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HomeMy WebLinkAboutContract 28207C"'Y SECREMNY NON-EXCLUSIVE PRIVILEGE AGREEMEMONTRAc- . ZA(n This Non -Exclusive Privilege Agreement (hereinafter referred to as "Agreement") is entered into by and between the City of Fork Worth, Texas ("City") a home -rule municipality located within Tarrant and Denton Counties, acting through Libby Watson, its duly authorized Assistant City Manager, and Empire Disposal, Inc. ("Grantee"), acting through Sandra McGlothlin, its duly authorized representative. WHEREAS, the City desires to regulate the business of collecting and transporting municipal solid waste produced within the City by entering into non-exclusive privilege agreements with persons engaged in such business; and WHEREAS, Grantee desires to engage in the business of collecting and transporting municipal solid waste produced within the City; NOW THEREFORE, for and in consideration of the mutual promises and agreements herein set forth, and other good and valuable consideration, the receipt and sufficiency of which is hereby confessed and acknowledged, the City and Grantee agree as follows: 1. PRIVILEGE: A non-exclusive privilege is hereby granted to use the public streets, alleys and thoroughfares within the corporate limits of the City of Fort Worth for the purpose of engaging in the business of collection of solid waste. 2. TERM: The term of this Agreement shall be for a period of five (5) years. This Agreement shall automatically renew at the end of every five year term of the Agreement unless notice of termination is provided by one party to the other at least thirty (30) days prior to the date of renewal. 3. SCOPE AND NATURE OF OPERATION: It'is expressly understood and agreed that the Grantee may collect and deliver for disposal all solid waste, including recyclable materials, accumulated on premises within the corporate limits of the City, where the individuals or companies contract with the Grantee for those services excluding residential service other than apartment complexes and motels. Grantee will, at its own expense, furnish personnel and equipment to collect solid waste and will establish and maintain in an efficient and businesslike manner the contracted services. Grantee will furthermore comply with all pertinent rules, regulations, laws, and ordinances as directed by the City of Fort Worth and all other governmental entities having jurisdiction thereupon. 4. REGULATION OF VEHICLES: All vehicles used by the Grantee for the collection and transportation of solid waste shall be registered with the City, shall have a permit attached thereto, and shall be covered at all times while loaded and in transit to prevent the spillage of solid waste onto the public streets or properties adjacent thereto. Any spillage will be promptly recovered by the Grantee. All vehicles owned by the Grantee shall be clearly marked with the Grantee's name in letters not less than four (4) inches in height. All such vehicles shall be clean. d. and rnatnntain:- d6 by kwb U Ilullt, aLs.��'45j11;i� Revised by CRL Cff $K' 200208290 jf��j�! �� "}r•j� Grantee so as to be in good repair and of good appearance and, when idle, free of solid waste residue as may cause odor or provide a breeding place for vectors. 5. REGULATION OF LEASED CONTAINERS: It is specifically understood and agreed that the City of Fort Worth shall permit the Grantee to rent or lease containers for collection purposes to the owner or occupant of any premises within the corporate limits of the City, excluding residential customers other than apartment complexes and motels, for collection purposes subject to the following requirements: (1) ALL such containers shall be constructed according to good industry practice in the trade; (2) ALL such containers shall be equipped with suitable covers to prevent blowing or scattering of solid waste while being transported for disposal of their contents; (3) ALL such containers shall be cleaned and maintained by grantee so as to be in good repair, of a good appearance and free of such solid waste residues as may cause odor and provide a breeding place for vectors; (4) ALL such containers used for the disposal of food waste or other putrescible material shall be serviced no less than two times per week; and (5) ALL such containers shall be clearly marked with the grantee's name and telephone number in letters not less than four (4) inches in height. The City of Fort Worth and the Grantee expressly agree that regardless of any responsibility which may be placed on the citizens of Fort Worth or other third parties for the above five requirements, the Grantee under this contract agrees to be responsible for each of the five requirements and to fulfill each of them without asserting they are the responsibility of some third party. 6. DAMAGE TO PUBLIC PROPERTY: Grantee expressly agrees to assume liability for all costs of repair of public streets, bridges, rights -of -way, and other facilities that are damaged as a result of negligence by Grantee, its officers, agents, or its employees during it's operations pursuant to this agreement. 7. DISPOSAL OF SOLID WASTE: It is specifically understood and agreed that Grantee will comply with all rules, regulations, laws and ordinances pertaining to. the disposal of solid waste as directed by responsible governmental agencies having jurisdiction thereupon. Disposal of all solid waste collected by the Grantee from premises within the corporate limits of the City of Fort Worth must be made at a lawfully permitted sanitary landfill. Grantee's violation of this provision shall be cause for revocation of this Agreement. Revised by CRL 200208290 un" B. SOLID WASTE COLLECTION: The collection of solid waste between the hours of 11:00 p,m. and 6:00 a.m. shall be prohibited. However, Grantee may seek permission from the Director of Environmental Management ("Director") in writing by stating the particular hours Grantee wishes to collect waste and the reasons necessary for this exception. Upon receiving a written request, which must be mailed by the US Postal Service, returned receipt requested, the Director shall have ten (10) days to make a determination and shall notify the Grantee in writing of the decision within fifteen (15) days of the receiving notice. The Director reserves the right to review that decision if a complaint is received. The Director shall notify the Grantee, and the Grantee may present evidence to the Director or designated representative regarding such complaint. The Director or his designated representative shall determine (1) whether such collection between the hours of 11:00 p.m. and 6:00 a.m. did, in fact, occur at that location and was the cause of such complaint, and if so, (2) whether such collection at those hours and at that location should be prohibited and the Grantee's exception revoked. 9. FEE: For and in consideration of the covenants and agreements herein contained, Grantee hereby agrees to pay to the City of Fort Worth a fee of five percent (6%) of the gross revenues generated from Grantee's operations within the City. (A) Calculation: The calculation of gross revenues generated from operations within the City shall include all revenue derived, directly or indirectly by Grantee from or in connection with its operations within the service area covered by this agreement, excluding revenues generated from contracts with the City for residential garbage and recycling services, as determined in accordance with generally accepted accounting principles. Gross revenues shall include, but are not limited to, revenues received from the collection and disposal of all solid waste. (B) Fee Pavment: The fee shall be paid on a quarterly basis no later than thirty (30) days after the end of each calendar quarter. The payment shall be made to the City of Fort Worth, Department of Environmental Management, Solid Waste Management Division, 4100 Columbus Trail, Fort Worth, TX 76133. (C) Delinquent Pavments: Fee payments received after the due date shall be subject to interest at the rate of twelve (12%) percent per annum until the fees are paid in full. 10. REPORTS: Each quarterly payment shall be accompanied by a financial accounting report using the form which is attached as Exhibit A, showing the basis for the computation of the quarterly payment and a) total estimated volumes of solid waste collected by the solid waste hauler with separate figures for multi -family living units, and from commercial accounts; Revised by GRL *MIN200208290 . W 'u`19 b) total estimated volumes of waste material recycled by the solid waste hauler, with separate figures for multi -family living units and from commercial accounts; and c) a description and the total estimated volumes of each type of waste material recycled by the solid waste hauler. 11. AUDITING BOOKS AND RECORDS: The City shall have the authority to arrange for and conduct, at the City's expense, an audit of the books and records of the Grantee at the Grantee's location. The records kept on site by Grantee shall include at a minimum the list of accounts, the number and size of containers, the frequency of collection and the revenue generated. The Grantee shall be given at least five (5) days notice of the audit, a description of and the purpose for the audit, and a description, to the best of the City's ability of the books, records, and documents the City wishes to review. Grantee shall pay the costs of audit if the results of the audit establish that Grantee has underpaid the fees required hereunder in any given year by 5% or more. 12. FORFEITURE: The failure or refusal of the Grantee to comply with any of the provisions of this Agreement or any of the provisions of the Code of the City of Fort Worth, or any other applicable rules, regulations, laws and ordinances shall be deemed a breach of this Agreement. The Director shall notify the Grantee of such breach and the Grantee shall have 30 days to cure the breach. If the breach is not cured within 30 days and no "good faith" effort is being made to cure the breach, the Director may recommend to the City Council that at a regularly scheduled City Council meeting it should declare the privilege forfeited and may exclude the Grantee from further use of the streets of the City under the privilege. The Grantee shall thereupon immediately surrender all rights in and under the privilege and the privilege shall be null and void. 13. INDEMNITY INSURANCE: Grantee assumes all risk of loss or injury to property or persons arising from any of its operations under this Agreement, and agrees to indemnify and hold harmless the City of Fort Worth from all claims, demands, suits, judgments, costs or expenses, including attorney's fees, arising from any such loss or injury. It is expressly understood that the provisions contained herein shall not in any way limit the liability of the Grantee. Grantee agrees to maintain insurance as follows: A. Minimum Limits: 1. Commercial General Liability 2. Automobile Liability Insurance: Revised by CRL 200208290 $1,000,000.00 per occurrence $2,000,000.00 aggregate $1,000,000.00 each accident. Coverage is to include "any auto" used by Grantee. Coverage shall include loading and unloading. i �tM , „�� 3. Workers' Compensation Insurance: Part A: Statutory limits Part B: Employer's liability $1,000,000.00 each accident; $1,000,000.00 disease - policy limit; and $1,000,000.00 disease - each employee 4. Pollution Liability Insurance 5. Excess Umbrella Liability: B. Other Insurance Terms: $1,000,000.00 per occurrence $2,000,000.00 per occurrence 1. The City of Fort Worth shall be endorsed as an additional insured on each of Grantee's insurance policies. 2. Grantee's insurance shall be endorsed with a waiver of sub -rogation in favor of the City. 3. Grantee's insurance policies shall be endorsed to provide a minimum 30 days notice of cancellation, non -renewal, or material change in coverage, such notice to be sent to the City at the address set forth below. 4. City of Fort Worth shall receive Certificates of Liability Insurance prior to Grantee beginning work. 5. Insurers shall be acceptable to the City of Fort Worth and Insurers shall be duly authorized by the Texas Department of Insurance. 6. Grantee's insurance policies shall not have a greater than $50,000.00 deductible per occurrence unless otherwise approved by City. 7. Insurance agencies used by Grantee shall be duly licensed in the State of Texas. 14. RETENTION OF RIGHTS BY CITY: The City of Fort Worth, in granting this privilege, fully retains and reserves all the rights, privileges, and immunities that it now has under the law to fully patrol and police the streets, alleys and public ways within the City, and the granting of this privilege shall in no wav interffere with the improvements or maintenance, on any streets, alleys or p M ,Waypll _. ie rights I.1R aw;Revised by CRL 200208290 ; n til of the Grantee herein to use the streets shall at all times be subservient to the .right of the governing body of the City of Fort Worth to fully exercise its rights of control over streets, alleys and public ways. 15.AMENDMENTS: The City of Fort Worth expressly reserves the right, after due notice to Grantee, to modify, amend, alter, change, or eliminate any of the provisions of this privilege and to impose such additional conditions upon the Grantee as may be just and reasonable as determined by the City Council, the conditions to be those deemed necessary for the purpose of insuring adequate service to the public. 16.ASSIGNMENT OF AGREEMENT: This Agreement and any and all rights and obligations hereunder may be assigned by the Grantee only with the prior written consent of the City Council. All provisions of this Agreement shall apply to the Grantee, its successors or assigns. 17. SEVERABILITY: If any section, subsection, sentence, clause, phrase, or other portion of this Agreement is, for any reason, declared invalid, in whole or in part, by any court, agency, commission, legislative body, or other authority of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent portion. Such declaration shall not affect the validity of the remaining portions herein, which other portions shall continue in full force and effect. 18.MAILING OF NOTICES: Every notice to be served upon the City or the Grantee shall be hand delivered or sent by certified mail, return receipt requested. Every such communication to the City shall be delivered or sent to the Assistant Director of Environmental Management at the following address: 4100 Columbus Trail, Fort Worth, Texas 76133. Every such notice to the Grantee shall be delivered or sent to 5301 Sun Valley Drive, Fort Worth, Texas 76119. The mailing of such notice shall be equivalent to direct personal notice and shall be deemed to have been given when received. Either party may, upon written notice to the other party, change the address specified in this section. 19.APPLICABLE LAW AND VENUE: This Agreement shall be deemed to be executed in the City of Fort Worth, Texas, regardless of the domicile of the Company, and shall be governed by and construed in accordance with the laws of the State of Texas. Venue for any legal action or proceeding arising under or relating to this Agreement shall be in Tarrant County, Texas. 20. EFFECTIVE DATE: This Agreement shall be effective September 10, 2002. Revised by CRL 200208290 IN WITNESS HEREOF, the City and Grantee have executed this agreement by their authorized representatives on this day of Z.4=Z . THE CITY OF FORT WORTH, TEXAS Vflbby Watson Assistant City Manager EMPIRE DISPOSAL, INC. By: ` andra McGlothlin President APPROVED AS TO FORM AND LEGALITY: WITNESS: Assistant City Attorney n Gloria PearKn City Secretary City of Fort Worth ContrAct Authorization Ll Revised by CRL 200208290 Name:,r� Title: CORPORATE SEAL: City o, f Fort Worth, Texas Mayor and Council Communication DATE REFERENCE NUMBER LOG NAME PAGE 9110/02 **C-19233 I 52EMPIRE I 1 of SUBJECT AGREEMENT GRANTING NON-EXCLUSIVE PRIVILEGE TO 1= MF IR'r: DISPOSAL, INC. TO COLLECT AND TRANSPORT MUNICIPAL SOLID WASTE IN FORT WORTH RECOMMENDATION: It is recommended that the City Council authorize the City Manager to execute a five year agreement granting non-exclusive privilege to Empire Disposal, Inc. to use public streets, alleys, and thoroughfares within the City of Fort Worth for the business of collecting municipal solid waste. DISCUSSION: Empire Disposal, Inc. has submitted an application for a non-exclusive privilege agreement to collect. and transport municipal solid waste generated by businesses, industries, and apartment complexes in Fort Worth. Under the terms of this agreement, Empire Disposal, Inc. shall pay the City of Fort Worth a fee totaling 5% of gross revenues derived from its commercial collection operations within the City. This fee shall be paid on a quarterly basis no later than 30 days after the end of each calendar quarter. Empire Disposal, Inc. also agrees to comply with other provisions specified in the agreement. The proposed agreement is for a period of five years and will automatically renew unless notice of termination. is provided by one party to the other at least 30 days prior to the date of the renewal. The agreement will become effective on the date signed. FISCAL INFORMATION/CERTIFICATION.: The Finance Director certifies that all revenues will be deposited in the Solid Waste Enterprise Fund. LW:n Submitted for City Manager's I FUND I ACCOUNT Office by: I (to) f PE64 464122 Libby Watson 61$3 Originating Department Read: Brian Boemer 8079 (from) Additional Information Contact: Kim Mote 5150 CENTER 1 AMOUNT 0525001 CITY SECRETARY 1 1 APPROVED 09/10/02 1