From
Patricia D. B. Redfearn, Ph.D.
Title
Second reading and adoption of an ordinance modifying the solid waste collection franchise agreement with Republic Waste Services of Texas Ltd., dba Republic Services of Arlington to include a $0.25 rate increase to residential service, per household, per month, a 7.25% increase to commercial service and a 3.5% increase to roll-off customers
Presenter
James R. Cummings, Environmental Services Director
Recommended Action
Approve
Analysis
Since 1962, the company currently doing business as Republic Services of Arlington has provided solid waste collection services for the City of Grand Prairie. Throughout the years, Republic Waste Services has consistently provided efficient waste removal services. The current franchise agreement between Republic Waste Services and the City allows a once per year request for a rate increase provided that it can be justified by the Director of Finance. The proposed franchise agreement modification will allow for a $0.25 increase to residential collection service, per household, per month, a 7.25% increase to commercial service collected in 2, 4, and 8 yard dumpsters commercial bags and a 3.5% increase to materials collected in roll-off containers or compactors.
Financial Consideration
Funding for the increase for both residential and commercial solid waste customers is in the FY 2018/2019 Proposed Solid Waste Operating Fund Budget.
Body
AN ORDINANCE OF THE CITY OF GRAND PRAIRIE, TEXAS, APPROVING A TEN-YEAR FRANCHISE AGREEMENT BETWEEN THE CITY OF GRAND PRAIRIE (CITY) AND REPUBLIC WASTE SERVICES OF TEXAS LTD., DOING BUSINESS AS REPUBLIC SERVICES OF ARLINGTON (FRANCHISEE) TO INCLUDE A FIVE-YEAR RENEWAL OPTION; TO INCLUDE A $0.25 PER HOUSEHOLD RATE INCREASE TO THE RESIDENTIAL SOLID WASTE RATE, PER HOUSEHOLD, PER MONTH, A 7.25% INCREASE TO COMMERCIAL WASTE COLLECTED IN 2, 4, OR 8 CUBIC YARD CONTAINERS OR COMMERCIAL BAGS AND A 3.5% INCREASE TO WASTE COLLECTED IN ROLL-OFF CONTAINERS OR COMPACTORS
WHEREAS, the FRANCHISEE submitted a proposal to provide Solid Waste collection and disposal within the CITY, and to perform such work as may be incidental thereto;
WHEREAS, it is necessary for the CITY to promote, preserve and protect the public health of its citizens; and
WHEREAS, the CITY has determined that the proposal submitted by FRANCHISEE is in the best interest of the CITY.
NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF GRAND PRAIRIE, TEXAS:
THAT the City of Grand Prairie City Council grants a franchise to Republic Waste Services of Texas Ltd., doing business as Republic Services of Arlington for the following services:
SECTION 1. The FRANCHISEE agrees to furnish all personnel, labor, equipment, trucks and other items necessary to provide Solid Waste collection and disposal for residential, commercial and industrial customers and recyclable materials collection and processing and to perform all of the work called for and described in the FRANCHISE documents.
SECTION 2. The FRANCHISE shall include the following documents which are incorporated herein by reference as if set forth verbatim in this FRANCHISE:
A. FRANCHISE TERMS
B. Performance bond
C. FRANCHISEE'S RATE SHEET
SECTION 3. All provisions of the FRANCHISE documents shall be strictly complied with by the FRANCHISEE, and no amendment to this FRANCHISE shall be made except upon the mutual written consent of the parties. No amendment shall be construed to release either party from any obligation of the FRANCHISE except as specifically provided in such amendment.
SECTION 4. The FRANCHISEE shall keep in full force and effect throughout the term of this FRANCHISE insurance in the amounts and types specified in and required herein.
SECTION 5. This FRANCHISE shall be binding on and inure to the benefit of the parties to it and their respective heirs, executors, administrators, legal representatives, successors, and assigns. This FRANCHISE may be assigned with the express written consent of the CITY, which consent shall not be unreasonably withheld. In the event of assignment, the assignee shall expressly assume the liability and obligations of the FRANCHISEE.
SECTION 6. Any notices required or permitted to be delivered under this FRANCHISE shall be deemed receivable when sent by United States mail, postage pre-paid, certified mail, return receipt requested, addressed to the party at the address set forth opposite the signature of the party.
SECTION 7. This FRANCHISE is the entire between the parties with the respect to the subject matter covered in this FRANCHISE. There is no other collateral, oral or written agreement between the parties that in any matter relates to the subject matter of this FRANCHISE, except as provided in the FRANCHISE documents. This FRANCHISE supersedes in its entirety any other written or oral agreements entered into between the parties with respect to the subject matter of this FRANCHISE.
SECTION 8. The validity of this FRANCHISE and any of its terms and provisions, as well as the rights and obligations of the parties, shall be governed by the laws of the State of Texas; and the venue for any action concerning this FRANCHISE shall be in the state District Court of Dallas County, Texas.
SECTION 9. This FRANCHISE may be amended by the mutual written agreement of the parties.
SECTION 10. In the event any one or more of the provisions contained in this FRANCHISE shall be held to be invalid, illegal, or unenforceable for any reason, such invalidity, illegality, or unenforceability shall not affect other provisions, and the FRANCHISE shall be construed as if such invalid, illegal, or unenforceable provision had never been contained in it.
SECTION 11. The FRANCHISE documents described herein are hereby incorporated by reference as if recited verbatim.
SECTION 12. The term of this FRANCHISE shall be for a period of ten (10) years. The CITY and FRANCHISEE may, upon mutual agreement, renew this FRANCHISE for an additional five (5) years beginning at the end of the initial term. Notwithstanding the above provisions, the CITY may terminate this FRANCHISE during any term hereof if, without prior written approval from the CITY, there is a substantial change in ownership and management of the FRANCHISEE.
SECTION 13. This FRANCHISE is made subject to the existing provisions of the Charter of the City of Grand Prairie, its rules, regulations, procedures and ordinances, present and future, and applicable laws of the State of Texas and the United States of America.
SECTION 14. The FRANCHISEE and the CITY expressly covenant and agree that in the event of any litigation arising between the parties to this FRANCHISE, each party shall be solely responsible for payment of its attorneys and that in no event shall either party be responsible for the other party's attorney fees regardless of the outcome of the litigation.
SECTION 15. FRANCHISEE shall be granted a franchise and permit for the use of public streets, alleys and thoroughfares to provide refuse collection, removal and disposal services and recycling collection for the residential, commercial and industrial units within the corporate limits of the CITY in compliance with the ordinances and regulations of the CITY and as specified and described in the FRANCHISE.
SECTION 16. The FRANCHISEE shall provide, in a good workmanlike manner, the services called for and described herein which shall consist of all supervision, equipment, labor, and all other items necessary to provide the CITY with complete refuse and recycling collection, removal and disposal and to complete said work in accordance with FRANCHISE documents and as defined in Chapter 26 "Garbage Collection and Disposal" of the Code of the City of Grand Prairie, Texas (the "Code"). In the event of any modification or addition to the Code that impacts the economics of this FRANCHISE to FRANCHISEE, the parties hereto agree to endeavor to negotiate an amendment to this FRANCHISE in order to reasonably preserve the economics of this FRANCHISE to FRANCHISEE:
SECTION 17. The following terms shall have the meanings set forth below unless the context indicates otherwise.
Appliances - Stoves, refrigerators, freezers, water heaters, washing machines, dryers, microwaves, etc.
Bags: Plastic sacks designed to store refuse with sufficient wall strength to maintain physical integrity when lifted by the top. Total weight of a bag and its contents shall not exceed fifty (50) pounds and may not be blue or red in color.
Bags (Recycling): Clear, blue plastic sacks for the collection of aluminum cans, steel cans, plastic bottles, and glass jars and bottles.
Bin (Commercial/Industrial): Metal receptacles designed to be lifted and emptied mechanically for use only at Commercial and Industrial Units.
Bin (Residential Recycling): A plastic receptacle designed for the purpose of curbside collection of recyclable materials usually with a capacity of 18 to 20 gallons.
Brush: Tree and shrub trimmings, which are cut in lengths not to exceed six (6) foot in length, and tied into bundles not to exceed fifty (50) pounds per bundle.
Bulky Waste: Garbage, refuse, or trash of such size and quantity that it cannot be collected in a normal residential waste collection container. Bulky waste includes, but is not limited to furniture, mattresses, appliances, and fencing materials.
CFC unit: Appliances such as refrigerators, freezers or air conditioners that contain cooling gases known as chlorofluorocarbons which, if released into the atmosphere, would cause harm.
City Refuse: Any Solid Waste generated by a facility owned and operated by the CITY in the exercise of its customary services and duties that can be collected on a regular collection route of the FRANCHISEE'S as established hereunder. This shall include solid waste, which accumulates in City parks resulting from normal patron activity, but shall exclude green wastes including brush and leaves. This shall not include special wastes, wastes resulting from special events or other waste volumes produced outside the scope of normal facility type waste. City Refuse shall also exclude wastes from city owned facilities where the City owns and operates the facilities and charges fees for services or rental fees. (i.e. hotels, convention centers, etc.). However, solid waste, except construction waste generated from remodeling or renovation activities, from the Ruthe Jackson Center "RJC" shall be City Refuse. Construction waste generated from remodeling or renovation activities at the RJC shall be subject to the city haul rate.
Commercial Bag Customer: A retail or light commercial type of business, which generates no more than one (1) cubic yard of refuse per week.
Customer: An occupant of a residential, commercial or industrial unit who generates refuse.
Debris: Dirt, concrete, rocks, bricks, or other waste building materials.
Fencing Materials- Wooden fencing panels that have been cut in half (four feet 4', X six feet 6'), or fence pickets that have been cut into lengths not to exceed six (6) foot in length, and tied into bundles not to exceed fifty (50) pounds per bundle.
Garbage: Solid waste consisting of putrescible animal and vegetable waste materials resulting from the handling, preparation, cooking, and consumption of food, including waste materials from markets, storage facilities, handling, and sale of produce and other food products.
Hazardous Waste: solid wastes regulated as hazardous under the Resource Conservation and Recovery Act, 42 U.S.C. Section 6903, et seq., or regulated as toxic under the Toxic Substances Control Act, 15
U.S.C.A. Section 2601 et seq., regulations promulgated there under or applicable state law concerning the regulation of hazardous or toxic wastes.
Landfill (Sanitary): the controlled area of land owned or operated by the city upon which municipal solid waste is placed for disposal in accordance with standards, rules, regulations or orders established by federal, state and local governmental agencies.
Landfill Prohibited Waste Materials: Non-hazardous materials prohibited from disposal at Type I landfills pursuant to TCEQ regulations, 30 TAC, Section 330.5. Prohibited waste materials include but are not limited to tires, used oil filters, PCBs, friable and non-friable asbestos.
Premises: all public and private establishments, including individual residences, all multi-family dwellings, residential care facilities, hospitals, schools, businesses, other buildings, and all vacant lots.
Recyclable Materials: materials that are diverted from the waste stream, processed and treated so that they can be used again. Commonly recycled materials include aluminum, paper, steel, plastics and glass.
Refuse: all trash other than garbage, recyclables, debris and brush including residential trash and yard trash.
Rubbish: Nonputrescible solid waste (excluding ashes), consisting of both combustible and noncombustible waste materials. Combustible rubbish includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, or similar materials; noncombustible rubbish includes glass, crockery, tin cans, aluminum cans, metal furniture, and similar materials that will not burn at ordinary incinerator temperatures (1,600 degrees Fahrenheit to 1,800 degrees Fahrenheit).
Special Waste: waste, from a non-residential source, meeting any of the following descriptions: (A) a containerized waste (e.g. a drum, barrel, portable tank, box, pail, etc.) (B) A waste transported in bulk tanker, (C) a liquid waste, (D) a sludge waste, (E) medical or biohazard waste, (F) a waste from a pollution control process, (G) residue and debris from the cleanup of a spill or release of chemical.
Solid Waste: all non-hazardous and non-special solid waste material including unwanted or discarded waste material in a solid or semi-solid waste, including but not limited to garbage, ashes, refuse, rubbish, yard waste (including brush, tree trimmings and Christmas trees), discarded appliances, home furniture and furnishings, provided that such material must be of the type and consistency to be lawfully accepted at the landfill under the applicable federal, state and local laws, regulations and permits governing each. Solid Waste does not include Special Waste or Hazardous Waste.
Yard Waste: Leaves, yard and garden debris, and brush, including clean woody vegetative material not greater than six inches in diameter, which results from landscaping maintenance and land clearing operations. The term does not include grass clippings, stumps, roots, or shrubs with intact root balls.
SECTION 18. Residential Collection: FRANCHISEE shall collect solid waste from the premises of residential accounts held by the CITY a minimum of twice weekly with the minimum of two (2) full days between each, unless otherwise specified. FRANCHISEE agrees to provide CITY with a copy of maps indicating routes used in the collection of waste from all residential customers. The CITY has the right to reject and request modification of routes, and updates of FRANCHISEE routes. The CITY and FRANCHISEE shall work in good faith to establish routing, which meets both the requirements of the CITY and the routing efficiency requirements of the FRANCHISEE.
The City shall have the option to modify the Residential collection as follows:
• Change refuse collection from twice per week bag service to once per week collection in carts;
• Change Bulky Waste and Yard Waste collection from twice per week to once per week; and
• Change Recyclable Material collection from once per week in bins to once per week in carts provided by Contractor.
In the event City does change to cart collection for either Solid Waste or Recycling, CITY and FRANCHISEE agree to negotiate in good faith modifications to this Agreement including but not limited to; terms and provisions necessary to implement and govern the activities related to the aforementioned service changes, rates related to the service changes and any new term or extension to this Agreement. Any modifications to this Agreement must be mutually agreed to by CITY and FRANCHISEE.
Bulky Waste and Yard Waste Collection: The FRANCHISEE shall collect Bulky Waste and Yard Waste from the premises of residential accounts held by the CITY on the same day that regular residential refuse is collected. Bulky Waste and Yard Waste shall be limited to one cubic yard per collection day.
Appliance, Televisions and Computer Monitors Collection: The FRANCHISEE shall collect appliances, televisions and computer monitors from the residential units separately from the regular residential refuse and shall deliver such materials to the Grand Prairie Landfill at a location as designated by the City. Residential customers shall contact the FRANCHISEE to arrange for the collection of appliances, televisions and computer monitors.
Commercial and Industrial Accounts: FRANCHISEE shall collect and remove solid waste from the premises of commercial, institutional and industrial customers according to schedules and for rates prescribed in the Code. Collection service shall at least be once a week or more often to maintain premises free of the accumulations of waste. Collection may be in bags or containers as so designated by CITY. If collection is from a container, that container should be located on a concrete pad to accommodate equipment. The CITY shall be the sole determiner of acceptable dumpster pads, locations and screenings.
FRANCHISEE agrees to provide all labor, supervision, equipment and materials necessary to provide Commercial Bag Customers with an option for curbside collection of recyclable materials. Such program shall be subscription based and only those Commercial Bag Customers who have subscribed to the program will be charged for this service. Curbside recycling services to Commercial Bag Customers shall be provided in accordance with the schedule of Residential Recycling. Commercial Bag Customers shall place recyclable materials in Blue bags or City provided recycling bins. Commercial Bag Customers shall pay a monthly fee equal to the Commercial Hand Recycle Rate as stated in the Code.
SECTION 19. Collection of solid waste from residential premises shall begin no earlier than 7:00 a.m. and shall generally not extend beyond 6:00 p.m. unless authorization is received from the City designated contact. No collection shall be made on Sunday. FRANCHISEE shall dispose of waste within the permitted operating hours of the landfill. Hours may be modified at the direction of the Environmental Services Director.
SECTION 20. The FRANCHISEE may elect to observe any or all of the following holidays by suspension of collection service on the holiday:
New Year's Day, Independence Day, Labor Day, Thanksgiving Day, Christmas Day and Memorial Day
The FRANCHISEE shall issue a news release to local media, and request the city Communications Department place notice on city communication tools, including the city website, city social media and digital marquee signs one week in advance of service cancellation for a holiday. The FRANCHISEE will pick up refuse on the next regularly scheduled day of collection.
SECTION 21. The CITY and the FRANCHISEE both agree that at times weather conditions may make refuse collection impossible. In the event that inclement weather should prevent efficient refuse collection, the FRANCHISEE expressly covenants and agrees to follow the following procedure. The FRANCHISEE shall make a determination whether efficient refuse collection is prevented by inclement weather no later than 8:00 a.m. on each workday. In the event inclement weather should prevent efficient refuse collection, the refuse collection for that day shall be cancelled. If the decision is made to cancel or delay refuse residential collection services for that day, FRANCHISEE shall contact the Grand
Prairie Landfill, the Environmental Services Director and the City Manager's Office of CITY no later than 8:00 a.m. The FRANCHISEE shall also notify customers that collection services will be delayed or canceled for that day via FRANCHISEE’s website and a separate call blast to commercial customers. FRANCHISEE will also notify the City for posting on City websites. The FRANCHISEE shall make refuse collection on the next regularly scheduled day. If inclement weather should prevent refuse collection of that next regularly scheduled collection date, the FRANCHISEE shall exert every effort to make refuse collection as soon as the weather permits. The FRANCHISEE expressly covenants and agrees that it shall exercise good faith in making its determination on whether the inclement weather permits collection.
SECTION 22. FRANCHISEE, at its sole cost and expense, agrees to furnish all trucks, equipment, machines, and labor which are reasonably necessary to adequately, efficiently, and properly collect and transport refuse. Collection of solid waste shall be made using sealed packer-type trucks, and such equipment shall not be allowed to leak nor scatter any waste within the CITY nor while in route to the disposal site. FRANCHISEE shall, if necessary, hand-clean all spillage resulting from its collection activities.
Due to street size variations in the CITY, the FRANCHISEE will need to provide equipment that will accommodate such public streets and alleys. Special collections shall be made using appropriate equipment. All motor vehicles used in performance of the obligations herein created shall be clearly marked with the FRANCHISEE'S name, telephone number and unit number in lettering not less than two (2) inches in height and legible from 150 feet.
All collection equipment shall be maintained and painted as often as necessary to preserve and present a well-kept appearance, and a regular preventative maintenance program. The CITY may inspect FRANCHISEE'S vehicles at any time to ensure compliance of equipment with FRANCHISE or require FRANCHISEE’S equipment replacement schedule to be submitted to CITY. Vehicles are to be washed on the inside and sanitized with a suitable disinfectant and deodorant a minimum of once a month. Such vehicles shall be washed and painted or repainted as often as necessary to keep them in a neat and sanitary condition. FRANCHISEE is encouraged to use alternative fueled vehicles for collection.
Lease Container: The FRANCHISEE may lease containers for waste storage to the owner or occupant of the FRANCHISEE'S commercial and industrial customers. In the event any such lease agreement is entered into, the FRANCHISEE shall lease the containers at a rate approved by the CITY and listed in the CITY'S Code of Ordinances. Such containers shall be equipped with suitable covers to prevent blowing or scattering of waste and shall be maintained in a sanitary and safe condition. Such containers shall be clearly marked with the FRANCHISEE'S name and telephone number in lettering not less than two (2) inches in height. Such containers shall be maintained in the CITY approved single color or color scheme. Rental or lease of such containers to single family residences shall be limited to short periods of time related to the removal of construction and demolition debris, and other similar wastes. Compaction equipment and special equipment may be leased to a customer by the FRANCHISEE at rates negotiated between the customer and FRANCHISEE.
SECTION 23. The FRANCHISEE shall deliver all solid waste collected pursuant to this FRANCHISE to the CITY'S Grand Prairie Municipal Solid Waste Landfill, or such locations as may otherwise be designated by the CITY, for refuse disposal. An alternative disposal site must be approved in writing by the City designated contact prior to its use by FRANCHISEE. In the event an alternative disposal site is approved by the CITY, FRANCHISEE shall provide CITY with copies of receipts for such disposal. In the event the CITY designates an alternative disposal site, the parties hereto agree to negotiate in good faith in order to reasonably preserve the economics of this FRANCHISE to FRANCHISEE in light of increased disposal and/or transportation costs.
Rules and regulations governing hours of operation and disposal practices at the CITY disposal site, as may be published by CITY, will be observed and followed by FRANCHISEE while engaged in the disposal of garbage collected under this FRANCHISE. FRANCHISEE shall not, without CITY'S prior consent, dispose of garbage or other refuse collected within another city at CITY'S designated disposal site. FRANCHISEE'S employees shall follow all established landfill safety regulations and traffic directions.
SECTION 24. FRANCHISEE shall not pick up special waste, tires, automobile/vehicle batteries, petroleum products, paints and other chemicals and solvents, or other materials prohibited from being disposed of in municipal solid waste landfills, as defined by the U.S. Environmental Protection Agency and the Texas Commission on Environmental Quality.
SECTION 25. Where the owner or occupant of any premises is maintaining improper or inadequate refuse containers or is otherwise in violation of the CITY'S ordinances with respect to the location of refuse containers or the nature, volume or weight of refuse to be removed from the premises, FRANCHISEE shall refrain from collecting all or a portion of such refuse and will notify the City designated contact and the owner or occupant thereof within twenty-four (24) hours of the reason for such non-collection, using a standard identification tag approved by the CITY. Nothing in this agreement shall be construed as limiting FRANCHISEE’S rights to recover damages, from an owner or occupant, which FRANCHISEE incurs as a result of an owner or occupant placing unacceptable materials, as identified in section 24 of this agreement, in said owner’s or occupant’s refuse container.
SECTION 26. Where the CITY is notified by an owner or occupant that refuse has not been removed from his premises on the scheduled collection day, and where no notice of non-collection or a change in collection schedule has been received from FRANCHISEE, the City designated contact will investigate the matter; and if the investigation discloses that FRANCHISEE has failed to collect refuse from the subject premises without cause as supported by notice as described herein, FRANCHISEE shall collect the same within eighteen (18) hours after a collection order is issued by CITY.
SECTION 27. In the event FRANCHISEE shall fail to collect refuse within eighteen (18) hours after the issuance of a collection order, such failure shall constitute an act of non-collection. If within any month, FRANCHISEE shall be guilty of ten (10) or more acts of non-collection, the same shall be deemed an act of noncompliance.
SECTION 28. FRANCHISEE shall at its own expense, provide a non- automated (human) telephone answering service from 8 a.m. until 5 p.m. daily, Monday through Friday, and from 8 a.m. until noon each Saturday, excluding such holidays as may be approved by CITY, for the purpose of handling complaints and other calls regarding refuse collection service provided by FRANCHISEE. FRANCHISEE must maintain a customer call log, which is available for review by the City contact. FRANCHISEE shall secure an annual listing in the Grand Prairie Telephone Directory under the name by which it conducts business in the community. For complaints other than non-collection the FRANCHISEE shall respond, investigate and take corrective action with 48 hours of the receipt of the complaint.
SECTION 29. The following materials will be included in the recycling program:
• Newsprint
• Magazines
• Household Paper Products to include junk mail, cardboard boxes, telephone books, chipboard boxes
• Aluminum Beverage Cans
• Steel/Tin Cans
• Glass Bottles and Jars
• Plastic Bottles
Recycling collection service will be at the same location where refuse is regularly collected on the same day as refuse service, with each refuse route to be divided into relatively equal parts and recycling service to be provided to each half on one of the two refuse collection days.
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Refuse |
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Recycling |
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Monday/Thursday |
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Monday OR Thursday |
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Tuesday/Friday |
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Tuesday OR Friday |
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Wednesday/Saturday |
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Wednesday OR Saturday |
The FRANCHISEE shall be responsible for transportation of all recyclable materials to a processing site mutually agreeable to both parties and having established markets for the recyclables, and which is operating in compliance with all applicable laws. Recyclable materials collected for the purpose of recycling may not be deposited in any landfill without consent from the City designated contact. However, to the extent any type of Recyclable Material received within the City limits is rejected by the recycling facility or is not of the intended quality or grade, FRANCHISEE will notify the City and may be given permission to deliver the contaminated load, except for any Hazardous Waste or Landfill Prohibited Waste Material to the landfill at no cost to FRANCHISEE.
SECTION 30.
The FRANCHISEE shall, without cost to the CITY, be responsible for processing and marketing of all residential Recyclable Materials collected pursuant to the FRANCHISE. If market conditions develop that limit or inhibit FRANCHISEE from selling some or all of the Recyclable Materials, City agrees to negotiate in good faith with FRANCHISEE, modifications to services and this Agreement that may include; (i) temporary suspension of Recycling services, (ii) disposal of the Recyclable Materials at the City’s landfill, (iii) discontinuing Recycling services and/or (iv) new rates for Recycling, and or trash services. Any such changes for Recycling services described above shall only occur after CITY and FRANCHISEE have negotiated new contract terms and sufficient time for notification of the CITY’s residents has occurred.
SECTION 31. The FRANCHISEE will collect recyclable materials at the curb or alley in blue plastic bags and/or a standard eighteen to twenty (18-20) gallon recycling bin that is approved and supplied by the CITY.
SECTION 32. The FRANCHISEE shall obtain all licenses and permits (other than the license and permit granted by the FRANCHISE) and promptly pay all license, permit fees and taxes required by the CITY and the State.
SECTION 33. The FRANCHISEE shall indemnify, hold harmless, and defend the CITY, its officers, agents and employees from any loss, damage, liability or expense including reasonable attorney fees, on account of damage to property and injuries, including death, to all persons including employees of FRANCHISEE, which may arise from any negligent acts or omissions or intentional acts on the part of the FRANCHISEE, its employees, agents, consultants or associates, in performance of this FRANCHISE or any breach of any obligation by the FRANCHISEE under this FRANCHISE. It is further understood that it is not the intention of the parties hereto to create liability for the benefit of third parties, but that this FRANCHISE shall be solely for the benefit of the parties hereto and shall not create or grant any rights, contractual or otherwise to any person or entity.
SECTION 34. FRANCHISEE shall at its own cost, obtain and maintain during the term of this FRANCHISE insurance against claims for injuries to persons or damages to property which may arise from or in conjunction with the performance of the work hereunder by the FRANCHISEE, his agents, representatives, or employees. A Certificate of Insurance evidencing that such insurance shall be provided to the CITY before commencement of work hereunder. All insurance and certificate(s) of insurance shall contain the following provisions:
(1) name the CITY, its officers, agents and employees as additional insureds via blanket-form endorsement as to all applicable coverage with the exception of Workers Compensation Insurance or other state approved program, but only to the extent of the FRANCHISEE'S negligence;
(2) provide for at least thirty (30) days prior written notice to the CITY for cancellation, non-renewal, or material change of the General Liability and Auto Liability insurance; and
(3) provide for a blanket form waiver of subrogation endorsement against the CITY for injuries, including death, property damage, or any other loss to the extent the same is covered by the proceeds of insurance but only to the extent of the FRANCHISEE'S negligence.
All insurance companies providing the required insurance shall be authorized to transact business in Texas and rated at least "A' by AM Best or other equivalent rating service. A certificate of insurance evidencing the required insurance shall be submitted prior to commencement of services.
Without limiting any of the other obligations or liabilities of the FRANCHISEE, FRANCHISEE shall require its subcontractors, at the subcontractor's own expense, to maintain, during the term of this FRANCHISE, the insurance, including the certificate and policy conditions, outlined in this section, unless the FRANCHISEE’s insurance covers the subcontractors to the same extent required under this section. FRANCHISEE shall obtain copies of the required certificates of insurance from each subcontractor in order to ensure compliance with the insurance requirements. FRANCHISEE must retain the required certificates of insurance for the duration of the FRANCHISE and shall have the responsibility of enforcing these insurance requirements among its subcontractors. CITY shall be entitled, upon request and without expense, to receive copies of these required certificates.
Minimum Limits of Insurance:
• Workers Compensation or Employer Provided Liability Plan with a per occurrence minimum as required by law and shall cover all employees, including drivers with an aggregate minimum as required by law.
• Comprehensive & General Public Liability with a per occurrence minimum of $1,000,000 and an aggregate minimum of $1,000,000.
• Property Damage Coverage with a per occurrence minimum of $1,000,000 and an aggregate minimum of $1,000,000.
• Comprehensive Auto Liability Bodily Injury with a per occurrence minimum of $1,000,000. Comprehensive Auto Liability-Property Damage with a per occurrence minimum of $1,000,000.
• Umbrella Liability with a per occurrence minimum of $10,000,000.
Section 35. FRANCHISEE, without cost to the CITY, shall furnish a Performance Bond in the amount of $1,000,000 as security for the faithful performance of this FRANCHISE. Such Performance Bond shall be executed by a corporate surety authorized to do business in Texas and be approved by the CITY.
A certificate from the surety showing that the bond premiums are paid in full shall be submitted to the CITY with the bond on an annual basis. Attorneys-in-facts who sign bonds must file with each bond a certified and effectively dated copy of their power of attorney.
SECTION 36. The CITY'S remedy for breach of FRANCHISE or failure to perform shall include but is not limited to making demand under the terms of the Performance Bond, suit for damages and/or termination of this FRANCHISE.
SECTION 37. With the exception of hazardous waste and landfill prohibited waste, title to all materials shall pass to FRANCHISEE when placed in FRANCHISEE'S collection vehicle, removed by FRANCHISEE from a Bin or Container, or removed by FRANCHISEE from the Customer's Premises, whichever last occurs, however, once such materials are disposed of at CITY'S landfill, title to such materials, except for hazardous waste and landfill prohibited waste, shall pass to CITY.
SECTION 38. The CITY reserves the right to regulate the charges made to both commercial and residential customers for recyclable materials and refuse collection and disposal services. The CITY shall be responsible for the billing and collection of all residential refuse, commercial bag service and recycling fees.
SECTION 39. The method of calculating the monthly remittance for residential service is to take the average number of residential accounts served during the month and multiply this number by the FRANCHISEE collection rate for residential curbside services as depicted in Exhibit A, FRANCHISEE’s Rate Sheet.
For purposes of this FRANCHISE, the term 'commercial bag service' shall mean all garbage collections from commercial enterprises where the garbage or refuse is not placed in a dumpster. The FRANCHISEE will provide service to these customers, as provided in Section 18, and the CITY shall remit to the FRANCHISEE a fee for these services. The method of calculating the monthly remittance for commercial bag service is to take the average number of commercial bag service accounts served during the month and multiply this number by the FRANCHISEE collection rate for Commercial Hand Customers as depicted in Exhibit A, FRANCHISEE’S Rate Sheet.
On or before the twenty-third (23rd) day of each month, the CITY shall remit to the FRANCHISEE payment for residential services performed in the preceding month under this FRANCHISE. On or before the twenty-third (23rd) day of each month the FRANCHISEE shall remit to the CITY appropriate franchise fees and landfill disposal service fees for commercial refuse from the preceding month under this FRANCHISE.
The FRANCHISEE will bill and collect for all commercial/industrial/institutional refuse services, except for commercial bag service, and will remit to the CITY such fees as are set forth herein. The FRANCHISEE will remit to the CITY a franchise fee on all commercial/industrial/institutional refuse collection services equal to four per cent (4%) of the gross collections for commercial/industrial/institutional refuse services. For purposes of this FRANCHISE, the 'gross collections for commercial/industrial/institutional refuse services' shall mean the aggregate of all monies actually collected by the FRANCHISEE for commercial/industrial/institutional refuse services for any one calendar month, but shall exclude sales tax, or other fees charged but not retained by FRANCHISEE. Secondly, the FRANCHISEE shall pay an additional amount for landfill disposal services equal to the Collector Landfill Rate as described in Exhibit A, Franchisee’s Rate Sheet, for all commercial/industrial/institutional refuse deposited at or disposed of at the Grand Prairie Sanitary Landfill by the FRANCHISEE. FRANCHISEE may petition CITY for changes in the rates for Services as a result of increases in costs incurred by FRANCHISEE due to (a) an increase to Collector Landfill Rate; (b) use of an alternate disposal site for an extended period of time; (c) changes in taxes, fees or other governmental charges (other than income or real property taxes); and (d) costs related to a Force Majeure event.
FRANCHISEE shall be allowed to assess a late fee to any commercial customer that becomes past due on any amount by more than sixty days from the original date of invoice, such fee to be as stated in Exhibit A, FRANCHISEE’s Rate Sheet.
Any refuse which is disposed of or deposited at the Grand Prairie Sanitary Landfill by the FRANCHISEE shall be weighed by employees of the CITY, who shall make proper documentation relating to the total weight of the refuse, by type, deposited at or disposed of at the Grand Prairie Sanitary Landfill by the FRANCHISEE. Shortly after the close of the business day on the last day of each month, employees of the CITY shall compute the total amount of refuse disposed of or deposited at the Grand Prairie Landfill by the FRANCHISEE since the close of the business day on the last day of the preceding month. This information will be supplied to the FRANCHISEE in such a manner so as to comply with the payment provisions listed above.
The FRANCHISEE is hereby authorized by the CITY to require a security deposit on container accounts equal to one month's service charge in advance on all new accounts.
SECTION 40. City Refuse will be disposed of at the CITY'S expense. The FRANCHISEE will collect City Refuse at no cost to the CITY and will not charge container deposits, rentals or delivery fees, but shall charge the CITY the regular haul rate on any roll-off containers. Any City Refuse from work that is contracted out by the CITY, or from CITY owned facilities managed by a third party, shall be charged to that contracting entity or third party, not the CITY, at commercial and industrial rates as listed in the Code.
SECTION 41. Base rate adjustments will be considered by the CITY no more than once per year during the life of the FRANCHISE. FRANCHISEE shall notify CITY of any proposed rate change by March 1st of each year. CITY shall notify FRANCHISEE of their recommendation to approve, in part or in whole, or to deny such request by May 1st of each year. Any request for a rate adjustment must receive approval from the CITY Council, after public hearing, in order to change the rates. CITY shall not unreasonably withhold approval of such request. Should the CITY deny a price increase for two (2) consecutive years, FRANCHISEE will have the option to terminate this Agreement with eighteen (18) months notice to the CITY.
SECTION 42. The CITY and FRANCHISEE agree to maintain at their respective places of business adequate books and records relating to the performance of their respective duties under the provisions of this FRANCHISE. Such books and records shall be made available to the CITY at any time during FRANCHISEE'S business hours for inspection and audit upon reasonable advance notice.
FRANCHISEE shall provide the CITY such operating and financial information as the CITY may, from time to time, reasonably request bearing on the performance of this FRANCHISE.
SECTION 43. In the event FRANCHISEE shall fail to perform any of the material provisions of this FRANCHISE, CITY shall promptly notify FRANCHISEE of its noncompliance, stating with particularity the facts relating thereto, and the actions required to correct same. Thereafter, if the event or condition is not corrected or otherwise made to comply with the terms of this FRANCHISE within a reasonable time period in relation to the nature of the event of noncompliance, but in no case more than thirty (30) days, the same shall constitute an act of noncompliance. For each such act, CITY may deduct from the consideration to be paid FRANCHISEE, as penalties, the sum of $1,000.00 per day that each such act of noncompliance shall continue. This remedy is hereby expressly made cumulative of other remedies available to the CITY, at law or in equity, for the breach of this FRANCHISE.
SECTION 44. If, at any time, the FRANCHISEE shall fail to perform any of the material terms, covenants or conditions herein set forth for a period of fifteen, (15), consecutive days after CITY has notified FRANCHISEE in writing of such failure and has demanded such performance, the CITY may, after a hearing as described herein, revoke and cancel the permit hereby granted, and the FRANCHISE shall be null and void. The hearing prerequisite to such revocation shall not be held until notice of such hearing has been given to the FRANCHISEE by certified mail, addressed to the FRANCHISEE at the address shown on the records of the CITY, and a period of at least ten (10) days has elapsed since the mailing of such notice. The notice shall specify the time and place of the hearing and shall include the reasons for revocation of such permit and the FRANCHISE. The hearing shall be conducted in public by the City Council, and the FRANCHISEE shall be allowed to be present and given full opportunity to answer such charges and allegations as are set out against it in the notice. If after the preponderance of the evidence that the charges and allegations set forth in this notice are affirmed by the facts presented at the hearing, CITY may revoke and cancel this FRANCHISE and the permit and the same shall be null and void as of the date set by the City Council. If at any time the CITY shall fail to perform any of the material terms, covenants or conditions herein set forth for a period of thirty (30) consecutive days after FRANCHISEE has notified CITY in writing of such failure and has demanded such performance, the FRANCHISEE may terminate this FRANCHISE.
If the CITY grants a FRANCHISE to another business for the same services outlined in this FRANCHISE during the term of the FRANCHISE, then FRANCHISEE at its sole discretion, shall be allowed to renegotiate the rates established hereunder or terminate this FRANCHISE.
SECTION 45. As a condition of this FRANCHISE, the FRANCHISEE covenants and agrees that it will take all necessary actions to ensure, in connection with any work under this FRANCHISE, that the FRANCHISEE, its associates and employees, will not discriminate in its treatment or employment of any individual or groups of individuals on the grounds of race, color, religion, national origin, age, sex, or physical handicap unrelated to job performance, either directly or indirectly or through contractual or other arrangements. In this regard, the FRANCHISEE shall keep, retain and safeguard all records relating to this FRANCHISE for work performed hereunder for a minimum period of three (3), years from final FRANCHISE completion, with full access allowed to authorized representatives of the CITY upon request, for purposes of evaluating compliance with this and other provisions of the FRANCHISE.
SECTION 46. Neither CITY nor FRANCHISEE shall be liable for failure to perform their duties if such failure is caused by a catastrophe, riot, war, fire, accident, act of God, severe storm damage including straight-line winds, or similar contingency beyond the reasonable control of the parties to this FRANCHISE. In the event FRANCHISEE is requested to perform additional services as a result of an occurrence as described above, FRANCHISEE shall be compensated for the costs of materials, equipment, labor and landfill based upon the rates agreed to by CITY and FRANCHISEE. Such rates shall be agreed to by the parties prior to the performance of the additional services.
SECTION 47. FRANCHISEE verifies that FRANCHISEE does not currently, and will not during the term of this FRANCHISE, boycott Israel as that term is defined under Texas Government Code 808.001.
FIRST READING PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF GRAND PRAIRIE, TEXAS, ON THIS THE ____ DAY OF ________, 2018.