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HomeMy WebLinkAboutConAgra Foods Packaged Foods LLC-9/12/2016CITY OF WATERLOO, IOWA WASTE MANAGEMENT SERVICES 3505 Easton Ave. • Waterloo, IA 50702 • (319) 291-4553 Fax (319) 291-4523 September 15, 2016 To: Mayor Hart City Council The City has had a Treatment and Flow Control Agreement with Con Agra in place since March 2008. The agreement was for five years subject to four additional terms of 5 years. Con Agra has added an additional process line and pretreatment facilities that the city will be contractually responsible to maintain. This reopened the contract resulting in revising the contract. The city will continue to operate and maintain the pretreatment facilities for a base fee and reimbursed for an extraordinary special charges. The base fee has remained at $4,200/month since inception. As part of the renegotiated agreement, the monthly base fee will be increased to $5,000/month with an annual 2.5% automatic escalator. The agreement will be for an additional 5 years with four additional continuing terms of 5 years. Con Agra has agreed to the new contract and the agreement needs official city approval. Sincerely Steven Hoambrec er, Director Waste Management Services CITY WEBSITE: www.cityofwaterlooiowa.com WE'RE WORKING FOR YOU! An Equal Opportunity/Affirmative Action Employer TREATMENT AND FLOW CONTROL AGREEMENT THIS AGREEMENT, made and entered into a' t let, 2016, by and between ConAgra Foods Packaged Foods, LLC ("Company") and City of Waterloo, Iowa Waste Management Services Department ("City"). RECITALS A. City owns, operates and maintains the flow -equalization facilities on Airline Highway (the "Facility") which receive wastewater from Company's Waterloo plant. B. City has informed Company that it can store redundant items of equipment pertaining to the Facility. C. Company desires to develop a protocol to address the treatment and flow control of Company's wastewater, including emergency procedures for shutting down the Company's plant to avoid overloading the flow -equalization tanks or downstream sanitary sewer system. D. Company desires to develop contingency plans for power outages at the Facility. E. Company desires to develop a protocol for replacement of equipment. NOW, THEREFORE, in consideration of the foregoing recitals as incorporated herein, the respective undertakings of the parties, the monies to be paid hereunder, and of the terms and conditions hereinafter set forth, the parties hereto agree as follows: ARTICLE 1 Ownership, Operation and Maintenance of the Wastewater Pretreatment Facility 1.1 City currently owns, operates and maintains Facility, and will continue to own, operate and maintain the Facility during the term of this Agreement. Company will reimburse City for the usual and customary expenses of operating the Facility as part of the "Base Charge" for Facility operation. Components of the Base Charge include costs and expenses related to routine sampling of Company's discharge, inspecting and maintaining the pumps, mixers and other equipment serving or constituting the Facility, and routine site maintenance such as mowing and snow removal. The Base Charge shall be $5,000 per month; an annual 2.5% increase in Base Charge shall be implemented each preceding year. Base Charge shall be payable on a monthly basis by Company within thirty (30) days of billing by City. If the generator described in Section 1.13 is installed, then at Company's option (a) the sum of $210 (subject to annual adjustment) shall be added to the monthly Base Charge to reimburse City for general operating and maintenance costs of the unit, or (b) City will invoice Company for such costs as Special Charges described in Section 1.2 below. 1.2 In addition to the Base Charge, Company will reimburse City for other costs and expenses on a time -and -materials basis (the "Special Charges"), including but not limited to time and materials to address matters described in Sections 1.11and 1.12 below. Time 1 (9/16) and materials may include the cost of contracted services as well as the actual or reasonable estimated cost of time and materials provided by the City. Whenever Special Charges are incurred, City will provide an itemized invoice to Company for same, and Company will remit payment within thirty (30) days thereafter. 1.3 Company will provide and install additional pre-treatment equipment and pH neutralization tank needed to facilitate expansion of Company's operations and to meet the wastewater effluent limits contained in Industrial Sewer Use Permit #000030. The new equipment and tank will be of similar design and quality as the existing system and be in close proximity to and connected with the City's current system. Company will be responsible for the proper operation the pH control system. 1.4 Company will provide and install additional pre-treatment equipment needed to facilitate treatment of effluent from the Seeds processing and packaging addition to the Company Waterloo plant. This equipment includes a 300,000 gal. brine holding tank and associated mixing equipment and pumps. This equipment will located adjacent to existing pH control equipment. City will maintain this equipment under the same conditions as provided for existing pH control equipment specified elsewhere in this agreement. 1.5 Company will provide and install a lift station adjacent to the Seeds portion of the Company Waterloo plant to transfer wastewater from the Seeds operation to the brine holding tank. Company will repair, maintain and operate this lift station and associated pumps. 1.6 Company will be responsible for notifying City immediately of any changes in any aspects of the wastewater discharge to the Facility. 1.7 Company will be responsible for any equipment needed, and the maintenance and repair of the equipment needed, to access the data being generated at the City Facility. 1.8 Company will be responsible for providing the structures needed to adequately light the Facility. City will be responsible for the replacement of bulbs. 1.9 Company will be responsible for taking corrective action if the pH in the flow equalization tank ranges beyond the allowable permitted limits of 5.0-10.0 S.U. 1.10 City will be responsible for maintaining adequate sampling to monitor Company's discharge and for communicating the sampling results to Company. City and Company agree that sampling will be done in accordance with normal City policy. Company may request a split sample from City for any daily sample. Split samples will be signed for by Company personnel on the `Chain of Custody' form of the City. 1.11 City will be responsible for the day-to-day activities needed to maintain the Facility. These services include, but are not limited to: mowing, snow removal, debris removal (tree limbs, etc.), pump and motor maintenance and probe calibration. City will notify Company as soon as practicable of any situation that could potentially impact the plant. 2 (9/16) 1.12 As part of the project, Company will supply one (1) spare pump of each size, one (1) mixer of each size, and one (1) spare pH probe to be stored at City's wastewater and treatment facility/offices located at Waste Management Services Department, 3505 Easton Avenue, Waterloo, Iowa 50702. Future spare parts, including but not limited to spare pumps, spare pH probes, replacement motors, a backup pH sensor and other redundant units necessary to ensure that the time it will take to complete emergency replacement of failing equipment at the Facility is kept to a minimum, will be purchased by City. Company will be responsible for reimbursing City for the cost of the spare parts purchased by City within thirty (30) days after written demand for payment. 1.13 In the event of an emergency situation (e.g. spills, contamination, power outages), City will provide equipment that could alleviate the impact of the situation on the plant. Currently, City has a diesel -engine generator that can be moved to the Facility to provide temporary power in certain circumstances. In order to guarantee a constant source of electrical power, Company may choose to provide and install a standby backup electrical power source, provided that after installation Company pays all costs and expense of maintaining it. In the event of an emergency situation, City will notify Company by following the emergency protocol attached hereto as Exhibit A, which includes who is to be notified 24/7. On -duty supervisor will comply with City request and notify Plant Manager and Plant Engineer. City agrees to pump around the Submersible Pump Station in an emergency, provided there is capacity available in the downstream sanitary sewer system. 1.14 Company will be responsible for minimizing foreign materials and amount of product released to the system. If there is a spill or buildup of materials, City will notify Company by following the emergency protocol and take the necessary steps to correct the issue. Company will be responsible for the cost associated with correcting such incidents. Company agrees to give City fourteen (14) days' advance notice when it plans a scheduled suspension of operations at Company's Waterloo facility to permit City to schedule major maintenance and/or cleaning of the Facility tanks or lift stations. 1.15 City agrees that Company's wastewater treatment rates will remain the same, unless there is a general rate increase. In addition, Company shall pay all other and expenses associated with operation and maintenance of the Facility and appurtenant equipment as noted in this Article 1. 1.16 Title to all equipment and fixtures located in, upon or about the Facilities, including but not limited to any and all replacements and substitutions, is and shall be in City, notwithstanding the payment of any cost or expense by the Company in purchasing, installing, operating, repairing, maintaining or replacing same pursuant to this Agreement. ARTICLE 2 Term 2.1 The term of this Agreement shall commence on October 1, 2016 and shall expire on the date that is five (5) years thereafter, unless sooner terminated as hereinafter provided. Company shall have the right to extend the term of this Agreement for up to four (4) 3 (9/16) additional terms of five (5) years each, by serving written notice upon City no later than 180 days prior to the last day of the then current term. 2.2 Unless written notice is otherwise given by Company pursuant to Section 5.1, City shall continue to accept wastewater sent prior to expiration of the term of this Agreement. 2.3 The rights and obligations of the parties as provided herein shall survive expiration or termination hereof. ARTICLE 3 Independent Contractor 3.1 City agrees to undertake the receipt of wastewater from Company as publicly owned treatment works pursuant to applicable law, at its sole risk. City agrees to employ and direct any persons performing any activities hereunder. Such persons shall be and remain the sole employees or contractors of City and subject solely to the direction and control of City and shall not be deemed to be the employees or subject to the control and direction of Company under any circumstances. Accordingly, City shall be responsible for City's own insurance; payment and withholding of all taxes including federal, state and local taxes arising out of City's activities in accordance with this Agreement, including by way of illustration but not limitation, federal and state income tax, social security tax, unemployment insurance tax; and any other taxes or business license fees as required. ARTICLE 4 Notices 4.1 All notices required or permitted by the terms hereof shall be in writing and shall be delivered in person, by an overnight air courier service, by United States registered or certified mail, postage prepaid, or by facsimile (with an additional copy delivered by one of the foregoing means), to the following address (or to such other address as a party may designate in writing by notice given in like manner): Company: ConAgra Foods Packaged Foods, LLC 2701 Midport Blvd Waterloo, IA 50703 Attn: Plant Manager With copy to: ConAgra Foods, Inc. Five ConAgra Drive Omaha, NE 68102 Attn: V.P. Safety Health & Environment 4 (9/16) City: City of Waterloo, Iowa Waste Management Services 3505 Easton Avenue Waterloo, Iowa 50702 Attn: Superintendent Facsimile: 319-291-4523 With copy to: City Attorney 715 Mulberry Street Waterloo, Iowa 50703 Delivery of notice shall be deemed to occur (i) on the date of delivery when delivered in person, (ii) one (1) business day following deposit for overnight delivery to an overnight air courier service which guarantees next day deliver, (iii) three (3) business days following the date of deposit if mailed by United States registered or certified mail, postage prepaid, or (iv) when transmitted by facsimile so long as the sender obtains written electronic confirmation from the sending facsimile machine that such transmission was successful. ARTICLE 5 Default and Termination 5.1 If City breaches any term of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach from Company, Company may terminate this Agreement in whole or in part by written notice to City. 5.2 Following the initial five-year term of this Agreement, either party may terminate this Agreement, with or without cause, upon three hundred sixty five (365) days prior written notice to the other. ARTICLE 6 Miscellaneous 6.1 If any provision of this Agreement is held to be unenforceable, no other provision shall be affected by that holding, and the remainder of the Agreement shall be interpreted as if it did not contain the unenforceable provision. 6.2 Any prevention, delay, or stoppage due to strikes, lockouts, labor disputes, acts of God, inability to obtain services, labor, or materials or reasonable substitutes therfor, governmental actions, civil commotions, fire or other casualty, and/or any other cause(s) beyond the reasonable control of the party obligated to perform under this Agreement (collectively, an event of "Force Majeure"), shall excuse such party from its obligation to perform under this Agreement for a period of time equal to any such prevention, delay, stoppage, or other event of Force Majeure, and the period of time for such excused performance shall be extended by the period of such Force Majeure. 6.3 This Agreement constitutes the entire agreement between the parties with respect to the terms and conditions under which the Company will send City wastewater. No waiver, alteration, consent or modification of any of the provisions of this Agreement shall be binding unless in writing and signed by a duly authorized representative of the party to be bound. Time is of the essence of this Agreement. 6.4 Company is entering into this Agreement in reliance on City's experience and expertise. To this end, neither this Agreement nor any rights, duties, responsibilities or obligations hereunder, may be assigned, conveyed, sublicensed, delegated or otherwise transferred, in whole or in part, whether by operation of law or otherwise (any such transfer, an 5 (9/16) "Assignment"), without the prior express written consent of Company, which consent may be withheld by Company in its sole and absolute discretion. Any attempt to take any such action without Company's express prior written consent shall be null and void and of no effect. In the event Company consents to an Assignment, this Agreement shall be binding upon the City's successors and assigns and under such circumstances, the City agrees to have executed and delivered all assignment and assumption documents requested by Company. No Assignment shall relieve the City of its obligations hereunder absent Company's express written consent. 6.5 Company may assign this Agreement to subsidiary, parent or affiliated entity by serving written notice upon City. Company may assign this Agreement to a purchaser of Company's Waterloo plant upon the prior written consent of the city, which consent shall not be unreasonably withheld, conditioned or delayed. Upon assignment by Company, the assignee shall agree in writing to assume all of Company's obligations under this Agreement. 6.6 This Agreement shall be governed by and construed in accordance with the laws of the State of Iowa, without regard to its conflict of laws provisions. 6.7 This Agreement may be executed in counterparts, each of which •shall be deemed an original and all of which, when taken together, shall constitute one and the same agreement. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their duly authorized representatives, as of the day and year first written above. CITY City of Waterloo, Iowa COMPANY ConAgra Foods Packaged Foods, LLC By: — _ v - r By: Title: NitA Title: Attest: Title: ..11i) (9/16) 6 l � nn C`9wT' {�'�r43"l Exhibit A Emergency Protocol Upon the occurrence of an emergency situation affecting the operation of the Facility or an event that affects Company's ability to discharge wastewater to the Facility ("Emergency"), the City shall immediately notify Company by calling: (319) 287-3499 ConAgra Foods Waterloo Hotline Company's on -duty supervisor will comply with City request to reduced or stop discharge of wastewater to the Facility and notify Plant Manager and Plant Engineer. Upon notification, Company and City shall work together in good faith to develop and implement a plan to address the Emergency. City agrees to pump around the Submersible Pump Station in an emergency, provided there is capacity available in the downstream sanitary sewer system. Company and City may amend this Emergency Protocol by mutual written agreement. 7 (9/16)