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HomeMy WebLinkAbout2011-3352 - Ordinance - 06/23/2011 DEMOLITION AND CONSTRUCTION DEBRIS FRANCHISE AGREEMENT WITH CCAA, LLC, D/B/A BCS STOP 'N GO POTTIES ORDINANCE NO. 2011- 3352 AN ORDINANCE GRANTING CCAA, LLC, D/B/A BCS STOP 'N GO POTTIES, 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 ENGAGING IN THE BUSINESS OF COLLECTING DEMOLITION AND CONSTRUCTION DEBRIS FROM RESIDENTIAL SITES; PRESCRIBING THE TERMS, CONDITIONS, OBLIGATIONS, AND LIMITATIONS UNDER WHICH SAID FRANCHISE SHALL BE EXERCISED; PROVIDING FOR THE CONSIDERATION; FOR PERIOD OF GRANT; FOR ASSIGNMENT; FOR METHOD OF ACCEPTANCE; FOR REPEAL OF CONFLICTING ORDINANCES; FOR PARTIAL INVALIDITY AND ASSESSING A PENALTY FOR VIOLATION. WHEREAS, the City of College Station, by ordinance, provides exclusively all solid waste collection and disposal services for solid waste generated from within the corporate limits of the City of College Station; and WHEREAS, the City of College Station may, by ordinance and charter, grant franchises to other entities for the use of public streets, alleys and thoroughfares within the corporate limits of the City of College Station 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 and disposal of a certain classification of solid waste generated within the corporate limits of the City of College Station under the terms of this Franchise Agreement as set out below; and WHEREAS, CCAA, LLC d/b/a BCS STOP 'N GO POTTIES desires to obtain a franchise to provide for the collection, hauling and disposal of construction debris solid waste from the City of College Station; NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, THAT: ARTICLE I DEFINITIONS 1. Franchise Agreement shall mean this franchise between the City of College Station and CCAA, LLC d/b/a BCS STOP 'N GO POTTIES for provision of a residential roll-off container demolition and construction debris collection service within the City of College Station, under certain terms and conditions set out herein. 2. Contractor shall mean BCS STOP 'N GO POTTIES means CCAA, LLC d/b/a BCS STOP 'N GO POTTIES conducting the roll-off container demolition and construction debris collection service. 3. Brazos Valley Solid Waste Management Inc. or BVSWMA means landfills operated by an interlocal agreement. 4. City of College Station or CITY means the City of College Station, Texas a Home-Rule Municipal Corporation incorporated under the laws of Texas. 5. City Council or COUNCIL means the governing body of the City of College Station, Texas. 6. Class 1 Waste means that term as defined in the Texas Administrative Code as it now exists or as is hereafter amended. 7. Customers shall mean those areas zoned for single family, duplex, and quadraplex uses located within the CITY that generate demolition and construction debris. Not included are multi-family dwellings that are attached to each other such as but not limited to apartments and townhomes. 8. Demolition and Construction Debris means any building material waste resulting from demolition, remodeling, repairs, or construction as well as materials discarded during periodic temporary facility clean-up generated within the CITY. 9. Roll-Off Containers or container means that type of solid waste industry container loaded by truck not to exceed fifteen (15) cubic yards in volume. 10. Residential customers shall mean any residential dwelling that is owned or occupied by a resident in the CITY whether as owner, lessee or tenant. ARTICLE II AUTHORITY FOR CONTRACTOR TO PROVIDE SERVICE 1. City hereby grants to Contractor a nonexclusive franchise to operate and establish in the City, as constituted as of the effective date of this Agreement, or as may hereafter be constituted to engaging in the business of collecting only demolition and construction debris from residential customers in those areas zoned for single family, duplex, triplex and quadraplex within the Demolition and Construction Material Franchise 2 jurisdictional limits of CITY using roll-off containers within the corporate limits of City, 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 the City, 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 the City 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 TCEQ. 2. Nothing in this Franchise shall be construed as granting an exclusive franchise or right. ARTICLE III DISPOSAL SITE TO BE USED CONTRACTOR shall utilize a BVSWMA landfill or any other T.C.E.Q. approved disposal site for the disposal of all demolition and construction debris collected by CONTRACTOR under this Franchise Agreement. CONTRACTOR shall not dispose of any Class 1 Waste at the BVSWMA landfill or any other T.C.E.Q. approved disposal site. ARTICLE IV RATES TO BE CHARGED BY BCS STOP IN GO POTTIES Attached hereto as Exhibit "A" and incorporated herein by reference is the Schedule of Rates, which CONTRACTOR shall charge for the aforementioned services. The rates provided herein shall be renegotiated at any time that the costs to the company of doing business have increased, due to the operation of new governmental regulation or due to increased costs of material or labor required to provide the services hereunder, or due to increased costs of disposal in a landfill operation. CONTRACTOR agrees to use due diligence to keep costs from increasing. ARTICLE V PAYMENTS TO CITY 1. For and in consideration of the grant of the franchise herein, CONTRACTOR agrees and shall pay to CITY upon acceptance of this Franchise Agreement and thereafter during the term hereof, a sum equivalent to five percent (5%) of CONTRACTOR's monthly gross delivery and hauling revenues generated from CONTRACTOR's provision of demolition and construction debris roll-off container collection services within the CITY. Any revenue received by CONTRACTOR will be subject to the franchise fee and shall be computed into CONTRACTOR's monthly gross delivery and hauling revenue. Said payment shall be paid quarterly to the City Manager or her delegate and shall be due by the twentieth of the month following the end of the previous quarter. Payment after that date shall incur a ten percent (10%) late fee on the outstanding amount owed. Demolition and Construction Material Franchise 3 2. Failure by CONTRACTOR to pay any amount due under this franchise constitutes a Failure to Perform under this contract and is subject to the provisions of Article XV of this Franchise Agreement (FAILURE TO PERFORM). ARTICLE VI ACCESS TO RECORDS & REPORTING 1. CITY shall have the right, upon reasonable notice, to inspect during normal business hours CONTRACTOR's records, billing records of those customers served by CONTRACTOR and all papers relating to the operation of demolition and construction debris collection and disposal within the CITY. CONTRACTOR shall cooperate in allowing CITY to conduct the inspections. The following records and reports shall be filed quarterly with the City Manager or the City Manager's delegate: a. Reports of the results of all complaints and investigations received and action taken by CONTRACTOR. b. A listing of all CONTRACTOR accounts served and monthly revenue derived from roll-off containers placed in the CITY under terms of this franchise. The reports will include customer's name, address, frequency of pick-up, size of container, and monthly charges. ARTICLE VII PLACEMENT OF ROLL-OFF CONTAINERS All roll-off containers placed in service shall be located in such a manner so as not to be a safety or traffic hazard. Under no circumstances shall CONTRACTOR place containers on public streets, alleys or thoroughfares without the prior written approval of the CITY. CITY reserves the right to designate the exact location of any or all roll-off container(s) placed in service in the CITY. ARTICLE VIII CONTAINER AND EQUIPMENT MAINTENANCE 1. CONTRACTOR agrees to properly maintain in a safe, clean and sanitary condition, and paint all roll-off containers placed out for service within the CITY. All equipment necessary for the performance of this franchise shall be in good condition and repair. 2. All vehicles used by CONTRACTOR in the removal of demolition and construction debris shall be covered during transport to prevent spillage, blowing, or scattering of refuse onto public streets or rights of way, private property or adjacent property. A standby vehicle shall always be available. 3. CONTRACTOR's vehicles shall at all times be clearly marked with CONTRACTOR's name, address, telephone number and if applicable, state permit number, in letters not less than three (3) inches in height. Demolition and Construction Material Franchise 4 ARTICLE IX COMPLAINTS REGARDING SERVICE/SPILLAGE CONTRACTOR shall handle directly any complaints pertaining to customer service, property damage or personal injury from their roll-off container service. Any such complaints received by CITY shall be forwarded to CONTRACTOR within twenty-four (24) hours of their receipt by CITY. CONTRACTOR shall respond to all complaints within twenty-four (24) hours of receiving notice of such complaint from CITY, resolve such complaints promptly and shall report to CITY the action taken. Failure by CONTRACTOR to respond and report to CITY on action taken within this twenty-four (24) hour period may subject CONTRACTOR to a $25.00 per incident charge from CITY payable with the next payment due CITY under Article V of this Franchise Agreement. ARTICLE X COMPLIANCE WITH LAWS 1. This ordinance shall be construed in accordance with the City's Charter and Code of Ordinances in effect on the Effective Date of this ordinance to the extent that such City Charter and Code of Ordinances are not in conflict with or in violation of the Constitution and Laws of the United States or the State of Texas. 2. This Ordinance shall be governed in accordance with the Laws of the State of Texas. Performance and all matters related thereto shall be in Brazos County, Texas, United States of America. 3. 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. 4. 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. ARTICLE XI UNDERSTANDINGS PERTAINING TO NON-EXCLUSIVITY This Franchise Agreement contains all the terms and conditions agreed on by the parties and no other agreements, or otherwise, regarding the subject matter of this franchise shall be of any force or effect. Both parties agree and understand that nothing in this Franchise Agreement conveys to CONTRACTOR an exclusive franchise for the services described in this franchise and that this franchise is nonexclusive. Demolition and Construction Material Franchise 5 ARTICLE XII OWNERSHIP OF MATERIALS Sole and exclusive title to all demolition and construction debris collected by CONTRACTOR under this Franchise Agreement shall pass to CONTRACTOR when said debris is placed on CONTRACTOR's truck. ARTICLE XIII CITY SERVICE CONTRACTOR agrees to provide free service to CITY following natural disasters or Acts of God. ARTICLE XIV INTERRUPTION OR TERMINATION OF SERVICE 1. In the event that CONTRACTOR terminates service to any customer within the CITY's limit, CONTRACTOR must notify CITY through registered mail within forty-eight (48) hours of termination and state the cause of such termination. 2. If the interruption in service continues for a period of seventy-two (72) hours or more, then it may constitute Failure to Perform under this contract and CITY may invoke the provisions of Article XV of this Franchise Agreement (FAILURE TO PERFORM). ARTICLE XV FAILURE TO PERFORM It is expressly understood and agreed by the parties that if at any time CONTRACTOR shall fail to perform any of the terms, covenants, or conditions herein set forth, CITY may after hearing as described herein, revoke and cancel the Franchise Agreement by and between the parties and said Franchise Agreement shall be null and void. Upon the determination by the staff of CITY that a hearing should be held before the Council of said CITY, 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 Franchise Agreement. The hearing shall be conducted in public before the City Council and CONTRACTOR shall be allowed to present evidence and 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 Franchise Agreement between the parties at no penalty to the CITY. Demolition and Construction Material Franchise 6 ARTICLE XVI RELEASE AND INDEMNIFICATION 1. 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 HIND 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. 2. 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 HIND, 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 WITH OPERATION OF CONTRACTOR'S RECYCLING BUSINESS UNDER THIS FRANCHISE AND DISPOSAL OF THE RECYCLABLE 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. 3. CONTRACTOR ASSUMES RESPONSIBILITY AND LIABILITY AND HEREBY AGREES TO INDEMNIFY THE CITY 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. Demolition and Construction Material Franchise 7 ARTICLE XVII INSURANCE 1. 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 Agreement by Contractor, its agents, representatives, volunteers, employees, or subcontractors. 2. 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. 3. 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 and endorsements stated herein. 4. Certificates of Insurance and endorsements shall be furnished to City and approved by City before work commences. During the term of this Agreement Contractor's insurance policies shall meet the following requirements: a. Standard Insurance Policies Required 1. Commercial General Liability 2. Business Automobile Liability 3. Workers' Compensation b. General Requirements Applicable to All Policies 1. Only Insurance Carriers licensed and admitted to do business in the State of Texas will be accepted, if available. Otherwise, an Insurance Carrier shall be permitted outside the State of Texas, as long as policy is through an Insurance Broker authorized within Texas and the policy complies with the other insurance requirements contained in this Agreement. 2. Deductibles shall be listed on the Certificate of Insurance and are acceptable only on a per occurrence basis for property damage only. 3. "Claims Made" policies are not accepted. 4. 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 of College Station. 5. Upon request, certified copies of all insurance policies shall be furnished to the City of College Station. 6. The City of College Station, its officials, employees and volunteers, are to be named as "Additional Insured" to the Commercial General and Business Demolition and Construction Material Franchise 8 Automobile Liability policies. The coverage shall contain no special limitations on the scope of protection afforded to the City, its officials, employees or volunteers. c. Commercial General Liability 1. General Liability insurance shall be written by a carrier with a "AXIII" or better rating in accordance with the current Best Key Rating Guide. 2. Limit of $1,000,000.00 per occurrence for bodily injury and property damage with an annual aggregate limit of $2,000,000.00 which limits shall be endorsed to be per Project. 3. Coverage shall be at least as broad as ISO form CG 00 01. 4. No coverage shall be excluded from the standard policy without notification of individual exclusions being attached for review and acceptance. 5. The coverage shall include but not be limited to the following: premises/operations with separate aggregate; independent contracts; products/completed operations; contractual liability MSC 90 Pollution Coverage. d. Endorsements 1. Those policies set forth in Paragraphs III and IV shall contain an endorsement naming the City as Additional Insured and further providing that the Contractor's policies are primary to any self-insurance or insurance policies procured by the City. The additional insured endorsement shall be in a form at least as broad as ISO form GC 2026. Waiver of subrogation in a form at least as broad as ISO form 2404 shall be provided in favor of the City on all policies obtained by the Contractor in compliance with the terms of this Agreement. Contractor shall be responsible for all deductibles which may exist on any policies obtained in compliance with the terms of this Agreement. All coverage for subcontractors shall be subject to the requirements stated herein. All Certificates of Insurance and endorsements shall be furnished to the City's Representative at the time of execution of this Agreement, attached hereto as Exhibit "B", and approved by the City before work commences. e. Workers Compensation Insurance 1. Pursuant to the requirements set forth in Title 28, Section 110.110 of the Texas Administrative Code, all employees of the Contractor, all employees of any and all subcontractors, and all other persons providing services on the Project must be covered by a worker's compensation insurance policy: either directly through their employer's policy (the Contractor's or subcontractor's policy) or through an executed coverage agreement on an approved Texas Department of Insurance Division of Workers Compensation (DWC) form. Accordingly, if a subcontractor does not have his or her own policy and a coverage agreement is used, Contractors and subcontractors must use that portion of the form whereby the hiring Contractor agrees to provide coverage to the employees of the Demolition and Construction Material Franchise 9 subcontractor. The portion of the form that would otherwise allow them not to provide coverage for the employees of an independent Contractor may not be used. 2. Workers compensation insurance shall include the following terms: A. Employer's Liability minimum limits of $1,000,000.00 for each accident/each disease/each employee are required. B. "Texas Waiver of Our Right to Recover From Others Endorsement, WC 42 03 04" shall be included in this policy. C. 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, and WY. 3. Pursuant to the explicit terms of Title 28, Section 110.110(c) (7) of the Texas Administrative Code, the bid specifications, this Agreement, and all subcontracts on this Project must include the following terms and conditions in the following language, without any additional words or changes, except those required to accommodate the specific document in which they are contained or to impose stricter standards of documentation: Definitions: A. Certificate of coverage ("certificate") - An original certificate of insurance, a certificate of authority to self-insure issued by the Division of Workers Compensation, or a coverage agreement (DWC-81, DWC-83, or DWC-84), showing statutory workers' compensation insurance coverage for the person's or entity's employees providing services on a project, for the duration of the project. B. Duration of the project - includes the time from the beginning of the work on the project until the Contractor's/person's work on the project has been completed and accepted by the governmental entity. C. Persons providing services on the project ("subcontractors" in § 406.096 [of the Texas Labor Code) - includes all persons or entities performing all or part of the services the Contractor has undertaken to perform on the project, regardless of whether that person contracted directly with the Contractor and regardless of whether that person has employees. This includes, without limitation, independent Contractors, subcontractors, leasing companies, motor carriers, owner-operators, employees of any such entity, or employees of any entity which furnishes persons to provide services on the project. "Services" include, without limitation, providing, hauling, or delivering equipment or materials, or providing labor, transportation, or other service related to a project. "Services" does not include activities unrelated to the project, such as food/beverage vendors, office supply deliveries, and delivery of portable toilets. Demolition and Construction Material Franchise 10 4. The Contractor shall provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all employees of the Contractor providing services on the project, for the duration of the project. 5. The Contractor must provide a certificate of coverage to the governmental entity prior to being awarded the contract. 6. If the coverage period shown on the Contractor's current certificate of coverage ends during the duration of the project, the Contractor must, prior to the end of the coverage period, file a new certificate of coverage with the governmental entity showing that coverage has been extended. 7. The Contractor shall obtain from each person providing services on a project, and provide to the governmental entity: A. a certificate of coverage, prior to that person beginning work on the project, so the governmental entity will have on file certificates of coverage showing coverage for all persons providing services on the project; and B. no later than seven calendar days after receipt by the Contractor, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project. 8. The Contractor shall retain all required certificates of coverage for the duration of the project and for one year thereafter. 9. The Contractor shall notify the governmental entity in writing by certified mail or personal delivery, within 10 calendar days after the Contractor knew or should have known, or any change that materially affects the provision of coverage of any person providing services on the project. 10. The Contractor shall post on each project site a notice, in the text, form and manner prescribed by the Division of Workers Compensation, informing all persons providing services on the project that they are required to be covered, and stating how a person may verify coverage and report lack of coverage. 11. The Contractor shall contractually require each person with whom it contracts to provide services on a project, to: A. Provide coverage, based on proper reporting of classification codes and payroll amounts and filing of any coverage agreements, that meets the statutory requirements of Texas Labor Code, Section 401.011(44) for all of its employees providing services on the project, for the duration of the proj ect; B. Provide to the Contractor, prior to that person beginning work on the project, a certificate of coverage showing that coverage is being provided for all employees of the person providing services on the project, for the duration of the project; Demolition and Construction Material Franchise 11 C. Provide the Contractor, prior to the end of the coverage period, a new certificate of coverage showing extension of coverage, if the coverage period shown on the current certificate of coverage ends during the duration of the project; D. Obtain from each other person with whom it contracts, and provide to the Contractor: i. A certificate of coverage, prior to the other person beginning work on the project; and ii. A new certificate of coverage showing extension of coverage, prior to the end of the coverage period, if the coverage period shown on the current certificate of coverage ends during the duration of the proj ect; E. Retain all required certificates of coverage on file for the duration of the project and for one year thereafter; F. Notify the governmental entity in writing by certified mail or personal delivery, within 10 calendar days after the person knew or should have known, of any change that materially affects the provision of coverage of any person providing services on the project; and G. Contractually require each person with whom it contracts to perform as required by paragraphs (a) - (g), with the certificates of coverage to be provided to the person for whom they are providing services. 12. By signing this contract, or providing, or causing to be provided a certificate of coverage, the Contractor is representing to the governmental entity that all employees of the Contractor who will provide services on the project will be covered by workers' compensation coverage for the duration of the project; that the coverage will be based on proper reporting of classification codes and payroll amounts; and that all coverage agreements will be filed with the appropriate insurance carrier or, in the case of a self-insured, with the Commission's Division of Self-Insurance Regulation. Providing false or misleading information may subject the Contractor to administrative penalties, criminal penalties, civil penal- ties, or other civil actions. 13. The Contractor's failure to comply with any of these provisions is a breach of contract by the Contractor that entitles the governmental entity to declare the contract void if the Contractor does not remedy the breach within ten calendar days after receipt of notice of breach from the governmental entity. L Certificates of Insurance shall be prepared and executed by the insurance company or its authorized agent, and shall contain the following provisions and warranties: 1. The company is licensed and admitted to do business in the State of Texas. 2. The insurance policies provided by the insurance company are underwritten on forms that have been provided by the Texas State Board of Insurance or ISO. 3. All endorsements and insurance coverages according to requirements and instructions contained herein. Demolition and Construction Material Franchise 12 4. The form of the notice of cancellation, termination, or change in coverage provisions to the City of College Station. 5. Original endorsements affecting coverage required by this section shall be furnished with the certificates of insurance. ARTICLE XVIII 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. The Contractor may request assignment of the Contractor's rights or obligations under this Agreement upon written request to the City. City shall take the requested assignment before the City Council within thirty (30) days of receipt of request from Contractor, and will be recommended for approval by staff unless deemed unreasonable. ARTICLE XIX SAFETY AND LIABILITY FOR INJURIES TO CITY OR ABUTTING PROPERTY 1. CONTRACTOR shall perform the collection in accordance with the applicable laws, codes, ordinances and regulations of the United States, State of Texas, Brazos County, and City of College Station and in compliance with OSHA and other laws as they apply to its employees. It is the intent of the parties that the safety precautions are a part of the collection techniques for which CONTRACTOR is solely responsible. In the carrying on of the services herein provided for, 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(s). 2. CONTRACTOR shall pay for all damages to City property resulting from the operation of its service and shall pay to every owner of property abutting the residential property on which the container is located that is injured by the operation of the franchise all physical damage caused by any act or omission of CONTRACTOR or of any of its subcontractors or employees in the operation of the CONTRACTOR service. ARTICLE XX AD VALOREM TAXES CONTRACTOR agrees to render all personal property utilized in its solid waste operation services provided to Brazos County Appraisal District so that said personal property will be the subject of ad valorem taxation for the benefit of CITY. ARTICLE XXI NOTICES AND PAYMENTS 1. All notices and payments required under the terms of this Contract to be given by either party to the other party shall be in writing, and unless otherwise specified in writing by the respective parties, shall be sent to the parties at the addresses following: Demolition and Construction Material Franchise 13 City Manager Charles Mancuso City of College Station President, CCAA, LLC, d/b/a P.O. Box 9960 Stop 'N Go Potties College Station, Texas 77842 P. O. Box 5449 Bryan, Texas 77805 2. 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 as above provided, or to any other person at the address which either party may hereinafter designate by written notice to the other party. ARTICLE XXII PENALTY Any person, firm or corporation violating any provision of this ordinance shall be fined not exceeding $2,000.00 for each offense and each and every day said violation continues constitutes a separate offense. ARTICLE XXIII AMENDMENTS It is hereby understood and agreed by the parties to this franchise that no amendment to the terms of this franchise shall be made unless made in writing, approved by both parties, and attached to this Franchise Agreement to become a part hereof. ARTICLE XXIV 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. ARTICLE XXV AUTHORIZATION TO EXECUTE The parties signing this Franchise Agreement shall provide adequate proof of their authority to execute this Franchise Agreement. This Franchise Agreement shall inure to the benefit and be binding upon the parties hereto and their respective successors or assigns, but shall not be assignable by either party without the written consent of the other party. Demolition and Construction Material Franchise 14 ARTICLE XXVI TERM AND TERMINATION OF FRANCHISE 1. The term of this Franchise Agreement shall be for a period of five (5) years beginning on the date of acceptance. 2. 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 material breach by Contractor shall include, but not be limited to, the following: a. Failure to pay the fees prescribed by Article V. b. Failure to materially provide the services provided for in this Franchise. C. Material misrepresentation of fact in the application for or negotiation of this Franchise. d. 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. e. 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. f. Revocation or denial of registration or renewal of registration by TCEQ. h. Excessive interruption in service for a period of seventy-two (72) hours or more due to causes other than force majeure. 3. Contractor shall not be excused by mere economic hardship nor by misfeasance or malfeasance of its directors, officers, or employees. 4. 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. Demolition and Construction Material Franchise 15 ARTICLE XXVII ACCEPTANCE OF FRANCHISE 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 thirty (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: Attn: Public Works Director 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. ARTICLE XXVIII PUBLIC MEETING It is hereby found and determined that the meetings at which this ordinance was passed were open to the public, as required by TEXAS GOVERNMENT CODE § 551, as amended, and that advance public notice of time, place, and purpose of said meetings was given. Demolition and Construction Material Franchise 16 First Consideration & Approval on the day of moil 2011 Second Consideration & Approval on the fi- day of LIU 2011 Third Consideration & Approval on the 23ra day of 2011 PASSED, ADOPTED and APPROVED by the City of College Station City Council on this the day of 2011. CCAA, LL /a BCS STOP 'N GO POTTIES CITY OF COLLEGE STATION r- By: By:i~urc_~tsv Mayor Printed Name:e/4vtLS'Oew" Date: rp 27' Title: Date: "rl-'elhz ATTEST: City Secretar Date APPROVED: Ljkue. City nager Date b" U-11 Cit ttorney Date - 1~-( a ~ g A Chief i cial fficer Date Demolition and Construction Material Franchise 17 EXHIBIT "A" SCHEDULE OF RATES BCS STOP N GO POTTIES Rates for a fourteen (140) yard dumpster $75.00 plus tipping fee or $110.00 minus tipping fee $1.00 per day fee after fourteen days on location without disposal Demolition and Construction Material Franchise 18 EXHIBIT "B" CERTIFICATES OF INSURANCE AND ENDORSEMENTS Demolition and Construction Material Franchise 19 ACcw" CERTIFI( 'TE OF LIABILITY INSURA _;E- DATE(MMlDD/(YYY) PRODUCER 513 8/2010 THIS CERTIFICATE 15 ISSUED AS A MATTER OF INFORMATION WM BLANCRIUM & ASSOCIATES ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOT[ 3O8 HOLDER. THIS CERTIFICATE DOES NOT AMEND, EXTEND OR Granbu ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. ry, TX 76048 ('817')573-7752 INSURERS AFFORDING COVERAGE NAIC# INSURED Chas. Mancuao, Inc. & CCAA, LLC, (i a INSURER a ST. PAUL FIRE & Nuan BCS Stop&Go Potties & Brazos INSURER B: Valley Recycling INSURER C: P. O. BOX 5449 INSURER IX TX 7 805 INSURER E COVERAGES THE POLICIES OF INSURANCE LISTED BELOW HAVE TEEN ISSUED TO THE INSURE13 NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT. TERM OR COP40MON OF ANY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAIN, THE INSURANCE AFFORDED BY THE POLICIES DESCRIBED HEREIN IS SUBJECT TO ALL THE TEE AI$, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. AGGREGATE LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. IRBR A001 LTR Iftm E OF W CE POLICY NUMIRER POLICY E D TIVE 6 MMA7 lRAngN UMrrs GENERAL LIABILnY MOCCURRENCE CE F 000 f COMMERCIAL GENEA' LIABILITY i 0 CLAIMSMADE ~I OCCUR am000 A CK00 222244 5' /8/IO 5/8/11 JUR000 AI000 GEML AGGREGATE LIMtr APPLIES PER PRODUCTS - COMPIOP AGG S 2 0 0 0 0 0 0 X POLICY P O- LOG AUTOMOBILE LIABILITY CO"INED Q SINGLE LIMB $ ANYAU7b (Ee 3 1,000,000 ALL OWNEbAUTOS SCHEDULED AUTOS (p" INJURY = (Per Pte) A X HIRED AUTOS CA00202259 5/8/10 5/$/11 eraoINJURY X NON•OWNEO AUTOS (FSOOILY PareocMerq) g PROPERTY DAMAGE S (Per wxbdw) GARAGE LABILITY A(TTOONLY -EA ACCIDENT S ANYAUTO OTHER THAN EAACC s ALITOONLY. AGG S EXCESS / UMBRELLA LUiBILTTY f EACH OCCURRENCE s 2 000 000 X OCCUR Ef CLAIMSMADE AGGREGATE ; 2 000 Opp 502XA9366 5/8/10 5/8/11 2 EX OF 1 s A DEDUCTIBLE 3 X R~NTI 'N s 10'000 WORKERS COMPENSATION ; ogy BI(MTTS OTW ANY PROPRlETOVPnar7 j1EG1,rSyE YIN AND EMPLOYFRU LMILITY 7E.LDISWE-EA OFTIGERAIEILBEh E7CCLUppD7 1 1~T I N ACCIDENT S (Mi1100lory Mi) LJ IIYeg, deet7ft OIWgt EMPLOYEE S SPECWL PROVISIONS below OTHER }mil Rssk IMO OO ASE-PDUCYLBAIT $ 1 11 es-- 20 ,00 Blanket Equip. with $2,500 ded./Occur k Bldge. & Content $1,085,000 _SGRIPTION OF OPERATIONS I LOCATIONS I VEHICLES 1 Ey(CLUSIONS ADDED BY ENDORSEMENT I WECWL PROVISIONS ILLL PERSONS AND ORGANIZATIONS ARE PROTECTED AS PROVIDEID BY WRITTEN CONTRACT. RTIFICATE HOLDER CANCELLATION EDGAR M&C$ IN$RY CORP. SHO" AW OF TW ABOVE DEBCROMD POLES " CANCELLW BEFORE "W EWRAT" 4629 PRICK LAME DATE TMEW. THE 11MM A MSURER IBILL ENDEAVOR TO NML 30 BAY, wr PFLQGERV-TAX, TX 78660 NOTES to THE C7rY MATE HOLDft mM To rr a LEFT, mrr PAA1IBE TO 00 So SHALL, &OWE NO 0AUMTIOM OR CYIBEITY OF ANY MM IRON THE IIiUREK nB ACEMS OR ATTN : L. RUFF REPB 11MATNEB, - I ~ p I FAX : 512 * 251- 5609 AVhiOm mo REPRESENTA w :ORD25(2009/o1) Q 1989-2009 ACORD CORPORATION. All rights reserved. The AORRD name and logo are registered marks of AOORD