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HomeMy WebLinkAboutContract 30645 I i\;O. LQC215 STATE OF TEXAS § COUNTIES OF TARRANT, DENTON AND WISE § CONTRACT FOR COLLECTION SERVICES FOR BRUSH AND BULKY WASTE THIS CONTRACT is made and entered into by and between the City of Fort Worth, a home-rule municipal corporation in Tarrant, Denton, and Wise Counties, Texas, acting herein by and through Libby Watson, its duly authorized Assistant City Manager, hereinafter called "City", and IESI TX Corporation doing business in Texas, acting herein by and through Jeff Peckham, its duly authorized Vice President, hereinafter called "Contractor." THIS CONTRACT shall be for the collection of Brush and Bulky Waste. KNOW ALL BY THESE PRESENTS: 1. DEFINITIONS In this Contract, the following words and phrases shall be defined as follows; Acceptable Waste shall mean the following as defined herein, Type IV Waste, C&D Waste, Large Brush and Large Bulky Waste, White Goods, and Yard Waste. Affiliate shall mean any parent, subsidiary, or any other entity controlling, controlled by, or under common control, of IESI Corporation, or IESI TX Corporation . Applicable Law shall mean any statute, law, constitution, charter, ordinance, resolution, judgment, order, decree, rule, regulation, directive, interpretation, standard or similarly binding authority, which in any case, shall be enacted, adopted, promulgated, issued or enforced that relates to or affects the City, the Contractor, or the performance by a party of its obligations hereunder. Brush shall mean shrub limbs, tree limbs (up to four (4) inches in diameter), tree trimmings resulting from landscape maintenance and cleaning operations (other than an Unacceptable Commercial Pile), and untreated lumber (essentially free of hardware and nails, provided untreated lumber with hardware and nails can be collected without harm to Contractor's employees), not exceeding eight (8) feet in length, and not including Bulky Items. Brush Pile shall mean a waste pile consisting only of Brush. Contract for collection of brush and bulky waste CRP09 29.04v3final 1 Bulky Items shall mean furniture, Treated Wood, up to ten (10) cubic yards of construction materials generated by a Resident (and not by a Commercial Service Provider) as a result of a household project, mattresses and box springs, carpet, swing sets, plastic swimming pools, small and large toys, bicycles, fish aquariums, toilets, household appliances, electronic equipment, and other similar items, open cardboard boxes only containing materials permitted to be disposed of at a Type IV landfill, White Goods (CFC-Free), large branches (being branches in excess of four (4) inches in diameter), tree trunks, root balls; provided, all such materials must be permitted to be disposed of in a Type IV landfill. Bulky Waste Pile shall mean a waste pile which contains Bulky Items. Bundled Yard Waste shall mean Brush that is cut, bundled and tied, with no limbs exceeding four inches (4") in diameter, and four feet (4') in length and such bundle not exceeding forty (40) pounds,but not including Bulky Items. City shall mean the City of Fort Worth, Texas. Collection Day shall mean the Day a Brush or Bulky Waste Pile is actually collected from a given Service Unit, which Day shall fall (and may vary) as established by the City and Contractor. Collection Services shall mean removal of Bundled Brush, Yard Waste, Brush and Bulky Waste for transport elsewhere, or cause of such to be done. Commission shall mean the Texas Commission of Environmental Quality (TCEQ), formerly known as the Texas Natural Resource Conservation Commission (TNRCC). Construction and Demolition Waste (C & D) shall mean waste resulting from construction or demolition projects; includes all materials that are directly or indirectly the by-products of construction work or that result from demolition of buildings and other structures, including, but not limited to, bricks, concrete, other masonry materials, paper, cartons, gypsum board, wood, excelsior, rubber, and plastics. Contract shall mean this document and all attachments to this document. Contractor shall mean IESI TX Corporation. Day shall mean calendar day, unless otherwise specified. DEM shall mean the Department of Environmental Management of the City of Fort Worth. Director shall mean the Director of DEM or his designated representative. Disposal shall mean the dumping or depositing of Brush and Bulky Waste into or onto a Disposal Facility so that the waste or any constituent thereof is introduced into the environment. Contract for collection of brush and bulky waste CRP09.29.04v3final 2 Disposal Facility shall mean a sanitary landfill or other facility permitted by TCEQ and/or other applicable regulatory agency with jurisdiction and utilized for the receipt or final disposition of Brush and Bulky Waste, White Goods and Yard Waste generated within the City. Garbage shall mean 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. Governmental Body shall mean, as appropriate, any one or several of any court of competent jurisdiction, the United States of America, the State of Texas and/or any appropriate jurisdiction over activities relating to the services provided for under the terms of this Contract; or any agency, authority, regulatory body or subdivision of any of the above as may have jurisdiction over or power and authority to regulate the City, the Contractor, or the disposal and processing of the material described herein. Government Approvals shall mean all licenses, permits and approvals required from any Governmental Body for performance of the Contractor's obligations under this Contract. GVW shall mean gross vehicle weight. Hazardous Waste shall mean any Solid Waste identified or listed as a Hazardous Waste by the administrator of the United States Environmental Protection Agency (U.S.E.P.A) pursuant to the federal Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, 42 USC, §6901 et seq, as amended. Landfill shall mean the Contractor's Landfill located at 4144 Dick Price Road, Kennedale, Texas or as otherwise directed. Material Obligation of City shall mean those services or duties for which this Contract calls upon by the City to perform unless specifically noted otherwise within the terms of this Contract, and for which, by the terms of this Contract may constitute grounds for penalties or termination if the City fails to perform such services or duties. Material Obligation of Contractor shall mean those services or duties for which this Contract calls upon by the Contractor to perform unless specifically noted otherwise within the terms of this Contract, and for which,by the terms of this Contract may constitute grounds for penalties or termination if the Contractor fails to perform such services or duties. Medical Waste shall mean waste generated by health-care-related facilities and associated with healthcare activities, not including Garbage or Rubbish generated from offices, kitchens, or other non-health-care activities. The term includes special waste from health care-related facilities which is comprised of animal waste, bulk blood and blood products, microbiological waste, pathological waste, and sharps as those terms are defined in 25 TAC §1.132 (Definition, Treatment, and Disposition of Special Waste from Health-Care Related Facilities) or any Contract for collection of brush and bulky waste CRP09.29.043frnal v�OC� o -%i I 11 G�:o successor. The term does not include Medical Waste produced on farmland and ranchland as defined in Agriculture Code, §252.001(6) (Definitions--Farmland or ranchland) or any successor, nor does the term include artificial, nonhuman materials removed from a patient and/or requested by a patient, including but not limited to orthopedic devices and implants. Person shall mean any individual, partnership, co-partnership, firm, company, corporation, association, joint stock company, trust, estate, governmental entity, or any other legal entity; or their legal representatives, agents, or assigns. This definition includes all Governmental Bodies. Refuse shall mean nonputrescible Solid Waste (excluding ashes), consisting of both combustible and noncombustible waste materials. Combustible Refuse includes paper, rags, cartons, wood, excelsior, furniture, rubber, plastics, yard trimmings, leaves, or similar materials; noncombustible Refuse 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). Rubbish shall mean the same as Refuse. Type IV Waste shall mean brush such as tree and shrub limbs and trimmings, C&D, and/or Refuse that are free of putrescible and free of household wastes as is regulated by Applicable Law. Service Unit shall mean a Single-Family dwelling, two-unit Multi-Family dwelling, and commercial generator that currently sets out their municipal Solid Waste in one-way containers, and other units such as aggregate containers and lamppost containers designated by the City for service. Ton shall means a short ton of 2000 pounds. Trash shall mean the same as Refuse. Treated Wood shall mean wood that has been treated or preserved with chromated copper arsenate (CCA), pentachlorophenol, or other chemicals which have been classified as known human carcinogens by the U. S. E. P. A. Unacceptable Waste shall mean any and all waste, including but not limited to Hazardous Waste, special waste, Medical Waste and friable asbestos, the acceptance and handling of which by City Collector(s) would cause a violation of any permit condition, legal or regulatory requirement. Vehicle shall mean every device in, upon, or by which Contractor uses to transport materials and/or waste or drawn upon a public or private highway or road to perform the services and related services described for by this Contract. Contract for collection of brush and bulky waste CRP09.29.043ftnal 4 Violation shall mean any determination by a Governmental Body that the Contractor is in violation of or not in compliance with any portion of its permit(s) or Applicable Law. White Goods shall mean appliances such as refrigerators, stoves, washers, dryers and other large enameled appliances, which do not contain PCB or CFC units and have been officially certified to that effect. Working Day shall mean Monday through Saturday and holidays, except New Year's Day, Thanksgiving Day, and Christmas Day. Yard Waste shall mean leaves, yard trimmings, yard and garden debris, Christmas trees, and brush, including clean woody vegetative material not greater than six (6) inches in diameter, which results from landscaping maintenance and land-clearing operations. The term does not include stumps, roots, or shrubs with intact root balls, and specifically excludes all Treated Wood. 2. SCOPE OF CONTRACTOR'S SERVICES Contractor hereby covenants and agrees to diligently and faithfully perform the Collection Services listed below. These Collection Services shall include the furnishing of all labor, tools, equipment, materials, insurance, supervision and all other items necessary to the performance of such work and services. All work and services to be performed under this Contract shall be carried out in the following manner, at the times, in the locations and at the prices specified herein. A. Contractor shall provide for the collection of Bulky Waste and Brush from Service Units within routes designated and assigned by the City. B. Contractor shall collect Brush and Bulky Waste on these assigned routes in a reasonable and systematic manner to ensure the collection of all Bulky Waste Items and Brush set out for collection at a Service Unit as designated by the City. C. Contractor shall inform the City's representative of the start date and time and the completion date and time of each assigned route. D. Contractor shall collect any missed Brush Pile or Bulky Waste pile as designated by the City within forty-eight (48) hours of notification from the City and inform the City's representative of their collection. E. Contractor shall work six (6) days per week on collections from the assigned routes. Hours of collection shall be limited to the hours between 7:00 am to 7:00 pm. Contract for collection of brush and bulky waste CRP09.29.043ftnal CIS ; FY, sp a°�� � y E N F. Contractor shall take all measures necessary to complete the assigned routes in an expeditious and timely manner. G. Materials collected by the Contractor shall be disposed of by the Contractor in the disposal facilities as directed by the Director of Environmental Management or his designated representative. The City may change the assignment of these locations as it deems necessary. 3. SCOPE OF CITY SERVICES The City agrees to perform the following services: A. Designate a City representative to provide timely direction to the Contractor and render City decisions; B. Assign routes to Contractor for the collection of Brush and Bulky Waste; C. Timely review and respond, if necessary, to reports submitted by Contractor; D. Verify the completion date and time of each assigned route and inform Contractor of any missed Brush Pile and Bulky Waste Pile at a Service Unit within twenty-four(24)hours; E. Designated the landfill(s) to which Contractor must deposit the Brush and Bulky Waste; F. Monitor the Personnel, Equipment, and Vehicle Standards as described in the terms of this Contract; and G. Inform Contractor of complaints in a timely manner. 4. TERM This Contract shall commence on September 29, 2004 and terminate on October 31, 2004, unless agreed to otherwise in writing by both parties in an amendment to this Contract. 5. PAYMENT A. For and in consideration of the above Collection Services performed in accordance with this Contract, City agrees to pay Contractor: 1. One hundred dollars ($100.00)per truck hour; and Contract for collection of brush and bulky waste CRP09.29.04v3final 6 2. In an amount not-to-exceed one hundred fifty thousand dollars and no cents ($150.000) for the term of the Contract (such amount, as may be amended by the parties, the"Maximum Fees"). In the event the amounts due to Contractor hereunder equal or exceed $100,000 in the aggregate, Contractor shall promptly notify the City by email, facsimile, or certified mail, return receipt requested. In the event the amounts due to Contractor hereunder in the aggregate at any time equal or exceed the Maximum Fees, Contractor shall promptly notify the City and Contractor may, upon or after receipt by City of such notice, terminate this Contract, unless the City has then-authorized an increase in the Maximum Fees and agreed with Contractor in writing to amend the terms of this Contract to reflect such increase. The City expressly acknowledges that Contractor shall not be responsible for any delay in collection and disposal services resulting from Contractor's termination as provided herein. The parties acknowledge that the consideration hereunder does not include disposal fees incurred in the performance of this Contract, and that the City is responsible for payment of such disposal fees. B. Within fifteen (15) Days of the end of the term in which services are provided by the Contractor, Contractor shall submit to the City a monthly report and invoice. Payment shall be made to the City or Contractor within thirty (30) Days of receipt and approval by the Director of the Contractor's final monthly invoice of services provided and monthly report. 6. LABOR FORCE A. The Contractor agrees that all persons employed in the performance of services under the Contract shall be paid standard wages; notwithstanding the foregoing the Contractor agrees to: I. comply with all requirements of Chapter 2258, Texas Government Code, including the payment of not less than the rates determined by the City Council of the City of Fort Worth to be the prevailing wage rates in accordance with Chapter 2258, Texas Government Code; 2. maintain records that show (1) the name and occupation of each worker employed by the Contractor for the Processing and Disposal services; and (2) the actual per diem wages paid to each worker, for a period of three(3) years following the commencement date. 3. post the prevailing wage rates in a conspicuous place at Contractor's Landfill at all times. Contract for collection of brush and bulky waste CRP09.29.043final MAi B. All workers shall have sufficient skill, ability, and experience to properly perform the work assigned to them and operate any equipment and Vehicles necessary to properly carry out the performance of the assigned duties. 1. Contractor shall provide suitable operational and safety training for all of its employees who utilize or operate equipment and Vehicles for collection of materials under the Contract. 2. Contractor shall use its best efforts to assure that all employees present a neat appearance and conduct themselves in a courteous manner. Contractor shall regularly train its employees in customer courtesy, and shall prohibit the use of loud or profane language. If any employee is found not to be courteous or not to be performing services in the manner required by the Contract, Contractor shall take all appropriate corrective measures. If City has notified Contractor of a complaint related to discourteous or improper behavior, Contractor will consider reassigning the employee to duties not entailing contact with the public while Contractor is pursuing its investigation and corrective action process. 3. Contractor shall designate qualified employees as supervisors of operations. Supervisors will inspect Contractor's work and will be available by radio or phone during the Contractor's hours of operation to handle calls and complaints from the City, or to follow up on problems and inspect Contractor's operations. 4. All employees of the Contractor performing work under the Contract shall be uniformed showing their association with the Contractor while operating under the Contract. Contractor shall provide a list of current employees, contractors and subcontractors to City upon request. 7. VEHICLES AND EQUIPMENT A. Contractor shall furnish and maintain all equipment and Vehicles used for services under this Contract as is considered to be necessary for prosecution of the work in an acceptable manner and at a satisfactory rate of progress. All equipment, tools, Vehicles and machinery used for handling materials and executing any part of the work shall be maintained in satisfactory, safe and efficient working condition. Equipment and Vehicles used by Contractor shall be such that no injury to the workers or property should result from its proper use. Contractor shall be responsible for initiating, maintaining and supervising all safety precautions and programs, in connection with the work and services performed hereunder. Contractor shall provide reasonable protection to prevent property loss or damage and/or personal injury to persons, including but not limited to employees performing such work and all other persons who may be affected thereby. B. Contractor shall inspect each piece of equipment and each Vehicle daily to ensure that all Contract for collection of brush and bulky waste CRP09.29.04v3final 8 equipment and Vehicles are operating properly. Equipment and Vehicles which are not operating properly shall be taken out of service until repaired and operating properly; and Contractor shall perform all scheduled maintenance functions in accordance with the manufacturer's specifications and schedule. Contractor shall keep accurate records of all equipment and Vehicle maintenance and shall make such records available to the City upon request to the extent necessary to ensure compliance with manufacturer's recommended scheduled equipment or Vehicle service. S. MWBE REQUIREMENTS A waiver from the MWBE requirement was obtained for this Contract. 9. REPORTING REQUIREMENTS Contractor shall maintain and submit to the City accurate reports, which detail certain activity related to the Collection Services. These reports shall include data for all materials handled from Contractor's services to the City. 1. Number of hours per route collected; and 2. The date and time each route is collected; and 3. The date and time each missed Brush and Bulky Waste Pile is collected. 10. EVENTS OF DEFAULT BY CONTRACTOR A. The following shall constitute events of default on the part of the Contractor except to the extent caused by the occurrence of an Uncontrollable Circumstance or City's fault unless otherwise specified herein: 1. Failure by the Contractor to perform any Material Obligation, or duty as defined in Section 2 of Contractor under the terms of this Contract, and continuance of such failure after (i) written notice thereof has been provided by the Director specifying such failure and requesting that such condition be remedied, and (ii) Contractor's failure to cure the default or immediately initiate and diligently pursue reasonable action and cure such non performance within five (5) Days after receiving notice from the Director,provided, if such failure is of a nature that it cannot be cured within such five (5) Day period, Contractor shall not be in default if Contractor commences the curing of such failure within such five (5) Day period, and diligently pursues the curing thereof and both City and Contractor agree that the failure cannot be cured in five(5) Days; or Contract for collection of brush and bulky waste CRP09.29.043final QA plrjonp e n.� IU •,n 0 �•'�/U.Y�I� Y�J�i 0 2. The Contractor being insolvent or bankrupt or ceasing to pay its debts as they mature or making an arrangement with or for the benefit of its creditors or consenting to or acquiescing in the appointment of a receiver trustee, or liquidator for a substantial part of its property; or a bankruptcy, winding up, reorganization, insolvency, arrangement, or similar proceeding instituted by the Contractor, under the laws of any jurisdiction or against the Contractor, if the Contractor does not take the appropriate action to dismiss said proceedings; which proceedings has not been dismissed within ninety (90) Days of the institution of such proceeding; or any action or answer by the Contractor approving, consenting to, or acquiescing in, any such proceeding; or the event of any distress, execution, or attachment upon the property of the Contractor which shall substantially interfere with its performance hereunder. 3. The following acts or omissions by the Contractor shall constitute failure to perform a Material Obligation under this Contract: a. Failure of Contractor to commence work operations within the time specified in the Contract. b. Failure of Contractor to provide and maintain sufficient labor and equipment or permits and necessary Governmental Approvals from City or a third party to properly and legally execute the working operations. c. Evidence that Contractor has abandoned the work. d. Failure on the part of Contractor to comply with the terms of this Contract or any requirements herein, such as, but not limited to, failure to provide the required insurance, or to comply with any of the Director's requirements as reasonably determined. e. Indication that the Contractor has made an unauthorized assignment of the Contract or any funds due hereunder for the benefit of any creditor or for any other purpose. f. Failure to materially supply complete and accurate information as required in this Contract. g. Failure to indemnify the City as required herein. h. Falsifying records or reports to a Governmental Body. i. Failure to comply with Applicable Law. Contract for collection of brush and bulky waste CRP09.29.04v3final 10 B. City shall, as soon as practical, notify Contractor of any failure on the Contractor's part to comply with the terms of this Contract. After receipt of notice from the City, Contractor shall acknowledge receipt of such notice within four (4) hours and shall promptly provide the City with notice of what corrective action has been or shall be taken by the Contractor. Contractor shall follow up with written notice describing the same along with any additional relevant information, within forty-eight (48) hours. Failure to provide acknowledgement of receipt of notice, or plan of corrective action, within the above mentioned time period(s) shall constitute an event of default by the Contractor. 11. EVENTS OF DEFAULT BY CITY A. The following shall constitute events of default on the part of the City, except to the extent excused by the occurrence of an Uncontrollable Circumstance or Contractor's fault unless otherwise specified herein: 1. A failure by City to timely perform any Material Obligation under the terms of this Contract, and the continuance of such failure for a period of five (5) Days after written notice thereof has been provided by the Contractor specifying such failure and requesting that such condition be remedied if City does not either cure the default or initiate and diligently pursue reasonable actions to cure such non-performance; or 2. City being insolvent or bankrupt or ceasing to pay its debts as they mature or making an arrangement with or for the benefit of its creditors or consenting to or acquiescing in the appointment of a receiver, trustee or liquidator for a substantial part of its property; or a bankruptcy, winding up, reorganization, insolvency, arrangement or similar proceeding instituted by City under the laws of any jurisdiction or against City, if City does not take appropriate action to dismiss said proceedings, which proceedings have not been dismissed within ninety(90) Days of the institution of such proceedings; or any action or answer by City, approving of, consenting to, or acquiescing in, any such proceedings; or the levy of any distress, execution or attachment upon the property of City, which shall substantially interfere with its performance hereunder. B. Contractor shall, as soon as practical, notify City of any failure on the City's part to comply with the terms of this Contract. After receipt of notice from the Contractor, City shall acknowledge receipt of such notice within four (4) hours and shall promptly provide the Contractor with notice of what corrective action has been or shall be taken by the City, within a reasonable time, in light of the circumstances. City shall follow up with written notice describing the same along with any additional relevant information, within forty-eight (48) hours. Failure to provide acknowledgement of receipt of notice, or plan of corrective action, within the above mentioned time period(s) shall constitute an event of default by the City. Contract for collection of brush and bulky waste CRP09.29.043Jinal 12. COMPLAINTS AND MISSED PICK-UPS A. The City shall supply on a daily basis to the Contractor written notice outlining all missed collections and complaints received by the City. B. Upon resolution of the complaint, the Contractor will close the work order and notify the City. The closed work order will include: 1. Date, time and action taken to resolve complaint; 2. Name of the person responsible to answer the complaint. 13. TERMINATION This Contract may be terminated by the City upon City Council direction provided the City provides ten (10) Days written notice. 14. INDEPENDENT CONTRACTOR It is expressly understood and agreed that Contractor shall perform all work and services described herein as an independent contractor and not as an officer, agent, servant or employee of the City; that Contractor shall have exclusive control of and the exclusive right to control the details of the services and work performed hereunder, and all persons performing the same; and shall be solely responsible for the acts and omissions of its officers, agents, employees, contractors and subcontractors; that the doctrine of respondeat superior shall not apply as between City and Contractor, its officers, agents, employees, contractors and subcontractors; and that nothing herein shall be construed as creating a partnership or joint enterprise between City and Contractor. No person performing any of the work and services described hereunder shall be considered an officer, agent, servant or employee of the City. 15. INDEMNIFICATION A. CONTRACTOR SHALL RELEASE, INDEMNIFY, REIMBURSE, DEFEND, AND HOLD HARMLESS, CITY, ITS OFFICERS, AGENTS, SERVANTS AND EMPLOYEES, FROM AND AGAINST ANY AND ALL CLAIMS OR SUITS FOR PROPERTY DAMAGE OR LOSS AND/OR PERSONAL INJURY, INCLUDING DEATH, TO ANY AND ALL PERSONS, ARISING OUT OF THE WORK AND SERVICES TO BE PERFORMED HEREUNDER BY CONTRACTOR, ITS OFFICERS, AGENTS, EMPLOYEES, CONTRACTORS, SUBCONTRACTORS, LICENSEES, OR INVITEES, INCLUDING DAMAGES, LOSS, INJURY OR DEATH, TO THE EXTENT CAUSED BY ANY ERROR, OMISSION, DEFECT, Contract for collection of brush and bulky waste CRP09.29.043final 12 OR DEFICIENCY OF CONTRACTOR IN ACCORDANCE WITH THIS CONTRACT EXCEPT TO THE EXTENT ANY SUCH DAMAGES, LOSS, INJURY OR DEATH IS CAUSED BY ANY NEGLIGENT ERROR, OMISSION, DEFECT OR DEFICIENCY OF THE CITY. B. CONTRACTOR DOES HEREBY RELEASE, INDEMNIFY, REIMBURSE, DEFEND, AND HOLD HARMLESS THE CITY, ITS OFFICERS, AGENTS, SERVANTS, AND EMPLOYEES FROM AND AGAINST ANY AND ALL LIABILITY, CLAIMS, SUITS, DEMANDS, OR CAUSES OF ACTION WHICH MAY ARISE DUE TO ANY LOSS OR DAMAGE TO PERSONAL PROPERTY, OR PERSONAL INJURY, AND/OR DEATH OCCURRING AS A CONSEQUENCE OF THE PERFORMANCE OF THIS CONTRACT, WHEN SUCH INJURIES, DEATH, OR DAMAGES ARE CAUSED BY THE NEGLIGENCE OF CONTRACTOR, ITS OFFICERS, AGENTS, OR EMPLOYEES, OR SUBCONTRACTORS, OR THE JOINT NEGLIGENCE OF CONTRACTOR, ITS AGENTS, OR EMPLOYEES, OR SUBCONTRACTORS, AND ANY OTHER PERSON OR ENTITY, EXCLUDING ALL PARTIES INDEMNIFIED HEREUNDER, TO THE EXTENT CAUSED BY THE NEGLIGENT ACT OR OMISSION OF CONTRACTOR. C. The obligations of the Contractor under this section shall include, but not be limited to, the burden and expense of defending all claims, suits, and administrative proceedings (with counsel reasonably approved by the indemnified parties), even if such claims, suits or proceedings are groundless, false, or fraudulent, and in conducting all negotiations of any description, and paying and discharging, when and as the same become due, any and all judgments, penalties or other sums due against such indemnified persons. D. Upon learning of a claim, lawsuit, or other liability which Contractor is required hereunder to indemnify, the City shall provide Contractor with reasonably timely notice of same. E. The obligations of the Contractor under this section shall survive the expiration of this Contract and the discharge of all other obligations owed by the parties to each other hereunder. F. In all of its contracts with subcontractors for the performance of any work under this Contract, Contractor shall require the subcontractors to indemnify the City in a manner consistent with this section. G. In the event that a written claim for damages against Contractor or any of its subcontractors remains unsettled at the time all work on the assigned task has been completed to the satisfaction of the City Manager, as evidenced by a final inspection, final payment to Contractor shall not be recommended by the City Manager for a Contract for collection of brush and bulky waste CRP09.29.043final 13 period of ninety (90) Days after the date of such final inspection, unless the Contractor submits written evidence reasonably satisfactory to the City Manager that the claim has been settled and a release has been obtained from the claimant involved, or offers reasonable security for payment of such claim. 1. If the claim concerned remains unsettled at the expiration of the said thirty (30) Day period, the Contractor may be deemed by the City Manager to be entitled to a semi-final payment for work completed, such semi-final payment to be in an amount equal to the total dollar amount then due less the dollar value of any written claims pending against the Contractor arising out of the performance of such work. 2. The City Manager shall not recommend final payment to Contractor if a claim for damages is outstanding for a period of six (6) months following the date of the acceptance of the work performed unless the Contractor submits evidence in writing, reasonably satisfactory to the City Manager, that: a. The claim has been settled and a release has been obtained from the claimant involved; or b. Good faith efforts have been made to settle such outstanding claims, and such good faith efforts have failed. 3. If condition (a) above is met at any time within the six (6) month period, the City Manager shall recommend that the final payment to Contractor be made. If condition (b) above is met at any time within the six-month period, the City Manager may recommend that final payment to Contractor be made. At the expiration of the six (6) month period, the City Manager may recommend that final payment be made if all other work has been performed and all other obligations of the Contractor have been met to the reasonable satisfaction of the City Manager. 16. INSURANCE Contractor shall not commence work under this Contract until it has obtained all the insurance required under the Contract, and such insurance has been approved by the City. Contractor shall keep the required insurance in force throughout the term of this Contract. A. WORKERS' COMPENSATION INSURANCE: Contractor shall maintain, during the term of this Contract, Workers' Compensation Insurance at statutory limits on all of its employees to be engaged in work under this Contract, and for all subcontractors. Employer's Liability (EL) Insurance shall also be maintained, at minimum limits as Contract for collection of brush and bulky waste CRP09.29.043final 14 follows: $500,000 each accident/$500,000 disease each employee/$500,000 disease policy limit. B. GENERAL LIABILITY INSURANCE (CGL): Contractor shall procure and shall maintain during the term of this Contract a Commercial General Liability Insurance Policy at a minimum limits as Two Million Dollars ($2,000,000) per occurrence with an aggregate of Five Million Dollars ($5,000,000) combined single limit, including property damage and personal injury coverage, during effective dates of the Contract, or any renewal thereof, in order to protect and save the City harmless against any and all claims for damage to person, persons, or property arising from the processing and disposal of Type IV Waste, C&D Waste, Large Brush and Bulky Waste and Yard Waste. Contractor shall also provide excess Commercial General Liability in the amount of Ten Million Dollars ($10,000,000). C. AUTOMOBILE INSURANCE: Contractor shall procure and maintain during the term of this Contract Comprehensive Automobile Liability Insurance covering all vehicles involved with Contractor's operations under this Contract. The minimum limits of liability coverage shall be in the amount of Two Million Dollars ($2,000,000) per occurrence combined single limit, during the effective dates of Contract and any renewal period. The named insured and employees of Contractor shall be covered under this policy. The City of Fort Worth shall be named an additional insured on Endorsement TE 9901 or equivalent, as its interests may appear. D. ENVIRONMENTAL IMPAIRMENT LIABILITY (EIL) AND/OR POLLUTION LIABILITY—Ten Million Dollars ($10,000,000) per occurrence. EIL coverage(s) must be included in policies listed in items above; or, such insurance shall be provided under separate policies. Liability for damage occurring while loading, unloading and transporting materials under the Contract shall be included under the Automobile Liability insurance or other policy(s). NOTE: BETWEEN A AND D ABOVE, ANY POLLUTION EXPOSURE, INCLUDING ENVIRONMENTAL IMPAIRMENT LIABILITY, ASSOCIATED WITH THE SERVICES AND OPERATIONS PERFORMED UNDER THIS CONTRACT SHALL BE COVERED; IN ADDITION TO SUDDEN AND ACCIDENTAL CONTAMINATION OR POLLUTION LIABILITY COVERAGE, THERE MUST BE NON-SUDDEN AND NON-ACCIDENTAL CONTAMINATION LIABILITY COVERAGE FOR GRADUAL EMISSIONS AND CLEAN-UP COSTS. The following shall pertain to all applicable policies of insurance(A. through D.) listed above: 1. Additional Insured Clause: "The City of Fort Worth, its officers, agents, employees, and representatives are added as additional insureds as respects operations and activities of, or on behalf of the named insured, performed Contract for collection of brush and bulky waste CRP09.29.043final 15 j3� �C� J eti °% C under contract with the City of Fort Worth." An equivalent clause may be acceptable in the discretion of the City. 2. Subcontractors shall be covered under the Contractor's insurance policies or they shall provide their own insurance coverage; and, in the latter case, documentation of coverage shall be submitted to the Contractor prior to the commencement of work and the Contractor shall deliver such to the City. 3. Prior to commencing work under the Contract, the Contractor shall deliver to the City insurance certificate(s) documenting the insurance required and the terms and clauses required. 4. Each insurance policy required by this Contract shall contain the following clauses: "This insurance shall not be canceled, limited in scope or coverage, or non-renewed until after thirty (30) Days prior written notice has been given to the Director of Environmental Management, City of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102." Note: Written notice can be by Contractor or insurance company. 5. The insurers for all policies must be approved to do business in the State of Texas and be currently rated in terms of financial strength and solvency to the reasonable satisfaction of the Risk Manager for the City. 6. The deductible or self-insured retention (SIR) affecting the coverage required shall be reasonably acceptable to the Risk Manager of the City; and, in lieu of traditional insurance, alternative coverage maintained through insurance pools or risk relations groups must be also approved. 17. UNACCEPTABLE WASTE Contractor shall NOT knowingly accept, nor be required to accept Unacceptable Waste. Contractor shall notify City's Collector(s) and the Director of the suspected Unacceptable Waste immediately and provide the Director with a description of such waste. Contractor reserves the right to reject or revoke acceptance of any Unacceptable Waste in accordance with Applicable Law. Contract for collection of brush and bulky waste CRP09.29.043final 16 0FFIC_:J`HEjk;L�, ���,g �� �. W:`'v��7; I YEA 18. CUMULATIVE REMEDIES The rights and remedies granted in this Contract are cumulative, and the exercise of such rights shall be without prejudice to the enforcement of any other right or remedy authorized by law or this Contract. No waiver of any violation shall be deemed or construed by a court of law or an arbitrator to constitute a waiver of any other violation or other breach of any of the terms, provisions, and covenants contained herein. 19. REMEDIES FOR BREACH The parties agree that in the event that either party breaches this Contract, the other party may exercise any legal rights it has under this Contract and under Applicable Law to recover damages or to secure specific performance, and that such rights to recover damages and to secure specific performance shall ordinarily constitute adequate remedies for any such breach. Neither party shall have the right to terminate this Contract for cause except upon the occurrence of an event of default, unless otherwise specified herein. 20. NO WAIVER OF RIGHTS No failure by the City or by the Contractor to insist upon the strict performance of any term, covenant, agreement, provision, condition or limitation of this Contract or to exercise any right or remedy hereunder, and no acceptance by the City of full or partial payment during the continuance of any such breach, shall constitute a waiver of any such breach or of such term, covenant, agreement, provision, condition or limitation. No term, covenant, agreement, provision, condition or limitation of this Contract to be kept, observed or performed by the City or by the Contractor, and no breach thereof, may be waived, altered or modified except by a written instrument executed and acknowledged by and delivered to the City and the Contractor. No waiver of any breach shall affect or alter this Contract, but each and every term, covenant, agreement, provision, condition and limitation of this Contract shall continue in full force and effect with respect to any other then existing or subsequent breach thereof. This Contract may be terminated (except by expiration of the term of this Contract) only by a written instrument of termination executed by the appropriate party and delivered to the non-terminating party. 21. RIGHT TO AUDIT Until the expiration of three (3) years after the final payment under this Contract, the City shall have access to and the right to examine any directly pertinent books, documents, papers and records of the Contractor involving transactions relating to this Contract. Contractor further agrees to include in all its subcontracts hereunder a provision to the effect that the subcontractor agrees that the City shall, until the expiration of three (3) years after final payment under the subcontract, have Contract for collection of brush and bulky waste CRP09.29.04v3final 17 access to papers and records of such subcontractor involving transactions relating to the subcontract. The term "subcontract" as used herein includes purchase orders. 22. HEALTH AND SANITATION Contractor shall establish and enforce in its operations and among its employees such regulations in regard to cleanliness and sanitation in the collection of all Brush and Bulky Waste as will tend to prevent the inception and spread of disease and to effectively prevent the creation of a nuisance on any property either public or private. 23. GOVERNMENTAL POWERS AND IMMUNITIES It is understood and agreed that, by execution of this Contract, the City does not waive or surrender any of its governmental powers or immunities. Contractor acknowledges that the City is a Governmental Body and as such has certain rights, powers and duties that may affect the Contractor's rights or obligations under the Contract. The Contractor agrees that no action by the City acting in its governmental capacity not in derogation of this Contract shall be construed as a breach or an event of default by the City under this Contract, nor shall any such action excuse the Contractor from performance of its obligations under this Contract; provided, however, if such action constitutes an Uncontrollable Circumstance, the Contractor may assert any rights it may have under this Contract as is permitted for any other Uncontrollable Circumstance. 24. COMPLIANCE WITH LAWS Contractor, its officers, agents, employees, contractors and subcontractors, shall abide by and comply with all Applicable Law, federal, state and local, including the City's charter and all ordinances, rules and regulations of the City and shall maintain all permits and approvals required for the services to be provided to City. It is agreed and understood that, if City calls the attention of Contractor to any such violations on the part of Contractor, its officers, agents, employees, contractors or subcontractors, then Contractor shall immediately desist from and correct such violation. 25. LICENSES, PERMITS AND FEES Contractor agrees to obtain and pay for and maintain all licenses, permits, certificates, inspections and all other fees required by law or otherwise necessary to perform the services prescribed hereunder. Contract for collection of brush and bulky waste CRP09.29.04v3final 18 26. DISCRIMINATION PROHIBITED Contractor, in the execution, performance or attempted performance of this Contract shall not discriminate against any person or persons on any unlawful basis. This Contract is made and entered into with reference specifically to Article III of Chapter 17 of the Code of the City of Fort Worth (1986), as amended, an ordinance prohibiting discrimination, and Contractor hereby covenants and agrees that it has fully complied with all provisions of same and that no employee or employee-applicant has been discriminated against or will be discriminated against by Contractor in violation of said ordinance. Contractor warrants that it is an equal opportunity employer. In addition, Contractor, in the execution, performance or attempted performance of this Contract shall not discriminate on any prohibited basis and shall fully comply with all other applicable federal, state and local laws concerning discrimination. 27. NON ASSIGNMENT Contractor shall not assign, transfer, sublet, convey, or otherwise dispose of the Contract or the rights, title, or interest in or to the same or any part thereof without the previous consent of the City Council which consent will not be unreasonably withheld, conditioned or delayed.. In the event Contractor does, without such previous consent, assign, transfer, sublet, convey or otherwise dispose of the Contract or of the right, title or interest therein or any part thereof, City may, at its discretion, terminate the Contract. Consent will not be required when an assignment is made to an Affiliate, provided that Contractor shall not be released from its obligations hereunder. 28. SUCCESSORS AND ASSIGNS All of the terms, covenants, and Contracts contained herein shall be binding upon and shall inure to the benefit of successors and assigns of the respective parties hereto. 29. NOTICES Any notices, bills, invoices or reports required by this Contract shall be sufficient if sent by the parties in the United States mail,postage paid,to the address noted below: Contract for collection of brush and bulky waste CRP09.29.04v3fenal 19 If to the City: Kim Mote, Assistant Director Solid Waste Services Division Department of Environmental Management City of Fort Worth 4100 Columbus Trail Fort Worth, Texas 76133 (817) 392-5153 If to the Contractor: Bob Kneis IESI District Manager 4001 Old Denton Road Fort Worth, TX 76161 (817) 547-9000 and Jeff Peckham IESI Regional Vice President 2301 Eagle Parkway, Suite 200 Fort Worth, TX 76177 30. VENUE Should any action, whether real or asserted, at law or in equity, arise out of the terms and conditions of this Contract, venue for said action shall be in Tarrant County, Texas. 31. SAVINGS CLAUSE In case any one or more of the provisions contained in this Contract shall, for any reason, be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Contract; this Contract shall be construed as if such invalid, illegal or unenforceable provision had never been contained herein. 32. NON-APPROPRIATION In the event that no funds or insufficient funds are collected, appropriated and budgeted or funds are otherwise unavailable for payment of amounts due hereunder by City to Contractor, City shall notify Contractor and this Contract shall terminate on the last day of the fiscal period Contract for collection of brush and bulky waste CRP09.29.04v3fnalp ��� �^ � 20 P `�%} for which appropriations were made without penalty or expense to City of any kind whatsoever, except as to the payment of amounts due and payable for which appropriations have been made for said fiscal period. City covenants that it will provide Contractor as much notice as possible of this contingency. Provided, however, that this Section 43 is not intended to grant to the City an independent ground for termination of this Contract separate and apart from any grounds for termination for non-appropriation or non-availability of funds which would be provided to City by reason of Tex. Const. Ann. Art. 11, Sec. 5 and 7. 33. REPRESENTATIONS AND WARRANTIES OF EACH PARTY Each party represents and warrants to and with the other as to the Commencement Date (and such representations and warranties as of the Commencement Date shall survive the termination or expiration of this Contract), as follows: A. Each party is duly organized and existing in good standing and each is duly qualified and authorized to enter into and perform the obligations set forth in this Contract. The execution and performance of this Contract (1) have been duly authorized by all required corporate or other action of such party, (2) do not require any consent or approval not otherwise previously obtained, and (3) will not violate any judgment, order, law or regulation applicable to such party or any provisions of such party's charter, ordinances or resolutions. B. The execution of this Contract and the performance of all obligations set forth herein do not conflict with, and will not, nor with the passage of time or the giving of notice, constitute a breach of or event of default under any charter, ordinances or resolutions of the party, or any contract, indenture, mortgage, bond, instrument or Applicable Law to which the party is subject or by which such party is bound. This Contract has been duly executed and constitutes a legal, valid and binding obligation of each party and is enforceable in accordance with its terms, except to the extent that the enforcement thereof is limited by any applicable bankruptcy, insolvency, reorganization, moratorium or other laws relating to or limiting creditors' rights generally and the application of principles of equity. C. There is no action, suit or proceeding, at law or in equity, before or by any court or governmental authority, pending or threatened against the party, wherein an unfavorable decision, ruling or finding would materially adversely affect the performance by the party of its obligations hereunder or the other transactions contemplated hereby, or which, in any way, would adversely affect the validity or enforceability of this Contract, or any other contract or instrument entered into by the party in connection with the transactions contemplated hereby. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] Contract.for collection of brush and bulky waste CRP09.29.04v3frnal 21 IN WITNESS WHEREOF, The parties hereto have executed this Contract on this day of )QA.D., 2004, in Fort Worth, Tarrant County, Texas. CITY OF FORT WORTH IESI TX Corporation BY: Libby Watson Jeff ec . am Assistant City Manage Presi entNice Presi ent Date Signed:_ /� y Date Signed: -7 Z ATTEST: WITNESS: arty Hendrix City Secretary APPROVED AS TO FORM CORPORATE SEAL: AND LEGALITY: C�W.m Ft-&A" AssistanY City Attorney P'_ Q�aLa_ <:ontract uthorizatiox Date Contract for collection of brush and bulky waste CRP09.28.04v1 22 mm City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 9/28/2004 - Ordinance No. 16145 DATE: Tuesday, September 28, 2004 LOG NAME: 521ESISUPPLBULK REFERENCE NO.: C-20312 SUBJECT: Appropriation Ordinance and Award of Contract to Independent Environmental Services of Texas, Inc. for Supplemental Brush and Bulky Waste Collection Services RECOMMENDATION: It is recommended that the City Council: 1. Adopt the attached appropriation ordinance increasing appropriations in the Solid Waste Fund by $ 150,000.00, and decreasing unreserved retained earnings by the same amount; and 2. Approve the execution of a contract with Independent Environmental Services of Texas, Inc. (IESI) to provide supplemental brush and bulky collection services from September 29, 2004 through October 31, 2004 for a total cost not to exceed $ 150,000.00. DISCUSSION: The Brush and Bulky Waste Collection Program was terminated as a call-in system on July 5, 2004. An agreement has been reached with Waste Management, Inc. to begin the new monthly program on November 1, 2004. In the interim transition period, additional equipment and effort is required to collect the brush and bulky waste that exists. Currently, collection service is running more than 7 days behind and neither Waste Management or the City has any additional resources available to supplement this effort. In order for the City to clean-up the excess brush and bulky waste prior to the start up of the new program, additional trucks and personnel are required. IESI has agreed to provide supplemental brush and bulky collection services six days per week from September 29, 2004 through October 31, 2004. IESI will be responsible for the collection of brush and bulky waste routes as directed by the City. The cost of this service is $100.00 per truck hour. The total cost of these services is estimated not to exceed $ 150,000.00. The Department of Law has reviewed this expenditure and determined that the provisions of Section 252 of the Local Government Code do not apply because it is a "procurement necessary to preserve or protect the public health or safety of the municipality's residents." FISCAL INFORMATION/CERTIFICATION: The Finance Director certifies that upon approval of recommendation No. 1, and adoption of the attached appropriation ordinance, funds will be available in the current operating budget, as appropriated, of the Solid Waste Fund. The unrestricted cash balance of the Solid Waste Fund will be $ 6,501,464. Logname: 52IESISUPPLBULK Page I of 2 TO Fund/Account/Centers FROM Fund/Account/Centers PE64 539120 0525002 $150.000.00 PE64 539120 0525002 $150.000.00 Submitted for City Manager's Office by: Libby Watson (6183) Onginating Department Head: Brian Boerner(6647) Additional Information Contact: Kim Mote (5153) Logname: 52IESISUPPLBULK Page 2 of 2