HomeMy WebLinkAbout4633 Resolution - Sole Source NSF Farms Biosolids
Resolution Sole Source Agr for Biosolids - 1
RESOLUTION NO. 4633
A RESOLUTION OF THE CITY OF PASCO, WASHINGTON,
WAIVING THE COMPETITIVE BIDDING REQUIREMENTS AND
APPROVING THE AGREEMENT WITH NATURAL SELECTION FARMS,
INC. FOR THE BENEFICIAL USE OF BIOSOLIDS.
WHEREAS, it is critical for the City of Pasco (City) to recycle biosolids produced as a
by-product of its sanitary sewage treatment process for beneficial use; and
WHEREAS, Natural Selection Farms, Inc. (NSF) has the ability to perform land
application of biosolids in an approved manner at appropriate sites; and
WHEREAS, NSF is the only Beneficial Use Facility in our region that is approved and
monitored by the Department of Ecology; and
WHEREAS, the use of NSF for land application of the biosolids is clearly and
legitimately limited to a single source of supply, as detailed in the Sole Source Worksheet,
attached hereto as Exhibit A, to support current operation standards, this purchase becomes
subject to waiving competitive bidding requirements per RCW 35.23.352(10) competitive bidding
requirements and RCW 39.04.280(1)(a) sole source and RCW 39.04.280(1)(b) special market
conditions; and
WHEREAS, RCW 39.04.280(2)(a) requires that prior to utilizing the sole source
exemption the City Council must first adopt a resolution reciting the factual basis supporting the
exemption; and
WHEREAS, the City Council pursuant to RCW 39.04.280(2)(a) finds that such factual
basis as described herein and detailed in the Sole Source Worksheet does support application of
the sole source exemption as pertaining to the purchase of personal services from Natural
Selection Farms.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF PASCO, WASHINGTON:
The City Council of Pasco hereby find the above-described circumstance is justification
for the waiver of bidding requirements under the authority of RCW 35.23.352(10) and pursuant
to sole source provider (RCW 39.04.280(1)(a)) and special facilities or market conditions (RCW
39.04.280(1)(b)) and, therefore, the bidding requirement is hereby waived for the purchase of the
personal services from Natural Selection Farms, Inc executed through the agreement, attached
hereto as Exhibit B.
Resolution Sole Source Agr for Biosolids - 2
Be It Further Resolved, that the Interim City Manager of the City of Pasco, Washington,
is hereby authorized, empowered, and directed to execute said Agreement for personal services on
behalf of the City of Pasco; and to make minor substantive changes as necessary to execute this
Agreement.
Be It Further Resolved, that the City of Pasco Public Works Department purchase of
personal services from Natural Selection Farms, Inc. for an amount not to exceed the sum of
$500,000 over a five year period.
Be It Further Resolved that this Resolution shall take effect immediately.
PASSED by the City Council of the City of Pasco, Washington, on this,4th day of August,
2025.
_____________________________
Pete Serrano
Mayor
ATTEST: APPROVED AS TO FORM:
_____________________________ ___________________________
Debra Barham, MMC Kerr Ferguson Law, PLLC
City Clerk City Attorneys
Sole Source Authorization
Sole Source Authorization Page 1 of 2
EXHIBIT A: SOLE SOURCE AUTHORIZATION
Step 1 – Sole Source Request
Date: June 23, 2025
Department Public Works
Brief Description: Agreement with Natural Farm Selections for Beneficial Use of Biosolids
Estimated Cost: Approximately $500,000 total over 5 years depending on WWTP Flows
Vendor: Natural Selection Farms
Manufacturer: N/A
Manufacturer Identification/Part No.: N/A
What Necessary features does this
vendor provide which are not
available from other vendors?
Vendor is the only Beneficial Use Facility (BUF) in our
region (50 miles) that is on the approved BUF list that is
approved and monitored by the Dept of Ecology.
Sole Provider of a Licensed or patented good or service No
Sole Provider of items that are compatible with existing equipment, inventory,
systems, programs, or services. Other (explain below)
Sole provider of good and services for which the City has established a
standard. Yes
Sole provider of goods or services that will meet the specialized needs of
the City or perform the intended function (please detail below or in an
attachment).
Authorized distributors
are by geographical area
The vendor/distributor is a holder of a used item that would represent
good value and is advantageous to the City (please attach information on
market price survey, availability, etc.)
NA
Were other brands/manufacturers examined? (please attach a list of
numbers and names, and explain why these were not suitable) No
Were other vendors contacted? (please attach a list of phone numbers
and names, and explain why these were not suitable) Other (explain below)
Has the sole source vendor certified that the City is getting the lowest
price offered for the item? Choose an item.
Additional explanation if necessary:
We consulted the Washington State Department of Ecology list of Beneficial Use Facilities. Natural
Selection is 50 miles away – and the closest to Pasco. The next closest is Tenelco in Coulee City at 109
miles away. Then there is Boulder Park in Mansfield which is 142 miles away. We also called West
Lincoln Project to see where they are located (shows ERO as region) but the address and phone
number are Seattle, 206-939-2344 and they did not answer when phoned.
Date: May 27, 2025
Department Public Works Operations - WWTP
Brief Description: Agreement with Natural Farm Selections for Beneficial Use of Biosolids
Estimated Cost: Approximately $500,000 depending on WWTP Flows
Sole Source Authorization
Sole Source Authorization Page 2 of 2
This recommendation for sole source is based upon on objective review of the product/service
required and appears to be in the best interest of the City. I know of no conflict of interest on my
part of personal involvement in any way with this request. No gratuities, favors or comprising
actions have been taken.
I certify to the best of my knowledge that this purchase is compatible with existing goods,
equipment or services and there are not reasonable alternatives or substitutes and/or the product
is clearly and legitimately available from only one source of supply.
Requestor: Signature: Date:
Department Director: Signature: Date:
Step 2 – Approval to Proceed with City Manager or City Council
City Manager: Signature: Date:
Fill out only if presented to City Council Resolution Number: Date:
Sole source purchases are defined as clearly and legitimately limited to a single supplier. Sole source
purchases are normally not allowed except when based upon strong technological grounds such as
operational compatibility with existing equipment and related parts or upon a clearly unique and cost
effective feature requirement.
Agreement for the Beneficial
Use of Biosolids - 1
AN AGREEMENT BETWEEN
THE CITY OF PASCO, WASHINGTON, AND
NATURAL SELECTION FARMS, INC.,
FOR THE BENEFICIAL USE OF BIOSOLIDS
THIS CONTRACT is made and entered into as of the 4th day of August, 2025,
(the "Effective Date") by and between the City of Pasco, Washington, a Washington
municipal corporation, (the “Generator”) and Natural Selection Farms, Inc., (“NSF”) a
Washington corporation.
WHEREAS, the Generator produces sewage sludge in the form of 90% solid
biosolids (hereinafter referred to as "biosolids") as a by-product of its sanitary sewage
treatment process at its wastewater treatment plant, 1015 S. Grey Ave., Pasco, Washington,
and desires to recycle biosolids from the plant for beneficial use; and
WHEREAS, NSF has the ability to perform land application of biosolids in an
approved manner at appropriate sites; and
WHEREAS, NSF and Generator now wish for NSF to perform the land application
of biosolids tendered by Generator to NSF on a nonexclusive basis in accordance with the
terms more fully set forth herein. NOW, THEREFORE,
In consideration of the mutual promises and covenants herein contained and for
other good and valuable consideration, it is hereby agreed as follows:
1. Purpose. Generator and NSF enter into this Contract to establish terms and
conditions for NSF to receive Generator’s biosolids and perform the land
application of biosolids produced by Generator and tendered to NSF.
2. Generator's Obligations. Generator shall be obligated to perform the following with
respect to biosolids produced at the Generator’s facilities in Pasco, Washington, in
such quantities as the parties may mutually agree:
a. schedule loading of biosolids onto NSF trucks/trailers or trailers arranged
for by NSF at a time mutually agreeable to Generator and NSF;
b. ensure that the tendered biosolids meet federal, state and local standards
governing land application of biosolids as the same currently exist and as
they may be modified or altered from time to time, and as set forth herein
at Section 3;
c. test the tendered biosolids in accordance with best available testing
procedures and applicable federal, state, and local laws and regulations and
provide NSF all information required by law or that otherwise is necessary
for NSF to use and manage application of the biosolids in a safe, consistent,
and reliable manner, including providing to NSF test results confirming
EXHIBIT B
Agreement for the Beneficial
Use of Biosolids - 2
acceptable compliance with all applicable trace metal and pathogen
standards as well as confirming percent solids by weight and nitrogen
content as expressed by total Kjeldahl nitrogen (TKN);
d. pay NSF service fees as provided in Section 6 below;
e. pay all costs, whether in the form of fees, levies, or other charges, charged
by any local agency related to the importation, management, disposal, or
use of biosolids tendered to NSF under this Contract. In the event that any
such cost or fee is charged to NSF, Generator agrees to timely pay the same
prior to delinquency promptly upon presentation of any invoice therefor
submitted to Generator by NSF; and
f. pay such amounts as may be reasonably incurred by NSF in order for NSF
to efficiently accept Generator’s biosolids, provided that the parties
presently contemplate that this charge will be mutually agreed upon in
advance. The failure to so agree will relieve NSF of any further obligation
to accept biosolids pursuant to this Contract but will not otherwise alter the
remaining rights and obligations of the parties hereunder.
3. Generator's Covenants and Warranties. The Generator warrants that all biosolids
tendered to NSF shall comply with all specified testing standards and results stated
herein and all requirements under federal, state and local laws and regulations
applicable to the land application of biosolids, as the same currently exist and as
they may be modified or altered from time to time.
4. NSF's Obligations. Subject to Section 7 below, NSF shall:
a. receive biosolids at the Generator’s Pasco facilities located at 1015 S. Grey
Ave., Pasco, Washington, for application and use thereof on agricultural
lands in Eastern Washington as a nutrient based soil amendment, compost
ingredient or other permitted beneficial use;
b. provide all of the facilities, equipment, and personnel necessary for such
work, and perform the application of Generator’s biosolids in compliance
with all applicable local, state, and federal regulations; and
c. obtain and maintain all required permits and approvals for its operations and
activities under this Contract in accordance with law.
5. NSF's Covenants and Warranties. NSF warrants and represents that it has the
business, professional, and technical expertise to use and manage the application of
biosolids and shall at all times do so in a prudent and workmanlike manner.
Furthermore, NSF warrants and represents that it has the equipment (subject to the
terms of paragraph 2(f) above), plant and employee resources required to perform
this contract. Such equipment shall at all times relevant to the performance of
Agreement for the Beneficial
Use of Biosolids - 3
services hereunder be maintained in a good and safe condition fit for use as
required.
6. Billing and Payment.
a. Billing. NSF shall provide to the Generator, by the thirtieth (30th) day after
acceptance of the Generator’s biosolids, a statement in a format that is
mutually agreeable to NSF and the Generator, detailing the number of wet
tons of biosolids accepted by NSF. The method of determining tonnage
shall be by certified truck scale and shall be at the Generator’s expense.
b. Service Fees. The Generator shall pay NSF’s service fees as provided
herein. Generator shall pay NSF the sum of $77.17 per wet ton to receive
the Generator’s biosolids from the Generator’s wastewater treatment plant
for use at a beneficial use land application facility selected by NSF, in
NSF’s sole discretion. Of this amount, $19.29 shall on the date of execution
be allocated to fuel-related charges and $57.88 shall on the date of execution
be allocated to non-fuel-related charges.
These minimum service fees will be adjusted from time to time as set forth
herein.
c. Price Adjustment for Change in Law. NSF may, after notice to Generator,
increase the minimum service fee by one hundred percent (100%) of NSF’s
reasonable actual increased costs of performing its obligations under this
Contract due to a change in law. For purposes of this section, a “change in
law” includes new laws, regulations, ordinances of general application and
modifications of them; new decisions of tribunals, either judicial or
administrative, and any modifications of them; or the imposition of any
material conditions on the renewal of any permit, license or approval which
makes the transportation, storage, land application or other management of
biosolids more burdensome financially than under the requirements in
effect at the Effective Date; a “change in law” shall include, without
limitation, a determination that performance by NSF of the terms of this
Contract requires that NSF pay prevailing wage rates, as may be required
by law; it being a basis of the price terms in this Contract that NSF is and
shall not be required to pay prevailing wage rates. Whether or not a change
in law material to this Contract has occurred shall be determined by NSF,
in NSF’s sole discretion. Such increase in service fees may occur only for
reasonable costs that are actually incurred, and shall not be allowed for any
cost increases that are in any way attributable to activities caused by NSF
or its subcontractors, employees, or agents, or are otherwise within NSF’s
control. In the event Generator does not approve an increase for a change
in law as provided for herein, then NSF, at its option, may terminate this
Contract upon written notice and with no further obligation to Generator.
Agreement for the Beneficial
Use of Biosolids - 4
d. Other Changed Conditions. In the event of any material change in the
nature of the biosolids subject to this Contract, including but not limited to
any deviation from the test parameters set forth above, or in the event of any
other change in circumstances that causes an increase in NSF’s cost or the
time and equipment required for performance of any part of the work under
this Contract, an equitable adjustment in the service fee, the delivery
schedule, or both shall be made and, if the same shall be acceptable to
Generator and NSF, the Contract shall be modified in writing accordingly.
If no such change may be agreed upon by the parties, then NSF shall be
entitled, at its option, to terminate this Contract upon written notice and with
no further obligation to Generator.
7. Conditions Precedent. The obligations of NSF hereunder are strictly contingent
upon NSF obtaining all applicable and necessary permits, licenses and approvals
of any federal, state, and local government or governmental authority.
8. Term and Extension; Adjustment of Fees. The term of this Contract shall expire
on midnight, December 31, 2029.
The non-fuel-related service fee set forth above shall be adjusted annually on the
yearly anniversary date of this Contract, beginning one year after the effective
date. Said adjustment shall be one percent (1%) plus an additional factor dictated
by, and directly proportional to, the percentage change in the Consumer Price
Index over the same period of time, as calculated below.
The fuel-related service fee set forth above shall be adjusted semi-annually,
beginning six months after the effective date and continuing every six months
thereafter. Said adjustment shall be dictated by, and directly proportional to, the
percentage change in the Consumer Price Index over the same period of time, as
calculated below.
For purposes of adjustment in service fees, the index sources for all future
adjustments shall be based on data found in the Bureau of Labor Statistics Producer
Price Index “Consumer Price Index for all Urban Consumers (CPI U), All items in
West – Size Class B/C, all urban consumers, not seasonally adjusted. Based Period
December 1996=100 (Series ID: CUURN400SA0),” or its successor index for the
non-fuel related component and the Bureau of Labor Statistics Producer Price
Index-Commodities Data for #2 diesel fuel (Series ID: WPU057303) or its
successor index for the fuel-related component.
9. Insurance; Waiver of Subrogation. At all times during the term of this Contract,
NSF shall maintain an insurance policy that insures all aspects of NSF's operation
hereunder, regardless of what insurance the Generator may maintain, and which
shall provide limits of liability of not less than $2,000,000 comprehensive bodily
injury and property damage. It is further agreed that certificates of insurance
Agreement for the Beneficial
Use of Biosolids - 5
showing all of said coverage and endorsements shall be provided to the Generator,
and that the Generator shall be named as an additional insured thereon.
The parties hereby mutually release each other from liability and waive all right of
recovery against each other for any loss from perils insured against under their
respective insurance contracts, including any extended coverage endorsements
thereto, provided, that this paragraph shall be inapplicable to the extent that it would
have the effect of invalidating any insurance coverage otherwise available.
10. Termination; Default.
a. NSF may terminate this Contract if:
i. the Generator fails to make any payment required hereunder within
fifteen (15) days after receiving notice of nonpayment from NSF;
ii. the Generator breaches any material representation or warranty set
forth herein;
iii. the Generator defaults in the performance of any other obligation of
the Generator under this Contract and fails to cure such default
within thirty (30) days after receiving written notice thereof from
NSF;
iv. any applicable law or governmental regulations or other
circumstances outside NSF's control cause the services required of
NSF to be economically unfeasible for NSF, or NSF is otherwise
prohibited from providing the services required of it by the Contract;
or
v. as provided in Section 6(c) and 6(d) above.
b. Generator may terminate this Contract if:
i. NSF breaches any material representation or warranty set forth
herein;
ii. NSF defaults in the performance of any other material obligation of
NSF under this Contract and fails to cure such default within thirty
(30) days after receiving written notice thereof from the Generator;
iii. NSF fails to comply with any federal, state or local laws, rules,
orders or ordinances, or regulations that pertain to the transportation
or use of biosolids and fails to cure such non-compliance within
Agreement for the Beneficial
Use of Biosolids - 6
thirty (30) days after receiving written notice from the appropriate
agency or court; or
iv. NSF increases its fees and charges as provided in Section 2(e), 2(f),
6(c) and 6(d) above.
11. Non-conforming Biosolids. NSF shall be entitled to inspect and analyze each load
of biosolids tendered by the Generator. NSF's right to verify Generator’s biosolids
testing under this section is entirely discretionary and imposes no duty on NSF.
Generator bears sole responsibility under this Contract for tendering only biosolids
that conform to the warranty standards set forth in Section 3 above. If NSF tests
Generator's biosolids and the biosolids are found to be non-conforming, Generator
shall pay NSF's commercially reasonable costs incurred in the testing. If NSF
determines that the biosolids do not conform to the warranty standards set forth in
Section 3 above, it may reject the biosolids by notifying the Generator in writing,
with documented test results. Timely removal (if necessary) and disposal of
biosolids rejected according to these warranty standards shall be at the Generator's
sole cost and responsibility; provided that if NSF rejects biosolids as non-
conforming, NSF reserves the right to transport the biosolids to a disposal site or to
return the biosolids to Generator's site, and to collect from Generator any
commercially reasonable expenses or damages incurred thereby, including but not
limited to transport, storage, and disposal costs.
12. Indemnification.
a. NSF agrees to defend, indemnify and hold Generator harmless from and
against: (I) any and all claims, demands, causes of action, damages,
liabilities, losses, expenses, penalties and costs of defense relative thereto,
including legal fees, ("Losses") caused by or resulting from NSF's breach
of this Contract; and (II) any and all Losses caused by or resulting from
NSF's intentional or negligent act or omission in the performance of its
duties as described in this Contract.
b. Generator agrees to defend, indemnify and hold NSF harmless from and
against: (I) any and all Losses caused by or resulting from Generator's
breach of this Contract (specifically including any breach of Generator's
obligation to tender only biosolids that conform to the warranty standards
set forth above); and (II) any and all Losses caused by or resulting from
Generator's intentional or negligent act or omission in the performance of
its duties as described in this Contract.
Notwithstanding any other provision herein, the obligations created by this section
shall survive any termination of this Contract.
13. Safety Standards and Instruction. NSF shall provide adequate training of its
personnel involved in management of biosolids. NSF shall inform its personnel that
Agreement for the Beneficial
Use of Biosolids - 7
sewage treatment plants process sanitary and industrial waste, that any workers
involved in biosolids management may be exposed to pathogens, and that such
workers should follow proper hygiene and workplace safety practices.
14. Compliance with Laws. The Generator and NSF shall each fully comply with all
applicable laws, ordinances, decisions, orders, rules or regulations of any
government or governmental agency pertaining to its handling, storage,
transportation, treatment, use or management of the biosolids.
15. Disputes, Governing Law, Venue, Attorneys’ Fees. This Contract shall be
governed by and construed in accordance with the laws of the State of Washington.
If litigation arises concerning the interpretation of any of the terms of this Contract,
venue for such litigation shall be in the Superior Court of the State of Washington
in Yakima County. The prevailing party in any legal action brought to enforce this
Contract shall be entitled to reasonable attorney's fees incurred therein.
16. Savings. If any part of this Contract is declared to be invalid or unenforceable, the
rest of the Contract shall remain binding, unless such invalidity or unenforceability
destroys the purpose and intent of this Contract.
17. Independent Contractor, No Partnership. Each party hereto is and shall perform
this Contract as an independent contractor, and as such, shall have and maintain
complete control over all of its employees, agents, and operations. Neither party
nor anyone employed by it shall be, represent, act, purport to act or be deemed to
be the agent, representative, employee, partner or servant of the other party.
18. Force Majeure. Should either party be prevented wholly or in part from performing
its respective obligations under this Contract by a cause reasonably outside of and
beyond the control of the party affected thereby, including but not limited to war,
government regulation, strike, lockout, accidents, storms, earthquake, fire, acts of
God or public enemy or any similar cause beyond the control of the parties, then
such party shall be excused hereunder during the time and to the extent that the
performance of such obligations are so prevented, and such party shall have no
liability whatsoever for any damages, consequential or otherwise, resulting
therefrom.
19. Non-Waiver. Either party's failure to strictly enforce its rights under any provision
of this Contract shall not be construed to be a waiver of that provision. No waiver
of any breach of this Contract shall be held to be a waiver of any other breach.
20. Assignment. This Contract shall not be assignable by either party without the
written consent of the other, which shall not be unreasonably withheld.
21. Notices. All notices required under this Contract shall be personally delivered or
mailed by certified or registered mail, postage prepaid as follows:
Agreement for the Beneficial
Use of Biosolids - 8
If to the Generator, addressed to:
Public Works Service Manager
City of Pasco Wastewater Treatment Plant
1015 S. Grey Ave.
Pasco, WA 99301
City Manager
City of Pasco
525 North 3rd
Pasco, WA 99301
With a copy addressed to:
Public Works Director
City of Pasco
525 North 3rd
Pasco, WA 99301
If to NSF, addressed to:
Natural Selection Farms, Inc.
P.O. Box 419
Sunnyside, WA 98944
With a copy addressed to:
Kenneth W. Harper
Menke Jackson Beyer, LLP
807 N. 39th Ave.
Yakima, WA 98908
or to such other address as any party shall specify by written notice so given.
Notices shall be deemed to have been given and received as of the date so delivered
or three (3) business days after being deposited in the U.S. Mail.
22. Equal Employment Opportunity Requirements. NSF will not discriminate against
any employee or applicant for employment because of creed, color, race, sex, age,
national origin, or the presence of any sensory, mental or physical handicap, unless
based on a bona fide occupational qualification.
23. No Third Party Beneficiary. This Contract is entered into solely for the benefit of
the parties hereto. This Contract shall confer no benefits, direct or indirect, on any
third persons, including employees of the parties. No person or entity other than
the parties themselves may rely upon or enforce any provision of this Contract.
Agreement for the Beneficial
Use of Biosolids - 9
24. Parties and Successors. Subject to the limitations on assignment provided in this
Contract, this Contract shall inure to the benefit of, and be binding upon the parties,
their successors and assigns.
25. Counterparts/Electronic Execution. This Contract may be executed simultaneously
or in counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same agreement. Electronic transmission of
any signed original document, and re-transmission of any signed electronic
transmission, shall be the same as delivery of an original.
26. Entire Contract, Amendment. This Contract constitutes the entire agreement
between the parties concerning the subject matter hereof and supersedes any and
all other communications, representations, proposals, understandings or
agreements, either written or oral, between the parties with respect to such subject
matter. This Contract may not be modified or amended, in whole or in part, except
by a writing signed by both parties.
IN WITNESS WHEREOF, the parties have executed this Contract on
__________________________.
NATURAL SELECTION FARMS, INC., CITY OF PASCO,
A Washington corporation a Washington municipal corporation
By:_____________________ By:
Ted Durfey Name: Dave Zabell
President Title: Interim City Manager