HomeMy WebLinkAboutOrdinance No. 2012-04 r-
(Title: An ordinance granting a franchise for solid waste collection and
disposal to IESI, TX Corporation)
ORDINANCE NO.2012-04
AN ORDINANCE GRANTING TO IESI TX CORPORATION
THE RIGHT, PRIVILEGE, AND FRANCHISE FOR A TERM
AS SET OUT IN EXHIBIT "A", ATTACHED HERETO AND
MADE A PART HEREOF, TO PROVIDE SOLID WASTE
COLLECTION AND DISPOSAL, AND RELATED BUSINESS
ACTIVITIES IN THE CITY OF FRIENDSWOOD, TEXAS;
PRESCRIBING COMPENSATION FOR THE RIGHTS AND
PRIVILEGES AND FRANCHISE CONFERRED
HEREUNDER; AND PRESCRIBING THE CONDITIONS
GOVERNING THE OPERATION OF THE BUSINESS.
i
WHEREAS, IESI TX Corporation, a Texas corporation duly authorized to do business in
the State of Texas (hereinafter referred to as "IESP' or "Service Provider") has asked the City o
Friendswood, Texas ("the City"), to grant to it a franchise to provide solid waste collection and
disposal, and related business activities to the residents of the City; and
WHEREAS, the City has previously prepared a request for competitive sealed proposals
and sought proposals from entities qualified to provide solid waste collection and disposal
services in the City; and
WHEREAS, the City Council has determined that, subject to the terms and conditions
set forth herein, the grant of this franchise to the offeror whose proposal is determined to be the
most advantageous to the City is consistent with the public interest; and
WHEREAS, the City and IESI have reached agreement on the terms and conditions Of
the new franchise, as set forth herein and referenced as Exhibit A, which is attached and
incorporated by reference for all purposes;
NOW THEREFORE BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF
FRIENDSWOOD,TEXAS:
Section 1. FINDINGS OF FACT
The facts and matters set forth in the preamble of this Ordinance are hereby found to be
true and correct.
Section 2. SHORT TITLE
1
This Ordinance shall be known and may be cited as the City of Friendswood—IESI Solid,`
Waste Franchise.
Section 3. ADOPTION
The City Council of the City of Friendswood hereby adopts and approves the City of
Friendswood — IESI Solid Waste Franchise, attached hereto as Exhibit A, and incorporated by
reference for all purposes, pursuant to the requirements of Article IX. "Franchises and Public
Utilities,"of the City of Friendswood Charter, ("Agreement').
There is hereby granted to Service Provider, the right, privilege, and franchise to provide solid
waste collection and disposal, and related business activities in the City. The franchise as hereni
granted shall be in accordance with the terms and conditions as set out in the attached
Agreement, (specifically including all contract documents as provided for therein).
Section 4. SEVERABILITY
In the event any clause phrase, provision, sentence, or part of this Ordinance or the
application of the same to any person or circumstances shall for any reason be adjudged invalid
or held unconstitutional by a court of competent jurisdiction, it shall not affect, impair, or
invalidate this Ordinance as a whole or any part of provision hereof other than the part declared
to be invalid or unconstitutional; and the City Council of the City of Friendswood, Texas,
declares that it would have passed each every part of the same notwithstanding the omission of
any such part thus declared to be invalid or unconstitutional,whether there be one or more parts.
Section 5. REPEAL OF PREVIOUS ORDINANCES
All ordinances or parts of ordinances in conflict or inconsistent with this Ordinance are
hereby expressly repealed.
Section 6. COMPLIANCE WITH APPLICABLE LAWS
The work and activity done in connection with the franchise granted hereunder shall be
subject to and governed by all present and future laws, rules and regulations of the City, the State
of Texas, and the United States of America, and any federal agency having jurisdiction.
Ord 2012-04 2
PASSED AND APPROVED on first reading this 6th day of February ,2012.
PASSED,APPROVED,AND ADOPTED on second and final reading this 5th day
of March ,2012.
David J. ith
Mayor
ATTEST: OF FR�EyOs
�
ci o
Melinda Welsh, TRMC
City Secretary S, y
A4TE OF 'It P
Ord 2012-04 3
1
i
I
i
FRANCHISE AGREEMENT
FOR THE COLLECTION,HAULING,RECYCLING AND DISPOSAL OF
MUNICIPAL SOLID WASTE AND RECYCLABLE MATERIALS
-� IN THE CITY OF FRIENDSWOOD,TEXAS
f
APRIL 1,2012
I
I
J
FRANCHISE AGREEMENT
FOR THE COLLECTION,HAULING,RECYCLING AND DISPOSAL OF
MUNICIPAL SOLID WASTE AND RECYCLABLE MATERIALS
IN THE CITY OF FRIENDSWOOD,TEXAS
STATE OF TEXAS
THIS FRANCHISE AGREEMENT (this "Agreement") is made and entered into as of
2012, by and between IESI TX Corporation, a Texas corporation (the
"Service Provider"), and the City of Friendswood,Texas(the "CCU").
WHEREAS, the City, subject to the terms and conditions set forth herein and the
ordinances and regulations of the City, desires to grant to the Service Provider the franchise,
license and privilege to collect, haul and recycle or dispose of Municipal Solid Waste and
Recyclable Materials(as such terms are defined herein)within the City's corporate limits.
NOW, THEREFORE, in consideration of the premises and the mutual promises,
covenants and agreements set forth herein, the Service Provider and the City hereby agree as
follows:
SECTION 1.DEFINED TERMS.
The following terms, as used herein,will be defined as follows:
Bag - Plastic sacks, secured at the top, 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 35 lbs.
I
Bulky Item -Any item not measuring in excess of either forty-eight(48) inches in length or fifty
(50) pounds in weight, including, but not limited to, refrigerators, stoves, washing machines,
water tanks, chairs, couches, and other similar household items.
Bundles - Items not measuring in excess of either forty-eight (48) inches in length or fifty (50)
pounds in weight and which are securely fastened together, including, but not limited to, brush,
newspapers, and tree trimmings.
Business Day - Any day that is not a Saturday, a Sunday, or other day on which banks are
required or authorized by law to be closed in the City.
Calendar Year—The Calendar Year shall be from January 1 till December 31.
1
i
Commercial Unit - Any non-manufacturing commercial facility that generates and accumulates
Municipal Solid Waste during, or as a result of, its business, including, but not limited to,
restaurants, stores and warehouses.
Construction and Demolition Waste - Solid Waste resulting from construction or demolition
activities or that is directly or indirectly the by-product of such activities, including, but not
limited to, cartons, concrete, excelsior, gypsum board, metal, paper, plastic, rubber and wood
products. Construction and Demolition Waste does not include Hazardous Waste, Municipal
Solid Waste,Recyclable Materials or Bulky Items.
Container - Any receptacle, including, but not limited to, dumpsters, Roll-Offs and Roll-Outs,
utilized by a Commercial, Industrial or Residential Unit for collecting Municipal Solid Waste,
Construction and Demolition Waste or Recyclable Materials. Containers are designed to hold
between eighteen(18)gallons and forty(40) cubic yards of Solid Waste.
Contract Year—The Contract Year shall be from April 1 through the last day in March,
Green Waste — Items derived from plants such as grass, leaves, tree trimmings and branches.
Green Waste does not include any item exceeding 4 inches in diameter or 48 inches in length.
Green Waste must be placed in paper bags or Bundles.
Hazardous Waste - Waste identified or listed as a hazardous waste by the administrator of the
United States Environmental Protection Agency (EPA) under the federal Solid Waste Disposal
Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, or so
classified by any federal or State of Texas statute, rule, order or regulation.
Handicapped Residential Unit - Any residential dwelling that is inhabited by persons, all of
whom are physically handicapped to the extent that they are unable to place Municipal Solid
Waste or Recyclable Materials at the curbside, and that generates and accumulates Municipal
Solid Waste and Recyclable Materials. The identities of the members of a Handicapped
Residential Unit shall be certified by the City Manager.
Holidays-The following days:
(1) New Year's Day(January 1st)
(2) Memorial Day
(3) Independence Day(July 4th)
(4) Labor Day
(5) Thanksgiving Day
(6) Christmas Day(December 25th).
Industrial Unit - Any manufacturing, mining or agricultural facility that generates and
accumulates Municipal Solid Waste during, or as a result of, its operations.
Landfill - Any facility or area of land receiving Municipal Solid Waste or Construction and
Demolition Waste and operating under the regulation and authority of the Texas Commission on
2
Environmental Quality("TCE ") within the State of Texas, or the appropriate governing agency
for landfills located outside the State of Texas.
Multi-Family Residential Unit-Any residential dwelling that is designed for, and inhabited by,
multiple family units and that generates and accumulates Municipal Solid Waste and Recyclable
Materials.
Municipal Solid Waste - Solid Waste resulting from or incidental to municipal, community,
commercial, institutional or recreational activities, or manufacturing, mining, or agricultural
operations. Municipal Solid Waste does not include Construction and Demolition Waste or
Hazardous Waste.
Recyclable Materials-
(a) Newspapers, magazines, and catalogs, and other paper items such as mail, paper
bags or other paper;
(b) Glass bottles and jars (excluding mirrors, windows, ceramics and other glass
products);
(c) Metal cans composed of tin, steel or aluminum(excluding scrap metal); and
(�1 (d) Plastic containers including all varieties of the types designated as #1, #2, #3, 44,
#5 and#7.
Recycling Bin—A Container with eighteen (18) gallons of capacity and provided by the Service
Provider for the collection of Recyclable Materials.
Recycling Cart—A Roll-Out provided by the Service Provider for the collection of Recyclable
Materials.
Residential Unit - Any residential dwelling that is either a Single-Family Residential Unit or a
Multi-Family Residential Unit.
Roll-Off-A Container with twenty(20) cubic yards to forty(40) cubic yards of capacity.
Roli-Out-A Container with ninety-six(96) gallons of capacity.
Single-Family Residential Unit - Any residential dwelling that is designed for, and inhabited
by, a single person or family unit and that generates and accumulates Municipal Solid Waste and
Recyclable Materials.
i
Solid Waste - As defined by the EPA under 40 C.F.R. § 261.2(a)(1), or by the State of Texas
under the Solid Waste Disposal Act § 361.003(34) whether such waste is mixed with or
constitutes Recyclable Materials.
3
U
White Good-Any item not measuring in excess of either three(3) cubic feet in size or fifty(50)
pounds in weight and that is manufactured primarily from metal, including, but not limited to, a
bath tub, heater, hot water heater,refrigerator, sink or washer and dryer.
t
SECTION 2. FRANCHISE GRANT. I
The City hereby grants to the Service Provider, in accordance with the City's ordinances and
regulations governing the collection, hauling, recycling and disposal of Municipal Solid Waste
and Recyclable Materials, the franchise, license and privilege to collect, haul and recycle or
dispose of Municipal Solid Waste and Recyclable Materials over, upon, along and across the
City's present and future streets, alleys, bridges and public properties, and acknowledges and
agrees that the Service Provider shall be the sole and only provider of such Services. To the
extent provided by law, in order to maintain the franchise in favor of the Service Provider
contained herein, the City shall take any and all appropriate action against any company,
customer or third party infringing upon the exclusive rights of the Service Provider. In the event
that the City fails to pursue any appropriate legal action in order to remedy an infringement on
the Service Provider's franchise rights, the Service Provider, to the extent provided by law, may
retain a subrogation right from the City against any and all violations of the franchise grant
described herein and shall be entitled to any and all actual and consequential damages arising
from the City's failure to enforce this Agreement.
SECTION 3. OPERATIONS.
A. Scope of Operations. It is expressly understood and agreed that the Service Provider will
collect, haul and recycle or dispose of all Municipal Solid Waste and Recyclable Materials (as
provided herein) (i) generated and accumulated by Commercial, Industrial and Residential Units,
and (ii) placed within Containers or Bags by those Commercial, Industrial and Residential Units
receiving the services of the .Service Provider (or otherwise generated and accumulated in the
manner herein provided by those Commercial Units, Industrial Units and Residential Units), all
within the City's corporate limits, including any territories annexed by the City during the term of
this Agreement(the "Services").
I
B. Nature of Operations. The City hereby grants to the Service Provider, in accordance with
the City s ordinances and regulations governing the collection, hauling and recycling or disposal
of Municipal Solid Waste and Recyclable Materials, the title to all Municipal Solid Waste and
Recyclable Materials collected, hauled and recycled or disposed of by the Service Provider over,
-upon, along and across the City's present and future streets, alleys, bridges and public properties.
All title to and liability for materials excluded from this Agreement shall remain with the
generator of such materials.
I
SECTION 4. SINGLE-FAMILY RESIDENTIAL UNIT COLLECTIONS.
A. Single-Family Residential Units. The Service Provider will collect Municipal Solid '
Waste from Single-Family Residential Units twice per week; provided, that (i) such Municipal
Solid Waste is placed in Containers not exceeding 32 gallons or 50 pounds or Bags not
4
exceeding 50 pounds, and (ii) such Containers and Bags are placed within five (5) feet of the
curbside or right of way adjacent to the Single-Family Residential Unit no later than 7:00 a.m. on
the scheduled collection day. The Service Provider shall not be responsible for providing
Containers for the collection of Municipal Solid Waste to Single-Family Residential Units. The
Service Provider shall not be responsible for any damage to a Single-Family Residential Unit's
Container that is not caused by the negligence of the Service Provider.
The Service Provider will collect Recyclable Materials from Single-Family Residential
Units once per week; provided, that(i) such Recyclable Materials are placed in Recycling Bins or
Recycling Carts, and (ii) such Recycling Bins or Recycling Carts are placed within five (5) feet
of the curbside or right of way adjacent to the Single-Family Residential Unit no later than 7:00
a.m. on the scheduled collection day. The Service Provider shall only be responsible for the
collection of Recyclable Materials placed in Recycling Bins or Recycling Carts. Any Single-
Family Residential Unit that generates Recyclable Materials in an amount greater than the
capacity of two (2) Recycling Bins will be required to utilize a Recycling Cart. The Service
Provider shall be compensated for this additional service as provided for in Section 9.A. hereto.
B. Excess or Misplaced Municipal Solid Waste. The Service Provider shall only be required
to collect a maximum of either two (2) Recycling Bins or one (1) Recycling Cart from any
Single-Family Residential Unit. Additionally, the Service Provider shall only be responsible for
collecting, hauling and recycling or disposing of Municipal Solid Waste and Recyclable
Materials placed inside the Containers or Bags. Municipal Solid Waste and Recyclable Materials
in excess of the maximum aggregate limit above, or in excess of the Containers' or Bags' limits,
or placed outside or adjacent to the Containers or Bags, will not be collected by the Service
Provider. However, such excess or misplaced Municipal Solid Waste and Recyclable Materials
may be collected on occasion and within reason due to Holidays or other extraordinary
circumstances as determined by the Service Provider in its sole discretion.
C. Handicapped Residential Units. Notwithstanding anything to the contrary contained
herein, the Service Provider agrees to assist Handicapped Residential Units with house-side
collection of their Containers; provided, that the Service Provider receives prior written notice
from the Handicapped Residential Unit of such special need.
I
SECTION 5. COMMERCIAL, INDUSTRIAL AND MULTI-FAMILY RESIDENTIAL
UNIT COLLECTIONS.
i
The Service Provider will collect Municipal Solid Waste and Recyclable Materials from
Commercial, Industrial and Multi-Family Residential Units up to six (6) times per week, as
provided for in Section 9.B. hereof. The Service Provider shall only be responsible for
collecting, hauling and recycling or disposing of Municipal Solid Waste and Recyclable
Materials placed inside the Containers provided by the Service Provider. However, the Service
Provider shall be obligated to offer and provide sufficient service to Commercial, Industrial and
Multi-Family Residential Units, and to increase or decrease, as necessary, the frequency of
collection and the size or number of Containers so that Commercial, Industrial or Multi-Family
Units' Municipal Solid Waste and Recyclable Materials will be regularly contained. The Service
Provider shall be compensated for these additional Services as provided for in Section 93.
5
hereof. The parties acknowledge and agree that the Service Provider shall not be responsible to j
City for damage to any private pavement or accompanying sub-surface of any route reasonably
necessary to perform the Services herein contracted and that the Commercial, Industrial or Multi-
Family Residential Unit assumes all liabilities for damage to pavement or road surface.
SECTION 6. SPECIAL COLLECTIONS AND SERVICES.
A. Municipal Locations. The Service Provider will provide, at no cost to the City, up to an
aggregate number of eighteen (18) Containers to collect Municipal Solid Waste and/or
Recyclable Materials at certain municipal locations within the City once or twice per week, as
needed. Specifically, the provisions of this Section 6.A. shall apply to the following locations:
Number
and Type
of Collections
Location Container per week Type of Collection
Friendswood City Hall one 6 yd. Twice per week Municipal Solid Waste
one 6 yd. Once er week Rec clable Materials
Friendswood Public
Safety Building one 8 yd. Once per week Municipal Solid Waste
one 8 yd. Once per week Recyclable Materials
Friendswood Public
Library one 6 yd. Twice per week Municipal Solid Waste
one 8 yd. Once per we Recyclable Materials
Friendswood Public
Works two 4 yd. Once per week Municipal Solid Waste
one 6 yd. Once per week Recyclable Materials
Friendswood Activities
Building one 8 yd. Once per week Municipal Solid Waste
Friendswood Fire
Station#1 one 6 yd. Twice per week Municipal Solid Waste
Fire Station#2 one 6 yd. Once per week Municipal Solid Waste
Fire Station#3 one 4 yd. Once per week Municipal Solid Waste
Fire Station#4 one 8 yd. Once per week Municipal Solid Waste
i
6 1
Jones Hanger one 6 yd. Once per week Municipal Solid Waste
Renwick Park two 6 yd. Twice per week Municipal Solid Waste
Sports Park one 6 yd. Once per week Municipal Solid Waste
Animal Control one 4 yd. Once per week Municipal Solid Waste
Swimming Pool one 6 yd. Once per week Municipal Solid Waste
Centennial Park one 6 yd. Once per week Municipal Solid Waste
Additionally, the Service Provider will provide, at no cost to the City, an adequate number of
Recycling Carts or front-load Containers to collect Recyclable Materials at the City parks; the
Service Provider shall decide, in its sole discretion, which type of Containers to use in providing
such services.
B. Special Events. The Service Provider will provide, at no cost to the City, an adequate
number of Containers to collect Municipal Solid Waste at the following special events in the
City: City's Spring Sparkle. Fall Haul-A-Day, and Independence Day Celebrations; provided.
that the City gives the Service Provider reasonable prior written notice of the date of such special
event as well as the number of Containers that will be required.
C. Port-O-Lets. The Service Provider shall provide Port-O-Lets during the Independence
Day Celebrations and Little League Opening Day. Additionally, the Service Provider shall
provide five(5)Port-O-Lets at Centennial Park, as needed.
D. Friendswood ISD Recycling. The Service Provider shall provide, at no cost to the City,
collection for Recyclable Materials to all Friendswood ISD schools located in the City limits.
The Service Provider shall determine the type/size of the Containers and the frequency of the
collections.
SECTION 7. BULKY ITEMS AND GREEN WASTE.
A. Pre-Arranged Collections. The Service Provider will collect Bulky Items and Green
Waste from Single-Family Residential Units once per week, as designated by the Service
Provider; provided, that the Bulky Items or Green Waste (A) are placed at the curbside no later
than 7:00 a.m.on the scheduled collection day, (B) are reasonably contained, and(C) do not have
any individual item exceeding fifty (50) pounds in weight. The Service Provider shall only
collect Green Waste that has been placed in paper bags designed for the disposal of Green Waste
or secured in a bundle weighing less than 50 pounds with no item measuring more than 48
inches. The Service Provider shall only be responsible for collecting, hauling and recycling or
disposing of Bulky Items and Green Waste from those Single-Family Residential Units that have
7
complied with this Section 7.A. and Section 1. White Goods containing refrigerants will not be
collected by the Service Provider unless such White Goods have been certified in writing by a
professional technician to have had all such refrigerants removed.
B. Negotiated Collections. It is understood and agreed that the service provided under
Section 7.A. does not include the collection of Bulky Items and Green Waste comprised of
Construction and Demolition Waste, White Goods or any materials resulting from remodeling,
general property clean-up or clearing of property for the preparation of construction. However,
the Service Provider may negotiate an agreement on an individual basis with the owner or
occupant of a Single-Family Residential Unit regarding the collection of such items by utilizing
the Service Provider's Roll-Off Services.
SECTION 8. TITLE TO EQUIPMENT.
Notwithstanding anything to the contrary contained herein, it is expressly understood and agreed
that all equipment, including, but not limited to, Containers, provided by the Service Provider in
connection with the Services, shall at all times remain the property of the Service Provider. Any
Container provided by a Single-Family Residential Unit for the collection of Municipal Solid
Waste shall remain the property of such Single-Family Residential Unit.
SECTION 9. RATES AND FEES.
i
Subject to adjustment, as provided in Section 10 hereof, the rates and fees to be charged and
received by the Service Provider are as follows:
A. Single-Family Residential Unit Services. For the Services provided to Single-Family
Residential Units under Section 4.A. hereof, the Service Provider shall charge (i) $13.31 per
month for each Single-Family Residential Unit that has one (1)Recycling Bin, plus a onetime fee
of$7.00 for one (1) additional Recycling Bin. The Service Provider shall charge $14.31 per
month for each Single-Family Residential Unit receiving the Services provided under Section
4.A. and utilizing one (1) Recycling Cart instead of Recycling Bins. These rates apply to all
Single-Family Residential Units located within the City's limits.
B. Commercial. Industrial and Multi-Family Residential Unit Services. For the Services
provided to Commercial, Industrial and Multi-Family Residential Units under Section 5 hereof, I
the Service Provider shall charge per month for each Container utilized the following rates:
Collections per week
Container Size 1 2 3 4 5 6
95 Gallon Container $32.00 $48.00 N/A N/A N/A N/A
2 cubic yards $78.30 $92.54 $156.48 $218.92 $287.14 $361.58
3 cubic yards $89.91 $118.01 $218.49 $305.65 $400.92 $504.85
4 cubic yards $90.26 $118.71 $219.55 $307.05 $402.68 $506.96
6 cubic yards $10217 $184.21 $267.17 $356.18 $445.28 $534.24
8 cubic yards $180% $278.28 1 $356.27 1 $474.92 $606.82 $728.93
8
For any collection that the Service Provider is required to make in excess of the above weekly
figures,the Service Provider shall charge the following amounts per collection per Container:
Container Size Per Extra Lift
95 Gallon
Container N/A
2 cubic yards $15.02
3 cubic yards $22.53
4 cubic yards $30.04
6 cubic yards $45.06
8 cubic yards $60.07
i
Additionally,the Service Provider shall provide the following features to Commercial, Industrial
or Multi-Family Residential Units at the stated monthly cost:
Monthly Cost
Containerw/Casers $5.79
Containers with
Locks or Gates $8.69
Recycling Container-6 cy $81.09
Recycling Container-8 cy $98.46
The foregoing rates apply to all Commercial,Industrial and Multi-Family Residential Units that
are located within the City's corporate limits.
C. Roll-Off Services. The Service Provider will negotiate agreements with each
Commercial, Industrial or Residential Units on an individual basis regarding the Roll-Off
Services to be provided. The Roll-Off Services will be billed directly to such Commercial,
Industrial or Residential Unit and will be collected by the Service Provider. The Roll-Offs
provided pursuant to this Section 9.C. must be located within the City in accordance with City
ordinances and policies. Notwithstanding anything to the contrary contained herein, a franchise
fee shall not apply to the services set forth in this Section 9.C.
9
SECTION 10. RATE ADJUSTMENT.
A. Rate Adjustments. On each anniversary date of this Agreement, the Service Provider
may request an increase in the rates charged by the Service Provider for the Services from the
City to account for changes in costs incurred by the Service Provider, including, but not limited
to, changes in the Consumer Price Index for all Urban Wage Earners; increased disposal costs;
increased landfill fees; changes in federal, state, or local laws, rules, or ordinances that introduce
or increase fees, taxes or similar assessments; increased labor or equipment cost; or increased
operational costs. In the event the City fails or refuses to consent to any such requested rate
increase and the Service Provider can demonstrate that such rate increase is necessary to offset
the Service Provider's increased costs in connection with performing the services under this
Agreement not otherwise offset by any previous rate adjustments hereunder, the Service Provider
may, in its sole discretion, terminate this Agreement upon one hundred twenty(120) days written
notice to the City.
B. Fuel Cost Adjustment. Beginning on April 1, 2013 and on each April 1s` thereafter, the
Service Provider shall adjust all the rates herein if, during the previous Calendar Year, the
average price of diesel exceeded $3.65 per gallon (the "Base Price"). Each adjustment shall
become effective on April 1 and remain effective throughout the applicable Contract Year. The
average price of diesel fuel will be determined by reference to the U.S. Energy Administration/
Department of Energy published price for diesel fuel —gulf coast region. The following website j
(or any successor website) will be the . source for such information: I
http://tonto.eia.doe.gov/ooglinfo/wohdp/diesel_detail_report_combined.asp
The average price of diesel fuel for each Calendar Year(each, an "Annual Average Price") shall
be the average of the weekly fuel prices published for each week during the Calendar Year.
The fuel cost adjustment for any Contract Year (each, a "Fuel Cost Adiustment") shall be the
product of (i) 13.20% and (ii) a fraction the numerator of which is equal to the difference
between the Base Price and the Annual Average Price and the denominator of which is the Base
Price. In the event the Annual Average Price is greater than the Base Price, the Fuel Cost
Adjustment shall be an upward adjustment to all rates herein. In the event the Annual Average
Price is less than the Base Price, the Fuel Cost Adjustment shall be a downward adjustment to all
rates herein. Notwithstanding anything to the contrary contained herein, the Franchise Fee (as
defined herein) shall not apply to the Fuel Cost Adjustment.
SECTION 11. EXCLUSIONS.
Notwithstanding anything to the contrary contained herein, this Agreement shall not cover the
collection, hauling, recycling or disposal of any Hazardous Waste, animal or human, dead
animals, auto parts, used tires, concrete, dirt, gravel, rock or sand from any Container located at +
any Commercial, Industrial or Residential Unit;provided, however, that the Service Provider and
r the owner or occupant of a Commercial, Industrial or Residential Unit may negotiate an
10
�Ij { 1
agreement on an individual basis regarding the collection, hauling or disposal of Construction
and Demolition Waste, auto parts, used tires, concrete, dirt, gravel, rock or sand by utilizing the
Service Provider's Roll-Off Services.
SECTION 12. TERM OF AGREEMENT.
The term of this Agreement shall be for a period of five (5)years, commencing on April 1, 2012
and concluding on March 31, 2017. At the expiration of the term of this Agreement, the City
shall have the option to extend this Agreement for one additional term of five(5)years;provided,
that the City provides the Service Provider with written notice of its intent to extend this
Agreement at least 180 days prior to the expiration date of this Agreement, (March 31, 2017), by
registered mail, return receipt requested, and Service Provider has not provided prior written !
notice of its intent to terminate at least 180 days prior to expiration of the initial five year term of
this Agreement on March 31, 2017. If the Service Provider provides prior notice of termination
for such purposes, or if the City fails to exercise its option to extend this Agreement for an
additional five year term, this Agreement will cease to be renewed and will terminate on March
31,2017, unless terminated earlier as provided herein.
SECTION 13. ASSIGNMENT.
This Agreement shall not be assignable or otherwise transferable by the Service Provider without
the prior written consent of the City; provided, however, that the Service Provider may assign
this Agreement to any direct or indirect affiliate or subsidiary of the Service Provider or to any
person or entity succeeding to all or substantially all of the Service Provider's assets (whether by
operation of law, merger, consolidation or otherwise)without the City's consent.
SECTION 14. ENFORCEMENT.
The City shall take any action reasonably necessary to prevent any other Solid Waste collection
company from conducting business in violation of the franchise granted herein to the extent
provided by law. If the Service Provider experiences recurring problems of damage or
destruction to or theft of the Containers provided by the Service Provider pursuant to this
Agreement, the Service Provider may, prior to replacing or repairing such Containers, require
security deposits from the Commercial, Industrial or Residential Units utilizing such Containers.
To the maximum extent allowed by applicable law, the City also hereby grants to the Service
Provider the right of ingress and egress from and upon the property of Commercial, Industrial
and Residential Units for the purposes of rendering the Services contemplated hereby.
I
SECTION 15. PROCESSING,BILLING AND FEES.
A. Monthly Statement. On a monthly basis, the City agrees to bill and collect the rates and
fees charged under Section 9.A. hereto from all Single-Family Residential Units possessing
active water meters within the City's corporate limits, as well as from all other Single-Family
Residential Units requiring the collection, hauling, recycling and disposal of Municipal Solid
Waste and Recyclable Materials within the City's corporate limits (the "Monthly Statement").
11
I
Thereafter, the City will remit to the Service Provider an amount equal to such Monthly
Statement. Such remittance shall be made by the City on or before the 15th day of each month
(for the immediately preceding month's service) commencing on May 15, 2012. Along with each
monthly remittance, the City shall provide the Service Provider with a report indicating the
service type, size, location, and number of Single-Family Residential Units which have been
billed for that month. Nothing herein shall prohibit the City from collecting sums in addition to
those sums called for herein.
B. Commercial Billing. On a monthly basis, the Service Provider agrees to bill and collect .
the rates and fees charged under Section 9.B. hereto from all Commercial, Industrial, and Muti-
Family Units possessing active water meters within the City's corporate limits, as well as from all
other Commercial, Industrial, and Multi-Family Units requiring the collection, hauling, recycling
and disposal of Municipal Solid Waste and Recyclable Materials within the City's corporate
limits (the "Commercial Billing"). Thereafter, the Service Provider shall remit to the City an
amount equal to ten percent (10%) gross receipts collected (less tax) from the Commercial
Billing (the "Franchise Fee"). Such remittance shall be made by the Service Provider on or
before the 20a'day of each month(for the immediately preceding month's service).
C. Taxes. In addition to the amounts billed and collected by the City under Section 15.A.,
the City shall also be responsible for collecting and remitting or paying any and all sales, use and
service taxes assessed or payable in connection with the amounts collected under Section 15.A.
In addition to the amounts billed and collected by the Service Provider under Section 15.B., the
Service Provider shall also be responsible for collecting and remitting or paying any and all sales,
use and service taxes assessed or payable in connection with the amounts collected under Section
15.13.
D. Bad Debt: Unpaid Rates/Fees. The City agrees that payments owing to the Service
Provider pursuant to this Agreement shall be based solely on the Services rendered by the Service
Provider. The Service Provider shall not be held responsible for the collection of "bad debt"
billed by and owed to City for the Services, nor shall the Service Provider be penalized for
Services rendered that remain unpaid by any Commercial,Industrial or Residential Unit.
E. Billings for Roll-Off Services. Notwithstanding the above, the Service Provider will bill
and collect from all Residential, Commercial and Industrial Units for services performed with
respect to Roll-Off Containers. The Service Provider shall not pay a Franchise Fee on any
amounts collected under this Section 15.E.
SECTION 16. SPILLAGE.
It is understood and agreed that the Service Provider shall not be required to clean up, collect or
dispose of any loose or spilled Municipal Solid Waste or Recyclable Materials not caused by the
Service Provider's rendering of the Services, or be required to collect and dispose of any excess
Municipal Solid Waste or Recyclable Materials placed outside of the Containers by any
Commercial, Industrial or Residential Unit. The Service Provider may report the location of
such conditions to the City so that the City can issue proper notice to the owner or occupant of
12
I
the Commercial, Industrial or Residential Unit instructing the owner or occupant to properly
contain such Municipal Solid Waste or Recyclable Materials. Should excess Municipal Solid
Waste or Recyclable Materials continue to be placed outside of the Containers, the City may
require the Commercial, Industrial or Residential Unit to increase the frequency of collection of
such Municipal Solid Waste or Recyclable Materials, or require the Commercial, Industrial or
Residential Unit to utilize a Container with sufficient capacity so that the excess Municipal Solid
Waste or Recyclable Materials will be regularly contained. The Service Provider shall be
compensated for these additional Services as provided for in Section 9 hereof, and shall be
entitled to receive an extra collection charge for each additional Container requiring an extra
collection.
SECTION 17. NON-COLLECTION NOTICE AND FOLLOW-UP.
A. Notice from the Service Provider. It is specifically understood and agreed that where the
owner or occupant of a Commercial, Industrial or Residential Unit fails to timely place a
Container or Bag as directed in Sections 4 and 5 hereof, or is otherwise in violation of the City's
ordinances and regulations, the Service Provider's reasonable rules adopted hereunder or the
provisions of this Agreement relating to the nature, volume or weight of Municipal Solid Waste,
or Recyclable Materials to be removed, the Service Provider may refrain from collecting all or a
portion of such Municipal Solid Waste or Recyclable Materials and will notify the City within
eight (8) hours thereafter of the reason for such non-collection. The Service Provider will also
provide written notice to the Commercial, Industrial or Residential Unit of the reason for such
non-collection, unless such non-collection is the result of the Commercial, Industrial or
Residential Unit's failure to timely place the Containers, Bags, Bulky Items or Green Waste out
for collection. Such written notice shall be attached to the Container or the uncollected
Municipal Solid Waste, shall indicate the nature of the violation and shall indicate the correction
required in order that such Municipal Solid Waste or Recyclable Materials may be collected.
B. Notice from a Commercial. Industrial or Residential Unit. When the City is notified by
an owner or occupant of a Commercial, Industrial or Residential Unit that Municipal Solid Waste
or Recyclable Materials has not been removed from such Commercial, Industrial or Residential
Unit and where no notice of non-collection or a change in collection schedule has been received i
by the City from the Service Provider, or the Service Provider has failed to collect Municipal
Solid Waste or Recyclable Materials from the Commercial,Industrial or Residential Unit without
cause, as supported by notice as described herein, then the Service Provider will use all
reasonable efforts to collect such Municipal Solid Waste or Recyclable Materials on the day a
collection order is issued by the City; provided, however, that if the Service Provider fails to
make such collection on the same day that a collection order is issued by the City, the Service
Provider shall make such collection no later than 12:00 p.m. on the following Business Day, and
there shall be no charge to the Service Provider for any such original non-collection or late
collection so long as the Service Provider makes such collection within such time.
13
{ IJ
r ,
SECTION 18. HOURS OF SERVICE.
For all the Services provided hereunder, the Service Provider's hours of service shall be between
7:00 a.m. to 7:00 p.m., Monday through Saturday. The Service Provider will not be required to
provide service on weekends or Holidays except during natural disasters or emergencies, and
may, at its sole discretion, observe Holidays during the term of this Agreement; provided,
however, that the Service Provider shall provide such services on the immediately following
business day.
SECTION 19. CUSTOMER SERVICE.
The City agrees to field all inquiries and complaints from Commercial, Industrial and Residential
Units relating to the collection, hauling, recycling and disposal of Municipal Solid Waste and
Recyclable Materials. The Service Provider and the City agree to cooperate with each other in
the response to any such inquiries and the resolution of any such complaints. In order to assist
the City in its obligations under this Section 19, the Service Provider agrees to provide City Hall
with a primary contact and toll free telephone number, as well as Service Request Forms for
customer service issues such as changes in service and missed collections. f
SECTION 20. COMPLIANCE WITH APPLICABLE LAWS.
The Service Provider shall comply with all applicable federal and state laws regarding the
collection, hauling, recycling and disposal of Municipal Solid Waste and Recyclable Materials,
including existing and future laws that may be enacted, as well as any regulations reasonably
passed by the City that are not in derogation of this Agreement. Nothing in this Agreement shall
be construed in any manner to abridge the City's right to pass or enforce necessary police and
health regulations for the reasonable protection of its inhabitants. The City shall have the right to j
make reasonable inspections of the Service Provider in order to insure compliance with this
Section 20.
SECTION 21. VEHICLES AND EQUIPMENT.
Vehicles used by the Service Provider for the collection, hauling, recycling and disposal of
Municipal Solid Waste and Recyclable Materials shall be protected at all times while in transit to
prevent the blowing or scattering of Municipal Solid Waste and Recyclable Materials onto the
City's public streets, or properties adjacent thereto, and such vehicles shall be clearly marked
with the Service Provider's name in letters and numbers not less than two (2) inches in height.
All collection vehicles used by the Service Provider shall be washed and deodorized once per
week.
SECTION 22. DUE CARE.
The Service Provider shall exercise due care and caution in providing the Services so that the
City's publib and'private property, including streets and parking areas, will be protected and
preserved.
14
SECTION 23. PERSONNEL AND PERFORMANCE STANDARDS.
The Service Provider shall not deny employment to any person on the basis of race, creed or
religion, and will insure that all federal and state laws pertaining to salaries,wages and operating
requirements are met or exceeded. The Service Provider, its agents, servants and employees
shall perform the Services in a courteous, competent and professional manner. During the term
of this Agreement and any extension thereof, the Service Provider shall be responsible for the
actions of its agents, servants and employees while such agents, servants and employees are
acting within the scope of their employment or agency.
SECTION 24. INSURANCE COVERAGE.
Pursuant to this Agreement, the Service Provider shall carry the following types of insurance in
an amount equal to or exceeding the limits specified below:
Coveraee Limits of Liability
(1) Worker's Compensation Statutory
(2) Employer's Liability $500,000
/ (3) Bodily Injury Liability(except automobile) $500,000 per occurrence;
$1,000,000 in the aggregate
(4) Property Damage Liability(except automobile) $500,000 per occurrence;
$500,000 in the aggregate
(5) Automobile Bodily Injury Liability $500,000 per person;
$1,000,000 per occurrence
(6) Automobile Property Damage Liability $500,000 per occurrence
( ) Excess Umbrella Liability $5,000,000 per occurrence
To the extent permitted by law, any or all of the insurance coverage required by this Section 24
may be provided under a plan(s) of self-insurance, including coverage provided by the Service
Provider's parent corporation. Upon the City s request,the Service Provider shall famish the City
with a certificate of insurance verifying the insurance coverage required by this Section 24.
SECTION 25. INDEMNITY.
To the extent covered by applicable insurance, the Service Provider assumes all risks of loss or
injury to property or persons caused by its performance of the Services. The Service Provider
agrees to indemnify and hold harmless the City and its agents, directors, employees, officers and
15
servants from and against any and all suits, actions, legal proceedings, claims, demands,
damages, costs, liabilities, losses or expenses (including, but not limited to, reasonable attorneys'
fees) caused by a willful or negligent act or omission of the Service Provider, its officers and
employees. However, the Service Provider shall not be liable for any legal proceedings, claims,
demands, damages, costs, expenses and attorneys' fees caused by a willful or negligent act or
omission of the City, its agents, directors, employees, officers and servants.
SECTION 26. SAVINGS PROVISION.
In the event that any term or provision of this Agreement shall be determined by a court of
competent jurisdiction to be invalid or unenforceable, this Agreement shall, to the extent
reasonably possible, remain in force as to the balance of its terms and provisions as if such
invalid term or provision were not a part hereof.
SECTION 27. TERMINATION.
Any failure by either party or its successors and assigns to observe the terms and conditions of
this Agreement shall, if continuing or persisting without remedy for more than fifteen (15) days
after the receipt of due written notice from the other parry, constitute grounds for forfeiture and
immediate termination of all the defaulting party's rights under this Agreement, and all such
rights shall become null and void.
r. I
SECTION 28. HOUSEHOLD HAZARDOUS WASTE.
The Service Provider shall make an annual payment to the City in the amount of$7500.00, on or
before March 31 of each year of this agreement,for its Household Hazardous Waste Program.
I
SECTION 29. SCHOLARSHIPS.
Each year the Service Provider shall provide an annual$1000.00 scholarship to two students: one
from Clear Brook High School and one from Friendswood High School.
SECTION 30. HOUSE COUNT.
The City and the Service Provider will conduct a count of all Single-Family Residential Units
located in the City's limits once per year.The parties shall mutually agree on the day and time for J
such count. I
I
SECTION 31. FORCE MAJEURE.
The performance of this Agreement may be suspended and the obligations hereunder excused in i
the event and during the period that such performance is prevented by a cause or causes beyond jI
reasonable control of such party. The performance of this Agreement will be suspended and the
obligations hereunder excused only until the condition preventing performance is remedied.
�- - Such conditions shall include, but not be limited to, acts of God, acts of war, accident, explosion,
16
fire, flood, riot, sabotage, acts of terrorists, unusually severe weather, lack of adequate fuel, or
judicial or governmental laws or regulations.
SECTION 32. GOVERNING LAW.
This Agreement shall be governed in all respects, including as to validity, interpretation and
effect, by the internal laws of the State of Texas, without giving effect to the conflict of laws
rules thereof. The parties hereby irrevocably submit to the jurisdiction of the courts of the State
of Texas and the Federal courts of the United States located in the State of Texas, solely in
respect of the interpretation and enforcement of the provisions of this Agreement and venue for
any legal action or proceeding arising under or relating to the franchise herein shall lie
exclusively in Galveston County,Texas,
The Service Provider agrees that the City has not, and does not, waive any immunities or
exemptions, defenses, or sovereign immunity, to which the City, its officers and employees, are
entitled by law.
SECTION 33. NOTICES.
Any notices required or permitted to be delivered hereunder shall be in writing and shall be
deemed to be delivered when deposited in the United States mail,postage prepaid, certified mail,
return receipt requested, addressed to the respective party at the address set forth below:
Ifto the Citv:
City of Friendswood
910 S.Friendswood Drive
Friendswood,TX 77546
Attn: City Manager
If to the Service Provider:
IESI TX Corporation
927 W.Hwy 6
Alvin,TX 77511
Attn: District Manager
With Copy to:
IESI Corporation
2301 Eagle Parkway, Suite 200
Ft.Worth,TX 76177
or such other addresses as the parties may hereafter specify by written notice and delivered in
accordance herewith.
SECTION 34. PERFORMANCE BOND.
The Service Provider shall maintain in full force and effect during the term of this Agreement a
17
Performance Bond in the amount of$250,000. The Service Provider shall be responsible for any
premium payment required for the Performance Bond and maintaining such Bond throughout the
term of this Agreement. A certificate showing that the Performance Bond premiums are paid in
full shall accompany the original Performance Bond to be filed with the City, and such certificate
shall be submitted to the City on an annual basis. The surety that issues the Performance Bond
shall be authorized to do business in the state of Texas.
SECTION 35. ATTORNEYS' FEES.
i
i
The prevailing party in any dispute between the parties arising out of the interpretation,
application or enforcement of any provision hereof shall be entitled to recover all of its
reasonable attorneys' fees and costs whether suit be filed or not, including without limitation
costs and attorneys' fees related to or arising out of any trial or appellate proceedings.
I
SECTION 36. ACCEPTANCE.
PASSED AND APPROVED BY THE CITY COUNCIL OF FRIENDSWOOD AT A TIME
AND PLACE IN COMPLETE CONFORMITY WITH THE OPEN MEETING LAWS OF THE
STATE OF TEXAS AND ALL OTHER APPLICABLE LAWS THIS 5th DAY OF
March 2012. I
IESI TX CORPORATION CITY OF FRIENDS WOOD
827 W.Hwy 6 910 S.Friendswood Drive
Alvin,TX 775 1 Friendswood,TX 77546
I
By: By:
Jo ustafs ,vice Pre id t Name: David J.H. Nit
Title: Mayor
j
ATTEST:
By: �\
Name: Melinda Welsh
Title: City Secret
FR NO
O
V D
it
s �
TgrF OF
18