to Commercial Entities and
Individuals
for delivery of Acceptable Materials to the Facility.
2.10
Unacceptable Materials. All materials except
Yardwaste,
Brush, Christmas Trees, and the bags in which it is
delivered.
2.11 User. Commercial Entities or Individuals delivering
Acceptable Materials to the Facility.
3. VENDOR'S RIGHTS AND OBLIGATIONS.
3.1 Capacity. The Vendor shall operate and maintain, in
each Season (February 16, 1993 through February 15, 1996) the
Facility capable of handling Acceptable Materials generated by the
Client's communities.
3.2 Receiving. The Vendor shall accept Acceptable
Materials generated in the Client's communities from Individuals
and Commercial Entities, based upon policies which the Vendor shall
set for the Facility. Such policies shall be submitted to the
Client by February 1st of each year and ten (10) days prior to the
In
CAI1PFFl [ , f hJI1TSCil,l . SCOTT R, F JCHS , P . H
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Aug 13 , 92 14 : 5r, h,ln . 018 F . 04105
effective date of any changes thereto. Such policies shall include:
* Type of material ttlat ,lay be accepted at the Facility;
* Condition of Acceptable Materials when delivered;
* Bagged vs. Debagged materials;
* Parties who may deliver Acceptable Materials;
* Fees charged to dispose of Acceptable Materials;
* Prices charged for Finished Products; and
* Acceptance of Christmas Trees.
3.3 Waste From Other Areas. Vendor may receive Acceptable
Materials generated outside of Client's communities so long as
sufficient capacity is retained for Acceptable Materials generated
by the Client.
3.4 Tip Fees. Vendor shall charge a Tipping Fee to Users
sufficient to cover costs of the Facility. Vendor shall submit a
fee schedule to the Client by February 1st of each year and ten
(10) days prior to the effective date of any changes thereto.
Notwithstanding the above, the Cities may deliver without cost to
the Cities, the following quantities per year of Acceptable
Materials generated by the City making the delivery and delivered
to the facility in City vehicles:
Lakeville - 520 cubic yards
Rosemount - 320 cubic yards
Farmington - 320 cubic yards
Apple Valley - 520 cubic yards
3.5
Receiving
Time. Subject
to
applicable Client
and
municipal
ordinances,
tyle Vendor shall
keep
the Facility open
for
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the receiving of Acceptable Materials for a minimum of 1200 hours
per Season. Vendor shall submit a schedule for the Facility to the
Client by February ist of each year and ten (10) days prior to the
effective date of any changes thereto.
3.6 Vendor's Resection of Deliveries. The Vendor may
reject Acceptable Materials delivered at hours other than the
Receiving Time. A vehicle shall be denied entrance if the Vendor
has a reasonable basis to believe it contains any amount of
Unacceptable Material. Upon request, the Vendor will provide the
User and the Client with the documentation of the rejection and the
reasons therefore. The Vendor shall be responsible to obtain
landfill capacity and to properly dispose of Unacceptable
Materials, which have been delivered and which the Vendor is unable
to have removed at the expense of the Individual or Commercial
Entity delivering it. The Vendor shall pay all costs for removing
and properly disposing of Unacceptable Materials.
3.7 Processing. Vendor shall process all Acceptable
Materials received at the Facility. Acceptable Materials shall be
composted, except for Brush which may be chipped or ground.
3.8 Finished Products. The Vendor shall develop a policy
for distributing finished compost and woodchips. Vendor shall
submit said policy and any changes thereto to the Client.
3.9 Closure of Facility. The Vendor shall not accept any
Materials after February 15, 1996, at the Lakeville Compost
Facility. During the period of February 16, 1996 through
December 31, 1996, Vendor shall have exclusive access to the
r1
Facility for the purpose of processing materials accepted, selling
or otherwise distributing finished products and site clean up.
3.10 Clean-up of the Facility. All chips, finished compost,
unprocessed Acceptable Materials and Unacceptable Materials present
at the Lakeville Compost Facility shall be removed and the site
restored to its condition on the day preceding the effective date
of this Contract by the Vendor on or before December 31, 1996.
3.11 Cost of Removal. If the Vendor does not remove
Materials and Finished Products as required under 3.10, the Client
may remove them and charge the Vendor for its removal.
3.12 Labor and Equipment. The Vendor shall provide all
labor, equipment, tools, supplies, and other materials necessary
to operate the Facility. The Vendor shall maintain, repair and
replace all equipment as necessary, to ensure continued compliance
with all requirements of law and other obligations as set out in
this Agreement.
3.13 Roads. The Vendor shall be responsible for maintaining
all roads within the boundaries of the sites required for continued
operation as contemplated by this Agreement. The Vendor shall be
responsible for connecting such roads to the access roads or drives
at the boundaries of the site.
3.14 Drainage. The Vendor shall provide and maintain an
adequate storm and surface water drainage system during the period
of operation.
3.15 Vendor's Information Systems. The Vendor shall
establish and maintain an information system to provide storage and
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ready retrieval of Facility data. No later than twenty (20) days
after the close of each calendar quarter, the Vendor shall provide
the Client with a report for the previous quarter, presented in a
form acceptable to the Client, including, but not limited to, the
following data on Yardwaste, Brush and Christmas Trees received by
the Facility:
A. City/township of origin by weight and volume;
B. The total weight and volume;
C. Assessed Tipping Fees;
D. The weight or volume of residues and Unacceptable
Materials delivered to a sanitary landfill for
disposal;
E. The use of conversion factors, as described below, by
materials;
F. Quantity of Yardwaste and Brush not generated in Dakota
County;
G. Breakdown by weight and volume by individuals and
commercial entities; and
H. Other information which the Client may reasonably
require.
3.16 Product Distribution Report. The Vendor shall report
quarterly the volumes and the type of use intended by the end
users.
3.17 Converting Volume to Weight. The Vendor shall
establish a factor for converting cubic yards of Yardwaste and
Brush received to tons of materials received. This conversion
factor shall be based upon test weights for each material received.
0
3.18 Hazardous Waste. If any hazardous waste, as defined
by any federal or state law or regulation, is received at the
facility, the Vendor shall within 24 hours notify the Minnesota
Pollution Control Agency and the Client Coordinator.
3.19 Phone. The Vendor shall maintain a phone service to
answer questions about its facility. An answering machine shall
be used when no one is available to answer the phone.
3.20 M.P.C.A. Rules. Vendor shall comply with the M.P.C.A.
rules attached hereto as "EXHIBIT 1," and any subsequent amendments
to the Rules.
4. RIGHTS AND OBLIGATIONS OF THE CLIENT.
4.1 Commitment to Promote the Delivery of Acceptable
Materials. The Client shall promote the delivery of Acceptable
Materials to the Facility. The Client will meet and confer with
the Vendor on publicity of the Yardwaste program. The Client,
jointly with R. D. Pecar and Company, Inc., shall develop a program
and materials for promoting the yardwaste management program and
Facility.
4.2 Permit. Notwithstanding Section 5.2 of this Contract,
the Client shall obtain the Minnesota Pollution Control Agency
Permit by Rule and other land use or conditional use permits.
4.3 Site. The City of Apple Valley shall provide the site
legally described on the attached "EXHIBIT 2" for the Lakeville
Yardwaste Compost Facility.
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4.4 Tours. At any time during the term of this Agreement
and upon reasonable prior notice to the Vendor, the Client, its
elected officials, employees, agents, representatives or guests
shall have the right to tour the Facility in order to observe and
to permit others to observe the various services which the Vendor
performs. The Vendor may take reasonable precautions to protect
proprietary equipment and processing procedures. Such scheduled
tours shall be conducted in a manner so as to comply with the
Vendor's safety standards, shall not interfere with the Vendor's
ability to perform its obligations under this Agreement. Tours
shall occur during regular operating hours, unless otherwise agreed
to by both parties.
4.5 Inspection. The Client, its elected officials,
employees, agents or representatives, including employees of the
M.p.C.A. and Dakota County, may inspect the operation of the
Facility at any time for the purposes of verifying compliance with
the terms of this Agreement. The Vendor shall cooperate fully with
the inspection. The Client, its elected officials, employees,
agents or representatives shall have complete right and access to
the Facility so long as it does not interfere with the normal
operations of the Facility.
4.6 Lakeville, Apple Valley, Rosemount and Farmington ("the
Cities") acknowledge that they are individually and collectively
"arranging for" and "generating" delivery of materials to the site
and that they are "owners or possessors" of the property from and
after the date of this Contract. The Cities further agree that
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should a determination be made by the M.P.C.A., the EPA, their
successors or assigns, or any governmental agency having
jurisdiction over the site and the processes occurring thereon,
that any one of the Cities is liable with respect to the activities
performed under this Contract, that all of the Cities shall share:
the costs of defense, including reasonable attorneys' fees; all
damages, claims, awards, penalties and the like; clean-up costs,
remediation costs and administrative costs or other similar costs
in the proportions as follows: Apple Valley - 35%; Lakeville -
35%; Farmington - 15% and Rosemount - 15%.
This Agreement and the associated allocation of costs
hereunder does not release or waive the Cities' rights against
prior owners, possessors or operators, nor waive or release any
other persons, including vendor, from any legal responsibility.
5. COMPLIANCE WITH LAWS/STANDARDS.
5.1 General. Vendor shall abide by all Federal, State or
local laws, statutes, ordinances, rules and regulations now in
effect or hereafter adopted pertaining to this Contract or to the
Facility, programs and staff for which Vendor is responsible. This
includes, but is not limited to all Standard Assurances, which are
attached as Exhibit 3.
5.2 Licenses. Vendor shall procure, at its own expense,
all licenses, permits or other rights required for the provision
of services contemplated by this Contract. Vendor shall inform the
Client of any changes in the above within five (5) days of
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occurrence.
5.3 Violations. Any violation of Federal, state, or local
laws, statutes, ordinances, rules, or regulations, as well as loss
of any applicable license or certification by Vendor shall
constitute a material breach of this Contract, whether or not
intentional and shall entitle the Client to terminate this Contract
upon delivery of written notice of termination to Vendor.
5.4 Minnesota Law to Govern. This Contract shall be
governed by and construed in accordance with the substantive and
procedural laws of the State of Minnesota, without giving effect
to the principles of conflict of laws. All proceedings related to
this Contract shall be venued in the State of Minnesota.
6. INDEPENDENT CONTRACTOR STATUS.
Vendor is to be and shall remain an independent contractor
with respect to any and all work performed under this Contract.
It is agreed that nothing herein contained is intended or should
be construed in any manner as creating or establishing the
relationship of agents, partners, joint venturers or associates
between the parties hereto or as constituting Vendor as the
employee of the Client for any purpose or in any manner whatsoever.
Vendor acknowledges and agrees that Vendor is not entitled to
receive any of the benefits received by Client employees and is not
eligible for workers' or unemployment compensation benefits under
the Client. Vendor also acknowledges and agrees that no
withholding or deduction for state or federal income taxes, FICA,
12
FUTA, or otherwise, will be made from the payments due Vendor and
that it is Vendor's sole obligation to comply with the applicable
provisions of all federal and state tax laws.
7. RENT.
Vendor shall pay the City of Apple Valley $900.00 per year
rent for the Lakeville compost site. The first rental payment
shall be due within ten (10) days after the effective date of this
contract and shall be due annually thereafter on the anniversary
date of the first payment.
8. INDEMNIFICATION AND INSURANCE.
8.1 Indemnification. The Vendor will indemnify, defend and
save harmless the Client, its elected officials, employees, agents
or representatives from any and all claims, damages, lawsuits,
losses, liabilities, costs and expenses arising out of any act,
omission or equipment failure on the part of the Vendor or its
subcontractors, agents, servants or employees in the performance
of any of the work or services to be performed or furnished by the
Vendor under the terms of this Agreement. Such indemnity shall
include, but not be limited to, property damage, personal injury,
bodily injury and death, punitive damages or any combination
thereof.
The Client shall indemnify, defend and save harmless the
Vendor, its employees, agents or representatives from any and all
claims, damages, lawsuits, losses, liabilities, costs and expenses
13
arising out of any act or omission or commission of the Client, its
elected officials, employees, agents or representatives in
connection with work or services to be performed by the Client
under the terms of this Agreement.
8.2 Insurance. In order to protect itself and to protect
the Client under the indemnity provision set forth above, the
Vendor shall, at Vendor's expense, procure and maintain policies
of insurance during the term of this Agreement as set forth below.
Such policies of insurance shall apply to the extent of, but as a
limitation upon or in satisfaction of, the indemnity provisions
herein. All retentions and deductibles under such policies of
insurance shall be paid by the Vendor. Each such policy of
insurance and insurance certificate shall not be canceled, non -
renewed or materially changed in the issuing insurance company,
without at least thirty (30) days written notice of intent to
cancel to the Client.
Concurrent with execution of this Agreement and as necessary
to show continuous coverage, the Vendor shall file acceptable
certificates of insurance with the Client. All insurance shall
state that the insurance broker through which this insurance was
purchased has errors and omissions insurance.
8.3 Coverage. The policies of insurance to be obtained by
the Vendor pursuant to this Article shall be purchased from a
licensed carrier, shall name Client as an additional insured, and
shall include the following:
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A. Comprehensive General Liability, including Contractual.
Occurrence -based single or combined limit comprehensive
general liability insurance with the minimum limits of
Two Hundred Thousand and No/100 Dollars ($200,000) per
person and Six Hundred Thousand and No/100 Dollars
($600,000) per occurrence.
B. Automobile Liability. Automobile liability insurance
if any vehicles are used in connection with this
Agreement which shall include the following minimum
coverages:
(1) Bodily Injury and Property Damage: Two Hundred
Fifty Thousand and No/100 Dollars ($250,000) per
person and Five Hundred Thousand and No/100
Dollars ($500,000) per occurrence.
(2) Hired, owned and non -owned vehicles.
C. Umbrella Liability. Umbrella Liability insurance in
the minimum amount of $2,000,000. It is the
responsibility -of Contractor to maintain all underlying
insurance in accordance with the terms of the Umbrella
Liability policy.
D. Workers' Compensation. The statutory minimum.
8.4 Failure to Provide Proof of Insurance. This Agreement
will not be executed until proof of insurance consistent with the
insurance requirements herein has been submitted to the Client.
8.5 Excessive Premiums. If the premium for any liability
insurance more than triples from one year to the next during the
term of this Agreement, the Vendor may terminate this Agreement
effective upon cancellation of insurance coverage and ten (10) days
notice. In the event Vendor gives notice to terminate under this
paragraph, Vendor and Client agree to meet and confer on payment
of insurance premiums and continuation of this Agreement.
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9. PERFORMANCE BOND.
The Vendor shall furnish to the Client a bona in the amount of
Twenty-five Thousand and No/100 Dollars ($25,000.00) which shall be
that if the Vendor fails to perform the obligations required by this
Agreement, and the Client is required to spend monies or labor or
materials to remedy such nonperformance, the Vendor and sureties on
the bond will indemnify and save the Client harmless from all losses,
costs, and charges that may be incurred by the Client because of any
failure by the Vendor to comply with the terms of this Agreement. The
Client may approve an irrevocable letter of credit in .lieu of a
performance bond. Although the Vendor is required to have a bond or
letter of credit in place for the entire terra, bonds or letters of
credit for shorter terms will be accepted provided they are replaced
or renewed by the Vendor before they lapse.
10. SUBCONTRACTING.
Parties shall not enter into any subcontract for the performance
of this Contract nor assign any interest in this Contract without
prior written consent of all parties and subject to such conditions
and provisions as are deemed necessary. This limitation shall not
apply to subcontract's so long as R.D. Pecar, President, retains
managerial control of the Facility. All parties shall be notified of
subcontracts as soon as reasonably possible 'regardless of their
dollar value or nature.
Any agreement between Vendor and any subcontractor shall
obligate the subcontractor to comply with the general terms of this
Contract.
The subcontracting or assigning party shall be responsible
16
for the performance of its subcontractors or assignees and their
compliance with the Contract terms.
11. DEFAULT.
11.1 Force Majeure. No party shall be held responsible or
subject to damages for delay or failure to perform when such delay
or failure is due to any uncontrollable circumstance unless the act
or occurrence could have been foreseen and reasonable action could
have been taken to prevent the delay or failure, including but not
limited to:
A. Riots, insurrections, war or civil disorder affecting
performance of work, blockades, sabotage, and acts of
God (including tornadoes, lightning, earthquakes,
fires, explosions and floods but not including typical
seasonal weather conditions for this geographic area).
B. The adoption of or change in any federal, state or
local laws, rules, regulations, ordinances, permits,
or licenses or changes in the interpretation of such
laws, rules, regulations, ordinances, permits, or
licenses by a court or public agency asserting
jurisdiction after the date of the execution of the
Contract, except a change in federal, state or local
tax law.
C. The suspension, termination, interruption, denial or
failure of renewal of any permit, license, consent,
authorization or approval essential to the operation,
management or maintenance of the Facility.
D. Orders and/or judgments of any federal, state or local
court, administrative -agency or governmental entity.
The Client and the Vendor agree to attempt to resolve quickly
all matters related to uncontrollable circumstances and use all
reasonable efforts to mitigate its effects.
If a matter arising under this paragraph is unable to be
resolved within sixty (60) days the non -defaulting party may
17
terminate this Contract upon ten (10) days written notice.
11.2 Inability to Perform. Vendor shall make every
reasonable effort to maintain staff, facilities, and equipment to
provide the services to the Client as required by this Contract.
Vendor shall immediately notify the Client in writing whenever it
is unable to, or reasonably believes it is going to be unable to,
provide the agreed upon quality and quantity or services. Upon
such notification, the Client shall determine whether such
inability requires a modification or cancellation of this Contract.
11.3 Default by Vendor. Unless cured or excused by the
occurrence of Force Majeure or Client default, each of the
following shall constitute default on the part of the Vendor:
• The written admission by the Vendor that it is
bankrupt; or the filing of an involuntary petition
under the Federal Bankruptcy Act against the Vendor
unless dismissed within ninety (90) days. The Notice
of Default and cure provisions of this Contract do not
apply to this paragraph.
• The making of any arrangement with or for the benefit
of Vendor's creditors involving an assignment to a
trustee, receiver or similar fiduciary. The Notice of
Default and cure provisions of this Contract do not
apply to this paragraph.
• Making material misrepresentations either in the
attached exhibits and documents or in any other
material provision or condition relied upon in the
making of this Contract.
• A court or administrative body having competent
jurisdiction finds that the Vendor persistently
disregards laws, ordinances, rules, regulations or
orders of any public authority.
Failure to perform any other material provision of this
contract.
"M
11.4 Default by the Client. Unless cured or excused by the
occurrence of Force Majeure or default of the Vendor, each of the
following shall constitute a default on the part of the Client:
• Making knowing material representations either in the
attached exhibits and documents or in any other
provisions or conditions relied upon in making this
Contract.
• Failure to provide the site indicated in paragraph 4.3
or the equivalent.
• Failure to perform any other material provision of this
Contract.
11.5 Written Notice of Default. Unless a different
procedure and/or effective date is provided in the article or
paragraph of this Contract under which the default, failure or
breach occurs, no event shall constitute a default giving rise to
the right to terminate unless and until written Notice of Default
is given to the defaulting party, specifying the particular event,
series of events or failure constituting the default and cure
period.
11.6 Cure Period. If the party in default fails to cure the
specified circumstances as described by the Notice of Default
within twenty (20) days or such other time as may be specified
under the terms of this Contract, then this Contract may be
terminated.
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12. TERMINATION.
12.1 Duties of Vendor upon Termination. Upon termination,
except as otherwise requested, Vendor shall discontinue performance
of this Contract. Within one (1) year of termination, Vendor shall
remove all chips, Finished Products, unprocessed Acceptable
Materials and Unacceptable Materials and restore site to its
condition on the day preceding the effective date of this Contract.
12.2 Duties of Client upon Termination. Upon termination,
and except as otherwise provided, the Client shall not be liable
for any services provided after termination, except as authorized
by the Client in writing.
12.3 Effect of Termination. Termination of this Contract
shall not discharge any liability, responsibility or right of any
party which arises from the performance of or failure to adequately
perform the terms of this Contract prior to the effective date of
termination. Nor shall termination discharge any obligation which
by its nature would survive after the date of termination,
including by way of illustration only and not limitation, Standard
Assurances attached hereto.
13. CONTRACT RIGHTS/REMEDIES.
13.1 Rights Cumulative. All remedies available to either
party under the terms of this Contract or by law are cumulative and
may be exercised concurrently or separately, and the exercise of
any one remedy shall not be deemed an election of such remedy to
PAR
the exclusion of other remedies.
13.2 Waiver. The waiver of any default by either party, or
the failure to give notice of any default, shall not constitute a
waiver of any subsequent default or be deemed to be a failure to
give such notice with respect to any subsequent default. Waiver
of breach of any provision of this Contract shall not be construed
to be modification for the terms of this Contract unless stated to
be such in writing and signed by authorized representatives of the
Client and Vendor.
14. DAMAGES.
14.1 Duty to Mitigate. Both parties shall use their best
efforts to mitigate any damages which might be suffered by reason
of any event giving rise to a remedy hereunder.
14.2 Cost of Defense. In the event the Vendor fails to
operate the facility in compliance with all applicable local, state
and federal laws, permits, rules and regulations, the Vendor shall
reimburse the Client for any civil or criminal penalties or costs
of defense incurred due to such violations.
15. REPRESENTATIVE.
15.1 Authorized Representative. The following named persons
are designated the Authorized Representative of parties for
purposes of this Contract. These persons have authority to bind
the party they represent and to consent to modifications and
subcontracts, except that, as to the Client, the Authorized
21
Representative shall have only the authority specifically or
generally granted by the Client. Notification required to be
provided pursuant to this Contract shall be provided to the
following named persons and addresses unless otherwise stated in
this Contract, or in a modification of this Contract.
TO VENDOR:
R. D. PECAR & COMPANY, INC.
P. O. Box x#40130
St. Paul, MN 55104
Attn: Richard D. Pecar, President
(612) 224-1659
TO CLIENT:
CITY OF APPLE VALLEY
14200 Cedar Avenue
Apple Valley, MN 55124
Attn: City Administrator
(612) 431-8800
CITY OF LAKEVILLE
20195 Holyoke Avenue West
Lakeville, MN 55044
Attn: City Administrator
(612) 469-4431
CITY OF FARMINGTON CITY OF ROSEMOUNT
321 Oak Street 2875 - 145th Street West
Farmington, MN 55024 Rosemount, MN 55068
Attn: City Administrator Attn: City Administrator
(612) 463-7111 (612) 423-4411
15.2 Coordinator. To assist the parties in the day-to-day
performance of this Contract and to develop service, ensure
compliance and provide ongoing consultation, a coordinator shall
be designated by Vendor and the Client. The parties shall keep
each other continually informed, in writing, of any change in the
designated coordinator. At the time of execution of this Contract,
the following persons are designated coordinators:
Vendor Coordinator: Richard D. Pecar
Phone Number: (612) 224-1659
Client Coordinator: John Hennen
Phone Number: (612) 469-4431
22
16. CONFLICT OF INTEREST.
Vendor agrees that it will not contract for or accept
employment for the performance of any work or services with any
individual, business, partnership, corporation, government,
governmental unit, or any other organization that would create a
conflict of interest in the performance of its obligations under
this Contract.
17. MODIFICATIONS.
Any alterations, variations, modifications, or waivers of the
provisions of this Contract shall only be valid when they have been
reduced to writing, signed by Authorized Representatives of the
Client and Vendor.
18. SEVERABILITY.
18.1 The provisions of this Contract shall be deemed
severable. If any part of this Contract is rendered void, invalid,
or unenforceable, such rendering shall not affect the validity and
enforceability of the remainder of this Contract unless the part
or parts which are void, invalid or otherwise unenforceable shall
substantially impair the value of the entire Contract with respect
to either party.
18.2 The parties further agree to substitute for the invalid
portion a valid provision that most closely approximates the
economic effect and intent of the invalid provision.
23
19. MERGER.
19.1 Final Agreement. This Contract is the final expression
of the agreement of the parties and the complete and exclusive
statement of the terms agreed upon, and shall supersede all prior
negotiations, understandings or agreements. There are no
representations, warranties, or stipulations, either oral or
written, not herein contained.
19.2 Exhibits.
Exhibit 1 - "M.P.C.A. Rules;
Exhibit 2 - "Legal description of Yardwaste Compost Facility
Site";
Exhibit 3 - "Standard Assurances;" and
are attached and incorporated herein by reference.
IN WITNESS WHEREOF, the parties have executed this Contract
on the date indicated below:
CITY OF APPLE VALLEY CITY OF FARMINGTON
By:
WILLIAM F. HOLTON, Mayor
By:
MARY MUELLER, Clerk
CITY OF LAKEVILLE
By:
DUANE R. ZAUN, Mayor
By:
CHARLENE FRIEDGES, Clerk
24
By:
EUGENE "BABE" KUCHERA, Mayor
By:
LARRY THOMPSON, Administrator
CITY OF ROSEMOUNT
By:
EDWARD B. McMENOMY, Mayor
By:
SUSAN M. WALSH, Cler
R. D. PECAR & COMPANY, INC.
By:
Its
By:
Its
STATE OF MINNESOTA)
)ss..
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this
day of , 1992, by WILLIAM F. HOLTON and MARY MUELLER,
respectively the Mayor and Clerk of THE CITY OF APPLE VALLEY, a
Minnesota municipal corporation, on behalf of said corporation and
pursuant to the authority granted by its City Council.
NOTARY PUBLIC
STATE OF MINNESOTA)
) ss. .
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this
day of , 1992, by EUGENE "BABE" KUCHERA and LARRY
THOMPSON the Mayor and Administrator of THE CITY OF FARMINGTON, a
Minnesota municipal corporation, on behalf of said corporation and
pursuant to the authority granted by its City Council.
NOTARY PUBLIC
25
STATE OF MINNESOTA)
)ss..
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this
day of , 1992, by DUANE R. ZAUN and CHARLENE FRIEDGES
respectively the Mayor and Clerk of THE CITY OF LAKEVILLE, a
Minnesota municipal corporation, on behalf of said corporation and
pursuant to the authority granted by its City Council.
NOTARY PUBLIC
STATE OF MINNESOTA)
) ss. .
COUNTY OF DAKOTA )
The foregoing instrument was acknowledged before me this
day of , 1992, by EDWARD B. McMENOMY and SUSAN M. WALSH
respectively the Mayor and Clerk of THE CITY OF ROSEMOUNT, a
Minnesota municipal corporation, on behalf of said corporation and
pursuant to the authority granted by its City Council.
NOTARY PUBLIC
STATE OF MINNESOTA)
) ss. .
COUNTY OF )
The foregoing
day of ,
instrument was acknowledged before me this
1992, by and
_ respectively the and
of R. D. PECAR & COMPANY, INC., a Minnesota
corporation, on behalf of said corporation.
NOTARY PUBLIC
26
MINNESOTA POLLUTION CONTROL AGENCY RULES
7035 2835 COMPOST FACII=S.
Subpart 1. Scope. The requirements of subparts 4 to 9 apply to the owners and
operators of facilities used to compost solid waste, except as provided in part
7035.2525, subpart 2. The owner or operator of a yard waste compost facility must
comply with subparts 2 and 3 only. Backyard compost facilities are exempt from
this part
Subp. 2 Notification. The owner or operator of a yard waste compost facility
must notify the commissioner by letter before beginning operation of the facility.
The notification must include the facility location, the name of the contact person,
the phone number of the contact person, the address of the contact person, the
facility design capacity, the type of waste received, and the intended distribution
of the finished product.
Subp. 3 Operation requirements for a yard waste compost facility.
A. Odors emitted from the facility must not exceed the limits specified
in parts 7005.0900 to 7005.1400.
B. Composted yard waste offered for use must be produced by a process
that encompasses turning of the yard waste on a periodic basis to aerate the yard
waste, maintain temperatures, and reduce pathogens. The composted yard waste must
contain no sharp objects greater than one inch in diameter.
C. By-products, including residuals and recyclables must be stored in a
manner that prevents vector problems and aesthetic degradation- Materials that are
not composted must be stored and removed at least weekly.
D. Surface water drainage must be controlled to prevent leachate runoff.
Surface water drainage must be diverted from the compost and storage areas.
E. The annual report required under part 7035.2585 must be submitted to
the commissioner and must include the type and quantity, by weight or volume, of yard
waste received at the compost facility; the quantity, by weight or volume, of comp
produced; the quantity, by weight or volume, of compost removed from the facility;
and a description of the end -product distribution and disposal system_
EXHIBIT 1
EXHIBIT 2
LEGAL DESCRIPTION OF
YARDWASTE COMPOST FACILITY SITE
SITE DESCRIPTION:
Al11,that- part of the North one-half of the Southwest Quarter (N 1/2 of
SW 1/4) of Section Twelve (12), Township one Hundred Fourteen North
(114N), Rance Twenty '.,lest (20W), described as follows: Assuring the
North line of said Section 12 to have a bearing of South ninety
degrees East (S.9 C E) and the 11est line of said Section 12 to have a
bearing of North zero degrees and fifty-six minutes East
thence beginning at a point sllich is one thousand five hundred
seventy -tour and three -tenths (1,574.3) feet East and three thousand
one hundred fifty-five and six -tenths (3,155.6') feet South of the
Northwest corner of said Section 12; thence -Easterly and parallel to
the North line of the Southwest Quarter (SW 1/4) o= said Section 12 a
distance of one thousand sixty-five and seven -,tenths (1,065.7') feet,
more or less to the East line of said Southwest',\Quarter (SW 1/4) of
said Section 12, thence Southerly along said East line to the
Southeast corner of the North one-half of said Southwest Quarter (�i
1/2 of SW 1/4); thence Westerly along the South line of said North
one-half of said Southwest Quarter (N 1/2 of SW 1/4) to the Southwest
corner thereof; thence North along the West lire of said North
one -halt of said Southwest Quarter (ii 1/2 O= SW 1/4) t ;1rtV-th=ee
(33') feet, thence East and parallel to the South line of said Nort'�
one --half o_ said Southwest Quarter (IN 1/2 of SW 1/4) one thousand five
hundred seventy-four and three -tenths (1,574.3') feet to a polnt due
South of the point of beginning, thence North to the paint o=
beginning, all according to the Government Survey thereof-.
INGRESS AND EGRESS EASEMENT DESCRIPTION:
A permanent easement for ingress and egress over and across the
following described property:
Beginning at a point which is 1..574.3 feet East and 3,155.6 feet
South of the Northwest corner of said Secticn Twelve 12 Township
One Hundred Fourteen North (114N) Rance Twenty West (20W);
thence Easterly and parallel with the North line of Southwest
1/4 of Section 12 a distance of 35 feet; thence 'Southerly and
parallel with the west line of the Southwest 1/4 of Section 12
to the South line of the North 1/2 of the Southwest 1/4 of
Section 12; thence westerly along the South line of the North
1/2 of the Southwest 1/4 of Section. 12 a distance of 1.609.3
feet to the west line oz Section 12; thence North along the west
lire of Section 12 a distance of 33 feet; thence Easterly and
pazallel with the South line of the North 1/2 of the Southwest
1/4 of Section 12, a distance ot- 1,574.3 feet; thence Northerly
to a point of beginning and there terminating.
Subject to easements, restrictions, and reservations of record, if
any.
not
uLly
perf
1_ MOa'-D1SC�IF(i%AT1Oa. During the icsnt for & of th'nttbecause ofthe
race, color, creedl, religion,
,discriminate against any employee or applicant for a+�ploY■K
national origin, disability, age, aarital status or public assistance status. The Contractor will tang
affirmative action to ensure th+t applicants, are e+OLoyed, and that employees are treated during
employment, without unlawful discrimination because of their race, color, creed, religion, sex, national
in disability, g, marital status or public aeeist+ace status. Such action shall include, but not be
orifi iliage, upgrading, demotion, or transfer; recruitment or recruitment
limited to the following: employ*ent,
advertieing; layoff or termination; rates of pay or othoL2 ;nr conspicuousn pLtms of la
aces, s a lable'to employees'and
including apprenticeship. The Contractor agrees to p
hich set forth the provisions of this nondiscrimination clause.
applicants for employment, notices w
The Contractor will, in all solicitationsor adverm
will re tineeive consitleratents for monofor splaced yo
employmentwithout behalf regard tc
Contractor, state that all qualified applicants
race, creed, color, religion, sex, national origin, disability, marital status, or public assistance
status. used to provide religious or sectarian training or
ko funds received under this Contract shall be
services.
The Contractor shall' comply with any applicable federal or slate law regarding non-discrimination. The
following list includes, but is not natant to limit, lave which may be applicable:
-7he Eauel molovment O000rtunity Act of 1972, +s amended, 42 U.S.C. 52000c et seq. which prohibits
A. s
discrimination in employment because of race, color, religionx or national origin.
, se
g, Executive Order 11246, as amended, which is incorporated herein by reference, and prohibit=
nd subcontractors because of race, color, religion, sex o:
discrimination by U.S. Government contractors a
national origin. / , 29 U.S. C. t qand 45 C.F. R. 84.3 (J) and (K
C. The Rehabilitation Act of 1973 as amended against
sualified handicapped persons in Th
Sec. 5 04 of the Act which prohibits discrimination
implementing pc�iL q
access to or participation in federally -funded services or employm and Minn. Stat. ;181 .81 whit
D. The Ace Discrimination in Emolovment Act of 1467, ns amended,
generally prohibit discrimination because of age. ^ which provides that an employer may nc
Thr Eoual Pav Act of 1963, as amended, §29 U.S.. §206,
discriminate E the basis of sex by paying employees of different sexes differentLy for the same work.
Nina _5 ;a_ Ch. 363, as amended, which generally prohibits discrimination because of race, colo`
creed, religion, national origin,
sex, marital status, status with regard -to pubLic assistance, disabili:
or age.erson b reason of race, creed, c
G, Minn. Stat. ;181.59 which prohibits discrimination against any P Y Violation :
color in any state or political subdivision contract for materials, supplies or construction.
this sec;ion is a misdemeanor and any second or suDseque'nt violation of these terms may be cause f:
forfeiture of all sums due under the Contract.
tained
2, DATA PRTVACT. For purposes of this Contra he aMinnesota Government Data e PrracticeseActF,aMrinn. Sta
disseminated shalt be administered consistent with
Chapter 13 and the Minnesota Rules implementing the Act now in force or hereafter adopted as well as Feder
d rules. All subcontrac
laws on data privacy. The Contractor will strictly comply with these statutes an
shall contain the same or similar data practices compliance requirements. a ers, accounti
3, RECORDS DISCLOSURE RETEXTIOx. Contractor's bonds, records, documents, ct papers,
examinatic
procedures and practices, and other evidences relevant to this Cont'SiBt'°�e°o(uState Auditor, pursuant
duplication, transcription and audit by the County and either the Leg
Minn. Stat. 5166.06, subd. 4. Such evidences are also subject to review by the Comptroller General of '
United Stales, or 'n duly authorized representative, if d
federal funds are used for any work under evidences for a period of three (3) years from the
Contract, the Contractor agrees to maintain such d
services or payment vete Las: provided or made or longer if any audit in progress requires a ion
retention period.onsible for the health
4, t1ORLER HEALTH SAFETT A71D TRATx1xG. Contractor shall be solely resp Contractor shall r.
safety of its employees in connection with the work performed under this Contract.
of all subcontractors and other persons who may Perform wort
arrangements to ensure the health and safety
all personnel of Contractor and subcontractors
connect with this Contract. all shall ensure
dui licensed or certified appropriate ;o the t
properly trained and supervised and, when applicable, with the 'Occupational Safety and Health Ac-'
engaged in under this Contract. Contractor shalt comply where applicable.
the 'Employee Right Lo Know Ac;', Hinn. Stat. §182.65 et. seq.,
EXHIBIT 3
PHONE (612) 423.4411
FAX (612) 423-5203
GOCity of Rosemount
2875 • 145th Street West, Rosemount, Minnesota
Mailing Address:
P.O. Box 510, Rosemount, Minnesota 55068-0510
TO: Mayor McMenomy
Council Members: Klassen, Staats, Wil cox,
FROM: Stephan Jilk, City Administrator
J
DATE: June 10, 1992
RE: Joint City Compost Facility
MAYOR
Edward B. McMenomy
COUNCILMEMBERS
Sheila Klassen
James (Red) Staats
Harry Willcox
Dennis Wippermann
ADMINISTRATOR
Stephan Jilk
wippermann
For the last three years now Dakota County has worked with the
orivate sector to maintain two yard waste compost facilities in
Dakota County. One of these sites is located in Eagan, just south
of Eagan City Hall, on property owned by the City of Eagan. The
other site is located in the City of Lakeville, on property owned
by the City of Apple Valley. The sites were initially chosen
because of land availabillity and, because of the County's
attempt to provide locations which would act as "area" service
centers for the yard waste dropoff. These sites are established
more for residential use and are meant to serve commercial
haulers although the sites will take commercial business but
charge at a higher rate.
The County is moving the site in Eagan because the city is
reclaiming the property. The County has located a site just off
Dodd Blvd and Wescott, on private land. The County is also
indicating that it will not subsidize the compost operations
anymore and so, if the operations are going to continue, the
private sector will need to develop a program to continue these
services.
The County has notified the operator of the Lakeville site that
the County will cease to subsidize that operation as of February
1, 1993. If that operation does not continue the Cities of
Lakeville, Farmington, Rosemount and Apple Valley will have to;
1)develop their own site, 2)utilize the Eagan site, 3) utilize a
commercial site in Burnsville . In discussing these options the
City Administrators of these Cities have come to consensus that
the best approach, considering that the County is backing away
from there involvement, is to consider having the four Cities
form a joint powers agreement to continue the Lakeville
operation.
(Sverylllings (pouring
`vL �osPvnounl:�!
Joint Compost
Page 2
Following on this consideration the cities have developed an
agreement between the Cities and the operator of the site which
would allow the continued operation of the facility at no direct
cost to the Cities.
We have copied the first draft of that agreement for your
consideration.
We have had positive discussions with the operator and he is
indicating his desire and ability to work with the Cities to move
ahead on this idea.
My purpose of discussing this proposal at this point is to
introduce the idea to you and to get your input on it. Much
needs to be considered before the idea is concluded. Before we
proceed any further though I wanted to make sure your support was
in place.
i will provide additional information to you on 'Tuesday on this
matter and attempt to answer any Questions i can.
June 1, 1992
Mr. Steven Jilk
City Administrator
City of Rosemount
2875 W. 14th Street
Rosemount, MIST 55068
Dear Mr. Jilk:
As you are aware, the Dakota County Board of Commissioners approved an agreement to
continue to subsidize the Dakota County Yard Waste Compost site located off Pilot
Knob Road in Lakeville until February 1, 1993. After February 1st, residents will
not be able to dispose of their yard waste at the facility. The City of Lakeville
and the neighboring cities realize that the discontinuation of the yard waste
compost site would be detrimental to each of the cities rec} cling programs.
Currently, Dakota County has a contract with R. D. Pecar and Company, Inc. for the
operation and maintenance of the yard waste facility. City staff from the cities of
Lakeville, Rosemount, Apple Valley and Farmington met with Mr. Pecar on March 19th
regarding the possibility of creating) a joint powers agreement for the continued
operation and maintenance of the yard waste facility. Mr. Pecar has indicated he is
willing to continue to operate the site and believes he would not need a subsidy
from the cities to continue to operate the site. The property is currently owned b}
the City of Apple Valley, but is in Lakeville's city limits.
Enclosed is a draft contract from Richard Pecar regarding the operation and
maintenance of the yard waste facility. Also enclosed, for your information, is the
current contract between Mr. Pecar and Dakota County. On June 4th at 10:00 a.m., at
Lakeville City Hall, Mr. Pecar and representatives from the cities of Lakeville,
Farmington, Rosemount and Apple Valley will meet to discuss the proposed contract
and the future of the yard waste facility. Please review the proposed draft
contract agreement and be present to ask any questions which you might have
regarding the contract to Mr. Pecar at the time of the meeting.
If you need additional information, please feel free to contact me.
Sincerely,
John Hennen
Planning Assistant/Zoning Enforcement Coordinator
JH:ve
cc: Bud Osmundson, City Engineer and Assistant Public Works Director
City of Lakeville
20195 Holyoke Avenue • P.O. Box 957 • Lakeville. MN 55044 • (612) 469-4431 • FAX 469-3815