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HomeMy WebLinkAbout2000-2460 - Ordinance - 08/10/2000ORDINANCE NO. 2460 AN ORDINANCE GRANTING TEXAS COMMERCIAL WASTE, ITS SUCCESSORS AND ASSIGNS, A NONEXCLUSIVE FRANCHISE FOR THE PRIVILEGE AND USE OF PUBLIC STREETS, ALLEYS, AND PUBLIC WAYS WITHIN THE CORPORATE LIMITS OF THE CITY OF COLLEGE STATION FOR THE PURPOSE OF PROVIDING RECYCLABLE COMMODITIES COLLECTION TO DESIGNATED SINGLE-FAMILY, DUPLEX, AND FOURPLEX RESIDENTIAL LOCATIONS; PRESCRIBING THE TERMS. CONDITIONS, OBLIGATIONS, AND LIMITATIONS UNDER WHICH SAID FRANCHISE SHALL BE EXERCISED; PROVIDING FOR THE CONSIDERATION; FOR THE PERIOD OF THE GRANT: FOR ASSIGNMENT; FOR THE METHOD OF ACCEPTANCE; FOR REPEAL OF CONFLICTING ORDINANCES; AND FOR PARTIAL INVALIDITY. WHEREAS, the City of College Station, by ordinance, provides exclusively all solid waste collection and disposal services for solid waste aggregated from within the corporate limits of the City of College Station including but not limited to recyclable commodities; and WHEREAS, the City of College Station may, pursuant to Article Xl of its Charter. grant fran- chises to other entities for the use of public streets, alleys and thoroughfares within the corporate limits of the city and for the collection and disposal of solid waste generated from within the corporate limits of the City of College Station; and WHEREAS, the City of College Station desires to exercise the authority provided to it by ordinance and charter to grant a franchise for the collection of certain recyclable commodities that are generated from specified single-family, duplex, and fourplex residential locations within the corporate limits of the City of College Station; and WHEREAS, Texas Commercial Waste is engaged in the business of collection and resale of recyclable commodities and is requesting a franchise to operate its business within the City limits of the City of College Station; and WHEREAS, the City of College Station hereinafter referred to as "CITY", believes it is in the best interest of College Station to grant this franchise to Texas Commercial Waste. hereinafter referred to as "CONTRACTOR", on such terms and conditions as will provide College Station with control and options necessary to provide for the public good; now, therefore, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, THAT: DEFINITIONS For the purposes of this Ordinance, when not inconsistent with the context, words, used in the present tense include the future tense, words in the plural include the singular, and words Ordinance No. 2460 Page 2 in the singular include the plural, and the use of any gender shall be applicable to all genders whenever the sense requires. The words "shall" and "will" are mandatory and the word "may" is permissive. Words not defined in this Ordinance shall be given their common and ordinary meaning. For the purposes of this Ordinance. the following words, terms, phrases and their derivations shall have the meaning given here Franchise means this ordinance and all rights and obligations established herein or as it may be amended. CITY means the City of College Station, a home rule municipal corporation in the State of Texas. CiO' Council or "Council" means the governing body of the City of College Station. Contractor means Texas Commercial Waste who is authorized under this Franchise for the collection ofrecyclable commodities. Brazos Valle), Solid Waste Management Agency or BVSWMA means a permitted municipal solid waste facility jointly oxvned by the Cities of Bryan and College Station and operated by the City of College Station on behalf of the cities as authorized by an interlocal agreement. Force Majeure means, without limitation, by the following enumeration, acts of God and the public enemy, the elements, fire, or accidents. Agreement shall mean this franchise between CITY and CONTRACTOR for the collection of certain recyclable commodities within the jurisdictional limits of College Station, under certain terms and conditions set out herein. Approved number of households shall mean the maximum number of households that will be served pursuant to the terms of this Agreement, which number is to be determined by the City's Representative based on City building and development reports. Bags shall mean weatherproofed clear plastic sacks, minimum 2 millimeters thick, with an identifying mark that have the capacity to hold fifty (50) pounds of recyclable commodities in each sack and that are designed to store recyclables with sufficient wall strength to maintain physical integrity when lifted by the top. CiO"s Representative shall mean the Director of Public Works of the City of College Station or his designated appointee. Ordinance No. 2460 Page 3 Collection shall mean the scheduled aggregation of recyclables by CONTRACTOR according to the terms governing scheduling contained in this Agreement. "Contaminatear' shall mean recyclable commodity that is mixed with solid waste or is altered in such a way that it has become unsalable. Customers shall mean occupants of those designated single-family, duplex and fourplex residences, as defined herein, that are located within the CITY limits and that generate recyclable materials, as defined herein. Designated single-family, duplex and fourplex residences or designated households shall mean all single-family, duplex, and fourplex residences within the corporate limits of the City of College Station that receive utility service from the City of College Station. Parties shall mean the City of College Station and Texas Commercial Waste. Reo,clables or Recyclable Commodities shall mean materials that have been recovered from the solid waste stream for the purposes of reuse or reclamation, a substantial portion of which is consistently used in the manufacture of products that may otherwise be produced using raw or virgin materials. Recyclable commodities or recyclables are not solid waste unless they are abandoned or disposed rather than reprocessed into another product. The recyclable commodities or recyclables encompassed by this Agreement are set forth in Addendum A to this Agreement. Residue shall mean the material regularly associated with and attached to recyclable commodities, as a part of the original packaging or usage of that commodity, that is not recyclable itself. Single-family, duplex, and fourplex residences or single-family, duplex, and fourplex residential shall mean and include a domestic establishment that is designed as a residential structure housing the members of either one. two, or four families and receiving utilities from CITY. T.A.C. means the Texas Administrative Code as it now exists or as it is hereinafter amended. EN.R.C.C means Texas Natural Resource Conservation Commission. Ordinance No. 2460 Page 4 II. GENERAL DESCRIPTION OF SERVICES TO BE PROVIDED BY CONTRACTOR For and in consideration of the use of the CITY's rights-of-way, streets, alleys, highways, avenues and thoroughfares for the limited purpose contained herein as well as in consideration of the covenants and conditions herein set forth and the Ordinances and Regulations of CITY goveming the collection and disposal of recyclable commodities, CONTRACTOR shall provide collection of certain recyclable commodities specified herein from designated single-family, duplex, and fourplex residences within the corporate limits of the City of College Station. Additionally, CONTRACTOR shall provide all reasonable, adequate and necessary supervision, supplies, equipment, labor, insurance and other skills and property required to fulfill each of its obligations under this Agreement The franchise fee. as provided in Article 8 herein, and the public education program funding fee, as provided in Article 17 herein, shall be in lieu of any and all other College Station imposed rentals or compensation or franchise, license, privilege, instrument, occupation, excise or revenue taxes or fees and all other exaction's or charges (except ad valorem property taxes, special assessments for local improvements, city sales tax. and such other charges for utility services imposed uniformly upon persons, firms or corporations then engaged in business within College Station) or permits upon or relating to the business, revenue, franchise, equipment, and other facilities of CONTRACTOR and all other property of CONTRACTOR and its activities, or any part thereof, in College Station which relate to the operation of CONTRACTOR recycling collection business. III. AUTHORITY FOR CONTRACTOR TO PROVIDE SERVICE CITY hereby grants to CONTRACTOR a nonexclusive franchise to operate and establish in College Station. as constituted as of the effective date of this Franchise, or as may hereafter be constituted to collect recyclable commodities from all designated single-family, duplex, and fourplex residences within the jurisdictional limits of CITY, not to exceed the approved number of households as defined herein, using clear plastic bags that have the specifications set forth in this Agreement and that are to be provided by CONTRACTOR, and CONTRACTOR is hereby granted passage and right-of-way on, along and across the streets, avenues, rights-of-way, alleys, and highways within the corporate limits of College Station. for any such service and lawful purpose as herein mentioned; provided that all such work, activity and undertakings by CONTRACTOR shall be subject to the terms and provisions of this Franchise and the continuing exercise by College Station of its governmental and police powers, and provided further that nothing herein shall be construed to require or authorize CONTRACTOR to exceed any rights granted herein or by the TNRCC. Ordinance No. 2460 Page 5 Nothing in this Franchise shall be construed as granting an exclusive franchise or right. IV. COMMODITIES TO BE COLLECTED CONTRACTOR shall collect and dispose of, according to the terms of this Agreement, all of the recyclable commodities set forth in Addendum A to this Agreement. Recyclables may be added to or deleted from the Addendum only by a written and signed agreement of the parties. Deletion of a recyclable from the Addendum will be approved by the CITY upon a determination by the City's Representative that the market price for that recyclable has declined to the point that it is no longer economically advantageous to collect, process and sell the recyclable. CONTRACTOR shall not be authorized to begin collection of any additional recyclable commodities until the parties have agreed on the percentage return to be paid to CITY upon the sale of such recyclables. DISPOSAL SITE TO BE USED It is anticipated that CONTRACTOR will sell the recyclable commodities in accordance with Section VII of this Agreement. Failing such marketing or sale, and unless approved otherwise in writing by CITY, CONTRACTOR shall utilize the BVSWMA landfill located on Rock Prairie Road, College Station, Texas, or any other T.N.R.C.C.-approved disposal site. The CONTRACTOR shall only use disposal sites that are lawful for municipal solid waste disposal and for disposal of all contaminated, unmarketable recyclable commodities, or the residue from such recyclables, collected by CONTRACTOR from within the corporate limits of the City of College Station. Materials rejected for resale by CONTRACTOR because they do not meet the resale market's criteria for recycling or because they are contaminated shall be accepted at the BVSWMA landfill at no additional cost to CONTRACTOR. VI. RATES TO BE CHARGED BY CONTRACTOR CITY shall pay to CONTRACTOR for the cost of recyclable collection One dollar and Eighty-Eight cents ($1.88) per month per designated household for collection from designated households. Said payment shall be paid on CITY's receipt of a monthly invoice from CONTRACTOR. Payment shall be made within thirty (30) calendar days of the CITY's receipt of said invoice. The first invoice shall be sent to CITY no later than the twentieth (20th) calendar day following the end of the first calendar month of service by CONTRACTOR. Subsequent invoices to be sent to CITY no later than the twentieth (20th) calendar day of each month thereafter. Said invoice shall be a gross billing showing the number of single-family, duplex, and fourplex residences within the City of College Station served in the previous month by CONTRACTOR, the per unit charge(s), and the total invoice amount. The amount billed by Ordinance No. 2460 Page 6 CONTRACTOR to CITY shall be for service to all single-family, duplex, and fourplex residences located within the corporate city limits of the City of College Station, not to exceed the approved number of households as defined herein. CONTRACTOR understands that recyclable commodities collection service is provided to residents of the City of College Station through the CITY utility department. As new utility customers are added to the CITY's billing, the CITY shall notify CONTRACTOR of the additional customers who shall then become a designated household for purposes of this Agreement. CONTRACTOR shall begin collection service for newly added designated households within one week of receipt of notice that the household has been added to the CITY's utility billing. It shall be CONTRACTOR's responsibility to deliver bags to newly designated households in advance of the first collection date for each household. VII. SALE OF RECYCLABLES CONTRACTOR agrees that all recyclable commodities that it collects and that have value will be sold to certified recycling vendors, brokers, toll end users or recycling manufacturers. CONTRACTOR also agrees that all of the saleable recyclable commodities that it receives shall be recycled into usable products. CONTRACTOR further agrees that in no case will any uncontaminated recyclable commodities collected under this Agreement be deposited in a landfill. CONTRACTOR shall pay proceeds to the CITY for recyclable commodities collected based on the percentage of revenue recovery set forth for each recyclable in Addendum B. The percentage paid to the CITY shall be based on the following market indices: 1. Paper: set by the National Mill Buyers and Paper Recyclers in the publication called the "yellow sheet" or "OBM." 2. Metals: indices set by the American Metals Market, based in New York, N.Y. 3. Glass: index price set by Owens. 4. Other commodities: industry index price standards. An index specific to this region may be substituted for any recyclable commodity if written consent is obtained from the City's Representative. CONTRACTOR shall utilize its best efforts in finding the best available markets for the sale of the recyclable commodities collected under the terms of this Agreement. Payment of said revenues shall be tendered to CITY by CONTRACTOR along with the monthly report required Ordinance No. 2460 Page 7 to be submitted by CONTRACTOR under the terms of this Section. CONTRACTOR guarantees timely payment of such revenues. In the event that the CONTRACTOR fails to make any required payments to the CITY in a timely manner and in accordance with the terms of this Agreement, CONTRACTOR shall be required on demand by the City's Representative to post a deposit with CITY within twenty-four (24) hours, either by cash or assignment of certificate of deposit, in an amount equaling one-third (1/3) of the amount then due to the CITY. Failure to post the required deposit shall constitute a breach of this Agreement subject to the termination procedures provided in Article XIX herein. In the event that full payment of the balance due is made by the CONTRACTOR within ten (10) days of the date upon which the deposit is required to be posted with the CITY, then the deposit shall be applied to the balance due to the CITY. In the event that full payment is not made of the balance due to the CITY within ten (10) days of the date upon which the deposit is required to be posted with the CITY, then the CITY may terminate this Agreement at its option and apply the deposit toward the outstanding balance of payments due as well as the costs of collection and/or enforcement of this Agreement. If, during the term of this Agreement, alternate pricing for the sale of recyclable commodities can be identified that is more advantageous to the CITY, CITY shall advise CONTRACTOR in writing of this pricing. If the CONTRACTOR does not make good faith efforts to alter its resale arrangements such that it can pay CITY for recyclables under the more advantageous pricing structures, such failure by the CONTRACTOR shall constitute grounds for termination of this Agreement, and the CITY may notify CONTRACTOR under the applicable provisions of this Agreement of its intent to terminate this Agreement. If the Agreement is terminated under this provision, CITY may at its option purchase CONTRACTOR's equipment utilized for collection ofrecyclables under this Agreement at its appraised value. Said equipment shall be those items listed in Addendum C of this Agreement as it may be modified from time to time due to a change in equipment utilized by the CONTRACTOR. Two (2) appraisals of said equipment by appraisers mutually agreeable to both parties to this Agreement shall be conducted at CITY's expense. Purchase price shall be the average of the two (2) appraisals of said equipment. VIII. REPORTING REQUIREMENTS Along with the payment to the CITY of the CITY's agreed share of revenue from the sale of the recyclable commodities, CONTRACTOR shall provide a Monthly Recycling Activity Report to CITY that shall be due to the CITY no later than the twentieth calendar day of each month and summarizing the recycling activity for the previous calendar month. CONTRACTOR's report shall include the following information: Ordinance No. 2460 Page 8 The amounts of recyclable commodities collected, broken down according to date, route and type of material. Summaries of tonnage of all recyclable commodities collected, broken down by type of material. Summaries of tonnage of ali recyclable commodities sol& broken down by type of material. 4. Market price for each type of material collected and/or sold. Repons of all complaints and investigations concerning the CONTRACTOR and actions taken by CONTRACTOR in response thereto. o A listing of monthly revenue derived from recyclables collected in the CITY under the terms of this Agreement. ° Such information conceming the business of collection, processing and marketing ofrecyclable materials as may be required by the CITY's Representative. The amount of recyclables collected but not sold and the disposition of those commodities (landfill, being held, etc.) Each monthly report shall include a statement from CONTRACTOR that all recyclable commodities that have value are actually sold to certified recycling vendors, brokers, toll end users or recycling manufacturers, that all of the salable recyclable commodities that it receives are recycled into usable product and that in no case will any uncontaminated recyclable commodities collected under this Agreement be deposited in a landfill. IX. INSPECTION OF RECORDS AND OPERATIONS The CITY shall have the right to inspect the facilities, equipment, personnel and operations of the contractor to assure itself of the appearance, sound business operations and compliance with contractual provisions by the CONTRACTOR. The CITY shall have the right to inspect CONTRACTOR's records and all papers relating to the performance of this Agreement, including but not limited to information concerning the quality of recyclables collected, quantity of recyclables collected and sold, number of designated households served, gross amounts paid to CONTRACTOR from sale of recyclables, as well as amounts paid by CONTRACTOR for recycling collection equipment. CONTRACTOR shall follow T.N.R.C.C. guidelines regarding retention of records. Further, CITY shall have access to information regarding CONTRACTOR's markets and prices paid for each type of material sold. To the Ordinance No. 2460 Page 9 extent authorized by the Texas Public Information Act, Texas Government Code § 552.001 et seq. (Vernon 1999) hereinafter as amended, all information obtained by CITY shall remain confidential. The CITY agrees to notify the CONTRACTOR at least twenty-four (24) hours prior to such inspection of operations or records. COMPLAINTS REGARDING SERVICE/SPILLAGE CONTRACTOR shall make provision for receiving and resolving customer complaints and service issues pertaining to service under this Agreement. Except for calls from customers concerning missed collections, any complaints received by CITY shall be forwarded to CONTRACTOR within seventy-two (72) hours of their receipt by CITY, and CONTRACTOR shall respond to all complaints within forty-eight (48) hours of receiving a complaint from a customer or notice of a customer complaint from the CITY. Regardless of the nature of the complaint, CONTRACTOR shall report the action taken to CITY in accordance with Section IX of this Agreement. In the event that a customer notifies the CITY or the CONTRACTOR that his recyclable commodities were not collected at the scheduled time, then CONTRACTOR must collect those recyclables from that customer within twenty-four (24) hours of the time that CONTRACTOR is made aware of the customer's notification. Any missed collection, whether real or alleged, shall be the collection responsibility of the CONTRACTOR. Should the CITY receive ten (10) customer complaints within a forty five (45) day period, CONTRACTOR will be assessed a charge of One Hundred Dollars ($100.00). Complaints are to be verified by the CONTRACTOR and the Director of Public Services. The charge shall be deducted from the CONTRACTOR's monthly invoice. XI. COMPLIANCE WITH APPLICABLE LAWS This ordinance shall be construed in accordance with the CITY's Charter and Code in effect on the Effective Date of this ordinance to the extent that such Charter and Code are not in conflict with or in violation of the constitution and laws of the United States or the State of Texas. This ordinance shall be governed in accordance with the laws of the State of Texas. Notwithstanding any other provision in this franchise to the contrary, CITY and CONTRACTOR shall at all times comply with all laws, rules and regulations of the state and federal government and any administrative agencies thereof, with respect to the subject matter of this ordinance. Ordinance No. 2460 Page I 0 In the event that the CONTRACTOR uses BVSWMA for disposal of materials that are collected under this Agreement. the CONTRACTOR agrees to comply with all BVSWMA regulations. All collections made under this Agreement shall be made by CONTRACTOR without unnecessary noise, disturbance, or commotion. XII. COLLECTION PROCEDURES The CONTRACTOR shall provide bags for the recyclable materials to be collected under this Agreement. The CITY shall be responsible for educating the customers concerning the procedures for collection of recyclables. Under no circumstances shall CONTRACTOR cause to be placed or place bags on public streets, alleys and/or thoroughfares without the prior approval of the CITY's Representative. CONTRACTOR shall initially provide and distribute to each designated household a sufficient supply of bags for the purpose of segregation and storage of materials to be collected for recycling. CONTRACTOR shall provide additional bags to customer in an efficient and timely manner through a reorder tag system and through a telephone order system. CONTRACTOR shall provide bags to customers within one week of receiving a reorder request from a customer. CONTRACTOR shall not be required to provide designated households additional bags, if it is determined by CITY that the household requesting additional bags is using them for purposes other than those set out in this Agreement. CONTRACTOR shall collect bags containing source separated recyclable commodities that are placed on the curb in front of each designated household, for collection during regular CITY solid waste collection hours of operation. CONTRACTOR shall use open bed trucks, trailers or compaction trucks, or any combination thereof, for collection of the recyclables. CONTRACTOR shall collect recyclables according to a collection schedule, including routes, that has been submitted to the City's Representative for approval. Once a collection schedule has been approved, CONTRACTOR may only collect recyclables in the manner dictated by that schedule, unless otherwise approved in writing by the City's Representative. The schedule shall divide the City of College Station into five areas and provide a collection route for each area. One route is to be collected on each weekday, and each route shall be collected once per week regardless of weather conditions. However, in the event of severe weather or a CITYdesignated emergency, the City's Representative may suspend CONTRACTOR's collection activities for as long as necessary. Collection of recyclables may not commence before 8:00 a.m., and CONTRACTOR shall use best efforts to complete collection by 5:00 p.m., but in no event shall CONTRACTOR perform collection activities between 8:00 p.m. and 8:00 a.m. on any day. In the event that CONTRACTOR wishes to alter an approved collection method, routes or schedules then existing, then such change must be approved in writing by the City's Representative. Once said change is approved, CONTRACTOR must provide notice to each Ordinance No. 2460 Page 11 designated household at its expense and in a manner that is approved by the City's Representative. In the event that a scheduled collection day falls on an official holiday recognized by the CITY then recycling collection services may be cancelled on that date. When a scheduled collection is missed due to the observance of such a holiday, the CONTRACTOR shall notify the affected customers of the holiday taken by the CONTRACTOR and shall notify those customers of the make-up collection date. Said notification shall occur no less than forty-eight (48) hours in advance of the holiday and shall be approved in advance by the City's Representative. CONTRACTOR shall notify the City's Representative within sixty (60) minutes of any scheduled delay in the collection process. Such notice shall be accompanied by CONTRACTOR's proposal for completing the scheduled work within a reasonable time. Said proposal shall be subject to approval by the City's Representative. CONTRACTOR shall maintain equipment with which to perform its obligations under this Agreement that is acceptable to CITY, with sufficient carrying capacity for the efficient collection of recyclables from designated households. CONTRACTOR shall maintain a constant available inventory of at least three thousand (3,000) prepared recycling kits at CONTRACTOR's facility. XIII. OWNERSHIP OF RECYCLABLES At any time after recyclable commodities have been placed outside for collection, such recyclable commodities shall be considered transferred to CITY for the purpose of sale or other disposal pursuant to the terms of this Agreement. Only the customer who placed said recyclable commodities outside for collection may take back such materials as the customer desires until such recyclable commodities have been collected by CONTRACTOR. At the time that the recyclables are collected by the CONTRACTOR, ownership of said recyclables shall transfer from the CITY to the CONTRACTOR, subject to a lien in favor of the CITY for any payment owed to CITY under this Agreement. XIV. TRANSPORTATION OF RECYCLABLES The CONTRACTOR shall only transport collected recyclables for storage, processing, disposal or other necessary handling to locations and in a manner permitted by the terms of this Agreement as well as federal, state and local law. The parties agree that this Agreement does not authorize CONTRACTOR to utilize the streets, alleys or public ways to dispose of industrial or solid waste or waste from any other project under contract. Ordinance No. 2460 Page 12 CONTRACTOR agrees that during transport of recyclable commodities, all vehicles used by CONTRACTOR in the removal of recyclable materials shall be covered to prevent release of refuse onto public streets or properties adjacent thereto. Ali equipment necessary for the performance of this franchise shall be in good condition and repair. A standby vehicle shall be available at all times for transport of recyclables. CONTRACTOR's vehicles shall at all times be clearly marked with CONTRACTOR's name and phone number in letters and numbers not less than three (3) inches in height. XV. PROCESSING FACILITIES The CONTRACTOR's processing facility shall have sufficient capacity to handle the volume of recyclable commodities collected under this Agreement. The facility must be equipped to process all recyclable commodities in a safe and efficient manner within a reasonable amount of time. XVI. APPEARANCE OF EQUIPMENT AND PERSONNEL The CONTRACTOR shall ensure that the collection service equipment is attractively painted and that said equipment is washed at least one time per week. Collection service personnel shall work in a City-approved uniform. The City shall have the right to inspect and approve appearance of collection service equipment and personnel. XVll. TERMINATION In addition to all other rights and powers retained by CITY under this Franchise or otherwise, CITY reserves the right to declare this Franchise forfeited and to terminate the Franchise and all rights and privileges of CONTRACTOR hereunder in the event of a material breach of the terms, covenants, or conditions herein set forth. A CONTRACTOR shall include, but not be limited to. the following: material breach by Failure to pay the fees prescribed by Article 8 and Article 17. Failure to materially provide the services provided for in this Franchise Material misrepresentation of fact in the application for or negotiation of this Franchise; Ordinance No. 2460 Page 13 Conviction of any director, officer, employee, or agent of CONTRACTOR of the offense of bribery or fraud connected with or resulting from the awarding of this Franchise: o Material misrepresentations of fact knowingly made to CITY with respect to or regarding CONTRACTOR's operations, management, revenues, services or reports required pursuant to this Franchise; 6. Revocation or denial of registration or renewal of registration by TNRCC; Excessive interruption in service for a period of seventy-two (72) hours or more due to causes other than force majeure. CONTRACTOR shall not be excused by mere economic hardship nor by misfeasance or malfeasance of its directors, officers or employees. CITY may after a hearing as described herein, revoke and cancel the Franchise by and between the parties and said Franchise shall be null and void. CITY shall mail notice to CONTRACTOR, at the address designated herein or at such address as may be designated from time to time~ by registered mail. The notice shall specify the time and place of the hearing and shall include the allegations being asserted for the revocation of this Agreement. The hearing shall be conducted in public before the City Council and CONTRACTOR shall be allowed to present evidence and be given an opportunity to answer all reasons for the termination set forth in the notice. In the event that the Council determines that the allegations set forth are true as set forth in the notice it may by majority vote cancel this Agreement between the parties at no penalty to the CITY. No term or provision of this Contract shall be construed to relieve the CONTRACTOR of liability to the CITY for damages sustained by the CITY because of any breach of contract by the CONTRACTOR. The CITY may withhold payments to the CONTRACTOR for the purpose of setoff until the exact amount of damages due the CITY from the CONTRACTOR is determined and paid. XVIII. NON-EXCLUSIVITY OF THE FRANCHISE Ordinance No. 2460 Page 14 Both parties understand and agree that nothing in this Agreement conveys to CONTRACTOR an exclusive franchise for the services described in this Agreement and that this Agreement is non-exclusive. The parties agree and acknowledge that the CITY may enter into a contract with another party for the disposal of solid waste or recyclable commodities not covered by the terms of this Agreement. The parties further agree that. in the event that the CITY develops other services or programs that result in commodities that may be recycled, including but not limited to multifamily structure recycling or commercial recycling, the CITY shall have the option to market these commodities through CONTRACTOR but the CITY shall not be obligated to do so. In the event that CITY and CONTRACTOR reach an agreement on the terms for recycling these additional commodities, such terms shall be incorporated into this Agreement by addendum. XIX. TERMINATION OF INDIVIDUAL SERVICE In the event that CONTRACTOR terminates service to any customer. CONTRACTOR must notify CITY by certified mail within forty-eight (48) hours of termination and state the reason for such termination. Upon written notice from the City's Representative that he or she does not find that the customer's service was terminated for good cause, CONTRACTOR shall reinstitute service for that customer immediately, and the failure to do so may be considered grounds for termination of this Agreement by the CITY. The parties agree that the CITY's Representative shall be the final arbiter regarding whether the CONTRACTOR had good cause for termination of service to a customer. XXl RECEIVERSHIP AND BANKRUPTCY The Council shall have the right to cancel this Franchise one hundred twenty days after the appointment of receiver or trustee to take over and conduct the business of CONTRACTOR, whether in receivership, reorganization, bankruptcy, other action or proceeding, whether voluntary or involuntary, unless such receivership or trusteeship shall have been vacated prior to the expiration of said one hundred twenty days, unless: Within one hundred twenty (120) days after his election or appointment, such receiver or trustee shall have fully complied with all the provisions of this franchise and remedied all defaults thereunder; or Such receiver or trustee, within one hundred twenty days, shall have executed an agreement, duly approved by the court having jurisdiction, whereby the receiver or trustee assumes and agrees to be bound by each and every provision of this Franchise. Ordinance No. 2t, 60 Page 15 XXI. RELEASE AND INDEMNIFICATION CONTRACTOR assumes full responsibility for the work to be performed hereunder, and hereby releases, relinquishes, and discharges CITY, its officers, agents and employees, from all claims, demands, and causes of action of every kind and character including the cost of defense thereof, for any injury to, including death of, any person whether that person be a third person, CONTRACTOR, or an employee of either of the parties hereto, and any loss of or damage to property, whether the same be that of either of the parties hereto or of third parties, caused by or alleged to be caused by, arising out of or in connection with the grant of this franchise to CONTRACTOR, whether or not said claims, demands and causes of action in whole or in part are covered by insurance. CONTRACTOR agrees to and shall indemnify and hold CITY harmless and defend the CITY, its officers, agents and employees from and against any and all claims, losses, damages, causes of action, suits, and liability of every kind, including all expenses of litigation, court costs, and attorneys' fees, for injury to or death of any person, and for damage to any property, out of or in connection operation of CONTRACTOR's recycling business under this franchise and disposal of the recycled waste collected by it or resale, and arising out of or in connection with the performance of this Agreement, whether the CONTRACTOR'S negligence is the sole or concurring cause of the injury, death, or damages, and whether the CITY'S negligence is the sole or concurring cause of the injury, death, or damages. It is the express intention of the parties hereto, that the indemnity provided for hereinabove is indemnity by the CONTRACTOR to indemnify and protect the CITY from the consequences of both the CITY's own negligence, whether that negligence is the sole or a concurring cause of the injury, death or damage, and the CONTRACTOR's negligence, whether that negligence is the sole or a concurring cause of the injury, death or damage. CONTRACTOR assumes responsibility and liability and hereby agrees to indemnify the City of College Station from any liability caused by CONTRACTOR's failure to comply with applicable federal, state or local laws and regulations, touching upon the maintenance of a safe and protected working environment, and the safe use and operation of machinery and equipment in that working environment. XXII. INSURANCE For the duration of this Agreement, CONTRACTOR shall procure and maintain at its sole cost and expense insurance against claims for injuries to persons or damages to property that may arise from or in connection with the performance of the work under the terms of this Ordinance No. 2460 Page 16 Agreement by CONTRACTOR, its agents, representatives, volunteers, employees, or subcontractors. CONTRACTOR's insurance shall be primary insurance with respect to the CITY. its officials, employees, and volunteers. Any insurance or self-insurance maintained by the CITY. its officials, employees, or volunteers, shall be considered in excess of CONTRACTOR's insurance and shall not contribute to it. CONTRACTOR shall include any and all subcontractors as additional insureds under its policies or shall furnish separate certificates and endorsements for each subcontractor. All coverages for subcontractors shall be subject to all of the requirements stated herein. Certificates of Insurance and endorsements shall be furnished to CITY and approved by CITY before work commences. A. STANDARD INSURANCE POLICIES REQUIRED Contractor General Liability Policy Automobile Liability Policy Worker's Compensation Policy B. GENERAL REQUIREMENTS APPLICABLE TO ALL POLICIES 1. General Liability and Automobile Liability insurance shall be written by a carrier with an A: VIII or better rating in accordance with the current Best Key Rating Guide. Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted. 3. Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per occurrence basis for property damage. 4. Claims Made Policies will not be accepted. 5. The CITY, its officials, employees and volunteers, are to be added as "Additional Insured" to the General Liability and the Automobile Liability policies. The coverage shall contain no special limitations on the scope of protection afforded to the CITY, its officials, employees or volunteers. 6. A Waiver of Subrogation in favor of the City of College Station with respect to the General Liability, Automobile Liability, and Workers' Compensation insurance must be included. Ordinance No. 2460 Page 17 7. Each insurance policy shall be endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or in limits except after thirty (30) days' prior written notice by certified mail, return receipt requested, has been given to the CITY. to the CITY. Upon request, certified copies of all insurance policies shall be furnished C. CONTRACTOR GENERAL LIABILITY 1. Minimum Combined Single Limit of $1,000,000 per occurrence for Bodily Injury and Property Damage. 2. Coverage shall be at least as broad as Insurance Service's Office form number CG OO Ol. 3. No coverage shall be deleted from the standard policy without notification of individual exclusions being attached for review and acceptance. D. AUTOMOBILE LIABILITY 1. Minimum Combined Single Limit of $1,000,000 per occurrence for Bodily Injury and Property Damage. 2. The Business Auto Policy must show Symbol 1 in the Covered Autos Portion of the liability section in Item 2 of the declarations page. E. WORKERS' COMPENSATION 1. Employer's Liability limits of $500,000/$500,000/$500,000 are required. 2. City of College Station shall be named as Alternate Employer on endorsement WC 99 03 Ol unless written through TWCARP. 3. Texas Waiver Of Our Right To Recover From Others Endorsement, WC 42 03 04 shall be included in this policy. 4. "Texas" must appear in Item 3A of the Workers' Compensation coverage or Item 3C must contain the following: All States except those listed in Item 3A and the States of NV, ND, OH, WA, WV, WY. F. CERTIFICATES OF INSURANCE Ordinance No. 2460 Page 18 1. Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent, and shall contain provisions representing and warranting the following: ao The company is licensed and admitted to do business in the State of Texas. The insurance set forth by the insurance company is underwritten on forms which have been approved by the Texas State Board of Insurance or ISO. Sets forth all endorsements as required above and insurance coverages as previously set forth herein. Shall specifically set forth the notice of cancellation, termination~ or change in coverage provisions to the City of College Station. eo Original endorsements affecting coverage required by this section shall be furnished with the certificates of insurance. XXIII. ASSIGNMENT This Agreement and the rights and obligations contained herein may not be assigned by CONTRACTOR without the specific prior written approval of the City Council. XXIV. SAFETY The CONTRACTOR agrees that all prudent and reasonable safety precautions associated with the performance of this Agreement are a part of the collection techniques for which CONTRACTOR is solely responsible. In its execution of its obligations under this Agreement, CONTRACTOR shall use all proper skill and care, and CONTRACTOR shall exercise all due and proper precautions to prevent injury to any property or person. Ordinance No. 2460 Page 19 XXV. AD VALOREM TAXES CONTRACTOR agrees to render a list annually of all personal property utilized in its recycling operation services to Brazos County Appraisal District so that said personal property will be subject to ad valorem taxation by the applicable taxing entities. XXVI. NOTICES All notices required to be given by either party to the other party under the terms of this Contract shall be in writing and, unless ~vritten notice of a change of address is given, shall be sent to the parties at the addresses following: CITY: Director of Public Works City of College Station P.O. Box 9960 College Station, Texas 77842 CONTRACTOR: Ron Schmidt Texas Commercial Waste P.O. Box 645 Bryan, Texas, 77806 All notices shall be deemed to have been properly served only if sent by Registered or Certified Mail to the person(s) at the address designated above, or to such other person and/or address that either party subsequently designates as its address for notice. Such designation shall be made by providing thirty (30) days advance written notice to the other party. XXVII. AMENDMENTS It is hereby understood and agreed by the parties to this Agreement that no alteration or variation to the terms of this Agreement, including all addendums hereto, shall be effective unless made in writing, approved and signed by both parties. Ordinance No. 2460 Page 20 XXV11 I. SEVERABILITY If any section, sentence, clause or paragraph of this Agreement shall be held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. The parties shall use their best efforts to replace the invalid, illegal or unenforceable provision(s) of this Agreement with valid legal terms and conditions approximating the original intent of the parties. XXIX. AUTHORIZATION TO EXECUTE The parties signing this Agreement shall provide adequate proof of their authority to execute this Agreement. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors or assigns as permitted herein. XXXj TERM OF AGREEMENT The term of this Agreement shall be for a period beginning on October 1, 2000 and ending on September 30, 2005. XXXI. ACCEPTANCE OF AGREEMENT In accordance with CITY OF COLLEGE STATION CITY CHARTER. SECTION 120, CONTRACTOR shall have sixty (60) days, from and after the final passage and approval of this Ordinance to file its written acceptance thereof with the City Secretary within 30 days from the final adoption of this Ordinance, and upon acceptance being filed, this Ordinance shall take effect and be in force from and after the date of its acceptance. Such acceptance shall be typed or printed on the letterhead of CONTRACTOR and, with the blank spaces appropriately completed, shall be as follows: Ordinance No. 2460 Page 21 Attn: CIS Manager acting by and through its undersigned who is acting with his official capacity and authority, hereby accepts the franchise to operate a recycling collection service within the City of College Station, Texas ("College Station") as said franchise is set forth and provided in Ordinance No. (the "Ordinance"). agrees to be bound and governed by each terms, provision and condition of the Ordinance, to accept and to give the benefits provided for in the Ordinance in a business like and reasonable manner and compliance with the Ordinance. By:, Name: Title: Date: By accepting this Agreement, CONTRACTOR represents that it has, by careful examination, satisfied itself as to the nature and location of the work, the character, quality and quantity of work to be performed, the character of the equipment and facilities necessary to fulfill its obligations under this Agreement, as well as the general and local conditions and all other matters that in any way affect the work to be performed under this Agreement. XXXIL CONTRACTOR'S DILIGENCE AND CARE CONTRACTOR shall use reasonable care and diligence in executing its obligations under this Agreement. ENTIRE AGREEMENT It is understood by the parties that this Agreement constitutes the entire agreement between the parties with respect to collection of recyclable commodities from designated households within the CITY. It is further understood and agreed that there are no other agreements between these parties with regard to the collection and disposal of recyclable commodities from designated households within the CITY. Ordinance No. 2460 Page 22 XXXIV. ENFORCEMENT OF PROVISIONS Failure of any party, at any time, to enforce a provision of this Agreement, shall in no way constitute a waiver of that provision, nor in any way affect the validity of this Agreement. any part hereof, or the right of such party thereafter to enforce each and every provision hereof. XXXV. CAPTIONS AND HEADINGS The captions, section numbers and other such designations appearing in this Agreement are inserted only as a matter of convenience and in no define, limit, construe, or describe the scope or intent of such sections in this Agreement or in any way affect this Agreement XXXVI. PUBLIC HEARING It is hereby found and determined that the meetings at which this ordinance was passed were open to the public, as required by Tex. Gov't Code Ann. § 551.001 et seq. (Vernon 1999), and that advance public notice of time, place, and purpose of said meetings was given. PASSED, ADOPTED and APPROVED by unanimous vote of the City Council of the City of College Station on this the 10ch day of August: , A.D. 2000. TEXAS COMMERCIAL WASTE Ron Schmidt Date: ~ -/.~.- o o ATTEST: Connie Hooks, City Secretary APPROVED: APPROVED: - 't'Lynn'Mc Ilhaney, ~<16yor Ordinance No. 2460 Page 23 City Attorney ~7 ~ff'/~ First Consideration & Approval: Second Consideration & Approval: Third Consideration & Approval: June 22, 2000 July 13, 2000 August 10, 2000