HomeMy WebLinkAbout2005-2826 - Ordinance - 08/22/2005
ORDINANCE NO.
2826
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,
FOURPLEX, AND HANDICAP 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 INV ALIDITY.
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 XI 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:
I.
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.
2826
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
meanmg.
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.
City 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 of recyclable commodities.
Brazos Valley Solid Waste Management Agency or BVSWMA means a permitted
municipal solid waste facility jointly owned 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. The used bags must be recycled.
City's Representative shall mean the Director of Public Works of the City of College
Station or his designated appointee.
Ordinance No.
2826
Page 3
Collection shall mean the scheduled aggregation of recyclables by CONTRACTOR
according to the terms governing scheduling contained in this Agreement.
"Contaminated" 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.
Recyclables 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.
T.c.E.Q. means Texas Commission for Environmental Quality.
Ordinance No.
?R?n
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
governing 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 ofthis 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 TCEQ.
Ordinance No.
2826
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.
V.
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.C.E.Q.-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 Two dollars and
Fifteen cents ($2.15) 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.
2826
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.
2826
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
(113) 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 of recyclables 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.
2826
Page 8
1.
The amounts of recyclable commodities collected, broken down according to date,
route and type of material.
2.
Summaries of tonnage of all recyclable commodities collected, broken down by
type of material.
3.
Summaries of tonnage of all recyclable commodities sold, broken down by type of
material.
4.
Market price for each type of material collected and/or sold.
5.
Reports of all complaints and investigations concerning the CONTRACTOR and
actions taken by CONTRACTOR in response thereto.
6.
A listing of monthly revenue derived from recyclables collected in the CITY
under the terms of this Agreement.
7.
Such information concerning the business of collection, processing and marketing
of recyclable materials as may be required by the CITY's Representative.
8.
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.C.E.Q.
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
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2826
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.
X.
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 Works. 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 ofthe 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.
2826
Page 10
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 must tag all bags not collected
during the route and mark the reason the bag is not accepted. Tags will be provided by the CITY.
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 CITY designated 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.
Ordinance No.
2826
Page 11
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
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. A holiday
schedule shall be provided six (6) to nine (9) months in advance by the Contractor to the City in
order to determine what days the Contractor will observe and not provide the collection services.
A scheduled route shall not be missed more than one (1) week in a row.
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. If there is a problem with
the recyclable commodities placed out for collection, the CONTRACTOR shall notify the
customer about the problem by leaving a door tag indicating the problem. 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.
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Page 12
Ordinance No.
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.
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. All 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. Only labeled vehicles shall collect in designated routes.
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. The appearance of recycling
collection service equipment and personnel is important to the City of College Station in that
they are seen on a daily basis by the customers and citizens of the City.
The collection service personnel should be in some type of City approved uniform to
include, at a minimum, matching shirts with blue jeans or other standard.
XVII.
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
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2826
Page 13
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:
1.
Failure to pay the fees prescribed by Article 8 and Article 17.
2.
Failure to materially provide the services provided for in this Franchise
3.
Material misrepresentation of fact in the application for or negotiation of this
Franchise;
4.
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;
5.
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 TCEQ;
7.
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
Ordinance No.
2826
Page 14
setoff until the exact amount of damages due the CITY from the CONTRACTOR is determined
and paid.
XVIII.
NON-EXCLUSIVITY OF THE FRANCHISE
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.
XX.
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
Ordinance No.
2826
Page 15
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.
XXI.
RELEASE AND IND EMNIFI CA TI 0 N
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.
Ordinance No.
2826
Page 16
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
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
1.
2.
3.
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.
2.
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
Ordinance No.
2826
Page 17
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.
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.
8.
Upon request, certified copies of all insurance policies shall be furnished
to the CITY.
C.
CONTRACTOR GENERAL LIABILITY
1. Minimum Combined Single Limit of $1 ,000,000 per occurrence for Bodily
Injury and Property Damage.
2.
number CG 00 01.
Coverage shall be at least as broad as Insurance Service's Office form
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 0301 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.
Ordinance No.
2826
Page 18
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
NY, ND, OH, W A, WV, WY.
F.
CERTIFICATES OF INSURANCE
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:
a.
The company is licensed and admitted to do business in the State
of Texas.
b.
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.
c.
Sets forth all endorsements as required above and msurance
coverages as previously set forth herein.
d.
Shall specifically set forth the notice of cancellation, termination,
or change in coverage provisions to the City of College Station.
e.
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.
2826
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 written notice of a change of address is given, shall be
sent to the parties at the addresses following:
CITY:
City Manager
City of College Station
P.O. Box 9960
College Station, Texas 77842
CONTRACTOR:
Texas Commercial Waste
PO 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.
2826
Page 20
XXVIlI.
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.
XXX.
TERM OF AGREEMENT
The term of this Agreement shall be for a period beginning on October 1, 2005 and
ending on September 30,2010.
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.
2826
Page 21
Attn: Public Works Director
Texas Commercial Waste acting by and through its
undersigned General Manager who is acting with his official
capacity and authority, hereby accepts the franchise to operate a medical waste
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.
Name:
Title:
Date:
By: 4-
Ron Schmidt
General Manager
July 12,2005
---
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.
XXXII.
CONTRACTOR'S DILIGENCE AND CARE
CONTRACTOR shall use reasonable care and diligence in executing its obligations
under this Agreement.
XXXIII.
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.
2826
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
Ordinance No.
2826
Page 23
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 2004), 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 22nd. day of August , A.D.
BY:
Date:
ATTEST:
APPROVED:
Q fA'
- ~. it
Ro Ilvla, Mayor
Connie Hooks, City Secretary
APPROVED:
~~ 4 I(?~Þt
City Attorney:
First Consideration & Approval:
July 28. 2005
Second Consideration & Approval:
August 8, 2005
Third Consideration & Approval:
August 22,2005
Addendum A
ALUMINUM USED BEVERAGE-CANS (UBC)
The Domestic Aluminum Producers price / AMM 2nd issue100
CLEARGLASS (SORTED) -.0050 fixed/lb
term of contract
BROWN-GLASS (SORTED) -.0050 fixed/lb
term of contract
NEWSPAPERS WIlli AD SLICKS (ONP)
AND MAGAZINES (OMG) (COMMINGLED)
High side of S.W.-Yellow Sheet #6 - 2nd issue
STEEL FOOD CANS (TIN CANS) .0050 fixed/lb
term of contract
. PLASTIC BOTTLES SPI CODE 1 (pET) (SODA LITER)
.030 fixed/lb - term of contract
PLASTIC BOITLES SPI CODE 2 (HDPE)
- (MILK/WATERJUGS) .050 fixed/lb
term of contract
OPTIONAL COMMODITIES: May be added if rontractor has secure market.
Residential Recycling Collection
LEAD- ACID BATTERIES
0
PLASTIC SPI CODE 2 (HDPE) PIGMENTED
IllGH DENSl1Y POL YE11IYLENE
CARDBOARD (OCC) see option
EMPTY STEEL AEROSO-UP AINT
CONTAINERS
OTIIER (SPECIFY):
RFP 05-68
66
%
%
100
%
75
%
100
%
100
%
100
%
%
_NO BID
% ~NOBID
% NO BID
% ~NOBID
% ~NOBID
NOTE: A bid of 0% indicates that the commodity will be collected and has a secure market but
not a significant value.
TARC
Project tiJne..line
TABD
Project design and methodology inc"luding technicäl approach and tmderstanding
of the scope of the project.
TABE
References
TABF
Certification, acknowledgement of any Addenda issued and a statement of
willingness to sign the City's Standard Form of Agreement.
OPTIONAL RECYCLING OF OCC
Texas Commercial Waste wiD place and maintain a downstroke baler at a drop off site to be detennine<J
by the City CODege Station at no charge for the exdusive right to market the (OCC) old corrugated
containers collected at this site~
The City of College Station l'équiremer1ts would be to:
1) Provid~ ø ~1J~ble. mQunting éJllQ ptö~ssing p~d..
2) Provide the labor for sorting and baling. '
3) Provide appropriate electricity to the site.
4) Purchase baling wire as needed.
Texas Commercial Waste would pick up the baled OCC on a scheduled basis, paying the City of College
Station 500Á! of the highside of the Official Board Markets .yellow sheet" for the material.
This program is similar to the service we provide the City of Bryan. Red Oak Apparal and many other
jocaì businesses.
Addendum B
ALUMINUM USED -BEVERAGE -CANS (VB C)
The Domestic Aluminum Producers price / AMM 2nd issue100
CLEAR GLASS (SORTED) - .0050 fixed/lb
term of contract
ßRûWN-GLASS (SORTED) -.0050 fixed/lb
term of contract
NEWSPAPERS WI1H AD SLICKS (ONP)
AND MAGAZINES (OMG) (COMMINGLED)
High side of S.W.-Yellow Sheet #6 - 2nd issue
STEEL FOOD CANS (fIN CANS) .0050 fixed/lb
term of contract
' PLASTIC BOTTLES SPI CODE 1 (PET) (SODA UTER)
.030 fixed/lb - term of contract
PLASTIC BOITLES SPI CODE 2 (HDPE)
.... (MILK/WATERJUGS) .050 fixed/lb
term of contract
OPTIONAL COMMODITIES: May be added if contractor has secure market.
Residential Recycling Collection
LEAD- ACID BATTERIES
PLASTIC SPI eODE 2 (HDPE) PIGMENTED
IDGH DENSI1Y POL YE1HYLENE
0
CARDBOARD (Oee) see option
EMPTY STEEL AEROSOUP AINT
eo NT AINERS
OlHER (SPECIFY):
RFP 05-68
66
%
%
100
%
75
%
100
%
100
%
100
%
% _NO BID.
% ~NOBID
% _NOBID
% ~NOBID
% ~NOBID
NOTE: A bid of 0% indicates that the commodity will be collected and has a secure market but
not a significant value.
TABC
PrQject time-line
TABD
Project design and methodology including technical approaèh and Wlderstanding
of the scope of the project.
TABE
References
TABF
Certification, acknowledgement of any Addenda issued and a statement of
willingness to sign the City's Standard Fonn of Agreement.
OPTIONAL RECYCLING OF OCC
Texas Commercial Waste wiD place and maintain a downstroke baler at a drop off site to be determin~
by the City COllege Station at no charge for the exdusive right to market the (acG) old COITUgated
containers collected at this site~
The City of College Station réquiremertts would be to:
1) PrPVid~ ~ ~î.l~bJê. ttiQUtiting ~tit1 Þtti~$$ing ~~q.
2) Provide the labor for sortingahdbaling. '
3) Provide appropriate electricity to the site.
4) Purchase bali~ wire as needed.
Texas Commercial Waste would pick up the baled OCC on a scheduled basis, paying the City of College
Station 50% of the highside of the Official Board Markets .yellow sheet" for the material.
This program is similar to the service we provide the City of Bryan, Red Oak Apparal and many other
Jocai businesses. .
P.O, BOX 645
BRYAN, TEXAS 77806
(979) 775-7171 FAX (979) 778-4661
City of College Station
P. O. Box 9960
College Station, Texas 77842
Attn: Glenn Brown, City Manager
RE:
Texas Commercial Waste Franchise Agreement
Texas Commercial Waste acting by and through its undersigned General
Manager who is acting with his official capacity and authority, hereby accepts the
franchise to provide recyclable commodities collection service within the City of
College Station, Texas ("College Station") as said franchise is set forth and
provided in Ordinance No. 2826 (the "Ordinance"). Texas Commercial Waste
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.
1.'
/
By: --k1
Name: Ron Schmidt
Title: General ManaQer
Date: ,-/5- o~-