Loading...
R-2012-169-2012-11-26 RESOLUTION NO. R2012-169 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS, AUTHORIZING A RECYCLING FACILITY USE AGREEMENT WITH WASTE MANAGEMENT ASSOCIATED WITH THE "AT YOUR DOOR" RECYCLING PROGRAM. BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF PEARLAND, TEXAS: Section 1. That the City Council hereby authorizes the Recycling Facility Agreement attached hereto as Exhibit "A". Section 2. The City Manager or his designee is hereby authorized to execute a Recycling Facility Agreement. PASSED, APPROVED and ADOPTED this the 26th day of November, A.D., 2012. - .)vlyv fc s TOM REID MAYOR ATTEST: • 4QtiARL,g4/ Y NG RFING, 414 �.�� {m S ETARY `"'' " APPROVED AS TO FORM: DARRIN M. COKER CITY ATTORNEY WASTE MANAGEMENT At Your Door Special Collection'' December 20,2013 Ms. CIaire Bogard Director of Finance City of Pearland 3519 Liberty Drive Pearland,Texas 77581 Re: Modification of November 30,2012 Recycling Facility Agreement between the City of Pearland and WM Curbside,LLC("Agreement"); Resolution No.R2012-169 Dear Ms. Bogard: By this letter,WM Curbside, LLC("Curbside")is seeking to abate the terms of the above-referenced Agreement effective January 31, 2014. Because Curbside's business expansion plans for east Texas are taking longer to realize than previously anticipated, Curbside has decided not to fill the customer service technician position for the Houston area. As such,Curbside no longer has a present need to use the City's Facility as set forth in the Agreement between the parties. We continue to work on our east Texas business expansion plans and are optimistic that we may still have a need to use the City's Facility sometime later during the term of the Agreement. For this reason, Curbside requests that the parties abate the Agreement effective February 1, 2014 rather than terminate it. Curbside agrees to pay the City the monthly rent amount set forth in the Agreement for January 2014,and Curbside agrees to cease all of its operations at the Facility as set forth in the Agreement by February 1, 2014. Curbside shall remove all of its equipment currently located at the Facility on or before February 1, 2014, except for a shipping container currently used for storage at the Facility, which the City has agreed can remain at the Facility. Although Curbside's use of the City's Facility and the rent payments under Agreement shall be abated,the Term and all the provisions of the Agreement shall not be abated,and the Agreement shall terminate on September 30, 2016 unless renewed in writing by both parties in accordance with the terms of the Agreement. Curbside agrees to give the City at least thirty (30) days' advance written notice if Curbside intends to resume its operations pursuant to the Agreement at the City's Facility. Please sign in the space below to indicate that the City agrees to modify and abate the Agreement as set forth in this letter. We appreciate the City's efforts in working with us,and look forward to a continued good working relationship. Sincerely, Agreed: City of Pearland,Texas By: nn `svor• By: William Caesar President Title: "ipurrifi" WM Curbside,LLC At Ynur Ilnnr cr, rial rnllartinn is nrnvirlpri by WAA rnnccirlp 11 r a Wactp Mananomant rmmnanv Exhibit "A" Resolution R2012-169 RECYCLING FACILITY AGREEMENT On this the 30th day of November, 2012, the City of Pearland ("Owner") and WM Curbside, LLC("Contractor")entered into this Recycling Facility Agreement("Agreement). WHEREAS, the Owner owns and operates the Stella Roberts Recycling Facility, located at 5800 Magnolia,Pearland, Texas("Recycling Facility"); WHEREAS, Contractor currently provides a household hazardous waste collection service ("At Your Door") to residents of various communities, including the Owner's residents under the City's Exclusive Commercial and Residential Solid Waste and Recycling Contract dated on or around October 1, 2011 with Waste Management of Texas, Inc.; WHEREAS, the Contractor desires to use Owner's Recycling Facility for the purposes described herein, and the Contractor desires to provide the Owner with compensation for such use; and NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by each of the parties, the parties agree to the terms and conditions set forth below: 1. Use and Rates: During the term of this Agreement, the Owner shall allow Contractor to use a portion of the Recycling Facility for the purposes and in the manner more fully described in Attachments A and B hereto. Contractor shall compensate the Owner for such use as set forth in Attachment A. 2. Term: The Term of this Agreement shall begin on the date of final execution of this Agreement and continue until September 30, 2016. This Agreement may be renewed,by mutual consent of the parties in writing, for additional five year terms ("Renewal Terms"), provided such Renewal Terms are executed at least sixty (60) days prior to the end of the then current Term. 3. Termination: (a) Each party shall have the right to terminate this Agreement for its convenience by providing at least one hundred twenty(120)days written notice to the other party. (b) If either party shall default in the performance of any of its obligations, the non- defaulting party may send a written notice reasonably describing the default. If the defaulting party, within a reasonable time(not to exceed ten (10) days after receipt of the notice)does not cure the default, the non-defaulting party may with ten (10) days written notice, terminate this Agreement and/or pursue all other available remedies as may be available at law or in equity. Should either party employ an attorney to enforce any of the provisions hereof, or to protect its interest in any matter arising under this Agreement, or to recover damages for the breach thereof, the non- prevailing party (such non-prevailing party being defined as that party receiving the lowest net damages in any single proceeding) in any final judgment agrees to pay to 1 the other party all reasonable costs, charges and expenses, including attorneys fees, expended or incurred in connection therewith by such other party. 4. Representations and Warranties: (a) The Owner represents and warrants to Contractor that: (1)it is the fee simple owner of the Recycling Facility and its premises and has good title to the Recycling Facility and its premises free and clear of any liens or encumbrances other than taxes for the current year;(2) water, sewer, storm, drainage,electricity, telephone and other necessary utilities are available to the Recycling Facility in sufficient capacity at usual and customary rates to serve the Owner's and Contractor's intended use; (4)the Recycling Facility and its premises are adjacent to and have access upon adjoining public streets and rights of way. (b) Each party represents and warrants to the other that it has full power, legal right, and authority to enter into this Agreement. (c) Contractor shall follow Owner's safety rules, instructions and policies in effect at the Recycling Facility during the Term of this Agreement, and Contractor shall be responsible for complying with all state or federal rules and regulations applicable to the operations of the Recycling Facility. A copy of Owner's safety rules, instructions and policies shall be provided in writing to Contractor upon or before commencement of this Agreement. 5. Facility and Premises Maintenance: The Owner shall maintain the Recycling Facility including, without limitation, the building, parking areas, access roads, and related yard areas at its sole cost and expense. Notwithstanding the foregoing, Contractor shall be responsible for repair of any damage to the Recycling Facility caused by the negligence or willful misconduct of Contractor or its employees or agents. Contractor shall not be responsible for normal wear and tear to the Recycling Facility. 6. Utilities,Taxes,and Equipment: (a) The Owner shall be responsible for providing, at its sole cost and expense, all necessary utilities for the operation of the Recycling Facility including, without limitation, heating,cooling, electricity,water, sewer,sanitary facilities, Internet lines, and telephone lines. Owner shall not be legally or financially liable to Contractor for any interruption in utility services, but Owner agrees to use reasonable efforts to restore such services as soon as practicable. Contractor shall have no responsibility for any such utility charges. (b) The Owner shall be responsible for paying any property taxes assessed at the local, state,or federal level associated with the Recycling Facility and its premises. (c) Except as may be otherwise provided in Attachment A to this Agreement, Contractor shall furnish, at its own expense, all equipment, labor, and materials, if any, necessary to carry out the terms of this Agreement. Any inspection, maintenance, repairs, modifications, or replacement of Contractor's equipment shall be the sole responsibility 2 of Contractor. Notwithstanding anything contained herein to the contrary,any equipment that the Contractor furnishes shall remain Contractor's property at all times and shall be removed within 30 days after the termination date of this Agreement. 7. Facility Alterations by Contractor: Contractor shall not make any structural alterations, additions, or improvements to the Recycling Facility or its premises without the Owner's prior written consent. Before making any structural alterations, additions or improvements at its expense, the Contractor shall obtain all permits, approvals and certificates required by any governmental or quasi-governmental bodies. Upon completion, the Contractor shall deliver to Owner duplicates of all permits, approvals and certificates. The Owner agrees not to take any action or fail to take any action that would cause, contribute to, or result in Contractor's inability to use the Recycling Facility and its premises in the manner set forth in Attachment A during the Term of this Agreement. 8. Independent Contractor Contractor's relationship with Owner is that of an independent contractor, and nothing in this Agreement shall be construed to designate Contractor, or any of its employees, as employees, agents, joint ventures or partners of Owner. Contractor shall exercise its own discretion on the method and manner of performing its duties, and Owner will not exercise control over Contractor, its employees or equipment except insofar as may be reasonably necessary to ensure performance and compliance with this Agreement. None of the benefits provided by Owner to Owner's employees or by Contractor to Contractor's employees, including, but not limited to,compensation insurance and unemployment insurance, are available to the other party's employees,agents,or servants. 9. Permits and Registrations The Owner agrees to maintain or renew all required registrations, notices, or permits that are in existence as of the effective date of this Agreement with the Texas Commission on Environmental Quality or any other applicable regulating body. Contractor shall, at its sole cost and expense, obtain all permits, registrations, notices or licenses, if any, that are necessary in order for Contractor to perform the services described in Attachment A. Contractor agrees to comply with all applicable federal, state, and local statutes, codes, and regulations during its use of the Recycling Facility. 10. Insurance: Contractor shall obtain and maintain,at its sole cost and expense,at least the following insurance coverage throughout the entire Term of the Agreement and any renewal Term: a. Worker's Compensation and statutory minimums Employer's Liability Insurance b. General Liability $1,000,000 occurrence 3 c. Business Automobile Insurance $1,000,000 occurrence $1,000,000 per person Contractor shall provide the Owner with a Certificate of Insurance evidencing coverage required by this Agreement. Contractor shall provide the Owner with thirty (30) days notice of any cancellation, non-renewal, material change in coverage, or coverage reduction affecting the insurance required by this Agreement. Contractor will add Owner as an Additional Insured on all policies, except workers' compensation. In no event shall Contractor's liability under this Agreement be limited by the amount of insurance required herein. 11. Indemnification: Contractor shall indemnify, defend, and hold harmless the Owner, the Owner' agents, officials, and employees from and against any and all liabilities, penalties, fines, forfeitures, judgments,demands,claims,suits,and costs and expenses(including attorneys' fees and costs of defense) which the Owner, their agents,officials, and employees, may incur,owe,or pay out due to bodily injuries to any person, destruction or damage to any property, contamination of or adverse effects on the environment,or any violations of governmental laws or regulations caused by the negligent acts or omissions or willful misconduct of Contractor, its employees, agents, and subcontractors, in the performance of the terms of this Agreement. Furthermore, Contractor agrees that Owner shall not be responsible for and shall not pay for any consequential damages of any kind whatsoever, including, but not limited to, any damages for inconvenience, loss of use, lost profits, or other costs or losses arising from Contractor's use of the Recycling Facility pursuant to this Agreement. 12. Assignment This Agreement may not be assigned by either party to a non-affiliated entity without the prior written consent of the other party. Contractor may assign this Agreement without Owner's consent to any limited liability corporation, partnership, limited partnership, corporation or other entity owned or controlled in whole or in part by Contractor; provided that any such assignment shall not unduly interfere with Owner's operations and rights under this Agreement, and further provided that such assignee agrees to be bound by the terms of this Agreement to the same extent as Contractor. 13. Confidentiality Subject to the Texas Public Information Act, Contractor and Owner each agree not to disclose to third parties any information provided by one party to the other for purposes of the Agreement which has not been previously disclosed to receiving party by outside third parties, or which is not in the public domain, without the owning party's prior written permission. Contractor and Owner shall use their best efforts to safeguard from unauthorized disclosure to third parties any such information given them. Furthermore, Owner will not disclose to its employees, agents, Subcontractors or Vendors any such information if Owner knows, or should reasonably know, that those persons may be involved in similar projects with direct competitors of Contractor. 4 13. Notices Any notices or communication required or permitted under this Agreement shall be in writing and sufficiently given if delivered by fax, in person,overnight courier,or sent by certified mail,return receipt requested, postage prepaid as follows: To the Owner: City of Pearland Attn: Director of Finance 3519 Liberty Drive Pearland,TX 77581 To the Contractor: Attn: William Anderson WM Curbside,LLC 5101 E La Palma Avenue Suit 206 Anaheim,CA 92807 With Copy to: Waste Management Legal Counsel 9708 Giles Austin,Texas 78754 14. Miscellaneous (a) Condition of Premises; Maintenance; Alterations; Improvements- Contractor agrees to accept the Recycling Facility and structures thereon in their present condition, subject to and with knowledge of all possible hazards throughout the term of this Agreement. All existing improvements and any improvements constructed upon the premises by Contractor during the term of this Agreement shall remain on the Recycling Facility premises at termination of this Agreement and shall become the property of Owner.Contractor agrees not to use the premises for any purpose other than that stated in the Agreement terms. (b) Amendment to Agreement—This Agreement may be amended or modified only by a written instrument signed by both parties hereto. (c) Entire Agreement — This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings between the parties relating to the subject matter hereof. (d) Severability - If any term or provision of this Agreement or the application thereof to any person or circumstance be invalid or unenforceable to any extent, the remainder of this Agreement or the application of such terms and provisions to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby and each term and provision of this Agreement shall be valid and be enforceable to the fullest extent permitted by law. 5 Attachment "A" to Recycling Facility Agreement Operations The operations to be performed by WM Curbside pursuant to this Agreement are more fully described in Attachment"B,"the Operational Plan attached hereto and incorporated fully herein by reference. Rent WM Curbside, LLC ("Contractors) shall pay to the City of Pearland $2500.00 per month rent for use of the City's Stella Roberts Facility ("Facility"). The Owner shall submit monthly invoices to Contractor for Contractor's use of the Facility during the previous month. Payment shall be due to Owner within 30 days after receipt of an invoice. Other fees: Materials Handling Fee- In the event Contractor requires materials handling services by Owner's employees for materials that Contractor collects and transports to the Facility, a charge of $27.00 per hour shall be assessed to Contractor in '/+ hour (0.25) increments. Before Owner's employees may be used by Contractor, Contractor's authorized representative must complete a Contractor Work Request Form describing the requested work. The Owner's Facility manager shall document the hours expended in writing, and shall submit said document and an invoice to the Contractor's employee assigned to the Facility, or in that person's absence to WM Curbside's New Braunfels Manager, not later than fourteen (14) days after the end of the month, for the previous month's work. Payment of the fee to Owner by Contractor shall be based upon properly submitted Contractor Work Request Form, and Contractor shall deliver payment to Owner within 30 days of receipt of an invoice for material handling services. In the event of a dispute, regarding an invoice for material handling services, Contractor shall pay Owner the full amount of the disputed invoice as required herein, and simultaneously submit detailed information supporting Contractor's claim regarding the disputed invoice. Owner shall review and make a determination of the accuracy of the disputed invoice within 10 days of receiving the same. If Owner determines that Contractor was overcharged for the fee, Owner shall reimburse Contractor the full amount of the overcharge within 30 days following Owner's determination of the dispute. The City shall exercise its own discretion on the method and manner that a Facility employee may use in performing any services hereunder, and Contractor shall not exercise control over the City, its employees, or representatives except insofar as may be reasonably necessary to ensure compliance with this Agreement. None of the employee benefits provided by Contractor to Contractor's own employees, including, but not limited to, workers' compensation insurance and unemployment insurance, are available to the City's employees, agents, or servants. Nothing in this Agreement shall be construed to designate the City or any of its employees as agents, joint venturers, partners, or employees of Contractor. Provisions: Contractor shall, at Contractor's expense, provide all necessary materials, equipment, and supplies needed to perform Contractor's functions at the Facility. Space Requirements: Owner shall provide Contractor an office workspace within the Facility large enough, in Owner's sole discretion, to accommodate a standard office desk, filing cabinets, printer and a chair. Owner shall also provide Contractor a workspace, within the gated yard area in the rear of the Facility, not greater than thirty feet by twenty feet (30)Q0'), the exact requirement to be determined. If Contractor needs additional space at the Facility, Contractor shall seek additional space in writing from the City and the City's approval of such request shall not be unreasonably withheld, provided the parties can mutually agree on the increased monthly rental amount for the additional space. Facility Access: Owner shall provide Contractor access to the Facility during the period of 6:00 A.M. to 5:00 P.M. Monday through Friday. Any additional access times must be pre-approved by the Facility Manager. Contractor represents that it has conducted a background check and drug test on all employee(s) that will have access to the Facility and that such employee(s) have passed both tests. Contractor shall provide the City with the names of all Contractor employee(s)that will have access to the Facility. Amenities Contractor shall have access and use of standard Facility amenities, including water, electricity, restrooms, emergency eyewash station, fire extinguishers, break room, housekeeping. Prohibitions: Except as may be allowed pursuant to the Operational Plan set forth in Attachment "B," Contractor's employees are prohibited from handling materials dropped off by customers at the Facility. Facility employees are prohibited from assisting with Contractor activities; however, Facility employees may offload or handle Contractor materials if requested in writing by Contractor on a Contractor Work Request Form as more particularly described in the "Other fees" section above. Collected Materials: Materials collected by Contractor shall be packaged and labeled by Contractor to reflect WM Curbside, LLC being the generator. Materials collected by Contractor may be stored/shipped alongside Facility materials, but shall not be commingled with Facility materials within the same containers. Contractor reserves the right to select the final destinations for all materials collected by Contractor. Contractor shall not collect unknown material. Contractor shall not offload any materials that citizens or businesses deliver directly to the Facility. Contractor shall handle all regulated medical waste ("RMW") collected by Contractor in accordance with Federal and State regulations. RMW collected by Contractor shall not to be handled by Facility employees at any time or under any circumstances. At Your Door ATTACHMENT"B"TO RECYCLING FACILITY AGREEMENT Operational Plan A. Daily Operations: 1. WM Curbside,LLC(hereafter,"WM Curbside")special collection service employees will be properly trained with a 40 hr HazWoper and hands on training with WM Curbside supervisor. 2. Except as set forth in Section H below,WM Curbside employees will only be permitted to take part in activities at the Pearland Recycling Facility("Facility")directly involving waste collected by WM Curbside including: a. Offloading of WM Curbside materials b. Consolidation of WM Curbside materials c. Prepping WM Curbside materials for transport d. Office duties required to perform WM Curbside routes These actions will take place in areas designated by the Pearland Recycling Facility manager. 3. Assistance with these activities (offloading,consolidation, prepping and loading for transport) from Pearland employees is permitted only upon request from WM Curbside and at the approval of the Pearland Recycling Facility Manager as described in Appendix"A." 4. Any labor requested by WM Curbside and supplied by Pearland Recycling Facility employees to assist/process WM Curbside materials will be managed as set forth in Appendix"A"to this Agreement. WM Curbside will pay the City for all approved man hours as described in Appendix "A." 5. All materials collected by WM Curbside will be offloaded and handled in cooperation with the Pearland Recycling Facility,ensuring all WM Curbside and Pearland protocols are abided by at all times. 6. Material collected by WM Curbside will be packaged,and labeled(as WM Curbside,LLC being the generator and with correct accumulation start dates)before offloading at the Pearland Recycling Facility.Materials collected may be co-located with,but not"comingled"with Pearland Recycling Facility materials. 7. Material collected by WM Curbside as"HHW"will be off loaded at the Pearland Recycling Facility within 72 Hours of accumulation start dates,or when transport containers are full. 8. All other materials will be off loaded within their regulated time frame or when transport containers are full. B. WM Curbside Employees Responsibilities: 1. WM Curbside employees will report directly to the WM Curbside New Braunfels Operations Manager(Andy Easley)and cooperate with the Pearland Recycling Facility employees,as needed. 1 2. WM Curbside"direct route responsibilities"will be performed solely by WM Curbside Employees and include: 1. Preparing and finalizing WM Curbside Route paperwork duties 2. Operating WM Curbside trucks 3. Performing WM Curbside collections 3. All work areas utilized by WM Curbside employees will be kept clean and orderly. 4. Pearland Recycling Facility employees will be coordinated with during the offload of WM Curbside materials to ensure all materials are accounted for and in proper storage locations. C. Provisions Provided by WM Curbside: 1. The following provisions needed to conduct WM Curbside operations at the Pearland Recycling Facility will be provided by WM Curbside: 2. Computer;printer;wireless internet access;cell phone 3. Desk/chair(if needed);filing cabinet;general office supplies; uniforms 4. Truck;pallet jack;storage container;packing materials and containment(i.e.drums,boxes, liners,absorbent);required PPE. D. WM Curbside Employees will need access to the following areas provided by the Pearland Recycling Facility: Access to the Pearland Recycling Facility and its Amenities by WM Curbside is addressed in Appendix"A." E. Operational Expectations: 1. SHARPS are not currently accepted by the Pearland Recycling Facility from its customers. 2. SHARPS are accepted in most WM Curbside special collection programs. 3. A designated area will be assigned by the Pearland Recycling Facility manager that is secure from theft and natural elements for storage of sharps collected by WM Curbside.The sharps will be stored in compliant RMW(Regulated Medical Waste)containers and collected by WM Healthcare Solutions or another licensed provider approved by WM Curbside on an ON-CALL basis. 4. Sharps collected by WM Curbside will not be handled by Pearland employees,or comingled with Pearland Recycling Facility materials. S. WM Curbside employees will be trained annually on BBP(Blood Borne Pathogens). 6. No"unknown" materials will be accepted by WM Curbside. 7. No"Business Waste"will be off loaded at the Pearland Recycling Facility by WM Curbside. 8. No"Haz Cat"testing will be performed by WM Curbside employees at the Facility. F. Final Destination of Materials: 1. WM Curbside will determine the final destination of materials collected by WM Curbside. WM Curbside reserves the right to ship separately packaged WM Curbside materials with Pearland Recycling Facility materials,or to choose separate destinations for materials collected by WM 2 Curbside.The destination for materials will be determined and made known to the Pearland Recycling Facility manager or staff to ensure all notifications to TCEQ are correct and updated on a regular basis. 2. The goal will be to operate in a safe and highly cost effective way. G. Communications 1. The WM Curbside New Braunfels operations manager will meet with the Pearland Recycling Facility Manager each month(in-person or by phone)to discuss various operational issues. 3. If there are questions about WM Curbside's operations,the Pearland Recycling Facility manager will first contact the WM Curbside technician assigned to the Facility. If that person cannot be reached,the Facility Manager will contact the WM Curbside New Braunfels Operational manager. 4. Any and all issues arising from WM Curbside's use of the Facility should be discussed with the New Braunfels operations manager. 5. WM Curbside will provide,upon request by a regulator,copies of any shipping documents, permits and/or licenses. H. Operational Savings and Efficiencies to the City 1. In consideration for receiving a reduced rental fee for use of the Facility,WM Curbside personnel will provide training and assist Facility personnel and assist the Facility personnel in methods to reduce the cost of material disposal. 2. In consideration for receiving a reduced rental fee for use of the Facility,WM Curbside,at no charge to the City,will transport eligible items collected at the Facility from City residents and eligible items collected by the City from residents of adjacent communities to a treatment, storage,and disposal facility along with materials collected by WM Curbside. The materials collected by WM Curbside's special collection program will not be mixed with materials collected by the City, but the separate containers will be transported together to the appropriate treatment,storage,and disposal facility. 3