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HomeMy WebLinkAbout2013-3477 - Ordinance - 02/14/2013 Ordinance No. 2013-3411 AN ORDINANCE GRANTING BRANNON INDUSTRIAL GROUP D /B /A PREMIER METAL BUYERS, ITS SUCCESSORS AND ASSIGNS, A NON - EXCLUSIVE 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 MULTI - FAMILY AND COMMERCIAL RECYCLING COLLECTION; 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 generated from within the corporate limits of the City of College Station; and 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 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 NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF COLLEGE STATION, TEXAS, THAT: Contract No. 13 -098 ARTICLE I DEFINITIONS 1. Contractor means Brannon Industrial Group d/b /a Premier Metal Buyers conducting multi- family apartment and commercial business recycling collection. 2. Brazos Valley Solid Waste Management Inc. or BVSWMA means a landfill operated by an interlocal agreement. 3. City of College Station or City means the City of College Station, Texas a Home -Rule Municipal Corporation incorporated under the laws of Texas. 4. City Council or Council means the governing body of the City of College Station, Texas. 5. Class 1 Waste means that term as defined in the Texas Administrative Code as it now exists or as is hereafter amended. 6. Compactor means a bulk container used for the collection of refuse, equipped with a device to compact such materials and thereby increasing the storage capacity of the containers. 7. Container means an apparatus of varying capacity used for refuse collection. This apparatus must have a securable lid. This lid shall remain closed and secured with the exception of loading and collection. Containers shall not be made of any temporary material. 8. Customer means: those commercial, industrial, or multi - family premises located within the City that generate recyclables. a. Commercial Customers - Any customer who is an enterprise or establishment whose main purpose is to carry on a commercial for - profit or not - for - profit activity. Said definition shall include all uses not falling within the category of residential, including, but not limited to, churches, hospitals, schools and industries. b. Industrial Customers Real property on which manufacture or assembly employing labor or machinery is carried on for profit. c. Multi family Customers - Each residential unit in a building with a total of four (4) or more attached residential units in a complex the City has identified as a multi- family apartment complex, that has been assigned a large solid waste container shared by multiple residential units for garbage collection only. 9. 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. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 2 10. Franchise Agreement means this franchise between the City of College Station and Brannon Industrial Group d/b /a Premier Metal Buyers for provision of recycling collection from multi - family apartment and commercial business locations within the City of College Station; under certain terms and conditions set out herein. 11. Organic Waste means waste of biological origin recovered from the solid waste stream for the purposes of reuse, reclamation, or compost. Organic Waste is not solid waste, unless it is abandoned or disposed rather than reprocessed into another product. 12. Recyclables or Recyclable Commodities means materials recovered from the solid waste stream for reuse or reclamation, a substantial portion of which are 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. 13. Residue means the material regularly associated with and attached to recyclable commodities, as a part of the original packaging or use of that commodity, that is not recyclable itself. 14. Roll - Off means a container of varying capacity used for refuse collection. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 3 ARTICLE lI GRANT OF NON EXCLUSIVE FRANCHISE 1. Nothing in this Franchise shall be construed as granting an exclusive franchise or right. City hereby grants Contractor a non - exclusive franchise to operate and establish in the City from the effective date of the Agreement, to engage in the business of collecting recyclables from commercial, industrial, and multifamily sites, for the purpose of recycling within the jurisdictional limits of the City. 2. Contractor is 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 services and lawful purpose as stated in this Franchise, 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. ARTICLE III DISPOSAL SITE TO BE USED Unless approved otherwise in writing by City, Contractor shall utilize BVSWMA, Inc. landfill for the disposal of all non - recyclable waste material collected by Contractor within the corporate limits of the City. Contractor will only use a City- approved recycling facility for processing all recyclable material collected by Contractor within the corporate limits of the City under this Franchise Agreement. Contractor shall not dispose of any Class 1 Waste at the BVSWMA, Inc. landfill. ARTICLE IV RATES TO BE CHARGED BY PREMIER METAL BUYERS Attached hereto as Exhibit "A" and incorporated herein by reference is the Schedule of Base Rates, which Contractor shall charge for the aforementioned services. The Contractor shall notify the City in writing at least 30 days before making any rate changes. ARTICLE V PAYMENTS TO CITY 1. For and in consideration of the grant of the franchise herein, Contractor agrees and will pay during the term of this Franchise, a sum based on the following graduated fee schedule depending on the percentage of aggregate recycling accomplished. a. A fee is required, equivalent to five percent (5 %) of Contractor's monthly gross revenues, delivery revenues, and hauling revenues; including rates as described in "Exhibit A ", generated from Contractor's provision of recyclable collection services within the City if Contractor reports aggregate recycling of at least sixty percent (60 %) of recyclables collected. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 4 b. A fee is required equivalent to six and one half percent (6.5 %) of Contractor's monthly gross revenues, delivery revenues, and hauling revenues; including rates as described in "Exhibit A ", generated from Contractor's provision of recyclable collection services within the City if Contractor reports aggregate recycling of at least fifty -five percent (55 %) but less than sixty percent (60 %) of recyclables collected. c. A fee is required equivalent to eight percent (8 %) of Contractor's monthly gross revenues, delivery revenues, and hauling revenues; including rates as described in "Exhibit A ", generated from Contractor's provision of recyclable collection services within the City if Contractor reports aggregate recycling less than fifty - five percent (55 %) of recyclables collected. 2. Any revenue received by Contractor is subject to the franchise fee and shall be computed into Contractor's monthly gross revenues, delivery revenues, hauling revenues, and rates as described in "Exhibit A ". Payment will be paid quarterly to the City, and shall be due by the twentieth day (20 of the month following the end of the previous calendar quarter. Payment after that date shall incur a ten percent (10 %) late fee on the outstanding account balance under this Article V. 3. 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 XIV of this Franchise Agreement (FAILURE TO PERFORM). ARTICLE VI ACCESS TO RECORDS & REPORTING City shall have the right, upon reasonable notice and during normal business hours, to inspect Contractor's records, billing records of customers served by Contractor, and all papers relating to the operation of recyclable collection and disposal within the City. Contractor shall cooperate with City to allow the inspections. Along with the payment to the City of the City's agreed share of revenue from the monthly gross revenues, delivery revenues, and hauling revenues from collection of recyclables and rates as described in "Exhibit A ", Contractor shall provide a Monthly Activity Report due to the City no later than the twentieth (20 calendar day of each month, summarizing collection activity for the previous calendar month. Contractor's report shall include the following information: 1. Total tonnage of all materials collected from all customers, broken down by material type. 2. Total tonnage of all materials collected from all customers from within the City, broken down by material type. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 5 3. Reports of all complaints and investigations received/ action taken by Contractor, and results or final disposition of complaint and investigation. 4. A report of all Contractor accounts served and monthly revenue derived from the provision of collecting recyclables in the City under terms of this franchise. The reports will include customer's address, frequency of pick -up, size of container, type of container, and monthly charges. 5. Such information concerning the business of collection, processing and marketing of recyclable materials as may be required by the City's representative. ARTICLE VII PLACEMENT OF ROLL -OFFS, COMPACTORS, AND CONTAINERS 1. All roll - off(s), compactor(s), and container(s) 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 roll - off(s), compactor(s), or container(s) 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(s), compactor(s), or container(s) placed in service in the City. 2. Recycling collection shall not interfere with the City's collection of municipal solid waste. 3. Under no circumstances shall contractor place roll - off(s), compactor(s), or container(s) in existing enclosures designated for City roll - off(s), compactor(s), and container(s). ARTICLE VIII CONTAINER AND EQUIPMENT MAINTENANCE 1. 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. All equipment necessary for the performance of this franchise shall be in good condition and repair. 2. Contractor agrees to paint and properly maintain in a safe, clean, and sanitary condition, all roll - off(s), compactor(s), or container(s) placed out for service within the City. Recycling roll - off(s), compactor(s), and container(s) must be clearly marked as used for "Recyclables Only" in letters at least twelve inches (12 ") in height on the sides of the roll -off container(s), compactor(s), or container(s). 3. All vehicles used by Contractor in the removal of recyclables must 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 stand -by vehicle shall always be available. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 6 ARTICLE IX COMPLAINTS REGARDING SERVICE /SPILLAGE Contractor shall handle directly any complaints pertaining to customer service, property damage or personal injury from their collection service. Any complaints received by City shall be forwarded to Contractor within twenty -four (24) hours of receipt by City. Contractor shall respond to all complaints within twenty -four (24) hours of receiving notice of complaint from City, shall resolve 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 $100.00 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 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. 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 non - exclusive. ARTICLE XII OWNERSHIP OF MATERIALS Sole and exclusive title to all recyclables collected by Contractor under this Franchise Agreement will pass to Contractor when the debris is placed on Contractor's truck. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 7 ARTICLE XIII CITY SERVICE Contractor agrees to provide free service to City following natural disasters or acts of God. ARTICLE XIV 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 have an opportunity to answer all allegations for the termination set forth in the notice. In the event the Council determines 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. ARTICLE XV 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 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 party, 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 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 with operation of Contractor's recycling business under this franchise and disposal or resale of the recyclable waste collected by it, 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 Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 8 hereinabove is intended 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; or 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. ARTICLE XVI 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 endorsed to name the City as additional insured. Contractor's insurance shall be primary 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. 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 authorized to do business in the State of Texas will be accepted. 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. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 9 4. Coverage shall not be suspended, voided, canceled, reduced in coverage or in limits of liability, except after thirty (30) days prior written notice has been given to the City of College Station. 5. In the event of a claim and upon request, Contractor shall furnish copies of all insurance policies to the City of College Station. 6. The City of College Station, its officials, employees and volunteers, are to be named as "Additional Insured" on the Commercial General and Business 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 "A: VIII" or better rating in accordance with the current A. M. 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 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. 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 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 Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 10 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 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 is 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, Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 11 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. 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, of 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 project; Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 12 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; 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. f. 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 authorized to do business in the State of Texas. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 13 2. The insurance policies provided by the insurance company are underwritten on forms provided by the Texas State Board of Insurance or ISO. 3. All endorsements and insurance coverages according to requirements and instructions contained herein. 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 XVII 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 XVIII 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 safety precautions are part of the collection techniques for which Contractor is solely responsible. In carrying on 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 every owner of property abutting the residential property on which the container is located, for all damages or injuries caused by any act or omission of Contractor or of any of its subcontractors or employees in the operation of the Contractor service, ARTICLE XIX AD VALOREM TAXES Contractor agrees to render all personal property utilized in its solid waste operation services to Brazos County Appraisal District so said personal property will be the subject of ad valorem taxation for the benefit of City. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 14 ARTICLE XX 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: Recycling Coordinator Mike Brannon City of College Station Owner P.O. Box 9960 Brannon Industrial Group College Station, Texas 77842 8408 Quebe Rd Brenham, Texas 77833 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 XXI PENALTY Any person, firm or corporation violating any provision of this ordinance shall receive a citation and fine not to exceed $2,000.00 for each offense, and each and every day said violation continues constitutes a separate offense. ARTICLE XXII 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 XXIII 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. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 15 ARTICLE XXIV 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 is 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. ARTICLE XXV 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 deliver 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 g. 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 this 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 allegations for the termination set forth in the notice. In the event the Council determines 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. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 16 ARTICLE XXVI 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 gi ct PG IS ra v► he , acting by and through its undersigned who is acting within his or her 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 for in Ordinance No. (the "Ordinance "). agrees to be bound and governed by the terms, provision and condition of the Ordinance, to accept and to give the benefits provided for in the Ordinance in a businesslike and reasonable manner and in c . : • -- • s • e Ordinance. By: Name: a ke gran Title: 1�res,o4n'r Date: 1//0 %3 By accepting this Agreement, Contractor represents 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; and the general and local conditions and all other matters that in any way affect the work to be performed under this Agreement. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 17 ARTICLE XXVII 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. First Consideration & Approval on the 7 /' day 2 � da of J Q,I'l liar[,( 2013 Second Consideration & Approval on the / fi " day of -.4pa72/.16i1 y 2013 BRANNON INDUSTRIAL GROUP CITY OF COLLEGE STATION d/b /a Premier Metal Buyers C By: �t� By: ii /, &&QI Mayor ,. Printed Name: & ?kc apt Date: z � 1 - 1 ") Title: ge 5 I Date: / // % ATTEST: City Sec Date: 4 APPROVED: _ ,....0,, ? ... -. City Man a Date: X11 fr..? l C ty Attorney Date: / - / /" t "C' Exe ti Dir. Business Services Dat . i - -i (r- Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 18 • EXHIBIT "A" SCHEDULE OF BASE RATES 20 yd $275/ Haul $27 /ton Disposal + any additional landfill fees $3.25 /day rental 25 yd $275 /Haul $27 /ton Disposal+ any additional landfill fees $3.40 /day rental 30yd $275 /Haul $27 /ton disposal+ any additional landfill fees $3.55 /day rental 40yd $300 /Haul $27 /ton Disposal+ any additional landfill fees $3.75 /day Rental Fuel surcharge can be added if diesel prices continue to go up. Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for 1 Multifamily & Commercial Recycling 19 EXHIBIT "B" CERTIFICATES OF INSURANCE AND ENDORSEMENTS Brannon Industrial Group. d/b /a Premier Metal Buyers Franchise Agreement for Multifamily & Commercial Recycling 20 PREMI -3 OP ID: SK ,a�oRa CERTIFICATE OF LIABILITY INSURANCE D 01/11/20 ) THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE HOLDER. THIS CERTIFICATE DOES NOT AFFIRMATIVELY OR NEGATIVELY AMEND, EXTEND OR ALTER THE COVERAGE AFFORDED BY THE POLICIES BELOW. THIS CERTIFICATE OF INSURANCE DOES NOT CONSTITUTE A CONTRACT BETWEEN THE ISSUING INSURER(S), AUTHORIZED REPRESENTATIVE OR PRODUCER, AND THE CERTIFICATE HOLDER. IMPORTANT: If the certificate holder is an ADDITIONAL INSURED, the policy(Ies) must be endorsed. If SUBROGATION IS WAIVED, subject to the terms and conditions of the policy, certain policies may require an endorsement A statement on this certificate does not confer rights to the certificate holder in lieu of such endorsement(s). PRODUCER Phone: 979- 251 -7771 _ =TACT Washington County Ins. Agcy. Fax: weONNo -Ent: FAX , F AX 2544 Ryan St. Brenham, TX 77833 E -MAIL Jeffrey Martin Neal ADDRESS: _ INSURER(S) AFFORDING COVERAGE NAM M INSURER A: Catlin Insurance Co. INSURED Premier Metal LLC INSURER B: Hallmark County Mutual _ 1555 Hwy 36 N INSURER C : Century Surety Co 36951 Brenham, TX 77833 INSURER D: Texas Mutual Insurance Company 22945 INSURER E: Alterra America Insurance Co INSURER F : COVERAGES CERTIFICATE NUMBER: REVISION NUMBER: THIS IS TO CERTIFY THAT THE POLICIES OF INSURANCE LISTED BELOW HAVE BEEN ISSUED TO THE INSURED NAMED ABOVE FOR THE POLICY PERIOD INDICATED. NOTWITHSTANDING ANY REQUIREMENT, TERM OR CONDITION 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 TERMS, EXCLUSIONS AND CONDITIONS OF SUCH POLICIES. LIMITS SHOWN MAY HAVE BEEN REDUCED BY PAID CLAIMS. INSR ADOL SUER POLICY EFF POLICY EXP LIMITS LTR TYPE OF INSURANCE INSR WVD POLICY NUMBER (MMIDDIYYYY), (M DI MIDYYYY) GENERAL LIABILITY EACH OCCURRENCE $ 1,000,000 _ 4201300423 05!1712012 05!1712013 DAMAGE TO RENTED 100,000 A X COMMERCIAL GENERAL LIABILITY PREMISE$ (Ea occurcenca) i CLAIMS -MADE X OCCUR _MED EXP (Any one person) i 5,000 PERSONAL & ADV INJURY i 1,000,000 GENERAL AGGREGATE $ 2,000,000 GENL AGGREGATE LIMIT APPLIES PER PRODUCTS - COMPIOP AGG S 2,000,000 1 POLICY n !WA: r- LOC $ AUTOMOBILE LIABILITY (Ea COMBINE aoaAeDISINGLE LIMIT $ 1,000,000 B ANY AUTO TXA506252 -02 05/17/2012 05/17/2013 00DILY INJURY (Per person) $ ALL OWNED X SCHEDULED BODILY INJURY (Per accident) $ X AUTOS X NON -OWNED PROPERTY DAMAGE $ AUTOS (Per accident) i $ UMBRELLA LIAB X OCCUR EACH OCCURRENCE S 1,000,000 C EXCESS LAB CLAIMS -MADE CCP765603 05/17/2012 05/17/2013 AGGREGATE S 1,000,000 DED 1 1 RETENTION $ $ WORKERS COMPENSATION X WC STATU- I I OTH- AND EMPLOYERS' LIABILITY Y LIMITS I ER D ANY PROPRIETOR/PARTNER /EXECUTIVE YIN N TSF0001220525 02/03/2012 02/03/2013 E.L. EACH ACCIDENT $ 1,000,000 OFFICER /MEMBER EXCLUDED? 1 000,000 (Mandatory in NH) E.L. DISEASE - EA EMPLOYEE $ i If yes, describe under EL DISEASE - POLICY LIMIT $ 1,000,000 DESCRIPTION OF OPERATIONS below E.L. . E Inland Marine MAXA5IM0048180 05/17/2012 05/17/2013 Leased 500,000 I DESCRIPTION OF OPERATIONS 1 LOCATIONS I VEHICLES (Attach ACORD 101, Additional Remarks Schedule, if more space is required) The certificate holder is listed as additional insured and in favor of waiver of subrogation with respect to the above polices which are primary and non - contributory with a 30 day written notice to the certificate holder before cancellation, non - renewal or reduction in limits of liability except for non - payment which is a 10 day notice. CERTIFICATE HOLDER _ CANCELLATION SHOULD ANY OF THE ABOVE DESCRIBED POLICIES BE CANCELLED BEFORE THE EXPIRATION DATE THEREOF, NOTICE WILL BE DELIVERED IN City of College Station ACCORDANCE WITH THE POLICY PROVISIONS. Risk Management P 0 Box 9960 AUTHORIZED REPRESENTATIVE College Station, TX 77842 Jeffrey Martin Neal Neva AI. i ©1988 -2010 ACORD CORPORATION. All rights reserved. ACORD 25 (2010/05) The ACORD name and logo are registered marks of ACORD 1 PREMI -3 PAGE 2 NOTEPAD INSURED'SNAME Premier Metal LLC OP ID: SK DATE 01/11/13 Brannon Industrial Group LLC dba Premier Metal Buyers and Budget Rolloffs are owned by Mike Brannon and Blake Brannon. Since same ownership; Budget Rolloffs is covered under Brannon Industrial Group LLC dba Premier Metal Buyers workers compensation policy.